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May 2017

May 11, 2017 - EMR Independent Practice

Question:  I have an independent foot-care practice and have been using paper charting but am considering starting to chart in a Word document on my laptop. Is this appropriate?

Answer: In every Canadian province or territory, there is legislation to protect the privacy of personal health information (PHI). These laws create obligations as to how the PHI that is normally found in health records can be collected, used and disclosed. These laws also provide guidelines for storing and securing such information.

Usually, this legislation requires the appointment of a “custodian” or “trustee” that has the responsibility to ensure that all the requirements of the privacy legislation are met. For nurses who are employees of a health-care organization, their employer typically takes on that role. However, nurses in independent practice are often considered the legal custodians of the health information and must ensure that the manner in which they collect and store patients’ PHI follows applicable privacy legislation.

In privacy laws, the specific requirements dealing with the storage and security of PHI vary between jurisdictions. However, as a general guideline, the custodian must ensure that the PHI is secure regardless of whether paper or electronic records are used. This may include putting in place a number of safeguards to prevent improper access to PHI. As for electronic records, privacy standards typically require the encryption of electronic files and communications to ensure the security of PHI in the possession of the custodian. Encryption is a process of encoding a message or information in such a way that only authorized parties can access it. Implementing password protection on computers is another minimum safeguard.

In certain jurisdictions, there are additional requirements regarding the electronic storage of PHI. For example, some jurisdictions require that electronic records have the ability to be audited or to create a record of user activity. Because of these requirements, word processing applications like Microsoft Word may not be appropriate. As a nurse in independent practice, you should ensure that your electronic record-keeping follows your regulatory body's standards and all relevant legislation.  

CNPS beneficiaries can call 1-844-4MY-CNPS (1-844-469-2677) to discuss privacy issues with a CNPS legal advisor.

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May 10, 2017 - Parent’s Request for Minor’s Health Records

Question:  I am a nurse who is employed at a primary care clinic. I have recently become aware that the parents of a 10-year-old patient have divorced. The father is now requesting a copy of the child’s health records. Is he entitled to receive a copy of the records? What should I do?

Answer: The father’s ability to receive a copy of the child’s records will generally depend on whether the child has the capacity to consent to the management of their health information.[1] If the child is capable of managing their own personal health information, the child generally must provide consent before a copy of the health records is released. Furthermore, it is important to note that the father’s ability to receive a copy of the child’s health records will also depend on whether there is legal authority, such as a court order or subpoena authorizing the release, that allows its release without the consent of a child who has the capacity to manage health information.[2]

If the child is incapable of consenting to the management of their health information, the father’s access will depend on whether he has custodial or access rights to the child. If he has custodial rights, he generally has full access rights to the child’s personal health information and is entitled to a copy of the child’s health record. Alternatively, if the father has access rights, then his right to receive a copy of the records will depend on the governing privacy legislation, the legislation governing access parents’ rights and any relevant court order or agreement regarding access or custody. In some situations, you may want to confirm the parent’s access rights by requesting a copy of any relevant court order or agreement regarding access or custody.

If you receive a request to release copies of personal health records, consider whether you are the best person to handle the request. Typically, health-care institutions are considered the custodians or trustees of personal health records, and an employee nurse is considered an affiliate. The affiliate must comply with the custodian or trustee’s policies and procedures, which are based on privacy law, regarding the disclosure of personal health information. Many health-care institutions have privacy departments or designated individuals who are responsible for managing requests for access to personal health information. In situations where there is no employer policy in place, or the policy does not identify who is authorized to respond to these requests, seek direction from your employer about how best to proceed. Document the request and your actions in the patient’s health record.

CNPS beneficiaries can call 1-844-4MY-CNPS (1-844-469-2677) to speak with a CNPS legal advisor about specific requests for the release of a child’s health records to a custodial or access parent.


[1] CNPS beneficiaries can contact the CNPS for more information on a minor’s ability to consent to the release of their own personal health information.

[2] Please see Confidentiality of Health Information (October 2008, Revision of September 1993).

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May 9, 2017 - Mature minor

Question:  I am a nurse practitioner and my patient Jane is a 15-year old female who requires IV antibiotics for a foot infection. Jane lives away from home, attends school and is otherwise in good health. Is she capable of consenting to treatment, or must I obtain parental consent?

Answer: The issue of consent is complex and will vary across Canadian jurisdictions.

A key component of obtaining valid consent is that the person providing it must be capable of consenting. Canadian law generally[1] reflects that the capacity to make a decision is not tied strictly to age but is a function of maturity and ability of the patient to understand the nature of the decision to make and consequences of accepting or declining treatment.[2] This is known as the Common Law Mature Minor Doctrine.

The manner in which this assessment is to be undertaken and what criteria may be used to deem a minor a mature minor are not prescribed. One appropriate option to test the understanding of a young patient is the “teach-back” technique. This involves asking the patient to re-phrase and summarize what the practitioner has told them about the medical situation, the risks of treatment options and the intended results.

Factual circumstances may also be taken into consideration. In Jane’s case, such factors may include the following:

  • she has presented herself for treatment,
  • she wishes to undertake the appropriate treatment,
  • the infection may be easily treatable,
  • the treatment is minimally invasive, and
  • she is generally living a life independent from her parents.

Even if you deem Jane to be a mature minor, you would use your professional judgement to determine whether it would be appropriate to encourage her to choose to involve a parent. For example, Jane may wish to involve her parents in the decision-making process as part of making appropriate arrangements for follow-up care.

For your protection, it is essential to document the assessment of your patient and note the factors you have considered in reaching your opinion as to whether Jane has sufficient maturity to provide consent for IV treatment of her infection. Given the increased risks of obtaining consent from a minor, if you decide to deem Jane a mature minor, it is advisable that you have the written consent witnessed.

CNPS beneficiaries can call 1-844-4MY-CNPS (1-844-469-2677) to discuss specific questions regarding obtaining consent from minors with a CNPS legal advisor.


[1] Two exceptions are New Brunswick and Quebec. New Brunswick’s Medical Consent of Minors Act states that minors 16 years or older have the right to consent or refuse treatment as if they had reached the age of majority. If younger than 16 years, the patient may provide valid consent if the attending physician, nurse practitioner or nurse believe that the young patient is capable of making such a decision. In Quebec, the Civil Code provides that a youth 14 years and older can consent to care. However, parental or guardian authority is also required if the patient is seeking care that is not medically required and that carries a health risk. Exceptions exist in all jurisdictions for emerging health situations.

[2] For further information, please see Consent to Treatment: The Role of the Nurse, infoLAW Vol. 3, No 2, December 1994.

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May 8, 2017 - Social media

Question:  A nurse working in primary care receives a “friend” request on her Facebook site from someone with a familiar-sounding name. The picture accompanying the request is of a lakeside sunset, so she cannot tell who sent the request. Because the name sounds familiar, she accepts the request. After going through the requestor’s profile, she realizes the “friend” is a patient. The next day, she receives a message from the patient commenting on photos the nurse had posted of her and her friends drinking margaritas on the beach in Mexico. What should she do?

Answer:  Professional practice standards regarding confidentiality, therapeutic boundaries and professional image are engaged when nurses use social media in connection with their professional activities. Many institutions and health authorities have policies regarding social media and patient privacy and the failure to abide by these governing standards and policies can lead to serious legal consequences.

Even where there is no clear policy prohibiting the practice, nurses should consider declining “friend” requests from current or former patients, as communicating with clients through social media sites may extend the scope of professional responsibility. The fact that information in electronic form is easily distributed, archived, and downloaded leaves little control over who sees the information posted on social media sites. In addition, accepting a “friend” request from a patient can adversely affect the nurse-patient therapeutic relationship. Nurses who allow patients to access their entire profile allow them to access information beyond what would normally be shared in a professional nurse-patient relationship.

With respect to the content posted on this nurse’s personal social media page, nurses are reminded that postings to social media sites are generally permanent records that cannot easily be deleted. There exists anecdotal evidence that an increasing number of employers check social networking profiles of current and prospective employees looking for information that could be interpreted as reflecting negatively on the organization or as misconduct or inappropriate behaviour on the part of employees.

If a patient does request you as a “friend” on a social networking site, a polite message responding that it is not your practice to establish online relationships with patients is appropriate. In this case, the nurse could simply send a similar message to the patient indicating that the “friend” request was accepted in error and “unfriend” the patient.

For more information, see our CNPS infoLAW on Social Media.

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November 2016

November 21, 2016 - Complementary therapies

Question: My patient has asked me to administer a complementary therapy in the form of a liquid herbal substance, which I do not know much about. What are my legal obligations? Am I able to refuse?

Answer: Complementary therapies are therapies that are employed in conjunction with mainstream health-care practices.1 Examples of complementary therapies may include massage, herbal products, homeopathy and visual imagery.2

A nurse’s legal and professional obligation to provide reasonable and prudent care would generally extend to administering a complementary therapy. Before administering a complementary therapy, such as an herbal substance, the nurse has a professional and legal obligation to confirm that the administration of the herbal substance falls within their scope of practice and ensure that they possess the necessary knowledge, skill and judgment to administer it safely.3 The nurse should also ensure the necessary informed consent to administer the therapy has been obtained.

Generally, it is not within a nurse’s scope of practice to independently initiate a treatment.4 A nurse must be aware of relevant legislation, regulations, professional standards and guidelines and health-care institution policies concerning administering complementary therapies.5 For example, Ontario’s Hospital Management Regulation specifies that every order for treatment must be made by a physician, dentist, midwife or nurse practitioner.6 Nurses who are asked by patients to administer a complementary therapy will therefore want to determine whether the patient would require a medical order and if its use is supported by the health-care institution’s policies. Regarding the patient’s complementary therapy, the nurse should also ensure that they have consulted with the health-care team, that it is appropriately incorporated in the patient’s plan of care; and that they document the patient’s participation in accordance with their professional standards and the health-care institution’s policies.

If, however, a nurse is asked to administer complementary therapy where there is unknown risk to the patient, they may refuse to administer the substance if they believe that administering it would pose a risk to patient safety.7 If a nurse refuses, their concerns must be clearly documented in the patient record and they should communicate their concerns to the patient, the health-care team and nursing management as appropriate.

In College of Nurses of Ontario (CNO) v Manning,8 a community care nurse administered by mouth a purported alternative cancer treatment, composed of fruit and vegetable, to an end-stage patient who was at risk of aspiration. The CNO panel found that the nurse committed professional misconduct by administering the treatment without a medical order, without consulting the health-care team and without obtaining the appropriate consent from the substitute decision maker. The CNO panel found that since the nurse led a family member to believe that the fruit and vegetable liquid was a treatment for cancer, it followed that consent was required for the treatment. The CNO panel also found that the nurse failed to document that written consent was obtained. The patient passed away the following afternoon after the liquid was administered. The nurse received a 6-month suspension in addition to terms, conditions and limitations on his nursing registration.

A nurse must be careful to practise in accordance with their legislated authority, professional standards, employer’s policies, employer’s Code of Conduct and the Canadian Nurses Association Code of Ethics for Registered Nurses when administering complementary therapies.

To discuss complimentary therapies with a legal advisor on a confidential basis, please contact CNPS at 1-800-267-3390.


1. “Complementary and Alternative Health Care”, College of Registered Nurses of British Columbia.

2. “Complementary and/or Alternative Therapy and Natural Health Products: Standards for Registered Nurses” (January 2011),  College & Association of Registered Nurses of Alberta, [CARNA Standard].

3. “Practice Guideline: Complementary Therapies”, College of Nurses of Ontario, [CNO Guideline]; “Complementary & Alternative Health Care: A Guideline for Registered Nurses and Nurse Practitioners”, College of Registered Nurses of Nova Scotia, p 3; CARNA Standard, supra note 2 at p 4.

4. Note: Nurse Practitioners must confirm whether ordering a form of an alternative therapy falls within their scope of practice.

5. For example, the CARNA Standard specifies on page 5 that RNs are only to administer Natural Health Products that are legal in Canada.

6. Hospital Management, RRO 1990, Reg 965, s 24(1) enabled by the Public Hospitals Act, RSO 1990, c P 40. This regulation applies to Ontario Hospitals.

7. CNO Guideline, supra note 3.

8. 2008 CanLII 89799 (ON CNO).

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September 2016

September 22, 2016 - Proof of Professional Liability Protection

Question: My employer has requested that I provide proof of my professional liability protection (or insurance). I am eligible for CNPS services. What documentation can I produce to demonstrate that I have professional liability protection in place?

Answer: Registered Nurses (RNs) and Nurse Practitioners (NPs) who are eligible for CNPS core services can contact the CNPS to obtain a letter confirming that they have professional liability protection (PLP). CNPS PLP satisfies the minimum PLP amounts required by Canadian nursing regulatory bodies where it has been specified.

Employers may require employees to provide proof of PLP for a variety of reasons. In some situations, the employment contract may require the employee to have their own PLP as a term of employment. In other situations, the employer may not offer professional liability insurance that extends to the employee within their scope of employment. Nurses may also be required to provide proof of PLP to complete a clinical component of a course or as part of the credentialing process.

If you are asked to provide proof of PLP as an employee, it would be prudent for you to ask whether your employer has professional liability insurance in place that extends to you as you work within the scope of your employment.

To request a confirmation letter, please call 1-844-4MY-CNPS (1-844-469-2677). You will be asked to provide us with the following information:

  • confirmation of your current membership with a CNPS member organization or as a CNPS individual beneficiary, for example a photocopy of your receipt of payment for the current membership year or confirmation of your status as a CNPS individual beneficiary; and
  • name and job title, business name and mailing address of the party requesting the PLP letter.

The letter is addressed to the party requiring you to provide proof of PLP, such as your employer, but the CNPS does not send the letter directly to that party. The letter is sent directly to you by mail or email, and it is your responsibility to distribute it to the party that requested it.

To learn more about CNPS’ comprehensive legal support and the CNPS advantage, please visit cnps.ca/advantage. If you wish to discuss proof of PLP with a CNPS legal advisor, do not hesitate to contact the CNPS.

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July 2016

July 27, 2016 (revision of May 10, 2016) - Nurse Practitioner billing

Question: I am a nurse practitioner (NP) and am considering accepting a position working in a medical clinic. The contract for my services specifies that I will be compensated based on my billing to the public health insurance plan. I am aware that physicians are authorized to directly bill public health insurance plans, but is it permissible for NPs to do so?

Answer: The compensation framework for health services provided by physicians and NPs is fundamentally different. Physicians are typically compensated through a fee-for-service model whereby they directly bill the patient’s public health insurance plan for rendered insured health services. To date, no province or territory has assigned NPs individual billing numbers in order for them to directly bill any public health insurance plan for the insured health services they provide to their patients. As a result, NPs are usually paid on a salary basis.

In some jurisdictions, nurse practitioners have been allocated identification numbers under the relevant public health insurance plan for purposes other than payment. For example, all licensed NPs in British Columbia are required to enrol with the Medical Services Plan/Health Insurance BC (“the Plan”) and obtain a practitioner number. The practitioner number permits the NP to submit encounter records for insured services provided to patients who are registered under the Plan. However, these practitioner numbers are not used for compensation purposes, but rather to capture nurse practitioner practice activities.    

It is also important to note that physicians may appropriately bill the public health insurance plans for consulting or being involved at some point in the assessment of a patient who is otherwise being treated by an NP. Billing schedules often provide that where the physician has no involvement in the provision of the services, billing the public health insurance plan is not permitted.

In the case at hand, the NP will need to negotiate a solution with the clinic for the compensation of their services. When negotiating this solution, it would be prudent for the NP to be aware of any billing restrictions in their province or territory applicable to the services provided by NPs.

In a recent decision, an NP working at a medical clinic was directed by the physicians he worked with to bill the plan using the physicians’ unique identifiers. The NP was assured that this was acceptable. When he learned that this information was incorrect, he ceased employment at the medical clinic. Nonetheless, a finding of professional misconduct was made against the NP as there was no physician involvement in the provision of the billed services. The NP was required, among other things, to pay a fine and costs, complete educational courses, and have a summary of the disposition appear on the public register.[1]

To discuss billing matters with a legal advisor on a confidential basis, please contact CNPS at 1-800-267-3390.


[1] Decision of the College of Registered Nurses of Manitoba Discipline Committee in action between the College of Registered Nurses of Manitoba and CRNM Member #138111. June 23, 2016.

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June 2016

June 30, 2016 - Volunteer work

Question: Am I protected if I do volunteer nursing work?

Answer: The CNPS recognizes that registered nurses and nurse practitioners have valuable skills, knowledge and expertise that are an asset to their employer and to the public in general. Accordingly, some nurses may wish to volunteer to provide professional nursing services outside of the workplace setting on an unpaid basis.

CNPS professional liability protection is not contingent upon getting paid for your work, it rather focuses on the type of work that you are doing.

To be eligible for CNPS professional liability protection, the following conditions must be met: 

  1. You must be licensed to practise by your provincial or territorial professional nursing association or college;
  2. You must belong to an association or college that is a member of the CNPS (or be a beneficiary of the CNPS through individual access); and
  3. You must be providing professional nursing services.

Some nurses choose to volunteer in a variety of capacities where their nursing services are not being relied upon (such as a sports team coach, administrative support for an organization, etc.). In those circumstances, you would not normally be eligible for CNPS protection.

Additionally, a retired nurse who chooses to work as a volunteer may or may not be eligible for assistance. As noted above, it is a condition of CNPS assistance that a registered nurse or nurse practitioner must hold a valid license to practise in one or more Canadian provinces or territories. Retired nurses must thus maintain full licensure to remain eligible for CNPS assistance. Retired nurses who chose to maintain a non-practising licence will likely not be eligible to access CNPS services.

The organization you volunteer for may also carry professional liability insurance for nurses and other staff. You may wish to consult with the organization to determine the scope and eligibility for such protection. Some organizations request that volunteer contracts be entered into prior to commencing volunteer services.

The CNPS offers pre-contractual reviews relating to the provision of volunteer professional nursing services to help you identify whether other professional liability insurance exists, as well as identify provisions or requirements that may compromise your professional or legal obligations.

To discuss your volunteer arrangement with a legal advisor on a confidential basis, please contact CNPS at 1-800-267-3390.

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May 2016

May 12, 2016 - Delegation and Assignment

Question: I am the charge nurse at a medical inpatient unit of a hospital. I work with registered nurses (RNs) and licensed practical nurses (LPNs) but now the hospital has announced there will be a health-care aide (HCA) on our unit. She will be replacing one of the LPNs. As the charge nurse, I will have to supervise the HCA and ensure she has an appropriate patient assignment. The HCA is not a regulated health professional. It makes me wonder what the difference is between delegation and assignment.

Answer: Delegation is the formal transfer of authority to perform an act from the person who has legal authority to a person who would not have the legal authority unless delegation took place. An example of this would be an RN who delegates their authority to perform a urinary catheterization to a HCA who may not have the legal authority to perform that specific clinical act (depending on provincial or territorial legislation and regulation).

Assignment is allocating specific staff to specific patients or specific patient care needs for a period of time, usually a shift. It is a division of labour based on an assessment of care needs, care plans, goals of treatment or care, scopes of practice, and the skill mix of staff.

Assignment will always take place, according to applicable health institution policy, but delegation will only occur if the right conditions exist between the delegator and delegate.

The legislation and regulations that govern a health profession are the primary source of legal authority for professional scope of practice and may also contain provisions about delegation of controlled acts or restricted activities. Prior to delegation, nurses must ensure they are empowered to transfer authority for that specific clinical act to another care provider, who in turn can accept delegation if permitted by their scope of practice, scope of employment and training. The health institution has hired the HCA and knows the level of training and skill they have, therefore, management or clinical educators can be invaluable in introducing the new team to each other and helping staff understand what they can expect of each other now and as the HCA becomes accustomed to the unit.  

As a charge nurse, you will be responsible for reasonable supervision of other staff and to facilitate communications amongst care team members. It may not be possible for a charge nurse to personally supervise and monitor nursing staff at all times. Other options exist, such as enlisting experienced staff to be a resource person for certain staff members or procedures. Good communication is the responsibility of all staff members. It can be enhanced by conveying patient information in a structured way: briefly outlining the current situation; providing background information about the patient; detailing the staff member’s assessment of the situation; and stating what is being sought from the other team member.   

To discuss delegation and assignment with a legal advisor on a confidential basis, please contact CNPS at 1-800-267-3390.

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March 2016

Question 1 of 2: Can I access my own personal health information through my employer’s electronic health records system?

Answer: An employee must not access their own personal health information (PHI) without obtaining the necessary authorization to do so. Provincial and territorial privacy legislation imposes a legal obligation on health care custodians[1] concerning the collection, use and disclosure of PHI. Typically, institutions or health authorities are considered the custodians of personal health records and an employed nurse is considered the custodian’s affiliate. Although a patient owns the health information contained in the personal health records, it is the custodian who owns the actual records and is responsible for implementing measures to safeguard the information. An affiliate must comply with the custodian’s policies and procedures regarding the collection, use and disclosure of PHI.

As custodians, institutions and health authorities are legally required to have policies in place regarding collection, use and disclosure of PHI. An employee must comply with their employer’s policies. Although an employee may themselves be able to provide the requisite consent for the release of their own PHI, accessing one’s own PHI without using the process prescribed in the employer’s policies may result in disciplinary action against the employee. Employers periodically conduct electronic audits of their electronic health record systems and are able to investigate whether health records have been inappropriately accessed.

Question 2 of 2: Can I access the personal health information of my family members through my employer’s electronic health records system if they ask me to?

Answer: An employee must not access the PHI of a family member without obtaining the necessary authorization to do so, even if the family member has asked them to do so. Although an employee may have received the requisite consent for the release of a family member’s PHI, accessing it without using the process prescribed in the employer’s policies may result in disciplinary action against the employee.

In the Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) case,[2] two nurses were separately disciplined by their employer for inappropriately accessing the personal health records of various family members and a co-worker at the request of the family members and the co-worker. The Court upheld the arbitrator’s finding that not only had the nurses breached the hospital’s policy, but had also inappropriately accessed electronic information, which constituted a breach of patient confidentiality. The employer’s policy required that an employee, when not fulfilling a duty and responsibility of employment, obtain written informed consent from the patient to permit access to their PHI. The nurses failed to comply with the hospital’s policies and procedures in place at the time. One nurse received a 12-day suspension and the other received a 5-day suspension.

A nurse must be aware of the relevant privacy legislation, their professional standards, and institution or health authority’s policies concerning confidentiality and PHI. A nurse must also be careful to practise in accordance with their employer’s Code of Ethics and the Canadian Nurses Association’s Code of Ethics for Registered Nurses.
 

CNPS beneficiaries with questions about privacy in their practice may contact the CNPS at 1-844-4MY-CNPS.  For information about becoming a CNPS beneficiary or more details regarding CNPS services, visit www.cnps.ca or call 1-800-267-3390.


[1] Note: Trustee in some jurisdictions.

[2] 2009 NLTD 168 (CanLII).

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January 2016

Question: I would like to start my own business to provide foot-care services. I have taken a relevant foot care training course, but I’m curious to know if there are any other issues I must consider before launching my foot care business?

Answer: In addition to ensuring they have the relevant skills, knowledge and training to deliver the intended health care services, nurses who are self-employed must be mindful of a variety of issues including accountability, licensing requirements, business management, professional obligations and liability protection.   

Because nurses in independent practice do not generally operate under the direct control of an employer, health care institution or physician, they are directly accountable to their patients and to the public. This autonomy means increased potential liability when making independent nursing assessments and providing care. Working independently may also create additional legal responsibilities as a tenant, landlord or employer.

In some jurisdictions, nurses are required to report to or seek approval from their licensing body for their self-employed nursing practice. Whether or not a formal requirement exists, nurses are encouraged to contact their licensing body to ensure that the services provided are within the scope of nursing. Nurses should also be mindful of any professional limitations imposed by their licensing body on their independent practice (e.g. conflict of interest, advertising, solicitation of clients and endorsement of products).

It is recommended that, prior to commencing any independent practice, nurses consult with a business lawyer, accountant or tax specialist to review possible business structures, and their tax and legal implications. Options for structuring a business include a sole proprietorship, an association, a partnership, and incorporation.  

Nurses in independent practice are eligible for full CNPS benefits, the same as nurses in any other nursing role, provided they are a CNPS beneficiary and they hold a valid license to practice in the jurisdiction in which they are providing their nursing services. CNPS liability protection extends only to the individual nurse who provides professional nursing services. It does not generally extend to the nurse’s incorporated company, a partnership, the directors or shareholders of a corporation, or any employees.

Nurses who are self-employed may therefore need other types of liability protection, in addition to the professional liability protection that is offered by CNPS. For example, they may require commercial general liability insurance if the business or the nurse is named as a defendant in a claim alleging personal injury or property damage to a third party as a result of the commercial operation of the business and/or premises.

Nurses may purchase business insurance products from the commercial insurance market. The CNPS has partnered with BMS Group to offer the CNPS Plus program, which is designed primarily to provide different business insurance products, such as commercial general liability coverage, as a complement to the individual services offered by CNPS. BMS Group can be contacted at 1-855-318-6035.

CNPS beneficiaries in independent practice may contact the CNPS at 1-844-4MY-CNPS or 1-800-267-3390 for more information about CNPS services, professional liability and risk management issues.

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November 2015

Question: I drove by a motorcycle accident on the way to work and, as an experienced emergency room nurse, I stopped to assist the injured driver until paramedics arrived on scene. Was I legally obligated to stop and assist, and will I be liable for the care I delivered if the person does not fully recover?

Answer: In most Canadian jurisdictions, there is no legal duty that forces you to help someone in an emergency. In Québec, the Charter of Rights and Freedoms imposes a positive duty for all persons to come to the aid of anyone in peril. While a nurse may feel a moral or an ethical duty to do so, the nurse cannot be held liable for failing to assist where there is no legal duty to do so.

To reduce the reluctance of coming to someone's aid out of fear of being sued for injury or wrongful death, most Canadian provinces and territories have enacted legislation, generally known as Good Samaritan legislation. This legislation provides protection from liability for those who voluntarily and gratuitously come to the assistance of others in emergency situations. At present, all provinces and territories in Canada have Good Samaritan laws, with the exception of New Brunswick.

The exception to this protection is where gross negligence has occurred. The Supreme Court of Canada has stated that gross negligence means "very great negligence". Gross negligence by a nurse would be thoroughly outrageous behaviour with little regard to nursing standards.

CNPS beneficiaries with questions about assisting someone in an emergency situation are encouraged to contact CNPS for advice. For further information, read the CNPS article “Is There a Risk in Being a Good Samaritan?

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September 2015

Question: As a practising nurse, I have been asked to provide an expert opinion in a negligence case against a hospital, a nurse and two physicians. I have never been an expert witness before. What do I need to know before I accept the retainer?

Answer:  In professional negligence cases, such as a claim commenced against a nurse, a hospital or a physician, the duty owed by the health care professional is most often determined by the profession itself. In other words, a member of the profession is required to tell the judge or the jury what the professional should have done or not done in particular circumstances and whether the conduct fell below the standard of care of the profession. In health care malpractice litigation, expert witness testimony is almost always necessary. Expert witnesses may also testify in legal proceedings other than civil lawsuits, such as criminal trials, inquests and professional discipline hearings. When acting as an expert witness, it is important to remember that your paramount obligation is to the court or the tribunal, not the party who retained you.

What is an expert witness?

An expert witness is someone who, because of their education, experience or a combination of both, has knowledge that can inform decision-makers about nursing practice standards. The most common use of expert testimony in a nursing or medical negligence case is to establish what the reasonable standards are in the circumstances and whether the nursing care provided met those standards.

An expert should not offer opinion evidence on matters beyond their established expertise. For example, a nurse may be qualified as an expert in emergency nursing in an urban, acute-care teaching hospital, but may not be qualified to give an expert opinion on outpost emergency nursing.

No formal training is necessary to become an expert witness. Although many companies and individuals offer paid courses to certify nurses as “legal consultants,” the only qualification necessary to be a capable and competent expert is having the appropriate nursing education and clinical nursing experience in a particular field.

What will you be asked to do?

In some cases, experts are only retained to assist the lawyer in understanding the medical and nursing issues in the case. In other cases, the expert is also asked to prepare a written report or give oral evidence under oath in court, or both.

After being retained, you will generally be provided with materials such as the statement of claim, statements of defence, transcripts of examinations for discovery and a copy of the patient’s chart, although the extent and nature of the materials provided may vary from case to case. You may also be provided with standards of practice from the relevant time period, employer policies and any other relevant materials. The lawyer who has retained you will instruct you as to whether your opinion is to be provided verbally, in writing or both. 

In all cases, experts have a duty to provide their opinion in an objective manner. Some provinces, including Ontario, require experts to provide a written confirmation that they understand that their duty is owed to the court rather than to any particular party. Failure to provide expert evidence in an objective manner may result in the judge rejecting your evidence or giving it reduced weight. It can also affect an expert’s professional reputation.

Although most civil matters settle prior to trial, a nurse acting as an expert witness may have to testify if there is a trial. Before starting your testimony, the judge will qualify you as an expert. Next, you will be questioned first by the lawyer who has retained your services (i.e. examination-in-chief) and then cross-examined by the opposing counsel. Following the cross-examination, the lawyer who retained you may ask you further questions on re-direct examination. As with any evidence, expert witness opinions may differ. The court will assess the totality of the evidence and reach a conclusion.

Am I the right expert?

Before accepting the retainer, ensure that you have the appropriate knowledge, education and experience to provide the opinion. For example, confirm that you are being asked to comment on the standard of care of a nurse who practices in an area in which you have sufficient experience. You should not be providing opinions outside your area of expertise or comment on the actions of other health care professionals involved in the case.

You should also ensure that you do not have a conflict of interest. A conflict of interest may occur if you have a personal relationship with any parties involved (other than simply being colleagues) or if you have provided care to the patient involved in the proceedings. If you believe you have a conflict of interest, you should discuss your concerns with the lawyer who retained you as soon as possible.

How are experts compensated?

As an expert, you are entitled to reasonable compensation for your services. Before agreeing to take on this role, you should request a written contract from the lawyer retaining you. The contract should outline any expectations and explicitly state your fees and what they cover, and reimbursement for expenses. You should also have a clear understanding of any time constraints and deadlines related to the litigation.

There is no obligation for you to act as an expert witness in any legal proceeding. If you do agree to act as an expert witness, proper preparation is essential. You also need to ensure that you have adequate professional liability protection for the duration of your involvement with the case.

If you are required to testify in court, keep the following in mind:

  • Listen carefully and understand the question before you answer. If the question is unclear, ask for clarification or rephrasing.
  • Take your time answering questions and, if you need to look at a document in order to respond, ask to see the document.
  • If you are asked questions about matters outside your scope of practice and expertise, inform the court that this is outside your area of practice.
  • Answer only the specific questions asked of you.
  • Use everyday language to answer questions and avoid medical jargon. If technical language must be used, provide an explanation to ensure that your answers are understood.
  • Answer the questions to the best of your ability. When you do not know the answer to a question, do not be afraid to answer “I do not know.” Do not guess.
  • Outside the courtroom, avoid discussions with other witnesses.

CNPS legal advisors are available to provide advice to CNPS beneficiaries with respect to accepting an expert retainer.  Call us toll free at 1-844-4MY-CNPS (1-844-469-2677). 

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June 2015

Question: What are the liability risks for nurses when working with unregulated care providers in collaborative care teams?

Answer:  New and evolving models for healthcare delivery have increased the opportunity for collaborative practice between physicians, nurses and other health care providers, some of whom may not be regulated. Unlike regulated health care professionals, unregulated care providers (“UCPs”) are not governed by legislation, have no legally defined scope of practice, and are not answerable to an external regulatory body that sets standards of practice and monitors the quality of care provided by these health care providers. Typically, UCPs have a scope of employment defined by their job description and are accountable to their employer. UCPs include, but are not limited to, nursing aides/assistants, personal support workers, home support workers, etc.

While health care professionals are generally entitled to assume, and rely upon, the competence of other regulated health care professionals in the team, with respect to matters that fall within their scope of practice and area of competence, the same cannot be said when working with UCPs. Indeed, nurses who work with UCPs are often expected to delegate tasks and supervise those tasks assigned to UCPs. The delegating nurse should be confident that the UCP is competent to perform the task safely prior to assigning the particular task. The delegating nurse must also ensure she/he appropriately monitors and supervises the specific activities assigned to the UCP. Supervision involves initial direction, periodic inspection and corrective action when needed. Various regulatory bodies have developed practice standards or guidelines for nurses working with UCPs.[1] Nurses should be aware of and abide by any relevant practice standards or guidelines in their jurisdiction. Nurses may also wish to consult the CNPS infoLAW on Delegation to Other Health Care Workers

To date, the CNPS is not aware of any case law that has addressed the liability of UCPs in the context of a collaborative care team. That being said, in the event of litigation, the supervising nurse, the UCP and the employer can all be held liable for any harm caused by the UCP to the patient. In this regard, the supervising nurse could be held liable if she/he inappropriately delegated the task or did not properly supervise the UCP during the performance of the task. The UCP may be liable for accepting delegation for an act she/he is not competent to perform, unsafely carrying out a task or failing to report important information to the supervising nurse.  In addition to vicarious liability, the employer may be directly liable for the failure to ensure adequate education, training, assessment and supervision of the competence of the UCP.  

Safe patient care is the common goal of all care providers, whether regulated or unregulated. Proper assessment of the care needs, effective care planning and implementation, and good communication between all members of the care team are keys to achieving this common goal.

CNPS legal advisors are available to provide advice to CNPS beneficiaries with respect to the legal issues of working with UCPs.  Call us toll free at 1-844-4MY-CNPS (1-844-469-2677).


[1] For example, College of Registered Nurses of Nova Scotia’s Assignment and Delegation Guidelines; College of Nurses of Ontario Practice Guideline on Working with Unregulated Care Providers; College of Registered Nurses of British Columbia Practice Standard on Delegating Tasks to Unregulated Care Providers.

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May 2015

Question 1 of 2: Do late entries hold the same weight in court as multiple small timely entries?

Answer: A late entry is one which is not made as soon as possible after an event has occurred. It is required when it is not possible to document at the time of or immediately following an event, or if extensive time has elapsed.[1] If a late entry is made, it must be completed in accordance with the nursing practice standards and documentation policies of a nurse’s institution or health authority.[2] For example, the Saskatchewan Registered Nurses’ Association guidelines require a nurse to clearly identify and date late entries with reference to when the entry was made along with when the care or event occurred.[3]

A court will only determine how much weight to give a nurse’s documentation after it has been admitted as evidence. In determining how much weight to give a nurse’s documentation as evidence, the court will examine the frequency of the entries and how soon a nurse documented after care was provided, with an underlying assumption that the closer the nurse documented to the care provided, the more likely that documentation is to be accurate. In one case where a nurse made a late entry a day after she provided nursing care, the court found that:

Late charted entries are permissible if identified, and an entry made the day after the event is preferable to memory years later at trial. The [judge or jury] will simply assess the delay as part of the overall evidentiary assessment.[4]

This means that late entries may not be given the same weight as notes made as soon as possible after an event has occurred, but if they are clearly identified as such, they can be still be relied upon at trial.


[1] College of Registered Nurses of Nova Scotia, Documentation Guidelines for Registered Nurses, Halifax: CRNNS, 2012, at 18. Note: Please refer to the specific practice standards or guidelines in your specific province.

[2] infoLAW,Quality Documentation: Your Best Defence,” Vol. 1, No. 1, January 2007, Revision of May 1992.

[3] Saskatchewan Registered Nurses’ Association, Documentation: Guidelines for Registered Nurses, Regina: SRNA, 2011, at 17. Note: Please refer to the specific practice standards or guidelines in your specific province.

[4] Skeels (Estate of) v Iwashkiw, 2006 ABQB 335 at para 121.


Question 2 of 2:  
Do entries made at the end of a busy shift constitute late entries?

Answer: Whether an entry made at the end of a busy shift constitutes a late entry depends on the specific requirement for when documentation is expected to be completed in that specific practice setting. Generally, the greater the acuity and complexity of the patient population, the more likely a nurse is expected to complete minute by minute documentation. Examples of these types of practice settings include intensive care units (ICU), emergency departments and labour and delivery units. In less acute settings with stable patient populations, documenting at the end of a busy shift is generally an accepted practice.

Where nurses are expected to complete minute by minute documentation, entries made at the end of a busy shift may not hold the same weight as frequent entries made during the course of a nurse’s shift. A nurse must be aware of her or his professional standards, and institution or health authority policies concerning documentation.

In one case, the documentation of an ICU nurse, who reconstructing care provided over a three hour period by approximating times, was found to be inaccurate.[1] While providing care to the patient, the nurse jotted down certain events on a piece of paper or pieces of paper whenever she had a chance. When she had an opportunity to sit down, she did her best to reconstruct what had happened in the preceding three hours by approximating the times. The court did not fault the nurse for putting emergency patient care ahead of her documentation, although the court did find that approximating times resulted in inaccurate charting and impacted the expert’s opinion.

CNPS legal advisors are available to provide advice to CNPS beneficiaries with respect to late entries.  Call us toll free at 1-844-4MY-CNPS (1-844-469-2677).



[1] Dybongco-Rimando Estate v Lee, [1999] OJ No 1426 (QL) at para 10.

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November 2014

Question: I am an ER nurse in a large Calgary hospital.  A young man recently came into the ER with stab wounds to his left arm.  He alleges that he has no knowledge of who the assailant was and does not want me to call the police.  The nature of the wounds and his behaviour lead me to suspect that the wounds may be self-inflicted.  Should I call the police?

Answer:  The Alberta Gunshot and Stab Wound Mandatory Disclosure Act makes it mandatory for health care facilities to report certain information to the police when a gunshot or stab wound is treated.  Some other provinces have similar legislation, although in some jurisdictions, reporting obligations are limited to gunshot wounds. It is important to note that the obligation typically rests with the health care facility, not the individual health care provider.

If employed, nurses should ensure that they follow institutional policies with respect to these mandatory reporting obligations.  If a charge nurse or other designated person is contacted by the nurse with respect to the stab or gunshot wounds, a notation should be placed in the patient’s chart.

In some jurisdictions, including Alberta, reporting is not required if staff reasonably believe that the stab wound is self-inflicted or unintentionally inflicted.  In this case, the patient has suggested that the stab wound was inflicted by a third party, but the nurse has made observations that question the reliability of the information provided by the patient.  The nurse should communicate all relevant information to the designated person at the facility to determine whether a report should be made or whether there is a “reasonable” belief that the wound was self-inflicted.  The nurse should also ensure the observations are appropriately documented in the patient’s chart.  If a report is made, only the specific information authorized by the legislation should be communicated to police.

It is important to note that no legal action can be brought against staff who act in good faith under the Act. 

For more information regarding mandatory reporting obligations and other issues involving nurses interacting with police, see the CNPS infoLAW on Communicating with the Police.

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May 2014

Question: Lately, I have been using my personal smartphone to text updates to physicians regarding patients. Is this practice acceptable?

Answer:  Mobile devices offer nurses and other healthcare professionals a convenient, user-friendly way to communicate with each other. Texting is fast, direct and simplifies the pager systems that hospitals and other health care organizations have traditionally used.

However, nurses who are texting in the workplace should consider all the relevant privacy issues surrounding this practice. First, using your personal device to send and receive health information concerning a patient may result in unauthorized disclosure of the information. It could be inappropriately accessed or disclosed if the device is lost, stolen or inadvertently viewed by a third party. Nurses should take steps to ensure that reasonable safeguards are in place to protect a potential privacy breach, such as the use of personal identifiers, strong passwords and encryption. Further, nurses should avoid using public Wi-Fi or unsecure cellular networks to send and receive information.

Another potential risk is that traditional text messaging networks do not allow the sender to know if, when and to whom a message has been delivered. Also, there may no way to keep the original message as validation of what was actually entered into the medical record.

To address these concerns, many health care organizations have implemented secure text messaging networks in which health care professionals can send and receive patient information. These networks ensure that information transmitted is adequately encrypted and are often integrated with the patient’s electronic record, ensuring that the details of the message are accurately reflected in the chart.

Nurses are advised to only use personal devices with their employer’s consent and send communications on their organization’s secure network, if one is available. Nurses using their personal mobile devices in the workplace should follow employer policies surrounding this practice.

For more information and other advice surrounding this issue, see our CNPS infoLAW on Mobile Devices in the Workplace.

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June 7, 2017 - Protecting Your Patients' Privacy

 

July 12, 2017 - The Nurse, the Chart and the Law (Replay with live Q&A)

 

August 16, 2017 - Social Media and Technology (Replay with Live Q&A)

 

September 13, 2017 - L’infirmière, la documentation et le droit (French-language webinar)

 

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