STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5220

August 31, 1977

PHYSICIANS AND SURGEONS:

Supervisory authority over physician's assistants

NURSES:

Relationship to physician's assistants

PHYSICIAN'S ASSISTANTS ACT:

Scope of delegated authority of physician's assistants

WORDS AND PHRASES:

'Delegation'

The authority of a physician's assistant to prescribe drugs and to relay orders to health care personnel licensed by the Nursing Practice Act originates from the licensed physician and are deemed to be the prescriptions and orders of the licensed physician.

Health care personnel licensed under the Nursing Practice Act who recognize and treat prescriptions and orders of a physician's assistant in the same manner and to the same degree as if issued by a physician are not in violation of the act.

Honorable William A. Ryan

State Representative

The Capitol

Lansing, Michigan 48901

You have posed the following two questions regarding the Physician's Assistants Act, 1976 PA 420; MCLA 338.1951 et seq; MSA 14.718(11) et seq:

A physician's assistant is defined by 1976 PA 420, supra, Sec. 2(h), to mean:

Therefore, to comprehend the scope of authority of a physician's assistant, it is necessary to refer to the statutory definition of the terms 'medical care services' and 'supervision' as they are used in the definition of 'physician's assistant'.

1976 PA 420, supra, Sec. 2, defines these terms as follows:

The administrative structure devised by the legislature to implement the Physician's Assistants Act consists of a committee on physicians' assistants within the Department of Licensing and Regulation authorized to approve physicians' assistants and physicians' assistant training programs and to make recommendations to the Medical Practice Board and the Osteopathic Practice Board. The committee is composed of seven members, one of whom is a representative from the Medical Practice Board, one from the Osteopathic Practice Board, one public member and four physician's assistants. The Director of the Department of Licensing and Regulation is an ex officio member of the committee without vote.

Turning to your first question as to whether a prescription or order by a physician's assistant is to be considered as originating from the physician or a physician's assistant, it is necessary to consider 1976 PA 420, supra, Sec. 17(3), which defines the role of the physician's assistant with regard to the prescription of drugs. This sub-section states:

The legislature has indicated its intent that the procedures and protocol for prescribing drugs as a delegated act of a supervising physician is to be established by the boards by the adoption of an administrative rule. However, until the rules are promulgated, the legislature has provided that a physician's assistant may prescribe a drug, other than a controlled substance, as a delegated act of the supervising physician.

The response to your question, therefore, turns on the meaning of the word 'delegated'.

26A CJS, Delegation, p 155, states that the word 'delegate' does not imply a parting with powers by the person who grants the delegation, but points rather to the conferring of an authority to do things which otherwise that person would have to do himself.

Black's Law Dictionary, Revised 4th Edition, defines the term 'delegation' to mean 'the intrusting another with general power to act for the good of those who depute him'.

1 Michigan Law and Practice, Administrative Law and Procedure, Sec. 11, pp 174-175, refers to an article written by Frank E. Cooper published in 30 Michigan State Bar Journal (April 29, 1951), in which the phrase 'delegation of power' is discussed within the context of a delegation of authority by the legislature to an administrative agency. The article traces the development of the concept and concludes that the delegation of discretionary powers is not objectionable when reasonably essential to the administration of a statute. See People v Chapman, 301 Mich 584; 4 NW2d 18 (1942).

In construing a statute, the language used must be read in light of the general purpose sought to be accomplished, Ballenger v Smith, 328 Mich 23; 43 NW2d 49 (1959), and, where the language is of doubtful meaning, a reasonable construction must be given looking to the purpose subserved thereby, Webster v Rotary Electric Steel Co, 321 Mich 526; 33 NW2d 69 (1948).

Applying these concepts to the interpretation of the phrase 'delegated act' as used in 1976 PA 420, Sec. 17(3), supra, it is my opinion that, when the legislature vested physician's assistants with authority to prescribe drugs as a delegated act of the licensed physician, it intended that the licensed physician may vest the physician's assistant with authority to select a drug to be prescribed from a list established by the physician and then to instruct the patient as to how and when to use the drug. The licensed physician may also, in establishing the predetermined procedure and drug protocol, bar the physician's assistant from prescribing any drugs at all. It is also important to note that, in preparing the prescription the physician's assistant must state and record the name of the supervising physician. This construction conforms to the supervisory relationship between the supervising physician and the physician's assistant contained in the definition of the term 'supervision' referred to in 1976 PA 420, Sec. 2(k), supra.

As the extent to which a licensed physician may delegate authority to a physician's assistant to issue orders is, by analogy, the same as the extent to which the former may delegate to the latter the authority to prescribe drugs, the physician's assistant must consult with the physician on each occasion before issuing any orders unless the protocol has been so carefully drawn that the physician's assistant is able to carry out orders without immediate consultation. At all times, the licensed physician bears full responsibility for the acts of the physician's assistant which are carried out within the scope of the authority delegated.

It may also be noted that 1976 PA 420, supra, Sec. 12, provides that a physician's assistant must have 'the necessary knowledge and skill to perform in a safe and competent manner with due regard to the complexity and risk attendant to activities that may be delegated by an approved physician to a physician's assistant.'

I would also point out that the legislature did not intend that all medical care services be delegated; 1976 PA 420, Sec. 2g, supra, states that either board may provide that certain medical care services may not be delegated. Moreover there are certain statutory functions of a physician which are non-delegable such as 1925 PA 343, Sec. 8b; MCLA 326.8b; MSA 14.228(2), which provides for a determination of death by a physician.

It is therefore my opinion that the authority for the prescription or order by a physician's assistant originates from the licensed physician and are deemed to be the latter's prescriptions and orders.

Your second question asks whether it is a violation of the Nursing Practice Act, 1967 PA 149, supra, for a nurse to carry out a prescription or order entered on a chart or prescription form or issued verbally by a physician's assistant.

The Nursing Practice Act of 1967, supra, provides for the regulation of a number of classes of health care personnel and provides for the scope of practice for each.

1967 PA 149, supra, Sec. 2, defines the practice of professional nursing, practical nursing, nursing by a licensed psychiatric attendant nurse and nursing by a trained attendant. Those statutory definitions of practice are:

Although a physician's assistant is not a licensed physician, he or she is a legally authorized delegate of the licensed physician and, reading the Physician's Assistance Act in pari materia with the Nursing Practice Act, it is my opinion that these health care personnel who recognize and treat prescriptions and orders of the physician's assistant in the same manner and to the same degree as if issued by the physician are not in violation of 1967 PA 149, supra.

It may again be noted that this result follows from the authority granted to a physician's assistant and the extent of supervision to which the physician's assistant is subject. This result also follows from the definition of the term 'medical care services' referred to above, 1976 PA 420, Sec. 2(g), supra, which is defined to mean 'service within the scope of practice of those physicians . . . except those services which . . . may not be delegated by a physician in order to protect the health and safety of patients.'

It is my opinion, therefore, that a physician's assistant may perform all medical care services delegated to him by the supervising physician and that the prescriptions and orders of the physician's assistant are deemed to be those of the supervising physican. It is my further opinion that health care personnel who recognize and treat prescriptions and orders of a physician's assistant as though issued by a physician are not in violation of 1967 PA 149.

Frank J. Kelley