The Nurse as an Advocate
In the nursing profession, patient advocacy is usually discussed within an ethical framework. Is there a corresponding legal duty? Canadian court decisions have recognized the existence of a legal nursing duty to obtain proper care for patients, even when this requires nurses to seek assistance outside the usual treatment team (i.e. by speaking to someone other than a trusted colleague or an immediate supervisor). What is the extent of this duty?
Advocating Outside the Treatment Team
A few court decisions provide guidance as to when a nurse may be expected to seek assistance outside the treatment team:
a) Patient not receiving adequate care: Nurses are not generally expected to cross professional boundaries and monitor the performance of other medical professionals. However, a nurse may have a legal duty to seek assistance outside the treatment team where a patient is not receiving adequate care within the treatment team. This was the conclusion reached by the Court in the case of an unresponsive baby delivered after shoulder dystocia. The Court observed that a “nurse’s standard of care will include intervention, such as calling for assistance from another physician, only in exceptional circumstances, such as [where there is] clear and obvious evidence of neglect or incompetence. To describe the duty of care any more broadly risks imposing an obligation on nurses to “second-guess” doctors’ decisions, an unfair burden in a standard treatment setting, and a possibly dangerous one during an emergency.”1 With that caveat in mind, the Court held there was a breach of the standard of nursing care when the two nurses did not immediately call for another doctor to intubate the baby when it was obvious that the attending physician was “emotionally distressed by the outcome” 2 and could not provide the care needed. More recently, an Ontario court decision concluded that a nurse should have made greater efforts to seek medical attention for her patient when it became apparent that a call made to the doctor by the charge nurse had not received a timely response. A similar rationale might be invoked to require health care professionals to take action when a colleague appears to be impaired. In fact, in certain provinces, nurses have a positive duty to report a colleague who may be unable to practice.
b) Scarce resources: Scarce resources can pose another type of urgent risk. While courts have not yet found that nurses have a legal duty to advocate in the face of scarce resources, it is helpful, especially for nurses giving primary care, to know what direction the courts have provided to physicians on this subject. In a British Columbia case, physicians defended the decision not to order a CT scan that might have diagnosed a ruptured aneurysm on the basis of budgetary constraints at the hospital. The Court held that the physicians’ duty of care to their patient took precedence over any responsibility they had to the health care system overall.3
c) Imminent risk of harm: The Supreme Court of Canada has recognized that a health care professional’s duty of confidentiality is outweighed by safety concerns in circumstances where he or she learns, in the course of providing professional services, that another person or identifiable group is at risk of serious and imminent harm (e.g. the patient openly threatens that individual and has the means to carry out the threat).4 This exception to the duty of confidentiality has since been incorporated into provincial privacy legislation applicable to health information. In the United States, the courts have held not only that there is a public interest in setting aside the duty of confidentiality, but that in such circumstances, professionals have a duty to take reasonable care to protect the intended victim against the risk of harm. 5 Canadian courts could well adopt the same rationale.
Reconciling Advocacy and the Duty of Confidentiality
These cases indicate that health care professionals can be required, in exceptional circumstances, to address problems by taking action beyond what is usually done in the normal course of treatment, including speaking to people outside the treatment team. It may be difficult to reconcile that requirement with the duty of confidentiality. It may also be difficult to reconcile with employment obligations (or contractual obligations, if working as an independent contractor). Improperly balancing all those interests could lead to negative and unintended workplace or legal consequences, such as disciplinary action, a complaint for breach of privacy or an action for defamation. Reaching the decision to report concerns outside the treatment team requires careful deliberation. Nurses facing such a situation would be very prudent to seek advice, whenever time permits. The CNPS can provide this advice.
Other best practices include:
- Proceeding through official channels, in accordance with employer policies, when applicable
- Using professional language
- Reporting the relevant facts as accurately as possible
- Explaining the urgency and potential implications of the situation for the patient
- Requesting action/feedback within a specific time frame, as warranted in the circumstances
- Where time permits, communicating concerns in writing in a professional and factual manner
- Documenting measures taken to address the problem —in the chart, where they relate to patient care, or in a letter to a supervisor or employer
- Following-up if necessary, escalating through the layers of administration
Nurses should avoid:
- Making assumptions or inferring facts
- Venting frustrations to the patient, in the patient’s record, or in social media
- Using inflammatory language
- Publicizing concerns any more widely than is strictly necessary
- Breaching the duty of confidentiality, except to the extent permitted by law
If you have any questions, please contact CNPS at 1-800-267-3390 or visit our website at www.cnps.ca.
1. Skeels (Estate of) v Iwashkiw, 2006 ABQB 335 at para 95.
4. Smith v Jones,  1 SCR 455 at para 78.
N.B. In this document, the feminine pronoun includes the masculine and vice versa except where referring to a participant in a legal proceeding.
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.
Vol. 20, No. 2, February 2012