STATE OF NORTH CAROLINA IN THE OFFICE OF

ADMINISTRATIVE HEARINGS

COUNTY OF JOHNSTON 06 OSP 0015

Malcolm Shelton Daniels
Petitioner
vs.
Department of Health and Human
Services
Respondent / )
))
)
)))) / DECISION

This matter came before Temporary Administrative Law Judge Donald L. Smith, on May 25, 2006 in Raleigh, North Carolina.

APPEARANCES

For Petitioner: Glenn Barfield

Haithcock, Barfield, Hulse & Kinsey, PLLC

231 East Walnut Street

Post Office Drawer 7

Goldsboro, NC 27533-0007

For Respondent: Dorothy Powers

Special Deputy Attorney General

N.C. Department of Justice

P.O. Box 629

Raleigh, NC 27602

ISSUE

Whether Respondent had just cause to dismiss Petitioner from his employment as a Health Care Technician for unacceptable personal conduct consisting of:

1) Violating the Standard of Clinical Practice Manual No. R-6 by putting his hands on patient KR without informing the charge nurse;

2) Violating the Standard of Clinical Practice Manual No. R-6 resulting in abuse of patient KR by closing KR’s door and watching while another staff member locked the door and then not notifying the charge nurse that the door had been locked; and

3) Talking on his personal cell phone recurrently while intervening with patients?

APPLICABLE STATUTES AND RULES

N.C. Gen. Stat. § 126-5

N.C. Gen. Stat. § 126-35

N.C. Gen. Stat. § 150B-23, et. seq.

25 N.C.A.C. 1J .0604

25 N.C.A.C. 1J .0608

25 N.C.A.C. 1J .0614

MOTIONS AND STIPULATIONS

At the beginning of this administrative hearing, Respondent made a Motion for a Protective Order regarding any evidence produced during the hearing regarding disciplinary actions of any employees of Dorothea Dix Hospital other than Petitioner; any evidence produced identifying the names of any patients residing at Dorothea Dix Hospital; and the videotape entered into evidence depicting employees and patients at Dorothea Dix Hospital. The motion was subsequently allowed.

WITNESSES

For Respondent: For Petitioner:

Leta Laureatte Loy Michelle Dennison

Deborah Wall Malcolm Daniel, Petitioner

Ian Blackwood

Beverly Boyd

EXHIBITS

Exhibits admitted on behalf of Respondent:

1. Leta Laureatte Loy’s 9/3/05 statement

2. Ian Blackwood’s 9/3/05 statement

3. Time Line

4. Standards of Clinical Practice Manual No. A-1 Abuse, Neglect

5. Standards of Clinical Practice Manual No. R-6a Restrictive Interventions

6. Telephone call policy

7. 9/12/05 Pre-dismissal conference letter

8. 9/21/05 Dismissal letter

9. 7/13/04 Written Warning

10. Petitioner Daniel’s 9/3/05 Statement

11. Petitioner Daniel’s Work Plan 6/1/04- 5/31/05

12. Petitioner Daniel’s Work Plan 6/1/05- 5/31/06

13. Daily Assignment Sheets

14. Talking and Touching Policy

15. Petitioner Daniel’s 9/17/05 memo to Deborah Wall

16. Video tape (compact disc) of the “back hall” on September 3, 2005

Exhibit admitted on behalf of Respondent:

1. Standards of Clinical Practice Manual No. S-3-g Level of Observation

FINDINGS OF FACT

BASED UPON careful consideration of the sworn testimony of the witnesses presented at the hearing, the documents, and exhibits received and admitted into evidence, and the entire record in this proceeding, the undersigned Administrative Law Judge (“ALJ”) makes the following Findings of Fact by a preponderance of the evidence. In making these Findings of Fact, the ALJ has weighed all the evidence and has assessed the credibility of the witnesses by taking into account the appropriate factors for judging credibility, including, but not limited to the demeanor of the witnesses, any interests, bias, or prejudice the witness may have, the opportunity of the witness to see, hear, know or remember the facts or occurrences about which the witness testified, whether the testimony of the witness is reasonable and whether the testimony is consistent with all other believable evidence in the case.

1. The parties received notice of the scheduled hearing at least 15 days prior the hearing.

2. At all times material, Petitioner Malcolm S. Daniels (“Petitioner”) was a career state employee and was subject to the provisions of the State Personnel Act.

3. On January 4, 2006, Petitioner filed a Petition for Contested Case Hearing with the Office of Administrative Hearings (“OAH”) claiming he was dismissed from his position as a Health Care Technician effective 9/21/05 for the alleged unacceptable conduct violations of abuse/neglect and violation of Standards of Clinical Practice Manual No. R-6. Petitioner also alleged that Respondent substantially prejudiced his rights and acted erroneously.

4. Petitioner Malcolm Daniels (“Petitioner”), was an employee of Dorothea Dix Hospital (“DDH”) as a Health Care Technician (“HCT”). His regular job assignment was in the Cherry building under the supervision of Deborah Wall. (T p 281)

5. At all relevant times, Deborah Wall (“Wall”) was the Unit Nurse manager for the long term adolescent unit at DDH. She has a Bachelor’s degree in nursing. She has been psychiatric nurse for 20 years and is currently working on her psychiatric nurse practitioner degree. (T pp 62-63)

6. On September 3, 2005, Petitioner was employed in the long term adolescent unit at DDH. Wall was Petitioner’s direct supervisor. However, at times material, Petitioner was working overtime in the adolescent admission unit in the Williams building which was under the supervision of Beverly Boyd (“Boyd”). At the time, Wall was the acting supervisor for Boyd in the Williams building. (T pp 61-62, 140, 199-200)

7. Beverly Boyd (“Boyd”) was employed at DDH as the Unit Manager for the Adolescent Admission Unit in the Williams Building. She graduated from nursing school in 1984 and started working at DDH on the adult unit in 1985. She then went to the Williams building and has been there ever since with the exception of two years. (T pp 195-196)

8. As the Unit Manager of the Williams building, Boyd is responsible for the overall management of the unit. She is responsible for the nursing care that is provided to the patients 24 hours a day, 7 days a week. She hires and supervises the nurses and HCTs and makes sure the policies are followed. Boyd has worked in mental health care for over 20 years. (T pp 196-197)

9. Leta Laureatte Loy (“Loy”) was at all relevant and material times employed at Dorothea Dix Hospital in the adolescent admission unit as a Registered Nurse (“RN”). Loy has a Bachelor’s Degree in Nursing and has been a psychiatric nurse for more than twenty three years. She began her employment with DDH in August 2005. Her job duties included admitting patients, giving patients medicine, using restrictive interventions on patients, and doing group education. (T pp 15-17)

10. Ian Blackwood (“Blackwood) was employed by DDH from October 18, 2004 through December 31, 2005. He left employment at DDH to focus on his education. He has since graduated from college with a degree in political science. As of September 3, 2005 Blackwood was employed at DDH as a HCT. His duties were to monitor patients with regards to their health, location, and behavior. (T pp 185-186)

11. At times material Michelle Dennison (“Dennison”) had been employed as a nurse at DDH in the Williams building for six or seven months. She was the medicine nurse and was responsible to make sure that the patients received their scheduled medications and then determine if additional medication was needed. This is Dennison’s first nursing job and first psychiatric job. (T pp 250-251, 259)

12. The Williams building is the adolescent admission unit of DDH. It is a State facility in which the patients are psychotic and oppositional. They are depressed, suicidal, bipolar, mentally retarded and/or autistic. Some patients are there for legal reasons. To become a patient in the Williams building one must present a danger to themselves or others. (T pp 197-198) The patients are adolescents aged twelve to seventeen. (T p 18)

13. Petitioner was dismissed from his job as a HCT at DDH, effective September 21, 2005, for occurrences that occurred on September 3, 2005 while Petitioner was working overtime in the adolescent admission unit in the Williams building. Specifically, Respondent alleged that Petitioner:

1. Put his hands on patient KR several times to place KR in his room and did not inform the charge nurse;

2. Closed the door to KR’s room and watched another staff member, Victor Thompson (“Thompson”) lock KR’s door with a key;

3. Did not notify the charge nurse that the door had been locked; and

4. Talked on his cell phone recurrently while intervening with patients. (Respondent’s Exhibit 8)

14. KR was a patient in the back hall of the Williams Building on September 3, 2005. KR was psychotic, actively responding to internal stimuli and voices, and was making bizarre statements about bizarre things that had no real basis in reality. (T p 20; 208-209, 224) He also displayed “zombie like” behavior. (T p 254)

15. KR was assigned a staff member one-to-one due to his unpredictable behavior. He had a history of being intrusive, would wander, was disoriented, would lean on staff and grab staff. (T pp 192-193, 208-209, 224)

16. KR was not verbal. He was clingy to staff. He was not aggressive. He was very thin and his clothes would not stay on. His pants would fall down. (T p 224)

17. As of September 3, 2005, Loy had been working at DDH for only 2 days after completing orientation. She was assigned to the Williams building. (T pp 17-18)

18. Dennison did not feel like she was in danger from KR. She put hands on him to lead him to a safe place instead of him falling on her or making her fall over. (T pp 254-255)

19. On September 3, 2005, Dennison told Loy that KR needed medication for agitation; that he would not stay in his room; was roaming the halls; and would not keep his clothes on. (T p 21, 269)

20. Loy checked the medicine book and determined that KR could be given some medication. Loy’s hands were full so Mr. Guion (“Guion”) went to open the door of KR’s room and it was locked. Loy said “is that door locked” because no one had mentioned that KR was in seclusion. Guion unlocked the door. KR was lying on the floor partially naked, with his pants down. He did not seem to be in touch with anything that was going on. (T pp 21-22)

21. Loy gave KR an antipsychotic medicine, walked out of KR’s room and told the group that was standing outside of KR’s door that “we wouldn’t be locking the door again.” The group outside of KR’s door included Guion, the Petitioner, and Victor Thompson (“Thompson”). None of these men were looking in the window of KR’s door when Loy came on to the scene. (T pp 22-23)

22. At shift report no one had told Loy that KR was in seclusion; and KR didn’t seem seclusion worthy at that time. (T 23)

23. Loy then went to the charge nurse Mary McNeal (“McNeal”) and informed her that KR’s door had been locked. (Tp 22)

24. Blackwood typically worked on Friday from 4:00 p.m. to 12:00 a.m. and a 16 hour shift on Saturday and Sunday from 8:00 in the morning to 12:00 midnight. His direct supervisor was Beverly Boyd. (T pp 186, 188-189; Respondent’s exhibit 2)

25. On September 3, 2005, Blackwood walked by KR’s room and saw KR in his room with the door closed. KR was just staring with a blank stare looking straight through the Plexiglas window in the door. Petitioner told Blackwood that the door was locked. Petitioner was sitting in a chair and Blackwood was standing three or four feet away from KR’s door when Petitioner told him the door was locked. Blackwood assumed that KR was legitimately secluded. Blackwood went into the nurse’s station and spoke with charge nurse McNeal about KR’s seclusion. By that time McNeal already knew that KR’s door was locked without proper authorization. (T pp 188-191, 193-194)

26. McNeal told Blackwood that it was not a legitimate seclusion and told him to write a statement. In his statement, Blackwood indicated “At approximately 16:45, I, Ian Blackwood went to the back hall and saw patient KR in his room with the door closed. Mr. Daniels informed writer that his door was locked. I did not attempt to open the door to see whether it was locked. I did not inquire as to why the patient was being locked in his room. I assumed that it was a legitimate seclusion.” (T pp 188-189; Respondent’s exhibit 2)

27. On the date in question, Boyd received a telephone call at home informing her that a patient was locked in seclusion for some time without anyone telling the nurse. (T p 202)

28. Anytime there is a report that there is possible mistreatment of a patient, the patient advocate is notified and an investigation takes place. Boyd came to the hospital and met with the patient advocate. They investigated the matter of KR’s seclusion because the nurses said that no one reported to them that KR had been secluded. None of the staff could say who locked door. Boyd wanted to know how the patient got into the room with the door locked. (T p 202-203)

29. Wall became aware of Petitioner’s interactions with patient KR when she was called at her home on the weekend and told that KR was placed in locked seclusion. (T p 64) Boyd called Wall because one of the staff stationed on the back hall at times material was Petitioner, who was one of Wall’s staff. (T p 203)

30. Monday was holiday and Wall was asked to come to the hospital with Boyd and the patient advocate Sherry Canady to view a September 3, 2005 video tape of the back hall. Wall and Boyd reviewed the videotape again with the Director of Nursing and Sondra Chavis from the Human Relations Office. (T pp 64-65, 203)