Legal Considerations When Nursing in a Pandemic

This article was published in March 2020 and reflects information current at the time of publication. 

All three levels of the Canadian government continue to be actively engaged in preparing for possible pandemic emergencies. The SARS outbreak in 2003, the H1N1 outbreak in 2009, and the 2020 declaration of COVID-19 as an international pandemic1 highlight the importance of nursing in controlling and containing communicable diseases. As nursing resources can become stretched during outbreaks, nursing regulators may consider whether there are enough nurses to meet the demand in their jurisdiction. Here are some elements to take into consideration when practicing during a pandemic.

Professional Licensure

As part of their emergency preparedness planning, provincial and territorial governments, and nursing regulatory bodies have considered the implications of mobilizing persons who are not currently in the nursing work force, such as retired nurses or student nurses, or those who are licensed and working in another jurisdiction. Some have statutory provisions to assist them during a public health emergency. For example, in Manitoba, the Minister2 has explicit powers pursuant to section 7(1) of the Regulated Health Professions Act, CCSM, c. R117 to authorize a person or class of persons to perform one or more reserved acts in the course of providing healthcare to prevent, eliminate, remedy, reduce or otherwise deal with the threat if the Minister reasonably believes that a serious and immediate threat to public health exists or may exist in all or part of the province.3

Mandatory Reporting

All Canadian provinces and territories have legislation that requires hospitals, healthcare authorities or healthcare providers to report suspected and/or confirmed cases of communicable diseases.4 In the face of COVID-19, all jurisdictions have specifically designated it as a reportable disease.5 These provisions permit hospitals or healthcare providers to disclose some specific information that may otherwise be considered confidential to designated authorities, such as public health departments, for the purpose of monitoring and controlling the transmission of the disease. It is important for nurses to familiarize themselves with the reporting obligations and protocols in their specific jurisdiction and within their specific employment setting.

Nursing Reassignments

To assist in managing a pandemic, nurses may be reassigned by their employers to areas in which they do not regularly practice. For example, nurses may be reassigned to work in vaccination centres specifically developed to vaccinate against the disease or to existing public health centres. Nurses will be expected to use their core competencies, such as critical thinking and professional judgment, and to practice reasonably in circumstances which may be less than ideal. It is worth assessing your own knowledge, skills, and certifications so as to be able to accurately communicate the assets you bring to the situation, along with any learning or training needs. Awareness of relevant nursing standards and employer policies and procedures will be key, as well as any needs for on-the-job training.

Infection Control

Failing to comply with proper infection control techniques may result in legal consequences for the nurse. There may be the potential for litigation if a nurse’s failure to adhere to infection control technique results in harm to a patient. Nurses practicing in all settings should be mindful of their employer policies and best practices concerning infection control.

Professional Liability Protection

CNPS member organizations have different categories of nursing membership and designate the categories that will be eligible for CNPS services. These categories may include temporary permit holders and temporary or emergency licensure.

This means that if at the time of the incident giving rise to the legal proceedings, a nurse belonged to one of the existing categories included in the member association or college’s membership fee to CNPS, the nurse would be eligible for CNPS services and assistance in the normal course, including professional liability protection. Categories such as temporary or emergency licensure, could include non-RN nursing students if the member association or college issues a temporary or emergency permit to these students to practice nursing during a pandemic crisis. The student’s eligibility for CNPS protection would be limited to the duration of the temporary permit. A nurse who is eligible for CNPS services who provides nursing services in another jurisdiction in accordance with regulatory requirements in order to do emergency work, generally remains eligible for CNPS services.

Individual beneficiaries of the CNPS generally remain eligible for CNPS protection provided that they have a valid license to practice nursing and are providing professional nursing services at the time of the incident.

Nurses who are CNPS beneficiaries traveling to other countries to provide nursing services in the face of a pandemic are encouraged to contact the CNPS directly.

As with any developing issue, nurses should be aware of any new or changing protocols concerning pandemic emergencies from their employer or their regulatory body. Nurses may also consult public health advisories for additional information.

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