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Sermchief v. Gonzales and the Debate over Advanced Nursing Practice Legislation

Published online by Cambridge University Press:  27 April 2021

Jane Greenlaw
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Type
Commentary
Information
Law, Medicine and Healthcare , Volume 12 , Issue 1 , February 1984 , pp. 30 - 36
Copyright
Copyright © American Society of Law, Medicine and Ethics 1984

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References

660 S.W.2d 683 (Mo. banc 1983) [hereinafter referred to as Sermchief].Google Scholar
Id. at 688.Google Scholar
Id. at 690 (citation listing states is omitted).Google Scholar
Connecticut, Illinois, Missouri, Minnesota, New Jersey, New York, Ohio, and Rhode Island. Lebar, C., The Regulation of Advanced Nursing Practice as Provided for in Nursing Practice Acts and Administrativ Rules (American Nurses’ Association, Kansas City, Mo.) (August 1983) at 12.Google Scholar
Id. at 61.Google Scholar
Id. at 82.Google Scholar
Id. at 105.Google Scholar
Id. at 130.Google Scholar
While the authority to practice nursing comes exclusively from state statutes and regulations, the authority to act does not. A physician may delegate to a nurse a responsibility which the nurse would otherwise be unauthorized to perform. The principle is codified in many states. See, e.g., Delegation of Medical Services, Mass. Admin. Code tit. 243, §2.06(4) (1980). “A full licensee may permit a skilled professional or nonprofessional assistant to perform services in a manner consistent with accepted medical standards and appropriate to the assistant's skill.”The delegation does not change existing law; that is, it does not transform a non-nursing act to conform to the legal definition of nursing. The act must be one which is appropriate for delegation, and the delegator must select an appropriate delegatee; beyond these guidelines, custom and usage permit physicians to delegate a wide variety of medical acts. Thus, it could be argued that it is irrelevant whether nurses acting pursuant to established protocols and standing orders are practicing nursing, since the nurses are lawfully carrying out delegated medical acts. This argument is not presented here as a serious solution to the question of the need for expanded role legislation, because such an argument would be professionally and politically disadvantageous for nursing. However, the argument may have merit as a legal defense for an individual nurse whose conduct is challenged as unauthorized.Google Scholar
American Nurses’ Association, The Nursing Practice Act: Suggested State Legislation (American Nurses’ Association, Kansas City, Mo.) (1981) at 3. See American Nurses’ Association, Nursing: A Social Policy Statement (American Nurses’ Association, Kansas City, Mo.) (1980) at 26.Google Scholar
This phenomenon has been observed by this author at many meetings with nurses; one of the most frequently asked questions concerns scope of practice issues.Google Scholar
News: Nurse Practitioners Fight Moves to Restrict Their Practice, American Journal of Nursing 78: 1285 (1978) (member of New Jersey Board of Medical Examiners asserts that broad statutory definition does not authorize nurse practitioner role); Fink, Background Report: New York's Nurse Practice Act (September 1981) at app. B (attorney for New York Board of Regents found broad language of statute vague and lacking authorization for nurse practitioner role).Google Scholar
Sermchief, supra note 1, at 684.Google Scholar
Administrative Procedure Act, 5 U.S.C. §706(2) (1977). The state administrative acts are in general accord.Google Scholar
See supra note 10, and accompanying text.Google Scholar
Baker, N., Entrepreneurial Practice for Nurses: A Response to Hershey, Law, Medicine&Health Care 11(6): 257 (December 1983); Bullough, B., The Current Phase in the Development of Nurse Practice Acts, St. Louis University Law Journal (forthcoming 1984).Google ScholarPubMed