Recently public scrutiny has turned back towards DOH discipline regarding sexual misconduct, and also how the Department handles matters before it is determined that discipline is even appropriate. See Discipline Delayed reported November 28, 2021 by the Seattle Times. Note that the article is looking back to matters up and until 2019—which is in part due to the fact that DOH reports discipline statistics every two years and the last report covers 2017-2019. Historical reports can be found on DOH’s site.
Professionals disciplined under the Uniform Disciplinary Act are owed due process as the proceedings are considered quasi-criminal in nature. However, even if a DOH investigation has not concluded, a licensee’s due process is not violated by summary action, which the Department can take in certain circumstances. Thus, for each case DOH is investigating and does not take summary action, it has at least internally decided the threat to the public is not sufficiently immediate to the public health and safety to warrant summary action.
Effective October 1, 2019, any disciplinary action sanctioning a licensee for acts involving sexual misconduct must provide a disclosure “to any patient scheduled for an appointment with the license holder during the period of time that the license holder is subject to the order or stipulation.” This even though all discipline, informal or formal, is posted on DOH’s website and reported to the national databank. Thus, expect to see far fewer disciplinary actions as a result of settlement between the licensee and the Department, as there is no incentive for the licensee to agree to this requirement, which is imposed by the legislature, as they may consider trying to prevail at hearing on a clear and convincing standard instead.
Nguyen v. State, Dep’t of Health Med. Quality Assurance Comm’n, 144 Wn.2d 516, 528, 29 P.3d 689, 694 (2001)
Chapter 246-11 WAC
Jones v. State, Dep’t of Health, 170 Wn.2d 338, 350, 242 P.3d 825, 831 (2010)
By Jessica Creager – Associate Attorney