Nurse disciplined for decade-old offense




I received an interesting email from a nurse who recently graduated from her nursing education program but who was not permitted to sit for the NCLEX unless she agreed to be reprimanded for a DUI from 11 years ago.

She did pass the NCLEX, but now has a discipline against her.

Boards of nursing are becoming increasingly concerned about licensees’ conduct when they are not working. Most, if not all, state nurse practice acts include “unprofessional conduct” as a basis for discipline. The definition of unprofessional conduct by a board of nursing can vary from state to state and often is found not only in the nurse practice act itself, but also in the act’s rules or regulations.

Definitions of unprofessional conduct in an act or its rules are easy to spot and include statements such as “engaging in conduct likely to deceive, defraud or harm the public” or “engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public, as defined by rule”. These definitions are clearly broad-based and allow a board of nursing to apply its definition not only to unsafe practice while at work but also to behavior while off duty.

Boards of nursing are becoming increasingly concerned about licensees’ conduct when they are not working.”

Nurse disciplined in similar case

Indeed, in a 2012 California case (Sulla v. Board of Registered Nursing, 205 Cal. App. 1195 (4th District), a nurse’s DUI conviction resulted in a discipline by the board based on the nurse practice act and rules language allowing discipline for unprofessional conduct when “using alcohol in a dangerous way” (to self or others) and an “alcohol related conviction.” The nurse’s license was placed on probation for three years.

The nurse filed an administrative review of the board’s decision in court. He argued the California definition of unprofessional conduct — demonstrating an unfitness to practice the profession — could not be used as a basis for his discipline because there was no nexus between his misconduct and an unfitness to practice nursing.

The reviewing court entered a judgment in favor of the nurse, opining the nurse’s conduct and subsequent conviction was “not substantially related to the qualifications, functions or duties of a nurse.” The board appealed the decision to the appellate court.

The appellate court disagreed with the reviewing court, holding there is no need for a “nexus” or relationship between a nurse licensee’s fitness to practice nursing and behavior for which a nurse is convicted.

The decision underscores that, once licensed, a nurse is considered a “professional at all times” (Kathleen Russell and Lindsay Beaver, “Professionalism Extends Beyond The Workplace”, 3(4) Journal of Nursing Regulation (2013), 15-18).

Some nurses may think this decision is not applicable to them because it was decided in California or because they do not drink alcohol. However, this decision potentially opens the door for boards of nursing to initiate disciplinary proceedings against nurses for other types of “unprofessional conduct” when a conviction occurs, such as shoplifting, driving on a suspended license or not revealing facts required to be disclosed when applying for a driver’s license.

Nurses also need to keep in mind that a conviction of any crime, whether a felony or misdemeanor, is a basis for discipline according to state nurse practice acts.

The decision underscores that, once licensed, a nurse is considered a ‘professional at all times’.”

In the reader’s submitted situation, the board’s authority in making its decision is most likely not a problem since it is assumed the board’s decision complied with the state nurse practice act, its rules and regulations and other applicable law. However, nurses might question why the board disciplined the nurse licensee for something that occurred 11 years ago when the reader was not in nursing school or not licensed as a registered nurse.

Is this fair? What evidence did the board have that resulted in a reprimand for something that occurred 11 years ago? Was a current drug and alcohol assessment ordered by board before making its decision? Should there be a limit as to how far back a board can go and use a conviction then to discipline the individual when applying for a nursing license now? What are your thoughts?

 


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CE548: Protect Yourself
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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.


About the author
Nancy J. Brent, MS, JD, RN

Nancy J. Brent, MS, JD, RN 

Nancy J. Brent, MS, JD, RN, Nurse.com's legal information columnist, 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. To ask Nancy a question, email BrentsLaw@nurse.com.

17 responses to “Nurse disciplined for decade-old offense”

  1. I have been an LPN for 5 years and I diverted, self reported and completed out patient treatment one year of after care and counseling and continue to go to a nurses support group. I am complying with all provisions in my monitoring agreement. I reside in NV and have completed all courses for my RN. I am awaiting clinicals because it is on online bridge program. My monitoring agreement is for 5 years. My question is once I become an RN would I rightfully be able to request a decreased monitoring under my new license? I do not in any way dispute my actions and I have worked very hard on my sobriety and have plans to specialize in my career as a CARN (certified addictions Registered Nurse). Through my experience I have seen the need for education in substance disorder among healthcare. One issue I will be facing is with most of these programs it states no restricted or encumbered license.

  2. Seems funny that nurses (and who are nurse? the public does not know. Would that be RN, LVN, CNA?) are held to an unbelievable standard. I am for high professional standards, but I am not for gestapo rule, meaning you are a prisoner to your profession. No one should drink and drive, ever. But policemen, lawyers, judges. preachers, priests do not lose their status when they are found drunk. Matter of fact they can be involved in a lot of questionable behavior and still work. Doctors, lawyers and the others named (who incidentally have much more authority, responsibility and make a lot more money than nurses) The average pay for RNs in Houston is $60,000 to $75,000 a year Rent is minimally $1000 per mo. And when a nurse has the license on hold, or suspended, even temporarily, this means now they are hardly able to work, if at all. There is an injustice here. DUI should affect a nurse the same as it affects congressmen, city officials, lawyers and doctors. They pay a fine, go to jail, lose the driver license, but not their ability to work. I mean the public doesn’t know a lot: I can tell you some. Nurse are not supposed to wear perfume, or fake nails or nail polish or jewelry; nurse are “pulled” to any part of the hospital during any part of a shift, even to areas they have no experience in. The nurse cannot refuse an assignment (unless you have a preprinted form saying your assignment is outside of your ability, you still have to do it; this is simply a statement saying you told administration of your limitations) If nurse are working during a hurricane or other dangerous conditions, they become prisoners in the facility with no one making plans to get them to their homes and families or to bring in relief staff. I mean $60,000 does not make anyone, including nurses, willing to give up their homes and children. Homecare nurses have not had a pay raise since the late 1990s. Generally they are paid $50 per visit and $100 for an admission.TThe pay is unreasonable. They expect a cell phone and do not pay for it, do not pay tolls or mileage or gas allowance or do not pay if you draw blood and have to drive and find a lab.. that is done free…I mean, I realize that this is way off the intended discussion path, but the idea here is to say nurse are mistreated, underpaid and abused by and in their profession. Now we are even taking their private lives to the professional part of their lives. Some employers are now looking at our credit report. Yes we want upstanding people in our profession, we want high morals, but can we separate the good nurse, the professional nurse and the good care given from an incident in our private off duty lives? When do we stand up and say “enough”? Are there boundaries separating the profession of nursing from the person? We are people who have a profession called nursing. Must your entire life be defined by a college degree or profession? Really?
    Do you have to be politically correct (by whose definition of correct) all the time or is there a time to step out and speak up for truth and right and fairness; or are we so weak we are willing to be prisoners for $5.00 an hour (which is what $60,000 becomes when divided over 24/7). We are mistreated because we do not support each other, we just “follow the rule” and “let it happen”. Me too.

  3. I agree with Kaye that we are, as a profession, held to even higher standards than lawyers, and yes, even MD’s. If they are going to hold us to ridiculously higher standards, than they must do so equally with other professions as those mentioned. I had to foreclose on my house during the 2009 banking crisis, because my hospital cut 120 employees hours from full-time, to part time, and I got behind in payments. I was also the single mother of a disabled child.I applied for full-time employment at a hospital near me, had immaculate references from my 26 year career as an RN, but was denied employment because this particular hospital was now checking credit reports before hiring. When I asked HR why, they said alot of hospitals are now doing this “because it speaks to the nurse’s character”. I was astounded.I guess then that the pediatrician who was on call to the ED one night I worked, and showed up drunk still had his job. The hospital did nothing, no call to the license board, nothing. I discussed it with the Nsg Supervisor, who told me that she would report it, but “nothing would be done”, and she was right. It was only when the parents of the child being treated placed a call to the state medical board, that finally an inquiry happened.He was let off with a slap on the wrist and only a 2 week suspension of his admitting privilages. My opinion is if they do this with nursing, they must hold other professions to the same strict standards.

    • Wrong reply button, comments related to post by Mary. For Meg, the AMA is one of the most powerful political lobbies.

  4. My question is that I have been disabled since January 18, 2013 due to my advanced arthritis and now in every joint but I would like to work at home like reviewing charts or something and I did contact the Nursing Board of Nevada and they sent me information so that my primary physician could write a letter. Most of the information needed is about my condition and the last statement is about my limitation’s and impairments. My primary physician when I was there in June informed me that she would have to state that the medications that I am now taking which are Norco 5/325mg and Gabapentin 300 mg would affect my mental ability to practice. I have spoken to other individual’s and they have informed me that this is nonsense and I would like to clarify this in writing and if possible you could send it to me per my address. I am now looking for another primary since every visit is just sitting there working on the computer and what happened to being a doctor. Thank you very much.

  5. My biggest question is that of timing. In the example, the nurse was apparently being punished for actions which occurred before her entering the nursing profession. Things happen before you mature sufficiently to be a professional. Nothing I did in my youth should impact my ability to act in good conscience, respectfully, maturely, and professionally in my mid thirties. As to the ability and necessity of licensed staff to be held to a code of conduct by their Board of Nursing, I am in full support. Other professions utilize stringent requirements for employment which helps to protect the professional, employees, and the public who cannot know each person’s commitment to excellence in their work. As long as the nursing, medical, and other ancillary fields are regulated by different organizations, there WILL be an aura of unfairness to any actions taken against members assessed of similar behaviors.

  6. Seriously? We are reprimanding a person for an act of “misconduct” that happened ELEVEN years ago! Before they were licensed, or even attending a nursing program. Why? Is there more to this story than is being presented here?
    This is an issue that should be addressed during the academic application process for nursing education. Not after one has completed the program/degree.

  7. Welcome to slave labor…This type of treatment begins in nursing school or even during admission and continues into the workplace. Nurses have been abused since the beginning of the profession and often abuse fellow nurses themselves. Classic behavior of persecuted groups. Why does a buy off raise prevent unionization? I became an RN at age 45 after a business and management career not knowing the reality of nursing but seeing it from a different perspective. Top of the class, six years in trauma ICU and more. Unbelievable level of hard work and legal liability. As long as nurses cannibalize each other nothing will change. Unionize!

  8. This is too much for me to swallow. This is crazy and I fell as though this young lady’s DUI shouldn’t have come into question at this particular time. There needs to be some type of review into the Nursing Regulations and it should be revised to take into consideration of the new times in this country. The laws back then should be updated to the changes in the world that is going on now. Every thing seems to be punitive instead of educating, training and helping nurses with their issues whether it’s behavioral or substance abuse. We need new and updated regulations and it needs to be not so estrigent that will affect your ability to work or get another job. We already have a shortage in Nursing and we need everyone who desires to come into this profession.

  9. 11 years ago, it’s a joke and stupid. Not only are they on probation for 3 years but they are required to be involved in the alcohol/substance abuse prorgrams for 3 years. I have a colleague on probation for a DUI 14 years ago.in a different state and she is not an alcoholic. It’s a travesty , this regulation needs to be changed , there is no purpose to this. Being assessed by a therapist then a decision from the BRN should follow. The California BRN has major issues any how, takes them two to three years to come after an RN who was reported as unfit to practice while on the job. In the mean time the nurse is left to move around to other jobs for three years. The entire system is not acting in the patients best interest or the nurses by using a 14 y/o DUI to cause havoc in her life.

  10. I cannot belief this is happening in this century.Your past of 14 years should not be used against you at this 20th century.Nursing board need a to up date there policy.This is unheard of.Probation for DUI is 3 years, not 14 years.Nursing Board needs to get their stuff together.

  11. The board should be investigated to see how many of them are Mormon. The article left out the details of the DUI. If it was just a .08-.11 BAC with no accident or children then that is complete bull crap. I would have appealed the hell out of that. If the danger to others was higher such as having children in the car or an extreme, that might be different. Did the person respond well to police, were they aggressive, could they pass the physical test? I had a DUI 12 years before my board meeting in AZ. I went through hell. I only blew just above the legal limit with little signs of intoxication in the physical test. I had to wait 6 months. They had a packet on me that included nearly every interaction with police officers without any criminal activity. They go into your work history and pull your HR records. I was approved by each and every member at my meeting. In AZ I have seen RN’s with multiple DUI’s get their license but each case is different. I think it was more to scare me. I have heard horror stories of California’s board. Their scope of practice also severely limits NP’s which shows even more they are over regulated.

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