“Balancing a Nurse’s Fiduciary Duty with their Right to Refuse Dangerous Work” - Marjorie Belzile, RN

Who do we protect? When providing care poses an almost inevitable risk of serious injury, how do nurses know where their obligation to client safety ends and their personal right to safety and security begin?  Tune in to hear Marjorie Belzile discuss her experience and research into this crucial issue.

Transcript

 Perley Brewer (Guest)   0:53
 Welcome to today's podcast. My name is Pearlie Brewer and I will be your host. Today's podcast guest is Marjorie Bazel. Welcome, Marjorie. Thank you for agreeing to be with us today.
marjorie payne   1:05
 Thank you for having me. This is wonderful.
Perley Brewer (Guest)   1:08
 Today's podcast is going to focus on the right to refuse balancing the nurses fiduciary duty with the right to refuse unsafe work. Who do we protect and I want to start off today's podcast by by sharing a short story from a number of years ago when I worked at Worksafe NB. We were doing a focus Group 1 evening in Moncton and we were trying to learn more about.
 Our audience from the point of view of their attitudes towards health and safety.
 And to start the session, the facilitator asked the question to the group and there was a group of of a number of different individuals from representing different industries. Organisations in the Moncton area and she thought to warm folks up, she would ask. The question is, do you have any hazards in your workplace? And and the first individual she asked was a lady who was the in charge of the emergency room.
 At the George DuMont Hospital and.
 When she was asked the question, do you have any hazards in your workplace? Her answer was no, we don't.
 If you want to talk about hazards in a workplace, the gentleman sitting beside me at petrel seafood, you should really talk to him now. At that time, I was sitting beside my boss and and we heard that response and and I guess he has the expression goes, we almost fell off our chairs and we thought, imagine what would go on in an emergency room at the Georges DuMont on a Friday night.
 All the hazards that a nurse would encounter, and, and we stopped and we thought about that for a while and we talked about it for a while and we we thought, well, why did she answer that way?
 And we came to the realisation that the probably most of her education and training over the years had focused on her care of patients, not her care herself, but rather how to take care of her patients and and really what we were seeing and not only at this focus group but in a number of different interactions we were having with with the healthcare profession across the province was that.
 A general attitude of a lot of healthcare professionals was let's make sure we we focus on and take care of our patients and perhaps getting lost even back then in the discussion was the things that they should be doing to take care of themselves. Because again, if you can't and they're not taking care of yourself as a say a nurse or a doctor, how are you ever going to be able to take care of your patient? So when I saw and became aware of your paper, I thought, you know what an excellent.
 Opportunity to discuss the topic.
 And to get your perspective on it.
 You start off your abstract by by making the following statement. When providing care poses an almost inevitable risk of serious injury. How do nurses know where their obligation to client safety begins and the personal right to safety and security begins? And that's an excellent question. So today what we want to focus on in our podcast is you've written a document, a paper that's excellent and that really gets into detail.
 On the difficulties of coming up with an easy solution. So let's start, Marjorie, by getting you to tell us a little bit about yourself or folks that have never met you a little bit about your background.
marjorie payne   4:29
 Hi I've been a registered nurse actually for 39 years. I have quite an eclectic background. The 1st 20 years I did mostly hospital clinical nursing. I worked in critical care. I also did a little bit in the military so different areas like that.
 20 years ago I did my specialty in occupational health nursing and from the so for the last 20 years I've I've had a major focus on health and safety.
 In the healthcare sector and of that 20 years it's been spent in long term care and I actually work for a continuing Care Safety Association right now and we oversee the health and safety of the 70 nursing homes in New Brunswick.
Perley Brewer (Guest)   5:16
 So why did you end up researching and writing on this topic?
marjorie payne   5:21
 I was taking a course at Dalhousie University. It was a graduate certificate in healthcare law for non lawyers and any time I I love studying so anytime I I take a course I'd love to see the relevance, the impact that I could use in my practise so working in the nursing home in, in my the paper I wrote, we had to streamline it to in kind of focus it in on.
 One particular area, so I chose frontline nursing.
 And in long term care and in New Brunswick, sorry, I focus it down to that and we at our association had just developed a new muscular skeletal injury prevention programme and MSI prevention programme. And so there was a lot of conversation around just what you said.
 Well, we're here to protect the residents, residents, our our clients in nursing homes and the residents in the nursing home require 24 hour care.
 They have significant physical and cognitive disabilities, so they need a lot of of care. A lot of hands on. So we often put the needs and the safety and the care of the client or the resident ahead of our own and and we see this time and time again. And when we develop this new MSI prevention programme, there was a lot of discussion on.
 Well, if we start protecting ourselves and and putting ourselves.
 Quote UN quote above the resident.
 Then we're not following our mission of our facility or we're not providing dignity to the client, but that was a false way to look at things. We have to balance both equally.
Perley Brewer (Guest)   7:11
 The current situation for nurses.
 When I go through your document you you provide your introduction which you just really have and and a little bit of background.
 What's the current situation like for nurses and and how big an issue is this right now for nurses?
marjorie payne   7:28
 So in New Brunswick, for example, and my statistics are a little bit old here, but in 2021 the nursing homes in New Brunswick, about 70 of them experienced 17,763 full time equivalent days missed work due to injuries. So almost 18,000 days were lost just due to injury and.
 Were that's and the other impact is that most nursing homes have on average about 15 days of sick time per year per per worker.
 So we've got significant injury, but we also have perhaps a lot of fatigue that we're not even those sick times could probably be when people have been overworked, when they're just exhausted, when they're feeling sore and achy, can't come into work, not, you know, they're not injured per say that that would, they would be on a claim, but they're quite, quite fatigued and unable to work also. So we have significant injury rates and sick time rates in a nursing home.
 And then when you take those?
 Employees out of the mix for the day, the employees that are left behind are working harder because they're often working, short staffed and right now in New Brunswick, like most provinces, we have a shortage of healthcare workers. So it's just being compounded on top of each other.
Perley Brewer (Guest)   8:50
 Yeah. Certainly. When you look at that, the compounding effect.
 You wonder at times how the homes do manage to operate at all. When when you start to look at, you know, the shortage of staff. Now, from a legal point of view, you have to you have two issues here. The protection of the residents and also the protection of the nurses and and you can indicate good detail I find on the legalities of that. As such. Do you want to just to highlight for folks, what are the legalities when it comes to?
 The challenge you face as a nurse and sort of you, you have to care for your patients, but you also have to keep yourself safe. What is? What were some of the issues that you talked about?
marjorie payne   9:34
 OK, so looking at the client 1st and like I say in nursing home, we call them residents. So there's several legal protections that ensure that we have safe, competent and ethical treatment to our seniors in care.
 We have, if you're a registered nurse or a licenced practical nurse, we have our nursing act or LPN act that tells us how we provide that competent care. We have the Nursing Home Act and I believe there's a healthcare act in the acute care section.
 And Department of Social Development has standards and regulations, of course, also. And then the nurses act.
 Overseas things. And then there's a seniors advocate as a new body within New Brunswick who can investigate and check into things and families can bring forward concerns. So we have lots of rightfully so.
 Different legislative requirements for the protection of our residents, and that is absolutely necessary because nursing is a self regulatory body, meaning we regulate ourselves.
 So client protection is the number one top focus of any care provided. So when someone becomes licenced they have to meet the standards and competencies of the profession and that's in the interest of public safety. So you know anyone that's caring for anyone vulnerable has to meet the standard care.
Perley Brewer (Guest)   10:57
 So what about the rights of the worker?
marjorie payne   11:01
 So then of course, the right of the worker, we have the legislation under the Nursing Home Act. So section 19 of course talks about the right to refuse. So an employee may refuse to do any act where they are reason where they have reasonable grounds for believing that it's likely to endanger their health and safety or the health and safety of others. So we have work safe legislation, unions also.
 Weigh in on this and which is a good thing.
 The nurses union in New Brunswick weighs in on it. Cuper unions weigh in on it.
 And there's also some.
 Labour laws and standards, of course, have a little bit in there too.
 So the unions and Worksafe play the most significant part in ensuring worker safety in New Brunswick.
Perley Brewer (Guest)   11:48
 Now you quote in your document a number of cases. Different cases were relative to this issue are there were there any of those cases that really stood out to you that that you read and you sort of made you ponder the the difficulties, the challenges of of a nurse?
marjorie payne   12:05
 One of the most interesting cases, and let me just double check my notes here was the one in Ontario.
 It was. Let me see now.
 Buyers versus fiddick. It was in a nursing home in 2012. So in that case a nurse was injured while attempting to catch a falling resident falling client when she injured her back. So she went out on injury. And when you're out on injury, you're working, you're working towards getting.
 Better you'll be assessed for functional ability at what? So your functional abilities? How much work can you do at this time? How much can you lift? How much? How much time can you spend on the floor? How many hours can you work? So it you're working your working your way back to?
 Pre accident ability. So this nurse was off on injury but they were short staffed and the employer called her and insisted that she come back to work and she said I cannot come back to work because I'm not functionally able to and the employer insisted that she come back to work.
 And she felt that she had to resign her job rather than show up to work or feel like she was abandoning her residence. So.
 A little mucked up there. Sorry, pearly.
 So she felt that she had to quit her job because if she didn't, she would be, could be potentially disciplined by her employer and her association for a failure to meeting her duties. So she quit her job, and then she sued the employer, and she was found.
 If the decision was founded in her favour because.
 They did not exercise a duty to accommodate up into the point of hard unto hardship.
 So it kind of highlights that when someone is hurt or injured, there is lots of protective rights there to ensure that we don't injure them further and that we have to accommodate them. But there doesn't seem to be as much concern or legislation or emphasis on preventing that injury in the first place.
Perley Brewer (Guest)   14:02
 What?
marjorie payne   14:23
 We we don't. Yeah. Sorry. Go ahead.
Perley Brewer (Guest)   14:25
 So. So let's get into then based on on the comment you just made, there's lots of protection in theory for the patient, for the residents, there are protections under the right to refuse for the workers.
 But I I wonder if people really realise the challenges of of finding that point where you can balance both and in your conclusions you came up with a number of recommendations that a number of against still challenges that are are out there.
 That folks need to address. Do you want to talk about those?
marjorie payne   15:02
 Certainly. So when we look at so a nurse, when she was into work or when she accepts her client assignment, resident assignment, she has a duty to care and she has a fiduciary duty to purport the needs of the client ahead of herself. Also duty of non Maleficent. So cause no harm. So there's lots of duties there. And if the nurse was to put for example.
 If the resident wanted to do wanted to walk or get out of bed on their own.
 Insisting on getting up and trying to get up, the nurse needs to either almost in a split second, either determine I need to stop what's happening here, go get a tool so that I don't hurt myself, or if the resident insists on getting up and moving, the resident might fall down. The nurse will try and help the resident grab them from falling.
 Oh my goodness, pearly, I'm going to back that all up. Sorry about that. Can, can you restate that for me? I'm so sorry.
Perley Brewer (Guest)   16:04
 So given the challenges, so given the challenges that exist that you have a nurse, for example, lifting a patient or moving a patient, yes, there are protections for the residents in place to to ensure that they get that care. But there's also the challenges of the nurse herself or himself to ensure that they do it in a safe way.
marjorie payne   16:05
 Edit that out.
Perley Brewer (Guest)   16:27
 Talk about that issue and and and how it's being looked at or addressed or addressed right now.
 And based on some of the conclusions that you've come up with, what maybe should we be addressing in the future to try and make that situation better for for everyone?
marjorie payne   16:45
 OK, so for for decades we've been using our bodies to move other bodies.
 We we teach people how to do body mechanics, how to safely lift, transfer and physician residents, but we found that statistics over 35 years and we looked at 131 article had 130.
 Articles that they did a 35 year meta research on.
 And we're not decreasing any of our injuries.
 Our last time injuries are actually becoming more frequent and more severe. So what we're doing is not working.
 So we need to look at how we're working and look at better practises. So one of the programmes that we just developed where I work is about always using a tool whenever we're using or manipulating or moving a resident. So we need to make sure that there are tools in the workplace and there are a lot of them out there.
 Scandinavia, for example in Denmark, they have a tool that helps turn a position clients in bed and it's with the push of a button. It's it's one person care.
 There's zero workload or zero.
 Cumulative load on the worker, so there's lots of great tools out there. There are sit to stand aids, there are ceiling lifts, there are all kinds of tools, but it takes time for government or facilities or organisations to implement these tools. Also, policy and recognition of what is a safe client nurse ratio.
 We're very abstract about that. We'll say 3.9 hours of care per day. So in a nursing home, for example, we need to each resident gets 3.9 hours of care per day. It's a great it's a complex formula, and then you how many beds do you have? How many residents do you have? We multiply that times how many staff you need. It's over a 24 hour period, but the bulk of the workload is in the morning, perhaps in the afternoon. So there's all kinds of complexities in that. So we need to look at those.
 Is too, and just arbitrarily putting a number such as you know 2.93 point one wherever we want to put that number.
 It doesn't mean that every nursing home, every unit, every resident, is the same. Some residents may require 7 hours of care, some may require less. But when you're looking at a nursing home in New Brunswick, it's a Level 3 and you call Level 3. They require 24 hour nursing care, so that's quite complex and it's a lot of physical manual handling. So until we get more.
 Workers in the workplace. But the problem is right now we can put the hours of care up to seven hours of care, but we don't have the workers to go in there. So what are the other things we need to look at? We really do need to look at equipment and we need to have staff trained in the equipment. The equipment needs to be in the workplace.
 If that's what's going to help the staff to give competent, safe care.
 Sometimes people feel that it's.
 A little bit detached from the resident when we use equipment, but it actually is much safer for the client and it's much safer for the caregiver. So it's a duality there.
Perley Brewer (Guest)   20:06
 Now you had some quotes in your document that I really liked. One of them is this. There is neither direction nor clarification regarding unreasonable burden or unreasonable danger. Once again, the nurses left alone to determine how to measure these risk.
marjorie payne   20:23
 Right. And that was in that's from let me the code of ethics from the nursing nurses Code of Ethics. And so it talks about four different things whether there was an unreasonable burdens if there was unreasonable danger. And then the two other ones there was it beyond your level of competence or was it in conflict with your moral or ethical standards? Only two of those, the ethical standards and competence were addressed, but there was nothing to talk about, unreasonable burden or unreasonable danger. So.
Perley Brewer (Guest)   20:23
 Yeah.
marjorie payne   20:53
 How do you in the moment quantify that when you're at work?
 You have a split second to do to decide. Excuse me, there is also in our code of ethics for nurses, which is a fantastic guiding document that helps us in our practise every day to think about moral and ethical situations. And there's five guiding principles with some sub questions. So about 31 questions kind of to help you guide through an ethical dilemma. However, when you have a split second to decide.
 Am I gonna do a or am I gonna do B? Your body responds. One way. Your head is responding another way. You do not have time to go through any of those questions. You're just kind of on autopilot. It's only going to be in self reflection and in hindsight, that we're going to say, Oh my goodness, yes, I should have done that. Or the other way would have been better. Or now I've left the resident harmed because I didn't intervene or.
 It could be that I've intervened and now I'm harmed because I did intervene so.
 It's it's an impossible dilemma in the split second that often a nurse has to make no situations.
Perley Brewer (Guest)   22:01
 Yeah. When I read that statement, that's really the point that jumped out of me was that it's it's not an easy decision yet. You only have, as you put it, the fraction of a second to make the decision, and it can be a decision that has a major effect not only obviously on you as a caregiver, but also on the patient. Another quote you had in there and that I'd like to get you to expand on a bit is there is no legislative protection to manual handling.
 Even though it is in most permutable injury.
 It seems that even the provincial body responsible for these protections of healthcare workers had not been successful to date in addressing the very real, often career ending and lifelong injuries that plague the healthcare sector.
 What based on on your research document, what would you like to see put in place to make it safer for both the nurses and their patients and clients?
marjorie payne   22:58
 So I think we need to start at the ground level in educating even nurses and like I say, it's been quite a while since I've been in my basic education system, but from what I understand, even now nurses are not learning a lot about how to protect themselves. What are the risks, how to identify an ethical dilemma, and how should I respond to this.
 But even even like, for example, in work safe they have been working with nursing homes for well over 20 years, it's been a very hard sector to kind of.
 Wrap around. I remember years ago when I worked at work, safe for a short while also.
 And I was on the committee that was overseeing the nursing homes and the officers were reluctant in that. They would say, I don't want, you know, I can't go behind the curtain. I don't know what's happening behind the curtain. And even if I went behind the curtain, I wouldn't even know if what I was looking at was safe or unsafe. If it was the standard of what's going on. So.
 At our safety association, too, we we collaborate with Worksafe New Brunswick and and we offer to come in, you know, to help educate officers. We need to get more education out there about what does a safe situation look like when you're handling a client. What does an unsafe situation look like when you're handling a client? So until we have really good emphasis on this.
 A lot of education on what safety looks like and what unsafe looks like.
 Not going to change very much. There's also within worksavers, you know, everything from smoke free workplaces to women's to.
 Gosh, trenching ventilation, asbestos. There's so many things, but there's nothing really a lot of meat in the legislation about.
 Client handling or material handling when it comes to our bodies, there is a code of practise for resident client handling.
 But I think it really needs to be updated and it really needs to have an emphasis on tools, tools and equipment. European Union, for example, does have legislation that workers only allowed to lift so much, and if there is a tool available, they're obligated to purchase that tool. So we have the tools, but I think we need to get a little more meat.
 Into the healthcare sector about obligating government to fund employers to purchase.
 And for maybe even Worksafe to.
 Mandate that these things are required.
Perley Brewer (Guest)   25:39
 Yeah. Certainly. When you look at the ergonomics of of a workplace right now, legislation really doesn't exist. It's it's left up to the organisation to develop their own code of practise and that's, you know, some folks would say that's nice, but certainly limitations to that. Perhaps one final area I'd like to to to have you expand on is another quote that you have in your document that's refers to the the fact that.
 73% of New Brunswick nurses identify a lack of workplace safety.
 Among their top five factors negatively influencing the quality of healthcare and workplace conditions that certainly stood out to me, as well as a as a statement.
marjorie payne   26:20
 That was a fantastic there was an article on the New Brunswick Nurses Union website. This was a 2021 survey that they sent out to their members and the the statistics in that article are quite startling about workplace safety. Nurses seem to have been doing more and more with less and less over the many decades and it's really impacting retention.
 And recruitment of all nurses.
 And at all levels, whether you are a registered nurse, licenced practical nurse or a personal support worker like on the front lines. So it's really having a negative impact.
 There are the clients we see in the nursing homes are coming to us. We call it a higher acuity, meaning that they're coming more disabled, more advanced in their disease process or.
 Their abilities are less and less when they come to us.
 So the workload is is increasing significantly, whereas years ago you might have had a more of a balance of of residents who are up and walking, who are ambulatory and maybe half of them required physical assistance to get up. But now the balance is is very much tipped the other way. And you could easily have 75 to 80% of your clients require physical manual handling and very few that are up in ambulatory on their own.
Perley Brewer (Guest)   27:46
 Well, look, Marjorie, your document is a fantastic document. We were talking before our podcast went on air that.
 As to feedback, have you received a lot of feedback on it yet, or have you had a chance to really distribute your document?
marjorie payne   28:01
 I've only sent it to a few friends who appreciate it quite a bit.
 It's funny enough, I did send it to the Canadian Nursing Association, like for an article in the magazine, but I think they wanted something like 400 words. And this is like 20 pages. So and I didn't have the time to really shave it down and I didn't feel that shaving it down would have the same emphasis of what it is right now. So it has not had a lot of of circulation yet. But if anyone's interested, I could certainly provide it.
 Again, I am not a lawyer, but it was a law paper and and we looked at the different defences of what of how a nurse, if they did find themselves in situation where that they failed to act and something were to happen to the client, that there was some damages, would they be held responsible? So the case law in Canada's not clear yet.
 But hopefully that with looking at new and evolving methods of caring for residents that we can look at.
 Having a safer environment for the nurses every day.
Perley Brewer (Guest)   29:11
 Well, I'd like to say this to finish our podcast Marjorie back a number of years ago, I did work at at Worksafe as well. As you mentioned you did. I was on the Nursing Home Committee very much aware of the issues that you've brought up in this document. It's an excellent document and I really believe that you've done a very thorough job of looking at the issues, the challenges of a nurse.
 Trying to deal with patients, clients and from both a legal point of view and also an ethical point of view.
 And certainly you should be sharing this document with a wide audience. So if someone were to ask to get a copy here, is there an e-mail address they could send a request to?
marjorie payne   29:52
 Yeah, I do have my personal e-mail address. They could register or request. It's M belzill, so MEELZILE insulting@hotmail.com.
Perley Brewer (Guest)   30:05
 Rate and if if you have difficulty getting a response there, feel free as always to send an e-mail to us at safety services New Brunswick and we'll facilitate the process as well. Look, Marjorie, it's been very enjoyable talking to you today. Thank you for the good work that you've done. You present a lot of issues and and and trust me, there's a lot of nurses, healthcare professionals out there.
 Who are working with these challenges every day in a very in an environment that's struggling we we hear so much about the healthcare environment and it's a it's a situation where they're putting themselves at risk and risk of injury and in some cases short term. But in other cases long term, as you put it, career ending.
marjorie payne   30:49
 Absolutely. Yeah. It's it's time for a culture change and it's time, especially for the new nurses coming in. Let's arm them with the education that you need to work safe.
Perley Brewer (Guest)   30:50
 Just just.
 Well, look, thank you very much, Marjorie, for joining us on today's podcast. Stay safe. We'll see you next week.
marjorie payne   31:08
 Thank you.