She would, for example, file paperwork falsely showing a resident had requested a narcotic, then falsify charts to show they had received it, when in fact she used it herself
Published on: January 18, 2019 | Last Updated: January 18, 2019 2:01 PM EST
Early on a summer morning in 2016, a nurse at a Waterloo, Ont., long-term care facility noticed a light on in the bathroom she intended to use.
She waited, knocked a couple of times, then opened the door, where she saw another nurse sitting on the toilet with an ampoule of the painkiller Hydromorphone sideways in her mouth, as if she had just injected herself.
This was among the earliest pieces of proof that the nurse, identified in legal records only as DS, had for two years been stealing opioids for her own use and falsifying medical records in order to conceal the thefts.
Now, in a decision that has ignited debate over whether addiction truly is a medical disease, a labour arbitrator has ordered the Regional Municipality of Waterloo to give DS her job back, and to compensate her financially for her unfair dismissal, including general damages for “injury to dignity, feelings and self-respect.”
The care home had a duty to accommodate the nurse’s unquestioned diagnosis of severe opioid use disorder and mild to moderate sedative-hypnotic use disorder, ruled arbitrator Larry Steinberg. This disease had left her with “a complete inability or a diminished capacity” to resist the urge to feed her addiction.
She would, for example, file paperwork falsely showing a resident had requested a narcotic, then falsify charts to show they had received it, when in fact she used it herself. She would also keep the unused portion of narcotics, rather than discarding them.
Confronted by management, the nurse, a 50-year-old mother of three, initially denied but later admitted her actions, which she said were related to abuse of painkillers that began when she was treated for a kidney condition. She had become heavily addicted, appeared physically ill, and was isolating herself from her family. About a month later, Sunnyside fired her for gross misconduct and theft.
At her hearing, DS testified she has not used narcotics since this time in late summer 2016, when she entered a residential rehab.
Her nursing licence was suspended for about nine months, and reinstated with a series of conditions including that she have no access to controlled substances and be supervised at all times.
Lawyers for the care home argued that letting her return to work with these conditions would impose “undue hardship” on the care home. Every nurse has access to narcotics, for example, and some patients are in advanced dementia, so they would not notice if a nurse removed their fentanyl patches. Furthermore, nurses need to work independently, not be supervised constantly.
The care home also argued that she was not fired because of her addiction, and that it played no role in the decision. She was fired for theft and record falsification, abuse of residents and breach of trust, it claimed. But the arbitrator did not buy it. The nurse’s actions were symptoms of the disease of addiction, and it is discriminatory to fire someone because of their disease.
An expert hired by the region, Lawrie Reznek, a professor of psychiatry at the University of Toronto, testified that addiction is not a disease but more like a bad habit, although he “acknowledged that this was a minority view in the psychiatric profession and that it was contrary, for example, to the DSM-5,” the manual of psychiatry.
His view was rejected by the arbitrator in favour of the views of two other experts who testified addiction is seen as a health condition, and that “to view (addictions) as bad habits stigmatizes these conditions and makes it harder for people to get help,” Steinberg wrote.
But Reznek is not alone in his view. For example, Marc Lewis, a Canadian neuroscientist and recovered addict who studies the development of addiction, has argued that addiction is not a disease, but rather a “developmental cascade,” like a form of learning. In his book The Biology of Desire, he argues against the fatalistic view that addiction is some intrinsic part of a person’s nature, or a biological disturbance or natural flaw. Rather, addiction is a result of “the motivated repetition of the same thoughts and behaviours until they become habitual.”
In that sense, he argues addiction is more similar to racism than to cancer, and more like violence or domestic abuse than cystic fibrosis or diabetes. As comforting as it may be to think of addiction as a disease, it is simply a “very bad habit.”
The disease model is well-founded in both science and clinical practice, however. It is more than just a sympathetic metaphor that reflects a desire to help rather than judge.
Population-level studies have shown a clear genetic basis. Addiction has obvious environmental, epidemiological and social factors. It can alter the structure and function of the body and brain. It can respond to systematic, biological, medical treatments, just like cancer or the flu. It certainly has terrible symptoms and can often be fatal.
The view that it is a disease is well established in Canadian society. When the government of Canada argued in court against a supervised injection site in Vancouver, for example, it conceded the point that addiction is a true disease. And when the Supreme Court of Canada ruled in the case, it concluded that “the ability to make some choices (about drug use) does not negate the trial judge’s findings that addiction is a disease in which the central feature is impaired control over the use of the addictive substance.”
But courts do not always follow this lead.
In his coverage of this and other similar cases, Waterloo Region Record reporter Gordon Paul identified a diversity of outcomes for nurses who steal opioids to feed their own addictions.
One stole painkillers from an elderly terminal cancer patient, was convicted of theft, suspended as a nurse for five months, and eventually resigned after the College said she shamed the profession. Another who stole medicine from a dying teenager was stripped of her nursing licence and spent 18 months in jail for theft, drug charges, breach of trust and impaired driving. Another was sentenced to two years in prison.
In the current case of DS, there was some uncertainty at the hearing over whether she “shorted” patients, or gave them less than required in order to save some for herself, but the adjudicator did not resolve this question, as it was not relevant to the issues he had to decide.
DS also testified testified that she was remorseful and embarrassed by her actions.