In the third year of law school students are taught the universal legal question that must be decided in all cases: “Can I do that?” In at least one respect, medicine has its own version of this universal question. It is, “Who can do what?”
NCMB staff members routinely field inquiries from physicians and others about what medical tasks may be delegated to unlicensed individuals working in medical offices or hospitals. Unfortunately, the answers to these questions are rarely easy. The simple truth is that it is impossible to catalogue everything that healthcare workers do in a vast and rapidly evolving profession. Assuming it was even possible to compile such a list, the job of keeping that list current and complete would be enormous.
There are, however, laws and principles to aid a licensee in determining what tasks may properly be delegated to unlicensed healthcare workers. This article will briefly explain these principles and provide guidance for how to apply them.
First, let’s start with the law. North Carolina General Statute §90-18(c)(13) allows physicians to delegate to a qualified person any act, task, or function that is “permitted by law” or “established by custom.”
Breaking this law down, tasks may be delegated to others so long as the following criteria are met:
1. The individual is trained and qualified to do the task. Training may be formal (courses, certificate programs) or informal (demonstrated by the licensee or another qualified individual in the practice setting).
2. The task is “established by custom” or otherwise “permitted by law.”
3. The task is supervised by the physician. Supervision may mean direct supervision or be fulfilled through the licensee’s acknowledgment of his or her responsibility for the actions of the other healthcare worker, depending on the circumstances.
In most instances, the key question in deciding whether it is permissible to delegate a particular task turns on whether delegation is “established by custom.”
The Board has not adopted a precise interpretation for what is meant by “established by custom.” However, the following principles should be taken into account when determining whether delegation of a particular task is “established by custom.”
1. What do other physicians within the specialty do?
2. Is it generally considered acceptable to other physicians within that specialty to delegate the task?
3. Is the task invasive or does it involve a level of risk to the patient?
4. Does the task require licensure if done by someone not working under a physician’s supervision?
5. Is the activity in question regulated by another Board or agency?
If the answer to Questions 1 or 2 is “no,” meaning that physicians within the specialty do not typically delegate such tasks to others or believe it is unacceptable to do so, then the Board would likely determine that delegation is not “established by custom.” In addition, the more invasive a procedure is (Question 3), the more unlikely it is to be customarily delegated to an unlicensed healthcare worker to perform.
If a procedure requires separate licensure or is regulated by another Board or agency (Questions 4 and 5), then it should not be delegated to an unlicensed worker to perform.
A good example of applying Questions 4 and 5 to a real world situation is the practice of acupuncture. A physician may perform acupuncture if properly trained to do so. However, acupuncture is a regulated profession in its own right and licensed acupuncturists may practice it without physician supervision or involvement. Thus, a physician must not allow a worker who is not a licensed acupuncturist to perform acupuncture even if that person is supervised by the physician and the physician believes the unlicensed individual is qualified to perform acupuncture. To be perfectly clear, a physician cannot delegate an acupuncture procedure to a person who is not a currently licensed North Carolina acupuncturist.
To sum up, a physician should delegate medical tasks only if the physician is satisfied that:
1. The unlicensed worker is qualified to do the task
2. The task can be performed safely by the worker
3. Other physicians within the relevant specialty find it acceptable to allow an unlicensed worker to perform the task
4. The task does not require another healthcare license and
5. The physician provides appropriate supervision
This article may spark even more questions as to when delegation of certain tasks is appropriate. Hopefully, it has provided licensees with a basic framework to come up with the answers. The next time the question of whether to delegate arises, apply the principles outlined in this article to the situation at hand; consult with other physicians in the same speciality and ask what they do; consider what you have learned and, hopefully, the answer will be clear. If you are still at a loss, the Board’s staff is always available to consult.
Click here to see the table that lists examples of procedures and task where delegation is appropriate and some where it is not.
1 For purposes of this article, an unlicensed individual is anyone other than a physician, physician assistant, nurse practitioner, registered nurse or licensed practical nurse.
2 G.S. § 90-18. Practicing without license (c) The following shall not constitute practicing medicine or surgery as defined in this Article: (13) The performance of any medical acts, tasks, and functions by a licensed physician assistant at the direction or under the supervision of a physician in accordance with rules adopted by the Board. This subdivision shall not limit or prevent any physician from delegating to a qualified person any acts, tasks, and functions that are otherwise permitted by law or established by custom.
