Delegating tasks: Know the legal risks
By Sue Dill Calloway, RN, MSN, JD
Nurse Attorney
Mount Carmel College of Nursing
Columbus, OH
Delegation is the transfer of responsibility for the performance of a selected nursing activity from a licensed nurse authorized to perform the activity to another individual. This practice is growing, as is the controversy that surrounds it. Some insist that only nurses should perform nursing tasks, while others argue that delegating tasks to unlicensed assistive personnel (UAPs), which include aides, techs, emergency medical technicians, and paramedics, is necessary to contain rising health care costs. (See related article about high-risk areas, right.)
There are two underlying principles inherent in the art of delegation: First, one cannot delegate what one does not legally have. Therefore, a nurse could not delegate acts of medical diagnosis since the nurse can not medically diagnose.
Second, if one already has the legal authority to perform a task or activity, delegation is not necessary. The latter is sometimes referred to as indirect delegation. Indirect delegation provides that tasks or activities from an approved list contained within the policies and procedures of the facility can be performed. For example, the ED tech who is trained to draw blood, do an EKG, vial signs, or instruct patients in obtaining a clean catch urine.
Direct delegation occurs when the nurse determines the task that can be delegated. The nurse retains accountability and should assess the competency of the individual performing the task.
The nurse delegating the task must provide adequate supervision of the UAPs. The task should not require complex observations or critical decision making. The consequences of performing the task improperly are minimal and not life-threatening. The nurse must evaluate and document on an ongoing basis the nursing needs of the patient.
The Des Plaines, IL-based Emergency Nurses Association (ENA) has several documents that discuss the issue of delegation. Nurses should be aware of all national position statements since they can be introduced into the courtroom to demonstrate the acceptable standard of care. (See resources, p. 23, for more information.) All policies and procedures should be consistent with the standard of care.
The ENA Standards of Emergency Practice (1997) recommend that triage be performed by an RN. ENA also recommends that only nurses educated in the practice of triage with a minimum of six months in emergency nursing be allowed to triage. ENA also has a position statement on The Use of Non-RN Caregivers in Emergency Care.
In 1996, a study was performed by ENA of 1,373 EDs as to the types of employees. The results were as follows:
• RNs were employed in 98%;
• LPNs were employed in 43%;
• UAPs were employed in 24%;
• physician assistants were employed in 16%;
• nurse practitioners were employed in 7%.
Direction from ENA
ENA has concurred with the Chicago-based National Council of State Boards of Nursing on several issues:
• The non-RN caregiver cannot re-delegate a delegated act (no subcontracting).
• Boards of nursing should develop clear rules on the competence of persons to perform delegated nursing tasks.
• While employers and administrators may suggest what tasks may be delegated, it is the RN who ultimately makes the decision and is ultimately accountable. The nurse can be disciplined by the state board for improper delegation.
• Nonnursing and managerial personnel must not coerce the nurse into compromising patient safety by requiring the nurse to delegate.
The ENA believes that the performance of professional nursing activities by non-RN caregivers constitutes practicing nursing without a license. It is also not in the interest of quality care, nor the health, safety, and welfare of the public. All non-RN caregivers should be directly supervised by an RN. There should be a written job description that delineates appropriate duties of the UAP.
There should always be one RN in the ED at all times. Like most — if not all — national organization position statements, ENA believes it is the nursing profession that defines and supervises the education, training, and utilization of any non-RN caregivers.
[Editor’s note: For more information, contact Sue Dill Calloway, RN, MSN, JD, Mount Carmel College of Nursing, 127 S. Davis Ave., Room 208, Columbus, OH 43222. Telephone: (614) 234-5007. Fax: (614) 234-2892. E-mail: [email protected].]
Standard of Emergency Nursing Practice (3rd ed.) delineates the role and function of the ED nurse and provides criteria to evaluate the quality of emergency nursing practice. The cost is $22.95 for members of the Emergency Nurses Association (ENA) and $27.00 for nonmembers, plus $4.00 for shipping and handling.
Position statements are available from the ENA on The Use of Non-Registered Nurse (Non-RN) Caregivers in Emergency Care (1995). Single copies of position statements are available at no charge.
All ENA position statements can be accessed from the ENA Web site: www.ena.org. Or to obtain copies, contact:
• Emergency Nurses Association, 915 Lee St., Des Plaines, IL 60016. Telephone: (800) 243-8362 or (847) 460-4000. Fax: (847) 460-4001.
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