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Court places decision making for use of PPE in long-term care homes solely in the hands of nurses

Author(s): Michael Watts, Allan Wells, Susan Newell, Marty Putyra

Apr 27, 2020

For further information on the changes below or other health matters, please contact one of the authors above or any member of our Health Industry Group.

On April 23, 2020, the Ontario Superior Court issued an order requiring four long-term care homes to provide nurses at their facilities access to fitted N95 facial respirators and other PPE when assessed by a nurse to be appropriate and required.  The order, which is to remain in effect pending a final disposition of grievances against the long-term care homes, is not qualified by the available supply of N95 facial respirator masks at the facility. 

The decision in Ontario Nurses Association v Eatonville / Henley Place[1] involved the Ontario Nurses’ Association (ONA), representing registered nurses employed by long-term care homes (the Applicants), seeking a temporary injunction to address what the Applicants described as serious health and safety problems at these long-term care homes.[2]  The decision  is available here [PDF].  ONA had commenced grievances under their collective agreement against all four long-term care homes.

The Applicants had asked that the four long-term care homes take any and all reasonable precautionary measures to ensure that nursing staff receive health and safety protections as directed by the Chief Medical Officer of Health for Ontario (CMOH) in Directives #3[3] and #5[4] issued pursuant to the Health Protection and Promotion Act, RSO 1999, c H7.[5]

The Applicants’ concerns were focused on matters relating to the nurses’ inability to access N95 respirators and their perception that the long-term care homes had failed to implement appropriate administrative measures regarding isolating and cohorting of residents and staff during the COVID-19 crisis.

Despite hearing expert evidence provided by Dr. McGreer regarding the world-wide shortage of N95 respirator masks and the need to conserve N95 respirator masks and allocate their use based upon risk, the judge stated:

While it is the case, as the Respondents and the Attorney General submit, that the Directive calls for a balance as between the needs of the moment and the needs of the institution and the future, it is the nurse at point of care that is to do that balancing. The nurse is not directed to call management personnel to weigh in on the issues at point of care.[6]

As a result, the decision provides that the nurse at the point of care must have “the final word” at each of the four long-term care homes on whether the delivery of care requires the use of specific PPE (including N95 respirator masks) is to be made solely by the nurse at the point of care.[7]  This may not reflect how complex decisions regarding PPE are generally made. 

Employers have a statutory obligation to take “every precaution reasonable in the circumstances for the protection of a worker” [emphasis added] (which is discussed in more detail in our previous Osler Updates available here and here). Typically, healthcare facilities have systems in place to ensure that the reasonableness of decisions are supported by input from various stakeholders, including the joint health and safety committee, clinical staff who have reviewed recommendations from various governmental authorities and considered recent research and best practices, and management who are collectively responsible for ensuring that reasonable precautionary measures are put in place to protect workers. [8]   In the context of the pandemic, it is generally expected that such measures would take into account the organization’s infection control plan and the potential need to conserve equipment for the services that present the highest risk. The order from the Court places this complex decision-making process solely in the hands of the point of contact nurse without any organizational checks and balances.

While the decision applies only to the four long-term care homes until the final disposition of their grievances, ONA has already advised its members that their individual point of care risk assessment determines the PPE they require.  In response to this interpretation of Directive #5, we recommend that hospitals, long-term care facility operators and other healthcare providers seek legal advice. 

 

[1] 2020 ONSC 2467. [ONA]

[2] The applicants are the Ontario Nurses’ Association, Vicki McKenna (RN), Beverly Mathers (RN). The respondents are Eatonville Care Centre Facility Inc., Anson Place Care Centre Facility Inc., Hawthorne Place Care Centre Facility Inc., Rykka Care Centres GP Inc., Rykka Care Centres II GP Inc., Responsive Management Inc., Responsive Group Inc., Henley Place Limited and Primacare Living Solutions Inc. The Attorney General of Ontario appeared as intervener.

[3] Directive #3 for Long-Term Care Homes under the Long-Term Care Homes Act, 2007 issued under section 77.7 of the Health Protection and Promotion Act (April 15, 2020), available at:  http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/directives/public_hospitals_act.pdf.

[4] Directive #5 for Hospitals within the meaning of the Public Hospitals Act and Long-Term Care Homes within the meaning of the Long-Term Care Homes Act, 2007 issued under section 77.7 of the Health Protection and Promotion Act (April 10, 2020), available at: http://www.health.gov.on.ca/en/pro/programs/publichealth/coronavirus/docs/directives/public_hospitals_act.pdf.

[5]   Health care providers and health care entities must comply with directives issued by the CMOH under the Health Protection and Promotion Act.  “Health care provider or health care entity” means:  (i) a regulated health professional or a person who operates a group practice of regulated health professionals; (ii) a service provider  within the meaning of the Home Care and Community Services Act, 1994 who provides a community service to which that Act applies; (iii) a hospital within the meaning of the Public Hospitals Act, a private hospital within the meaning of the Private Hospitals Act, a psychiatric facility within the meaning of the Mental Health Act or an independent health facility within the meaning of the Independent Health Facilities Act; (iv) a pharmacy within the meaning of the Drug and Pharmacies Regulation Act; (v) a laboratory or a specimen collection centre as defined in section 5 of the Laboratory and Specimen Collection Centre Licensing Act; (vi) an ambulance service within the meaning of the Ambulance Act; (vii) a paramedic under the Ambulance Act; (viii) a home for special care within the meaning of the Homes for Special Care Act; (ix) a local health integration network within the meaning of the Local Health System Integration Act, 2006; (x) a long-term care home under the Long-Term Care Homes Act, 2007; (xi) a centre, program or service for community health or mental health whose primary purpose is the provision of health care; and (xii) a prescribed person or entity.

[6] ONA at para 74.

[7] Ibid.

[8] On April 24, 2020, the Ontario Labour Relations Board released its decision regarding applications filed by the Service Employees International Union, Local 1 Canada in Ontario Labour Relations Board cases no. 0091-20-HS, 0092-20-HS, 0093-20-HS with respondents including Eatonville Care Centre, Eatonville Care Centre, Altamont Community Care Centre, respectively (collectively, the “OLRB Respondents”).  Among other things, in connection with PPE measures the decision requires that (i) a Minister of Labour, Training and Skills Development inspector shall physically attend the OLRB Respondents’ workplaces to meet with the workplace parties and conduct inspections under the OHSA on a weekly basis for a two-month period; (ii) the OLRB Respondents are each required to assess its available supply of PPE on an ongoing basis and make all efforts to immediately obtain appropriate PPE, including medical gowns, gloves, N95 masks, surgical masks and face shields; (iii) the ORLB Respondents are directed to follow Directives #3 and #5; and (iv) the OLRB Respondents are required to immediately provide a copy of their written masking policies to the Joint Health and Safety Committee and the Union.

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