Legal Risks of Delegating Informed Consent to an NP or PA

Mark Crane

Disclosures

November 30, 2017

In This Article

Can a Physician Delegate the Informed Consent Process?

Informed consent has been an essential requirement in medicine for more than a century. Except for in emergencies, physicians must discuss with patients the benefits, risks, and alternatives to any proposed surgical procedure before they can operate.

Treatments and procedures are often big decisions, and so doctors must engage in a give-and-take with patients, answering questions and securing written consent before going ahead with the operation or procedure. This process also includes many nonsurgical treatments, such as blood transfusions, colonoscopies, cancer treatments, and comprehensive medical regimens.

A number of physicians have begun to delegate all or part of the informed consent process to a nonphysician clinician, such as a nurse practitioner (NP) or physician assistant (PA). Is this an acceptable practice?

With increasingly more team care and NPs and PAs assuming more responsibility, it's a question that will come up frequently.

Court Rules Informed Consent Cannot Be Delegated

That was the key question in a controversial case recently decided by the Pennsylvania Supreme Court. In a 4-3 ruling, the court held that informed consent requires "direct communication between physician and patient, and contemplates a back-and-forth exchange. ... The duty to obtain informed consent belongs solely to the physician and cannot be delegated." The court held that a physician cannot rely upon a subordinate to disclose vital information and obtain informed consent.[1]

The American Medical Association (AMA) and Pennsylvania Medical Society disagreed. They argued that doctors can use their staff to assist in the process. The dissenting justices said that the court's decision "will have a far-reaching, negative impact on the manner in which physicians serve their patients. For fear of legal liability, physicians must now be involved with every aspect of informing their patients' consent. Some have claimed that this can delay seriously ill patients' access to physicians and the critical services that they provide. Courts should not impose such unnecessary burdens upon an already strained and overwhelmed occupation when the law does not clearly warrant this judicial interference." The AMA brief said that the law "focuses on what a patient has been told ... and not on who provided it."

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