|||SUPREME COURT OF IDAHO
593 P.2d 711; 100 Idaho 74
|||April 17, 1979.
|||IN THE MATTER OF JOLENE LUCILLE BYERLY TUMA, R.N., DEFENDANT-APPELLANT,
BOARD OF NURSING OF THE STATE OF IDAHO, PLAINTIFF-RESPONDENT
|||Donald J. Chisholm, of Goodman, Duff & Chisholm, Rupert, for defendant-appellant.
|||Wayne Kidwell, Atty. Gen., Wayne V. Meuleman, of Park & Meuleman,
Boise, for plaintiff-appellee.
|||Bistline, Justice. Shepard, C. J., and McFadden, Donaldson and Bakes,
|||Appellant Tuma challenges an order entered by respondent Board of Nursing
(Board) which suspended her registered nurse's license for 6 months, the
Board acting on the decision of a Board-appointed hearing officer who found
Tuma guilty of "unprofessional conduct."
|||During March of 1976, Tuma was employed as a clinical instructor of nursing
by the College of Southern Idaho. Her duties included performing nursing
services while supervising student nurses at the Twin Falls Clinic and Hospital
|||On March 3, 1976, Grace Wahlstrom, a hospital patient, for brevity hereinafter
referred to as patient, was informed by her attending physician that she
was dying of myelogenous leukemia, that it was malignant, and that her only
hope of survival was chemotherapy. She was also told that the drugs involved
are life threatening and have undesirable side effects which reduce the
body's defense mechanisms, making the patient susceptible to infection and
necessitating that the patient be placed in reverse isolation.
|||Tuma, aware of the patient's condition and interested in the special needs
of dying patients, asked to be assigned to the patient and to administer
the prescribed chemotherapy. Tuma discussed the patient's condition and
background with her. The patient had fought leukemia for 12 years and attributed
her success to her belief in God and to her faithful practice of her religion.
They discussed work done by the L.D.S. Hospital in Salt Lake City using
chaparral and laetrile, as well as the side effects of the drugs used in
the chemotherapy. The patient pleaded with Tuma to return that evening to
discuss an alternative treatment using natural products with the patient's
family. Tuma consented to the meeting.
|||Tuma and a student nurse, Candice Freeman, then commenced the patient's
chemotherapy. Freeman testified that Tuma told the patient that discussing
these matters "wasn't exactly ethical." The patient acknowledged
this but still requested Tuma to come back that night. Freeman also testified
that Tuma told her to forget what she had heard because it wasn't "exactly
|||About two hours later, the patient was called by her daughter-in-law Penny.
Penny testified the patient wanted her family to meet Tuma and discuss the
alternative treatment. The patient asked Penny not to inform the doctor
because this could cause trouble for Tuma. However, Penny called the doctor
and informed him of the conversation. He requested that Penny get the name
of the nurse, but he did nothing to interfere with the scheduled meeting;
nor did he take up the matter with the patient. The doctor ordered the chemotherapy
stopped at 8:00 p. m. because of the patient's change of attitude. At 8:00
p. m. that evening, Tuma met with the patient and her family. They discussed
the prescribed treatment, its side effects, and alternatives provided by
natural foods and herbs, as well as the fact the patient would have difficulty
getting treatment, particularly blood transfusions, if she left the hospital.
Laetrile was discussed as an alternative form of treatment that does not
produce the adverse side effects of drugs used in chemotherapy. The patient's
son testified that Tuma said her Discussion with them was "somewhat
unethical." After a brief Discussion, the parties decided that the
patient should remain in the hospital and continue the chemotherapy. The
treatment was resumed at 9:15 p. m. that evening.
|||The patient died two weeks later on March 18, 1976. During the chemotherapy,
the patient did experience adverse side effects and was comatose much of
the time. There was no contention nor evidence that Tuma's acts in any way
contributed to the death of the patient.
|||Sometime in March, the Board received a telephoned complaint by Hospital
personnel that Tuma had interfered with the physician-patient relationship.
The Board's Director wrote to people familiar with the facts and asked them
to submit their complaints in writing. This was done by the Hospital personnel,
but no letter was received from the patient's family. A petition for the
suspension or revocation of Tuma's license was then prepared by the Director
and submitted to the Board, which set the petition for hearing.
|||The petition alleged that Tuma, for some time prior to March 5, 1976,
had interfered with physician-patient relationships at the Twin Falls Clinic
Hospital, Twin Falls, Idaho, in that: (1) Tuma stated to two patients, Mrs.
Grace Wahlstrom and Mickey Klimes,[Footnote 1] that the physician's treatments
would kill them; (2) that they should discharge themselves from the hospital,
and the care of a naturopath would be arranged for them by said licensee;
and (3) that treatment by use of laetrile, natural hormones and herbs would
cure said patients. It further alleged that such aforesaid conduct constituted
unprofessional and dishonorable conduct, warranting revocation of her license.
|||A hearing was held and the hearing officer found as facts that: (1) Tuma
did not tell the patient that chemotherapy would kill her; (2) Tuma did
not say that the patient should discharge herself from the hospital; (3)
Tuma did discuss natural products as an alternative treatment, but did not
say that the alternative treatment would cure the patient; (4) Tuma said
that care of a "reflexologist" would be arranged if the patient
decided to accept the alternative form of treatment and circumstantial evidence
indicates that Tuma would make the arrangements; (5) the doctor stopped
the treatment for a brief time after hearing of the conversation; and (6)
Tuma's actions interfered with the physician-patient relationship. The hearing
|||that Tuma "had violated Idaho Code Section 54-1422(a)(7), by interfering
with the physician-patient relationship and thereby constituting unprofessional
conduct." The Board approved the findings of the hearing officer, and
suspended Tuma's license for 6 months. This decision was appealed to the
district court where Tuma asked for a trial de novo, which motion was denied.
On a summary review of the record, the district court entered judgment,
without opinion, affirming the decision of the hearing officer and the order
of the Board suspending Tuma's license. Tuma then filed a notice of appeal
to this Court.
|||The primary issue on this appeal, and the resolution of which we find
to be dispositive, is whether the due process rights of Tuma are satisfied
by a statute which authorizes the suspension of her professional license
to practice nursing on the grounds of "unprofessional conduct"
in the absence of statutes or regulations specifically defining "unprofessional
conduct," as applied to the conduct which was here held to be unprofessional.
|||The right to practice one's profession is a valuable property right. A
state cannot exclude a person from the practice of his profession without
having provided the safeguards of due process. Schware v. Bd. of Bar Examiners,
353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). In Ferguson v. Bd. of
Trustees of Bonner County Sch. Dist. No. 82, 98 Idaho 359, 364, 564 P.2d
971, 976 (1977), this Court recognized that a "teaching position was
a property interest and [a teacher] could not be deprived of this interest
without notice and an opportunity to be heard."
|||In that case the primary issue was procedural due process, i. e., the
adequacy of the notice of charges and the adequacy of the hearing. However,
we also noted in Ferguson "that school boards are given broad authority
to define what constitutes grounds for discharge by promulgation of rules
and regulations governing professional conduct of school teachers. . . ."
Id. at 362, 564 P.2d at 974 (emphasis supplied).
|||The Board of Nursing (differently styled) was created by chapter 76, 1951
Idaho Sess. Laws, at 129. That Act, in addition to making provision for
the examination and licensing of nurses, provided for revocation or suspension
of a license upon proof that a licensee:
|||(1) Is guilty of fraud or deceit in procuring or attempting to procure
a license to practice nursing.
|||(2) Is guilty of a crime or gross immorality.
|||(3) Is unfit or incompetent by reason of negligence, habits or other causes.
|||(4) Is habitually intemperate or is addicted to the use of habit-forming
|||(5) Is mentally incompetent.
|||(6) Is guilty of unprofessional conduct.
|||(7) Has wilfully or repeatedly violated any of the provisions of this
Act or rules and regulations promulgated by the Board.
|||The Board was specifically "authorized and empowered to adopt and
from time to time revise such rules and regulations not inconsistent with
the law as may be necessary to enable it to carry into effect the provisions
of this act."
|||By amendments passed in 1963, 1965, 1971, and 1974, provisions for revocation
or suspension of a nursing license as effective in 1976 were found in I.C.
§ 54-1422 (amended in 1965 by ch. 92, 1965 Idaho Sess. Laws), with grounds
declared as follows:
|||(1) Fraud or deception in procuring or attempting to procure a license
to practice nursing.
|||(2) Practicing nursing under a false or assumed name.
|||(3) Conviction of a crime involving moral turpitude.
|||(4) Gross incompetency.
|||(5) Habitual intemperance in the use of ardent spirits, narcotics or stimulants.
|||(6) Mental incompetence.
|||(7) Immoral, unprofessional or dishonorable conduct.
|||Unprofessional conduct defined: Without intent to limit the general term
"unprofessional conduct," as used in this
|||chapter, or without intent to limit the board in exercising its powers
as provided in this nurse practice act, the following are declared to be
acts of unprofessional conduct:
|||(a) Any practice or behavior of a character likely to deceive or defraud
|||(b) Obtaining of any fee or compensation by fraud, deceit, or misrepresentation.
|||(c) Advertising by any means whatsoever of the practices of nursing in
which untruthful or misleading statements are made.
|||(8) Wilful or repeated violation of any of the provisions of this act,
or rules and regulations promulgated by the board.
|||Our only concern today is with (7) above, and that is narrowed further
by eliminating therefrom conduct which is immoral and conduct which is dishonorable.
We first observe the inapplicability of the statutory definition of unprofessional
conduct set forth explicitly in (7)(a), (b) and (c). Thus we are left with
a statute proscribing "unprofessional conduct" but without any
statutory definition of that phrase applicable to the case under review.
|||Notwithstanding that since the passage of the first Nurse-licensing Act
in 1951, the legislature did not change in any way the broad power and authority
of the Board "to adopt and from time to time revise such rules and
regulations not inconsistent with the law as may be necessary to enable
it to carry into effect the provisions of this act," and notwithstanding
the clear statement of I.C. § 54-1422 that the legislative definitions of
unprofessional conduct were not any limitation on the part of the Board
"in exercising its powers as provided" to it by the Act, the Board
has not over many years ever promulgated any rules and regulations further
defining unprofessional conduct.[Footnote 2]
|||Yet we note that in Ward v. Oregon State Bd. of Nursing, 266 Or. 128,
134, 510 P.2d 554, 557 (1973), one of the cases relied upon by the Board,
the Oregon Supreme Court en banc stated that "one of the characteristics
of a profession is its responsibility to formulate standards of conduct
for its members." (Emphasis added.) In yet another case relied upon
by the Board, Scott v. State ex rel. Bd. of Nursing, 196 Neb. 681, 686-87,
244 N.W.2d 683, 687 (1976), it is pointed out that "[the] statutes
of Nebraska which regulate the issuance of professional nurses' licenses
do not define unprofessional conduct. The Board of Nursing has adopted general
standards as to what is included in the term unprofessional conduct."
Similarly in Reyburn v. Minnesota State Board of Optometry, 247 Minn. 520,
78 N.W.2d 351, 355 (1956), a case relied upon by the Nebraska court in its
Scott decision, the legislature made "unprofessional conduct"
grounds for revocation or suspension, and, as with the Idaho act, defined
some conduct which would constitute unprofessional conduct, impliedly leaving
further definition to the board. The court said that the authority so conferred
upon a board was "to declare as 'unprofessional' only such conduct
as fails to conform to those standards of professional behavior which are
recognized by a consensus of expert opinion as necessary for the public's
protection." (Emphasis in original.)
|||Tuma argues that her conduct which is challenged as unprofessional, i.
e., her Discussions with the patient, cannot be made the basis for suspending
her license. She contends that she cannot be punished for acts the doing
of which at the time done had not been proscribed by the legislative definition,
or by any definition of standards by the Board. She points to Bojack's,
Inc. v. Dept. of Law Enforcement, 91 Idaho 189, 191, 418 P.2d 552, 554 (1966),
|||Court explicitly held that a "statute providing for the suspension
of a retail license, is penal in nature and will not be broadened or extended
by construction to include or penalize acts or conduct not clearly within
|||The Board argues that "unprofessional conduct" need not be further
defined, that such "is that which is recognized to be unsafe or improper
by the profession itself." Here, however, the "profession itself"
through its State Board of Nursing has not availed itself of the afforded
opportunity to expand upon the legislative definition. The Board has not
declared any standards of professional conduct, nor has it defined or declared
those acts which are either forbidden or required, on penalty of being held
guilty of unsafe or improper practices. For that reason Tuma argues that
the statute is unconstitutionally vague. She cites State v. Pigge, 79 Idaho
529, 532, 322 P.2d 703, 705 (1957), rehearing denied, where the Court held:
|||Before a man can be punished, his case must be plainly and unmistakably
within a statute. A statute that either forbids or requires the doing of
an act in terms so vague that men of common intelligence must guess as to
its meaning and differ as to its application lacks the first essential of
due process of law.
|||We do not agree that the Act is unconstitutional. Rather we believe that
it is constitutional, but only so far as it goes. It does define "unprofessional
conduct," albeit on a limited basis, and proscribes some types of unprofessional
conduct not applicable here. The fault is not in the statute, but lies in
the fact that the conduct here alleged as unprofessional, i. e., interference
with the doctor-patient relationship, is not within the legislative definition,
and the conduct here involved has not been declared unprofessional by the
|||Nevertheless, while the statute in question is not facially vague, it
cannot withstand scrutiny for vagueness as applied to the specific conduct
here made the basis of Tuma's license suspension. The void-for-vagueness
doctrine, although not there so named in that terminology, was clearly the
heart of the Court's decision in Pigge. Recently in State v. Lopez, 98 Idaho
581, 590, 570 P.2d 259, 268 (1977), on rehearing, this Court summarized
|||The concept of void-for-vagueness arose from a common law practice of
refusing to enforce legislation deemed too indefinite to be applied. See,
Amsterdam, "The Void-for-Vagueness Doctrine in the Supreme Court,"
109 U.Pa.L.Rev. 67 (1960). It has evolved to a protection generally regarded
as embodied in a Due Process Clause and prohibits holding a person "criminally
responsible for conduct which he could not reasonably understand to be proscribed."
U. S. v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
In addition to this notion of "fair notice or warning" the doctrine
is said to require reasonably clear guidelines to prevent "arbitrary
and discriminating enforcement" and to prescribe a precise standard
for the adjudication of guilt. Smith v. Goguen, 415 U.S. 566, 94 S.Ct. 1242,
39 L.Ed.2d 605 (1974). See also, Amsterdam, supra, at 76. The principle
consistently followed is that "a statute which either forbids or requires
the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application violates
the first essential of due process of law."
|||(Citations omitted.) The principle of void-for-vagueness is equally applicable
to statutes prescribing a standard of conduct which, though not subject
to criminal sanctions for violations thereof, is subject to regulation by
an administrative board or agency. In Hall v. Bureau of Employment Agencies,
64 Cal.App.3d 482, 138 Cal.Rptr. 725 (1976), the licensee's business, an
employment agency, was subject to the State Bureau of Employment Agencies.
He was charged with breaches of unprofessional conduct, made grounds for
disciplinary action by section 9993(a) of the Business and Professions Code.
That section did not at all define unprofessional conduct. The Agency, however,
had promulgated California
|||Administrative Code § 2857, which did declare some types of unprofessional
conduct, the full text of § 2857 being set out in the opinion at page 493,
138 Cal.Rptr. 725. The court observed that "unprofessional conduct"
standing by itself would be ambiguous, but the setting of standards by §
2857 "provides sufficient notice to employment agencies of what kind
of conduct is regulated and within the prohibition of the disciplinary ground
of 'unprofessional conduct' . . . ." Id. at 493, 138 Cal.Rptr. at 730.
|||Citing the earlier case of McMurty v. State Bd. of Medical Examiners,
180 Cal.App.2d 760, 4 Cal.Rptr. 910 (1960), in Hand v. Bd. of Examiners
in Vet. Med., 66 Cal.App.3d 605, 621, 622, 136 Cal.Rptr. 187, 197 (1977),
the California court stated:
|||"It is well settled that 'a statute which either forbids or requires
the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application violates
the first essential of due process of law.' [Citations.] This principle
applies not only to statutes of a penal nature but also to those prescribing
a standard of conduct which is the subject of administrative regulation.
[Citations.] The language used in such legislation 'must be definite enough
to provide a standard of conduct' for those whose activities are prescribed
as well as a standard by which the agencies called upon to apply it can
ascertain compliance therewith. [Citation.]
|||In Morrison v. State Bd. of Education, 1 Cal.3d 214, 82 Cal.Rptr. 175,
187-188, 461 P.2d 375, 387, 388 (1969), an authority cited in Hand, supra,
the Supreme Court of California, en banc, considered the revocation of a
school teacher's license which prevented him from teaching in any public
school in the state. His license was revoked because of "unprofessional
conduct," as well as "immoral conduct" and acts involving
"moral turpitude." In its consideration of a void-for-vagueness
challenge, the court there said:
|||"Civil as well as criminal statutes must be sufficiently clear as
to give a fair warning of the conduct prohibited, and they must provide
a standard or guide against which conduct can be uniformly Judged by courts
and administrative agencies. [Citations.] The knowledge that he has erred
is of little value to the teacher when gained only upon the imposition of
a disciplinary penalty that jeopardizes or eliminates his livelihood."
|||In Morrison, the statute was saved from a holding of facial vagueness
by a judicial interpretation construing the statutory language to constitute
a ban on conduct which would indicate an unfitness to teach. Id. 82 Cal.Rptr.
at 1189, 461 P.2d at 389.
|||With respect to Tuma, however, there appears to be no contention whatever
that she is unfit to nurse, but rather that she should be punished for the
act of talking to the patient about procedures alternative to those which
the patient was receiving. The Morrison court noted that its saving construction
"does not mean that the statute will always be constitutional as applied.
There may be borderline conduct which would justify a finding of unfitness
to teach but about which a teacher would not have a sufficiently definite
warning as to the possibility of suspension or revocation." Id. 82
Cal.Rptr. at 189 n. 36, 461 P.2d at 389 n. 36.
|||We find nothing in the statutory definition of "unprofessional conduct"
which can be said to have adequately warned Tuma of the possibility that
her license would be suspended if she engaged in conversations with a patient
regarding alternative procedures. Hence, it must be held that the statute,
unaided by board rules and regulations, does not prohibit the conduct with
which she was charged.
|||It is important to note also that the void-for-vagueness doctrine is two-pronged.
Not only are those whose activities are proscribed entitled to definite
standards by which they may be guided, but it is equally important that
the standards are there to guide those officers or agencies required to
pass judgment on licensees called to account for their conduct. This proposition
is properly considered here in regard to the Board's contention
|||that professional licensing agencies, being made up of professional and
experts of the profession regulated, are fit and capable in their own right
to determine the standards of the profession from their personal knowledge
and experience; thus alleviating the need for extensive expert opinion testimony
or other evidence regarding the standards of the profession within the community
on each and every occasion for discipline.
|||We find this contention to be without merit for a number of reasons. The
legislature has obviously recognized that the nurses who comprise the Board
can, "from their personal knowledge and experience," determine
the standards of the profession.[Footnote 3] And accordingly opportunity
was afforded the Board to expand upon the statutory definition of "unprofessional
conduct." But, says the Board, it is enough that the Board will hear
evidence of a licensee's conduct, and with its expertise then reach a Conclusion
whether such was or was not unprofessional. We cannot agree. Such a procedure
would be an intolerable state of affairs, and not in compliance with requirements
of due process.
|||In Ex parte McNulty, 77 Cal. 164, 19 P. 237, 239 (1888), the court expressed
concern over the possibility that an individual might lose substantial rights
"for the violation of any vague, undefined notion of unprofessional
conduct which might, after the fact, be entertained by certain individuals
constituting a board of examiners." (Emphasis added.) See Morrison,
82 Cal.Rptr. at 188 n. 32, 461 P.2d at 388 n. 32. To which must be added
that the membership of the Board is a changing thing, and as the Board make-up
changes, it cannot be said that notions of unprofessional conduct may not
also change. There must be standards or guides "against which conduct
can be uniformly Judged by courts and administrative agencies." Id.
82 Cal.Rptr. at 187, 461 P.2d at 387 (emphasis added).
|||But here in Tuma's case it was not the Board which found Tuma guilty of
unprofessional conduct -- rather it was a hearing officer, who, so far as
the record shows, was not a nurse, and hence if not a nurse, not possessed
of that expertise born of "personal knowledge and experience"
which would have enabled him albeit after the fact, to determine from what
he heard of Tuma's conduct that she had indeed acted unprofessionally. It
was not only Tuma who was at a disadvantage, but the hearing officer as
well. For instance, when Tuma asked the Board's Executive Director, who
had filed the original petition with the Board, to give a definition of
"unprofessional conduct" as applied to a nurse, the following
|||MR. MEULEMAN [counsel for the Board]: I object to the question. That interpretation
is one for the board hearing officer. It's the ultimate issue.
|||MR. DUFF [counsel for Tuma]: I think it's very important, in this case,
that we find out what her definition is of "unprofessional and dishonorable
|||MR. MEULEMAN: She is not the one that has to decide whether or not the
allegations meet the statute.
|||MR. DUFF: I am sorry, I don't know what it means. I'd like to find out.
I realize that we are talking about an area that, normally, we do not ask
the witness. But I understood that part of the Court's ruling was that we
were dealing with a
|||person that was trained in this field and should know what those meant.
|||MR. SNYDER [hearing officer]: Well, if you want her to testify with respect
to what she thinks that the items that are contained in the statute and
the items that are contained in the rules and regulations, as to what they
mean, I am not going to allow it; because I don't know as to why it is relevant
as to what the licensee has been charged with. I suppose everyone in this
room may have a different interpretation of what that means. But the fact
remains that the statute and the regulations define what it is, and I suppose
that I am going to be the one that's going to have to decide whether or
not the conduct she's charged with comes within the purview of those words.
|||MR. DUFF: Your Honor, the purpose of my inquiry is precisely to point
out precisely the point we are talking about, is how does the registered
nurse determine what is unprofessional and dishonorable conduct? And I think
that, if it's the Court's ruling that she can't testify to that, that's
fine. That's all I want. In my understanding, that is the ruling.
|||MR. SNYDER: That is the ruling.
|||It is inescapable that the hearing officer felt obliged to hear what Tuma
had done, and then, absent any standards appropriate to her particular type
of conduct here under fire, to decide whether she was guilty of unprofessional
conduct. This feature of the Idaho statute, I.C. § 54-1422(b),[Footnote
4] sets it apart from any authority relied upon by the Board. The hearing
officer -- not the Board -- makes the initial decision as to guilt or innocence.
The Board's only function is to approve or disapprove a guilty decision,
and impose the penalty. It is powerless to enter a decision of its own and
specifically cannot find the charges proved if the hearing officer has held
|||The court in Scott, supra, did say that "[the] determination whether
by common judgment certain conduct is disqualifying is left to the sound
discretion of the board." 244 N.W.2d at 689. But that discretion is
not an unbridled one, the court further going on to add "that whether
certain acts constitute unprofessional conduct may be established by the
testimony of qualified experts." Id. at 690. Such was done in Scott,
but even so, it is important to note also that the licensee in Scott was
not possessed of a property interest in a license, but was applying for
a license to practice nursing -- a substantially different posture.
|||In Ward, supra, it is not clear whether the Board there had fulfilled
its responsibility of formulating standards, but it appears that the determination
of guilt and revocation was made by the board -- not a hearing officer.
It is clear that the Oregon court held as a matter of law that it is unprofessional
for a registered nurse to aid and abet another to serve and perform as a
registered nurse, the other person not being so licensed in Oregon, and
the statutes of Oregon making it unlawful for an unlicensed person to hold
oneself out as a licensed professional nurse. As was said in Sage-Allen
Co. v. Wheeler, 119 Conn. 667, 678-679, 179 A. 195, 199-200 (1935), the
words "immoral," "dishonorable," or "unprofessional"
are but general terms indicating the character of conduct which may be grounds
for disciplinary action. The court there went on to say:
|||" These words in themselves have no significance in law even to a
reasonable certainty and might seem to authorize the revocation of a license
for acts having no reasonable relation to the underlying purpose of the
statute, the protection of the public. Giving these words a broad meaning,
it would be difficult to justify the grant to the board of power to revoke
a license for any conduct which it might deem to be immoral, dishonorable,
or unprofessional. [Citations.] But if we did give to these words so broad
a meaning, we would be attributing to the Legislature an intent to vest
the board with power going beyond the scope of its purposes and to enact
a law of at least doubtful constitutionality. We cannot assume that the
Legislature intended to give expression to such an intent and must, if it
is reasonably possible to do so, so construe the words it has used as to
make the provision a valid and reasonable one. [Citations.] The words must
have been used in the light of the fundamental purpose of the statutes to
regulate the profession in the public interest and they can only be construed
as intending to include conduct within their fair purport which either shows
that the person guilty of it is intellectually or morally incompetent to
practice the profession or has committed an act or acts of a nature likely
to jeopardize the interest of the public. So construed, they vest in the
board a power it may properly exercise."
|||The Supreme Court of Arizona, in Arizona State Board of Medical Examiners
v. Clark, 97 Ariz. 205, 214, 398 P.2d 908, 915 (1965), said this:
|||[As] applied in the licensing and revocation cases "unprofessional
conduct" has been construed to include serious offense, such as intentional
violations of law or recognized professional standards . . .
|||[There] must be a "conscious and culpable act amounting to a willful
design to do that which is denounced as an unlawful professional practice."
|||With those cases in mind, we point out again that the Board here has supplied
the profession with no definitions of unprofessional conduct. As to the
charge here leveled against Tuma, that interference with the doctor-patient
relationship constitutes unprofessional conduct, again there are no guidelines
-- nothing which would provide her with sufficient forewarning as to the
possibility of license suspension or revocation. We cannot here see how
the hearing officer with a legally founded background could properly conclude
that Tuma was guilty of unprofessional conduct.
|||Nor are we persuaded by the Board's argument that Tuma's guilt could be
sufficiently predicated on her own statements that her Discussions weren't
exactly ethical or legal. Given no written guidelines as to what conduct
might possibly result in a suspension of her license for unprofessionalism,
Tuma very well may have surmised that she was on thin ice with the particular
doctor, or the medical profession in general, in suggesting to a patient
alternate procedures for the treatment of cancer. But she could not know,
having not ever been forewarned against so doing. Moreover, the Minimum
Standards promulgated by the Board seem to support her decision to have
such a Discussion with the patient.
|||The judgment of the district court is reversed with directions to enter
judgment reversing the order of the Board. Costs to appellant.
|||SHEPARD, C. J., and McFADDEN, DONALDSON and BAKES, JJ., concur.
|||1 The parties stipulated that no evidence would be presented as to any
conversations between Tuma and Mickey Klimes.
|||2 The legislature also provided in I.C. § 54-1414(c) that "the policies
of the board regarding . . . discipline of professional and practical nurses
shall conform so far as practicable to the policies and practices of the
American Nurses Association . . . ." (Emphasis added.) Yet when Tuma
sought to testify concerning her knowledge of the "American Nurses
Association's Code for Nurses with Interpretive Statements," evidently
to show her awareness of its code of ethics, and that she subscribed to
it, the Board objected. The hearing officer sustained the objection.
|||3 The Board did, at some time prior to Tuma's hearing, promulgate in pamphlet
form, Minimum Standards, Rules and Regulations for the Practice of Nursing,
which the Board introduced as an exhibit. Rule 602.1(A) states that,
|||In direct patient care the registered professional nurse shall:
|||1. Assess and evaluate health status of the individual based upon a thorough
understanding of the physiological processes involved, and the emotional
needs of the particular individual.
|||2. Make judgments and decisions regarding patient status and take appropriate
|||8. Promote, and participate in, patient education based on the individual's
health needs, and involve the individual and family for a better understanding
and implementation of immediate and long term goals.
|||9. Recognize, understand, and respect cultural backgrounds, spiritual
needs, and religious beliefs.
|||4 "The board shall appoint some fair minded, disinterested person
to serve as hearing officer. . . . After full and mature deliberation, the
hearing officer shall make findings of fact and a determination of whether
or not the person accused has violated any of the provisions of this section
and shall enter the same upon the record of proceedings. After the transcript
has been certified, the board shall take the proceedings under advisement
and if the board shall approve the findings of the hearing officer that
the licensed person accused has violated any of the provisions of this section,
the board shall determine whether the license of such person accused be
revoked or suspended and shall enter the order revoking or suspending said
license. If the findings of the hearing officer are that there has been
no violation of the provisions of this section the board shall notify the
licensed person accused and the person making the accusation, and shall
dismiss the complaint." I.C. § 54-1422(b).
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