The Catch-All Disciplinary Provision of the Nurse Practice Act
As discussed in a previous post, there are thirty-eight separate grounds for discipline applicable to nurses: twenty-six that apply specifically to nurses and twelve that apply to all licensed professionals. The single-most common ground for which nurses are disciplined is S.C. Code Ann. § 30-33-110(A)(3):
[T]he board may cancel, fine, suspend, revoke, issue a public reprimand or a private reprimand, or restrict, including probation or other reasonable action such as requiring additional education and training, the authorization to practice of a person who has: . . . willfully or repeatedly followed a course of conduct that, by reasonable professional or ethical standards, renders the licensee incompetent to assume, perform, or be entrusted with the duties, responsibilities, or trusts which normally devolve upon a licensed nurse.
Let’s unpack that. First, the nurse must do something willfully or repeatedly. “Willfully” is a term of art that, under South Carolina caselaw, means voluntarily and intentionally. This willfulness is the mens rea or state of mind element of the statute and is necessary to find a violation. If the nurse has not acted voluntarily and intentionally (or repeatedly), he or she cannot lawfully be found to have violated this provision. For example, if the nurse makes a medication administration error, he or she cannot be said to have acted intentionally, and therefore cannot be found to have violated this statute; repeated errors, on the other hand, could satisfy this element.
Second, the standard applied in this ground for discipline is a “reasonable professional or ethical standard.” Because most of the members of the Board of Nursing are licensed nurses, they are generally aware of the standard of care applicable in most given situations. However, if the respondent nurse works in a niche area, the Board may benefit from information related to the applicable standard of care.
Third, the course of conduct or action the nurse took must “render the licensee incompetent to assume, perform, or be entrusted with the duties, responsibilities, or trusts which normally devolve upon a licensed nurse.” This is another barrier to a finding that the nurse has violated S.C. Code Ann. § 40-33-110(A)(3). For example, on a very busy night, the respondent nurse may have repeatedly delayed administering medication to his or her patients. However, the delays could be attributable to higher priority issues, such as other patients in distress. The nurse tending to these other patients, while delaying the administration of medication, does not mean that he or she is incompetent; instead, prioritizing more emergent patients actually demonstrates skilled nursing practice.
There are recent cases before the Board of Nursing that fit squarely within the intended purpose of S.C. Code Ann. § 40-33-110(A)(3). For example, in January 2017, the Board issued an order sanctioning a nurse who took a pill and then fell asleep at the bedside of one of her neonatal intensive care unit patients. While she was asleep, the nurse neglected her assigned patients, including missing feedings and not responding to her patients’ sounding alarms. This conduct originated with an intentional act that, by reasonable professional standards, rendered her incompetent to be entrusted with the duties that normally devolve upon a licensed nurse.
On the other hand, there are cases that may fall short of the standard articulated in that code section. For example, in September 2016, a nurse was sanctioned after having pled guilty to having an open container of beer or wine in her car. Although that “conduct” may have originated with an intentional act, the act, by itself, has nothing to do with her competence as a nurse. Conduct that is merely unbecoming of a licensed nurse may not rise to the level of professional incompetence.
S.C. Code Ann. § 40-33-110(A)(3) is often used as a catch-all provision where the conduct is questionable but does not fit neatly under another statutory provision. The conduct, however, must meet the statutory requirements in order for the statute to be lawfully applied; otherwise, any resulting sanctions are undue and the order can be appealed (principles related to appeals are discussed more here).