This article examines the separate, potentially competing, duties of care that are owed by hospital boards of directors to staff and patients during infectious disease outbreaks, and how directors (and officers and supervisors) may becomepersonally liable for failing to discharge their statutory duties according to the requisite standard of care, particularly as could result by relying on government or government agency guidelines or directives (collectively, guidelines). Although this analysis is focused on Ontario, the considerations are relevant to all hospitals in common-law jurisdictions.

Recently, the President of the Canadian Federation of Nurses Unions (the Nurses Unions), Linda Silas, criticized the Public Health Agency of Canada’s Ebola guidelines for “falling far short” of the Ontario Ministry of Health and Long-Term Care (the MOHTLC) guidelines:

  • We urge (the federal health agency) to go with the precautionary principle: when you’re not sure, you protect... We made it clear that the Ontario directives should be the minimum of what the country is looking at, and that we will accept nothing less.

These comments underscore two important lessons from Ontario's SARS experience that all hospital directors should consider when discharging their board’s oversight of the measures implemented to protect staff when caring for patients who may have infectious diseases:According to the Nurses Unions, the federal guidelines do not follow the “precautionary principle” (defined below) because, among other things, they disregard concerns about the potential for aerosol transmission of Ebola, and fail to mandate a minimum nurse staffing ratio of two nurses for every Ebola-infected patient.

  • In issuing guidelines as policy, governments do not owe a private duty of care to staff or patients; therefore, hospitals must conduct their own assessment of whether particular guidelines constitute reasonable precautions in their particular circumstances.
  • Hospitals, and their directors, officers and supervisors owe an elevated statutory duty of care to “take everyprecaution reasonable in the circumstances” to protect staff from harm according to the precautionary principle that reasonable steps to reduce risk should not await scientific certainty (as further described below).

Understanding these lessons requires a review of the SARS litigation that followed the 2003 outbreak, the SARS Commission’s Final Report (the SARS Report), and the legislative framework that governs public hospitals and imposes duties on their boards of directors.

It is arguable that hospitals, and their directors, officers and supervisors, owe an elevated precautionary duty of care under Ontario’s Occupational Health and Safety Act (the OHSA) to protect staff according to the precautionary principle, and that this duty is paramount to the duty of reasonable care owed by hospitals, and their directors and officers, to patients under Ontario’s Public Hospitals Act (the PHA).

Although there is no judicial consideration on the precautionary standard of care in the context of the paramountcy of the OHSA over the PHA, hospitals can anticipate that these arguments will be made in any litigation alleging a failure to protect staff from infectious diseases.

No Government Private Duty of Care

After the 2003 SARS outbreak in Ontario, affected nurses, patients and their families commenced five actions1 against the Government of Canada, the Government of Ontario and the City of Toronto, as well as hospitals and physicians (collectively, the SARS litigation).2  Not every action named all levels of government or pleaded the same claims. Generally, however, the claims against Ontario and Toronto included “issuing confusing contradictory or otherwise inappropriate directives,” and the claims against Canada included “approving or acquiescing in the decision of Ontario and Toronto to reduce infection control systems."3

Abarquez v. Ontario (Abarquez) was the only class action by nurses and their families, and although it named only Ontario, it included claims against the MOHLTC, the Provincial Operations Centre (the POC) and the Ministry of Labour (the MOL), including:

  • that the MOHLTC and the POC failed to provide nurses with timely information about SARS;
  • that the directives Ontario issued to hospitals were inadequate and exposed the plaintiffs to the risk of contracting SARS;
  • that the MOHLTC or POC was an employer/supervisor under the OHSA and failed to ensure the nurses’ health and safety in the hospitals;
  • that the MOL failed to enforce the directives and occupational health and safety standards; and
  • that Ontario breached the nurses’ rights to life, liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms by exercising discretion in bad faith and for improper motives.

In response to the SARS litigation, each level of government brought preliminary motions to have the actions against them dismissed because it was “plain and obvious” that there was no cause of action where the government does not owe a private duty of care to staff or patients. The motions were heard together by the Ontario Superior Court of Justice.

Canada successfully argued that it was acting in a policy-making capacity during the SARS outbreak (not an operational one), and therefore it did not owe a private duty of care. Toronto successfully argued that it was the Board of Health – an arm’s-length body established under Ontario's Health Protection and promotion Act that had issued directives during the SARS outbreak – and therefore Toronto did not owe a private duty of care.

Ontario, however, was not successful in the first instance; the court felt it was not “plain and obvious” that Ontario was acting in a policy-making role alone when it issued declarations, directives and guidelines during the SARS outbreak. The court focused on the allegation that Ontario lifted the emergency declaration prematurely in bad faith for improper motives.4

Ontario successfully appealed the decisions to the Ontario Court of Appeal. The court dismissed the actions against Ontario, ruling that to find Ontario owed a private duty of care to staff or patients would place it in conflict with its overarching public duty of care owed to the public at large.5 Because the plaintiffs could not demonstrate that they had “direct dealings” with Ontario (such as guidelines of specific application to the plaintiffs), they could not establish Ontario was acting “operationally” or that it had “proximity” to them sufficient to find that a private duty of care was owed in the circumstances.

Even if there was some prima facie evidence of proximity, the court reasoned that Ontario was required, as a matter of policy, to address the interests of the public at large rather than focus on the particular interests of the plaintiffs. Decisions relating to the imposition, lifting or re-introduction of measures to combat SARS are examples of decisions that must be made in the general public interest rather than in the interests of a narrow class of individuals.

Because the court confirmed in the SARS litigation that the government does not owe a private duty of care to protect staff, they cannot be sued in negligence for harm that may result to staff who follow guidelines which may, in hindsight, have been deficient. In contrast, it is clear that hospitals, and their directors, officers and supervisors do owe a private duty of care to “take every precaution reasonable in the circumstances” to protect staff under the OHSA. In fact, the court inWilliams v. Canada6(Williams), the lead case in the SARS litigation, pointed out that healthcare facilities and professionals are liable for “negligence at the operational level”:

I would add that this result does not leave the plaintiff without a remedy if she can show that she suffered harm as a result of negligence at the operational level on the part of those responsible for the application and enforcement of the Directives, namely, health care facilities and health care professionals.

Notably, there is no corresponding protection from liability under the OHSA, which in light of the paramountcy of the OHSA (discussed below), suggests that directors will not be protected from liability flowing from a proven breach of the duty or standard of care owed under the OHSA, by pointing to the protection from liability under the PHA.Accordingly, hospital directors must satisfy themselves that guidelines constitute reasonable precautions in the circumstances of their particular hospital. Failure to do so could attract personal liability. Although hospital directors are protected from liability for carrying out their duties under the PHA in good faith, the protection is lost when directors act in bad faith.7

The Precautionary Principle and the Paramountcy of the OHSA

With the SARS litigation confirming that hospitals cannot rely on guidelines to defend against actions alleging a failure to protect staff, hospital directors must appreciate not only the separate duties, but the separate standards of care that are owed to staff and patients. These standards can only be appreciated in the context of the precautionary principle and the “paramountcy” of the OHSA over the PHA.

The subtext of the claims pleaded against the government and the affected hospitals in the SARS litigation was that they failed to observe the precautionary principle. In addition to the claims pleaded against the government in Williams, for example, consider the claims pleaded against the hospitals (and physicians) in Abarquez:

  • They failed to have any adequate plan of action to deal with the control, diagnosis and treatment of SARS.
  • They failed to require the use of masks, gowns and gloves by their servants, agents and/or employees during the treatment of patients diagnosed with respiratory symptoms.
  • They could have and should have immediately isolated all patients known or suspected to have SARS, and they failed to do so.
  • They failed to appreciate and protect members of the public against a disease which they knew or should have known was both readily communicable and potentially fatal.
  • They failed to plan or implement a system of measures to protect either patients or visitors from the foreseeable and serious risk of a disease which they knew or should have known was readily communicable and potentially fatal.8

In their defence, the affected hospitals claimed they took all reasonable precautions in the circumstances to protect the plaintiffs from infection by SARS “in accordance with accepted standards of such care, and consistent with the scientific knowledge of SARS available at the time."9 The hospitals’ reliance on “scientific knowledge” refers in part to the scientific debate at the time over whether N95 respiratory masks were required to protect nurses from possible aerosol transmission of SARS, when it was not yet known whether SARS was airborne. Ironically, this same debate is now taking place over whether Ebola is, or may become, airborne.

In the SARS Report, Mr. Justice Campbell stated that it was irrelevant whether SARS was scientifically proven to be airborne because, when the issue is safety, reasonable steps to reduce risk (such as the prophylactic use of N95 respiratory masks)should not await scientific certainty. This is a restatement of the precautionary principle previously articulated by Mr. Justice Krever in The Commission of Inquiry on the Blood System in Canada:

Where there is reasonable evidence of an impending threat to public health, it is inappropriate to require proof of causation beyond a reasonable doubt before taking steps to avert the threat.

Although the principle of an elevated standard of care (reasonable duty of care elevated to precautionary duty of care) has not yet been judicially considered; hospital directors and officers already have a well-established general corporate duty to exercise the care, diligence and skill that a reasonably prudent person would exercise in comparable circumstances (duty of care).In application, the precautionary principle must guide hospital directors in ensuring that staff safety concerns are taken seriously, and that staff are made to feel safe, even if that means implementing or continuing heightened safety precautions that some experts may argue are not scientifically proven as being “necessary.”

As discussed below, there are other specific statutory requirements that impose duties on hospitals and their directors and officers to exercise their “duty of reasonable care” to approve and oversee the implementation of systems and measures to protect staff, patients and visitors from the foreseeable and serious risk of a disease which they know, or should know, is readily communicable and potentially fatal.

Public Hospitals Act (Ontario)

Under the PHA’s Hospital Management Regulation, hospital boards are primarily responsible for the governance and management of hospitals. Boards “shall”: (i) monitor activities in the hospital for compliance with the PHA, the regulations and the hospital’s bylaws; and (ii) ensure that hospital leadership develops plans to deal with (a) emergency situations that could place a greater than normal demand on the services provided by the hospital or disrupt the normal hospital routine (pandemics), and (b) the failure to provide services by persons who ordinarily provide services in the hospital (labour disruptions).

Hospital boards “shall” also establish procedures under the hospital bylaws for: (i) a safe and healthy work environment in the hospital; (ii) the safe use of substances, equipment and medical devices in the hospital; (iii) safe and healthy work practices in the hospital; (iv) the prevention of accidents to persons on the premises of the hospital; and (v) the elimination of undue risks and the minimizing of hazards inherent in the hospital environment.

Hospital boards “shall” also: (i) establish and provide for the operation of a health surveillance program including a communicable disease surveillance program in respect of all persons carrying on activities in the hospital, and (ii) provide for the isolation of patients “as is necessary in the circumstances.”

As noted above, directors may be personally liable for the board’s failure to carry out the PHA mandates in good faith. The Ontario Court of Appeal has stated that directors will be found to have acted in bad faith where the board has exercised its statutory decision-making function under the PHA for an ulterior purpose and not for the public good in circumstances where it had to know that its conduct would likely injure others.10 This suggests a relatively low threshold.

Occupational Health and Safety Act (Ontario)

In addition to the PHA, hospital boards are also subject to the OHSA. Under the OHSA, hospital directors and officers have a general duty to take “reasonable care” to ensure that the corporation complies with: (i) the OHSA and the regulations, (ii) orders and requirements of inspectors and directors; and (iii) orders of the MOL.

Hospitals as “employers,” along with their “supervisors,” owe specific duties of care to take “every precaution reasonable in the circumstances for the protection of a worker.” In light of the general duty to ensure compliance with the OHSA owed by directors and officers, it is arguable that they too effectively owe these specific precautionary duties to staff.

In analyzing the interplay between the duties owed by hospital directors under the PHA versus the OHSA, it is critically important to note that the OHSA expressly provides that its provisions “prevail” over any general or special Act in Ontario, including the PHA:

2... (2) Despite anything in any general or special Act, the provisions of this Act and the regulations prevail.

It is therefore arguable that as a matter of statutory interpretation, the duty of care owed by hospital directors to protect staff under the OHSA is paramount to the duty of care owed by hospital directors to patients under the PHA. This paramountcy, when considered in light of use of the word “precautions” in the OHSA, suggests that the OHSA already incorporates the precautionary principle into the standard of care which hospitals, and their directors, officers and supervisors must meet in discharging their duties to protect staff under the OHSA.

This view is enhanced by the SARS Report’s recommendation that the precautionary principle be adopted as a “guiding principle throughout Ontario’s health, public health and worker safety systems.” Accordingly, hospital directors must be prepared for circumstances where competing duties may require hospital boards to prioritize staff safety above patient care in developing or approving policies or guidelines under the business judgement rule. The Supreme Court of Canada has acknowledged that while the duty to act in the best interests of a corporation includes a duty to treat all stakeholders affected by corporate actions equitably and fairly, situations may arise where it is impossible to accommodate all stakeholders.11

Recommendations

In preparing for a possible Ebola outbreak in Ontario, what constitutes “reasonable precautions in the circumstances” to protect staff is for hospital boards to develop and implement systems and measures to protect staff according to the precautionary principle, and to conduct their own assessment of whether particular guidelines constitute reasonable precautions in their particular circumstances.12 Certainly, that is the standard advocated by the Nurses Unions, and is the standard that hospital boards can expect will be pleaded in any litigation arising from a failure to protect staff from infectious diseases such as SARS or Ebola in the future.

Given the severity of the risk13 and corresponding liability14 arising from the threat of Ebola, it is recommended that hospital boards require their hospital’s administration to regularly report to the board that the hospital is in substantial compliance with the PHA and the OHSA, and that preparedness for infectious diseases (including Ebola) has been implemented according to the precautionary principle, to a standard that is responsive to the hospital’s particular circumstances and level of risk. Although such reports would not in itself satisfy the duty of care requirement, receiving such reports is a reasonable oversight measure that will provide the board with an opportunity to remain informed and where appropriate, follow up with management and ask questions regarding the systems and measures that have been and are being implemented to protect staff and patients from infectious diseases.

Additionally, in light of the significance of the competing stakeholder interests between staff and patients, and the consequences that may result from prioritizing staff safety above patient care, hospital boards should ensure that the balancing of these competing interests is taken very seriously and are thoroughly documented (for example, through board papers, reports and minutes) in manner that reflects that the board has acted with due care, good faith and in the best interests of the hospital and that the process undertaken by the board in arriving at its decision would meet a court’s scrutiny that the board exercised appropriate business judgement.15

In preparing for Ebola in the context of the lessons learned from SARS, hospital directors should not forget the ultimate purpose of the SARS Commission, which was to “ensure that the health of Ontarians is protected and promoted and that the risks posed by SARS and other communicable diseases are effectively managed in the future.” The future is now.