Should drug diverters be prosecuted?

Here.I.Stand, BSN, RN · Mar 3, 2017

Referenced in Libby's post:

Respondent shall completely abstain from the possession, injection or consumption by any route ofall psychotropic (mood altering) drugs, including alcohol, except when the same are ordered by ahealth care professional legally authorized to do so as part of documented medical treatment

From rntracy's reply:

Your quotation from the CA nurse practice act is for those who have ALREADY offended and are currently under a treatment plan. In my state and probably most others it is the same way, if you have diverted narcotics/opiates, were caught, and placed into the board's treatment program, then yes, you HAVE TO abstain from ANY and ALL mind altering/psychoactive substances

They have to abstain from unauthorized use. If they have an MD order, they absolutely can continue their antidepressant and be prescribed pain meds if medically warranted, e.g. postop.

cayenne06, MSN, CNM · Mar 4, 2017

Well, my opinion is that drug dependence and misuse should be decriminalized. We've been throwing people in jail for these issues for a long time now, and it's not helping anything.

As it stands right now, too many drug dependent nurses struggle in silence for fear of their license and livelihood, flying under the radar until they are caught, or a patient is harmed. I do not think that the threat of jail will help with that problem.

Those of us in healthcare are at risk of substance abuse, just like everyone else. And the easy access plus high stress job is a recipe for addiction. No one is a drug addict for fun, even if they started using for pure recreation. Being addicted SUUUUCKS. We need to throw people a life line.

The goal is not to punish. At least it shouldn't be. The goal is to protect patient safety, help dependent nurses feel safe asking for help, and above all preventing the problem in the first place. How does *increasing* criminalization help with that? We need to be moving in the opposite direction.

Of course, when issues of patient harm come into play, it can be a different issue all together. Just to be clear.

dirtyhippiegirl, BSN, RN · Mar 4, 2017

Referenced in Libby's post:
From rntracy's reply:
They have to abstain from unauthorized use. If they have an MD order, they absolutely can continue their antidepressant and be prescribed pain meds if medically warranted, e.g. postop.

It's really state dependent -- each state that has a monitoring program (not all do) runs their program a bit differently. Some are fine with a valid rx. Others won't allow for any chronic use of opiates/stimulants/benzos even if you were on them before entering the monitoring program. You might get the okay to take for a short time after surgery or an injury but you typically can't go back to work until you piss clean.

Beldar_the_Cenobite, CNA · Mar 4, 2017

Well, stealing is a crime...so :sarcastic:

I remember going to a pharmaceutical place where they allowed the public to get paid to be test subjects for prototype medications and drugs. The RN there told me she used to work at the VA but got fired for over-prescribing (on purpose) to veterans, which sounds to me like she's giving too much medicine, or she's a drug diverter. She defended herself saying that "veterans fought for our country and if they need what they need for their pain and symptoms I give them enough". I'm surprised she admitted it. She told me "once you become a nurse....start with the lowest amount of medication, don't over-give." I think she meant for some meds like start small and if the pain is a little bit severe, slightly increase dosage.

Libby1987 · Mar 4, 2017

Your quotation from the CA nurse practice act is for those who have ALREADY offended and are currently under a treatment plan. In my state and probably most others it is the same way, if you have diverted narcotics/opiates, were caught, and placed into the board's treatment program, then yes, you HAVE TO abstain from ANY and ALL mind altering/psychoactive substances. (That is how all substance abuse programs work). That is, for any healthcare professional, just common sense. But we are talking about nurses in general. Nurses who practice every day, who have not committed diversion. Nurses are allowed to take opiate medication, as long as it does not impair their ability to practice. Just like you can take a vicodin and drive, as long as it does not impair your ability to drive. Some people can take two vicodin and drive, work, operate machinery, or whatever just fine, while someone else could take half of a vicodin and it knocks them right out. Nurses need to use good judgment when it comes to their practice, their license, and patient safety. The nurse practice act and the BON gives us that discretion as professionals, however if we cross the line, they are there to protect the safety of the public, not to represent nurses.

I think my point was in response to a PP who said no nurses anywhere can be prescribed narcotics as well as others stating concern about lack of post op narcotic pain mgmt when in fact even nurses in a treatment program can be legally prescribed narcotics.

It was this one..

Healthcare workers are in a unique environment where they are constantly around opioids and yet can not be prescribed them, lest they be found out by the BON and be reprimanded. Those who may have pain issues are the only stories I have heard of in my long career. One nurse with renal CA and another with traumatic knee injury that was being misdiagnosed. Those Percocet was what made their shifts physically bearable. Really doesn't matter what you think about prn opioid use, it is illegal, read your nurse practice act, that is in never, not when you are off, when you leave your shift, never. Put that up against what happens to your profession when caught, it is arguably worse to go before the board. Repeat offenders should probably be prosecuted, but first time offenders should probably be given a pass.

subee, MSN, CRNA · Mar 4, 2017

Call your BON, they told me that most states operate this way.

This makes no sense. Sentence?

margin261 · Mar 4, 2017

This is a very thought provoking thread! A PP made an interesting point.

Think about it this way- to be prosecuted criminally, there has to be a specific law broken- or at least one the courts are willing to prosecute.

A nurse that diverts 1-2 percocets from the pyxis, while that is stealing- the monetary value may not be enough to hit the minimum for many theft laws. It would be possession without a rx, but not enough for a distribution charge. The courts may consider that a waste of time/resources & let the BON handle it because they are notoriously punitive.

Now, if a patient is injured- goes into surgery full of saline instead of fentanyl, that would certainly qualify for prosecution on many different charges I would think. And it should be- addict or not, that is inexcusable behavior.

And as to why a facility doesn't alert LE in many cases of diversion- the reason I've been told is liability. Once there is a police report, it's information that's available & puts the facility at risk. Crappy reason but there it is.

Anonymous865 · Mar 5, 2017

When someone diverts, they are probably breaking more laws than just theft.

For example, they remove 2 percocets from the Pyxis, but only give 1 to the patient. They pocket the other. Insurance/Medicare/Medicaid will be billed for 2 percocets, but the patient received 1. That is fraud.

The nurse would have to chart that they gave 2 percocets to make all the counts correct. Now they have falsified a legal document.

Another way of diverting is to inject a partial dose into themselves. Add saline to the syringe to make it appear to be the correct dose. Then give the remaining dose to the patient. Now they have possibly exposed the patient to a blood borne illness. That could be viewed as assault.

A local 600 bed hospital has a diversion specialist (JD, RN). I heard her speak on diversion and that hospital's methods of detecting theft/loss of controlled substances. She described how they investigate suspected diversion. They have solid evidence before they confront someone. She said they have only had a couple of people who didn't confess when shown the evidence the hospital had.

She said when they first hired her and implemented their diversion program, they were catching 2 nurses a month. Now they average 1 nurse a month. I was shocked it was that high, but it is probably only 1-2% of their nurse workforce so actually not that high.

(Other types of employees divert not just nurses. The majority of people caught diverting are nurses, because nurses vastly out number other type of employees and nurses have greater access to controlled substances than most others.)

That hospital's policy is they report every single case of diversion to:

the local police

the state bureau of investigation

the board of pharmacy (required by state law)

the professional board (required by state law)

the DEA (required by federal law)

They also revise and rebill every patient affected even if it doesn't affect the bill (e.g. DRG).

They report to the police and let the DA decide whether to pursue charges. The DA usually lets the professional licensing board handle it unless there is patient harm. They had one case where a PACU nurse was diverting. They determined they had over 300 patients who had received NO pains meds following surgery. The DA prosecuted that nurse.

I agree with the approach of reporting to law enforcement cases of diversion, because it is a crime. Let the DA decide if they think prosecution is appropriate. If someone has a substance abuse problem, but is not diverting then just report them to the appropriate professional board. Diversion is different.

The diversion specialist said the number 1 reason hospitals don't report diversion to the police is fear of bad publicity. Also high on the list is fear of being sued.

3ringnursing, BSN · Mar 5, 2017

It seems to me that the disciplinary action of the governing SBON is punishment enough in most cases. Diversion option programs, or probation is no cake walk, and is a tough row to hoe. Making through either of those takes commitment, fortitude, intense self control and extreme hoop jumping. Anyone who successfully completes either of those programs has my sincerest professional respect.

heron, ASN, RN · Mar 5, 2017

Once again, diversion programs exist in order to divert certain offenders - in this case nurses who steal meds from a care setting - out of the criminal justice system.

The point being that first-time offenders are more likely to achieve meaningful rehab - and less likely to become repeat offenders - without the burden of a criminal conviction on their record.

If y'all are saying that criminal charges should be filed, doesn't that mean that diversion programs for nurses with substance abuse problems should be eliminated? What's the risk/benefit calculation here?

elkpark · Mar 5, 2017

Once again, diversion programs exist in order to divert certain offenders - in this case nurses who steal meds from a care setting - out of the criminal justice system.
The point being that first-time offenders are more likely to achieve meaningful rehab - and less likely to become repeat offenders - without the burden of a criminal conviction on their record.
If y'all are saying that criminal charges should be filed, doesn't that mean that diversion programs for nurses with substance abuse problems should be eliminated? What's the risk/benefit calculation here?

I can't speak for anyone else here, but, for myself, I'm not advocating that nurses should be criminally charged and prosecuted, just that they should not be treated any differently than the general public. If it would be considered a crime if someone on the street did it, I think it should be considered a crime if a nurse does it. If there are going to be diversion programs for nurses, then there should be diversion programs for the general public.

Orion81RN · Mar 5, 2017

theft from an employer is theft regardless of what it is that is being stolen so yes they should be prosecuted, but it's up to the employer to want to pursue it. Most don't.
Harsher consequences don't deter anyone, states that have a death penalty in place or life sentences for certain crimes has never been a deterrent to committing the crimes in the first place. People who commit crimes that have stiff penalties commit them regardless. The lure of the crime is always greater than the threat of punishment. For those who see it the other way around, that the penalty isn't worth the satisfaction from the crime, they weren't the ones who were at risk for committing the crimes anyway!

It could also be theft from a pt, like in a nursing home setting, where it's the patient's meds directly. Their insurance is paying for it.