Directive #5 Injunction
By: Amanda Hunter, Janine Liberatore, Harriet Yiga
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On April 23, 2020, Justice Morgan of the Ontario Superior Court issued an order requiring four Long Term Care homes (LTCs) to comply with the Chief Medical Officer of Health of Ontario (CMOH) Directives regarding health and safety measures in LTCs during the COVID-19 pandemic. The Order requires the LTCs to provide access to N95 masks and to implement administrative controls around isolating and cohorting residents and staff as set out in Directives #3 and #5 issued by the CMOH.
The Court’s decision is notable because Justice Morgan concluded that the decision regarding the need for PPE, including N95 masks, is to be made by a nurse based on his or her assessment at point of care. Justice Morgan further ordered that nurses are not to be “impeded” by management in making their assessment and determination. Nurses are expected to apply their professional judgment, taking into account the relevant short-term and long-term considerations – which include the current scarcity of N95 masks.
The Court Proceeding
The Court Order was obtained by the Ontario Nurses’ Association (ONA) through an application for injunctive relief against four respondent LTCs: Eatonville Care Centre; Anson Place; Hawthorne Place and Henley Place. ONA argued that the lack of PPE and appropriate infection control procedures at the LTCs was a violation of the collective agreements; a breach of the public health directives; a violation of the Occupational Health and Safety Act (OHSA) and an infringement of s.7 of the Charter regarding “the security of the person.”
In the application, ONA sought an Order requiring the LTCs to comply with the CMOH Directives #3 and #5 issued pursuant to the Health Protection and Promotion Act (HPPA). In particular, ONA wanted the LTCs to allow nurses to make PPE decisions on an ongoing basis at the point of care, as well as isolating and cohorting residents and the staff attending to them, so that those who are infectious are kept separate from and treated by different nurses than those who are not.
The Attorney General was given notice of the application and participated in the hearing as well as representatives from the Ministry of Health and Long-Term Care (MOH). The Attorney General and MOH did not take a definitive position on the injunction but did provide evidence regarding the policy context of the CMOH Directives. It also took the position that ONA was “overreaching to the extent that the relief that they seek requires LTC facilities to provide them, on demand, with whatever PPE they in their sole discretion deem necessary”.
Section 77 of the HPPA authorizes the CMOH to issue directives to health care providers where there “exists or there may exist an immediate risk to the health of persons anywhere in Ontario.” It further authorizes the CMOH to direct health care workers and organizations with respect to procedures “to be followed to protect the health of persons in Ontario”.
On March 22, 2020, the CMOH issued Directive #3 which specifically applies to LTC homes. Directive #3 was updated on March 30, 2020, and supplemented by an outbreak Directive for LTCs on April 1, 2020. Directive #3 addresses required precautions and procedures in LTCs during the pandemic. With respect to masking, Directive #3 states: “Long-term care homes should immediately implement that all staff and essential visitors wear surgical/procedure masks at all times for source control for the duration of full shifts or visits in the long-term care home. For further clarity this is required regardless of whether the home is in outbreak or not.” With respect to cohorting, Directive #3 states that LTC homes “must use staff and resident cohorting to prevent the spread of COVID-19” and provides a number of examples of appropriate cohorting.
On April 10, 2010, Directive #5 was issued and updated to specifically apply to LTC facilities. The updated Directive #5 followed consultation between the Ministry and the ONA. With respect to N95 masks the joint statement states that:
A PCRA [point of care risk assessment] ‘must be performed’ by every health care worker before every patient interaction;
The PCRA by the health care worker “should include the frequency and probability of routine or emergent AGMPs [aerosol generating medical procedures], and N95s or equivalent or better protection must be used in the room where AGMPs [as defined in the Directive] are being performed, are frequent or probable.
If a health care worker determines, based on the PCRA, and based on their professional and clinical judgment, that certain health and safety measures may be required in the delivery of care to the resident or patient, then the public hospital or LTC home must provide the health care worker with access to the appropriate measures, including an N95. The public hospital or long-term care home will not unreasonably deny access to the appropriate PPE. Health care workers must complete a PCRA before every patient interaction and if it is probable that an aerosol generating medical procedure (AGMP) be required, an N95 or equivalent must be used in the room and the LTC will not unreasonably deny access to the appropriate PPE.
The LTCs argued that the use of the word ’appropriate’ and the balance of obligations in Directive #5 provides the LTCs’ management input in the PPE required in each situation.
The Evidence of Infection Control Practices at the LTCs
As of the date of the hearing, 110 residents and at least 7 nurses had contracted COVID-19 and at least 54 residents had died from COVID-19 at the four Respondent LTCs.
ONA submitted a number of affidavits from nurses working at the LTCs. Regarding Eatonville Care Centre, the evidence submitted by ONA was that only nurses attending to confirmed cases of COVID-19 were permitted the N95 respirator masks. Staff attending to residents who are symptomatic had been supplied ordinary surgical masks and advised that N95s were unnecessary. As of April 14, 2020, Eatonville had 25 publicly confirmed deaths and 49 cases. The Coroner’s Office was no longer entering the building and staff members were required to bring dead bodies outside to officials.
ONA’s evidence regarding Anson Place was that nurses were advised that N95s were unnecessary and would only be provided when a nurse was swabbing a patient for COVID-19. Management kept a small supply of N95 masks available at the nursing station for limited use and the rest were under lock and key in the Executive Director’s office. As of April 14, 2020, 49 of the 58 residents on the second-floor long-term care unit had tested positive. All the other long-term care residents were presumed positive. There were 20-some residents on the first-floor retirement home that had also tested positive. Anson Place had not implemented isolation and cohorting measures. Residents diagnosed with COVID-19 had not been moved from shared rooms and residents from the first and second floors were permitted to continue intermingling freely in the building’s common lobby.
At Hawthorne Place, ONA’s evidence was that as of April 12, 2020, there were 6 diagnosed cases of COVID-19 and one death among the 215 residents. There was one diagnosed case among the home’s nursing staff. There were at least 4 additional residents of the second-floor long-term care unit exhibiting COVID-19 symptoms. Since the pandemic began in March 2020, Hawthrone Place has been chronically short-staffed. A very limited supply of N95s were made available for use with the rest being locked in the medicine storage unit. Management, not nursing staff, allocated PPE and made the decisions as to when N95s and other PPE were used. Residents who had become symptomatic were not isolated while awaiting test results. Staff who were exposed to these patients were instructed to report for work as usual rather than to self-isolate.
Regarding Henley Place, ONA’s evidence was that one resident tested positive for COVID-19. N95s were removed from the facility’s storage room and put under lock and key in the Administrator’s office. Any staff member requesting an N95, was required to go through several layers of management before being approved. Patients had undergone emergency COVID-19 procedures by nursing staff who could not access in a timely fashion, the N95 masks required for the task. Managerial rather than medical personnel made the decision as to what PPE a nurse should access and under what circumstances.
ONA filed grievances at all four facilities alleging they have failed to take adequate measures to protect the health and safety of ONA members.
The LTCs filed material that they had, in fact, complied with Directives #3 and #5. They argued that the proceedings challenge the allocation of scarce but essential medical resources – i.e. PPE and, in particular, N95 masks. The LTCs noted the recognized scarcity of some PPE resources. They asserted that Directive #5 requires PPE decisions to take into account not only what the nurse determines to be necessary at the point of care, but what the LTC considers to be appropriate or reasonable under the circumstances taking into account conserving supplies for all of the LTC’s health workers as well as for the future need for those supplies.
ONA and the LTCs’ experts held contrary opinions regarding the necessity of N95 masks, in light of the insufficient supply of N95 respirators.
The Attorney General presented evidence from an expert microbiologist and former Director of the Division of Infection Control at Mount Sinai Hospital in Toronto. Dr. McGeer deposed that there are limited circumstances in which N95s are necessary and the need to conserve N95 respirators should be taken into consideration. Further, the lack of N95s is not the cause of outbreaks in LTCs and that clustered infections appear to occur when no PPE is worn near patients or other health care workers who were not recognized as having the infection.
ONA submitted an affidavit from Dr. Lisa Brosseau, a retired Professor from the University of Illinois Chicago School of Public Health. Dr. Brosseau’s evidence was that “there exists a biological possibility that COVID-19 can be transmitted by airborne particles.” Justice Morgan found this evidence to be “admittedly rather weak language”. He also considered the evidence of Dr. Gary Garber, the Medical Director for Infection Prevention and Control at Public Health Ontario who opined in his affidavit that if COVID-19 were transmitted by airborne transmission rather than by respiratory droplets, we would see a far greater rate of infection. Dr. Garber stated that evidence to date suggests that COVID-19 – unlike tuberculosis, chicken pox, and measles – is not transmitted through the air.
The competing expert opinions resulted in Justice Morgan concluding that “the evidence regarding the transmission of the COVID-19 virus “continues to evolve”…[and] is not for me to iron out in this Application. It does demonstrate however, that the expert community is still trying to come to grips with the complexities of the COVID-19 virus.”
The Precautionary Principle
Section 25(2)(h) of OHSA mandates employers to “take every precaution reasonable” for the protection of the worker. ONA argued that the principle applies where health and safety are threatened even where there is no scientific certainty that an activity will cause harm. The principle obligates employers to take precautions against the “as yet unknown.”
In February 2020, Public Health Ontario and the Ontario Ministry of Health published advisory documents indicating the means of transmission for COVID-19 were not fully known and that full precautionary measures should be taken, including the use of respiratory N95 masks. On March 11, 2020 the World Health Organization also recommended complete respiratory protection for workers. However, on March 10, 2020, Public Health Ontario released a Technical Brief entitled “Updated IPAC Recommendations for Use of Personal Protective Equipment for Care of Individuals with Suspect or Confirmed COVID-19″ which removed the recommendation to implement airborne precautions including N95 respirators for most COVID-19 care.
ONA argued the Brief was based on outdated studies done between 2012-2016 which made no reference to the epidemiology or transmission of COVID-19 or the PPE as it relates to COVID-19. Recognizing the controversy over the N95s, the CMOH’s Directive #5 leaves the choice of protective gear (specifically the N95 mask) to the health care provider at the point of care. ONA argued that, in the context of COVID-19, where the modes of transmission are unconfirmed and it is possible the virus can be transmitted by airborne particles, the precautionary principle supports their argument that fit-tested N95 respirators must be worn when providing up-close care to known or suspected COVID-19 patients.
The Court noted in the decision that the issues before it were “fundamentally a labour dispute”. Generally, labour disputes are within the exclusive jurisdictions of labour arbitrators or the Ontario Labour Relations Board (OLRB). However, the Courts retain inherent jurisdiction where a litigant cannot obtain a meaningful remedy through the available administrative tribunal processes.
As noted above, ONA commenced grievances at all of the named LTCs however, ONA argued that the grievance process takes time and even when expedited would not be before an arbitrator for at least 30 days. Similarly, the inspection process under OHSA would also not address ONA’s concerns in a timely manner. ONA noted that OHSA inspections were no longer being done by visit to the facility, but rather over the phone. In addition, the appeal process before the OLRB, where no order was issued by an inspector, would not address the underlying policy decision of whether N95 masks should be available going forward.
The Court concluded that injunction proceedings were available to ONA because “[t]he real problem raised by this labour dispute is that the arbitral process is a slow and protracted one. In effect, that leaves this court’s inherent jurisdiction as the only legal mechanism to realistically fill the void.”
Test For Injunction
The applicable test for an interlocutory injunction comes from RJR-MacDonald v Canada,  1 SCR 311, at para 43:
1) is there a serious question to be tried;
2) will the applicant suffer irreparable harm if the interlocutory relief is not granted; and
3) does the balance of convenience favour granting relief pending the final determination of the matter?
Both parties agreed there was a serious issue to be tried. The LTCs also conceded there was a risk nurses would suffer irreparable harm if the injunctive relief was not granted. However, they argued that harm could not be considered in isolation. The balance of convenience at the third stage of the injunction test had to assess whether having nurses determine whether they get to use an N95 masks will impact the availability of the limited supply. The balance of convenience had to incorporate the public interest not just ONA’s narrow, private interests.
The Court concluded that ONA’s request for protective equipment did not represent a narrow private interest as the work performed by individual nurse’s benefitted not only their patients but society at large. There was no prejudice to the LTCs which outweighed the irreparable harm that the nurses could suffer. The balance of convenience favoured, “those measures that give primacy to the health and safety of medical personnel and those that they treat.” The Court concluded as follows:
Accordingly, all three steps in the test for injunctive relief had been met. Nurses are not to be impeded in assessing and determining at the point of care what PPE or other measures are appropriate and required under the circumstances. That assessment and determination is to be made on the basis of their professional judgment and should account for the immediate situation and the relevant short-term and long-term considerations.
It is important to note that injunction proceedings do not reach conclusions on the merits of either party’s argument or evidence. As noted above, the Court need only be satisfied that there is sufficient evidence of a serious issue. It doesn’t have to decide the issue. The hearing before Justice Morgan took place over videoconference based on the affidavit evidence presented by the parties. No witnesses were cross-examined. Until a full hearing on the merits is undertaken, the four LTCs subject to the Court’s Order must comply and give nurses the discretion to decide on the PPE they require based on their point of care assessment.
Our knowledge and understanding of COVID-19 continues to evolve. New information from evidence-based studies being undertaken globally could change the recommendations of the CMOH. In addition, improvement in the global supply chain could alleviate the problem of availability of N95 masks. Until that occurs, we can anticipate that unions will be relying on this decision to push for more autonomy for health care workers over the allocation of PPE, specifically N95 respirator masks.
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