33 These principles were applied in a Judgment of the Crown Employees Apeal Board, brought to the attention of all nursing staff in Circular 68/P.H.89 of 29 November 1968. This Judgement commences with the statement:
"It is a fundamental rule of psychiatric nursing that patients must not be subjected to violent treatment or violent correction by the nursing staff."
34 Mr De Meryck further relied upon the application of these principles in Stewart's case, wherein the Commission as presently constituted held:
"It is not disputed that the applicant struck a patient. The mitigating circumstances put go to the events surrounding that act. If I accept the applicant's contention that she struck the patient in an uncontrollable instinctive reaction, contributed to by the events of the day commencing with the punch to her face compounded by the injury to her wrists and triggered by the spit in her face, that fault is not moved from her to the patient."
35 Mr De Meryck submitted that the applicant's utterance of the exclamation, "you bitch", at the time of the event and the subsequent failure to include that aspect in a description when he was asked for all particulars, specifically whether he had said anything, are indicative of a violent disposition by the applicant, a comprehension that he had misconducted himself, and an exercise in deceit.
36 Mr Hull did not resile from the principles of conduct earlier relied upon by Mr De Meryck.
37 Mr Hull submitted that the applicants in all matters earlier referred to were trained medical or nursing staff with appropriate qualifications to deal with psychiatric patients. Mr Hull made the distinction that the security officers had not been adequately trained or equipped to deal with the circumstances confronting them on the afternoon of 27 June 2002,
38 Mr Hull further submitted that the actions of the applicant in this matter are properly distinguished from those in the cases cited by characterisation of the actions of the applicant as defensive as opposed to retaliatory and correctional.
39 Mr Hull submitted that, given the differences in size, the applicant being a large man and Miss "A" a slight girl, had the applicant hit her with a forceful, round arm motion, the blow would have moved Miss "A" across the room or off her feet. This did not occur on any account of the event.
CONSIDERATION
40 There is no dispute between the parties that the action of the applicant was an instantaneous response to the patient spitting in his face.
41 On the evidence before me I find that the actions of Security Officer Drinan was not a slap on the side of the face of the patient, as found by the fact finding inquiry conducted by the respondent.
42 I find on the evidence of the applicant, supported by Dr Kable, that the action of the applicant is properly described as a cuff across the side of the head, above the hairline, in a forward thrust rather than swinging arm motion, which had little if any physical effect, leading to the view that the applicant's action was a restrained and defensive response to the provocation and surprise of the patient spitting in his face.
43 On the evidence of Dr Kable all staff were dealing with a risky and potentially violent situation, which was the reason security officers were present. There is some conjecture as to whether separating the two patients at the time was appropriate. There is no doubt that whilst the two patients were together the situation was deteriorating.
44 Mr Drinan's action was wrong. He acknowledges that in these proceedings and by his subsequent conduct at the time of the event. Subsequent to being spat on, the applicant was punched and spat on a number of times by the patient and exhibited appropriate restraint.
45 At the time the applicant struck at the patient, he uttered the expletive "you bitch". Mr De Meyrick put that I should regard this simultaneous comment as evidence of personal affront and retribution, rather than self defence. This interpretation is open, however, in all of the circumstances, it is in my view more indicative of surprise. The fact that this comment was not mentioned in earlier interviews is not properly held against the applicant, who readily conceded when put to him in cross examination.
46 Within the high standards of conduct required of health care professionals there must be an acceptance that actions in self defence are permissible in a measured and controlled manner.
47 Having regard to the lack of specific training, the applicant's good employment record, and the defensive nature of his actions, I conclude that termination of the applicant's employment was harsh, unreasonable and unjust.
48 Termination of employment should not be considered as the only alternative open to an employer. Whilst this experience has been unpleasant and harrowing, it adds to the experience of the applicant which need not be lost to the employer. The termination of the applicant's employment does nothing to maintain the high standards required of health care professionals.
49 It is, in my view, appropriate that specific education and training be developed for security officers engaged in the health care industry, and that a clear protocol of communication between medical practitioners, nursing staff, and security officers be put in place in order that security staff, when called to assist, are left in no doubt as to what is required of them by medical and nursing staff.
50 I order reinstatement of the applicant to his former position, without loss of wages or continuity of employment, in terms no less favourable than that occupied at the time of his termination.
51 I order compensation of an amount equal to the ordinary time earnings from the date of the applicant's dismissal to the date of reinstatement to employment.
52 Matter No IRC 4434 of 2002 is so concluded.
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