Concepts of Professional Regulation and Criminal Liability Paper

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Table of Contents

Introduction
Civil Complaint Process
The Role of the Respective Regulatory Agencies in Investigating Such Allegations
Criminal Liability for Negligence Practices
Criminal Charges Process
Reference List

Introduction

Professional regulation and criminal liability is a concept initially started by western countries. However, today at least every country deploys this concept in order to control and monitor healthcare professional practices. From ancient times, healthcare has been the most affected professional area due to ever-rising unethical cases. On the other hand, the belief that human beings are immortal has even complicated diagnosis and treatment of patients hence subjecting the profession into criminal risk. In primordial times, nurses and physicians faced physical retribution in case of professional misconduct. However, today this has totally changed, and in case of professional misconduct, nurses and doctors faces economic compensation or imprisonment. Many countries around the world have enacted healthcare legislations that protect patients or healthcare consumers in various ways. For example, about seven European countries formed Patient Ombudsman body to address healthcare complaints. In United States, professional bodies have enacted legal procedures and complaint processes for patients who have experienced physician wrongs. (Barry et.al, 2008, pp.1-3).

Internationally, discussions are going on aimed at establishing an International Medical Tribunal with a mandate to judge and chastise medical practitioners who defy human rights by engaging in unprofessional medical practices. From the inception of the 20^th century, the world has witnessed many scenarios where patients subject unprofessional medical practitioners into scrutiny either in public or in court chambers. Like any other profession, medical practitioners perform diagnosis and treatment errors amid discretion and care. If such wrong actions occur, a patient may die or remain paralyzed forever. This is the reason why such fallibility leads into legal action. Interestingly, nurses and doctors face dire consequences in case of diagnosis and treatment anomalies. The paper seeks to address regulation of nurses and the liabilities they face due to wrong diagnosis and treatment of patients. Registered career nurses perform many healthcare services. For instance, nurses can detect and treat health problems through professional healthcare practices, which include health instruction and guidance, treatment and proscription of drugs. (Fremgen, 2009, pp. 2-12).

Civil Complaint Process

Nurses who have undergone rigorous training process are not only competent but also caring folks who are ready to execute their professional roles with much care. However, some can perform unprofessional nursing practices that might cause the patient’s death. Some patients aware of treatment procedure can file a complaint against a nurse who they believe did not or is not performing. Anybody can file a complaint with the state board of nursing or state licensing authority against the nurse for further action. The complaint should reflect on what the nurse failed to do or on the other hand, what the nurse did to harm a patient. In United States of America, each state has its own nursing board that act swiftly on such complaints. The Nurse Practice Act mandates state licensing authorities the power to exercise jurisdiction to nurses who have not performed their practices fittingly. The board operates within the Nurse Practice Act and only when, there is evidence linking the nurse to violation of nursing state laws and regulations do consequences follow.

Any person can file a complaint against a nurse purported to have performed unprofessional nursing practices. For instance, such allegations can be the nurse’s gross neglect or ineptitude, unethical behavior, drug and substance abuse, falsification, nurses who have nursing licenses through fraud, insane nurses and unlicensed nursing practices. However, the state licensing authority or nursing board can only investigate complaints that fall within its jurisdiction. Registered nurses, matters related to licensing of nurses and individual who brand themselves as registered nurses form good examples of complaint against nurses. Normally, persons complaining must fill in the complaint form and then submit it to the relevant authority. The filled information is vital in determining the outcome of the complaint. In most case, successful complaints must include actual, certifiable information. It is quite imperative for complainants to fill in the complaint form using own words in order to reflect the gravity of the matter. Additionally, information like the date or time of the liability and documentary evidence can bring out the required factuality and emphasis. (National Council of State Boards of Nursing, 2010, p.1).

The complainant waits for ten days to receive a written notification of receipt. This notification informs the complainant that the board has received the complaint and investigations are underway. The nursing board consultants will first investigate matters that have great impact such as patient abuse, incompetence, drug and substance abuse, and the general ineptitude. However, there must be ample evidence of professional misconduct for such boards to take action against the implicated nurse. After the completion of investigation, the board determines whether the claim holds. in case it does not hold, the board dismisses the complaint and immediately notifies the complainant through writing. Throughout the complaint process, all information is hush-hush in order to ensure no external information jeopardizes the process. Where the complaint involved unlicensed nurses or criminal nursing practices, the board will pass on the complaint to the attorney for trial. On the other hand, if the board finds the nurse guilty, the complaint must then testify in a case decided formally or informally.

Under normal circumstances, the determination of each complaint occurs under liability merits. There are nurses, who face liability resulting from diagnosis or treatment, and others face liability pertaining the nurse’s role to warn and guide patients regarding risks involved in certain nursing practices. Therefore, the board will investigate the matter and then compile a report on the same. The settlement of complaints can be either informal or formal. The informal process involves a mutual agreement between the nurse and the complainant (Consent Orders), while formal process involves hearings. (Jackson, 2009, pp. 17-51).

The Role of the Respective Regulatory Agencies in Investigating Such Allegations

The nursing board in California settles any complaint in order to bring sanity in the nursing profession. This is one of the very many regulatory agencies all over the world. They act as arbitrators between patients and nurses. Normally, a complainant will file a complaint with the professional body for further investigation. The board ensures that all nurses adhere to professional standards just as depicted in the Nurse Practice Act. The act regulates professional nursing practice into a manageable profession free from malpractices, which can lead to legal actions. The nursing licensing board of California and any other nursing professional body play imperative roles especially in the monitoring and regulation of nursing profession. The board executes its mandate by investigating complaints submitted by complainants aimed at determining the nature of criminal liability. The board examines the complaint together with submitted evidences in order to identify whether the case is a criminal liability. If the issue is genuine, that is, there are indications of breach of nursing practicing standards; the board then steers up its investigatory mechanisms to prove the allegations.

The board can demand additional materials to act as evidence to the complaint. Additionally, the board will notify the nurse or licensee about the accusations and request a response through writing. At times, the board will interview various witnesses and sometimes carry out site visits. After gathering substantive evidence, the board will call upon the licensee to an oral interview and respond to the complaints. Here, the board will explain to the licensee the type of proceedings to follow, the consequences that waits in case the nurse is guilty and the aftermath of the licensure. The board has a definite authorization to hear such cases because, by doing so, it is shielding public curiosity.

Criminal Liability for Negligence Practices

Many deaths occur due to negligence from nurses. It is true people have varying levels of natural laziness, which leads to negligence. Nurses can make errors to their normal their normal practices like performing wrong diagnosis, giving wrong medications and other professional misconduct. If one of these scenarios happens to a patient, the patient of any other person can file complaint against the nurse for a licensure action. Negligence is a criminal liability that is comparable with slack homicide or manslaughter. In the past, there have been cases where nurses proscribe wrong medication to patients suffering from anesthesia without appropriate scrutiny. In medical terms, this amounts to negligence as the patient might die. Consequently, if the patient dies due to negligence, it is clear the nurse will face criminal charges. A story of a medical practitioner, who fed a 79-year-old man with hot cereals exclusive of testing its temperature, is an example of negligence. This is because, the patient later died due to the destruction of the esophagus by inhaled heat. However, when the board heard the case, it was apparent that the medical practitioner had failed to test the cereal temperature and perhaps read the patient’s stimuli. Even if the patient did not execute verbal complains, at least the medical practitioner might have experienced the agony of the patient. According to the board, this was a case of negligence and the licensee had to face charges of criminal liability. (DeWitt, 2009, p. 1).

Criminal Charges Process

Every state has its own way of determining the outcome of healthcare criminal liabilities. While others may choose to settle on informal hearing, others may opt for formal administrative hearing. Nevertheless, in determining the outcome, the board has to follow he laid down procedures like serving the licensee with a notice of allegation and allowing the nurse to defend, carrying out investigations, and examine the complaint with the concluded evidence before making any judgment. However, not all complaints hold water as some can be out of the Nurse Practice Act or others can fail due to lack of tangible evidence. To ascertain a criminal liability, there are three processes involved. Firstly, the whole process is subject to discussion and on-spot actions. Secondly, only factual evidences and facts determine the outcome of the complaint and lastly, the credibility of witnesses is paramount in the two hearing processes. The type of criminal liability will determine the type of punishment awaiting the nurse in case found guilty. For example, negligence can lead to imprisonment, fine or suspension of the nurse. On the other hand, if the criminal liability is of drug abuse, the board will pass on the matter to another body for recovery purposes and professional observation. The main advantage of professional regulation is to minimize criminal liabilities in professional practices and maintain public interest.

Reference List

Barry, R., Thomas, L. Greaney, T., Sandra, H., Timothy, J. & Schwartz, R (2008). Bioethics: Health Care Law & Ethics. (6th ed). New York: West Group.

DeWitt, T. (2009). Criminal Liability for Negligence Acts. Web.

Fremgen, B. (2009) Medical Law and Ethics. (3rd ed). Upper Saddle River, New Jersey: Pearson Publishers.

Jackson, E. (2009). Medical Law: Text, Cases and Materials. New York: Oxford University Press.

National Council of State Boards of Nursing. (2010). The Complaint Process. Web.

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