Does the Nursing Board consider a nurse guilty when he/she has an attorney?

No. I previously worked for the Texas Medical Board and I know that whether you have an attorney or not does not impact how your case is viewed - the Board has received a complaint and they must investigate it. This seems to come up frequently and it may be one of the causes as to why so many nurses go before the Board unrepresented (a VERY RISKY thing to do).

LaTonia Denise Wright, R.N., a nurse attorney that represents nurses in Ohio, Indiana and Kentucky, also discusses this issue in her "My 2 cents worth"blog

More Nurses in Trouble with the Nursing Board

Two other Nurse Attorneys have pointed out on their blogs/websites that there has been an alarming increase in Board of Nursing actions against nurses. On Constance Morrison's website the following is posted:

Did you know:
An alarming trend is that the numbers of state board of nursing actions against nurses has been steadily increasing since the 0.2-0.3 percent of all United States registered nurses who were annually disciplined at the turn of the twenty-first century (Benner et al., 2002). At the same time, the numbers of nurses who have had increased responsibility and accountability in their scope of practice have also faced intensified scrutiny by these same boards of nursing.

In her blog "My 2 Cents", LaTonia Denise Wright notes some personal experiences:

This is an alarming trend especially considering there is a documented need for more nurses across the country to practice in a variety of settings. Maybe Congress and the state legislatures when considering studies and funding for nursing schools/colleges, centers of nursing, and the lack of nursing faculty should also consider the following: Are we recruiting potential nurses only to have these nurses disciplined at some point in their career by a state Board of Nursing?

This does not even take into account criminal convictions (misdemeanor and/or felony) and the legal headaches faced by nursing students who have criminal convictions and then apply for initial licensure in a particular state. Or licensed nurses who face disciplinary investigations for a criminal conviction (misdemeanor or felony) even if unrelated to nursing practice in some states.

I had a family member of mine inquire about nursing school last week. She has several misdemeanor convictions from several years ago but no felony convictions. I advised her if she does enroll in nursing school and complete her education that depending on the state where she seeks initial RN or LPN licensure, she may need legal representation, counseling, and advising. I don't think she plans to apply now and if she does I will counsel her to seek initial nursing licensure in an appropriate state.

Should a new graduate and newly minted nurses start his/her career on probation with a Board of Nursing (depending on the Board of Nursing, this is akin to being "on criminal probation" or "on criminal parole") or with "action" against his/her license prior to the first day at work?

What a way to welcome new nurses to the practice of professional nursing!

I have found the same changes in Texas. I have been representing nurses before the Texas Board of Nursing for over 10 years (it is the only type of law I practice) and I have seen a big change in the way the Board of Nurse Examiners reviews complaints against nurses. It seems like the worse the shortage, the harsher the approach to regulation or perhaps it is in relation to the conservative political environment of the Board currently. It is distressing to see nurses disciplined when the discipline does nothing to protect the public, but only serves as punishment. I have always considered administrative law to be concerned with public welfare and not punishment.

The public, and the Legislature as well, is misled by ALL regulatory boards into acquainting disciplinary actions against licensees with public safety. So the public and the Legislature sees the names of licensees that have been disciplined or they see the number of board actions and they assume that their safety is being protected. The correlation is just not there. Too often I have seen fine health care practitioners disciplined for a problem with documentation years ago--where is the public safety concern? When the practitioner provides evidence of a lack of intent, of self-policing, and of correction of the problem with documented proof of improvement, the response from the regulatory agency is that they are glad the practitioner fixed the problem, but there was still a violation and they must punish that violation.

The Legislature could fix these problems. They could rein in the extensive power regulatory agencies have, but first they have to recognize the issues and then they have to want to correct the problems. What seems to happen is that the Legislature is very busy trying to do a large amount of work in a short time period and they rely on the very people they should be reviewing to provide insight into how their agencies are functioning.

But how can we hope to make these changes when we don't take the time to be informed or to be active in issues that matter (not whether Lindsey Lohan is in rehab or not and what is Paris Hilton doing or details about Anna Nichole, Tom Cruise, etc. etc. etc.). Those in power like it when the "people" are distracted and non-participatory. The lack of involvement allows for easier governing (akin to forcing a baby to go with you to the store compared to forcing a toddler who doesn't want to go). So, if you don't like where nursing is going, whether it is the Board of Nursing, the workplace situation for nurses, the pay for nurses, whatever, get involved and make a difference. Join nursing organizations, make your ideas known, get others involved, and don't be a sheep.

Complaint before the Board of Nurses

I just spoke with a Board Investigator. Apparently they have had 2 investigators leave recently which bumps up the caseload per investigator to almost 200 cases. Most of my cases are taking 1-2 years to be resolved and it looks like it is just going to get worse. This makes it extremely frustrating for nurses under investigation because for 1-2, maybe even 3 years, the nurse is under constant stress from the pending investigation.

And now, the Board is in the process of getting background checks on every licensed nurse. This is only going to add more cases to an already bottlenecked situation. There are solutions but they are going to have come from the Legislature, which means that the issues have to be presented by nursing associations and advocates.