The rollout of COVID-19 vaccinations is well underway across Canada with nurses at the forefront of COVID-19 vaccine administration. The following information highlights some legal considerations that nurses may wish to keep in mind when they are involved with vaccine administration.
Before administering a vaccine, it is important to be aware of the source of authority ordering the vaccine, and any relevant nursing practice guidelines, and health institution policy and procedures. There is more than one possible legal mechanism that can authorize an order for vaccination. There may be a patient-specific order or a directive e.g. from the Medical Officer of Health, and these mechanisms may vary with circumstances and between provinces and territories.
Prior to the pandemic, Registered Nurses and Registered Psychiatric Nurses, and Licensed Practical Nurses (or Registered Practical Nurses in Ontario) could not, in the majority of cases, administer vaccines without an order or a directive from a Nurse Practitioner or physician as administering a substance by injection is considered a controlled act.1
To meet the unprecedented challenge of vaccinating a large population within a short timeframe, many provinces have created exemptions2 that allow nurses to administer the COVID-19 vaccine without an order.3 Even within these general exemptions, nurses are still accountable for complying with any applicable requirements and standards.
In order to increase the human health resources needed to effectively immunize millions of Canadians as quickly as the COVID-19 vaccine is available, many jurisdictions are enabling a wider range of regulated healthcare professionals, retired health professionals, students and others to administer COVID-19 vaccines by other authorizing mechanisms such as ministerial orders, or new regulations. These include Ontario, Manitoba, British Columbia and Québec. These individuals do not typically administer vaccines, so nurses may be called upon to supervise them for the otherwise controlled or reserved act of injection. Nurses know that proper professional practice goes beyond the completion of tasks, and encompasses principles and knowledge such as infection prevention and control and sufficient assessment before an intervention and evaluation afterwards. This knowledge and training makes them ideal to supervise others who are recruited to meet the challenges of the pandemic. It is important to note that ministerial orders and new regulations are dynamic and their authority will come to an end when COVID-19 is no longer a serious and immediate threat to public health.
Knowledge, Skills, and Training
Nurses learn about medication administration and injection as part of their basic competencies, and yet ongoing education is a hallmark of professionalism. Vaccines are designed to affect the immune system and patient reactions can vary, with anaphylaxis being an uncommon but life-threatening possibility. Consequently, nurses may seek, or be required to complete, a course in vaccine competency. Some examples are the British Columbia Centre for Disease Control’s COVID-19 Immunization Course for Nurses and New Brunswick’s Office of the Chief Medical Officer of Health’s COVID-19 Basic Vaccine Immunization Training.
Before becoming involved with vaccination, nurses can inquire about the resources available in case of an adverse reaction. If an adverse reaction occurs, the patient must be assessed and treated as soon as possible. Administration must be made aware of critical incidents as soon as possible. While the person authorized to make decisions and take action may be a risk manager, quality assurance officer or facility manager, nurses are responsible for reporting critical incidents by using the internal reporting procedure, typically a written incident report. The next step is internal investigation or tracking, depending on the nature and seriousness of the event. It is helpful for an organization to know what worked well during the incident as well as what did not. Recommendations for improvement may follow once the incident is analyzed.
Redeployment of Nursing Staff
To assist in staffing pandemic measures, nurses may be redeployed by their employers to areas in which they do not regularly practice or to newly created units such as COVID-19 vaccination centres. There are legitimate expectations of all nurses, which are to adhere to the standards of their profession, act ethically, and to practice reasonably in the circumstances to avoid foreseeable harm. When redeployed, nurses can use their core competencies, such as critical thinking and professional judgment, as they practice in an unfamiliar venue. Awareness of relevant nursing standards and employer policies and procedures will be key, as well as any needs for on-the-job training.4
The pandemic has motivated all levels of government to take extraordinary measures. For instance, the Ontario government has issued a temporary order5 that permits health care professionals that have a licence, registration or certificate from another province or territory to come work in Ontario health institutions pursuant to the authority granted in their home province or territory. Nurses subject to this temporary order could practice without obtaining licensure in Ontario, and ”are authorized to engage outside of their regular scope of practice provided that doing so is necessary in order for the health care professional to respond to, prevent, or alleviate the effects of the COVID-19 outbreak”.6
Mature Minor Consent
Health Canada has approved certain COVID-19 vaccines for minors aged 12-17, which means the question of consent by mature minors may be raised.
Nurses must adhere to the law of consent in their jurisdiction. Québec’s Civil Code, states that a child aged 14 years or older can generally provide consent to treatment, and New Brunswick’s Medical Consent of Minors Act permits those who are aged 16 years and older to consent to treatment, with a recent amendment that permits those younger than 16 years of age to consent in certain circumstances. Elsewhere in Canada, it is typical that the law of the mature minor is used to determine if a person younger than the age of majority in that province or territory has the capacity to consent to treatment.
The healthcare professional ascertains whether the patient understands the nature of the decision to be made and the consequences of consenting to a proposed plan of treatment or refusing consent. If the young person has this capacity, they are considered a mature minor for the purposes of that decision. It would be prudent for nurses to document their assessment thoroughly, including the reasoning behind their decision as to whether to proceed with vaccination.
Where there is a disagreement between parents regarding vaccination of children, some courts have generally granted decision-making authority to the parent who wishes to have a child vaccinated, deeming it to be in the child’s best interest.7 The issue may also need to be resolved on the basis of the parental rights assigned to each parent in the context of a divorce or separation.
What if a patient expresses vaccine hesitancy?
Prior to administering a vaccine, the patient must provide their informed consent and the nurse should consider documenting their discussion with the patient concerning the vaccine. For more information regarding documentation, please consult our InfoLAW on the subject. Also note that patients or their substitute decision makers generally have the legal right to refuse a vaccine.
What if a patient requests a vaccine exemption?
Generally speaking, certain grounds may exempt a person from receiving a COVID-19 vaccine, such as a medical exemption if there is a risk of substantive injury or disability. For instance, a medical exemption may apply if the individual has an allergy to a preservative in the vaccine, or if they have an underlying medical condition that could be worsened by receiving the vaccine.
When completing or signing a form, it is important to offer accurate and objective information3. Further, it is a good practice to ascertain that the information relied upon is documented or readily available in the records so that the content of the report can be further explained and supported, if necessary. It is generally advisable to also document that a discussion about the risks and benefits from not receiving the vaccine has occurred, and that the patient has understood the potential consequences of the decision.
CNPS beneficiaries can contact CNPS at 1-800-267-3390 with specific questions related to their practice to speak with a member of CNPS legal counsel. All calls are confidential.
- There are varying definitions of what constitutes a controlled act in the legislation across the provinces and territories. For example, in Ontario, the Regulated Health Professions Act, 1991, defines a controlled act as an activity that can cause harm if an unqualified person completes it.In this case, the controlled acts would be administering a substance by injection, and “performing a prescribed procedure below the dermis”.
- These exemptions typically stem from the medical officer of health or a similar provincial or territorial authority.
- Office of the Chief Medical Officer of Health (NB), COVID-19 Basic Vaccine Immunization Training, December 23, 2020, online: http://www.nanb.nb.ca/media/news/MEMO_COVID-19_Basic_Vaccine_Immunization_Training_-_NOTE_Formation_de_base_sur_l%E2%80%99immunisation_contre_la_COVID-19_.pdf
- For more information on nursing in a pandemic, you may also wish to consult: CNPS, Legal Considerations when Nursing in a Pandemic: https://cnps.ca/article/legal-considerations-nursing-pandemic/
- Ontario Legislature, Emergency Management and Civil Protection Act: O. Reg 305/21: Regulated Health Professionals
- College of Nurses of Ontario, IMPORTANT UPDATE: New provincial orders – change to scope of practice in hospitals, April 23rd 2021, https://www.cno.org/en/news/2021/april-2021/important-update-new-provincial-orders–change-to-scope-of-practice-in-hospitals/
- For instance, see Tarkowski v. Lemieux, 2020 ONCJ 280 (CanLII).; https://globalnews.ca/news/7881765/bc-covid-19-vaccine-youth-consent-infants-act/
- For example, Government of Canada to require vaccination of federal workforce and federally regulated transportation sector . The Government of Ontario has also implemented mandatory vaccination policies for high risk settings such as long-term care homes and healthcare settings.
- For example, the Government of Québec will be implementing Vaccine Passports as of September 1, 2021. https://www.quebec.ca/en/health/health-issues/a-z/2019-coronavirus/progress-of-the-covid-19-vaccination/covid-19-vaccination-passport ; Manitoba has recently implemented passports: https://www.gov.mb.ca/covid19/vaccine/immunizationrecord/index.html
In light of the fast-paced and constantly evolving nature of this pandemic and the continual flow of new information, it is important for nurses to consult reliable sources, such as their local government websites, their local public health departments, and their nursing regulatory bodies, frequently to ensure that they are practicing with the most updated information. As such, the information in this article is only current up to the date of publication.
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