Investigations of alleged misconduct by California registered nurses are investigated by two agencies, either the Board of Registered Nursing, by its own investigators, or by the Division of Investigation of the Department of Consumer Affairs. When a complaint is received by the Board, if Board enforcement believes the complaint has sufficient merit, the complaint is transmitted to an investigator with an internal memo directing the investigation. Typically an investigator will start with interviewing the complainant, then seek records, investigate other knowledgeable persons or percipient witnesses, and at the end want to interview the registered nurse.
Since most complaints arise at the registered nurse’s workplace, it is very common for the investigator to want to obtain the nurse’s employment records. However, these records are confidential, and may include testing results (such as psychological testing, drug testing or physical examination results), salary information, personal data and the details of workplace investigations. Further, the employment records may contain information that could strengthen the Board’s potential case for license discipline against the registered nurse.
Our initial advice to every client, as an advocate for their privacy and in seeking to prevent license discipline, is to not agree to the release of employment records. Nevertheless, it is almost always beneficial to be open and cooperative with the Board. Stonewalling a licensing Board will usually only make the Board more alarmed and can fuel concerns about the licensee’s fitness to practice. Reconciling these two contrary positions (asserting one’s right to privacy, but also being open and honest with the Board) requires a careful strategic analysis. Another consideration is that the Board may ultimately subpoena the records and obtain them by court order.
In this situation, an attorney can serve the most valuable function of being an intermediary between Board and licensee. As an intermediary, an attorney can assess the inquiries from the Board and determine the best course of action for the registered nurse. Making the best decisions at the investigation stage is almost always the best way, if possible, to resolve a complaint against a licensee without damaging public disciplinary proceedings occurring.