On April 21, 2021 in response to the collapsing healthcare infrastructure in Ontario during the devastating third wave of the pandemic, the government issued an order under the Emergency Management and Civil Protection Act (the “Order”), that effectively authorized any regulated healthcare professional to provide forms of medical care in hospitals that is not normally within their scope of practice. The Order applies to all regulated health professionals in Ontario as well as health professionals licensed to practice in other Canadian provinces.
These individuals are authorized to engage in any aspect of the practice of any health profession. To do so, the following conditions must be met:
- The professional must be providing services to hospital patients;
- It is necessary for the professional to provide those services in order to respond to, prevent or alleviate the effects of the COVID pandemic;
- The services are consistent with the duties that have been assigned or the privileges that have been granted by the hospital (i.e. the hospital must approve of the professional providing the services); and
- The professional acts in a manner that is consistent with the measures that have been taken by the hospital under the initial health service providers emergency order.
Given the extraordinary implications of the Order, it provides that it operates despite the rules in a range of health regulatory legislation, collective agreement terms, and even practice standards of health profession Colleges.
However, the Order states that notwithstanding those exemptions, a member of one of Ontario’s health profession Colleges continues to be subject to their jurisdiction for “incompetence” that occurs while the member provides services under the Order.
In Ontario, Schedule 2 of the Regulated Health Professions Act outlines that a member of a College will be found to be incompetent “if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted.”
The implication of the Order is not entirely clear, since the Order specifically authorizes individuals to engage in medical care that is outside their scope of practice. Therefore, how issues of incompetence would be adjudicated in these circumstances is uncertain.
College of Nurses Standards
The Order was accompanied by a memo which states that hospitals are responsible to ensure that staff members are only assigned tasks or asked to deliver services that they are reasonably qualified to provide.If hospitals abide that rule, you should not find yourself in a position where you would be at risk of being incompetent in the care you are asked to provide. RPNs should note however, that in accordance with the College of Nurses (“CNO”) professional standards, they are responsible and accountable for their own knowledge, skills and judgment as a nurse. While the Order states that it applies despite any professional standards, that does not mean that your CNO professional standards no longer apply to you.
To clarify this, the CNO has made a statement about the Order which states in part:
While this order allows nurses to work outside of scope, nurses are still required to work within their knowledge, skill and judgment. The order does not permit nurses to practice outside of scope while they are working outside a hospital.
On its face, it appears the College is saying that while you may be asked to do things outside your legal scope, you still are responsible for monitoring your personal scope and that you should not be working outside of your knowledge skills and judgment no matter what you are requested to do by the hospital.
Just prior to the Order being issued by the government, the CNO had put an update on their Standards and Guidelines page which states the following:
You may be concerned about being able to maintain standards of practice, particularly when mobilized to work in other areas, and we want to assure you that the standard of care is always considered in context. The standard of care can evolve with the dynamic nature of the pandemic, including that resources may become scarce or absent.
In this situation, it will be important to make reasonable efforts to comply with any direction from the Chief Medical Officer of Health and your workplace policies and procedures pertaining to COVID-19 management. While CNO will continue to receive complaints and reports during the pandemic, we appreciate that nurses are always doing their best in every situation and we will assess all information with consideration to the circumstances in which nurses are working.
These words are comforting and welcome but should also be read in conjunction with the statement above which is clear you must still work within your knowledge, skills and judgment. It is incumbent upon the nurse to figure out what is within your knowledge, skills and judgment and only do things that fall within that window or scope.
When you are asked to perform an act or provide care which is outside of your knowledge, skills and judgment, it would be prudent to identify that you feel it is outside of your scope, that you need training, and to ask for the appropriate support and resources before agreeing to perform the act. If you are not provided with appropriate supports then it would be most prudent tell the hospital that you cannot work outside of your knowledge, skills and judgment, and that the CNO has made that clear to its members.
 Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Schedule 2, s. 52(1)