Moral injury: An emerging legal field spurred by the pandemic?

As the world prepares to enter the third year of the COVID-19 pandemic, you can open almost any newspaper and find a story about a health-care worker at the end of her rope — risking her health in the shifting sands of epidemiology and politics while facing down fatigue, burnout and protests. Calls to the Physician Health Program of British Columbia, for example, went up 26 per cent in 2020 compared with 2019 because of the deteriorating mental and emotional health of doctors during the pandemic.

And that has caught the attention of personal injury lawyers – in early November, Kingston’s Bergeron Clifford LLP sponsored a conference exploring moral injury: what it is, who’s at risk, how to treat it and how it might be litigated.

Chris Clifford, a founding partner of Bergeron Clifford LLP, says the conference was not about drumming up work but rather about keeping people healthy in his eastern Ontario city.

Moral injury previously had been discussed in the context of veterans who had been forced to betray their own moral conscience during combat and had witnessed a traumatic event. In 1984, American philosopher Andrew Jameton applied the concept to health care, calling it moral distress, what health-care professionals feel when they’ve been asked to compromise their own values – in this case, while caring for patients.

Moral distress is different from moral injury in that distress does not require trauma. Distress is similar to burnout insofar as people who are overwhelmed morally may feel depleted, depersonalized and shamed. They may withdraw from others or want to quit their job or hurt themselves. Burnout is a familiar occupational syndrome, and not just in health care: It’s had its own diagnostic code in the International Classification of Diseases for nearly 30 years. You’ll find it under Z730.

Peter Dodek, a retired critical-care physician who worked for 35 years at St. Paul’s Hospital in Vancouver, spent much of his career navigating the high-stakes situations – making decisions about allocation of resources, caring for the critically ill – that tend to breed moral distress.

“The simple fact is that we are human beings,” he says. “We’re not machines that can just endure this endlessly.”

An all-too-common scene for Dodek was of a bedside nurse watching a patient languish despite the best attempts of the team. “The physician may say, ‘I just want to try one more day of this antibiotic.’ But she sees that we’re really just prolonging death by keeping the patient on life support, and she’s at the bedside 12 hours a day caring for them. That’s what I mean by moral distress.”

Beata Chami has faced similar dilemmas. For six years she worked in women’s shelters and community centres in Surrey, B.C., and in Vancouver’s Downtown Eastside, many of whose residents suffer from high levels of poverty, abuse and mental illness. “At a very young age I went through compassion fatigue and secondary trauma,” she says. “I didn’t have any resources for it, and I wasn’t quite sure what was going on.”

Chami went on to become an occupational psychologist and work on so-called presenteeism among physicians — the compulsion to show up for work, even when impaired by fatigue or illness. She worked for a time in the University of British Columbia Faculty of Medicine and now works as a consultant.

“Well-being for physicians isn’t just about yoga programs, meditation, and going swimming,” she says. “It’s about having better resource allocation, having someone who’s there for you at random times of the night. We see how much passion people have. People aren’t used to being vulnerable. They might not even know what’s bothering them because it’s not a part of the culture (to talk about it).”

Chami is quick to point out that whereas burnout is understood as something that individuals experience, moral distress is a mismatch between individual convictions and what the workplace is asking of them. It’s a systems problem.

Clifford, who says society’s – and the legal profession’s – understanding of resilience as an inborn characteristic that protects people against moral injury is changing. He draws on his own background playing in a minor hockey league as an illustration.

“(Injury was) almost a sign of weak moral character. You play through your injuries and never show your weakness, or you might not get to play again,” he says. “But the idea that resilience can be built up, and it can be strengthened and broken down – we’ve been paying some attention to that.”

Christopher Edwards, one of three employment lawyers who spoke at the conference, says that while he has yet to be approached with pandemic-related moral injury claims, he soon expects to be based on calls he’s received. There was a registered nurse who refused to give COVID-19 vaccinations because she did not feel they were safe. (She was fired). A surgeon who asked if he had the right not to be vaccinated but keep operating. (No). An emergency room physician who wanted to wear an N95 mask from his personal supply, but because masks were not available for everyone, was told he couldn’t. (He had to follow hospital instructions and not wear the mask).

Edwards, a partner at Soloway Wright LLP in Kingston and with 20 years of experience in litigation and independent investigation, says moral injury is an emerging legal field. Available legal frameworks don’t provide much guidance. Employees have the right to refuse unsafe work under occupational health and safety laws – but what constitutes unsafe can be contentious. And anyone asking for accommodations at work, including disability leave, probably will need to provide a medical assessment. A doctor or nurse practitioner, if pressed for a diagnosis of moral injury, would not be able to provide it: Unlike burnout, moral injury does not exist in the International Classification of Diseases in 2021.

“We are human beings. We’re not machines that can just endure this endlessly.”

And legal claims based on discrimination are likely to be difficult to argue. In a statement in September, the Ontario Human Rights Commission indicated that individual beliefs about vaccination or mask use are not protected under the code unless part of a religious creed. Edwards says that strategy is likely to fail. “Very few, if any, religions say vaccinations are bad.”

In other words, how to prove that being asked to do something that doesn’t align with one’s moral code has led to an infringement of labour or human rights law is unclear at the moment.

Back at the hospital, Dodek’s clinical work led to a 30-year interest in patient safety, including thinking about the ways organizational culture affects safety; this led him to what he calls “the dark side” of moral distress. He’s surveyed ICU doctors in lower mainland B.C., looking at the causes and consequences of moral distress, the rates of moral distress during the COVID-19 pandemic, and the relationship between moral distress and medical errors.

The results are surprising. Moral distress scores among Canadian ICU physicians before the pandemic were about the same compared to a larger group of ICU doctors across Canada and the U.S. during the pandemic. Rates of burnout before and during were about the same, too. And moral distress scores were not associated with medication errors.

So why the focus on moral distress and injury now? Dodek says while his survey results may not support the idea that the pandemic has caused a spike in moral distress among critical-care doctors, he says people are under other sources of stress – fear for the future, for example – and those cumulative stresses can affect people’s performance, which can lead to other problems for the workplace, such as incivility and team dysfunction.

Organizational psychologist Chami says the costs are real. “It could end up being that more and more people leave (health care) and then what do we do for patient care? Society ends up suffering.”

It remains to be seen whether moral injury will become a legal cause célèbre. Might there be a time when health-care workers would sue a government for its handling of the pandemic? Edwards says it’s hard to say.

“Never underestimate the creativity of a plaintiff personal injury lawyer.”

Correction: The description of Chami’s occupation has been updated to reflect that she no longer works at the University of British Columbia.