I received a call from a California Nurse Practitioner the other day who had received something out of the ordinary from the Board of Registered Nursing. The document the NP received was titled:
NOTICE OF APPEARANCE AND RECOMMENDATION BY STATE LICENSING AGENCY [BRN] FOR ORDER PROHIBITING DEFENDANT FROM PRACTICING AS A LICENSED REGISTERED NURSE; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF DEPUTY ATTORNEY GENERAL.
It is essentially a request to the Judge of the nurse’s criminal trial to allow the BRN’s attorney to make a recommendation for immediate suspension of licensure at the criminal trial. The NP has been charged with a felony for practicing without the proper Nurse Practitioner license in the State of California and working for a “pill mill” dispensing highly controlled prescriptions like Norco and Oxy.
While this sounds horrible, keep in mind the basis of our judicial system, that one is innocent until proven guilty. So if this is still the case (and it is), how is it then that the BRN can circumvent their own due process and suspend a license without allowing the NP his or her “day in court”?
Here is what the BRN says in its Memo of Points and Authorities:
MEMORANDUM OF POINTS AND AUTHORITIES THE COURT HAS AUTHORITY TO RESTRICT A DEFENDANT’S PROFESSIONAL LICENSE AS A REASONABLE CONDITION OF BAIL, IF THE DEFENDANT POSES A DANGER TO THE PUBLIC
- A State Licensing Agency May Voluntarily Appear in Any Criminal Proceeding Regarding a Licensee to Make Recommendations in the Interest of Public Protection.
The Board of Registered Nursing is the agency charged with protecting the public from dangerous, incompetent or unscrupulous nurses and has the responsibility for enforcing disciplinary provisions contained with Business and Professions Code §§ 2700, et seq. The Board is requesting this Court prohibit Defendant from engaging in any activity for which any and all nursing licenses are required. To help fulfill this responsibility, the Legislature has promulgated multiple statutory provisions that authorize the Board to voluntarily appear in criminal proceedings, make recommendations, and assist the Court to protect the public interest.
Specifically, Penal Code section 23, authorizes a state licensing agency to appear and make recommendations that effectively prohibit the practice of activities that the agency regulates.
Penal Code section 23 provides as follows:
In any criminal proceeding against a person who has been issued a license to engage in a business or profession by a state agency pursuant to provisions of the Business and Professions Code … the state agency which issued the license may voluntarily appear to furnish pertinent information, make recommendations regarding specific conditions of probation, or provide any other assistance necessary to promote the interests of justice and protect the interests of the public, or may be ordered by the court to do so, if the crime charged is substantially related to the qualifications, functions, or duties of a licensee. (Emphasis added.) 1
What does this mean in laymen’s terms? That the BRN has the right, if they believe that the NP poses a great risk to the public, to appear at the NP’s criminal trial and make a recommendation to the trial judge that the NP’s license be suspended immediately. It is a loop hole and it is 100% legal.
The only option at this point is for the criminal attorney to oppose the BRN’s motion and request that the NP be allowed the due process of the BRN and not to have his license revoked as a condition of bail. In order to do that, the attorney is going to need to be equally competent at criminal defense and NP license defense. Those attorneys are few and far between.
You’ve heard me wax on indefinitely about the importance of hiring a criminal lawyer who understands how the criminal ramifications will affect the NP license at the end of the day. Yet, so many of my potential NP clients call me after their criminal proceedings are complete and then wonder why their criminal attorney didn’t advise them about how their plea deal would impact their NP license. I’ll fill you in: IT IS BECAUSE THEY DON’T KNOW!!!
If you are a California Nurse Practitioner who finds themselves the subject of a criminal charge there are a few critical things to be aware of:
- A felony conviction for anything that the BRN can substantially relate to the practice of nursing will end your nursing career. Your license will be revoked and it will be virtually impossible to get back.
- A plea bargain resulting in a misdemeanor conviction can be almost as catastrophic depending on the underlying criminal charge.
- If the criminal charge has anything to do with falsifying prescriptions, practicing without a license or diverting medication, there is a very real chance that the Attorney General could appear at your criminal trial on behalf of the BRN to have your NP license revoked as a condition of your bail.
- And finally, PLEASE PLEASE PLEASE retain an attorney who can handle your criminal matter as well as your licensing issue.
We know how passionate you are about your career. It is not just your job, it is what defines you. We get it. We are as passionate about defending nurses as you are about being a nurse. There are literally thousands of criminal defense attorneys out there who will do a wonderful job defending the average person, but you are not average. You are a nurse and there are only a tiny handful of firms who focus on nurses. We happen to be one of them.
Call me for a free complimentary consultation. I will listen to your story, explain your options and give you an idea of likely outcomes you may expect. I’m here as an asset to you and your career and it is my pleasure to help you.