Legal Considerations in Times of Nursing Shortages

Staffing shortages in the healthcare system are likely to affect patients, healthcare facilities, and of course, health-care professionals. Nursing shortages are not a new issue. In 2023, Statistics Canada found that job vacancies for registered nurses and registered psychiatric nurses increased by 5,475 positions, a 20% increase from the same quarter in 2022.¹ This has resulted in over 145,000 job vacancies in the health care and social assistance sectors across the country.² Many nurses are concerned about the impacts that this national shortage may have on their own practice and on their patients’ well-being. This article highlights some of the legal considerations inherent to a nursing shortage, as well as potential risk mitigation considerations.

General Legal and Risk Management Considerations

Nurses are expected to provide care in accordance with their professional, ethical, and legal responsibilities. As regulated health care professionals, nurses are expected to practice in accordance with their provincial or territorial standards of practice, as well as in accordance with employer policies. In the performance of their duties, nurses are subject to the oversight of their employers, regulatory bodies and even the courts.

While nurses are not primarily responsible for managing the nursing shortage, they are disproportionately burdened by its consequences. In the context of shortages, nurses tend to take on more responsibility and work, often including mandatory overtime. This can lead to burn out and fatigue,³ which in turn can result in an increase in nursing errors. When the quality of care is impacted, the risk of legal actions (such as complaints to the nursing regulator and/or employer, and lawsuits) increases.

Liability of Nurses vs Employers

It may be helpful to understand which responsibilities fall within the purview of nurses and which typically rest with the employer. Nurses’ obligations pertain primarily to the delivery of their personal nursing services, and include the following:

• provide safe and ethical care;
• work within their scope of practice;
• apply nursing skill, knowledge and judgment in their practice;
• document interventions;
• identify risks; and
• report unsafe practice or systems.

Hospitals and other health institutions are generally responsible for the coordination of health care services and the management of the infrastructure, including:

• the safe operation of the hospital system;⁴
• the provision of supplies and equipment;
• appropriate staffing;
• adopting written policies and procedures;
• implementing and maintaining reporting systems; and
• appropriately managing resources.

Where healthcare institutions or health-care professionals determine that they are unable to provide care that meets the standard, they are encouraged to consider other options, such as the appropriate use of delegation or transferring patients to other institutions.⁵

At the earliest opportunity, nursing professionals are encouraged to carefully consider their ability to provide safe care to a patient and what alternatives are available if they cannot. While system and budgetary constraints certainly affect the ability to provide quality nursing care, they are generally not considered a justification for failing to meet the standard of care when the risk is preventable.

Client Abandonment

It is important to consider professional obligations when contemplating whether work can be declined. Several regulators offer guidance on when it is appropriate for a nurse to decline work, and when declining or leaving work could constitute “client abandonment,” which amounts to professional misconduct. For example, the BCCNM explains that it may be considered client abandonment when a nurse has accepted an assignment or established a relationship with the client and stops providing care without “arranging for another appropriate care provider to take over, giving your employer a reasonable opportunity to find a replacement, or ending your services in a way that is acceptable to both you and the client.”⁶ The BCCNM specifically notes that “refusing to work extra hours or shifts beyond the posted work schedule when you’re given proper notice” is not likely to be considered abandonment.⁷

A nurse may feel that they are unable to continue working or to accept additional work for a variety of reasons. In an employment setting, if a nurse is concerned that their own ability to continue to provide quality care may be compromised or if they assess that they could be unable to address the needs of the patient in their specific circumstances, it would be prudent to communicate that concern to the supervisor or other party assigning the work and seek the advice if their concern is not suitably addressed. If a nurse acting as an independent contractor feels that it is in their or their patients’ best interest to decline work, then it would be prudent to assess how best to transfer that care before ceasing care.

I. Negligence

When considering the liability of a nurse, the legal question is: did the nurse breach the standard of care owed to the patient, and in doing so, cause damage to a patient? It is important to remember that the law requires reasonableness. Courts do not strive for perfection; rather, they expect nurses to be prudent, careful and act in good faith: “The law does not require perfection, but it does require the exercise of the care and skill that is to be reasonably expected … of a prudent and careful nurse in the same circumstances as the defendants.”⁸ In short, a nurse will be assessed against the reasonable conduct of a peer in similar circumstances. However, if the nurse holds themselves out as a specialist, a higher degree of skill may be required of them.⁹ A court determines “the circumstances” by looking at the facts, context, legislation, standards of practice, guidelines, employer policy and expert opinions. This being said, the courts have not traditionally exempted health care professionals from liability solely on the basis of limited resources. There is no question that the pandemic has created challenging circumstances, but it has yet to be determined by a court what weight that will be given.

In summary, the court will generally consider: Has the nurse used all reasonable means available to them in the circumstances to meet the standard of care? Depending on the circumstances, this may include reporting the situation internally through appropriate channels or referring the patient to a specialist. If the court, relying on the evidence of experts, answers this question in the affirmative, then it is reasonable to expect that no liability will be found. It is however important to consider, as noted above, that as a last resort, “all available reasonable means” may include reporting unsafe practice conditions.

II. Risk-Management Considerations

The following are some considerations to help guide nursing practice during shortages:

• Stay informed. It may be helpful to consider the resources available from regulators, employers, professional associations, unions, etc. It is also helpful to keep a copy of the standards and to regularly review them. Depending on your place of work, you will also likely have important employer resources and policies to review and guide your practice. Even in the context of emergency measures, nurses are expected to continue to practice within their scope, unless public health orders override limitations otherwise contemplated in the applicable legislation.
• Advocate where appropriate. When nurses find themselves in an area that is outside their scope of competence or familiarity, it will be important to raise their concerns as soon as possible and request appropriate training. It is not advisable to work outside of your scope of competence. While in most circumstances, your employer may be considered to act reasonably in redeploying nurses based on need, nurses can reasonably expect appropriate orientation and training and should advocate for the same. It is recommended that any requests for training be made in writing. The requests should also be followed upon at appropriate intervals.
• Report concerns. If you have any concerns relating to patient care – be it a concern with the quality of care, staffing shortages, or mandatory overtime – it is best to identify the issue and report it effectively and promptly. This will help satisfy a nurse’s ethical obligation to advocate for patients, while also alerting the appropriate management to the issue. Nurses are not typically responsible for circumstances outside their control but will be expected to do the best they reasonably can in the circumstances, which includes effective reporting. When reporting, consider who is the most appropriate person to receive the report. It is important to remember that personal health information generally does not belong in a report about systemic issues and could be considered a privacy breach. It is recommended that reporting be documented in writing and followed up on. Examples of appropriate reporting can include incident reports, professional concern forms and emails.
• Document and manage client expectations. Communicating with your client and documenting the care provided are essential aspects of providing safe care and can also serve as a form of legal protection. The client record should reflect the care being provided, including: your assessment, observations, details regarding informed consent, reliance on an order or directive, the treatment provided, communication with the care team (also referred to as the circle of care), and with the patient and their family. Generally, the client record is not intended to contain reports about systemic issues; instead, consider reporting these in writing to the appropriate person.¹⁰

When resources are scarce, nurses may feel they need to choose between providing care and documenting it. Documentation remains part of the care process and is a critical communication tool that demonstrates your application of skill, knowledge, and judgment. In instances where there is little to no time for documenting, it may be prudent to focus on quality over quantity by paying attention to the most relevant signs and symptoms for any given patient. For instance, when providing post-operative care, documentation should reflect the fact that the nurse is alert to the signs and symptoms that would indicate progress towards recovery or the occurrence of a complication. The absence of charting can leave the team uncertain as to what care was provided and can lead to potential negative consequences for the patient.

• Reallocate care where appropriate. During shortages, it would be appropriate to seek assistance where nurses are unable to address the situation personally. Consider the context and the limits you are working within and identify what you can control and what you cannot. When resources are scarce, there may be a need to prioritize in order to make decisions. It may be helpful to defer, transfer, or refer, assign or delegate care in certain circumstances in accordance with employer policies and procedures.¹¹
• When redeployed. When exercised, redeployment is intended to be a means of rediverting resources to the area with the highest needs, typically when a significant issue has already occurred. There is generally little time for the training and orientation. When redeployed, consider whether the new activity falls within your scope of practice and whether it falls within your scope of competence. Verify that your employment contract and/or collective agreement allows for the redeployment. Speak with your employer if you are concerned that you have not been provided with sufficient orientation, training, and mentorship.
• Resources. Consider who can support you. This can include colleagues, managers, your union, professional associations, and the CNPS.
• Avoid using social media to voice work-related concerns. It is generally not appropriate to use social media to escalate or report concerns.¹² Consider the most appropriate way to raise issues to achieve the most meaningful result in a collaborative way.

If you have a specific concern or issue, CNPS beneficiaries can contact CNPS at 1-800-267-3390 to speak with a member of CNPS legal counsel to discuss further. All calls are confidential.

1. Statistics Canada, “Nurses: Working Harder, more hours amid increased labour shortage” (24 July 2023), online: StatsCAN Plus <https://www.statcan.gc.ca/o1/en/plus/4165-nurses-working-harder-more-hours-amid-increased-labour-shortage>
2. Statistics Canada, “Job vacancies, payroll employees, job vacancy rate, and average offered hourly wage by industry sector, quarterly, unadjusted for seasonality” (19 September 2023), online: <https://www150.statcan.gc.ca/t1/tbl1/en/tv.action?pid=1410032601>
3. Statistics Canada, “Mental health among health care workers in Canada during the COVID-19 pandemic” (02 February 2021), online: The Daily <https://www150.statcan.gc.ca/n1/daily-quotidien/210202/dq210202a-eng.htm>
4. Yepremian et al. v. Scarborough General Hospital et al., 1980 CanLII 1906 (ON CA), Blair JA, dissenting, <https://canlii.ca/t/g13mq>
5. For more information on some of the legal considerations when working with unregulated care providers please consult Ask a Lawyer: Delegation and Assignment or InfoLAW on Delegation.
6. British Columbia College of Nurses and Midwives, “Defining Client Abandonment”, online: <https://www.bccnm.ca/RPN/learning/dutytoprovidecare/Pages/client_abandonment.aspx>
7. Ibid.
8. Latin v. Hospital for Sick Children, 2007 CanLII 34 (ON SC), < https://canlii.ca/t/1q6zm>; For more information, please refer to CNPS’ InfoLAW on Negligence
9. Sylvester v Crits et al., 1956 CanLII 34 (ON CA), < https://canlii.ca/t/1vjmk> aff’d 1956 CanLII 29 (SCC), [1956] SCR 991.
10. For more information, please consult CNPS’ InfoLAW: Quality Documentation: Your Best Defence
11. For more information, please consult CNPS’ InfoLAW: Delegation to Unregulated Care Providers 
12. For more information, please consult CNPS‘ InfoLAW: Social Media

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.

March 2024