My department has been having issues with consents faxed from doctors offices. They are being sent to us without a witness signature. Our director has told us instead of obtaining a new consent we should confirm with the patient if the information was discussed with them and then sign our name on the fax as the witness. Is this correct and legal?
Nancy Brent replies:
The procedure you describe in your question is one that will most likely create major legal problems if a consent witnessed in this way is ever challenged. First and foremost, it is the healthcare practitioner who is performing the procedure’s duty to obtain the informed consent of the patient. When a witness signed his or her name on the consent form, the person is attesting to the fact that they saw the person sign the consent form only.
The responsibility of a witness to the consent form is, when a patient questions some aspect of the procedure for which consent was given (e.g., not understanding what a term means, or not understanding a portion of the procedure to be done), the nurse should not have the patient sign the consent form and should share the patient’s concerns with either the physician or an advanced practice nurse, if an advanced practice nurse is performing the procedure (e.g., a nurse midwife attending a birth).
Another flaw in this approach is that it is not your responsibility as a nurse to confirm what was said to the patient, except to get clarification from the healthcare provider if the patient raises any questions. Therefore, by trying to confirm the information shared with the patient by phone, you are assuming a responsibility that is not yours to assume.
You should discuss this procedure with your nurse manager in your department or your CNO in order to correct the procedure so it is clear what the patient was told is based on his or her informed consent and not on a recollection of what was said about the procedure. This entire problem is easily solved by having the consent forms witnessed in the doctor’s office and then faxed to your department.
Keep in mind that your signature on the form can raise issues for you as well, since it is pretty certain your department policy says that the witness signature means you in fact witnessed the patient signing the form. Your state board of nursing could potentially discipline you for falsification of a document in addition to other potential allegations, such as unprofessional conduct, should the consent form be questioned.