LEGAL IMPLICATIONS OF
UNPROFESSIONAL PRACTICE
Mary A. Trentham JD, MNSc, MBA, BS, ADN, APRN, CNP, GNP-BC, RN
Arkansas State Board of Nursing
Attorney Specialist
PUBLIC PROTECTION
–
–
–
–
–
Exam
(Online results)
Licensure
Criminal Records Checks
Endorsement/Certification
Approval of Nursing Programs/MedicationAssistant Programs
– Disciplinary Procedures
– Continuing Education Requirements
NPA
– All states include:
– Definitions
– Authority, power, and
composition of board
– Educational programs
– Standards and scope of
nursing practice
– Types of titles and
licenses of nurses
– Protection of nursing
titles
– Requirements for
licensure
– Grounds for disciplinary
action, other violation
and possible remedies
RULES
1. General Provisions
2. Licensure
Initial
Endorsement
Criminal background checks
CE
Renewals
Name and address change
3. RNP
4. APRN
5. Delegation
Delegated tasks
6. Educational Programs
7. Rules of Procedures
Grounds for discipline
8. Medication Assistant-Certified
9. Glucagon Administration
Scope of Practice
RN
• The practice of
Professional
(Registered)
Nursing:
– The delivery of
healthcare services which
require
•
•
•
•
•
Assessment
Diagnosis
Planning
Intervention
Evaluation
Scope of Practice
LPN/LPTN
– The delivery of healthcare
services including
• Observation
• Intervention
• Evaluation
– Performed under the
direction of:
• Professional nurse
• Licensed physician
• Licensed dentist
– Does not include
• Assessment
• Diagnosis
• Planning
TEACHING GUIDELINES
RNs are prohibited from delegating tasks that
require the substantial specialized skill, judgment,
and knowledge required in professional nursing to
an LPN or LPTN.
Scope of Practice
Is ____ within My Scope of
Practice?
Unsure
Is ____ permitted by the
NPA?
No
Unsure
Is ____ precluded under
any other law rule or
policy?
No
Yes
Stop
____ is not
within My
Scope of
Practice
Scope of Practice
Is ____ consistent with
pre-licensure education
curriculum or post-basic
education program?
No
Yes
Is ____ consistent with
National Nursing
Standards?
Nursing Lit / Research?
Policy & Procedure?
Yes
No
Stop
____ is not
within My
Scope of
Practice
Scope of Practice
Is ____ consistent with
Agency Accreditation
Standards?
No
ASBN Position
Statements?
Community Standards?
Yes
Stop
____ is not
within My
Scope of
Practice
Scope of Practice
Have I completed special
education that is needed
to competently perform?
No
Yes
Do I possess the
appropriate knowledge to
carry out ____?
No
Yes
Is there documented
evidence of competency &
skill in my file?
No
Stop
____ is not
within My
Scope of
Practice
Scope of Practice
Yes
Would a reasonable &
prudent nurse do the act?
No
Yes
Am I prepared to accept
the consequences of my
actions?
No
Stop
____ is not
within My
Scope of
Practice
HOW TO REPORT
• Any one can report violations
– Nurses are required to report
• Sentinel event
• Patterns of behavior
• Complaint in writing
– Who
– What
– When
– Where
ACT 411
REGULAR SESSION 2015
An Act To Create The Substance Abuse
Reporting Act; And For Other Purposes
(4)
"Required reporter" means:
(A) A facility licensed by the Division of Health
Facilities Services of the Department of Health;
(B) A facility licensed by the Office of Long Term Care
of the Division of Medical Services of the Department
of Human Services; and
(C) Any other entity that employs or contracts with
healthcare professionals to provide healthcare
services to individuals in the State of Arkansas.
(b) The chief executive officer or an official agent of a required reporter,
or his or her designee, shall report to the appropriate licensing authority
the following:
(1) A final disciplinary action taken against a healthcare
professional as a result of the diversion, misuse, or abuse of illicit drugs
or controlled substances as defined by state and federal law by a
healthcare professional; and
(2) The voluntary resignation of any healthcare professional
against whom a disciplinary action arising from the diversion, misuse, or
abuse of illicit drugs or controlled substances as defined by state and
federal law by a healthcare professional if a disciplinary action is
pending.
(c) A report required by subsection (b) of this section shall be submitted
within seven (7) days of the final disciplinary action or voluntary
resignation . . .
DISCIPLINARY PROCEEDINGS
CHAPTER 7 SECTION IV
1. Is guilty of fraud and deceit
Misrepresenting application for licensure
Prescribing without prescriptive authority
Practicing without license
DISCIPLINARY PROCEEDINGS
CHAPTER 7 SECTION IV
2. Guilty of a Crime or Gross immorality
– Acts and conduct inconsistent with rules and
principles of morality
EXAMPLES OF CONVICTIONS THAT BAR
HOLDING LICENSE ACA §17-87-312
•
•
•
•
•
•
•
•
•
Capital Murder
Murder – 1st & 2nd degree
Battery 1st degree
Sexual indecency/assault Incest
Child Porn
Offenses against the family
Felony adult abuse
Theft of property
Promotion Prostitution 1st degree
• Stalking
• Arson
• Endangering welfare of a
minor 1st degree
• Aggravated robbery
• Terroristic threatening 1st
degree
• Kidnapping
• Robbery
• Violation of Uniform
Controlled Substance Act
CRIMINAL CONVICTIONS
Convicted of a crime listed in A.C.A. §17-87-312
– May voluntarily surrender license until
requirements of court are met
– Submit a request for a waiver
• Provide evidence of court order met
• Provide evidence of rehabilitation
• Provide letters of reference
WAIVER CONSIDERATIONS
•
•
•
•
•
•
Age at which crime was committed
Circumstances surrounding the crime
Length of time since the crime
Subsequent work history
Employment/character references
Evidence of rehabilitation
DISCIPLINARY PROCEEDINGS
CHAPTER 7 SECTION IV
3. Negligence
Failure to do some act which a licensee should do
Doing something that a reasonable or prudent nurse
would not do
Gross negligence
Exercise of minimal care with disregard or indifference
for health, safety, or welfare of patient
CIVIL LIABILITY NEGLIGENCE
The omission to do something which a
reasonable person, guided by those ordinary
considerations which ordinarily regulate
human affairs, would do, or the doing of
something which a reasonable and prudent
person would not do.
Black’s Law Dictionary
Page 1032
ELEMENTS OF NEGLIGENCE
• Duty
• Breach
• Proximate Cause
• Damages
MALPRACTICE (TORT, WRONGFUL DEATH/INJURY)
– Professional misconduct or unreasonable lack of
skill.
– To be liable for malpractice an individual must be
engaged in the practice of a profession.
– Applies if their conduct or services fall below the
standard of care held by their profession.
STANDARDS OF CARE
– Professional Standard
– Policies and Procedures
– Nurse Practice Act
– Rules
– Expert Witnesses
GOOD SAMARITAN ACT
Arkansas Code Annotated §17-95-101(a) (c)
Any health care professional under the laws of the State
of Arkansas who, in good faith, lends emergency care
or assistance without compensation at the place of an
emergency or accident shall not be liable for any civil
damages for acts or omissions performed in good faith
as long as any act or omission resulting from the
rendering of emergency assistance or services was not
grossly negligent or willful misconduct.
Disciplinary Proceedings
Chapter 7 Section IV
4. Habitually intemperate or addicted
5. Mental incompetence
DISCIPLINARY PROCEEDINGS
CHAPTER 7 SECTION IV – UNPROFESSIONAL PRACTICE
– Failing to assess &
evaluate/failing to
intervene
– Documentation
– Misappropriation
– Medication/Treatment
errors
– Performing/attempting to
perform procedures that
nurse is untrained to do
– Violating confidentiality
– Neglect/Abuse or failure to
report
– Failing to report violations
or attempted violations to
the ASBN
– Inappropriate delegation
– Failing to supervise
– Practicing when unfit
DISCIPLINARY PROCEEDINGS
CHAPTER 7 SECTION IV – UNPROFESSIONAL PRACTICE
– Failing to use Universal
Precautions
– Inaccurate or misleading
employment Hx.
– Acts of dishonesty related
to practice of nursing
– Failure to wear name tag
w/insignia
– Failure to repay ASBN
Nursing Student Loan Fund
DISCIPLINARY PROCEEDINGS
CHAPTER 7 SECTION IV – UNPROFESSIONAL PRACTICE
– Patient Abandonment: Leaving your nursing
assignment without notifying the appropriate
personnel
• Who does policy require the nurse to inform?
• Who if anyone did the nurse inform?
• Need written statements
– Job Abandonment
• Nurse can give notice of intent to leave patient
assignment
NONPROFESSIONAL SOCIAL
NETWORKING
• Journal of Nursing (2010) reported that seven staff members
were terminated or disciplined for taking pictures of a nursing
home resident that had been severely stabbed and posted the
pictures on Facebook.
• June 2010, a California hospital fired five nurses for discussing
patient cases on Facebook, even though no names were
disclosed.
• In Wisconsin, two nurses were fired after posting photos of a
suicidal patient’s graphic x-rays on Facebook.
SMARTPHONES & DUMB BEHAVIOR
36
Suzy (Nurse) Smith I have failed miserably with Meditech 6.0… I throw in
the towel. 
Sally (Friend) Sunnyside Don’t give up! You can do it!!! LOL!
Suzy (Nurse) Smith I don’t know if it’s the lack of staffing or I’m just a total
idiot…All I know is I feel the agony of defeat…
Bobby (Patient) Simpson I left the ER last night without getting the doc to
look at the leg or the gash on the thumb. Took 2 hours to get a tetanus shot
and after 4 hours of no doc I told them goodbye. They were blaming the
new software. That’s just wrong. Here is an idea. WRITE the info down, take
care of your patient and then key it later. Came home and pressure
bandaged the gash closed. Gonna have a scar but it will heal.
Helpful Hannah (Nurse) They WILL NOT let us write it down and chart later,
that’s the whole problem!
Freda Friend (Nurse) Definitely having a better patient ratio would help out
greatly.
OBSERVE PATIENT-NURSE PROFESSIONAL BOUNDARIES
– Professional boundaries
are the spaces between
the nurse’s power and
the patient’s
vulnerability.
– Actions that overstep
established boundaries
to meet the needs of
the nurse are boundary
violations.
FOUNDATIONS FOR ANA'S PRINCIPLES
DISCIPLINE
–
–
–
–
–
Letter of Warning
Letter of Reprimand
Probation
Suspension
Revocation
DUE PROCESS
– Notice of allegations
– Opportunity to respond and defend
– Fair and objective decision-making
PUBLIC EXPECTATIONS
What does the public expect from a Licensing
Board?
How much risk can be tolerated?
How do Boards determine whether a person
is sorry for what happened or just sorry he or
she got caught?
Contact Information:
Mary A. Trentham
Attorney Specialist
Arkansas State Board of Nursing
1123 S. University, Suite 800
Little Rock, AR 72204
Voice 501.686.2741
E-mail: mtrentham@arsbn.org