Who can obtain a patient’s consent? Answer elusive

by • September 1, 2008 • UncategorizedComments Off on Who can obtain a patient’s consent? Answer elusive7432

• The Gist: Attorney clients often ask questions that seem so simple, but yet are not. It’s these new frontiers that keep us on our toes.

© 2008 The Medical-Legal News
By Rose Clifford, RN, LNCC


I recently was asked by an attorney client to find out if a physician assistant (PA) can be the point person for obtaining informed consent from a patient. The answer has turned out to be trickier than I thought.
The short answer, based on our state statute, is that any “healthcare provider” can obtain informed consent. However, thorny issues arise when the person seeking the consent or explaining the complications is not the person who will be performing the given healthcare service. That is, can or should a nurse or PA obtain informed consent for a procedure that a doctor will be doing? Is it OK if the nurse or PA is an employee of the doctor? What happens when a patient complains or sues because the person most knowledgeable about the procedure (probably the person doing it) is not the one who explained the procedure or obtained the consent?
With regard to PAs for example, the American Academy of Physician Assistants’ Guidelines for Ethical Conduct clearly says that PAs can give informed consent “that is comprehendible to a competent patient….” But does the verbiage also apply in a situation where a PA is serving as the proxy for a doctor? This seems to happen often.
One LNC I asked about this issue noted that some consent forms are pre-signed by doctors or surgeons or that a doctor allows another person to obtain the consent. This seems risky to me.
On the Veterans Affair PA Association website, the PA advisor to the undersecretary for health notes that “PAs may obtain informed consent only for procedures they are responsible for performing.” But the site goes on to ask what happens when PAs share a service with another provider, or only assist. Then what?
The best answer, after some research, seems to be that the individual actually performing a surgery or service is ultimately responsible for the consent and that the consent be understood by the patient. Peter Bergé, a New Jersey attorney and New York State PA notes that obtaining a patient’s signature on a “consent form” is not necessarily a “scope of practice” question for a PA because signing a piece of paper is not the same as obtaining informed consent. His opinion is consistent with case law we have read, where courts have sometimes found that informed consent is beyond the “four corners” of any piece of paper that is called the “informed consent.”
Bergé notes that a provider could perform a procedure and give incomplete or inaccurate information to a patient, or a provider may not do the procedure, yet give excellent and comprehensive information. But ultimately, in his opinion, the person doing the procedure bears the responsibility of making certain the patient gave informed consent after being properly informed.
The medical-legal world keeps treading new ground, right? •

Rose Clifford, RN, LNCC, Editor;

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