Nurses play an integral role in providing health care services to patients across the country. So, it's no surprise that states expect their nurses to maintain a minimum level of competence as well as carry themselves professionally and ethically. As a result, a nurse facing criminal charges, even those that involve actions that have allegedly occurred outside of work, can still find their nursing license placed in jeopardy.
If you're a nurse and you've been arrested or are on the verge of facing criminal charges, you need to contact the Professional License Defense Team at the Lento Law Firm. You might only be worrying about jail time and fines through the criminal courts. However, you also need to consider what that arrest and possible conviction could mean for your nursing license. You might have nothing to worry about – or everything to worry about, but you won't know until you contact us online or by calling 888-535-3686.
Regulation of the Practice of Nursing
Ensuring that individuals meet the educational, professional, and ethical standards to work as nurses falls on each state's respective boards of nursing. These nursing boards decide what these standards should be and what to do if a nurse doesn't meet one or more standards.
Most nurses will go through their entire professional lives only dealing with the training and education standards, mostly during the pre-licensure process when they apply for their nursing license for the first time. Then, when they renew their licenses every one or two years, they'll confirm they haven't done anything to get into trouble, risk patient safety, or fail to complete the minimum number of continuing education credits or units.
Many currently practicing nurses' primary concern is making sure they take enough continuing education courses each renewal period. Not doing so could result in fines and other administrative disciplinary action. However, these usually can't compare to what happens if a nurse has been accused of misbehavior that could constitute a crime.
Behavior Subject to Discipline by a State's Board of Nursing
The goal of a board of nursing is to protect the integrity of the nursing profession and ensure patient safety. This includes preventing nurses from acting unethically or doing anything that could compromise the perception of nurses by the public or harm patients. Below are some of the most common types of behavior that could lead to professional discipline for nurses. Note that many of these can also constitute crimes in most states.
- Practice-related: This is the most common type of conduct regulated and subject to discipline by a board of nursing. This can include engaging in medical conduct that goes beyond the nurse's scope of practice or training. It may also include malpractice, like when a nurse doesn't follow the proper protocols for a particular type of treatment or standard of care.
- Sexual misconduct: This can refer to a nurse who sexually assaults a patient or coworker. It may also include consensual sexual relationships within the workplace, as such relationships could still be unprofessional and unethical in many situations. A good example of this is a nurse having sexual contact with a patient, even at the patient's request.
- Drug-related: A nurse who steals or misappropriates patient medications would be guilty of this type of misconduct. This may also include substance abuse issues the nurse faces, including showing up on the job under the influence or getting arrested for operating a vehicle under the influence of drugs or alcohol.
- Fraudulent conduct: A nurse might be guilty of this if they falsify medical or billing records. Fraudulent conduct can also include scenarios where the nurse lies about their professional qualifications, either to become a licensed nurse or apply for a specific job.
- Abusive conduct: A nurse who verbally or physically abuses patients could be subject to professional discipline if someone files a complaint. Depending on what's said or done, this could result in one or more criminal violations as well.
- Unethical conduct: This is sometimes used as a “catch-all” to regulate actions that might not otherwise be criminal
,but most professionals and lay people would view as improper. For example, a nurse who manipulates a patient or a patient's family member for personal gain would be unethical and unprofessional, although it might not always be a crime.
What Criminal Accusations Can Mean for a Licensed Nurse
As mentioned earlier, each state decides what the rules and regulations are concerning the standards for becoming a nurse and staying a nurse. So, what might result in discipline for a nurse doesn't affect a nurse in another state. This is especially notable when it comes to how state nursing boards handle criminal accusations. Two major questions that determine how criminal accusations affect a nursing license are: what is the nurse accused of, and did it result in a criminal conviction?
Type of Criminal Conduct
Generally speaking, state nursing boards are going to be most concerned with criminal conduct that occurred at work or could compromise patient safety. Criminal conduct that occurs on the nurse's own time or doesn't relate to the care of others is either less likely to result in discipline or any discipline the nurse could face might be less severe. Note that this is just a generalization, and unique facts and circumstances can have a dramatic effect on how a state nursing board decides to handle a criminal accusation.
For instance, let's say a nurse gets charged with first-degree murder because they knowingly gave a lethal dose of a medication to a patient. Compare this to a nurse charged with falsifying billing invoices belonging to a family member's business.
Both of these situations can result in arrest and a criminal conviction, but the first situation is more likely to result in more extreme disciplinary action by a board of nursing. Not only that, but the first situation is more likely to result in immediate license suspension even though an investigation by the board of nursing into the allegations is still pending.
When a state's nursing board believes the accusations levied against a nurse create an immediate risk to patient health, they will suspend the nurse's license first and investigate the accusations second.
Another variable that's related to the type of criminal conduct is how often it has occurred. This may not affect whether a board of nursing implements any discipline against the nurse, but it will likely make a difference in the type of discipline handed down.
Getting in trouble with the law for substance abuse is likely going to result in some disciplinary action. However, a first violation may result in a license suspension or probation (or maybe even a reprimand), provided that the nurse gets treatment, is willing to be tested, and abide by any other conditions put in place by the board of nursing.
Yet if there are multiple violations, a nursing board may decide that there's too much of a risk of that nurse harming a patient while under the influence. Therefore, the nursing board may decide to revoke or suspend the nurse's license so that they can no longer practice as a nurse.
Criminal Conviction Versus Arrest
The difference between an arrest and a criminal conviction is important for at least two reasons. First, states differ in what happens after each. In the majority of states, a criminal conviction must be reported to that state's board of nursing. States sometimes differ in the types of criminal convictions that nurses should report, but usually, any misdemeanor or felony conviction will need to be reported.
Depending on the facts and circumstances surrounding that conviction, the board of nursing will decide what discipline, if any, the nurse should face.
In some states, in addition to reporting convictions, licensed nurses must also report arrests. Professional discipline is usually less likely for an arrest as opposed to a conviction, as long as the nurse reports the arrest in a timely fashion as required by their state's nurse practice law. This might be within 30 days of the arrest or when renewing a nurse's license, whichever is sooner.
One thing to keep in mind is that failing to report a criminal conviction could be a crime in and of itself. So, failing to report the conviction could theoretically result in a more severe punishment from the board of nursing than the conviction itself.
An arrest is less likely to result in discipline than a conviction, but there will be exceptions or extenuating circumstances. In extreme cases and in certain states, an arrest for a crime could result in more immediate action by the board of nursing than a conviction. This is most likely when the arrest is for a crime that has occurred at work and involves patient safety as opposed to something that took place on the nurse's personal time and has no relationship to nursing practice or patient care.
The Nursing License Disciplinary Process
If someone accuses a nurse of a crime, state nursing laws and regulations are fairly clear about what the nurse needs to do, such as notifying the state board of nursing of the arrest or conviction. What's not clear is what could happen to the nurse's license after the arrest or conviction.
After the board of nursing learns of the criminal accusation, they will usually start a disciplinary process. Every state will be different, but this process often consists of the following steps.
Initial Review
This is a relatively quick process where the board of nursing confirms its authority to handle this matter and determine the scope of what it's dealing with.
Investigation
Here, the board of nursing obtains additional information as to what happened. The board of nursing will often request documents and information from the nurse, such as arrest reports, medical records, court records, and the nurse's statement about what happened.
After completing the investigation, the board of nursing will decide if they should bring formal charges against the nurse.
Charges by the Board of Nursing
If the board of nursing believes the nurse should face discipline, they will bring charges. When this happens, the nurse has a chance to respond and establish a defense. How the nurse does this depends on the procedural rules, as well as the nurse's preferences.
One possibility is that the nurse and board of nursing have a settlement conference to try and negotiate a resolution. This is sometimes similar to the plea bargain process in a criminal case, where the accused agrees to plead guilty in exchange for a lighter sentence.
Something similar could occur here in that the nurse's alleged conduct may warrant, say, a one-year suspension. However, by agreeing not to contest the allegations, the nurse only faces a three or six-month suspension. Or, in situations involving substance abuse issues, a nurse might agree to probation and mandatory treatment and testing instead of a license suspension.
Another possibility is that the nurse decides to fight the charges and disciplinary action by requesting an administrative hearing. These are often like mini-trials in that each side will submit evidence, including presenting documents and calling witnesses to testify. An administrative judge or panel of board members will then make a decision.
In either situation, having a license-defense attorney can be crucial in achieving the best result possible for the nurse. Legal representation is important during negotiations and when cooperating with the board of nursing's investigation. At the same time, if fighting the charges becomes necessary, having a lawyer ready to go will be invaluable.
The key point to remember is that the board of nursing exists to protect the general public and the nursing profession as a whole, not an individual nurse accused of wrongdoing. This doesn't mean cooperating with the disciplinary process isn't possible. But it does mean that nurses must remain vigilant about protecting their rights, knowing that the deck could be stacked against them, and acting accordingly.
Outcomes from the Disciplinary Proceeding
After hearing arguments and receiving evidence from the nurse, the board of nursing will issue its decision. Ideally, the judge or panel deciding the case will find for the nurse and conclude no wrongdoing occurred. However, if the board of nursing decides the nurse should face discipline, here's a wide range of possibilities of what could happen, starting with the least severe:
- Reprimand: Sometimes called a censure, this often means a note or letter has been placed in the nurse's file outlining what the nurse has been accused of and what the board of nursing found during the disciplinary process. A reprimand is often a way for the board of nursing to “keep score” of a nurse's disciplinary issues in case future disciplinary action becomes necessary.
- Probation: The nurse can continue working as a nurse
,but may need to abide by certain conditions, such as regular reporting to the board of nursing officials or receiving treatment for mental health issues. Being on probation also means any future disciplinary action could be more severe if the accusations are made during the probationary period. - Limited Practice: A nurse may have restrictions placed on where and how they practice nursing. The nurse might have their access to certain medications restricted or have to work under special supervision rules.
- Suspension: When this occurs, an individual may not practice as a nurse for as long as their license is suspended. A suspension is in place for either a set amount of time or until the nurse meets specific conditions, like passing several drug tests or completing a mental health screen examination. Suspension can be either voluntary or involuntary.
- Revocation: This is where the board of nursing takes away the nurse's license and is usually the most severe form of punishment from the nursing board. A revocation can be permanent, but in limited situations, the revocation will be temporary. This might occur when a former nurse can reapply for their nursing license, but only after a set amount of time passes and they retake the necessary licensure exams.
In addition to the above, other sanctions may include paying fines and completing remedial education courses. These punishments often run parallel to the above, such as the nurse having to complete nursing education courses and pay a fine as a condition of having their nursing license reinstated.
Appealing the Board's Decision
Most states have special procedures in place for nurses to appeal the board of nursing's decision if they disagree with it. These appeal rights are limited because the appeal will usually only review disagreements about the disciplinary process's procedures, not the weight or believability of the underlying evidence.
For instance, the board of nursing's decision to refuse to accept testimony from a nurse's witness is likely appealable. What's not usually appealable is a panel concluding that the nurse's witness was lying when providing testimony.
In other words, whether or not a witness could testify (or a document could be submitted into evidence) would be an appealable dispute. What probably wouldn't be appealable is the judge's or panel's determination that a witness was credible or a document contained a real or forged signature.
Nursys Reporting
If the nurse is subject to certain types of discipline, the state board of nursing will report it to Nursys. This is a national database that employers can use to verify a nurse's licensure status and practice privileges.
Why It's Important to Have a Nursing License Defense Attorney
It's clear why a nurse facing criminal charges should consider not just the legal ramifications of those charges, but the professional ramifications as well. But as long as the nurse has a criminal defense attorney who can successfully fight the criminal charges, the nurse is fine, right? Not necessarily.
There are several reasons why obtaining legal representation from just a criminal defense lawyer is often insufficient to protect the nurse's professional license.
First, the criminal defense attorney is primarily concerned with fighting the criminal charges, not the administrative ones from the board of nursing. As a result, they're more likely to compromise a nursing license if it means obtaining a more favorable result in criminal court.
A prosecutor might offer the nurse a plea bargain where the nurse pleads guilty, pays a monetary fine, and gets placed on probation. In return, the nurse faces no jail or prison time. If the maximum penalty for the criminal charge is five years in prison, the criminal defense attorney may try to convince the nurse to accept this deal.
As nice as it might be to avoid any jail time, the conviction could result in the nurse's license getting suspended or revoked. Unfortunately, many criminal defense lawyers don't take these ancillary consequences into account during the criminal proceeding. And if they do, they have little knowledge or experience handling professional licensure defense matters. Therefore, they can't offer the best legal advice as to what the nurse should do in response to a plea bargain offer.
Second, a professional license disciplinary proceeding is different from a criminal proceeding because of how the legal and administrative process views the accused. In a criminal case, the defendant is innocent until proven guilty. To establish guilt, the prosecution must prove, beyond a reasonable doubt, that the defendant did the crime they're accused of committing.
In contrast, a disciplinary proceeding progresses as if the nurse is guilty until they can prove their innocence. One reason for this is that the burden of proof the nursing board must meet is far lower than the prosecutor in a criminal case.
The Lento Law Firm Can Help Protect Your Nursing License
Getting arrested for a crime is bad enough by itself. But now you have to worry about whether you'll have a job and keep the career you've worked so hard to build. If it turns out the criminal charges could result in professional discipline from your state's board of nursing, you must contact the Professional License Team at the Lento Law Firm. Their experienced professional nursing defense lawyers can help you navigate the disciplinary process to protect your nursing license. Call us at 888-535-3686 or use our online contact form to learn how we can help.
