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?
Courses Related to ‘Legal and Ethical Issues‘
60097: Everyday Ethics for Nurses
(7.3 contact hrs)
This course provides an overview of bioethics as it applies to healthcare and nursing in the U.S. It begins by describing the historical events and forces that brought the bioethics movement into being and explains the concepts, theories and principles that are its underpinnings. It shows how ethics functions within nursing, as well as on a hospitalwide, interdisciplinary ethics committee. The course also explains the elements of ethical decision making as they apply to the care of patients and on ethics committees. The course concludes with a look at the ethical challenges involved in physician-assisted suicide, organ transplantation and genetic testing.
CE548: Protect Yourself
(1 contact hr)
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.