Nursing Rights and Accountabilities
Nurse Rights and Accountabilities
Nurse Rights
Conscientious Objection
Refusal of duty based on moral or religious grounds.
Examples include refusing to participate in medical assistance in dying (MAiD), abortion, stem cell research, or administering Plan B.
In such situations, emergency care must still be provided.
Failure to provide emergency care is a breach of professional responsibilities and the ethical principles of justice, beneficence, and non-maleficence (Ogilvie, 2020).
Free from Discrimination
Everyone should have access to nursing education.
Legislation prohibits denial of employment based on race, sexual and gender orientation, creed, religion, age, physical or mental disability, nationality, or ethnic origin.
Employers are legally mandated to structure work conditions and requirements to minimize interference with employees' religious/cultural views or physical/mental handicaps (Keatings & Adams, 2020).
Right to Healthy Work Environments
To foster a healthy nursing culture, leaders should:
Address staffing issues through appropriate staffing ratios and optimizing full-time positions while offering flexible opportunities.
Promote nurse engagement by rewarding effort, acknowledging achievement, and creating learning environments that support leadership and professional development.
Develop orientation programs to ensure new graduates' effective transition to practice.
Prioritize workplace health and safety.
Develop human resources strategies focused on retention and proactive recruitment (Ogilvie, 2020).
RNAO's Best Practice Guidelines (BPGs) for a Healthy Work Environment include:
Managing and mitigating conflict.
Interprofessional teamwork.
Preventing and mitigating nurse fatigue.
Preventing and managing workplace violence.
Collaborative practice.
Developing and sustaining effective staffing and workload.
Workplace health, safety, and well-being of the nurse.
Embracing cultural diversity in healthcare.
Developing and sustaining nursing leadership.
Professionalism in nursing.
Right to be Protected from Harm
Healthcare environments pose multiple risks, including exposure to harmful agents and infectious diseases, increased stress, disrespectful coworkers, and physical harm from patients.
Employers have a legal responsibility to minimize these risks.
Occupational Health and Safety (OHS) legislation mandates:
The establishment of health and safety committees to identify hazards and recommend solutions.
Workers' right to refuse unsafe work, with exceptions if the risk is inherent in the work or if refusal would endanger the life, health, or safety of others (Ogilvie, 2020).
Benefits of a Healthy Work Environment
Leads to improved client/patient safety.
Reduced absenteeism.
Improved ability to attract and retain employees.
High levels of staff satisfaction and engagement.
Reduced turnover (Ogilvie, 2020).
Unions
Labour Relations & Collective Bargaining
A union is a provincially certified group of employees with a common employer or industry, acting as the collective bargaining agent for its members.
Unions lobby governments for improvements in areas like minimum wage laws, vacation and overtime pay, unemployment insurance and benefits plans, human rights legislation, maternity/paternity leave, and health and safety rules.
Approximately of nurses belong to a union.
Decertification occurs when a union is dissolved or loses its right to negotiate on behalf of its members (Ogilvie, 2020).
Unions for Nurses in Ontario
CUPE (Canadian Union of Public Employees): Represents emergency workers, healthcare, education, ECE, municipalities, social services, libraries, and utilities.
OCHU (Ontario Council of Hospital Unions): Specific to hospital employees.
ONA (Ontario Nurses Association): Represents registered nurses and healthcare professionals across Ontario.
OPSEU (Ontario Public Service Employees Union): Represents members working for the Ontario government, community colleges, LCBO, healthcare, and various community agencies within the broader public sector.
Collective Bargaining Process
A process where employment terms and conditions are negotiated for a set period.
Terms may include wages, hours of work, schedules, vacation pay, and sick leave.
Includes a mechanism for settling disputes.
Once an agreement is in place, the employer cannot change the terms; this is known as the Collective Agreement (Ogilvie, 2020).
Grievance Procedures
Collective Agreements contain mechanisms for resolving disputes between management and labor.
Procedures are in place to file grievances and go through a resolution process.
In healthcare settings, the "Obey & Grieve" rule generally applies:
Nurses must provide care for patients when ordered.
Nurses may formally grieve the situation after care is provided.
The rights and needs of patients come first.
Failure to provide care is considered professional misconduct (Keatings & Adams, 2020).
Right to Strike
The right to strike varies depending on the nature of employment and by province.
Striking is illegal for nurses in roles deemed essential (e.g., hospital, long-term care).
It is also illegal for:
Employees to strike when a collective agreement is in place.
An employer to lock out employees when a collective agreement is in place.
Employers to discipline employees for lawful union activities (Keatings & Adams, 2020).
Professional Accountability and Union Membership
Nurses are accountable to their profession, regulatory body, patients, and employers.
Union membership can sometimes conflict with these accountabilities.
Ethical and professional responsibilities must always remain paramount (Ogilvie, 2020).
Professional and Legal Accountability
Protecting the Public
The College of Nurses (CNO) assesses concerns about nurse conduct and competence to protect the public's right to quality nursing care (CNO, 2017).
Nurses are held to high professional and ethical standards due to vulnerable patient populations and life-and-death situations.
Nurses have a professional 'duty to care' and must be competent and maintain competency, linking to the principle of self-regulation.
Nurses are held accountable by both the CNO and legal frameworks (criminal and civil liabilities).
'Duty of Care'
A legal principle protecting the client's right to receive care according to standards of practice.
Professionals like nurses owe a duty of care to act competently and diligently, adhering to reasonable standards and expectations.
This includes the responsibility to stay current with developments and undertake ongoing professional development (Keatings & Adams, 2020, p. ).
Involves direct care owed to the client/patient and the agencies that employ the healthcare provider.
Breach of Duty of Care
Nurses must adhere to standards of care to protect the public; the legal system uses these standards for comparison.
A nurse's actions are compared to what is expected of all nurses in similar situations, as evaluated by expert witnesses in a court of law.
Nurses must ensure their competence.
If conduct falls below expected standards, a nurse may be investigated and held accountable by their regulatory body, criminal law, or civil law.
Nursing Accountabilities Overview
Regulatory Body (Professional Misconduct)
Criminal Liabilities
Civil Liabilities (Torts: Intentional, Non-Intentional)
Professional Misconduct (CNO)
Definition: "An act or omission that is in breach of these accepted ethical and professional standards of conduct" (CNO, 2007, p. ).
Examples of Professional Misconduct (CNO, 2019):
Failure to maintain the standards of practice: Includes inappropriate delegation, providing care without the necessary knowledge, skills, or judgment (K/S/J), or failing to meet a practice standard.
Working while impaired: Clause mandates reporting another nurse or healthcare professional (HCP) who is impaired and providing client care.
Abusive conduct: Verbal, physical, or emotional abuse. Neglect is considered abuse, encompassing withholding care, necessities, food, or medications.
Misconduct is still considered even if the nurse did not intend harm.
Theft.
Failure to obtain informed consent and breach of confidentiality.
Inadequate documentation and record-keeping.
Misrepresentation.
Failure to meet legal/professional obligations: For example, failure to comply with Quality Assurance (QA) requirements or to cooperate in a CNO investigation.
Conflict of interest.
Inappropriate business practices: Relevant for nurses running independent practices.
Disgraceful, dishonourable, and unprofessional conduct: "Conduct that demonstrates lack of integrity; dishonesty; abuse of power, access and authority; or disregard for the welfare and safety of members of the public." Examples include falsifying a time sheet, failing to maintain acceptable boundaries with a client, accepting inappropriate gifts or borrowing money from clients, or making racially degrading remarks.
Other grounds for professional misconduct: Being found guilty of an offense such as sexual abuse, murder, or trafficking illicit drugs.
Consequences if Misconduct Takes Place
The member is reported to the employer, CNO, and police.
Acts of professional misconduct may result in a CNO investigation.
Disciplinary hearings may be held.
Findings of professional misconduct by the CNO may influence or be informed by other legal proceedings.
Duty to Report
Nurses' Responsibility
Nurses have an ethical and, in many cases, legal responsibility to report anything that threatens patient safety or constitutes unprofessional behavior.
Principle of the CNO Code of Conduct states: "Nurses take action to stop unsafe, incompetent, unethical or unlawful practice, including any type of abuse."
CNO Practice Standard: Accountability indicates a nurse demonstrates accountability by reporting unsafe, unprofessional actions or behaviors, or abuse by any healthcare team member or colleague.
CNO Practice Standard: Therapeutic-Nurse Client Relationship (Statement ) emphasizes protecting the client from harm by ensuring abuse is prevented, stopped, and reported.
Case Study: Drug Diversion and Impaired Practice ('Mary' example): Refers to a situation involving possible impairment and drug diversion, highlighting the accountability of a nurse (Marcus) who observes these issues. Drug diversion is the illegal obtaining or use of prescription medicines.
Organizational Responsibility
Employers have legal obligations to report:
Sexual abuse.
Terminations, or the nurse’s resignation in lieu of termination.
Revocations, suspensions, or restrictions on a nurse’s privileges.
Disciplinary Matters: CNO Addressing Complaints
Separation from Criminal Proceedings
CNO disciplinary and competency matters are separate from criminal proceedings, which are typically initiated if a nurse has committed an offense under the Criminal Code.
Disciplinary and competency hearings are handled internally by the CNO.
Step 1: Make a Complaint
Must be written to the professional body, outlining the facts.
Serves to protect the public and improve nurses' practice, not to be punitive.
Addresses situations where a nurse (RN/RPN/NP) does not meet standards.
Who can make a complaint? Nursing colleagues, patients/clients or family, physicians/surgeons, and employers (who prefer professional/competency issues handled internally first).
In Ontario (under the RHPA) and Alberta (under the HPA), members who are terminated must be reported if the termination involves a failure to observe standards, misconduct, or incapacity.
Types of complaints the CNO will address: Failure to provide adequate care, unsafe medication administration, inadequate documentation, inappropriate use of restraints, not maintaining confidentiality, breaches of the Therapeutic Nurse Client Relationship (TNCR), verbal abuse, sexually inappropriate conduct, borrowing money from clients, and theft.
Types of complaints the CNO will not address (CNO, 2018): When another organization is already resolving the issue (e.g., WSIB claim), complaints about a nurse's personal life (not professional practice), complaints about the organization itself, complaints made in bad faith, or unsigned (anonymous) complaints where no further information can be obtained.
Step 2: Addressing the Complaint (Alternative Dispute Resolution)
A resolution process that protects the public without laying blame.
Allows for referrals rather than license removal, encouraging self-reflection.
Refers to standards for improvement, with the nurse working with the CNO to develop a plan (e.g., taking a medication or communication course).
Step 3: Investigation Process
An investigator is appointed to gather relevant data and asks the nurse to respond within days (this process may occur twice).
The investigation then goes to the Inquiries, Complaints and Reports Committee (ICRC).
Examples of ICRC courses of action:
If no support is found for a breach of nursing practice standards, the ICRC may take no action.
The ICRC can require the nurse to complete a Remediation Program (a guided online program).
The ICRC can refer some or all issues to the Discipline Committee (a small percentage of cases go this far).
Step 4: Disciplinary Committee
Involves public hearings, akin to a courtroom process with independent panel members, coordinated with the nurse's lawyer.
Examples of courses of action:
Finding the nurse guilty of professional misconduct.
Finding the nurse innocent of wrongdoing.
Determining that the nurse is incompetent, unskilled, or otherwise lacking in essential knowledge.
Implications for the Accused
May include paying a fine to the Ontario government (not the CNO or the complainant).
Completion of remedial education.
Placement of conditions on the nurse's practice.
Suspension of the nurse.
Revocation of the nurse's ability to practice.
Any decision made by the Discipline Committee is publicly reported in 'The Standard' under the 'Summarized Decisions' section.
May determine fitness to practice.
Appeals Process
An independent review board evaluates if the findings were accurate or if the decision was reasonable.
May confirm findings and make recommendations but cannot overturn criminal or civil suit findings.
Interesting Facts
In Ontario, a guilty party might be asked to pay for counselling incurred by a victim of sexual assault.
Impact statements are heard for sexual assault cases.
Deemed incompetent if a nurse lacks knowledge, skill, or judgment, or disregards patient welfare; this is not the same as professional misconduct.
If a member is cleared, they may request that this finding be published.
Nurses' Responsibility (Reiterated)
Nurses have an ethical and, often, legal responsibility to report anything threatening patient safety or displaying unprofessional behavior, such as addiction to alcohol or drugs.
In Alberta, New Brunswick, and other provinces, failure to report is considered professional misconduct.
In Ontario, any nurse suspecting a member has committed sexual assault or abuse must report it to the CNO; for non-sexual misconduct, the conduct must be reported to the employer.
Confidentiality may be a complex issue in reporting.
Criminal & Civil Liabilities
Criminal Liabilities
Involves one party committing a crime under the Criminal Code, with the government (Crown) pursuing punishment on behalf of the public.
Examples of criminal charges against nurses: Theft of narcotics, theft of patient or institutional property, assisted suicide, criminal negligence, threatening or inflicting bodily harm, and sexual assault (Canadian Nurses Protective Society).
Criminal Negligence: Results in harm, injury, or death when a healthcare person fails to demonstrate the expected standard of care, exhibiting extreme carelessness/recklessness, or a complete disregard for the consequences of actions.
Examples include fraud, theft, manslaughter, and murder, as seen in the Wettlaufer Case.
Civil Liabilities
Involves one party suing another party (e.g., person, organization), dealing with the private rights of citizens when someone's rights have been violated.
Lawsuits alleging negligence or malpractice against nurses are considered 'civil' lawsuits (Canadian Nurses Protective Society).
Torts: Civil laws addressing the legal rights of patients and the responsibilities of the nurse in the nurse-patient relationship (Keatings & Adams, 2020).
Intentional Torts:
Assault: Threatening to touch a person without their consent, or in a harmful or offensive manner.
Battery: Actual contact without consent.
Breaches in privacy and/or confidentiality.
Non-Intentional Torts:
Malpractice and Negligence (liability even if accidental injury, intent to harm is not a requirement).
Malpractice vs. Negligence
Both are acts of omission or commission that do not meet established standards of care and cause some injury.
Malpractice requires six elements (Berman and Synder, 2012):
A duty of care exists.
A breach of duty occurred.
Reasonable foreseeability that the nurse's act has a connection with the patient injury that occurred.
The patient was harmed.
A direct link exists between the act and the harm.
The patient has the right to financial compensation or damages.
Negligence does not meet all six elements of malpractice but requires three elements:
Duty of care owed to the plaintiff/patient.
Breach of duty of care by the defendant (healthcare provider) – a failure to administer treatment or provide healthcare in accordance with the standard of care.
Patient suffers damage from the breach of duty of care.
Example: Alignment of Legal Accountabilities (Elizabeth Wettlaufer Case, )
Regulatory Body (CNO): Her license was revoked for counts of misconduct.
Criminal: She received a life sentence for the first-degree murder of eight seniors, the attempted murder of four others, and the aggravated assault of two.
Civil: Lawsuits were filed by family members directly against her.
Coroner's Inquest (Investigation)
Purpose: To investigate unexplained deaths to determine the cause.
Deaths must be reported to the Coroner’s Office when: A violent event, misadventure, negligence, misconduct, malpractice, unfair means, following pregnancy, unexpected death, death from an untreated disease, other than disease, suspicious circumstances (e.g., several deaths on one unit, unknown cause, missing medications), or family concerns.
Conclusion of Inquest: May result in recommendations for practice changes or policy updates.
If findings conclude criminal responsibility, criminal charges may then be laid by law enforcement.
Nurse's Role: May need to provide evidence and testify at hearings (Keatings & Adams, 2020).
Importance of Documentation
Evidence: Crucial for accurate and timely recording, applying the principle "not written, not done."
Documentation must be objective, not opinion-based, and use appropriate terminology and short forms as per agency policy.
Legal Implications: Notes can be subpoenaed into evidence.
No alterations should be made to notes.
Notes are often reviewed by an expert (who may be a nurse) to help interpret data.
Documentation can be used by both the defense and prosecution in legal proceedings.
Professional Liability Protection (PLP)
All members of the CNO (excluding those in the Non-Practising Class) are mandated to hold Professional Liability Protection (PLP).