Clear and Convincing Evidence
Washington has found that physician licensure disciplinary matters require clear and convincing evidence for the Department of Health to prove violations, rather than the typical burden of a preponderance of the evidence in most administrative proceedings. But since then, it has taken exception to licensure that is an occupational license rather than a professional license, such as that of a nursing assistant or daycare.
But what does that mean for every licensed professional in between? Uncertainty, unless you are perhaps a professional engineer in the jurisdiction of the Court of Appeals in Division II.
The three factors to consider in whether a heightened burden of proof should apply are:
The private interest that will be affected by the official action (if the matter is considered quasi-criminal, a mere preponderance should not apply)
The risk of an erroneous decision (where a subjective standard of care is an issue, all the more the risk!)
The governmental interests, fiscally and administratively to a heightened standard
The latter element may implicate public safety. But the evidence being whatever it is, if it cannot support proceeding on a clear and convincing standard, then arguably there would be fewer matters “prosecuted” at the administrative level, lessening the burden to the government.
Nguyen v. State, Dep't of Health Med. Quality Assurance Comm'n, 144 Wash.2d 516, 29 P.3d 689 (2001).
Hardee v. State, Dep't of Soc. & Health Servs., Dep't Early Learning, 151 Wn. App. 1028 (2009), overruling Ongom v. State, Dep't of Health, Office of Prof'l Standards, 159 Wn.2d 132, 134, 148 P.3d 1029, 1029 (2006).
Nims v. Washington Bd. of Registration, 113 Wn. App. 499, 501, 53 P.3d 52, 53 (2002), as amended (Oct. 14, 2002).