As the current setting of the health system evolves, Advanced Practice Providers (APPs) such as Nurse Practitioners (NPs), Physician Assistants (PAs), and Certified Nurse Midwives (CNMs) are getting more involved in patient care. More responsibility, however, also comes with some legal and ethical issues that might influence their practice.

From informed consent, prescribing restrictions, risk of liability, confidentiality of patients, to limits of scope of practice, APPs have to navigate a complicated health system with caution and ethical consideration. This article outlines the most critical legal and ethical problems APPs will need to address and how these can be resolved.

Legal Issues APPs Encounter

1. Scope of Practice Limits

The largest legal barrier to APPs is scope of practice (SOP) restrictions, which differ by profession and state. While Full Practice Authority (FPA) for NPs exists in some states, where they can diagnose, treat, and prescribe autonomously, others have restricted or limited practice statutes, which mandate physician supervision.

For instance, Texas and California have NP-physician collaborative practice agreements that restrict them from independent practice. Oregon and Colorado allow NPs to practice independently, thus establishing more patient access to care. This inequality makes APPs’ crossing state lines difficult as well as restricts them from practicing up to the level of training and ability.

To counter such imbalances, professional associations such as the American Association of Nurse Practitioners (AANP) and the American Academy of Physician Assistants (AAPA) promote legislative reforms in extending APPs’ autonomy, especially in rural and underserved areas where there are few physicians.

2. Prescriptive Authority and Controlled Substances

Although most APPs do have prescriptive authority, their prescriptive authority for controlled substances (Schedule II-V drugs) are a vague body of law. Not only do APPs have to become licensed by the DEA in order to be able to prescribe some drugs, but also get their authority regulated by state code.

For example, in Florida, NPs could not prescribe controlled drugs before 2017, whereas in states like Arizona and Washington, independent prescribing by NPs is allowed. These restrictions are sure to delay treatment for patients and can involve communication with physicians, particularly when it involves pain management and the treatment of mental illness.

Additionally, the opioid crisis has also come under more scrutiny regarding APP prescribing practice. The Support for Patients and Communities Act of 2018 mandates increased training and surveillance of APPs who prescribe opioids as part of their administrative practice.

3. Malpractice and Risk of Liability

APPs taking the role of physicians are also at risk of malpractice suits, and they are costly at a professional and economic level. The most frequent malpractice suits against APPs include:

• Failure to diagnose or misdiagnosis
• Medication mistake
• Inadequate treatment or failure to refer
• Inadequate patient education

Although APPs are less likely to be named in malpractice suits than doctors, they must also be insured against liability for suits. NPs and PAs received only 2% of all malpractice payments but settled for an average of more than $200,000 each according to a NPDB study.

For at least such risks, APPs must be guided by evidence-based guidelines, frequently educated, and have patient contacts well documented. Liability is diminished for health care facilities by having adequate interaction between APPs and physicians.

4. Licensing and Credentialing Issues

APPs are governed by state credentialing and licensure legislation varying by profession and geographic area. Retaining or obtaining licensure generally entails:

• Completing continuing education (CE) requirements.
• Passing national certification exams.
• Re-certifying professional credentials on a periodic basis every few years.

Credential delays can exclude APPs from practice, especially with job change or relocation. Hospitals and health organizations can implement institutional barriers as well as state regulations, restricting APPs’ practice by facility policy.

Ethical Issues Facing APPs

1. Patient Autonomy and Informed Consent

The patient autonomy must be provided, which is the most important moral duty of the APPs. The patients must be offered a choice in the treatment, but sometimes the patients are illiterate, mentally retarded, or are refusing proper care.

For example, an APP may have a patient with dementia who will not be able to understand the advantages and limitations of a procedure and that will pose an ethical dilemma to the APP on best and autonomy. APPs working in palliative care facilities will also have terminal conditions like advance directives and DNR orders to deal with.

Despite all these challenges, APPs must:

• Present care plans in simple statements.
• Educate patients about benefits and harms, alternatives.
• Avoid imposing on personal and cultural values when interpreting care plans.

2. Confidentiality and Patient Privacy

Health Insurance Portability and Accountability Act (HIPAA) requires confidentiality policies nearly as rigorous as protecting patient information. Ethical challenges are faced when:

• One child is treated for an illness (e.g., pregnancy, STDs) but does not want parents to be notified.
• Third party or self injury by a patient due to mental illness.
• Request of employer for in-plant injury medical history.

Legislative conflict of duty to report and right of privacy and APPs need to be responsive to mandatory reporting, duty to warn, and exception state law of consent.

3. Resource Allocation and Disparities in Healthcare

APPs would have to practice in low-resource environments where they would have to make exceedingly difficult choices regarding which patient to treat before the next one. APPs would have to deal with:

• No ICU rooms for patients to be kept in
• No medicine
• Underinsured or uninsured patients

These conditions compel APPs to provide care ethically and equitably. Medical justice is an equitable distribution of the resources, but APPs will be confronted with difficulties with system obstacles in fair access to care.

4. Ethical Issues of Telemedicine

Telemedicine and distant treatment also introduced new ethical issues, such as:

• Touchless diagnosis
• Patient digital illiteracy
• Confidentiality in virtual space

For instance, an APP prescribing a telemedicine consultation for a patient with a skin condition may not be able to effectively diagnose the patient via email. Ethical concerns also occur through patients sharing information on an insecure internet or misusing telemedicine to offer non-emergency care, de-optimizing healthcare resources.

Telemedicine utilization in an ethical manner will require:

• Using evidence-based telehealth practice
• Offering secure channels of communication to the patient
• Referring patient physically to assess as appropriate

Legal and Ethical Concerns: APP Best Practice

• Stay Current with State Law – Keep apprised of state law relating to scope of practice, prescribing statute, and licensure in practice state.
• Keep Open Records – Detailed records and clear patient records avoid legal contention and assist in ethical decision-making.
• Practice Ongoing Education – Sustainable ethics education, ongoing legal compliance, and best practice sustainable education ensure high-quality care.
• Work with Physicians and Lawyers – Interprofessional decision-making reduces risk of liability.
• Implement in Practice Patient-Centered Communication – Transparent open disclosure of information to patients on care planning ensures ethical openness.

Conclusion

Advanced Practice Providers of the modern era are confronted with exponentially increasing legal and ethical demands with increasing practice. From the issues of scope of practice limitations, resources, and informed consent, to patient confidentiality, APPs must navigate a tightrope of clinical responsibility on one end versus changing legal and ethical demands.

By embracing their potential for high education, policy contribution, and patient-centered practice, APPs can more easily overcome such barriers and continue to advocate for bringing high-quality, ethical care to the current complex health care environment.