Professional Liability During the Shortage


By Elaine Borg, Professional Liability Officer

With Canada in the midst of a nursing shortage, many nurses are concerned about its impact on their own practice and their patients' well-being. They are also concerned about possible legal consequences to themselves.

Nurses are subject to a variety of laws, depending on the circumstances. As licensed professionals, nurses must uphold their provincial or territorial standards of practice. They are also expected to practice in harmony with the Code of Ethics. 1 If these are not upheld, the law of professional discipline and licensure applies. As employees, nurses must also meet the terms of their contracts, whether the governing contract is an individual employment contract or a collective agreement. Employment and labour law govern workplace discipline and contractual matters. Finally, in a lawsuit for negligence, the law of professional liability will determine whether the standard of nursing care was met in the circumstances. There are times, especially during staffing shortages, when nurses are confronted with apparent conflicts between these coexisting legal responsibilities.

Nurses' employers face the same difficulty: How to deliver good care when resources are lacking? Hospital management know they are obliged to take reasonable care in hiring personnel and to have safe systems in place. 2 Consequently, a common request by an employer is that a nurse work overtime. A nurse can agree to do this or decline, depending on the contractual terms of her employment. It has been known to happen that a nurse who declines overtime work is threatened with a charge of ‘patient abandonment', which implies consequences to her as an employee as well as having overtones of professional misconduct. Some nurse licensure bodies have provided guidance on this issue. 3

According to Ontario's nursing professional misconduct regulation, for example, it is professional misconduct to discontinue professional services that are needed unless:

i) the client requests the discontinuation;
ii) alternative or replacement services are arranged; or
iii) the client is given reasonable opportunity to arrange alternative or replacement services. 4

The College of Nurses of Ontario has interpreted this to mean that nurses have a professional responsibility not to abandon or neglect their clients during an assigned shift. It said: "A refusal to work an extra shift or overtime is not the type of situation that was intended by the inclusion of ‘discontinuation of services' as a category of professional misconduct, and therefore, is not considered ‘abandonment'." 5

What does constitute abandonment? Two recent professional discipline cases provide examples. In the first case, a community health nurse contacted a patient by phone but documented that she had made home visits, failed to make home visits but documented that she had done so, and failed to do follow-up visits on newborns. In the second case, a camp nurse left the camp in the middle of the night, with the intention of being absent for several days of unscheduled leave, knowing there were no alternate nursing or medical services to replace her. In both these situations, the respective nurse was penalized by her licensing body, partly on the basis of patient abandonment – abandonment that constituted professional misconduct.

An employment contract or collective agreement may contain clauses relating to overtime, perhaps even permitting "mandatory overtime". Mandatory overtime differs from overtime, however. For greater awareness of your own contractual obligations, consult the relevant documents and your union representative, if applicable.

What can a nurse do when faced with these difficult circumstances? At least two things: work now, grieve later; and report effectively.

Work now, grieve later

It is a longstanding principal of labour relations that a union member must ‘work now, grieve later', with few exceptions (such as being asked to commit an illegal act). This does not mean that a nurse must remain silent and passive if, in his or her professional judgment, a situation is developing in which nursing resources are stretched so thin that the impact on patient care is a concern. Try to get reinforcements. Report the situation to management. Let your colleagues on shift know about the situation so they can help. Consider options such as reassignment of work, realigning priorities, enlisting aid of physicians in reassessing the level of care needed by patients, etc. The law requires that you do the best you can in the circumstances. Simply refusing another admission to a busy unit that is already understaffed may be considered insubordination worthy of discipline if some of these efforts to cope with the situation have not taken place. 6

Report effectively

It is extremely important for nurses to report each clear occurrence of a staffing shortage to their management. The purpose of documenting staff shortages and their impact is to alert those who make staffing decisions and can take further action.

Nurses cannot divest themselves of responsibility for their own actions, or failure to act, by claiming such in their written report to the employer. 7 Nurses sometimes feel compelled to disclaim responsibility for any harm that may result if patients are affected by a staff shortage, of fear that they may be found negligent if harm occurs. Since nurses are accountable for their actions, or failure to act, a disclaimer statement would not provide any legal protection. Bear in mind that the standard of care, a concept from the law of negligence, 8 is what the average, prudent, reasonable nurse would do in the circumstances. The law does not expect perfection. Circumstances such as a nursing shortage could be taken into consideration in a lawsuit for negligence. Nurses are not held accountable by a court for things outside their control, but for their own actions in the circumstances.

If your employer or union has developed a specific form for this kind of reporting, use it. State the facts and be specific. Avoid speculation. Encourage all of your colleagues to do the same since there is strength in numbers. Be persistent. Reporting a serious situation is more work on top of a busy workload but it is necessary in order to bring it to the attention of those who can do something about it.

References

  1. Canadian Nurses Association. Code of Ethics for Registered Nurses, Ottawa, author, 1997.
  2. Yepremian v. Scarborough General Hospital (1978), 20 O.R. (2d) 510, 88 D.L.R. (3d) 161 rev'd in part 28 O.R. (2d) 494, 110 D.L.R. (3d) 513 (Ont. C.A).
  3. College of Nurses of Ontario. You asked us, Communique, 24 (3), September 1999, 32. Some professional nursing associations have written on the subject of resolving professional practice issues. For more information, contact your association and for further readings, consult: Alberta Association of Registered Nurses: Working extra hours - Guidelines for registered nurses on fitness to practice and the provision of safe, competent, ethical nursing care, 2001; Saskatchewan Registered Nurses Association: Solving professional practice issues, 1998; Manitoba Association of Registered Nurses: Supportive practice environments -- A discussion paper, 2000; Registered Nurses Association of Nova Scotia: Professional practice issues resolution framework, 1996; Canadian Nurses Association: Working with limited resources: Nurses' moral constraints, Ethics in Practice, 2000.
  4. O.Reg. 799/93.
  5. Supra note 3
  6. Re Mount Sinai Hospital and Ontario Nurses' Association (1978), 17 L.A.C. (2d) 242.
  7. Re Foothills Provincial General Hospital and U.N.A., Local 115 (1989), 7 L.A.C. (4th) 359.
  8. Canadian Nurses Protective Society. Negligence, infoLAW, 3(1) September 1994.

Note: This article has been reprinted with permission from Canadian Nurse, September 2001.

All articles appearing in this section are for information purposes only and should not be construed as legal advice. Readers should consult legal counsel for specific advice.

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