Court Upholds CMOH Directives #1 and #5 as Reasonable and Consistent with the Precautionary Principle

In Ontario Nurses’ Assn. v. Chief Medical Officer of Health (Ontario), the Ontario Divisional Court upheld Directives #1 and #5 (Directives) of the Chief Medical Officer of Health (CMOH) as reasonable and consistent with the precautionary principle.

The Court dismissed an application brought by the Ontario Nurses’ Association (ONA), and others, to amend or quash the Directives on the basis that they failed to utilize the precautionary principle in acknowledging the aerosol transmission of the COVID-19 virus. The Court also dismissed the ONA’s allegation that the Directives breached section 7 of the Canadian Charter of Rights and Freedoms (Charter).

Directives #1 and #5

The Directives were issued by the CMOH under the authority of the Health Protection and Promotion Act (HPPA) to health care providers. This was done in response to the crisis caused by the COVID-19 pandemic in health care settings.

Directive #1 was issued in March 2020 and is aimed at health care providers and health care entities, as defined under the HPPA.

Directive #5 was issued on March 30, 2020 and was initially applied only to public hospitals. Directive #5 was amended and reissued on various dates. The current version (issued on October 8, 2020) applies to public hospitals and long-term care homes (see our HR HealthCheck CMOH Issues New Directive #5 on PPE, And More).

Both Directives are based on the premise that the COVID-19 virus is spread by close contact and respiratory droplets. They establish “contact/droplet precautions” as the presumptive infection control measures for health care workers, with “airborne precautions” required only when specific procedures are planned or probable.

Consistent with the above presumptions, both Directives require “at a minimum” that workers who are interacting with “suspected, presumed, or confirmed COVID-19 patients” engage contact and droplet precautions. The Directives also mandate the use of greater protections where workers are engaged in aerosol-generating medical procedures (AGMPs).

Critical to the Court’s analysis and decision in this case was the fact that both Directives also require that regulated health professionals perform a “point-of-care risk assessment” (PCRA) before every patient interaction. If a nurse (or any regulated health professional) determines, based on their PCRA, that an N95 respirator is required for the patient interaction, the health professional must be provided with an N95 respirator, or approved equivalent or better. Employers are prohibited from denying N95 masks where a regulated health professional has determined that an N95 is required. The Directives also expressly provide that regulated health professionals and other health care workers may take into consideration their proximity to the patient or resident and the “mere fact of their interaction” with one another in conducting their PCRA and deciding whether an N95 is required.

Precautionary Principle

The “precautionary principle” is a planning principle that provides that one should not wait for risk to be scientifically proven before trying to address it. This principle was articulated by Justice Archie Campbell in his report on the 2003 SARS outbreak. As stated by Justice Campbell, the precautionary principle recognizes that “reasonable steps to reduce risk should not await scientific certainty.”

Under the HPPA, the CMOH is required to take into consideration the precautionary principle when issuing directives.

The ONA’s Application for Judicial Review

The essence of the ONA’s challenge to the Directives was that they were internally flawed as they failed to appropriately acknowledge and account for the risks of aerosol and asymptomatic transmission of the virus. The ONA submitted to the Court that the precautionary principle required the CMOH to expressly “acknowledge that COVID-19 is transmitted by aerosols” within the Directives. The ONA argued that the failure to do so went against the precautionary principle and resulted in health care workers, including nurses, being denied N95 masks or discouraged from using them even when an N95 respirator was determined to be necessary following a PCRA.

The ONA sought an order from the Court requiring the CMOH to amend the Directives to mandate the use of fitted N95 masks or approved equivalent or better, in a broader range of circumstances in health care settings. Alternatively, it sought to have the Directives quashed.

The Court’s Decision

The Court concluded that the Directives, both expressly and by implication, considered the applicable law (including the precautionary principle) and the applicable facts (including the possibility of aerosol transmission).

The Court centred its analysis on Directive #5. It noted that even in its earliest version, Directive #5 required a PCRA. Further, the current version of Directive #5 expressly outlined that:

any regulated health professional who determined through a PCRA that an N95 respirator is required in a particular situation must be provided with an N95
this requirement would apply to all health professionals interacting with the patient
employers were prohibited from denying N95 respirators requested following a PCRA, and
a nurse could take into consideration their proximity to a patient or resident and the mere fact of their interaction with one another in deciding whether a N95 respirator is required.

Considering these facts, the Court concluded:

[57] As this term makes clear, a nurse may require an N95 respirator at any time, in any of the situations in which the applicants have asked the court to order the CMOH to direct that they be provided. Thus, although the directive recognizes the possibility of only limited transmission by aerosols, it permits each regulated health professional to take precautions against the possibility of more widespread transmission by that means. In our view, this reflects the precautionary principle. Therefore, it cannot be said that the directives constitute an unreasonable failure to consider the applicable law and facts.

The ONA also argued that, despite the wording of the Directives, nurses were being discouraged from using or accessing N95 respirators. The Court found the ONA’s evidence on this point to be lacking and that the testimony of the ONA’s witnesses did not establish that any health care worker was ever denied a N95 respirator after October 8, 2020 (the date Directive #5 was amended and reissued). Even where there was such evidence presented by the ONA, the Court found it fell short of demonstrating that the conduct on the part of any health care employer was due to the failure of the CMOH (or the Directives) to acknowledge aerosol or asymptomatic transmission of COVID-19. Rather, the Court concluded that this evidence “does not go beyond suggesting that the employer’s conduct was caused by a failure to follow Directive #5, which is not relevant to the issue of whether the Directive itself is unreasonable.”

The Court concluded that neither the wording of Directive #5 nor the evidence supported the applicants’ argument that “access to N95 respirators as being impeded because of the CMOH’s alleged failure to acknowledge aerosol and asymptomatic transmission.” As a result of these findings, the Court stated it was unnecessary to consider the argument that the Directives breached the Charter. The application was dismissed.

Implications of the Divisional Court’s Decision

The Divisional Court’s decision makes clear that, even though the Directives establish “contact/droplet precautions” as the presumptive infection control measures for health care workers, they were drafted in such a way that they incorporate the precautionary principle and provide nurses and other regulated health professionals with access to N95 masks in any setting where they believe that, based on their professional judgement, an N95 mask is required. In light of this, the Court was clear that it was not necessary to wade into the debate around the transmission of the virus or determine which scientific view is correct.

Should have any questions about this decision, please contact Amanda Cohen or your regular Hicks Morley lawyer.

The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Hicks Morley Hamilton Stewart Storie LLP and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Hicks Morley Hamilton Stewart Storie LLP. ©

HR HealthCheck