The Fair Work Commission has held that an aged care operator had a valid reason to dismiss a registered nurse who used unwarranted physical contact to encourage an agitated dementia resident to go to bed.
The resident was described as "extremely violent" with behaviours that included uncontrolled rage, kicking, spitting, hitting and body slamming. At the time of the incident, the resident was in an agitated state, yelling and had kicked two other staff members prior to the nurse assisting. Nevertheless, the FWC held that the nurse's use of physical contact to get the resident to bed was unwarranted and contrary to her employer's policies.
However, the Commission held that the termination was unfair because:
- there was a lack of sufficient evidence of the degree of force used by the nurse to get the resident to bed; and
- the aged care operator failed to investigate the conduct of other staff who were present during the incident, but did not intervene.
Accordingly, the FWC ordered that the nurse be reinstated to an equivalent position, but not in high care, and that she be issued with a first and final warning for her conduct. The nurse was also ordered to undergo training on the Elder Abuse and Restraint Free policies of the employer and the Code of Professional Conduct for Nurses before she be permitted to return to work.
Undue force may be a valid reason
The FWC noted that the employer had a clear obligation under its policies and under legislation to protect its residents from abuse and that an employee who used force on a resident may constitute a valid reason for his or her dismissal.
The FWC considered that it would have been reasonable for the nurse to coax or encourage the resident to go to bed. However, once she got out of bed she should not have been moved back to bed with any physical contact. Further, the nurse's conduct could not be condoned in any way because she was trained in her employer's policies and she was aware that the general approach with distressed residents was to walk away and come back to them later.
However, the termination in this instance was nevertheless found to be unfair because of the impact of dismissal on the nurse, the employer's failure to investigate other staff who stood by and did nothing, and because of the lack of evidence as to the degree of force that the nurse actually used. An appeal by the employer concerning the order of reinstatement other than in high care is yet to be heard.
Lessons for employers
Aged care operators are obliged to protect their residents from elder abuse and unreasonable use of force even if they are exhibiting challenging behaviours.
To assist meet their obligations, aged care operators need to ensure that all staff understand how to respond appropriately to residents who are aggressive, agitated or exhibiting other challenging behaviours. This can be achieved by:
- Ensuring that appropriate policies and procedures are in place which clearly set out how staff should respond when a resident exhibits challenging behaviour.
- Having policies and procedures to provide for reports to be made of inappropriate conduct by other staff.
- Providing information and training on relevant policies and procedures, codes of professional conduct and standards to all staff.
- Ensuring staff have access to up to date information about the health condition (such as dementia) and possible behaviour of its residents.
Aged care operators must also thoroughly and fairly investigate all incidents involving alleged unreasonable use of force against its residents and ensure that its findings are supported by sufficient and reliable evidence. The use of an independent external investigator may be warranted or required in certain circumstances.
Finally, careful consideration should be given to whether the conduct of any other participant or witness to an incident also requires investigation. Staff should be treated consistently unless there are good grounds for disparate treatment or disciplinary action.
References: Bolden v Lyndoch Living Inc T/A Lyndoch Warrnambool Inc FWC 3259; Lyndoch Living Inc T/A Lyndoch Warrnambool v S Bolden  FWCFB 5969.