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Delegating in nursing continues to be legal minefield

A nurse asked if she might be liable for delegating the responsibility to a nursing assistant to help ambulate a patient to the bathroom and the patient were to fall and the nurse was not there to oversee it.

Delegating in nursing, including tasks and responsibilities, has been the subject of many of my blogs. It continues to be a real liability concern for all nurses, whether the delegation is to another RN, LPN or nursing assistants.

The legal concepts and resulting potential liability have not changed over the years. This is helpful to nurses who delegate to others on the patient care team. Even so, it is important to review those concepts and possible liability.

Deeper delegation considerations

According to the American Nurses Association, delegation takes place when an RN who has the authority for the delivery of nursing care, transfers the responsibility for carrying out a task to unlicensed assistive personnel while retaining the accountability for a safe outcome.

Delegation, then, does not just mean “assigning” a nursing assistant to do a particular task. Rather, the decision to delegate to another, including a nursing assistant, is a process that involves many considerations.

In 2005, the ANA and the National Council of State Boards of Nursing developed a Joint Statement on Delegation that explores these consideration, for instance:

  • Is the task one that can be delegated to an unlicensed assistive personnel?
  • Is the unlicensed assistive personnel competent to perform the task?
  • What are the patient’s needs in relation to the potential delegation to the unlicensed assistive personnel?
  • What does the state nurse or practical nurse act include about delegation?
  • Has the nursing assistant provided care to this patient in the past and did the patient’s needs get met?

It is important to keep in mind the decision to delegate a task to a nursing assistant is not a mandatory responsibility. Rather, it depends on the nurse’s evaluation of the considerations involved in the delegation process and the importance of knowing what strengths and weaknesses a nursing assistant has in the delivery of patient care.

Don’t forget the 5 rights model

Another guideline for RNs who face delegation decisions is the five rights model, which includes:

  1. The “right” patient
  2. The “right” task
  3. The “right circumstances
  4. “Right” directions and communication
  5. “Right supervision and evaluation

In regard to the reader’s question, the RN who delegated the patient’s ambulation to the unlicensed assistive personnel would not have liability if she met all of the nursing principles, including the five rights of delegation.

If she did not meet the applicable principles, potential liability might exist because the RN who delegates to another retains the responsibility and accountability for correct delegation.

If proven that the RN did not meet the applicable principles of delegation, her liability would rest on an allegation of negligent delegation to the nursing assistant. For example, the assistant may have needed supervision when ambulating the patient since it was only her second time doing so, and the RN did not provide that oversight.

If the assistant did not meet the standard of care for ambulating a patient to the bathroom, which resulted in the fall, her potential liability would rest upon negligent ambulation of a patient.

If you are unsure about your ability to delegate patient care to a nursing assistant, review the ANA and NCSBN Joint Statement, which has a useful Decision Tree to consider when delegating to a nursing assistant or unlicensed assistive personnel.

Another useful resource is the Online Journal of Issues in Nursing article by Alice Weydt, “Developing Delegation Skills.”

Delegation is an ever-present responsibility for the RN that needs review on a regular basis and brings with it the ultimate goal of competent patient care by all members of the healthcare team.


Take these courses related to delegating duties:

Protect Yourself
(1 contact hr)

Nurses have an obligation to keep abreast of current issues surrounding the regulation of the practice of nursing, not only in their respective states, but also across the nation, especially when their nursing practice crosses state borders. Because the practice of nursing is a right granted by a state to protect those who need nursing care, nurses have a duty to patients to practice in a safe, competent and responsible manner. This requires a nurse licensee to practice in conformity with their states statute and regulations. This course outlines information about nurse practice acts and how they affect nursing practice.

Delegating to Unlicensed Assistive Personnel
(1 contact hr)

The skill and art of delegation for effective use of unlicensed assistive personnel (UAP) is a critical 21st century nursing competency identified by the American Nurses Association and National Council of State Boards of Nursing, yet many nurses remain uncomfortable with delegation. This educational activity will address the role of delegation in providing quality care in a collaborative environment and will provide strategies for effective delegation.

Lines of Communication
(1 contact hr)

From taking an order over the telephone to handing off a patient to another department, all healthcare professionals face situations every day involving potential communication problems. Healthcare professionals must understand and adopt safety practices to ensure the smooth functioning of the healthcare team — and the safety and optimal care of their patients. This module discusses the importance of clear, accurate, and timely communication, both oral and written, in providing safe and effective care to patients. It reviews unacceptable medical abbreviations, acronyms and symbols, handoff communication, and timely and accurate reporting of critical test results.

By | 2019-01-30T22:09:39+00:00 January 28th, 2019|Categories: Nursing careers and jobs|4 Comments

About the Author:

Nancy J. Brent, MS, JD, RN
Our legal information columnist Nancy J. Brent, MS, JD, RN, received her Juris Doctor from Loyola University Chicago School of Law and concentrates her solo law practice in health law and legal representation, consultation and education for healthcare professionals, school of nursing faculty and healthcare delivery facilities. Brent has conducted many seminars on legal issues in nursing and healthcare delivery across the country and has published extensively in the area of law and nursing practice. She brings more than 30 years of experience to her role of legal information columnist. Her posts are designed for educational purposes only and are not to be taken as specific legal or other advice. Individuals who need advice on a specific incident or work situation should contact a nurse attorney or attorney in their state. Visit The American Association of Nurse Attorneys website to search its attorney referral database by state.

4 Comments

  1. Avatar
    Leah February 3, 2019 at 7:05 pm - Reply

    Yes, please make our jobs even more dangerous and difficult by informing us that we can be sued for even delegating to appropriate staff. No matter if you do your job exeptionally well, nursing is the most high risk and criticizing career a person can have. American nursing has become embittered by petty legality and fraudulent expectations of what humans can do.

    • Avatar
      GLove April 5, 2019 at 6:44 am - Reply

      Finally, someone said it out loud. Thank you “Leah” I am counting the time until I can retire, hopefully before I get sued for some crazy thing that I may have delegated to a CNA.

  2. Avatar
    Dillon May 7, 2019 at 10:46 pm - Reply

    Forget down-delegation, what about the MDs who blatantly refuse to write their own orders? Responding “I don’t have time! If your patient needs X, then write this order!” The petty legal bullsh1t around delegating to UAPs is nothing compared to the life-or-death consequences of MDs who delegate their job down to RNs. Apologies to the patient fell while a perfectly capable NA (or any able-bodied jackass off the street for that matter) was walking them to the bathroom, their nurse was busy placing their lousy doctors orders for them, arguing with lab/radiology/dietary about what the order “should” have said, and filing an incident report against an MD that will confront them tomorrow for reporting their laziness.

  3. Avatar
    Phillippen October 9, 2019 at 9:08 am - Reply

    saddiction

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