STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF NURSING, )

)

Petitioner, )

)

vs. ) CASE NO. 79-035

)

CATHERINE BARCLAY, R.N., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a hearing was held before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings in Room 104 Collins Building in Tallahassee, Florida, on January 26, 1979.

APPEARANCES

For Petitioner: Julius Finegold, Esquire

1107 Blackstone Building

233 East Bay Street Jacksonville, Florida 32202

For Respondent: Jerome M. Novey, Esquire

100 Salem Court Tallahassee, Florida 32301

ISSUE

Whether the Respondent should be placed on probation or her license #0929202 should be suspended or revoked.

FINDING OF FACT

1. Respondent Catherine Barclay holds license #0929202, Registered Nurse. On December 5, 1978, an administrative complaint was filed against Respondent notifying her that the Florida State Board of Nursing sought to place her on probation, suspend or revoke her license and the right to practice thereunder. Respondent requested an administrative hearing.

   
   

2. During the period of time from approximately May 9, 1978, to May 15, 1978, Respondent sought and obtained prescriptions for herself from four or five different physicians for quantities of controlled substances and had the prescriptions filled at Albertson's Pharmacy in Tallahassee, Florida. The prescriptions were procured for her own use.

   
   

3. On or about May 15, 1978, Respondent presented a prescription for herself at Albertson's Pharmacy for a controlled substance, to wit: 20 tablets of Phenaphen No. 4, which prescription had been altered to reflect it was

   permissible to be refilled one time. The physician who signed the prescription, Dr. H. Byars Cole, testified that he had not ordered it to be refilled.

   
   

4. On or about May 17, 1978, the Respondent had a conference at the Tallahassee Memorial Regional Medical Center with Ms. Joan L. Williams, the Director of Nursing. During the conference Respondent admitted that she had had a drug problem for some five years. Ms. Williams felt that at the time of the conference Respondent may have been under the influence of a drug. After the conference on May 17, Respondent Barclay was given an indefinite suspension from her job at the hospital, and she has not been re-employed at that hospital and is still on suspension from her hospital employment.

   
   

5. On or about June 28, 1978, Respondent had an interview with Mr. Robert

   C. Daniel, the Executive Vice President of Tallahassee Memorial Regional Medical Center, where Respondent worked as a registered nurse. Ms. Barclay had previously requested an interview involving the suspension she had received.

   She admitted to Mr. Daniel that she had had a drug problem but stated that she was free of the problem at the time of the interview. She admitted to Mr.

   Daniel that she had no difficulty getting prescriptions filled, and that she did this by visiting the offices of several different physicians.

   
   

6. Respondent Barclay is employed at Archibald Memorial Hospital in Thomasville, Georgia. She has been continuously employed at that hospital since July 31, 1978. The Director of Nursing at that hospital was aware of Respondent's problem before her employment there. She was employed on a temporary status, which may be done under the regulations of that hospital if the nurse is currently licensed in another state. Respondent is a charge nurse on the medical floor.

   
   

7. Respondent Barclay testified that she has used no drugs since the time of her suspension from Tallahassee Memorial Regional Medical Center in May of 1978. Two affidavits were submitted in her behalf without objection. One affidavit is signed by the night supervisor at Archibald Hospital in Thomasville, Georgia, Myrtle Banks, who stated that she has been Catherine Barclay's supervisor since mid-August to the present time, and that she works with Respondent for forty (40) hours a week and has no complaints regarding Respondent's work. Ms. Banks stated that Respondent is knowledgeable in the field of nursing, is good with patients, and conducts herself in a professional manner. The second affidavit was submitted by the assistant head nurse and charge nurse at Archibald Hospital in Thomasville, Georgia, Marion Leik. Ms. Leik stated that she has worked directly with Respondent since mid-August of 1978, and that she works with Respondent two or three nights a week. Ms. Leik stated that Catherine Barclay had done an excellent job at Archibald Hospital, was intelligent and knowledgeable in the field of nursing, was good with her patients, and conducted herself in a professional manner.

   
   

8. Respondent is 28 years old and has two children, ages six and seven. She graduated from the Tallahassee Community College with an Associate in Applied Science degree in nursing. She was a good student and a leader in the Student Nurses Association. In the last five years Respondent has had a spontaneous abortion, knee surgery, and suffered injuries in an automobile accident. During the period of her medical problems the doctors prescribed drugs which Respondent took.

   
   

9. Respondent Barclay sought psychiatric help to help her deal with her drug problem subsequent to her suspension from Tallahassee Memorial Regional Medical Center. She is not now under such care and testified that she no longer

   takes drugs; that she is not experiencing the same type of physical pain she had previously experienced; that she does not have the family pressures she once had; and that she is happy in her job in the Archibald Hospital in Thomasville, Georgia.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 464.21 Disciplinary proceedings.-- provides in part:

    
    

    1. GROUNDS FOR DISCIPLINE. --The board shall have the authority to deny a license to any applicant

       or discipline the holder of a license or any other person temporarily authorized by the board to prac- tice nursing in the state whose default has been entered or who has been heard and found guilty by the board of:

       1. Habitual intemperance or addiction to the use of controlled substances as set forth in chapter 893.

       2. Engaging in the possession, sale, or dis- tribution of controlled substances as set forth in chapter 893, for any other than legitimate purposes.

          (f) Exhibiting behavior which the board has reason to believe is due to poor physical or mental health and which creates an undue risk that the person, as a nursing practitioner, would cause harm to other persons.

          
          

11. The Respondent is guilty of violating the foregoing statute by her intemperance or addiction to the use of drugs, by engaging in the possession of controlled substances for her own use, and by exhibiting behavior which the Board has reason to believe is due to poor physical or mental health and which creates an undue risk that would cause harm to other persons.

    
    

12. Section 464.21, supra, also provides as follows:

(3) REVOCATION, SUSPENSION, ANNULMENT, DENIAL OF LICENSE, ETC.--In disciplining any person convicted of a charge of violating the provisions of this chapter or any other statute or law of this state relating to the practice of nursing, the board may:

(b) Impose judgment and penalties, but suspend enforcement thereof and place the licensee or applicant for license on probation;

RECOMMENDATION

Discipline the Respondent, Catherine Barclay, by imposing the judgment of guilt, but suspend enforcement thereof and place the licensee on probation for a period of not less than two years.

DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Julius Finegold, Esquire 1107 Blackstone Building

233 East Bay Street Tallahassee, Florida 32202

Jerome M. Novey, Esquire

100 Salem Court Tallahassee, Florida 32301

Docket for Case No: 79-000035

Orders for Case No: 79-000035