Ethical Practitioner [MODULE 3]-

NURS1093
The Canadian Legal System

Very often, an absolute solution to a problem is elusive, and legal

rules and principles yield imperfect compromise solutions. The legal
and social interrelationships between individuals and institutions are
becoming more complex in Canadian society. Thus, nurses with a working
knowledge of the legal system are better able to understand and comply
with the rules and regulations that govern their profession, their
relationships with other health care practitioners, and the health care
system.

Nurses must understand their rights as well as their own professional

obligations to protect or respect these rights. Also, like all Canadians, under
the Charter of Rights and Freedoms, nurses have the right to privacy
and respect, and to freedom of expression—the right to think, say,
write, or otherwise act in accordance with their beliefs.

Society holds nurses to high standards of professional, moral, and

ethical competence, but it also affords them certain rights and
privileges. The law strives to keep Nurses Rights and Patients rights and
interests in constant balance.

The law influences many aspects of the professional practice of

nurses.

For example, the law:

■ Regulates the education and licensing of nurses.

■ Clarifies the nurses’ duty toward patients, the public, and each other.
■ Provides a forum for resolving disputes and conflicts.
■ Clarifies processes related to compensatory justice when patients suffer
injury as a result of the negligence of a nurse who fails to meet an accepted
standard of care.
■ Establishes legislation related to the rights of patients, including consent,
confidentiality, medical assistance in dying, reproductive technologies, and
organ donation.
■ Outlines the civil and criminal consequences that can flow from a breach of
such laws and the importance of evidence, such as accurate and timely
documentation. Keatings, M., & Adams, P. (2024)

Natural Justice and Procedural Justice

Remember that we use reason to discern what is “good,” “just,” and

“morally right” behaviour.

One of the main principles of this natural law is that all human
beings must be treated fairly and consistently. This means that a
person must be given an opportunity to defend himself or herself and to
have his or her “side of the story” considered or heard by the persons or
body charged with reviewing or adjudicating upon that person’s conduct.

Natural justice gives rise to procedural rights and fairness in

both disciplinary and legal proceedings. These rights include the right
to be informed of the allegations of misconduct, to be informed of
the time and place at which that conduct will be reviewed, to
be given an adequate opportunity to prepare and present evidence
and raise arguments in defence of one’s actions, and to have one’s
case heard before an impartial and objective decision-making body.

Nurses who are charged with allegations of professional misconduct by their

regulatory body, have these rights afforded to them.

All Nurses are entitled to due process and to have their legal rights under
the Charter of Rights and Freedoms respected and enforced.

Due process is a feature of justice that encompasses the notion that all
people are equal before the law and are entitled to the same rights and
benefits arising from the law. This means that your social status, economic
status, race, religion, gender or any other factor are not used to treat you
differently or biased.

Due process also encompasses the concept that the Crown will
strictly follow the law, affording every person the same opportunity to
know the evidence against them and the case they have to meet
which would result in the dismissal of criminal trials where the Crown has
failed to disclose potentially relevant evidence to the defence.

The rule of law means that those who are charged with administering and
enforcing laws will behave in accordance with them, that they will not
overstep or act beyond their legal authority, and that their decisions
will be respected and complied with by members of society and persons in
positions of authority.

The laws of inheritance, and so forth, are formally written—or, as

lawyers say, codified—in a single document known as a civil
[Link] and judges view this code as the chief source of all rules
and principles necessary to resolve disputes or legal issues.

French Civil Law: Quebec was governed exclusively under French civil law

English Common Law: the term common law describes a system based
on rules, principles, and doctrine developed by English judgesover
time and which was meant to be applicable to all the people in
England. These legal rules and principles emerged from the decisions
of both trial and appeal courts over centuries.

The law was contained in a large collection of judgments, or “case

law,” derived from these judicial rulings.

All jurisdictions in Canada, except Quebec, rely on the English

common law tradition as the basis of their legal system. Quebec has
continued to use the traditions of the French civil law system in
many areas of the law.

The Charter of Rights and Freedoms supersedes all precedent and

all statute law unless the limitation meets the strict tests in the
Charter. See example in Textbook for clarity.

Civil Lawsuits

In common law, when any applicable existing precedent of a superior

court exists, an inferior court is bound to decide cases by using
the same legal principles and rules pronounced by the superior
court in cases with similar circumstances. This is called the doctrine of
stare decisis. Stare decisis is a Latin phrase that means “to abide by the
decision” (Stuart, 1982, p. 7). Because an inferior court (usually a trial
court) is judicially subordinate to an appellate (appeal) court in the
hierarchical court structure, it is bound to follow the decisions and
precedents of that higher court.

For example: the trial level court in Ontario, in 2018, is bound to follow the
decisions of the Ontario Court of Appeal when the previous decision is
relevant and involves similar facts. The Ontario Court of Appeal is bound to
follow the decisions of the Supreme Court of Canada in the same way.
The law strives to be as consistent as possible. Consistency is achieved
by applying the same legal principles in similar circumstances in a similar
manner over time.

Common law strives to be as predictable as possible. If lower courts

were not bound to follow the decisions and precedents of higher courts, then
the outcome of a given case would be unpredictable.

Predictability and Consistency of the law are seen as conducive to a

well-ordered society in which people know their rights and obligations
toward one another.

The Legislative Process

Canada’s government comprises three branches:

(1) the judicial branch, or the courts that apply the law impartially
to resolve disputes between individuals or an individual and the
state

(2) the executive branch, or the Queen and her ministers, who
enforce the law; and

(3) the legislative branch, which consists of Parliament and the

provincial legislatures
FIG. 4.1 The three branches of government. Keatings, M., & Adams, P. (2024)

Parliamentary and provincial statutes usually contain a short title—for

example, the Regulated Health Professions Act

Division of Legislative Powers

The federal government plays an active role in health care through its
funding activities, transfer payments to the provinces, and federal/provincial
arrangements. A major federal law in this area is the Canada Health Act
(1985).

Health care, however, is largely an area of provincial

responsibility under the Canadian Constitution (Constitution Act, 1867,
s. 92(7)). (Specific provincial legislation regulating the nursing will be
addressed in a subsequent section of this module.) The provinces, through
their ministries of health, administer and regulate health care systems within
their boundaries. This includes such matters as the establishment,
administration, and funding of hospitals and clinics; regulations governing
public hospitals and private health care institutions, such as nursing homes,
long-term care facilities, and the like; and public health insurance.

The provinces also regulate health care

professionals and professional self-governing bodies ( such as the
CNO) through their powers to make laws governing property, civil rights,
and hospitals.

Civil Law:

Civil law refers to the body of rules and legal principles that govern
relations, rights, and obligations among individuals, corporations,
or other institutions. It is separate and distinct from criminal
law, which is chiefly concerned with relations between the individual and the
state and the breach of the Criminal Code.

Example: the patient and his family would have the right to sue the nurse
individually, in her capacity as an employee of the hospital, and the hospital
for negligence.

The laws governing an intentional or non-intentional wrongful act that causes

damage or injury to another’s person, reputation, or property are called tort
laws. This case is essentially a private dispute between two sets of
individuals seeking redress in the courts.

Lawsuits
In Canada, a lawsuit is not usually the first step in an attempt to
resolve a dispute. When harm is done as a result of error on a health care
professional’s part, then often timely disclosure to the patient or family and
an apology may prevent such legal action. Otherwise, informal attempts
to resolve the problem may include discussions between the parties
through mediation or arbitration or other complaint mechanisms.
Lawyers should be engaged in the early stages to resolve the dispute without
resorting to the courts. If this fails, a court action may be started by the
aggrieved party.

Criminal Law

Most criminal law is contained in the Criminal Code of Canada

(1985), which was originally enacted by Parliament in 1892. It is a lengthy
statute containing a comprehensive and detailed list of criminal offences and
a code of criminal procedure. The Criminal Code has been amended and
revised many times.

Classes of Criminal Offences

There are three classes of criminal offences in the Criminal Code of Canada
(1985):

■ Indictable offences
■ Summary conviction offences
■ Dual procedure (or hybrid) offences

Indictable offences are generally the most serious type of offence.

These include murder, manslaughter, attempted murder, criminal negligence
causing death, robbery, theft of property having a value of over $5,000,
treason, and conspiracy to commit an indictable offence.

The Presumption of Innocence

In Canada, as in most common law based democracies, an accused person
is considered innocent until proven guilty. Not only is this principle
enshrined in the Criminal Code (s. 6(1)(a)), but more significantly, it is also a
fundamental right guaranteed in the Canadian Charter of Rights and
Freedoms (1982). Section 11(d) of the Charter reads:

II. Any person charged with an offence has the right: ... (d) to be presumed
innocent until proven guilty according to law in a fair and public hearing by
an independent and impartial tribunal.

The Constitution of Canada

With the enactment of the Canada Act, 1982, by the Parliament of the United
Kingdom, Canada was given the power to amend its Constitution.

Canada’s Constitution includes a Charter of Rights and Freedoms,

which sets forth the basic legal and democratic rights of Canadians.
These are rights that the government cannot infringe upon unless it
has a justifiable reason. Any governmental action or law that breaches
the Constitution or a person’s constitutional rights is itself illegal and
invalid.

A government neither is above the law, nor is it immune from the law’s
reach. It must always act legally. This is an adjunct to the principle of the rule
of law and of due process, discussed above.

The Charter of Rights and Freedoms

Fundamental Rights
Canada’s Charter of Rights and Freedoms is an entrenched (integral) part of
its Constitution. It codifies as constitutional law many of the fundamental
rights and freedoms enjoyed by everyone in Canadian society, including
freedom of religion and conscience (Charter, s. 2(a)), freedom of thought and
expression (Charter, s. 2(b)), freedom of the press (Charter, s. 2(b)), freedom
of peaceful assembly (Charter, s. 2(c)), and freedom of association (Charter,
s. 2(d)).

Democratic Rights
The Charter also protects democratic rights, such as the right of citizens (i.e.,
noncitizens are not entitled to these particular rights) to vote
(Charter, s. 3), the provision that no Parliament or provincial legislature may
continue for more than 5 years from the date of the last election (Charter, s.
4(1)), and the requirement that Parliament or a provincial or territorial
legislature sit at least once every 12 months (Charter, s. 5). These particular
rights are meant to ensure that governments remain responsible and
accountable to the electors and do not become tyrannical.

Mobility Rights
As well, Canadian citizens have the right to enter, remain in, and leave
Canada, as well as to move and to take up residence in any province to
pursue a livelihood (subject to laws providing for reasonable residency
requirements in that province) (Charter, s. 6). These are called mobility
rights.

Legal Rights
Legal rights. These rights are guaranteed to all persons in Canada
regardless of citizenship. These include the right to life, liberty, and
security of the person (Charter, s. 7), the right to be secure against
unreasonable search and seizure (Charter, s. 8), and the right not to be
arbitrarily detained or imprisoned (Charter, s. 9).

Example, the police in Canada do not have the right to arrest a person
because they do not agree with that person’s political views or fear that such
person may engage in behaviour that is not illegal but which the police,
other government officials, or politicians might find objectionable or
offensive. Likewise, the authorities do not have the right (as they do in many
totalitarian countries) to apprehend a person and hold him or her in prison
for an indefinite period without a trial or specific criminal charges being laid.

Equality Rights
Finally, all persons in Canada are equal before the law, regardless of race,
gender, national or ethnic origin, colour, religion, age, and mental or physical
disability (Charter, s. 15(1)). The Supreme Court of Canada has also held that
discrimination on the basis of a person’s sexual orientation is prohibited
under this section of the Charter.

Language Rights
The Charter also contains minority language education rights and states that
French and English are the official languages of Canada (Charter, s. 16(1)).

Supremacy of the Charter

Because the Charter is part of the Canadian Constitution (Charter, s. 52(2)),
and the Constitution is the supreme law of Canada (Charter, s. 52(1)), any
law that is inconsistent with that supreme law has no force or effect. This
means that any such law is nonexistent, as if it had never been passed, and
any action taken pursuant to it may be declared illegal by the court that
rules on its constitutionality. However, all laws are presumed to be
constitutionally valid until the law is determined to be invalid by a court.

The Notwithstanding Clause

Although any statute law enacted in Canada is subject to the Charter, it is
possible for Parliament or a provincial or territorial legislature to
override the Charter by invoking the notwithstanding clause of the
Constitution. This clause provides that a law, even one contravening the
Charter, may apply for up to 5 years. The 5-year limitation is designed to
ensure that rights are not permanently infringed (violated) by a law. After 5
years, the notwithstanding clause expires insofar as it applies to that
particular law, unless it is invoked again.

Now that you know what rights Canadians and Individuals who are living in
Canada but who are not Canadian Citizens have under our laws, what duties
and obligations do you have as a professional Nurse to uphold and ensure
their rights are respected?

Regulation of the Nursing Profession

We explored the Canadian legal system in the previous screen, including the
rights afforded to Canadians and Individuals living in Canada. We will now
explore more closely the Regulation of the Nursing Profession to better
understand our obligations, and accountability under the law to our patients,
and our profession.

Nurses throughout the country are held accountable for decisions and
actions that influence safe, effective, and ethical practice. These
accountabilities must be met within the context of a complex system in
which they face many challenging issues.

Professional regulatory or governing bodies, guided by legislation and

regulation, have been established to develop and enforce standards of
behaviour, practice, education, research, and leadership. The
primary purpose of these regulatory bodies of nursing and other health
disciplines is to serve as a watchdog that promotes and ensures the
welfare of the public.

* The regulatory body is in place to protect the public.

This is done through a legal framework that is intended to protect the

public from incompetent, unqualified, or unethical health care
professionals and provide the benchmarks ( known as standards of
practice) against which professional practice is measured. This is
accomplished through the establishment and enforcement of professional
and practice standards and codes of ethics.

In Canada, nursing is a self-regulated profession. Self-regulation is a

privilege, not a right, granted, through legislation, by the provincial or
territorial government to a profession. Having the authority to self-
regulate reflects the trust the public has put in these professions.
Each province or territory has a legislative framework that guides the
practice of nursing.

In Ontario, Nurses are governed by the College of Nurses of Ontario, who are
directed by the legislation and define Nursing for its members.

Nursing Definition

Ontario: According to the Nursing Act, 1991, S.O. 1991, c. 32, defines the
practice of nursing as the “promotion of health and the assessment of, the
provision of care for, and the treatment of health conditions by supportive,
preventive, therapeutic, palliative, and rehabilitative means to attain or
maintain optimal function.” This is the legal definition of Nursing in
Ontario.

The purpose of such definitions is to describe the nature and scope of

nursing by delimiting those acts and procedures that constitute
nursing practice. This provides a framework to determine whether
certain actions comprise the practice of nursingand allows
a distinction to be drawn between nursing and other health care
professionals.

The legal definition also provides a framework for findings

of professional misconduct.

Knowledge of the role of regulatory bodies and the legislative

framework is a component of assessing a person’s eligibility to be
registered in the nursing profession. It is a component of the
jurisprudence examination that nurses must take to demonstrate their
knowledge of the laws, regulations, and regulatory processes related to
nursing ( The NCLEX RN Exam or PN Exam)

Professional Organizations:

Professional associations differ from regulatory bodies in that their

focus is on the profession, whereas the mandate of regulatory bodies is
the protection of the public. Professional associations focus on
advocacy for the profession. They play a role in shaping public policy and
in ensuring nurses play a role in influencing government decisions that affect
them and the overall health care system (Registered Nurses’ Association of
Ontario [RNAO], 2018; Saskatchewan Registered Nurses’ Association [SRNA],
2018).
In Ontario, the College of Nurses of Ontario (CNO) and the RNAO are
distinct organizations. Professional associations are linked to the Canadian
Nurses Association (CNA).

Unions

Nurses’ unions focus on the interests of their members and serve as

collective bargaining agents for various health care facilities and regions
across the country.

Scope of Practice

The term scope of practice describes those activities that nurses are
authorized, educated on, and competent to perform. Nursing’s scope
of practice is authorized in provincial/territorial legislation and regulations
and is complemented by standards, guidelines, policy positions, and ethical
standards established by the authorized nursing regulatory bodies.

Categories of Nurses

 Registered Nurses and Licensed Practical Nurses

 Nurse Practitioners

 Registered Psychiatric Nurses ( practice in 4 Western provinces; —

British Columbia, Alberta, Saskatchewan, and Manitoba—and in the
Yukon Territory

Controlled Acts

The law specifically defines certain medical actions and

procedures that may be performed and which professional groups, such
as Nursing, may perform and delegate .

In Ontario, they are called “controlled acts” and can be found within the
CNO Scope of Practice; CNO Scope of Practice
Recall from the previous screen the legal definition of the scope of Nursing
Practice and the law that governs this scope:

The Nursing Act, 1991, defines the Nursing scope of practice as: The
practice of nursing is the promotion of health and the assessment of, the
provision of care for, and the treatment of health conditions by supportive,
preventive, therapeutic, palliative and rehabilitative means in order to attain
or maintain optimal function.

This Scope of Practice CNO expands the accountabilities found in the

Code of Conduct (the Code), the central practice standard.

* Nurses are expected to practice in compliance with relevant

legislation, the Code and all other CNO practice standards.

*Contravening legislation or failing to meet the standards of

practice could be professional misconduct.

Professional misconduct Defined: An act as defined in Section 51(1) of

the Code to the RHPA or the Professional Misconduct regulation, that
contravenes or fails to meet a standard of practice of the
profession.

We must know what the standards of practice are to ensure we do not

contravene or breach them, which would be considered professional
misconduct.

How familiar are you with the standards of practice?

Remember the Code of Conduct (CNO, 2023) is the newest standard which is
an overarching standard we are expected to adhere to.

To meet the expectations of this standard, a nurse must consider each of

the following key concepts:

■ Authority: Nurses must know their legislated scope of practice, including

controlled acts, and authorizing mechanisms.

■ Context: Nurses must determine if their practice environment or setting

supports the performance of an activity and has the available resources to
support safe client care.

■ Competence: Nurses must ensure they have the individual knowledge,

skill and judgment to perform an activity.

Each concept includes a set of nursing accountabilities which are described

in this practice standard. To ensure it is appropriate to perform an
activity, nurses are expected to demonstrate these accountabilities.

How well do you know the Nursing Act 1991, The Standards of Practice and
the new CNO Code of Conduct?

Remember that you are legally accountable to adhere to these standards,

which means you must first know what they are, and what your role is in
adhering to them.

Being an ethical practitioner includes acting in a manner that

adheres to the legal duties and obligations of the Nursing
Profession as identified by the law, as well as adhering to the moral
ought; balancing ethical values and principles.

Let's continue to understand our Regulatory Body and the Laws which
govern our practice, guiding how we are expected to act as Nurses.

In Ontario, the Regulated Health Professions Act

(RHPA) strictly regulates controlled health care acts (RHPA, 1991, s. 27)
and states who may perform and delegate them.

The RHPA sets out 14 controlled acts that may be performed only by
members of a professional college who are authorized by the
college’s governing statute and regulations (see Nursing Act, 1991, s. 4) to
perform the controlled act (RHPA, 1991, s. 27(1)(a)).
Of these 14, five acts may be performed by nurses in accordance with
the Nursing Act, 1991. These are specifically referred to as “authorized
acts.” If the particular act is to be delegated, it may be delegated only
by an authorized member and only in conformity with the
regulations made under the statute governing the member’s
profession.

For example, if a Registered Nurse (RN) is authorized to administer a

particular substance via injection (a controlled act under RHPA, s. 27(2),
para. 5), then he or she may delegate the act to a Registered Practical
Nurse (RPN), provided that the regulations under the Nursing Act allow
such a delegation and that all procedures for delegation set out in the
regulations are followed.

The five authorized acts are:

■ Performing a procedure below the dermis, surface of the mucous

membrane, the cornea, or in or below the surface of teeth (including scaling
teeth)
■ Administering a substance by injection or inhalation
■ Putting an instrument, hand, or finger beyond the external ear canal, the
point in the nasal passages where they normally narrow, the larynx, the
urethral opening, the labia majora, the anal verge, or into an artificial
opening into the body
■ Treating, by means of psychotherapy technique, delivered through a
therapeutic relationship, an individual’s serious disorder of thought,
cognition, mood, emotional regulation, perception or memory that may
seriously impair the individual’s judgement, insight, behaviour,
communication or social functioning
■ Dispensing a drug (Nursing Act, 1991, s. 4)

Controlled Acts Authorized to Nurse Practitioners Nurse

Practitioners (NPs) have an extended scope of practice and are
authorized to diagnose, order and interpret diagnostic tests,
prescribe medications and order other treatments for [Link]
are autonomous practitioners and are accountable for their own
practice and to employer policies, and relevant legislation. NP's are
authorized to perform eight controlled acts. See the CNO Scope of
Practice for specific details.

Exceptions
The RHPA permits nurses, under some conditions,
to perform specific controlled acts that they would not otherwise be
authorized to perform. The RHPA also provides several exceptions that allow
persons who are not authorized as members of a regulated health
profession (e.g., unregulated care providers) to perform controlled acts in
some situations, including emergency situations. See Appendix A:
Exceptions for controlled acts, for a detailed list in the CNO Scope of Practice
Document

The RHPA also allows certain communication when it is made in the

course of counselling a person about emotional, social, educational, or
spiritual matters, provided that the communication is not one that a
health profession act authorizes a member to make (RHPA, 1991, s.
29(2)).

The RHPA does not apply to Indigenous healers or

midwives when they are providing their services to members of an
Indigenous community (RHPA, 1991, s. 35(1)). This would, for example,
exempt Indigenous healers providing services to residents of a First Nations
community or members of a First Nations band. However, if the Indigenous
healer is also a member of a college, he or she is subject to its
jurisdiction, regulations, and bylaws.

Delegation

Delegation occurs when a regulated health professional (delegator),

who is legally authorized and competent to perform a controlled
act, temporarily grants their authority to perform that act to another
individual (delegatee). Delegation by nurses Nurses who are authorized to
perform controlled acts can delegate them to certain individuals, including
other regulated health professionals or unregulated care providers (e.g.,
family members of clients).

A nurse who delegates a controlled act is responsible for the

decision to delegate and ensuring the delegatee is competent to
perform the controlled act.

The means the Nurse must use their judgement to ensure the
delegatee is competent to perform the delegated act.

The delegation is client specific, based on that person’s specific needs

and preferences.
Generally, the nurse is responsible and accountable for the
following:

■ Making the decision to delegate, based on client factors (need, preference,

risk), the task (complexity and risk), the care environment and the ability of
the provider (to whom the act is being delegated)
■ Ensuring the provider has the knowledge and skill, within defined limits, to
perform the act in a safe manner
■ Ongoing supervision and support (see [Link])

Delegation to nurses Nurses

Nurses can receive delegation for controlled acts that they are not
authorized to perform.

Just because you are asked to perform an act; you have an act delegated to
you, does this mean you should accept that delegation or are required to
accept the delegation; particularly if you lack the knowledge skill and
judgment to perform it?

Feedback:

Nurses who perform controlled acts that are delegated to them are
responsible for the decision to carry out the controlled act and for
the performance of the act.

A nurse’s responsibility may include delegating activities and accepting

delegation of activities according to regulation, which specifies requirements
that must be met.

See Appendix B: Requirements for delegating and Appendix C:

Requirements for accepting delegation in the Scope of Practice CNO

Delegation restrictions (CNO Scope of Practice)

The following are delegation restrictions for nurses:

■ Nurses cannot delegate a controlled act that has been delegated to

them. This is referred to as sub-delegation

■ Nurses in the Temporary Class are not permitted to delegate or

accept delegation.

■ Nurses in the Special Assignment Class are not permitted to delegate

to other health care professionals.
RNs and RPNs cannot delegate some of the controlled acts. Review
the Scope of Practice for specific details; Scope of Practice CNO

As with all activities, nurses must ensure they have informed

consent. Appendix D: List of Controlled Acts RNs and RPNs can
initiate.

Context

A nurse who has the legal authority to perform an activity must

also consider if it is appropriate to do so within the context of their
practice setting.

Context may include the broader environment in which nurses work, the
health care setting, and the available resources to support the nurse and
client.

A quality practice setting is a workplace that supports nursing practice,

fosters professional development, and promotes the delivery of quality care.
This includes where and how care is provided to ensure all safety
precautions are taken.

Competence

A nurse who has the legal authority and has assessed the context of
their practice environment must also ensure they have
the competence to safely perform an activity.

Competence defined:

The knowledge, skill and judgment required to perform an activity

safely within a nurse’s role and practice setting. Nursing competence
also includes leadership, decision-making and critical-thinking skills. Nurses
are accountable to continually reflect on their practice and determine
their learning needs to ensure they can provide safe client care.

Nurses must also participate in CNO’s Quality Assurance

program, which is a legislated requirement in the RHPA.

Nursing accountabilities:

Nurses are expected to demonstrate the following nursing

accountabilities in relation to competence:

■ Demonstrate the knowledge, skill, and judgment to perform an

activity safely and effectively, including understanding the client’s overall
condition and needs understanding the purpose of the intervention,
understanding the indications and contraindications.

 assessing the risks and benefits, demonstrating cognitive and

technical competence to perform the activity as well
as managingpotential outcomes and modifying actions as
appropriate

■ Determine if the client’s condition warrants the performance of the

activity

■ Perform an activity that is based on the best interests of the client

and includes the client’s wishes

■ Consult or transfer care to another care provider when necessary for

safe client care

■ Refrain from performing any activity when not competent to

perform and, as needed, escalate to an appropriate health care
provider

■ Self-reflect, identify learning needs, and continuously seek out and

integrate learning to improve their knowledge, skill and judgement in
relation to their practice

■ Participate in CNO’s Quality Assurance Program

How do you feel about these accountabilities Nurses are expected to

demonstrate? Are you surprised by any of them?

Can you spot the ethical values and principles that are expected to be
adhered to within these accountabilities?

Reflect on the verbs used to describe Nurses accountabilities- they are action
oriented!

Feedback:

Performing an activity based on best interests reflects the ethical principle

of beneficence.

Performing an activity based on client wishes reflects the ethical principle

of autonomy.
Nurses are expected to have cognitive- thinking/reasoning abilities, as
well as the technical abilities. For example: Nurses need to understand
why an action is unsafe, and how to apply measures to manage the situation,
or prevent an unsafe situation, and reasoning their way through problem
solving to keep the patient safe.

The verbs are all action oriented which means Nurses need to think, reason
and then act, as well as to continuously self reflect and use your judgment
( your thinking/cognitive abilities), to know when you are not competent, and
who and how to escalate the matter to another health care provider that
does have those abilities. Knowing when to collaborate with other Nurses,
Physicians, Managers, and others is an area of practice that Nurses are
accountable to demonstrate.

Becoming an ethical practitioner requires us to use our abilities to

reason and to apply our technical skills within the practice setting,
adhering to the rules and legislation that govern our conduct while
respect the patients rights and well being of our patients in an
ethical manner.

Governance and Structure

The regulatory arm : this is the bureaucratic structure of the college

or association responsible for regulating entry to practice, licensing,
continuing competence, and complaints and discipline.

This is the CNO; College of Nurses of Ontario

The professional arm : The structure of the college or

association responsible for advocacy for members of the nursing
profession

The Registered Nursing Association RNAO, is the Ontario

professional Nursing Arm

The Canadian Nursing Association; CNA is a national professional

organization of nurses, with a mandate to represent
nurses nationally and to support a high-quality and publicly funded public
health care system.

In Ontario, because the professional nursing association is separate

from the College, (CNO) the duty to self-regulate in the interests of
the public cannot conflict with advocacy and lobbying on behalf of
nurses in terms of work conditions, contracts, benefits, and so forth.
Board or Council's Role:

Each college is governed by a voluntary board of directors or council,

composed of registered members of the profession. The board may,
depending on the province, include members of the public who may or may
not be appointed by the government. The boards are granted powers and
responsibilities to fulfill the mandate provided in legislation and to
govern the nursing profession in the interests of the public.

The Board of Directors provides oversight over the activities of the College
and is ultimately held accountable for the protection of the public.

What does the Board do?

The board approves and enacts rules and bylaws to develop

and enforce nursing practice standards; criteria for admission to
nursing schools; the curricula and teaching standards of such
schools (although the provinces also have a say in this); student
membership; continuing education; reinstatement and renewal of
membership; licensing, membership, setting of fees; rules
governing types of duties; and so forth.

The College of Nurses Mandate:

The mandate to protect the public from incompetent, unqualified, or

unethical health care professionals and provide the
benchmarksagainst which professional practice is measured.

Overseeing who enters the profession, ensuring they have the

knowledge and competencies to provide safe and effective care to patients
and clients. This is the first step in meeting their mandate to protect public
interests.

Accessing the Nursing Profession; guided by fairness ( the ethical

principle of justice!)

Ontario has passed amendments to its Health Professions Procedural Code

(HPPC) (1991) (RHPA, 1991, Schedule 2) that impose a duty on the College
“to provide registration practices that are transparent, objective, impartial
and fair” (RHPA, 1991, Schedule 2, s. 22.2). To ensure such openness, a
fairness commissioner is appointed by the government to assess and
monitor these mandates and to provide advice as required (RHPA, s. 22.5;
Fair Access to Regulated Professions Act, 2006, c. 31).

Eligibility for Registration/Licensing ( What lies ahead!!)

When a student graduates from an approved program, he or
she must apply to a regulatory body ( the CNO!) for registration in the
profession in order to be authorized to practice as a nurse.

You must be eligible to be registered.

Check out the CNO Registration site for eligibility criteria; CNO Registration
Requirements

Once these eligibility conditions are met, applicants are required to pass a
national examination (the NCLEX RN exam!) to ensure that they meet
the entry level standards of practice.

An applicant for registration may obtain a temporary permit, if he or she has

completed all elements of the application process other than the final
licensing examination.

While you are waiting for your final NCLEX RN exam results, you can be
granted a temporary permit to practice.

Once a nurse has successfully passed an examination and met any

other requirements imposed by the provincial or territorial
regulatory body, he or she is granted a licence or issued a
certificate of registration or permit to practise nursing in that
province or territory. This is called the licensing process.

Registration refers to the process of a nurse enrolling as a member of

the regulatory body, essentially as a member of the profession. Through
registration, the member is recognized as a person who is authorized to
practise nursing in the particular province or territory.
Registration allows the regulatory body to record the nurse’s contact
information, educational background, and qualifications.

This information is accessible to the public.

This credentialing process assures the public and employers that these
nurses meet the appropriate standards of the profession and can safely
practice nursing.

Criminal Background Check

There is an increased focus on the obligations of regulatory bodies to

perform criminal background checks on candidates for registration.
 The purpose of a system of criminal background checks is, ideally,
to exclude people with a history of inappropriate conduct, while not
excluding people one would wish to employ (Devitt, 2004).

If a person who seeks registration as a member of a professional regulatory

body has a criminal record, including a “relevant offence,” he or she will
be subject to further examination by that professional body. Relevant
offences are the criminal and drug offences listed in a schedule to the CRRA,
including various crimes against minors, violent and sexual crimes, and some
less obvious offences, such as “vagrancy.”

In Ontario, the general regulation made under the Nursing Act

(1994) provides that a person applying for a certificate of registration
of any class (i.e., temporary, general, special assignment, etc.) must be
able to show that he or she has not “been found guilty of a criminal
offence or an offence under the Controlled Drugs and Substances Act
(Canada) or the Food and Drugs Act (Canada)” and that he or she has not
been subject to a finding of professional misconduct or disciplinary
proceedings in another jurisdiction (i.e., another province, territory,
state, or country).

This is essentially a mandatory self-reporting obligation. Since

January 1, 2005, the Ontario College of Nurses has required all applicants for
registration or reinstatement to provide a recent Canadian Police Information
Centre Criminal Record Synopsis (known as a “CPIC check”) based on the
applicant’s name and date of birth. Agencies employing nurses are also
entitled to require evidence of a criminal records check and in cases
where the nurse will be dealing with potentially vulnerable populations,
a vulnerable sector criminal records check, based on the applicant’s
fingerprints, will be required.

Feedback:

If a potential candidate for employment as a nurse denies having a criminal

record but a subsequent check by a prospective employer (e.g., health care
institution) reveals one, the employer may decide that the candidate’s denial
demonstrates that he or she is untrustworthy and deny employment on
this basis.

Should employers or Nursing programs deny a candidate access to joining

the program/agency, if they are found to be untrustworthy?
If a candidate lies on their application and a criminal background check
provides evidence they were lying, should the Nursing Student candidate be
denied?

Should you consider the degree or presence of threat to the safety of

patients a candidate might pose?

A criminal record check reveals a record of a criminal act committed at a

past point in time. It may not reveal ongoing issues, such as substance
abuse or lack of trustworthiness.

However, the criminal activity may have occurred a long time, perhaps
during an applicant’s youth, which may not be relevant to his or her nursing
practice

What would Kant say, What would a Virtue ethicist say, What would a
Utilitarian say, What would a Feminist say?

Could lying on an application be justified as ethical and if so why?

What would the College of Nurses say and do?

Remember to use an EDMM and identify all of the facts at play, and then
work your way through each step of the model to analyze this dilemma to
arrive at some recommended strategies.

The British Columbia Human Rights Act, then in force (now named the
Human Rights Code, 1996, c. 21), prohibited discrimination in
employment based on a person’s past criminal record unless such a
record was related to the person’s intended occupation. The LPN had
shoplifted in the 1970's, 20 years prior to her application to the Nursing
Program, and was denied. She took her complaint to the B.C. Human Rights
Council, claiming that the Council’s discrimination against her on this
basis was illegal.

The Human Rights Council found in the nurse’s favour and ordered
the Council to grant the nurse a licence.

A ruling such as that by the B.C. Court of Appeal could apply to other
provinces because most provincial human rights laws contain similar
provisions with respect to discrimination on the basis of a criminal record.

Employers and professional bodies cannot deny employment or the

awarding of a licence or registration on the basis of race, creed, ethnic
origin, gender, religion, marital status, physical or mental disability,
or sexual orientation either.

Internationally Educated Nurses

Not all international education programs meet Canadian standards, and

regulatory bodies have initiated methods of evaluating credentials and
experience of internationally trained candidates.

Regulatory bodies’ Web sites include information for new immigrants and
those applying to come to Canada.

The CNO is working on updating the way applicants can meet their nursing
registration requirements to ensure application assessment processes are
informed, fair, inclusive and effective to contribute to improved access
to safe nursing care.

CNO is currently engaging partners across health care, government, and

academia to address the challenges internationally educated
applicants are experiencing in meeting the education requirement
for registration.

Improved access to appropriate educational opportunities will enable

applicants to complete this requirement and progress through their journey
to register and be able to practice as a nurse efficiently.

As a first step, CNO has identified and collaborated with schools who
currently offer nursing education programs and courses that meet the
educational needs of internationally educated applicants.

Applicants can review these suggested programs and courses online and
compare the competencies of each course to the learning needs outlined in
their Competency Assessment Form.

From there, applicants can best determine which program or course can best
meet their learning needs and enroll in the program.

Read Continuing additional education and related FAQs for more information.
(CNO)

Standards of Practice

Legislation requires that the nursing profession establish standards

of practice and standards of professional behaviour. Professional
standards are established by all regulatory bodies across the country and
serve as yardsticks to measure the actions and competence of Canadian
nurses. These reflect the philosophy and values of the profession and
practice of nursing, as well as its ethical standards and codes. Specifically
they focus on nurses’ accountability to the public, knowledge, application of
knowledge, ethics, continued competence, and professional behaviour.

CNO code of conduct 2023 and Standards and guidelines (CNO) are the
Professional Conduct and Practice standards guiding Nurses in Ontario.

Standards are updated on a regular basis and are kept up to date with
current issues and trends and emerging research, such as our newly
updated Code of Conduct standard.

These standards make explicit nurses’ accountability to the regulatory

bodies, their employers, patients and clients, and the
public . Clinical and professional standards are considered a component
of the performance appraisal of nurses and serve as a guide for
ongoing professional development, education and quality
assurance.

Typically, the standards are defined as setting out the minimum

requirements for safe and professional practice. These standards are
used to evaluate the actions of any nurse who is the subject of
a complaint or disciplinary process within the regulatory body or of a
legal proceeding.

Practice and professional standards are of great relevance in terms

of negligence and malpractice issues. They are a guide to the evaluation
of the nurse and serve as a benchmark with respect to the extent that the
standard is achieved or not achieved.

Meeting the professional standards is only one part of the

assessment of the actions of the nurse, and meeting these standards is
often referred to as the “minimum” expectation of professional practice.
The nurse can still be found guilty of professional misconduct or
negligence on the basis of other relevant evidence.

Where that breach has resulted in harm or injury to a patient, a

nurse may be found legally responsible in an action of
negligencebrought against him or her by the patient. Thus, these
standards are useful not only to ensure patient care of the highest quality
but also as a measure against which nursing practice is judged.

How CNO deals with professional misconduct

Acts of professional misconduct may result in an investigation by CNO,
followed by disciplinary proceedings. As set out in the legislation, CNO
investigates all complaints about nurses.

CNO also receives mandatory reports of termination of nurses from

employers. When the information reported
discloses reasonableand probable grounds to believe that the nurse has
committed an act of professional misconduct or is incompetent, the
executive director may initiate an investigation.

Professional misconduct occurs when these standards are breached:

1. Contravening a standard of practice of the profession or failing

to meet the standard of practice of the profession.

2. Delegating a controlled act set out in subsection 27(2) of the

Regulated Health Professions Act, in contravention of Section 5 of
the Nursing Act.

3. Directing a member, student or other health care team member to

perform nursing functions for which he/she is not adequately
trained or that he/she is not competent to perform.

4. Failing to inform the member’s employer of the member’s

inability to accept specific responsibility in areas where specific
training is required or where the member is not competent to
function without supervision.

5. Discontinuing professional services that are needed unless:

 the client requests discontinuation

 alternative or replacement services are arranged

 the client is given a reasonable opportunity to arrange alternative or

replacement services.

6. Practising the profession while the member’s ability to do so is

impaired by any substance.

 clause 25 of the Regulation makes it incumbent upon nurses to

report to the appropriate authority the impairment of another
nurse or health care provider who is providing client care, to
prevent harm to clients and ensure that the standards of the
profession are maintained.
7. Abusing a client verbally, physically or emotionally.

8 .Misappropriating property from a client or workplace.

9. Failure to obtain client consent .

 Doing anything to a client for a therapeutic, preventive,

palliative, diagnostic, cosmetic or other health-related purpose
in which consent is required by law, without such a consent.

10. Breach of confidentiality

 .Giving information about a client to a person other than the client or

his/her authorized representative except with the consent of the client
or his/her authorized representative or as required or allowed by law.

11. Failure to share information with client

 .Failing to reveal the exact nature of a secret remedy or treatment

used by the member following a client’s request to do so.

12. Failing to advise the client to obtain services from another

health professional when a member knows or ought to know that a

client has a condition that is outside the member’s scope of

practice, or within the member’s scope of practice but outside the

member’s competence to treat.

13. Failing to keep records as required

14. Falsifying a record relating to the member’s practice.

15. Signing or issuing, in the member’s professional capacity, a

document that the member knows or ought to know contains a false

or misleading statement.

16. Inappropriately using term, title or designation in respect of the

member’s practice.

17. Using a name other than the member’s name as set out in the
register, in the course of providing or offering to provide services
within the scope of practice of the profession, except where the use
of another name is necessary for personal safety and provided the
employer and CNO have been made aware of the pseudonym and
the pseudonym is distinctive.
18. Contravening a term, condition or limitation on the member’s
Certificate of Registration.

19. Contravening a provision of the Nursing Act, the Regulated

Health Professions Act or the regulations under either of those Acts.

[Link] to appear before a Panel of the Complaints Committee to

be cautioned.

21. Failing to comply with an order of a Panel of the Discipline

Committee or an order of a Panel of the Fitness to Practise
Committee.

22. Failing to cooperate in a CNO investigation.

23. Failing to take reasonable steps to ensure that the requested

information is provided in a complete and accurate manner when a
member is required to provide information to CNO pursuant to the
regulations under the Act.

24. Failing to: abide by a written undertaking given by the member

to CNO; or carry out an agreement entered into with CNO.

25. Failing to report an incident of unsafe practice or unethical

conduct of a health care provider to:

 ■ the employer or other authority responsible for the health

care provider;

 or ■ CNO.

26. Practising the profession while the member is in a conflict of

interest.

27. Influencing a client to change his/her will or other testamentary

instrument.

28. Submitting an account or charge for services that the member

knows is false or misleading.

29. Failing to fulfil the terms of an agreement for professional

services.

30. Charging a fee that is excessive in relation to the services for

which it is charged.
31. Charging a block fee. A block fee is a fee for uninsured services
that is the same regardless of how many services are
performed. (Not enforced)

32. Charging a fee for an undertaking not to charge for a service or

class of service. (Not enforced)

33. Charging a fee for an undertaking to be available to provide

services to the client.

34. Offering or giving a reduction for prompt payment of an account.

35. Failing to itemize an account for professional services:

 if requested to do so by the client or the person or agency who is to

pay, in whole or in part, for the services; or

 if the account includes a commercial laboratory fee.

36. Selling or assigning any debt owed to the member for

professional services. This does not include the use of credit cards
to pay for professional services.

37. Engaging in conduct or performing an act relevant to the

practice of nursing, that, having regard to all the circumstances,
would reasonably be regarded by members as disgraceful,
dishonourable or unprofessional.

Guilty of an offence

An offence that is relevant to a nurse’s suitability to practise nursing

amounts to professional misconduct. S.51(1)(a)

A panel shall find that a member has committed an act of professional

misconduct if the member has been found guilty of an offencethat
is relevant to the member’s suitability to practise.

Sexual abuse S.51(1)(b.1)

A panel shall find that a member has committed an act of professional

misconduct if the member has sexually abused a patient.

Discussion Sexual abuse, as defined in the Health Professions

Procedural Code, consists of one or more of the following types of
conduct:
■ sexual intercourse or other forms of physical relations between
the member and client

■ touching, of a sexual nature, the client’s genitals, anus, breast or

buttocks

■ touching, of a sexual nature, of the client by the member

■ behaviour or remarks of a sexual nature by the member toward

the client.

A nurse who has reasonable grounds to believe that a member of CNO or

another college has sexually abused a client must report the abuse
to the abusing member’s College.

A client’s account to a nurse that he/she has been sexually abused

by a member of a college constitutes reasonable grounds, and the
nurse must report the alleged abuse to the appropriate college.

Failure to report sexual abuse amounts to independent grounds for

a finding of professional misconduct.

It can be difficult to think about of these harmful actions that Nurses could
engage in, but it is important to know, understand and recognize what
constitutes professional misconduct, and know when and how to report such
conduct.

Deep breath, and let's sit with this for a moment and reflect.

The Responsibility of Regulatory Bodies for the Ongoing

Competence of Nurses

Colleges are also responsible for introducing and maintaining

mechanisms or processes to evaluate the continuing competence of
nurses.

Most of these processes involve a component of reflective practice and an

alignment with established professional and clinical standards

In Ontario, a quality improvement program, called the CNO Quality

Assurance Program, is in place, and all nurses who are registeredwith
the College are expected to participate in it.

The program has three parts:

  reflective practice, competence assessment, and practice setting
consultation.

Each nurse must participate in one of these components each

year. Full details and documentation concerning the program can be found
on the CNO’s Web site

Enforcement: Complaints, Discipline and Appeals Processes

The CNO has an Inquiry, Complaints and Reports Committee

The Inquiries, Complaints and Reports Committee screens matters related

to public complaints or information CNO receives through
reports. The committee reviews written materials and determines
whether a hearing is required or if some other action, such
as Professional Conduct Remediation and/or a verbal caution, would
address the public interest.

 You are responsible for all scheduling and costs associated

with completing your remediation program.

Failure to complete a Remediation:

 It may be considered professional misconduct if you fail to

complete your remediation program. The Monitoring Team may
notify the Executive Director if you do not comply with the terms of
your program. If the Executive Director has reasonable and probable
grounds to believe that you committed professional misconduct, she
may appoint an investigator. The investigation may result in
allegations of professional misconduct being referred to
the Discipline Committee

Reports or complaints are usually submitted to the CEO, Registrar, or

Executive Director of the College.

Whenever possible, concerns are resolved through education and

remedial action. These interventions may correct and improve the RN’s
nursing practice and ensure that ethical and practice standards are
met.

Mandatory Reporting

Employers are required by law to report when they terminate,

discipline, or suspend a nurse for professional
incompetence and misconduct. This is considered a complaint and
undertakes a similar review process.

The college expects that the employer will manage professional

competence and conduct issues through internal human
resourceprocesses.

Ethical leadership practices would ensure that an employee, a

nurse, be supported through education, counselling, health
interventions, to improve his or her practice. In the case of health,
mental health, and addiction concerns, many programs are available
for an employer to access on the nurse’s behalf. Most often, these
approaches lead to improvement in the nurse’s practice and
conduct.

A formal complaint or report should be issued only after all avenues

have been exhausted and the employer has no option but to
terminate or discipline a nurse.

Ontario law specifically requires a member of the CNO to report a

nursing colleague who the member has reasonable grounds to
believe has committed an act of sexual abuse of a patient. In the
case of nonsexual improper conduct, the nurse would first report
the matter to his or her employer to invoke an internal practice
review or disciplinary procedure before lodging a formal complaint
with the regulatory body

It is the ethical and, in many cases, the legal obligation of nurses to

report (to the employer or to the College) improper professional
conduct or incidents that involve a nursing colleague’s failure to
meet the standard of professional practice, whether that colleague
has acted in an unprofessional manner; has shown a lack of skill,
knowledge, or judgement that poses a threat to the safety of
patients in the nurse’s care; or is, by reason of addiction to alcohol
or drugs or mental or physical illness, unable to discharge his or her
nursing duties competently or safely.

Confidentiality Breach Exception

The duty to disclose unprofessional conduct or incompetence is

an exception to the general prohibition on the communication of
confidential information disclosed by the patient in the course of
treatment and the provision of nursing care.
  If a nurse gained knowledge from that patient during the
course of patient care, that another nurse was acting in an
unskilled manner, that nurse may disclose such information, to
the employer, the College, or both

Sometimes a patient may not want you to disclose to your employer or the
college, what they have disclosed to you. Now you are faced with an ethical
dilemma! Do you breach the patients confidential discussion about
your nursing college to prevent harm (nonmaleficence) or do you
respect the choice of the patient ( autonomy) and keep the
conversation private/confidential?

 You would need to consider the degree of harm being

perpetrated on the patient(s), and the probability or likelihood
of that harm occurring, in your deliberative/reasoning process
to make a judgment about what you should/ought do, as well
as your legal obligations.

 Communication of a complaint to the College is

confidential and does not violate the obligation to preserve
confidentiality in the nurse–client relationship.

 Communications to other authorities, such as the police, is

improper unless the client or their substitute decision
maker consentsor there is a legal duty to report.

 it is possible to disclose the information without divulging the

identity of the patient or other details that would readily
identifyhim or her. The patient who feels strongly about the
professional’s conduct may choose to waive privacy rights and
authorize full disclosure.

Alternative Dispute Resolution

The nature of some concerns makes them amenable to a conflict or

dispute resolution process. This option is available when both parties,
the complainant and the nurse, agree. An expert facilitator is engaged
to work with the parties to exchange ideas about how the matter can be
resolved. This process allows nurses to reflect on their practice and to
identify opportunities for professional growth. The resolution agreement
is confidential and the results are not published or available to the
public (CNO, 2018; CARNA, 2018; CRNM, 2018).
Disciplinary Committee

Professional disciplinary proceedings, although open to the public,

are entirely an internal matter governed by the nursing regulatory
body and are designed to ensure nurses’ professional conduct conforms to
practice standards, codes of ethics, and the regulations of the professional
body. Any findings of misconduct would normally be punished by a range
of measures from a reprimand to outrightrevocation of a nurse’s
right to practise.

The hearing is part of an administrative law process, the

consequences for the nurse can be very serious, and nurses are,
therefore, well advised to treat the process more like a criminal law
matter than a civil law matter.

The hearing follows a formal process, similar to court proceedings. The

nurse is entitled to be represented by a lawyer. The College will
present its evidence first. The nurse will then have the right to cross-examine
the College’s witnesses and require the College to prove all elements of the
case. The nurse has the opportunity to present evidence and witnesses. Both
sides will be able to make closing arguments. The burden of proof lies
with the College, and the nurse is not obliged to testify, however a
witness may be summoned.

The committee, after hearing the evidence and the arguments from both
sides, will make its decision.

Decision outcomes from the CNO Discipline Committee can include:

 an oral reprimand

 revocation or suspension of a nurse’s certificate of registration

 restrictions or limitations on a nurse’s certificate of registration (costs,

fines, meetings with regulatory expert, independent practice
restriction, etc.)

 education and remedial activities

 the requirement to notify an employer about the committee’s decision

 employer audits of the nurse’s practice (For example charting practices

to ensure they are in line with the Documentation, Revised
2008 practice standard.)

Appeals:
In Ontario, Appeals are taken to the Health Professional and Review Board.

Fitness to Practise Committee

The Fitness to Practise Committee determines whether a nurse is

incapacitated, and if so, what action may be necessary to protect the
public.

According to the law, incapacitated means that a nurse is “suffering from a

physical or mental condition or disorder that makes it desirable in the
interest of the public that the member’s certificate of registration be subject
to terms, conditions or limitations, or that the member no longer be
permitted to practise.”

If a nurse is found to be incapacitated, the committee can revoke or

suspend their certificate of registration (for an indefinite period of
time), or have specific terms, conditions or limitations attached to it.

Referrals to the committee can be resolved with a hearing, or with an

agreement (also known as an undertaking) where the nurse formally
agrees to comply with appropriate medical
treatment and/or practice in accordance with specified terms.

Fitness to Practise hearings are closed to the public and Committee

decisions are not published. However, a note will be added on CNO’s
public register.

Criminal Matters

Disciplinary proceedings against nursing professionals within the

CNO discipline Committee, are entirely separate and different from
criminal proceedings.

Criminal proceedings would be initiated against a nurse if it is alleged

that he or she has committed an offence under the Criminal Code. A
finding of guilt following a criminal trial would lead to a fine or perhaps
imprisonment.

Where there are criminal proceedings and professional misconduct

hearings, the professional misconduct hearings will be
delayeduntil after the conclusion of the criminal process. This is done
so that the professional misconduct hearings will not prejudice the
fairness of the criminal process ( upholding the ethical principle of
ethics).
Summary

Professional regulatory or governing bodies, guided by legislation and

regulation, have been established to develop and enforce standards of
behaviour, practice, education, research, and
leadership. The primary purpose of these regulatory bodies of nursing is
to protect the welfare of the public. This is done through a legal
framework that is intended to protect the public from incompetent,
unqualified, or unethical health care professionals and provide the
benchmarks against which professional practice is measured.

Nurses in Canada have been afforded the privilege of self-

regulation that allows nursing the autonomy to govern its own members.
Having the authority to self-regulate reflects the trust the public has
put in these professions.

Autonomy and Informed Consent

There are various levels of consent, depending on the nature and

complexity of the decision to be made. Whitney et al.
proposed a model that describes consent on a continuum from low risk
to high risk and high certainty to low certainty(Whitney et al.,
2004).

This module is designed to avoid repeating the text book and readings for
this week but rather endeavors to build on that content. Thus, you must read
and prepare before this module...let's start.

Before any health care treatment of any kind may begin, a

patient's consent must be obtained. Through consent processes, patients
are able to be in control of their care and make decisions about what is most
important for them—decisions based on what they value and what they
believe; upholding the right to self determination which reflects the ethical
principle autonomy.

The term informed consent speaks to the fact that individuals need
information to be able to make a decision and to make the right
choice for themselves. Standards and processes associated with informed
consent are intended to ensure that persons are protected from
exploitation and harm (nonmaleficence) and are grounded in human
rights and in principles of freedom and autonomy (Keatings, M., &
Adams, P. (2024).

A valid informed consent involves additional distinct processes:

 The person must be capable of making the decision

 the information required to make that decision must be shared;

 the person must be assured that the choice is completely

voluntary; free of deceit and coercion.

 The most important part is not the form that is filled out by the patient,
but the discussion space that we as nurses create with patients about
their treatments.

Historical Evolution of Consent

In the past, health care professionals made decisions on behalf of

their patients, in a manner of what that they thought was in
their best interest- to do what was "good" or "best" (beneficence),
for their patients- which we discussed as paternalism. Remember
that paternalism is when another person disregards an individual's
choice, and acts in a manner that they themself think is in their best
interest, rather than what the patient thinks is best for themselves.

What ethical principles are at in conflict when a health care provider acts
paternalistically?

Are any human rights overlooked when health care providers act
paternalistically?

Do you think there may be a time when a health care provider ought to act
paternalistically towards their patient?
Feedback: The ethical principles in conflict are beneficence and
autonomy

In some settings, the focus on scientific inquiry superseded concerns

about the rights and welfare of human subjects. This means
the good of the majority the public-, superseded the individual
choices- autonomy. Do we ever make health care choices that
overlook the individual to benefit the majority? Should we??

This conflict between the good of the majority- public welfare, VRS,
the rights of the individual, is another ethical dilemma

In the evolution of informed consent in research and in the clinical

environment, the recommendations resulting from the Nuremberg Trials led
to the development of the Nuremberg Code (1947), which is a foundational
guide to the ethical undertaking of research involving human subjects (Annas
et al., 2008).

In Canada, a joint policy statement—the Tri-Council Policy Statement

(TCPS2) (2022) : Ethical Conduct for Research Involving Humans (TCPS)—
was written by Canada’s three federal research agencies: the Canadian
Institutes of Health Research (CIHR), the Natural Sciences and Engineering
Research Council of Canada (NSERC), and the Social Sciences and
Humanities Research Council of Canada (SSHRC) (CIHR/NSERC/SSHRCC,
2010).

The ethical principles, standards, and values contained in

the TCPS2 guide Health Canada’s Research Ethics Board (REB) and
are broadly accepted by the research community across the country
and by research ethics boards (Health Canada/The Public Health Agency
of Canada/Research Ethics Board, 2007). The statement affirms the
capable person’s right to make free, informed decisions through
consent, noting that, “the principle of respect for persons translates into the
dialogue, process, rights, duties and requirements for free and informed
consent by the research subject” (CIHR/NSERC/SHRCC, 2010).

The Tri Council Policy has created a set of online modules to support
individuals conducting research in Canada. Many students and researcher
are expected to complete these modules to demonstrate ethical competency
when conducting research with human participants.

The Role of Autonomy in Consent

The principle of autonomy is based on respect for the person’s
individual liberty and the right to self-determination ( to make your
own decisions- self governance), is all grounded in ethical
theory, including Kantian ethics and utilitarianism.

However, autonomy is limited when one is not capable or when

asserting your autonomy causes harm to oneself or others. These are
barriers to respecting autonomy that Health care providers face.

When harm to others is sufficiently grave, the principle of autonomy

is often overridden; Do you agree with this statement?

When should we protect others at the individuals suppression of

their rights to assert their own choice?

In some cases, the team may not be able to fully respect autonomous
choices if they are considered unreasonable, futile, or illegal or if
they conflict with the team’s values and beliefs.

For example, a patient with metastatic cancer requesting bone marrow

transplantation after aggressive chemotherapy has failed could be
considered an unreasonable request.

Carrying out such a request may cause moral distress in the team
members because they know it would be futile and would cause
needless pain and suffering for the patient.

Remember that moral distress occurs as a result of experiencing an

ethical or practical dilemma. We have a conflict between respecting
the patients choice- to continue the treatment for metastatic cancer,
requesting a bone marrow transplant ( autonomy)VRS- withholding the
bone marrow treatment to prevent harm/ pain and suffering-
nonmaleficence. We have a conflict between autonomy and
nonmaleficence in this situation which reflects the ethical Nurses and
Physicians are faced with in this scenario.

We may also have a conflict between the autonomous choice of the

patient and the available resources to fairly allocate/give to the patient-
which reflects the ethical principle of justice.

Another dimension of informed consent is the treatment. When

nurses take a patient's vital signs or bath a patient, should consent be
obtained first?...Even though these are low risk "treatments" consent MUST
be obtained. Whenever you "touch" a patient, consent must be obtained
prior to engaging in any treatment.

Consent is a provincial jurisdiction. In Ontario we adhere to The Health

Care Consent Act (1996) (HCCA) and The Substitute Decision Act (1992)
(SDA) to guide our legal obligations related to treatment, capacity
and informed consent.

We will elaborate more on these Acts in week 6 as well, but for now I will
highlight that consent emerges from specific legislation and laws.

See Consent to Treatment sections 10- 14 in the HCCA for details

related to consent.

In Ontario the Health Care Consent Act includes the following elements of
consent:

 Consent MUST relate to treatment

 Consent must be informed

 Consent must be given voluntarily

 Consent must not be obtained through misrepresentation or fraud

Capacity

Another dimension of consent is defining who is "capable" of giving their

consent (Capacity).

See Capacity sections 15-24 in the HCCA (1996) for details on Capacity
relative to giving consent in greater legal detail.

Again, make sure you read the chapter as there is a significant amount of
information regarding capacity. Capacity is not defined by age, but by a
person's ability to understand, be aware of and appreciate the
dynamics of a situation, as well as the risks and benefits of the
consequences associated with the decision-making related to treatment
AND/OR entry to a Long Term Care Facility AND/OR personal care.

Any decision related to treatment, personal care or entry to a Care

facility requires informed consent by a capacitated individual.

In the past capacity was thought to be all or nothing: Either patients could
make decisions about all aspects of their lives, or no parts of their lives.

The functional approach to Capacity:

This approach is used today, which takes into account the particular nature
of the decision in the circumstances of the individual patient.

Our lives involve many different types of decisions, with different levels of
[Link] Ontario HCCA specifically indicates that “capacity depends
on treatment,” noting that “a person may be incapable with respect
to some treatments and capable with respect to others"

Capacity for treatment is not the same as capacity for other decisions, such
as those that pertain to management of finances.

Capacity can also fluctuate over time. For example, a person taking pain
medications may develop a delirium, become acutely confused, and within a
matter of hours lose the capacity to make decisions. Ontario notes that a
person may be “incapable with respect to treatment at one
time and capable at another time

Example: A person with Alzheimer’s disease may exhibit the “sundowning

effect”—that is, the ability to reason and deliberate is relatively intact in the
morning but diminishes considerably toward the end of the day.

Evidence of confused or delusional thinking, severe pain or anxiety, severe

depression, and impairment by prescribed medications, alcohol, or other
substances does not in itself indicate a lack of capacity, although any of
these may be reason enough to question whether the patient has capacity
for a given decision and to initiate a capacity assessment using the
legislated criteria.

 We must at all times presume the patient is capacitated unless

they are found to be incapacitated.

The presumption of capacity also rules out assumptions about capacity

based solely on the health care provider’s assessment of the patient’s
choice.

Regrettably, providers sometimes form opinions about capacity not based

on a proper assessment but, rather, on whether the patient’s views about
treatment converge with their own.

They deem the patient who elects for an option contrary to what is
recommended to be incapable. In such instances, the patient’s apparently
“irrational” or “unreasonable” decision is taken as evidence of incapacity,
based on the doubtful assumption that no one in his or her “right mind”
would make such a decision
Presumption of capacity

Subsection 4(2) of the Health Care Consent Act, 1996 states that A
person is presumed to be capable with respect to treatment, admission to or
confining in a care facility and personal assistance services. 2017, c. 25,
Sched. 5, s. 56.

Exception

(3) A person is entitled to rely on the presumption of capacity with respect

to another person unless he or she has reasonable grounds to believe that
the other person is incapable with respect to the treatment, the admission,
the confining or the personal assistance service, as the case may be.

Also, two important presumptions are codified in Ontario:

Subsection 2(1) of the Substitute Decisions Act, 1992 states that: “A person
who is eighteen years of age or more is presumed to be capable of entering
into a contract.”

Subsection 2(2) Substitute Decisions Act, 1992 states that: “A person who is
sixteen years of age or more is presumed to be capable of giving or refusing
consent in connection with his or her own personal care.”

Importantly, the legislation specifies that capacity should be

presumed unless the provider has reason to believe otherwise

This presumption puts the onus on providers to assess capacity in the

particular circumstances of the patient and decision to be made and
checks the tendency providers may have to assume lack of capacity based
on dubious inferences and unreliable indicators.

For example, the presumption of capacity rules out a status approach to

capacity. On the status approach, lack of capacity is assumed based solely
on membership in a group statistically associated with lack of capacity, such
as early teen adolescents, persons with certain health conditions such as
mental illness and Alzheimer’s disease, and residents of psychiatric and long-
term care facilities.

Even if many persons in these groups typically do lack capacity, not

all do. Capacity must be individually assessed if autonomy is to be
upheld. Capacity pertains to the quality of the process of decision-making
and not to its outcome.
If you needed to decide whether to provide treatment to a child first or an
adult, your values about who is a child vs who is an adult comes into play
(e.g., their culture, minority group, appearance). Thinking back to capacity,
what if a person has an illness and is unable to understand or appreciate the
treatment being recommended, should consent still be obtained? What if this
is an emergency? Who can give consent on behalf of an incapacitated
person?

Treatment

“treatment” means anything that is done for a therapeutic, preventive,

palliative, diagnostic, cosmetic or other health-related purpose, and includes
a course of treatment, plan of treatment or community treatment
plan, but does not include the following:

(a) the assessment for the purpose of this Act of a person’s capacity with
respect to a treatment, admission to a care facility or a personal assistance
service, the assessment for the purpose of the Substitute Decisions Act,
1992 of a person’s capacity to manage property or a person’s capacity for
personal care, or the assessment of a person’s capacity for any other
purpose

(b) the assessment or examination of a person to determine the general

nature of the

person’s condition

(c) the taking of a person’s health history

(d) the communication of an assessment or diagnosis

(e) the admission of a person to a hospital or other facility

(f) a personal assistance service

(g) a treatment that in the circumstances poses little or no risk of harm to

the

person,

(h) anything prescribed by the regulations as not constituting treatment

“Plan of Treatment” means a plan that,

(a) is developed by one or more health practitioners,

(b) deals with one or more of the health problems that a person has and
may, in addition, deal with one or more of the health problems that the
person is likely to have in the future given the person’s current health
condition, and

(c) provides for the administration to the person of various treatments or

courses of treatment and may, in addition, provide for the withholding or
withdrawal of treatment in light of the person’s current health condition.

“community treatment plan” has the same meaning as in the Mental

Health Act;

"course of treatment” means a series or sequence of similar treatments

administered to a person over a period of time for a particular health
problem.

Incapacity

Incapacity for personal care

section 45 (SDH, 1992)

A person is incapable of personal care if the person is not able to understand

information that is relevant to making a decision concerning his or her own
health care, nutrition, shelter, clothing, hygiene or safety, or is not able to
appreciate the reasonably foreseeable consequences of a decision or lack of
decision.

Informed Consent

Nurses have professional and legal obligations for obtaining

consent. The College's Consent Practice Guideline provides an overview of
the major features of the relevant legislation, pertinent definitions and the
steps that nurses need to take to obtain consent.

Legislation Governing Informed Consent

The Health Care Consent Act (HCCA)

In Section 11.1,The Ontario Health Care Consent Act (HCCA) lays out the
following elements of consent:

1. The consent must relate to the treatment.

2. The consent must be informed.

3. The consent must be given voluntarily

4. The consent must not be obtained through misrepresentation or fraud

These elements together articulate the concept of informed consent, and are
consistent with elements for consent across all Canadian
provinces/territories.

(Yeo, Moorhouse, Khan and Rodney, 2020)

Implied vrs. Explicit and Informed Consent

Generally, the more serious the nature of the intervention, the more explicit
the consent should be to reduce the possibility of misunderstanding or
disagreement about whether in fact a consent was valid. To further reduce
this possibility, and to protect providers and institutions from legal liability,
explicit consent is often recorded in a document signed by the patient.

Criteria for Informed Consent

Voluntariness: must be free of coercion

Voluntariness exists on a spectrum; cases at one end are more or less

involuntary, and at the other more or less voluntary.

For example: coercion or threats undermine voluntariness.

Inducements to some lesser extent undermine voluntariness, as can

persuasion to the extent it is manipulative. Other elements speak to the
informed aspect of informed consent. The doctrine of consent evolved over
time from simple consent—the bare indication of agreement or refusal—to
informed consent.

Knowledge: understand, aware and appreciate risk and benefits of

treatment.

The knowledge requirement of informed consent pertains to the patient’s

understanding and appreciation of information relevant to the decision at
hand.

Adequately informed: false information; not adequately informed

What constitutes an adequately informed consent? Clearly, if the patient is
provided with false information, whatever decision he or she might make
based on that information is not adequately informed.

Fraud and misrepresentation aside, how much information, and of what sort,
does the provider need to disclose?

This question is answered in law by what is called “the standard of

disclosure.

The standard of disclosure : the type and scope of information that

should be provided to the patient in the context of the consent process.

Today, the standard is articulated in what is called the “reasonable person

test”: What information would be relevant or material to the decision of a
reasonable person in the particular circumstances of the patient?

The “reasonable person test”: This test superseded the prior “reasonable
physician test,” which asked what the reasonable physician in the same
circumstances would disclose. This change marked a shift in the balance of
power away from the medical community in the direction of greater patient
control.

The test is open to interpretation, since individual patients differ in their

values and preferences related to the receipt of information. Getting to know
the patient in the context of a developing relationship and two-way
discussion enables providers to tailor their disclosure to the subjective
preferences of the individual patient.

Importantly, the legislation adds to the conditions for informed consent

that the person must have “received responses to his or her request
for additional information”.

The information necessary for an informed decision—the amount of detail

about proposed treatments and alternatives, for example—varies not just
according to the subjective preferences of the individual patient but also
depending on the nature of the treatment decision and its gravity. A major
surgery is obviously more complicated and consequential than treatment for
a mild skin irritation. Information needs are obviously different.

The Ontario legislation codifies the reasonable person standard by

stating that a consent is properly informed only if, prior to giving it, “the
person received the information ... that a reasonable person in the same
circumstances would require in order to make a decision about the
treatment”

Information needed to meet the reasonable person standard is

listed below:

1. The nature of the treatment.

2. The expected benefits of the treatment.

3. The material risks of the treatment.

4. The material side effects of the treatment.

5. Alternative courses of action.

6. The likely consequences of not having the treatment.

(Yeo, Moorhouse, Khan and Rodney, 2020)

Health Care Vrs. Personal Care Decision Making

Personal Care decisions can be broadly divided into two categories:

1. Health care (decisions to which the HCCA applies); and

2. All other personal care decisions (to which the SDA applies).

Section 45 of the SDA outlines that personal care includes decisions

concerning “health care, nutrition, shelter, clothing, hygiene or
safety.” Some of these areas of decision making could be made by a
substitute decision maker other than an attorney for personal care or
guardian of personal care under the SDA

The HCCA authorizes decisions respecting health care treatment,

admission to long-term care, and personal assistance services for
both capable and incapable persons.

CONSENT MUST BE OBTAINED PRIOR TO ADMINISTERING TREATMENT(from a

capable patient or the SDM)

“health practitioner” defined as “a member of a College under the

Regulated Health Professions Act, 1991 or a member of a category of
persons prescribed by the regulations as health practitioners.

Capacity to Make Decisions : HCCA VRS. SDA (AND VRS. OR)

HCCA SDA
Capacity
Incapacity for personal care
Subsection 4(1): A person is capable with
respect to a treatment, admission to a care Section 45: A person is incapable of per
facility or a personal assistance service if careif the person is not able to
the person is able to understand the understand information that is relevant
information that is relevant to making a making a decision concerning his or h
decision about the treatment, admission or health care, nutrition, shelter, clothin
personal assistance service, as the case may hygiene or safety, or is not able to ap
be, and able to appreciate the reasonably the reasonably foreseeable conseque
foreseeable consequences of a decision or a decision or lack of decision.
lack of decision.

Proxy Consent

A proxy is a person who will make decisions on behalf of another

person.

Example: A Power of Attorney for Personal Care (which is a legal document)

is appointed by an Individual- called the grantor- a Father (while he is
capacitated to give this power to a person of his choice), and he names his
daughter- called the attorney as his proxy, to make health care decisions
on his behalf.

Proxy consent is granted by a third party (the POA of Personal Care) who
was named by the incapable person (when they are capable) to make
decisions on his or her behalf.

In our case scenario of Doris, the medical team would have to resort to a
proxy decision maker if Doris were not competent to give or withhold
consent and if they were not able to contact her family.

The proxy does not have the legal authority to give proxy consent when the
individual they are making the decision for IS Capacitated. The POAc only
comes into effect when the individual is incapacitated.

We have three different legal means of giving Proxy Consent for

health care Decisions on behalf of an incapacitated person.

1. The Power of Attorney for Personal Care

2. The Substitute Decision Maker

3. The Court Appointed Guardian

  Remember that IF the patient is Capable, you must respect
their autonomous choice.

 AND we must presume the patient is Capacitated unless we

have reasonable grounds to think they are incapacitated

 AND THEN we must assess the individuals capacity through a

capacity assessor; Assessing Mental Capacity

 BUT- the patient can refuse to undergo a capacity assessment!

 So...IF a health care provider or family member is concerned

the patient is in harm, THEN the physician and or family
member can apply to the court requesting the individual
undergo a capacity assessment

 Once you are deemed incapacitated and that finding is

submitted to the court, you are now LEGALLY incapacitated.

 Once legally incapacitated; your proxy will make decisions on

your behalf

 Your proxy may be a Power of Attorney of Care (if you

appointed one while you are capacitated) , a Substitute
Decision Maker ( a person that is appointed on your behalf
without your consent, according to the ranked order in the
SDA, or a Court Appointed Guardian

 However, if the patient is assessed to be incapacitated, the

patient must still be involved in discussions, with the Proxy,
and the Health Care team, regarding the treatment, personal
care choice or decision to enter a care facility.

You must be a qualified capacity assessor or capacity evaluator to

find a person incapacitated.

Capacity Assessor: The role of the Nurse and Physician

Nurses are not able to deem a person mentally incapacitated

without specialized training, but are able to conduct a neurological
assessment to assess cognitive function called a Mini Mental Exam, to assess
some aspects of capacity. Nurses who undertake specialized training to
be an evaluator, may upon its completion, determine capacity to make
a decision about personal assistive service, OR to make a decision
about admission into a care facility (HCCA).

 Consent to treatment, and assessing the capacity to consent to

treatment, must relate to a specific treatment or plan of treatment.

The SDA asserts that only trained capacity assessors may determine
capacity for the purpose of the SDA (i.e., the capacity to make decisions
on an ongoing basis). The HCCA requires assessment of capacity to make
decisions about a specific treatment. A capacity assessor conducts
assessments of capacity on persons who need decisions made on their
behalf on a continuing basis. NPs and RNs are eligible to become
capacity assessors. Designation will require the successful completion
of a capacity assessor education or training course approved or required
by the attorney general.

A physician is able to deem a person incapacitated but here is not one

standardized means to assess and determine incapacity. There is a process
to contest a ruling of incapacity, but it is time consuming, costly and one
would need to be aware and educated about the process to be able to
engage in it. There are many challenges associated with the transition to
incapacity and the process to support that person in an ethically and legally
defensible manner. Indeed, more education in both ethics and the law is
needed for all professionals encountering persons experiencing this
transition.

Assessing the client’s capacity to make a treatment decision is the

responsibility of the health care practitioner proposing the treatment
(Consent practice standard; CNO, 2020). As well Registered Nurses (RNs),
Registered Practical Nurses (RPNs) and Nurse Practitioners
(NPs) may be evaluators. This means that the nurse may be an evaluator
which allows them to determine client capacity to make a decision about
admission to a care facility or a personal assistance service.

A capacity assessor conducts assessments of capacity on persons who need

decisions made on their behalf on a continuing basis. NPs and RNs are
eligible to become capacity assessors. Designation will require the
successful completion of a capacity assessor education or training course
approved or required by the attorney general.
The patient must be informed of being found incapacitated and of
the consequences of such a finding in accordance with the guidelines
laid out by the governing body of the health care practitioner’s profession.
For nurses in Ontario, this would be the guidelines set out by the College of
Nurses of Ontario (Health Care Consent Act, 1996, s. 17).

Once the health care professional has determined that the patient is
incapable (or, if before the treatment is begun), IF the professional is
informed that the person intends to apply to the Consent and
Capacity Board for review of the finding of incapacity or has applied
for appointment of a representative to give consent to treatment), the
professional must not begin treatment or must take steps to prevent
such treatment being given until the matter is decided by the
Board (Health Care Consent Act, 1996, s. 18).

*Note This means that while a patient intends or has applied to

challenge a finding of incapacity, the health professional must not
continue with the treatment until the Consent and Capacity Board
has made a final decision on the individuals Capacity.

The Substitute Decisions Act

The Ontario legislation ranks possible substitute decision-makers in

order of priority, with those ranked lower assuming the role only ifthere
is no one appropriate or available who is ranked higher.

For example, if someone has named a power of attorney for personal care
or treatment, that person has higher priority than a spouse or a partner, who
likewise has higher priority than a parent, who likewise has higher priority
than a sibling.

• A health care professional providing care to a patient cannot assume this

responsibility

The Ontario legislation also identifies two main principles to guide the
substitute decision-maker in giving or refusing consent on behalf of an
incapable person: This means the Proxy must follow these two guiding
principles when making decisions.

Consider any wishes the person may have expressed while capable
that are applicable to the circumstances, and if such wishes are not
known, THEN act in the best interests of the person (21.1)
The additional requirements applicable to all decision makers are as
follows

• Substitute decision makers must be capable with respect to the

particular treatment themselves (HCCA subsection 20(2)(a)).

• Substitute decision makers must be at least 16 years old, unless he or

she is the incapable person’s parent (HCCA subsection 20(2)(b)).

• Substitute decision makers must not be prohibited by court order or

separation agreement from having access to the incapable person or giving
or refusing consent on his or her behalf (HCCA subsection 20(2)(c)).

• Substitute decision makers must be available, which means it is

possible to obtain consent or refusal within a reasonable time in the
circumstances (HCCA subsection 20(2)(d) and Hiltz and Szigeti, 2018, pages
185 and 186).

• Substitute decision makers must be willing to assume the

responsibility of giving or refusing consent (HCCA subsection 20(2)(e).

• If any of the above criteria are not met, the decision should be made by the
next highest-ranked decision maker that does meet all the criteria.

Both guardians and attorneys are required to exercise their powers diligently
and in good faith and to explain their powers and duties to the incapable
person.

Challenging a Substitute Decision Maker

• The highest ranked decision maker (a court-appointed guardian of the

person) can only be challenged by going to court to seek direction removing
that authority or directing the guardian to make a certain decision.

• An attorney for personal care could also be challenged by going to court to

be removed or directed to make a certain decision

• Two applications to the Consent and Capacity Board that could be used to
remove the authority of the family decision makers.

Best Practices in Situations of Substitute Decision Making

The health team can ensure the best outcome where a substitute decision
maker is or may become involved by:
■ Determining who has the legal consent to treatment and clearly
documenting this in the patient’s chart.
■ Devising a plan of care based on the patient’s current and potential status.
The plan can take into account the withholding or withdrawal of consent and
the necessary time and opportunity to obtain informed consent.
■ Documenting the actions and decision making process of the health
team, especially if there is an emergency or urgent situation.
■ Reviewing the facility’s policies and procedures in relation to
consent and substitute decision maker consent on a regular basis to
ensure that they reflect current best practices.

The Law: ( Guided by the HCCA and the SDA)

 The patient's right to refuse even life saving treatment is

permitted in Canadian law, based on capacity of the individual.

 Providing treatment against a patient’s consent is considered

battery and or professional negligence.

 A “mature minor” could be considered capacitated and able to make

such a decision

 There is no specific age that is required to obtain informed

consent- based on capacity

 Consent must be given voluntary, be adequately

informed and capacitated to choose

 CNO (2017) practice guideline on consent begins by saying that

“nurses have ethical and legal obligations for obtaining consent.” for
proposed care, treatment and research.”

Nursing Roles and Ethical Responsibilities Regarding Consent

The CNO (2017) Consent Guidelines speaks to Nurses ethical obligations

concerning consent laid out in the college’s ethics practice standard,
includes an appendix titled “Advocating for Clients,” which says
that nurses use “professional judgment to determine the scope of
advocacy services to assist the client in exercising his/her
options” (p. 9).

Specific responsibilities outlined by CNA (2017) include the

following:
• Obliges nurses involved in care that is being provided by another
professional to make sure consent has been given.

• Nurses are “obligated to take action” if they have concerns about the
quality of a consent

• CNO (2017) practice guideline on consent notes that nurses “need to

advocate for clients’ access to information about care and
treatment if it is not forthcoming from other care providers” (p. 8).

• Nurses “should not provide a treatment if there is any doubt about

whether the client understands and is capable of consenting ...
whether or not there is an order, or even if the client has already consented”
(p. 8).

• CNA Code of Ethics (2017) also notes, “Nurses are sensitive to the
inherent power differentials between care providers and persons
receiving care” and “do not misuse that power to influence decision-making”
(p. 11).

Thinking about our case study on Tyrell Dueck, should Tyrell be involved
in the decision making regarding his treatment? How do we decide?

Feedback: Some of you might say that Tyrell needs to be included in the
decision about his treatment, therefore in addition to listening to his parents
wishes to stop conventional treatment, we must also consider are the
parents operating by the SDA principles of Tyrell's wishes, or best interest?

Tyrell needs to be assessed regarding his capacity to make decisions. Should

we include Tyrell in the decision making? In the context of assessing
capacity, to see if someone can decide for themselves, it is essential for a
trained capacity assessor to assess the individual's capacity to make an
informed choice. There are varying degrees of capacity assessment that can
be undertaken.

The term mature minor generally refers to a child over the age of 13 years,
however a child younger than this could be identified as a mature minor. The
concept and determination of a mature minor is not outlined in any statutes
or legislation, but rather is assessed judiciously on a case-by-case basis. In
Ontario there is NO age limit for consent. If Tyrell was assessed and
deemed incapable a substitute decision maker is appointed.

Can you think why consent is both a legal and an ethical issue? When you
answer this question think about our case study for this week.

Feedback: First we showed that consent before treatment is an important

legal act (as part of the Health Care Consent Act (1996). If Tyrell is
capacitated and did not give consent to stop his treatment, then all who are
making decisions on his behalf are taking part in keeping life saving
treatment from him against his wishes and arguably in his best interests,
without his informed consent, which is illegal (breach of the HCCA and SDA).
At some point in our case study, Tyrell was perhaps influenced by his parents
as he declined treatment. This means that there may be an ethical issues at
play.

To identify if an ethical dilemma exists, we should gather the facts and

consider the following:

 Is Tyrell capable of understanding the consequences of receiving or

refusing treatment?

 Should Tyrell be included in the decision making about his treatment?

 Are the parents operating in Tyrell's best interests?

We can explore a similar Case study in a previous edition of the
Textbook Keatings, M., & Adams, P. Chapter 6 (2020) of an Eleven Year old
Indigenous Girl

The case of the 11-year-old Indigenous girl highlights the challenges

associated with consent and children. In 2014, this young girl from
the Six Nations of the Grand River, near Brantford, Ontario, was in
treatment for ALL. The child had undergone part of a treatment protocol
when her mother withdrew her consent and indicated that she preferred
to follow traditional Haudenosaunee health practices.

The oncologist did not believe that this choice was in the best
interests (beneficence) of the child and reported the situation to the
Children's Aid Society (CAS). After an investigation, the CAS declined
to act, and the hospital applied to the court to have the child
apprehended as a child in need of protection (nonmaleficence).

The court declined to act because it considered that the mother was
entitled, on the basis of her Indigenous rights, to follow traditional
health practices. The court accepted that the mother believed that
she was acting in the best interests (beneficence)of the child.
Our textbook Keatings, M., & Adams, P. Chapter 6 (2024) speak to multiple
Case studies that reflect many of the ethical principles, values, and legal
rights and responsibilities discussed in the module.

I encourage you to read all of chapter 6 in the Textbook for depth of

understanding consent, capacity, the law and Nurses professional
obligations.

Documentation and Recording of Consent

After obtaining consent, the health care professional should document

the fact that the procedure was explained to the patient, along with
its risks and consequences, and that the patient verbally
consented. Moreover, the nurse in such a situation must be
competentto provide the patient or client with information about
the risks of the procedure; that is, the nurse cannot go beyond the
scope of authorized nursing practice in explaining such procedures
and risks. The best practice is always for the person who is to perform the
treatment to explain the risks and benefits to the client and obtain the
consent. Keatings, M., & Adams, P. (2024).

Clear, comprehensive and accurate documentation is an integral part of safe

and effective nursing practice. Documentation provides a record of the
judgment and critical thinking used in professional practice, and provides an
account of the nurse’s unique contribution to health care.

The Documentation practice standard (CNO, 2008) describes the

expectations for nurses in all practice settings and for all forms of
documentation.

Video Moment:
An overview of Documentation from the CNO

#2 Documentation Video: Communication

#3 Documentation Video : Accountability

Documentation Video #3: Accountability

Navigating the Moral Journey to Consent

Respect for a person’s autonomy and ensuring a valid informed

consent involves more than a signature on a consent form. It is a
process where a patient and the caregiver discuss a problem, exchange
ideas, and choose an intervention together.

At the core of informed consent is a conversation that respects the dignity

of people at varying stages of health and illness and varying degrees of
vulnerability. It is an ethical process that takes into account cultural
perspectives and the values and beliefs of others.

Fairness and justice necessitate an equitable caregiver–patient

relationship based on trust and mutual respect.

A health care provider cannot assume that once information relevant to

treatment is made available and the patient is deemed capable of making
treatment decisions, the health care professional has met his or her duty and
moral obligations. It is problematic if the caregiver focuses only on the
rules and legal parameters without ensuring that moral and ethical
obligations to the person are met.

A moral approach to informed consent empowers that person and is

an important element of patient-centred care. Respect for
persons demands that there be a meaningful and thoughtful
process, not just a bureaucratic process or what has been called a logical
model of decision making, intended only to ensure a person’s autonomous
authorization of the agreement regarding care (Corrigan, 2003).

The ethical theories discussed previously come into play here when
it comes to the process that nurses and other health care professionals
engage in with clients when seeking consent.

Principlism,( balancing all 4 major principles) with a focus on

autonomy, has dominated the approach to informed consent but
other considerations that enrich an understanding of the moral nature of
informed consent include narrative, caring ethics, and relationship
ethics. Complementary approaches that accentuate the relational
and communicative aspects of moral situations help explain ethical
decisions and ultimately ensure satisfaction and comfort with the chosen
option (McCarthy, 2003).

The narrative approach is not only an important form of communication

and relationship building, it is also a means of understanding the moral
values and beliefs of a person and what matters most in the specific context
of making an informed choice; it recognizes the uniqueness of that
person’s story, thus mitigating the temptation to generalize (McCarthy,
2003). Also, being present and listening to the individual’s story builds
empathy (Charon, 2001), which a Virtue ethicist would consider to be a
virtuous characteristic.

Caring ethics fosters active listening and encourages sensitivity

and awareness of the person’s emotional and physiological
responsesto the situation. A caring approach fosters empathy and
compassion for the circumstance the person is facing (Halpern, 2014). For
example, By engaging in a conversation with Doris in Case Study #1, the
team could uncover her story. What is at the core of her fear that she
may have cancer? Perhaps if encouraged, she would she share her
personal experiences with friends that led her to believe that this likely
would be the result of the proposed tests. By listening and demonstrating
interest and concern, the nurse in the situation might ask Doris to share
stories about her children. Perhaps in doing so, Doris might come to
understand that she is not a burden on them as she thinks. It is
also important for the team to consider and reflect on how emotions
can influence a response or a decision.
Relationship ethics ensures a therapeutic connection built on trust.
This approach recognizes that there is a correct time and a correct
way to have a conversation. Effective communication conveys
empathy, curiosity, and active listening; builds the relationship; and
establishes trust (Roter et al., 2006). The consent process has a
profound influence on the development of trusting therapeutic
relationships between the client and the caregiver.

It is a giving and receiving process that ensures reflection and

a shared understanding of the person’s perspectives and concerns.