Nurses can face a variety of disciplinary charges from their state nurse licensing board. Unprofessional conduct is one of the more daunting charges to face because of its ambiguity and the broad discretion disciplinary officials have to define, charge, and prove it. Unprofessional conduct could be virtually any departure from nursing rules, customs, conventions, or standards. If you face unprofessional conduct and disciplinary charges, your best move is to retain the Lento Law Firm's premier Professional License Defense Team for your best outcome. We are available across the country to help you defend and defeat unprofessional conduct and disciplinary charges. Call 888.535.3686 or complete this contact form now for effective representation by our skilled and experienced attorneys.
Nursing Board Disciplinary Authority
Your state legislature has enacted a Nursing Practice Act or other nursing laws authorizing your state nursing board to issue you a license. The same statutory scheme authorizing your licensure also authorizes the state board to suspend, revoke, or otherwise discipline your license for unprofessional conduct or other grounds. For example, Section 918 of the Louisiana Nurse Practice Act empowers the State Board of Nursing to both issue licenses on the Board's standards and terms and to suspend, revoke, or otherwise discipline those licenses on the Board's stated disciplinary grounds. For another example, Section 441.07 of the Wisconsin Nurse Practice Act expressly authorizes the Wisconsin Board of Nursing to suspend or revoke a license for “misconduct or unprofessional conduct.” Don't doubt your state nurse licensing board's authority to suspend or revoke your nursing license for unprofessional conduct. Instead, retain us to defend your unprofessional conduct charges.
Definitions of Unprofessional Conduct
Definitions of unprofessional conduct under the various state nursing laws and board of nursing rules are extraordinarily broad. For example, a Wisconsin Board of Nursing rule codified in Wisconsin Administrative Code Section 6.05 defines “unprofessional conduct” broadly as “a violation of the standards of practice” of nursing in the state. Virtually any state nursing law, Board of Nursing rule or regulation, nursing education or professional standard, ethics rule, or customary nursing practice in the state could constitute a standard of practice, leaving the rules' interpretation open to the discretion of Wisconsin disciplinary officials.
For another example, Section 148.261 of Minnesota's Nurse Practice Act authorizes discipline for “engaging unprofessional conduct,” defined as “a departure from or failure to conform to board rules of professional or practical nursing practice....” Again, nursing practice could constitute nearly anything that nurses customarily do or avoid doing. Minnesota's definition for unprofessional nursing conduct adds that “if no rule exists” to define unprofessional conduct, then the nurse must conform “to the minimal standards of acceptable and prevailing professional or practical nursing practice....” Again, nearly any prevailing nursing practice may define what you must do or avoid doing. Minnesota further adds to the definition of unprofessional conduct “any nursing practice that may create unnecessary danger to a patient's life, health, or safety.” Your state board's disciplinary officials will very likely have similarly broad discretion to invent and apply customary standards to pursue unprofessional conduct charges against you.
Examples of Unprofessional Conduct
Investigate nursing studies and resources, and you will find a wide variety of examples of nurse unprofessional conduct. For instance, a National Library of Medicine study of nurse disciplinary reports included these examples of unprofessional conduct: substance abuse, working under the influence, medication theft, work impairment, neglect, falsifying documents, and criminal conviction. For another example, a Nurse.com summary cites diverting medications, practice outside the scope, patient confidentiality breaches, patient boundary violations, and rude or insubordinate behavior as other examples of unprofessional conduct. The Maine Nurse Practice Act provides a more authoritative statutory list of unprofessional conduct examples, including:
- acts beyond the authorized nursing scope of practice;
- inadequate preparation;
- failure to maintain competency;
- practicing new procedures without proper education;
- delegating to unqualified persons;
- failing to supervise properly after delegation;
- failing to safeguard the patient;
- abandoning or neglecting a patient requiring nursing care;
- intentionally or carelessly injuring a patient;
- violating patient dignity or privacy;
- patient confidentiality breaches;
- inaccurate recordkeeping;
- falsifying or altering patient records;
- undue influence on a patient;
- other patient exploitation;
- aiding, abetting, or assisting others' nursing violations;
- unfit practice due to physical, psychological, or mental impediment;
- practice while impaired by alcohol or drugs;
- diverting medication, supplies, or property;
- impersonating another practitioner or allowing impersonation;
- assisting an applicant with credential fraud;
- sexual misconduct; and
- other behavior exceeds professional boundaries.
Defense of Unprofessional Conduct Charges
The fact that you now face state board of nursing disciplinary charges does not necessarily mean that you committed unprofessional conduct. Disciplinary officials may, from the nature of the charges and the weakness of their evidence, expect you to come forward with a credible explanation of the suspicious conduct. We can help you make your best defense presentation. Given the breadth of potential unprofessional conduct charges, our defense of your specific unprofessional conduct charges will very much depend on your circumstances and the nature of the allegations. Subject to that qualification, we may be able to take any one or more of the following defense approaches to defend and defeat your disciplinary charges or to reduce or eliminate any sanction in mitigation of a violation:
- proving through your testimony and other evidence that you did not do what the disciplinary officials allege;
- showing that the statements and testimony of complaining and incriminating witnesses is inconsistent, contradictory, and unsupported by other direct or circumstantial evidence;
- showing that incriminating witnesses are deluded, vindictive, conflicted, retaliatory, without direct observation or other foundation for their accounts, or otherwise without credibility;
- proving through nursing consultant testimony and other sources that your actions met all applicable standards of nursing care;
- showing that your supervising nurses, physicians, and employer representatives authorized and instructed your actions, which you undertook in reasonable belief of their appropriateness;
- any arguably unprofessional actions you undertook were due to reasonable misunderstanding or understandable mistake as to the actual circumstances rather than deliberate, knowing, or reckless violations of nursing standards;
- showing that your actions caused no harm, injury, insult, or offense or that the benefit of your actions substantially outweighed any adverse consequences;
- showing that your actions violated no criminal or civil laws or established recorded nursing standards, instead only arguably departing from ambiguous customs and conventions;
- showing that you disclosed and corrected the alleged unprofessional conduct before complaints and reports, establishing your good faith intentions to avoid knowing violations of nursing standards; or
- showing that you suffered a temporary, unpredictable, and one-time lapse due to medication changes or other anomalous physiological or psychological conditions or events, not likely to repeat, such that your continued practice is no threat to patients or the nursing profession.
Reporters of Unprofessional Conduct
The outcome of your state licensing board unprofessional conduct charges may depend in part on who observed, discovered, or presumed your alleged unprofessional conduct and complained about it or reported it to disciplinary officials. Some complaints of unprofessional conduct may come from patients and their family members, particularly allegations having to do with alleged nursing abuse, neglect, or incompetence. Disciplinary officials may regard those complaints as credible, especially when based on firsthand observation of the facts the complainants allege. On the other hand, patients and their family members lack nursing training, knowledge, and expertise. They may misconstrue customary or special nursing care as abuse or neglect when physicians, nurses, and disciplinary officials would know better. Patients and their family members may also hold grudges and act vindictively or in retaliation, alleging false complaints. We can help you challenge unqualified, biased, or malicious patient and family member reports.
Physicians, nurse supervisors, nurse colleagues, subordinate nursing assistants, and healthcare aides may make more credible complaints than patients and their family members. Healthcare professionals working in your practice setting may also have an equal or better ability to make firsthand observations of your unprofessional misconduct that they later report to disciplinary officials. Examples include impaired or intoxicated nursing practice, incompetent nursing practice, and patient neglect or abuse. But professional colleagues can also misidentify actors, misconstrue actions, and presume harmful or reckless intentions when you were instead innocent of any such intent. And colleagues can be wrong about nursing standards despite their education, training, and experience. We can help you sort out and challenge colleague complaints.
Your employer's managers and representatives are other potential complainants. You might think it rude, counterproductive, or unusual for your own employer to complain to disciplinary officials of your alleged unprofessional conduct, like a goose sticking its own neck in a noose. However, employers may have regulatory duties to report and may face regulatory action or civil liability when failing to report and otherwise properly address nursing unprofessional conduct. They may also have reasons to scapegoat or unfairly blame you for wrongs others or they themselves commit. Once again, we can help you sort out and challenge employer complaints. Anyone else, including the disciplinary officials themselves and members of the public, may complain of your unprofessional conduct, although such complaints would be less likely.
How Unprofessional Conduct Charges Arise
How your unprofessional conduct charges arise may also affect your disciplinary outcome. Unprofessional conduct charges may, for instance, arise from a patient injury. Patients, their family members, colleagues, supervisors, and employer representatives may all have incentives to blame you for a patient injury. We can help you distinguish adverse reactions to standard nursing care or the natural course of patient disease, for which you would have no disciplinary responsibility, from nursing malpractice injuries, for which you might rightly suffer discipline.
Unprofessional misconduct charges can also arise from personality conflicts, personal preferences and differences, and other supervision, management, and relationship issues in the healthcare setting in which you work. You may, for instance, face schedule challenges, requiring you to work extended hours, cover for other nurses, or ask other nurses to cover for you. In those instances, you may get blamed for substandard nursing care that other nurses performed. Alternatively, you may face supervision by a physician or nurse with poor supervision and interpersonal skills and their own impairment or incapacity issues, leading to false and unfair unprofessional conduct charges against you. You may also work under and with others who are unfamiliar with your personal demeanor and presentation and who may take undue offense at or misconstrue your ordinary communications and actions, resulting in confusion and unprofessional conduct charges. We can help you challenge disciplinary charges arising out of management and interpersonal conflicts.
Other unprofessional conduct charges may arise from your conduct outside of the workplace, such as if you suffer drunk driving charges or domestic violence allegations, or from changes in your health or condition, such as sudden and severe loss of weight, anxiety, or traumatic injury. Those events and conditions may lead to unprofessional conduct charges relating to your impairment, unfitness, or incapacity. Once again, we can help you address and challenge those disciplinary allegations, for instance, by showing your recovery, safety for patient care, or right to disability accommodations in, or family or medical leave from, the workplace.
Factors Affecting Unprofessional Conduct Defense
Other factors may also affect the outcome of your state licensing board's unprofessional conduct and disciplinary charges. We can help you evaluate these factors and gather and present the appropriate evidence for exoneration or mitigation of the misconduct charges. Examples include:
- whether your alleged conduct violated criminal laws, including whether prosecutors or other law enforcement personnel are pursuing or considering criminal charges;
- whether your alleged conduct caused patient injury, including whether patients or their family members are demanding your discipline;
- whether you, in fact, have a medical or mental condition affecting your nursing practice and whether you are able and willing to treat that condition;
- whether you have a dependency or addiction issue, and whether you are able and willing to address it before state licensing board intervention;
- whether your employer has already taken action terminating or otherwise affecting your employment, including whether your employer supports or fails to support you in defense of disciplinary charges;
- whether others were allegedly involved in the unprofessional conduct, and, if so, whether you had a supervisory or subordinate role to those others; and
- whether your alleged unprofessional conduct exposed your employer to regulatory risks or civil liability.
Alternative to Discipline Programs
A quick word about alternative to discipline programs if your unprofessional conduct charges relate to alleged substance abuse, addiction, or dependency. Many state legislatures have authorized state nursing boards to offer alternative to discipline programs to nurses with substance use and abuse issues. Your matter's disciplinary officials or your colleagues or employer may have already recommended that you participate in such a program, with the hope and expectation of avoiding discipline while getting the help you need to recover. While the intent of those programs and offers is good, in practice, the programs may not be your best option.
For example, you may not qualify for the program. You may have to relinquish your license to participate. You may have to do drug drops or other activities that you do not need and that present unreasonable costs and burdens. The program may last for years, burdening you with other monitoring and reporting requirements while restricting your practice or threatening your license with non-compliance issues. Consult us before entering a consent agreement for alternative program participation. We can help you read the fine print and make your best decision. You may be better off getting your own care while letting us help you defend and defeat the disciplinary charges.
Procedures for Unprofessional Conduct Charges
Our defense of your unprofessional conduct and disciplinary charges will rely on the protective procedures of your state's Nursing Practice Act, nursing laws, and nursing rules and regulations. You have a constitutionally protected property and liberty interest in your nursing license and practice. Your state licensing board cannot simply suspend or revoke your license without first offering you due process to tell your side of the story. Due process typically means fair notice of the charges and a fair hearing before an impartial decision maker. The Washington State Nurse Practice Act provides an example, expressly incorporating the uniform procedural rules of the state's disciplinary act for all professions. Those uniform procedural rules refer to the state's Administrative Procedure Act for the required constitutional due process notice, hearing, presentation, and cross-examination of witnesses, and other protections.
Attorney Role Defending Misconduct Charges
Your unprofessional conduct and disciplinary charges should thus begin with the state board's disclosure in writing to you of the details of your alleged violations. You may have the opportunity for a conciliation conference at which we can advocate for early voluntary resolution. You should also have the opportunity to provide your evidence and explanation to the investigator with our help and review the state board's evidence against you in advance of the formal hearing. You will have the right to our assistance at the formal hearing to present your defense evidence and cross-examine adverse witnesses. If you have already lost your formal hearing, you should have appeal avenues available to you. We can prepare and pursue those appeals. If you have already lost your appeals, we may be able to identify errors in the decisions and procedures that would warrant civil court reversal. Keep in mind that these procedures are not self-executing. They require our active, strategic, and effective intervention.
Unprofessional Conduct Sanction Defense
Don't make the mistake of thinking that your disciplinary charges for alleged unprofessional conduct mean that disciplinary officials have already determined your responsibility and will impose a harshly punitive penalty, interrupting your nursing practice and costing you your job. Charges are not findings. The disciplinary officials in your matter may already question the allegations and the weakness and inconsistency of their evidence. They may be waiting for your credible explanation to relieve you of the worst of the charges. Even if you believe that you committed the unprofessional conduct that they allege, they may not impose crippling disciplinary sanctions if you can make a strong case for mitigating their usual penalties. We can assemble and present your best mitigation case, showing that your conduct did not harm, injure, or threaten patients, that your continued practice presents no safety risk, and that you are not likely to disrupt the workplace again with any rule or standards violations.
Let us help you make that case of mitigation. It isn't always about whether the accused nurse broke nursing rules and standards. Often, it is a question of what the state board will, must, or should do about it. We can advocate for remedial measures like additional training, supervision, counseling, or education over punitive sanctions like license suspension and revocation. Disciplinary officials recognize the value to patients and the public of your nursing services. Let us help you show that you can offer that value without undue risks.
License Reinstatement
Do not despair if you have already lost your license to unprofessional conduct charges and have exhausted all available avenues for relief. Many state legislatures authorize the state nursing board to reinstate a suspended or revoked license. Wisconsin's Nurse Practice Act provides an example. Its Section 441.07 states expressly that “the board may reinstate a revoked license....” Reinstate provisions typically require a one-year wait or other interim period and a convincing reinstatement application to the state board. They also typically reserve discretion to the state board to grant or deny the application. Let us help you make the best case for license reinstatement.
Premier Attorneys for Nursing License Defense
If you face state nursing board unprofessional conduct disciplinary charges, the Lento Law Firm's premier Professional License Defense Team is available to represent and defend you, no matter your nationwide location. We have helped hundreds of nurses and other professionals defend their license against all kinds of disciplinary charges, including unprofessional conduct. Call 888.535.3686 or complete this contact form now for our premier defense representation.
