Your nursing practice demands a lot of you in terms of your own knowledge and skills. You have your hands full simply ensuring that you meet all nursing standards in the course of your nursing practices while maintaining your own fitness for practice. Yet you may still have some responsibility to monitor and even to report your colleagues for their impairment or unfitness. Your failure in that reporting obligation could even lead to your own disciplinary charges. Retain the Lento Law Firm's premier Professional License Defense Team if you face disciplinary charges relating to colleague misconduct. Call 888.535.3686 or complete this contact form now for our highly qualified attorney representation and for your best disciplinary outcome in this difficult circumstance.
The Nature of Colleague Impairments
Nurses suffer impairments and unfitness, just like physicians, dentists, and other healthcare professionals. Impairment and unfitness issues can run the gamut. They can include physical disability and decline, such as back conditions and weakness restricting movement, lifting, and carrying; foot and leg issues restricting ambulation and standing. Hand and arm issues restricting fine motor movements and limiting patient care and keyboarding, and shoulder and neck issues affecting sitting, lifting, and use of the arms and hands. Impairments can also include mental, emotional, and psychological disabilities affecting attention, concentration, memory, perseverance, and motivation, including mental disabilities brought on by substance abuse. Impairments can be an especially challenging issue for nurses because of the physical and mental exertion, strength, and stamina that nursing can require, turning, lifting, supporting, and otherwise caring for patients on long shifts under critical-care stresses involving matters of life, disability, disease, decline, and death.
Impairments Versus Unfitness
Although many in and outside of the nursing profession mix the two terms, impairments and unfitness can carry different meanings and connotations. Generally, impairments have something to do with the nurse's mental or physical ability to perform up to nursing standards under all conditions. By contrast, unfitness generally has something to do with the nurse's desire or willingness to conform to all nursing standards, customs, and conventions. A classic impairment would be a physical injury to the nurse's knee that prevents the nurse from ambulating without crutch or walker support, thus interfering with nursing duties. A classic example of unfitness would be a criminal conviction for fraud, demonstrating the nurse's propensity to falsify critical patient records. Impairment and unfitness are both significant issues, even if they differ in their forms and impacts.
Causes of Colleague Impairment
As the above categories of colleague impairment, both physical and mental, suggest, impairment can have several causes. One group of causes has to do with the natural decline of physical and mental functions. Aging alone can reduce physical strength and mobility, hearing and sight acuity, and mental attention and concentration to the point of impairing a nurse's abilities. At some point, we all wear out. Another group of causes has to do with the sudden onset or slow advance of disease. Infectious disease and chronic diseases can rob a nurse of ambulatory, circulatory, respiratory, cognitive, and other functions to the point of impairing the nurse's abilities.
Another group of causes of colleague impairment has to do with traumatic injury. A nurse who breaks an arm or leg skiing may suffer sudden serious impairment that, depending on recovery, could stretch into the future and even result in permanent disability. Another group of causes of colleague impairment has to do with lifestyle issues including not only rest, physical exercise, and other self-care but also substance abuse, dependency, and addiction. An American Journal of Nursing study indicates the serious practice risks that substance use disorders among nurses present and the abundant resources to address those disorders. This last form of impairment can relate to workplace or personal stresses, poor work or family schedules, exhaustion, burnout, and other lifestyle, relational, and environmental factors. Nursing can be stressful. Nurses can have a lot of causes relating to their impairment. The causes may matter to the disciplinary outcomes, both for the impaired nurse and the nurse accused of failing to report the impaired colleague.
Impairment from Substance Abuse
Impairment from substance abuse, dependency, or addiction bears special consideration because of the special programs most state nursing boards offer nurses impaired from alcohol or drug abuse. Those programs can go by several different names including impaired nurse, nurse recovery, nurse intervention, alternative to discipline, or diversion programs. The programs attempt to enroll nurses with alcohol or drug issues in evaluation, treatment, and monitoring programs before their substance abuse leads to disciplinary violations. Some of those impaired nurse programs extend their coverage to nurses impaired by other physical or mental conditions beyond substance abuse. Florida's Intervention Project for Nurses is an example, offering monitoring and treatment of substance issues primarily but also help with non-substance abuse, and physical and mental impairments. Do not enroll yourself in one of these programs without consulting our attorneys. They can require that you relinquish your license or may keep you from regaining an unlimited license during years of unnecessary monitoring.
Referral for Substance Abuse Monitoring
The existence of the above impaired professional recovery programs may give you an attractive option for a disciplinary complaint when you discover an impaired colleague. Professional recovery programs vary, but they tend to accept referrals from professional colleagues, even anonymous referrals. You could certainly encourage your impaired colleague to contact your state's recovery program. But doing so could damage your professional relationship or may otherwise be uncomfortable. You may instead contact the recovery program by giving the impaired colleague's name. Some recovery programs will undertake to reach out to the impaired professional on that basis, to urge the professional to consider voluntary program enrollment. If state nursing board disciplinary authorities later question your diligence in monitoring your healthcare colleagues' impairment, your referral of the impaired colleague to the recovery program may assuage the disciplinary concerns over your failure to report the colleague. Let us help you present that circumstance in your defense of disciplinary charges if you referred your impaired colleague to a recovery program.
When to Report Impairment Versus Refer Impairment
Beware of substituting an anonymous referral to your state's professional recovery program for a proper disciplinary complaint against an impaired colleague. Your state nursing board alleging your failure to properly report an impaired colleague may not accept your referral of the impaired colleague to the state's recovery program as fulfilling your nursing duties. So, when do you refer, and when do you report? The key distinction for which to watch is whether your impaired colleague has violated a state nursing board standard. If the substance use issue is just a personal issue, not yet impacting the healthcare workplace, then state nursing board disciplinary officials are unlikely to attempt to hold you responsible for failing to complain to them about it. Plenty of healthcare professionals drink and party, even doing so too liberally, without it necessarily impacting their professional performance. Refer those colleagues to the recovery program if you have such concerns. But if you see your colleague violating a standard of their healthcare profession, report them to the appropriate licensing board. Let us help you make the correct distinction.
Ethical Obligations to Report Colleague Impairment
The American Nurses Association Code of Ethics addresses at length a nurse's ethical obligation to report an impaired nurse colleague to state disciplinary authorities. The Code states on page twenty that “[i]f impaired practice poses a threat or danger to self or others,” then the nurse colleague “must take action to report the individual to persons authorized to address the problem.” The Code explains the grounds that reporting an impaired colleague who has not accepted offers of entering a recovery program is an act of professional compassion that simultaneously protects patients and the public. The Code further urges the nurse observing an impaired colleague to consult with employer representatives, state recovery program officials, nursing association staffers, and state nursing board officials if in doubt about reporting or other obligations. Let us help you determine your reporting obligations and disciplinary exposure, especially if you find yourself in a sensitive position where making a report could affect your employment or professional relationships.
Relationship of ANA Code to Disciplinary Standards
The American Nurses Association Code of Ethics is not itself an enforceable disciplinary standard. The ANA does not license and discipline nurses. However, as shown below, state nurse practice acts generally authorize state nursing boards to adopt standards regulating nursing practice. State nursing boards may refer implicitly or expressly to the ANA Code of Ethics, incorporating the Code's standards. You are generally wise to consider the ANA Code of Ethics to be a standard guiding your nursing conduct. Consult us if you have any questions about the Code of Ethics reporting standards in your specific circumstances. If you do not report an impaired colleague where the ANA Code of Ethics appears to have required your report, and your state nursing board incorporates the Code of Ethics or recognizes its provisions as establishing customary nursing standards, then your state nursing board may charge you with discipline for violating its standards based expressly on the Code of Ethics or implicitly on Code-defined nursing standards.
Nursing Board Authority to Discipline
As just mentioned, state nursing boards generally have the authority under state nurse practice acts to define the nursing standards that they may enforce through license discipline. Section 43-26-5 of the Georgia Nurse Practice Act is an example, providing that the Georgia Board of Nursing must “[d]evelop and enforce reasonable and uniform standards for nursing education and nursing practice.” Under that authority, the Georgia Board of Nursing has adopted its Rule 410-10-.01 expressly adopting nursing standards based on the American Nurses Association Code. The Georgia Board of Nursing standards include a licensed nurse's obligation to “[n]otify the appropriate party of any unprofessional conduct which may jeopardize patient/client safety.” That provision and other similar standards state or imply an obligation to report an impaired colleague whose conduct may affect patient safety. See the line already mentioned above? You likely need not report substance use outside of the workplace that does not impair workplace performance. However, you should generally report impaired practice that threatens patient safety. Let us help you confirm your state nursing board's rules and comply with those rules or defend disciplinary charges alleging your failure to do so.
Nursing Board Reporting Rules
Your state nursing practice act or nursing board rules may be even clearer with respect to your duty to report an impaired colleague. Your state nursing rules may not merely incorporate American Nurses Association standards but may instead impose their own direct reporting requirement. The Texas Nursing Practice Act is an example. The Act's Section 301.402 mandates reporting of another nurse who engages in certain misconduct. Section 301.401 of the Act defines misconduct as subject to mandatory reporting. That misconduct includes suspected impaired practice under the influence of alcohol or drugs. Section 301.401 also requires reporting another nurse who exhibits a lack of skill that may lead to patient harm. In Texas and other states adopting similar statutes or rules, you must report the nursing colleague impaired by alcohol or drugs and may have to report other healthcare professionals. Let us help you confirm your reporting obligations and carry them out properly or defend disciplinary charges alleging that you failed to do so.
Reluctance to Report Impaired Colleagues
The above discussion already hints that you may have good reason to be reluctant to report an impaired colleague. Consider those reasons. The colleague whose impairment you observe may be your nursing supervisor, on whom you depend for assignments, evaluation, and other support. Reporting in that case could potentially lead to supervisor retaliation, even up to the loss of your employment. Similarly, the colleague whose impairment you observe may be a physician whose orders you regularly carry out, where your report of that physician could ruin your professional relationship with the physician and even cause the physician to retaliate in ways that harm your own employment. Reporting other nurses, nurse aids, physicians, therapists, and healthcare professionals in your workplace can cause similar fractures in professional relationships and lead to retaliation and sabotage against you.
Protecting Against Reporting Retaliation
Despite your reluctance to report a colleague to disciplinary authorities, you still have whatever duty your state nursing standards impose. You may thus have a strong need or desire to protect yourself against retaliation so that you can lawfully carry out your reporting duties. Consider notifying your healthcare employer's human resources director of your observations and the need to report. That notice may ensure that the employer watches for and discourages retaliation. It may also document that any action your impaired colleague takes affecting your employment or reputation gains due scrutiny as potential retaliation. State nurse practice acts and nursing board rules routinely incorporate protections against retaliation in their disciplinary standards and procedures. Texas Nursing Practice Act Section 301.402 is an example of prohibiting retaliation against a nurse who reports another nurse's violation. You should not suffer retaliation, and retaliation may be another ground for your impaired colleague's discipline. Document your observations of your impaired colleague, and make sure that your employer monitors for retaliation. Let us help you make the necessary documentation and employer communications. And let us help you defend any misconduct allegations and invoke your protections against retaliation in the process.
Impacts of Colleague Impairment
Colleague impairment, whether physical or mental, and whether caused by substance abuse or other disease or decline, can have severe impacts. Although the impaired colleague is primarily responsible for those impacts, as a nurse with a duty to report colleague impairment, you may share that responsibility. Indeed, in the case of a habitually and badly impaired colleague, employers and state nursing board officials may blame the non-impaired professionals who knew of their colleague's habitual impairment more so than blame the impaired professional for any serious harm that results. The impacts of a colleague's impairment that may hasten and increase the disciplinary charges against you, the mandated reporter, can include:
- death or serious injury of a patient or multiple patients under the impaired colleague's care;
- civil liability of the impaired colleague's facility and employer for patient death or injury;
- regulatory charges, fines, and license or certification suspensions against the impaired colleague's facility and employer;
- damage to or destruction of facility equipment, furnishings, and supplies; and
- loss of public respect, trust, confidence, and reputation, affecting income.
Avoiding Disciplinary Charges for Failure to Report
The obvious way of avoiding disciplinary charges for failure to report is to go ahead and make and thoroughly document the necessary report in a timely manner. But presuming that you are beyond that point, you can still take steps to reduce the likelihood of disciplinary charges for failure to report. Retain us the moment you hear any allegation that you violated any nursing standard by failing to report an impaired colleague. We can help you identify, gather, preserve, organize, and present the evidence of your observations and actions that may relieve you of disciplinary charges. We can communicate not only with state nursing board investigators but also with your employer representatives, colleagues, or others who raise concerns over your conduct, with the goal of heading off formal disciplinary charges. We may also be able to advocate and negotiate alternative remedial measures, avoiding punitive disciplinary sanctions, if in fact you owed but failed in a duty to report. State nursing board officials may just want to see that you take seriously your reporting obligations seriously. Your willingness to accept education, training, monitoring, or mentoring may satisfy disciplinary officials that you need and deserve no sanction.
Defenses to Failure-to-Report Disciplinary Charges
You may have outright defenses to disciplinary charges that you failed to report an impaired colleague when you had a duty to report. We can help you evaluate, document, and present all available defenses. Those defenses may include:
- you owed no duty to report under state nursing board rules and standards;
- you owed no duty to report under the specific circumstances in your matter;
- you did not observe the impaired colleague's impairment and thus had no basis for reporting;
- although you observed impairment, you did not observe your impaired colleague's violation of any practice standard while impaired;
- you reasonably believed that your colleague's impairment was not so substantial as to present any risk to any patient or to violate any practice standard;
- you reported your colleague's impairment to your employer, your colleague's employer, or another individual whom you reasonably expected to further your report to disciplinary officials;
- you referred your impaired colleague to the state's professional recovery program under the reasonable belief that you had satisfied your reporting obligation under the circumstances and
- your failure to report your impaired colleague caused no patient risk or harm.
Protective Procedures Against Disciplinary Charges
Your state's nursing practice act will have protective procedures that our highly qualified attorneys can invoke to defend your disciplinary charges alleging your failure to report an impaired colleague. The Texas Nursing Practice Act is an example. Section 301.507 expressly incorporates the protections of the state's administrative procedures act while separately providing for fair notice and formal hearing for nurses accused of misconduct and facing license discipline. Our attorneys have the administrative law knowledge, skills, and experience to invoke these protective procedures in a strategic and effective manner. Let us help. Your nursing license, employment, and career may be on the line.
Premier License Defense Attorneys Available
If you face state nursing board disciplinary charges alleging your failure to report an impaired colleague, retain the Lento Law Firm's premier Professional License Defense Team for your best disciplinary outcome. Our attorneys help hundreds of nurses and other professionals defend state board disciplinary charges nationwide. Call 888.535.3686 or complete this contact form now for skilled and experienced representation to protect your nursing license, reputation, and career.
