BILL REQ. #:  S-0466.1 

Read first time 01/17/2007.   Referred to Committee on Judiciary.

     AN ACT Relating to the burden of proof in disciplinary actions involving health professionals; adding a new section to chapter 18.130 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The legislature finds that, under the Washington Constitution, the legislative branch of government has the right to set policy for the disciplining of health professionals.
     The legislature also finds that, in carefully balancing the interests of all concerned, the "preponderance of the evidence" standard of proof in disciplinary actions better calibrates the balance of interests between the practitioner and the public, given the vital concern of the people for protection from negligent or dishonest practitioners, than the "clear and convincing" standard of proof. Health professionals have a right to due process before a professional license may be taken away, but the people also have an equally significant need to protect themselves against incompetent and dishonest professionals.
     The state supreme court rejected this interpretation in 2001 in the case of Bang Nguyen v. Department of Health, 144 Wn.2d 516, 29 P.3d 689 (2001), and again in 2006 in the case of Ongom v. State, holding that due process requires that the minimum constitutional standard of proof in a health professional license disciplinary proceeding is clear, cogent, and convincing evidence, rather than a preponderance of the evidence.
     The legislature finds that these cases were both incorrectly decided, and that the court's decisions will expose many of our most vulnerable citizens to an even greater risk of abuse. Those Alzheimer's patients, developmentally disabled, mentally ill, and elderly who depend for their care on licensed health care professionals often lack the ability to speak out or be heard when they suffer abuse from their caregivers. As a result of the court's decisions, many of these vulnerable citizens will be faced with a greater degree of abuse without an effective remedy.
     The legislature finds that the obligation of the state to protect its citizens from negligent care is a significant state interest, and accordingly reaffirms its intent that the applicable standard of proof in professional license disciplinary hearings under the uniform disciplinary act is the preponderance standard.
     Therefore, the legislature finds that the preponderance standard as currently adopted by the department of health by rule for all health professionals subject to the uniform disciplinary act, chapter 18.130 RCW, does not violate principles of due process or equal protection.

NEW SECTION.  Sec. 2   A new section is added to chapter 18.130 RCW to read as follows:
     Except as otherwise specifically provided by statute, the burden of proof in all disciplinary actions under this chapter is a preponderance of the evidence.