Nurse Discipline and License Revocation in California

The California Board of Registered Nursing (BRN) can discipline a licensed nurse if convicted of certain criminal offenses. These convictions include either misdemeanor or felony convictions that are “substantially related” to the qualifications and duties of a being registered nurse (examples include convictions for crimes involving fraud, theft, or violence).

Disciplinary action may include a

• public reprimand,
• probation, or
• license suspension or revocation.

The Board can also deny professional licenses to nursing applicants if they were convicted of a crime within the prior seven years of the date of their license application. This is true provided that the conviction was substantially related to nursing.

Further, the following criminal convictions can prevent aspiring nurses from getting a license no matter how far back the case occurred:

• a serious offense (such as murder, rape, or grand theft), or
• a sex offense that requires Tier II or Tier III sex offender registration.

Registered nurses (RNs) who were convicted of a crime are entitled to appear at an administrative hearing before the Board can impose sanctions.

The hearing is essentially a type of mini-trial conducted before an administrative law judge. A lawyer from the California Attorney General’s Office represents the BRN. A nurse can hire a defense attorney at his/her own expense.

Both sides present evidence, such as

• evidence concerning the conviction,
• rehabilitation,
• the nurse’s criminal record, and
• the facts of the underlying criminal case.

The ALJ will likely recommend some type of disciplinary action if the Board can show, by clear and convincing evidence, that discipline is warranted. This is a lower burden of proof than the “by a reasonable doubt standard” that is used in California criminal trials.

The BRN can either accept the judge’s decision, modify it, or reject it.

Our California criminal defense attorneys will highlight the following in this article:

• 1. Who regulates nurses in California?
• 2. When can the BRN discipline a nurse?
• 3. Do all criminal convictions trigger disciplinary action?
• 4. Does a convicted nurse have a right to an administrative hearing?
• 5. Can I become a nurse if I have a criminal record?

1. Who regulates nurses in California?

The California Board of Registered Nursing regulates registered nurses. The BRN is a state governmental agency within the California Department of Consumer Affairs.

The nine-member Board of Registered Nursing is charged with protecting the public in matters relating to nursing. In accordance with the Nursing Practice Act, the BRN:

• regulates nurse education and practice,
• grants registered nurses with RN licenses, and
• carries out disciplinary actions (for misconduct as well as criminal convictions (both felony and misdemeanor convictions)).

The BRN also runs a voluntary and confidential diversion program for nurses dealing with

• substance abuse,
• dependency on controlled substances, or
• mental health issues.

Completion of the program requires monitoring by the Board of Nursing for an average of three years.

2. When can the BRN discipline a nurse?

The Licensing Board can discipline a California nurse if he/she engages in unprofessional conduct.

“Unprofessional conduct” includes:

• incompetence or gross negligence,
• using drugs illegally or in a way that threatens the public,
• being convicted of certain kinds of crimes (but criminal charges alone are not enough for disciplinary action),
• engaging in certain kinds of fraud,
• being disciplined by a board in another state, and
• being careless with respect to blood-borne diseases.¹

When it comes to actually imposing discipline on nursing providers, the BRN can:

• reprimand a nurse,
• place the nurse on probation, or
• suspend or revoked the person’s California nursing license.²

Example: Marni is an R.N. who works at a hospital in Central California. Her supervisor notices that she is signing out controlled substances like Demerol and Morphine without a physician order. No patients seem to get the drugs.

Based upon these facts, Marni is allegedly engaged in unprofessional conduct in violation of Business and Professions Code Section 2762a, obtaining or possessing controlled substances without a prescription.

The hospital files a complaint with the BRN. The Board initiates disciplinary proceedings against Marni by sending her an accusation specifying the charges. Marni fails to return a notice of defense. The Board issues a default decision against Marni and revokes her registered nurse license.

Note that we will not ever know if the charges were actually true or not because Marni did not exercise her right to have a hearing and present evidence in her defense.

If Marni had pursued a defense, her case may have been resolved in a less severe way. For example, Marni might have been placed on probation or even had the charges dismissed.

3. Do all criminal convictions trigger disciplinary action?

No. The BRN will only initiate disciplinary proceedings if a nurse was convicted of a crime that is “substantially related” to the qualifications, functions, and duties of a registered nurse.³

Examples of such convictions include convictions for the crimes of:

• embezzlement,
• child abuse,
• spousal abuse,
• battery,
• theft from a patient or client, or
• failure to report abuse.⁴

The term “conviction” includes convictions secured through:

• guilty pleas and California jury trial verdicts (after judgment has been entered), and
• “no contest” pleas (after judgment has been entered).⁵

Example: Paul is a registered nurse in Los Angeles. He is convicted of elder abuse on his aunt as well as petty theft. Paul also is less than stellar on the job. On several occasions he has not washed his hands before and after drawing blood and he has been observed using the same needle for multiple blood draw attempts on the same patient. When Paul comes up for license renewal, he fails to disclose the convictions.

Paul can be disciplined by the Board of Registered Nursing and have his license revoked. Not only was he convicted of crimes substantially related to the practice of nursing, but he lied on his renewal application. His failure to follow proper blood draw protocol amounts to unprofessional conduct as well.

But now change the facts. Paul is an R.N. with an advanced practice certificate as a nurse anesthetist. He has worked in several hospitals without incident for the past eight years. In fact, he has received only positive evaluations and is well regarded all around. One weekend afternoon Paul is stopped for speeding and issued a $100 speeding ticket.

Paul does not need to report this traffic infraction on his renewal application. The offense did not involve alcohol or a controlled substance, the fine was less than $300, and speeding is not substantially related to nursing.

Note that in general, entering a guilty plea as part of a deferred entry of judgment should not result in disciplinary proceedings or disqualification since the plea will be withdrawn as long as the nurse completes all the court orders. Expunged convictions also should not have any negative effects (in most cases).

4. Does a convicted nurse have a right to an administrative hearing?

Yes. Once a nurse is convicted of a crime, the BRN will begin an investigation into the matter.

If the Board finds that there is evidence suggesting disciplinary action, the convicted nurse may sometimes settle the case pursuant to a settlement agreement.

If no settlement, the nurse has a right to appear at an administrative hearing before the Board can take disciplinary action.

The hearing takes place at the Office of Administrative Hearings (OAH) and is similar to a criminal or civil court trial.

An administrative law judge (ALJ) presides over the proceedings. The Board is represented by a lawyer from the California Attorney General’s Office. The convicted nurse has the right to be represented by a criminal defense lawyer, at his/her own expense.

During the hearing, the lawyer for the Board presents:

1. evidence of the conviction, and
2. reasons for why the judge should recommend discipline against the nurse.

The nurse presents evidence on his/her own behalf. This includes evidence of rehabilitation and evidence of his/her criminal history.

The nurse’s lawyer can also call and cross-examine witnesses.

The ALJ issues a Written Proposed Decision typically within 30 days after the hearing. The decision sets forth the ALJ’s recommendation as to disciplinary action. The Board can either adopt it, modify it, or reject it entirely.

If healthcare professionals lose their hearing, the nurses can file an appeal with the Superior Court.

A nurse must file an appeal within 30 days of the effective date of the Board’s final decision.

If the Board suspended or revoked a nurse’s license, and the nurse loses on appeal, the nurse can try to petition the Board for the reinstatement of his/her license.⁶

5. Can I become a nurse if I have a criminal record?

It depends on the nature of the offense committed and when the conviction occurred.

The Board of Nursing may disqualify people from becoming nurses if:

1. they have a criminal conviction within the past seven years from the date of their application for licensure, and
2. the conviction was substantially related to the qualifications, functions, or duties of being a nurse (“substantially related” has the same meaning as discussed above in Section 3).⁷

Additionally, the Board of Nursing may disqualify people from becoming nurses if they have a criminal conviction from any time for either:

• a crime for which the applicant has to register as a Tier II or Tier III sex offender, or
• a serious felony, as defined in Section 1192.7 of the Penal Code.⁸

Examples of serious felonies under PC 1192.7 include:

• murder,
• rape,
• kidnapping,
• mayhem,
• forced sodomy, and
• assault with a deadly weapon.⁹

For additional help…

If you are a nurse and are under investigation by the BRN, we invite you to contact our criminal defense firm at the Shouse Law Group. Our attorneys provide both free consultations and legal advice you can trust.

Our lawyers also represent clients throughout California, including those in Los Angeles, San Diego, Los Angeles County, and Sacramento.

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