InfoLAW: Legal Risks in Nursing

A nurse may become involved in various legal proceedings. This infoLAW will focus on four legal proceedings: professional discipline, criminal actions, grievances/arbitration and civil actions. Whenever a nurse is involved in a legal action, they should reach out to CNPS to determine whether assistance is available to them and to discuss next steps. Nurses should speak to a lawyer prior to discussing the legal action with anyone else, and prior to reviewing any medical records.

Professional Discipline

Nursing regulators are mandated to protect the public. They do so by ensuring that their registrants (the nurses) are competent and fit to practice. To promote competency, regulators typically set minimum standards of practice for their registrants. Failure to comply with these standards may trigger the involvement of the nurse’s regulator, which can lead to investigations and can result in disciplinary action. Investigations may relate to any aspect of a nurse’s practice and professional integrity. Examples of professional misconduct may include: medication errors, breaching confidentiality, practising nursing without a licence, inappropriate communication, inappropriate social media content and patient abuse.

The disciplinary process begins in one of two ways: either with a complaint being submitted to the regulator about a registrant, or with the regulator deciding to initiate an investigation into a registrant without having received a formal complaint. In both cases the registrant will be informed that there is a complaint and/or investigation about them and will be provided with information about the process, including when and whether they need to respond to the complaint and/or investigation. Complaints may originate from the nurse’s employer, another health care professional or a member of the public. Complaints generally lead to investigations. Regulators may initiate investigations when any information comes to their attention that causes them concern about a registrant. For example, regulators may initiate investigations after seeing information about registrants in social media or in the news.

When a regulator commences an investigation, they will assign an investigator to the matter. The investigator will be tasked with compiling relevant information, which may include: reviewing medical records and applicable policies, and conducting interviews.

The investigator then reports to the complaints committee which determines what action, if any, should be taken. Most cases are resolved at this level, with or without mediation or alternative dispute resolution. If the matter cannot be resolved at the investigation stage, then the matter may be referred to a discipline committee for hearing. Please note that this process differs depending on the jurisdiction in which the nurse practices.

The discipline committee¹ typically hears evidence presented by witnesses the nurse, and sometimes experts. The committee then reaches a decision regarding whether the nurse should be disciplined. The decisions can range from no disciplinary action to a verbal warning, remedial education, practice limitations or conditions, licence suspension or revocation. Nurses may also be subject to financial penalties at this stage.

Due to the potential impact on a nurse’s practice, nurses are encouraged to secure legal representation at the outset of complaints and/or investigations. Many employers do not provide legal representation for complaints and/or investigations with regulatory bodies. Assistance is more likely available from a nurse’s union, or through the CNPS Supplementary Protection program, an optional additional service available to CNPS beneficiaries. To learn more about CNPS Supplementary Protection, please visit: https://cnps.ca/services/regulatory-complaints/.

Criminal Prosecution

A nurse may be reported to the police for suspected criminal conduct. Initially, the police may gather information to determine whether there is sufficient evidence to commence an investigation. The nurse may be asked for information or may be asked for a statement. Based on that information, an investigation may follow and potentially a charge laid under the provisions of the Criminal Code. Examples of criminal charges laid against nurses include theft of narcotics, theft of patient or institutional property, criminal negligence, threatening or inflicting bodily harm, and sexual assault. Any information given to the police may be introduced as evidence against the nurse at a subsequent trial. Therefore, before answering any questions or providing any statements to the police, a nurse should consult a criminal lawyer.

Due to the complexity of criminal proceedings and the serious consequences of a criminal conviction, a criminal lawyer should be retained at the earliest possible opportunity. Employers will not usually cover criminal defense costs, but protection may be available through your union or the CNPS.

Nurses should also determine whether they have an obligation to report criminal charges or convictions to their nursing regulator. If so, the nurse should consult a criminal lawyer or the CNPS about how the report should be submitted. Generally, a self-report is required regardless of whether the incidents giving rise to the criminal charges arise from the practice of nursing.

Grievance/Arbitration

A grievance is typically defined by a violation of an employee’s rights in the context of their employment. Most grievances relate to employment issues such as harassment, compensation, a layoff, and discipline. Assistance with grievances are generally included within the nurse’s collective agreement with the employer and would therefore be managed by unions and their legal representatives.

The arbitration process is a referral to an independent tribunal for a hearing of the case. An arbitrator presides over this hearing. Witnesses for both sides are called to give evidence and be questioned by representatives (who are often lawyers) of the union and the employer. The arbitrator will then render a decision, which is final. There may, however, be a right of appeal to a court of law. CNPS assistance does not typically extend to employment-related matters. Some nurses may have legal assistance and representation available to them through their nursing union.

Civil Action (Civil Litigation)

A civil action is a lawsuit that occurs between two or more parties when there is a disagreement on a legal matter where one party in the lawsuit (the plaintiff) is seeking a finding of liability and damages (compensation) from another party (the defendant). Plaintiffs in a medical malpractice lawsuit typically are the patient and the patient’s close family members, such as a spouse, dependent children, parents, and siblings.

A Statement of Claim² commences a civil lawsuit by describing the allegations against the defendant(s). It is filed with the court and served on the defendants. Defendants are those who are alleged to have harmed the plaintiff/patient. Defendants can be persons, such as doctors and nurses, and legal entities, such as hospitals and regional health authorities. A nurse named in a lawsuit should be represented by a lawyer.

If a defendant nurse employee is found negligent, the court may require the employer to pay the damages award and legal costs. This is determined on a case-by-case scenario and will depend on several factors, including the legal relationship between the nurse employee and their employer. It is important to note, however, that employees retain their own liability even when their employers insure them.

A nurse may also be involved in a class action lawsuit. This is a civil action where a group of people who have been similarly injured are represented collectively by a member of that group (instead of each person commencing their own civil action). If a nurse is held personally liable, then they will be responsible for the payment of damages awarded. Assistance may be available from the CNPS. For more information on civil liability, please refer to the InfoLAW on Negligence. If a nurse is named as a party (defendant) in any legal document, they should be represented by a lawyer. Their employer, their union or the CNPS may assist them in obtaining legal representation.

It is important to note that a nurse could be concurrently involved in a professional discipline proceeding, a criminal proceeding, a civil action, and a grievance or arbitration proceeding. Simultaneous proceedings can have an impact to the nurse in their private and professional lives. For example, if accused of criminal wrongdoing, a nurse may be reported to their nursing regulator or may be required to self-report. Pursuant to their employee obligations, they may also be required to report the matter to their employer and this may trigger an employer investigation. A patient may also decide to sue the nurse for any damages suffered.

Other legal proceedings include Coroner’s inquests (an investigation into the cause of an individual’s death), public inquiries and human rights tribunals. CNPS assistance may be available to the nurse.

Call the CNPS early. By contacting the CNPS for assistance as close to the time of notification that you may be involved in any type of legal action, it allows us to ensure we can meet the often short timelines for response. Better yet, early consultation when a question first arises may avoid escalation to a complaint or legal proceeding, along with all the discomfort this would entail. Please remember that the CNPS is available as a resource to you in your day-to-day practice, not only when you are implicated in a legal proceeding.

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

1. The discipline committee has different names depending on the jurisdiction.
2. A Statement of Claim may have different names depending on the jurisdiction. For instance, it can be called a Plaintiff’s Claim, or be initiated by a Notice of Action or Notice of Claim.

May 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.