Henry v. Missouri Dep't of Mental Health

Decision Date09 August 2011
Docket NumberNo. WD 72667.,WD 72667.
Citation351 S.W.3d 707
PartiesMarilyn J. HENRY, Respondent, v. MISSOURI DEPARTMENT OF MENTAL HEALTH, Appellant.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Supreme Court Denied Oct. 4, 2011.

Application for Transfer Denied

Dec. 6, 2011.

Daryl R. Taylor, Kansas City, MO, for Appellant.

Daniel E. Hunt, Jefferson City, MO, for Respondent.

Before JAMES EDWARD WELSH, P.J., JAMES M. SMART and JOSEPH M. ELLIS, JJ.

JAMES EDWARD WELSH, Presiding Judge.

This is an appeal from the judgment of the circuit court reversing the Personnel Advisory Board's (PAB) decision, which affirmed the Missouri Department of Mental Health's (Department) decision to dismiss Marilyn J. Henry from her merit system position with the Department. Although the Department filed the appeal as the party aggrieved by the circuit court's decision, under Rule 84.05(e) 1 Henry filed the appellant's brief because she was aggrieved by the PAB's decision. In her sole point on appeal Henry contends that the PAB's decision that she should be terminated from employment was not based upon substantial and competent evidence, was unreasonable, arbitrary, and capricious, and was an abuse of discretion. In particular, Henry asserts that the evidence was insufficient to establish that she abused a client at the hospital or that she violated any Department guidelines or rules. We agree and affirm the circuit court's judgment. The PAB's rationale for its decision upholding Henry's termination was not supported by substantial and competent evidence and was, therefore, unreasonable.

The evidence established that Henry worked as a Registered Nurse III at the Biggs Forensics Center of the Fulton State Hospital, which is a facility operated by the Department. On January 20, 2008, during one of her shifts, Henry participated in the care and restraint of P.G., a patient confined at the Fulton State Hospital. P.G. has a history of abuse and is very violent. During restraints, P.G. is known to spit, bite, hit, and head butt.

On January 20, 2008, P.G. attempted to bite a staff member as he was walking him down a hallway. Staff members then forced P.G. to the floor of the hallway. While on the floor, P.G. began flailing his body, banging his head, and yelling. He hit his head on the floor and chipped his tooth. A staff member then held P.G.'s head. Thereafter, Henry arrived to assist the other staff members in restraining P.G. While restraining P.G., a staff member placed on P.G. a spit sock, which is like a surgical mask placed over a patient's mouth to prevent the spread of disease from bodily fluids. At one point, Henry put her hand on P.G.'s face while the other staff members finished restraining P.G. Staff members then transported P.G. on a stretcher into the restraint room.

Once P.G. was placed on the bed in the restraint room, Henry stayed by P.G.'s head as up to ten other staff members worked to get P.B. off the stretcher and into the restraints. For approximately six minutes, Henry held P.G.'s head and frequently adjusted the spit sock around P.G.'s head while other staff members placed P.G.'s arms and legs in the restraints. When P.G. attempted to lift or turn his head, Henry would try to hold P.G.'s head in place. As Henry prepared to give a sedative injection to P.G., another staff member moved in to hold P.G.'s head. Throughout the incident, P.G. was screaming and repeatedly yelled that he could not breathe. He also yelled such things as “Get off my nose,” “Get off my fucking throat,” and “Get your hands off my fucking mouth.” Once P.G. was secure in the restraints and had been given a sedative, Henry and the staff members left the room. The entire incident—from the point that P.G. tried to bite the staff member in the hallway to the point that the staff restrained, sedated, and left P.G. in the room—was captured on video by the building's video system.

Prior to this incident with P.G., Henry had received training concerning the Department's views on holding a client's head during restraints. The program nurse manager had sent Henry the minutes from the Nurse Leadership Council's meeting in December 2007, which “clarified that staff are not to hold the patient's head down, nor are they to put any pressure on the face or neck [.] Henry was also present at a nurse's morning shift report meeting in early January 2008 where the topic of holding a patient's head was discussed. Some of the nurses expressed concern that, although they knew they were not supposed to hold a client's head, they were not sure what to do if a client was banging his head on the floor. They discussed solutions such as putting a towel or something underneath the client's head. The program nurse manager told the nurses they could not place their hands on the client's face or apply pressure anywhere on the face. She wanted to ensure that the nurses were getting their hands off the clients' heads and told the nurses “don't be holding the heads.”

Fulton State Hospital Policy 4.201 defined physical restraint as [a]ny manual method or physical or mechanical device, material, or equipment that immobilizes or reduces the ability of an individual to move his or her arms, legs, body or head freely.” Moreover, Fulton State Hospital Policy 4.201 required employees to use [o]nly approved principles and techniques consistent with PRO ACT for physical or mechanical restraints.” Five days before the incident with P.G., Henry attended a refresher training class for PRO ACT. The packet for this training said that during restraints [s]taff must constantly assess breathing and circulation.” During this training, Henry acknowledges that the instructor told her not to touch or hold a client's head during restraints or it would result in automatic dismissal. Henry asked the instructor whether there was a written policy on this, and the instructor said no. According to Henry, she had worked at the hospital long enough to know that, if it was not in writing, it was “a grey area.” So, she decided that, until there was a written policy, she would do what she had to do to keep the patient and staff safe.

After the restraining incident on January 20, P.G. filed a grievance concerning his treatment. An investigation ensued, which ultimately resulted in Henry's dismissal from her position with the hospital. By letter dated April 29, 2008, Marty Martin, the Appointing Authority and the Chief Operating Officer of Fulton, notified Henry that she was dismissed from her employment as a registered nurse with Fulton State Hospital based upon her actions during the restraint of P.G. on January 20, 2008. The letter said:

The reason for your dismissal is your inappropriate actions during the restraint of a client. Your actions were not consistent with the training you received in ProAct. This disciplinary action is taken in accordance with including, but not limited to, 1 CSR 20–3.070(2)(B), (I), (L), the DMH Employee Handbook, Hospital Policy 2.310. Additionally, your dismissal is required pursuant to DOR 2.205.

The specific facts supporting the reason for your dismissal are as follows: On or about January 20, 2008, at approximately 2:15 p.m. a spit sock was applied to client's P.G.'s head. At approximately 2:23 p.m. client P.G. was being placed in restraints when you placed your right hand on his chin and your left hand on his forehead. After that you placed you hands on the right side of P.G.'s head pressing down on his head with your elbows in a locked position. You continued to move your hands in different locations on P.G.'s head. You held P.G.'s head and the spit sock for approximately six (6) minutes. Your actions were inappropriate and could have resulted in serious injury of the client's neck or spine or the client's ability to breathe. You used more force than was reasonable or necessary for P.G.'s proper control, treatment or management.

Based on your conduct (as described above), I have determined that your dismissal from employment is justified and that it serves the good of the service and the efficient administration thereof.... [I]t is expected without exception that no employee will engage in physically abuse behavior toward our clients.

....

Furthermore, based on your conduct (as described above), I am making a preliminary determination of one (1) count of physical abuse. Department Operating Regulation (DOR) 2.205 defines physical abuse as “1. An employee purposefully beating, striking, wounding or injuring any consumer; 2. In any manner whatsoever, an employee mistreating or maltreating a consumer in a brutal or inhumane manner[;] 3. Physical abuse includes handling a consumer with any more force than is reasonable for a consumer's proper control, treatment or management.”

The letter also informed Henry that, because of the preliminary determination of physical abuse, she was at risk for being placed on the Department's Disqualification Registry. If she was placed on the Disqualification Registry, Henry could not be employed by the Department of Mental Health or any of its facilities, and she could not be licensed, employed, or provide services at a residential facility, day program or service that is licensed, certified, or funded by the Department. The letter further informed Henry that she could meet with Martin concerning her dismissal and that Henry could provide further information about the case.

On May 5, 2008, Henry met with Martin to discuss her dismissal. By letter dated May 13, 2008, Martin notified Henry that she had not changed her decision to dismiss Henry from her job. The letter informed Henry that Martin still believed the allegations against Henry to be true and that Martin was going to substantiate that Henry committed one count of physical abuse.

Thereafter, Henry appealed Martin's decision to the PAB. The PAB upheld Martin's decision and found that Henry's dismissal was for the good of the service and that she...

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