Preparing For Ebola: Important Lessons Hospital Directors Can Learn From SARS

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

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

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

According to the Nurses Unions, the federal guidelines do not follow the "precautionary principle" (defined below) because, among other things, they disregard concerns about the potential for aerosol transmission of Ebola, and fail to mandate a minimum nurse staffing ratio of two nurses for every Ebola-infected patient.

These comments underscore two important lessons from Ontario's SARS experience that all hospital directors should consider when discharging their board's oversight of the measures implemented to protect staff when caring for patients who may have infectious diseases:

In issuing guidelines as policy, governments do not owe a private duty of care to staff or patients; therefore, hospitals must conduct their own assessment of whether particular guidelines constitute reasonable precautions in their particular circumstances. Hospitals, and their directors, officers and supervisors owe an elevated statutory duty of care to "take every precaution reasonable in the circumstances" to protect staff from harm according to the precautionary principle that reasonable steps to reduce risk should not await scientific certainty (as further described below). Understanding these lessons requires a review of the SARS litigation that followed the 2003 outbreak, the SARS Commission's Final Report (the SARS Report), and the legislative framework that governs public hospitals and imposes duties on their boards of directors.

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

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

No Government Private Duty of Care

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

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

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