Legislative Changes, Judicial Decisions and Other Developments Relevant to Your Practice
Proposed Amendments to Ontario Regulated Health Professions Legislation re Treating Spouses
An Ontario MPP has introduced Bill 68 to Legislature, proposing to amend provisions of the Health Professionals Procedural Code that currently have the effect of imposing certain minimum penalties, including licence revocation, for health professionals who are found guilty of sexual abuse by a Discipline Committee in certain circumstances. In the Code, sexual abuse is defined as
sexual intercourse or other forms of physical sexual relations between the member and the patient,
touching, of a sexual nature, of the patient by the member, or
behaviour or remarks of a sexual nature by the member towards the patient.
and the mandatory minimum penalties are required when the abuse includes:
genital to genital, genital to anal, oral to genital, or oral to anal contact,
masturbation of the member by, or in the presence of, the patient,
masturbation of the patient by the member,
encouragement of the patient by the member to masturbate in the presence of the member.
The Court of Appeal for Ontario has considered the mandatory penalties accompanying a finding of sexual abuse on three separate occasions, and has confirmed the penalties on each occasion. In Mussani, the Court of Appeal rejected a physician’s contention that the mandatory penalties infringed the Charter of Rights and found the relevant portions of Code to be constitutional (no spousal relationship was alleged in this case); in Rosenberg, the Court of Appeal determined that the mandatory penalties applied even where the physician in question had become the spouse of his patient prior to the amendments to the Code introducing mandatory minimum penalties; and in Leering, the Court of Appeal upheld application of the mandatory penalties where a chiropractor had argued that the mandatory penalties did not apply to him as he had begun treating an intimate partner only after the establishment of their relationship. The code does not therefore distinguish between spousal relationships and other relationships, or between circumstances where the intimate relationship predates the treatment and circumstances where the therapeutic relationship pre-dates the treatment.
Bill 68 is a private member’s bill, and to date remains at a preliminary stage, having only passed first reading. If passed, Bill 68 would not exempt treating a spouse from the definition of sexual abuse under the Code, but would instead remove mandatory penalties for sexual abuse where the patient was a spouse of the health professional.
In related news, the Ontario Health Professions Regulatory Advisory Committee has recently issued a report to the Minister of Health and Long-Term Care recommending that the Code be amended to exempt treatment of spouses from the definition of sexual abuse. The report also emphasizes that notwithstanding any amendments to the Code on the issue, individual Colleges will be free to define more stringent standards for their members.
Apart from the provisions of the Regulated Health Procedural Code, Ontario nurses should be aware that the College of Nurses prescribes detailed standards regarding relationships with spouses and family members, set out in the Therapeutic-Nurse Relationship standard.
Gunshot and Stab Wound Reporting
Newfoundland and Labrador will join British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Québec and Nova Scotia in requiring health care facilities to report gunshot wounds to police. The Gunshot and Stab Wound Report Act, SNL 2011, ch G-7.1, which has been passed by the Newfoundland and Labrador legislature but is not yet in force, also requires health facilities to report stab wounds. Like its counterpart in other provinces, the Newfoundland and Labrador legislation imposes reporting obligations on health facilities and specified health services only – not on individual health professionals. Ensure you know the law on gunshot and stab wound reporting in your province or territory, the reporting mechanism that has been put in place in your hospital or health care institution and whether you may have any responsibility to take part in this reporting process, pursuant to hospital rules and policy.
Newfoundland and Labrador and Nova Scotia have each passed a Personal Health Information Act. The Newfoundland and Labrador legislation has been in force April 1, 2011, while the Nova Scotia legislation has yet to be proclaimed in force. Each establishes a new regime for the collection, use and disclosure of personal health information. Nurses who are custodians of health information under the legislation are required to implement a comprehensive plan to safeguard the confidentiality and privacy of personal health information under their control. You may wish to consult the resource page prepared by the Newfoundland and Labrador Department of Health and Community Services for more information about the Newfoundland and Labrador legislation, or contact the CNPS if you have any specific question regarding its application to your practice.
Nova Scotia To Strengthen Midwifery Programs
Nova Scotia has announced plans to improve access to midwifery services in the province. Improvements include creating a second-attendant program, hiring a midwifery practice specialist and increasing the complement of midwives in the IWK/Capital District health authorities.
Manitoba to Merge RHAs
In what the government is describing as one of the biggest changes in 15 years of health care in the province, Manitoba has announced its intention to consolidate nine adjoining regions into four larger authorities, and to merge the Churchill RHA into the Winnipeg RHA (map of new RHAs here). The government is hoping that the mergers will achieve significant administrative savings.
Nurse Anesthetists in BC?
BC Health Minister has affirmed his support for the idea of introducing nurse anesthetists into ORs in British Columbia. Dismissed by some as a tactic in an ongoing dispute with anesthesiologists in the province, if BC proceeded it would be the first province to permit nurses to provide anesthesia services. Nursing authorities in the province were not consulted prior to the announcement.
In recent months, there have been amendments to legislation and regulations governing the practice of nurse practitioners in several Canadian provinces and territories:
PEI: The Hospital Management Regulations made under the PEI Hospital Act designate nurse practitioners as medical staff granted privileges by the Board of Health PEI. The regulations provide that nurse practitioners or medical staff may treat and discharge patients when authorized by an attending practitioner, but do not grant nurse practitioners the authority to admit patients. Pursuant to the corresponding Medical Staff By-law, adopted in February 2011, as a condition to obtain privileges, NPs are required to provide evidence of licensure with ARNPEI and beneficiary status with CNPS or equivalent professional liability protection.
Ontario: The Ontario government has recently proclaimed into force further amendments to the Regulated Health Professions Act initially introduced by Bill 179, along with regulatory amendments, which will have important implications for nurse practitioners in that province. Pursuant to these amendments, as of October 1, 2011, NPs may prescribe all non-controlled medications, dispense of medications in some circumstances, order any laboratory tests appropriate for patient care, set and cast fractures, and make certain client care orders. The College of Nurses of Ontario has resources describing the changes, here. The College of Nurses of Ontario has concurrently published revised Standards of Practice applicable to Nurse Practitioners.
In addition, as of July 1, 2011, under Regulation 965 to the Hospitals Act, NPs employed by hospitals have expanded authority to order diagnostics and discharge patients. NPs not employed by hospitals may apply to a hospital’s Medical Advisory Committee for the same authority. Further amendments to the regulation are scheduled to come in force in July 2012 that would grant NPs the authority to admit patients as well.
Manitoba: Following the coming into force of amendments to the Extended Practice Regulation, Manitoba nurses approved to engage in extended practice (RN(EP)s) are authorized, as of August 10, 2011, to prescribe Schedule 1 drugs, and prescribe non-prescription devices (in order to help patients qualify for private extended health benefits). The College of Registered Nurses of Manitoba is drafting a new Scope of Practice statement for RN(EP)s, and has resources on the amendments here.
Yukon: Amendments to the Yukon Registered Nurses Profession Act are poised to come into effect, upon the finalizing of the accompanying regulations governing nurse practitioners. The amendments and the regulations are expected to establish the nurse practitioner as a new class of nurse, and to grant NPs authority to admit and discharge patients, and prescribe certain medications.
Northwest Territories and Nunavut: The Registered Nurses Association of the Northwest Territories and Nunavut (RNANT/NU) has worked with the Northwest Territories government to develop Practice and Prescriptive Guidelines for Nurse Practitioners. These guidelines, in force in the NWT since August 3, 2011, permit NPs to order diagnostic tests, perform procedures such as suturing and casting, and to prescribe certain medications. RNANT/NU is in discussions with the Government of Nunavut to have similar guidelines approved there.
Nova Scotia: Regulation 27/2010 made under the Homes for Special Care Act, RSNS 1989, c 203 was amended to allow nurse practitioners to order medications in nursing homes. Also, the Timely Medical Certificates Act, in force as of December 15, 2011, permits nurse practitioners to sign medical certificates of death in some circumstances, helping families to make funeral arrangements more quickly.
British Columbia: The College of Registered Nurses of British Columbia recently revised its by-laws and its NP Scope of Practice Standards with respect to the qualifications of nurse practitioners. Upon the expiry of the Nurse Practitioner Exemption Regulation under the B.C. Labour Mobility Act on September 30, 2011, B.C. NP graduates and applicants already holding unrestricted registration as a nurse practitioner in another Canadian jurisdiction no longer had to complete the Objective Structured Clinical Examination (OSCE). However, these nurse practitioners are not necessarily able to practice without supervision. In order to independently perform any of the NP restricted activities listed in subsection 9(1) of the Nurse (Registered) and Nurse Practitioners Regulation, nurse practitioners need to have successfully completed the exam of the American Nurse Credentialing Centre (ANCC) or another equivalent written exam approved by CRNBC, as well as the OSCE exam. Nurse practitioners who do not successfully complete these exams can only perform those restricted acts under the supervision of a physician or a nurse practitioners having successfully completed the ANCC and OSCE exams. Additional information is available on the CRNBC web site.
On November 22, 2011 the Nurse Practitioner Statutes Amendment Act received Royal Assent, was and will be proclaimed in force on August 1, 2012. The Act amends a number of statutes to authorize NPs to perform services within their scope of practice. The CRNBC has further details on this legislation.
Nurse Prescribing in Alberta
The College and Association of Registered Nurses of Alberta (CARNA) is working with the government to revise the Registered Nurses Profession Regulation, to, among other things, authorize RNs to prescribe Schedule 1 drugs in some circumstances. CARNA has developed a draft standard for RN prescribing, which can be reviewed here.
Alberta Impostor Sentenced to Five Months Imprisonment
An individual who worked as a nurse for two months at one medical clinic and a further two weeks at a second clinic under a falsified RN licence, has been sentenced to five months imprisonment. R. v. Marier, 2011 ABPC 182.
Nova Scotia Patient Safety Legislation
Nova Scotia is poised to join Ontario as the only province with patient safety legislation. Introduced to the legislature in May, the Patient Safety Act will require that health district administrators and the IWK Health Centre to report regularly on a number of patient safety indicators, beginning with hand hygiene adherence rates.
CRNNS to Introduce Jurisprudence Exam
In what may become a growing trend across Canada, the College of Registered Nurses of Nova Scotia has announced that nurses seeking licensure in that province will, commencing in the 2014 licensure year (commencing November 1, 2013), will be examined on provincial legislation and other legal standards governing nursing practice.
New Standards for Nova Scotia RNs, NPs
The College of Registered Nurses of Nova Scotia has released new versions of the Standards of Practice governing registered nurses and nurse practitioners. The standards are effective as of January 16, 2012.
Mandatory Liability Protection
In the fall 2010, the College of Nurses of Ontario (CNO) drafted amendments to its by-laws, in anticipation of the coming into force of amendments to the Ontario Health Professions Act that will require mandatory liability protection for health professionals.
Pursuant to the draft amendments, members of the Registered Nurses Association of Ontario (RNAO) meet the CNO and statutory mandatory liability protection criteria, as RNAO members are all eligible for CNPS liability protection. The provisions of Bill 179 and the amendments to the CNO by-laws requiring all nurses to have in place professional liability protection are not yet in force.
Quebec Proposes to Specify Procedures for Surgical First Assistants
Quebec has proposed new regulations to the Medical Act identifying specific procedures that qualified nurse surgical first assistants may perform in the operating theatre. These include making incisions and dissecting tissues; selecting and implementing homeostasis techniques; suturing and ligating deep within the surgical field. Except for opening and suturing wounds, all of these procedures would have to be performed in the presence of an attending surgeon; opening and closing would require a physician to be present at the institution and available to assist.
Nurses are the Experts in Nursing Care, says Quebec Court
The Quebec case C.L. v. St. Arnaud, 2011 QCCS 2360, resulted from allegations that a physician and nursing staff had failed to take adequate steps to prevent premature delivery of the fetus. In finding that the fetal monitoring conducted by the nursing staff met the standard of care, the Court criticized as unhelpful the practice of inviting physicians to provide expert opinions on nursing care, noting that nurses are the appropriate experts to comment on nursing care.
Quebec Nurses Vote to Require University Degrees
At their annual meeting on October 25, 2011, members of the Quebec Order of Nurses (QON) voted in favour of a resolution urging the Quebec government to adopt a standard that would require new nurses to obtain a university degree. The QON President described Quebec as being ten years behind other Canadian provinces in regards to minimum educational standards.
New Quebec Nursing Specialty in Infection Prevention and Control
In what Quebec Order of Nurses (QON) President labels a Canadian first, Quebec has established a specialty certificate program in Infection Prevention and Control. Nurses applying for the certificate will be required to obtain 30 credits in infection prevention and control coursework, and to pass QON exams.
Amended BC Consent Legislation Expands List of Substitute Decision Makers, Grants Legal Status to Advance Directives
Amendments to the British Columbia Health Care (Consent) and Care Facility (Admission) Act (in force since September 1, 2011) add grandparents, grandchildren and close friends to the statutory list of recognized decision-makers. The amendments also give legal status to written advance directives that meet statutory criteria designed to protect patients from undue influence. The College of Registered Nurses of British Columbia has revised its Consent Practice Standard to reflect the amendments.
Ontario Nurses Now Eligible to be Appointed as Investigators under Coroners Act
New regulations passed pursuant to the Coroners Act now authorize the appointment of nurses as investigators. CNPS has been working with the Office of the Chief Coroner to facilitate the provision of professional liability assistance to nurses who may be appointed.
Ontario Court of Appeal Recognizes Tort of “Intrusion upon Seclusion:” Decision has Implications for Health Care Professionals
In Jones v. Tsige, the Ontario Court of Appeal clarified a developing area of law in finding a defendant liable for invasion of privacy. The defendant bank employee had, over a four year period, repeatedly viewed the private banking information of a bank colleague – in circumstances where that colleague was the ex-wife of a man the defendant was seeing romantically. In imposing liability for “intrusion upon seclusion,” the Court made clear that in Ontario at least, individuals who intentionally invade others’ privacy without lawful justification, in circumstances that reasonable people would find insensitive, may find themselves liable for moral damages up to $20,000 (in addition to damages required to compensate any loss). For health professionals, this decision means that intentional, unlawful viewing of personal health information may result in civil liability, in addition to potential consequences in the workplace, before professional bodies, and before the Information and Privacy Commissioner.
SRNA Provides Guidance to Nurses re Performing Cosmetic Procedures
The Saskatchewan Registered Nurses Association has endorsed an article drafted by Bryan Salte, Assistant Registrar and Legal Counsel to the College of Physicians and Surgeons of Saskatchewan, concerning the performing of cosmetic procedures by non-physician health-professionals. Among other things, the article cautions that assessing a patient for injectable cosmetics (like botox) and making the decision to perform an injection are outside of a registered nurse’s scope of practice in Saskatchewan.
Newfoundland: The Newfoundland and Labrador Centre for Health Information is partnering with Canada Health Infoway to establish the Infoway/Newfoundland and Clinical Peer Leader Support Network Program, to enable peer leaders to help professionals adopt to EHRs.
Saskatchewan: Saskatchewan has introduced the Saskatchewan Lab Results Repository, to enable electronic lab results to be available anywhere a patient seeks care across the province. The Lab Results Repository will join existing components of Saskatchewan’s EHR project, including the Pharmaceutical Information System and the Picture Archiving & Communication System.