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Discipline should not be used for faults in interpersonal skills, court says

Professional discipline should be limited to purposes of public protection, the Supreme Court of Vermont said in an October 25 ruling. In the case,

(Whittington v. Office of Professional Regulation), the court upheld several misconduct charges but partially overturned discipline against a nursing home administrator who had incorrectly second-guessed a resident’s wish to be removed from life-sustaining treatment. The court said that to rule otherwise would be to discourage an administrator’s proper level of engagement in life-or-death matters

Leslie Anne Whittington, the disciplined licensee, worked as a nursing home administrator in Ludlow, Vermont. Sometime after 2010, the state charged Whittington with several professional violations related to her allegedly sloppy and confrontational administration of the home.

Whittington seems to have created much ill will among her associates and assessors; among other things, the state inferred that some of Whittington’s contested actions were “possibly due to mental or psychological instability.”

After several days of hearings, an administrative law officer found that Whittington had committed professional misconduct on several grounds: By interfering with psychiatric treatment of patients at the home–which she was not qualified to do—physically forcing an ombudsman out of the facility, forcing a dying patient to change clothes and get out of bed, and creating a work environment so hostile that it created an environment of “unsafe and unacceptable patient care.”

The primary instance of Whittington’s improper interference with patient treatment involved a woman who had decided to discontinue a medication necessary for her survival. After the medication was discontinued, Whittington told the patient’s doctor that he must resume it, as the patient wanted to live; this prompted another consultation, in which the patient confirmed the decision. The doctor, for his part, believed that Whittington had acted improperly by recommending that the patient continue the medication.

In another instance, Whittington was accused of telling a psychiatric nurse practitioner to give a patient a diagnosis that would allow the patient to be sent to a psychiatric center. In a third incident, Whittington had told a patient not to undergo an assessment that a doctor had prescribed.

The hearing officer suspended Whittington’s license for five years, imposed a $5,000 fine, and imposed educational restraints on her eventual re-application.

Whittington appealed, and the case went to the state’s supreme court. Justice Beth Robinson wrote the court’s opinion, which upheld most of the discipline rulings again Whittington.

However, the court overturned the determination that Robinson had acted improperly by inserting herself into a decision to end life-sustaining care. The practice restrictions imposed on “a nursing home administrator’s qualification is not so broad as to preclude patient advocacy, such as reasonably questioning doctors about the withdrawal of life-sustaining care,” Robinson wrote.

To find otherwise, she continued, “would be to discourage a level of engagement concerning life-or-death matters that is appropriate for a nursing home administrator, even if her concerns ultimately prove ill-founded.”

A second issue on which Whittington prevailed was in the administrative law officer’s reliance on a negative institutional review of the nursing home to impose discipline; the deficiencies found in that review had been held against Whittington on the ground that, as the home’s administrator, she was the person responsible for its failings.

Justice Robinson wrote that “the ALO could assuredly prescribe disciplinary sanctions for deficiencies to the extent they are tied to an administrator’s actions or omissions–direct or supervisory–but it cannot presume a violation of professional standards merely from the fact that a deficiency exists.”

“None of [the statutory bases for discipline] includes a Division of Licensing and Protection finding of deficiency, a process closely bound with nursing home administration and therefore easily includable if the Legislature so intended.”

The court also questioned the length of the suspension imposed on Whittington’s license: While the state’s Office of Professional Regulation had requested only a one-year suspension, the law officer in charge of the hearing had imposed five years. The disparity “raises red flags,” Robinson said, noting that reasonable public protection should be the primary goal.

With two of the bases for Whittington’s discipline and the length of the sanction in question, the case was remanded to the administrative law officer.