Using Formal Charges as Intimidation

Once again, I have heard from a nurse, distraught over their case with the Board of Nursing, who is threatening to leave nursing (and the alleged complaint is SO MINOR) because of their interaction with the Board's investigator. I always hate when I hear these type of stories because it reeks of unfairness and manipulation: A nurse is unsure whether the nurse wants to sign an Agreed Order with the Board and expresses that to the Board investigator. The investigator replies that if the nurse does not sign the Order, then FORMAL CHARGES will be filed. The nurse thinks that this means that the case will then proceed to a judge, which may be very terrifying to the nurse. Actually, the Texas Board of Nursing files Formal Charges within their agency, not with the State Office of Administrative Hearings. The Board says that they do so that the public is informed of the nurse's actions and thus can be protected from the nurse while the administrative case continues through the regulatory process. But, when you look at the cases where formal charges are file and the timing of those filings, I begin to suspect that the filing was more of an intimidation play rather than a protection of the public.

The good news is that most of the investigators at the Texas Board of Nursing do not function in this manner, but the few that do cast a bad light on the entire agency. I have always thought that regulators accomplish more and receive fewer criticisms if their actions are professional, fair and just. It involves looking at the allegations and determining whether the actions or inactions warrant restrictions in order to protect the public and then what degree of restrictions are required in light of the violation and the mitigating factors.

Regulation means to control or direct according to law or rule. The Nurse Practice Act under Sec. 301.416 states that if the Board determines that the reported conduct does not indicate that the continued practice of nursing by the nurse poses a risk of harm, the Board does not have to continue with the investigation or to file formal charges. So, the Board can be effective in the regulation of nurses without having to punish every error or incident. This ensures not only that the public is protected from nurses that are really a threat, but it also ensures that nurses do not stop being nurses (which protects the public by having enough nurses to care for patients).