Nurse's Medical Records Cannot Be Subpoenaed For Disciplinary Purposes
	Differentiation Between Services Rendered By Nurse and Services Received By Nurse
	Nurse's Privacy v. Public Protection

State boards of nursing are empowered to investigate and discipline registered nurses as part of their mission to protect the public from incompetent professionals. But does this power to investigate and discipline include the power to look into the private medical records of the nurse-licenses? Where is the dividing line between the nurse as a licensed professional and nurse as an individual patient? In this case the Court of Appeals of Colorado stopped the Board of Nursing from spying into the psychiatric records of the nurse.

Facts : The director of nursing at the nurse's ex-employer filed a written complaint with the Colorado State Board of Nursing requesting an investigation of the nurse's competence and professionalism as a registered nurse. The complaint alleged that the nurse had failed consistently to perform certain duties during her shift, had failed adequately to supervise staff, had refused to meet with the head nurse, and had made inappropriate remarks about and to patients. Thereafter, an investigator for the board contacted the nurse.

The nurse responded to the complaint, expressing her disagreement with the allegations of the complaint. She also informed the board that she had received psychiatric treatment at Bethesda.

The board asked her permission to obtain the records of this treatment, but she refused. The board then issued an administrative subpoena duces tecum commanding Bethesda to produce its records of treatment provided to the nurse. Bethesda refused to comply with the subpoena, arguing in pleadings before the trial court that the board did not have authority to obtain the records of psychiatric treatment provided to the nurse.

The trial court agreed with the Bethesda's argument and granted its motion to quash the board's subpoena.

Court Decision: The court analyzed the relevant statute:

In order to aid the board in any hearing or investigation instituted pursuant to this section, the board... shall have the power to issue subpoenas commanding production of copies of any records containing information relevant to the practice of practical or professional nursing rendered by any licensee, including, but not limited to, hospital and physician records.

The emphasized language above indicates that records subpoenaed must contain information relevant to the performance of nursing services and "rendered by" the nurse. The critical terms "rendered by" qualify "the practice of....nursing. " This plainly indicates that the General Assembly intended to authorize the subpoena of only those records which pertain to the investigation of nursing conduct engaged in by the nurse, not records containing information relating to services received by the nurse.

Private hospital and physician records of a licensee which may otherwise be relevant to the practice of nursing are, therefore, not subject to subpoena unless they are also shown to pertain to nursing delivered by the licensee nurse. If, as here, the records sought pertain to past treatment provided to a licensee-nurse, the statute does not empower the board to compel their production.

The law provides for an adequate and alternative procedure for determining the mental and physical abilities of a nurse whom the board has "reasonable cause" to believe is unable to practice nursing with reasonable skill and safety. Pursuant to this section, if the board has "reasonable cause" it may require a nurse to submit to a mental or physical examination by a physician whom the board designates. If the nurse fails to submit to such examination, the board is empowered to suspend the nurse's license until compliance with the examination requirement is met.

Colorado State Board of Nursing v. Bethesda Psychiatric Hospital, 809 P.2d 1051; 1990 Colo. App.