The “Reasonable” Standard: Healthcare Workers’ Duty of Care during the COVID-19 Pandemic and Limitations on the Right to Refusal of Work

References

Act respecting occupational health and safety, Compilation of Quebec Laws and Regulation 1979, c. S-2.1

Criminal Code of Canada, Revised Statutes of Canada 1985. c. C-46. Sections 219-221.

“Duty of Care Checklist.” Canadian Public Health Association | Association Canadienne de Santé Publique. CPHA. Accessed May 3, 2020. https://www.cpha.ca/duty-care-checklist.

Davies, Cara E. and Randi Zlotnik Shaul, “Physicians' legal duty of care and legal right to refuse to work during a pandemic.” CMAJ 182, no. 2 (2010): 167 – 170

Kirkey, Sharon. “As COVID-19 Crisis Worsens, Health-Care Providers Question How Much Mortal Risk They Should Be Asked to Take.” National Post, April 2, 2020. https://nationalpost.com/news/as-covid-19-crisis-worsens-some-health-care-providers-question-how-much-mortal-risk-they-should-be-asked-to-take.

MacFarlane, John. “Quebec Premier Says Death Toll at Montreal Seniors' Residence 'Looks a Lot like Major Negligence' | CBC News.” CBC News. CBC/Radio Canada, April 11, 2020. https://www.cbc.ca/news/canada/montreal/herron-residence-legault-1.5529914.

Occupational Health and Safety Act, Revised Statutes of Ontario 1990. c. 0.1

Olson, Isaac. “'It Was so Inhumane': Conditions in Dorval Seniors' Residence Prompt Investigation | CBC News.” CBC News. CBC/Radio Canada, April 10, 2020. https://www.cbc.ca/news/canada/montreal/west-island-staff-covid-19-1.5528956.

Schwartz, Ariel R. "Doubtful Duty: Physicians' Legal Obligation to Treat during an Epidemic." Stanford Law Review 60, no. 2 (2007): 657-94.

Notes

[1] Details about this incident are primarily based on a collection of reports and news articles from various Canadian media outlets, including the CBC and the National Post. The reasons for this are simply that as there is no legal case at the time of writing of this paper, information is being assembled as soon as it is being made available.

[2] Isaac Olson. “'It Was So Inhumane': Conditions in Dorval Seniors' Residence Prompt Investigation | CBC News.” CBC News. CBC/Radio Canada, April 10, 2020. https://www.cbc.ca/news/canada/montreal/west-island-staff-covid-19-1.5528956.

[3] Ibid.

[4] Olson, “It Was So Inhumane.”

[5]John MacFarlane. “Quebec Premier Says Death Toll at Montreal Seniors' Residence 'Looks a Lot like Major Negligence' | CBC News.” CBC News. CBC/Radio Canada, April 11, 2020. https://www.cbc.ca/news/canada/montreal/herron-residence-legault-1.5529914.

[6] Duty of care is a phrase used to refer to “The responsibility or legal obligation of a person or organization to avoid acts or omissions that could likely cause harm to others”, as explained by the Canadian Public Health Association (“Duty of Care Checklist.” Canadian Public Health Association | Association Canadienne de Santé Publique. CPHA. Accessed May 3, 2020. https://www.cpha.ca/duty-care-checklist.)

[7] The term physician as used throughout this paper and in accompanying sources refers to medical practitioners, doctors, and all others who have been educated and certified in this field. Their legal protections are described by the CMPA, who provide resources such as the Medical-Legal Handbook for Physicians in Canada.

[8] Despite the different sourcing and names of these law codes, it should be noted that courts have made very similar rulings on issues pertaining to this standard. However, it is important to make a note of the difference of the two law codes not only to recognize Canadian legal tradition, but for future legal considerations as well.

[9] Cara E. Davies and Randi Zlotnik Shaul, “Physicians' legal duty of care and legal right to refuse to work during a pandemic.” CMAJ 182, no. 2 (2010): p.167.

[10] Ariel R. Schwartz, "Doubtful Duty: Physicians' Legal Obligation to Treat during an Epidemic." Stanford Law Review 60, no. 2 (2007): 657-94.

[11] Davies and Shaul, p. 169.

[12] Act respecting occupational health and safety, Compilation of Quebec Laws and Regulation 1979, c. S-2.1, 1979, c.63, Section 13.

[13] Occupational Health and Safety Act, Revised Statutes of Ontario 1990. c. 0.1 Section 43, subsection 2(d).

[14] Criminal Code of Canada, Revised Statutes of Canada 1985. c C-46. Section 219

[15] Mens rea refers to state of mind that is held when committing a criminal act.

[16] Criminal Code, Section 220.

[17] Ibid, Section 221.

[18] Sharon Kirkey. “As COVID-19 Crisis Worsens, Health-Care Providers Question How Much Mortal Risk They Should Be Asked to Take.” National Post, April 2, 2020. https://nationalpost.com/news/as-covid-19-crisis-worsens-some-health-care-providers-question-how-much-mortal-risk-they-should-be-asked-to-take