InfoLAW: Emergency Room Closures

In the face of scarce human health resources, amalgamation of health services, and changing demographics, some hospitals have made the difficult decision to close their emergency departments, temporarily or permanently. Communications to this effect would then be made widely to the public by the hospital or regional health authority. Consequently, emergency room staff could be re-deployed elsewhere within the health institution.

Emergency room nurses may wonder about their legal obligations during a closure. The health institution sets the parameters of the health services provided on its premises, and is responsible for making the decision to close the emergency room. As such, it is the health institution that is most likely to face a legal challenge about the decision and its impact on a plaintiff patient. Nonetheless, emergency room nurses may be torn between their professional and ethical inclination to assist patients who present despite the closure, the belief that they are prohibited from doing so due to the emergency room closure, and the challenge of providing emergency assistance without the resources typically available when the department is open.

At present, Canadian courts have yet to address this specific situation. However, at least one decision suggests that in a true emergency, where the life of a patient may be at risk, a court may not consider itself bound by internal organizational rules to determine if a duty of care existed. In that case,¹ a patient presented in the emergency department with a suspected myocardial infarction. The emergency physician on duty was in surgery. The court found that another physician who was working in the hospital, but not on duty or on call in the emergency department, to have a legal duty to provide assistance to the patient when asked to do so by nursing staff. Similarly, a court may find that a nurse who encounters an emergent patient during a closure to have a duty to assist the patient, within the scope of nursing legislation and regulation,² and the individual nurse’s knowledge and skills. The nurse may also have a duty to call for help, if intervening in this way would be of greater benefit to the patient than being redirected to the closest emergency service. The nurse would also be expected to act reasonably in these circumstances, which is the basis for a successful defence to an allegation of negligence.

A contingency plan formulated in advance of a closure would address any uncertainty and likely lead to better patient outcomes.

Risk Management Considerations in Planning for a Closure

Communication to the public

The hospital must take steps to communicate to the public and external emergency services (ambulance services and other related services) if it cannot offer emergency medical care, temporarily or permanently.³ Various methods of media could be used, including public broadcast, social media and signage at strategic locations advising patients of the recommended course of action, such as going to the closest hospital with emergency services.

Communication between management and nursing staff

Good communication with frontline staff will be key. Nurses affected by the closure can best meet their responsibilities if given information about the timing of the closure, any diversions to other hospitals that have been arranged, what is expected of nurses by their employer, and contact details for the most responsible administrator. This is particularly important if an outpatient department entrance remains open for persons to access the building for reasons other than emergent care. That fact alone may mean patients, or those accompanying them, arrive in the hope and expectation of emergency care despite posted information about the closure.

Patient Management

In normal circumstances, it is a common and usual practice for doctors, nurse practitioners, and nurses to work as a team in emergency care. Authorizing mechanisms like directives, verbal orders, regulations, and policies empower nurses to respond quickly. On the basis of these, nurses might act prior to a physician or nurse practitioner assessment and written orders. In normal circumstances, medical and nurse practitioner assessments and orders would be made soon after, during the same episode of care. In the altered circumstances of a closure, this will not occur since the unit may not be staffed with doctors, nurse practitioners, and nurses.

A plan regarding patient management might identify approved practices to assist patients in need of urgent care who attend despite the closure, like nursing assessment and any legally authorized nursing practices, (including First Aid, BCLS or ACLS for nurses with this extra certification), and assisting the patient to obtain other emergency medical services. It would be based on the scope of nursing practice and be in compliance with the hospital’s efforts to redirect such patients to a facility where their needs could be met. Such intervention cannot and will not encompass all of the care emergency and outpatient nurses are accustomed to providing in usual circumstances. It may also identify practices which are outside the scope of nursing practice and should not be implemented in these altered circumstances, such as ordering tests or administering unprescribed medications,⁴ which are usually implemented pursuant to an order, directive or protocol. If there are directives (doctor or nurse practitioner orders) in place that nurses would normally initiate, the health facility must decide if they are suspended during a closure since there will not be a doctor or nurse practitioner to oversee the course of patient care.

CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel. All calls are confidential.

1.  Egedebo v Windermere District Hospital Assn, 1991 CanLII 1921 (BCSC).

2.  For example, Ontario Regulation 275/94 (General) made pursuant to the Nursing Act, 1991, s15(4)2 and s15(5) authorizes Ontario RNs and NPs to start an i.v. of normal saline if they have the knowledge, skill and judgment to perform the appropriate assessment and procedure, when delaying its establishment would harm the patient. Section 15(4)2 reads as follows:

Venipuncture to establish peripheral intravenous access and maintain patency, using a solution of normal saline (0.9 per cent), in circumstances in which,

i. the individual requires medical attention, and
ii. delaying venipuncture is likely to be harmful to the individual.

3.  Baynham v Robertson (1993), 18 CCLT (2d) 15 (Ont Gen Div).

4.  An example of a medication a nurse might assist a person in taking is their own prescription nitroglycerin.

July 2022

THIS PUBLICATION IS FOR INFORMATION PURPOSES ONLY. NOTHING IN THIS PUBLICATION SHOULD BE CONSTRUED AS LEGAL ADVICE FROM ANY LAWYER, CONTRIBUTOR OR THE CNPS. READERS SHOULD CONSULT LEGAL COUNSEL FOR SPECIFIC ADVICE.