The “Reasonable” Standard: Healthcare Workers’ Duty of Care during the COVID-19 Pandemic and Limitations on the Right to Refusal of Work
Photo by Luis Melendez on Unsplash
Photo par Luis Melendez sur Unsplash
Philippe Haddad
(FR) La pandémie de COVID-19 domine actuellement tous les aspects de la vie au Canada. Cela limite constamment nos interactions sociales et influence drastiquement la manière dont les professionnels de la santé s’occupent de ceux dans le besoin. Ce nouveau virus a laissé les systèmes juridiques et médicaux du Canada insuffisamment préparés pour régler des situations en conflit avec leur doctrine habituelle, notamment celles relatives au devoir de diligence des professionnels de la santé. Il est de la responsabilité légale des individus d’éviter les actes susceptibles de causer du tort à autrui, un sujet mis en évidence par le récent incident du CHSLD Herron. Le 29 mars 2020, le Centre universitaire intégré de santé et de services sociaux (CIUSSS) de l’Ouest de l’île de Montréal a pris en charge le CHSLD Herron, une résidence pour personnes âgées à Dorval. À leur arrivée, ils ont découvert une scène épouvantable : les résidents n’étaient pas nourris ou soignés, et n’étaient pas séparés les uns des autres. Cet article explore le devoir des professionnels de la santé impliqués dans cet incident ainsi que leurs droits de refus d’effectuer un travail dangereux. De plus, cet article traite des éventuelles charges pénales qui pourraient être associées à cet incident, après avoir examiné les protections accordées aux professionnels de la santé lors de cette pandémie.
The recent COVID-19 pandemic has dominated all aspects of life in Canada, as it has on the international stage. In our attempt to limit its spread, the novel coronavirus (“COVID-19”) has hindered our ability to interact socially and behave in the public sphere as we would have otherwise. This issue has forced us to reshape our approaches to interacting with those who need assistance, such as the elderly and those in assisted-living communities. Healthcare workers are placed in positions that require them to look death in the face in attempts to serve an increasingly vulnerable population. From a Canadian legal perspective, this brings up the issue of duty of care, as owed by healthcare workers to their patients in these perilous conditions. A large number of healthcare workers have gone to great lengths to work for the healthy future of countless Canadians of all creeds, races, and ages. However, there have been some exceptions to the rule. In the midst of increased panic and fear of contracting COVID-19, there are accounts of negligence suffered by patients at the hands of their caregivers. In this paper, I will examine the issue of duty of care in regard to healthcare professionals, specifically during the COVID-19 pandemic, using the CHSLD Herron incident in Dorval in March of 2020 as a case study. Following a brief account of the incident, I will explore the Canadian legal standards for duty of care and how they might be affected by the coronavirus.[1] I will then explore issues surrounding the rights available to workers regarding refusal of unsafe work and their protests in Quebec. Finally, I will examine the manner in which the actions, or their lack thereof, as taken by the Herron CHSLD staff, may qualify as criminal negligence.
The details of the Herron incident are critical in contextualizing the reasonable standards of care for healthcare workers and their duties therein. On March 29th 2020, the Centre intégré universitaire de santé et de services sociaux (CIUSSS) de l'Ouest-de-l'Île-de-Montréal took over the care of CHSLD Herron, a seniors’ residence in Dorval, west of Montreal.[2] Former staff of the residence declared that at least a dozen residents of the care center had died of COVID-19 in the two weeks prior to the takeover, with a further 30 confirmed cases among the elderly residents.[3] Healthcare workers were shocked to see residents living unsegregated and in close quarters with those residents showing COVID-19 symptoms. Residents of the care center were found untended to and unfed. Some of them had soiled themselves, and diapers and beds had been lived in, filthy, for days.[4] The retirement home’s staff did not inform any authorities about the state of the residents, until the worker turnover day on the 29th of March exposed the stark reality of the situation. Alluding to the potential legal ramifications of this incident, Quebec Premier François Legault stated that “it looks a lot like major negligence” took place at the CHSLD Herron.[5] In summary, these workers were discovered not to be providing humane standards of living to their charges by not providing food to the residents and not maintaining a clean environment. In the next paragraphs, it will be argued that Herron’s elderly residents were being treated in a capacity that did not guarantee their safety from infection or danger, and that ultimately caused them bodily harm, as well as loss of dignity, and eventually, of life.
The duty of care that is expected of healthcare workers depends on a variety of factors. These include the different roles they take on, such as those of physicians, nurses, or volunteers, as well as the provinces in which they are employed.[6] Physicians are afforded legal protections that differ from those given to nurses or personal support workers in the operation of long-term care homes and residential group homes, as outlined by the Canadian Medical Protective Association.[7] Furthermore, legislation differs between Quebec’s civil law code and Canadian common law, as seen in the standards set for civil responsibility in the former, and negligence in the latter.[8] Due to the nature of the current extraordinary circumstances, I will be basing these standards on common grounds shared by healthcare professionals from all over Canada. As explained by legal scholars, Cara Davies and Randi Zlotnik Shaul: “There is limited case law, literature and legislation on … legal duty of care during a pandemic.”[9] The standard for duty of care for healthcare professionals is based on a consideration of whether the services provided fall under what a “reasonable” health worker would provide in the given circumstances. Legal scholar Ariel Schwartz has advised following general medical and legal doctrines prescribed in non-pandemic circumstances, but in instances where negligence or other civil torts may occur, it should be remembered that actions taken were in reaction to extraordinary conditions.[10]
Juxtaposed to the duty of care expected of healthcare professionals charged with the wellbeing of others is their right to refuse unsafe work. Davies and Shaul outline the four criteria that must be met in order for work refusal to be sanctioned. They are as follows:
1. Workers must honestly believe that their health or wellbeing is endangered. They cannot refuse to work for a reason unrelated to safety.
2. Workers must reasonably believe that their health or wellbeing is endangered. That is, another worker with the same training and experience would also believe that the circumstances represent an unacceptable hazard.
3. Workers must communicate their concerns to their supervisor in a reasonable and adequate manner. This usually requires workers to notify their supervisor of their refusal to work, and the reasons for their refusal, as soon as possible.
4. The danger must be sufficiently serious to justify the action; it must be immediate and more than a matter of repugnancy, unpleasantness or fear of minor injury.[11]
The information provided regarding the CHSLD Herron incident seem to indicate an adherence to the legal labour conventions cited above. This further indicates that had it not been for the healthcare workers’ unique professions and the consequences of refusing to carry out their work, they would have been legally justified in refusing to work in such hazardous circumstances. The following is an example of a legitimate reason for refusal of unsafe work: let us assume that one of the nurses was 80 years old, and herself was at a high risk of contracting COVID-19. She would be placed in a situation where she has a much higher likelihood of dying of infection if she went to work. Another example would be if a nurse had contracted the virus herself and refused to go to work for the sake of the residents.
Notwithstanding, there are limitations to the right to refuse work, as seen in a number of provinces and territories in Canada, namely Ontario, Nova Scotia, Yukon, and Quebec. The latter’s Act respecting occupational health and safety clearly outlines that “No worker may… exercise his right [to refuse unsafe or dangerous work] if his refusal to perform the work puts the life, health, safety or physical well-being of another person in immediate danger.”[12] Ontario’s Occupational Health and Safety Act goes so far as to specify that the right of refusal does not apply to “a person employed in the operation of (i) a hospital, sanatorium, long-term care home, psychiatric institution, mental health center or rehabilitation facility or (ii) a residential group home …”[13] While these may have seemed stringent in other circumstances, the high number of deaths and the undignified and inhumane conditions found at CHSLD Herron validate such restrictions.
While the extenuating circumstances in which the CHSLD staff found themselves should be considered, the on-site findings may culminate in criminal negligence. As outlined in the Criminal Code of Canada in Section 219:
219(1) Everyone is criminally negligent who (a) in doing anything, or (b) in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives of safety of other persons (2) For the purposes of this section, duty means a duty imposed by law[14]
According to the above criteria, the workers’ disregard for the lives of the persons whom they had been entrusted to care for qualifies as an omission of their duty and an example of criminal negligence. To prove how the lack of action in this incident falls under criminal rather than civil negligence, the mens rea of the workers involved must be considered. [15] The healthcare workers involved in this incident hold a profession whose principal duty is providing individuals the necessities of life, such as food, water, and a sanitary environment to Herron’s residents. Keeping in mind their positions and the experience they hold in their roles, there is no way that these workers could have reasoned that not feeding the residents nor maintaining sanitary conditions could have left them unharmed. Their actions represented a departure from the standard of care of a reasonable healthcare worker. Furthermore, in a situation where elderly persons are at a higher risk of death when contracting COVID-19, the lack of separation between infected and uninfected residents, and their placement in unsanitary conditions, are blatant examples of disregard for their safety. Left unfed and untended to, Herron’s residents were victims of reckless disregard for their health, dignity and wellbeing, which resulted in over a dozen deaths. The consequences for such actions are outlined in Sections 220 and 221 of the Criminal Code, which states the following:
220 Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (b) […] to imprisonment for life.[16]
221 Every person who by criminal negligence causes bodily harm to another person is guilty of (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or (b) an offence punishable on summary conviction.[17]
Despite the legal protections afforded to healthcare professionals during the ongoing COVID-19 crisis, a large number of people died at the Herron facility as a direct result of neglect of duty. Professional bodies such as the Canadian Medical Protective Association have attempted to provide legal defences to Canadian medical practitioners, as seen in their statement regarding COVID-19: “Physicians may be permitted in exceptional circumstances to refuse to practice if they reasonably believe that the work environment creates a legitimate unacceptable hazard that is not inherent to their ordinary work.”[18] However, in a situation where the very life and wellbeing of individuals depends on the care and attention provided to them, there must be restrictions set on when work refusals would be tolerated. The reality of the situation is that in spite of the ongoing pandemic, healthcare workers are still expected to provide basic necessities of life to those placed in their care. By failing to properly separate affected patients from unaffected ones, they created an environment in which COVID-19 could thrive and spread to all residents indiscriminately.
COVID-19 has affected all aspects of society, with the healthcare system on the frontlines of the global epidemic. Due to these unprecedented conditions, medical conventions and their accompanying legal frameworks were unprepared for the challenges presented by hazardous frontline working conditions. However, this does not justify negligence, nor should it validate eschewing a professional caregivers’ duties. The Herron incident is unfortunately one of many such cases that have occurred over the course of this pandemic. As it continues, both the Canadian legal system and the medical world will have to adopt solutions in the form of legislation and accommodations to ensure that the most vulnerable Canadians are treated with dignity and fairness even at the worst of times. For comparison, the last similar event took place close to a century ago during the Spanish flu epidemic of 1918. The absence of any sort of precedent during the era of Canadian judicial independence from the British Crown or since the development of provincial labor legislation has left Canada unprepared to address such issues. As such, we will have to learn from our current situation and rapidly and efficiently produce legislation that will protect our most vulnerable citizens.
(EN) Philippe Haddad is a student at Queen’s University in Kingston completing a Bachelor of Arts Honor Degree while majoring in History and minoring in Politics. Haddad specializes in North American social history as well as contemporary Middle Eastern history and policy. He hopes to pursue a career in the fields of academia or legal studies.
(FR) Philippe Haddad est un étudiant à l’Université de Queen’s à Kingston qui souhaite compléter son Baccalauréat ès arts d’honneur avec une spécialisation d’études en histoire et une mineure en sciences politiques. Haddad se spécialise en histoire sociale nord-américaine ainsi qu’en histoire et politiques contemporaines du Moyen-Orient. Il espère poursuivre une carrière dans le domaine universitaire ou légal.