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Nurses risk losing their right to practise over COVID efforts | Joël Roy

Friday, November 20, 2020 @ 8:35 AM | By Joël Roy

Joël Roy %>
Joël Roy
Clearly, nurses and other medical professionals are the unsung heroes of this COVID-19 pandemic. For days on end, these warriors are out there on the front lines to make sure people who fell ill are taken care of — all while having to deal with the almost daily adversity brought by protocol changes and material scarcity, among others. All that being said, to say these professionals are “essential” to our answer to this crisis just might be an understatement, and it is our collective responsibility to make sure we respect and thank them appropriately for their amazing work.

Yet, their willingness to fight against COVID-19 just might be their demise — and not only due to the dangers of infection. Rather, it appears the very system they have been asked (or, rather, in many cases, compelled) to take part in may cause them harsh disciplinary consequences should nothing be done to help it.

How? Essentially by forcing them to engage in spheres of practice they are not familiar with. As we have seen, this has become very common practice in Quebec as well as throughout Canada. For instance, one of Quebec City’s main hospitals recently stated it would close 15 operating rooms in order to transfer additional staff to its COVID unit.

Now, from a policy perspective, it makes sense to proceed to a general reaffectation (reassignment) of personnel in order to provide additional resources to strained sectors. It is also hard to argue against the transfer of nurses from elective surgery operations to intensive care and/or pneumology when these areas are in dire need of additional help. But who is thinking of the nurses’ particular obligations in this shift? Very few, and even fewer of them, I am afraid.

For instance, Article 21 of the Quebec Code of Ethics of Nurses, R.S.Q., ch. I-8, r. 9 states that “nurses shall safeguard their professional independence at all times. In particular, a nurse shall practise her or his profession with objectivity and disregard any intervention by a third party that could affect the performance of her or his professional duties to the detriment of the client.” Perhaps more importantly, Article 17 states that nurses “shall act competently in fulfilling their professional duties. To that end, they shall take into consideration the limits of their knowledge and skills.” A quick review of the available case law shows that the violation of these provisions can lead to months of suspension.

This being said, it is difficult to imagine how a nurse who has been practising in orthopedic surgery for 10 years can transfer to a COVID respiratory unit on a day’s notice while “taking the limits of her knowledge in consideration.” This is even truer when we consider that COVID-specific training has been few and far between. Thus, these mandatory transfers not only cause great discomfort by changing the nature of the work of nurses around the province, they also create potential ethical violations.

Of course, one could try to argue that since these changes are imposed by the central agencies, nurses need not to worry about doing what they are told. Yet, this is particularly the kind of reasoning that Article 21 cited above seeks to prohibit by establishing a general duty of professional independence. If you cannot practise according to your ethical obligations, the spirit of the provision goes, then you must simply walk away. Now, this is all fine and understandable in an open, free market, but how do these obligations face the harsh realities of the total war we are currently waging against deadly COVID?

Let us also cite the Code’s very first article to add to the complexity of the issues at hand: “A nurse shall come to the aid of anyone whose life is in peril, either personally or by calling for aid, by giving necessary and immediate assistance to that person, except in the event of danger to the nurse or a third party, or unless the nurse has another valid reason.” Are concerns about one’s disciplinary liability sufficient not to help out in such hard times?

Now, all this might be overly alarmist since ethical complaints do not happen spontaneously. Rather, there first has to be an investigation request made to the Office of the Syndic of the Order of Nurses, which then has to look into it. The choice of whether to file a formal complaint or not is then the syndic’s, which it is allowed to make with the large discretion her powers allow. This discretion just might be the key to resolve the inherent disciplinary tensions that brought about the present situation: we should trust the syndic not to file a complaint against someone who simply tried to do her best by doing what was expected of her in tough circumstances.

Yet, would you trust your livelihood and right to practise on such nearly unfettered discretion? Arguably not, and yet you would probably not want to step aside while patients are in dire need of someone just like you either.

This leaves for a complicated picture in which there is no clear answer except for this one: regardless of what angle we take, nurses always seem to get the short end of the stick. May we do our small part to thank them by asking the right questions while they are busy keeping us safe?

Joël Roy is an attorney at Mercier Leduc specializing in ethics and disciplinary law in the context of medical technologies and AI.

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