Add S23, Pub Health L; amd SS6509 & 6530, Ed L; amd SS740 & 741, Lab L
Prohibits participation in torture and improper treatment of prisoners by health care professionals; prohibits a health care professional from engaging, assisting, planning the torture or improper treatment of a prisoner; requires health care professionals to report torture and improper treatment.
STATE OF NEW YORK
________________________________________________________________________
4489
2015-2016 Regular Sessions
IN ASSEMBLY
February 2, 2015
___________
Introduced by M. of A. GOTTFRIED, CAHILL, RIVERA, SCHIMEL, GLICK, CLARK,
ROBINSON, PAULIN, HOOPER, JAFFEE, LIFTON, COOK, PERRY, ENGLEBRIGHT,
O'DONNELL, ARROYO, MARKEY, TITONE, ROSENTHAL, KAVANAGH, HEVESI, BRON-
SON, FAHY, MOSLEY, WEPRIN, OTIS, ROBERTS, STECK, PICHARDO, SEPULVEDA,
AUBRY, ORTIZ -- Multi-Sponsored by -- M. of A. BRENNAN, DINOWITZ,
FARRELL, GALEF, HEASTIE, LUPARDO, McDONALD, NOLAN, PEOPLES-STOKES,
PRETLOW, SCARBOROUGH, WRIGHT -- read once and referred to the Commit-
tee on Education
AN ACT to amend the public health law, the education law and the labor
law, in relation to prohibiting participation in torture and improper
treatment of prisoners by health care professionals
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative policy and intent. This legislation is based
2 on, and is intended to give effect to, international treaties and stand-
3 ards; federal, state and local law; and professional standards relating
4 to torture, improper treatment of prisoners, and related matters. It is
5 guided by two basic principles: (1) health care professionals shall be
6 dedicated to providing the highest standard of health care, with
7 compassion and respect for human dignity and rights; and (2) torture and
8 improper treatment of prisoners are wrong and inconsistent with the
9 practice of the health care professions. The legislature finds that the
10 conduct prohibited by this act violates the ethical and legal obli-
11 gations of licensed health care professionals. This legislation will
12 further protect the professionalism of New York state licensed health
13 care professionals by authorizing and obligating them to refuse to
14 participate in torture and improper treatment of prisoners, which in
15 turn will protect the life and health of the people of the state and
16 those with whom New York licensed health care professionals interact. A
17 health care professional who comes to the aid of a prisoner should not
18 be presumed to be in violation when she or he is fulfilling the ethical
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01945-01-5
A. 4489 2
1 principle of beneficence. In contrast, a health care professional who,
2 for example, attends to a prisoner in order to allow torture or improper
3 treatment to commence or continue is not acting beneficently. Such
4 practices are inconsistent with professional ethics and standards and
5 are violations of this legislation. The legislature is mindful that
6 ordinarily there are limits on New York state's jurisdiction relating to
7 conduct outside the state or under federal authority. However, it is
8 proper for the state to regulate health care professional licensure in
9 relation to a professional's conduct, even where the conduct occurs
10 outside the state; certain wrongful out-of-state conduct is already
11 grounds for professional discipline. Therefore, it is the legislature's
12 intent that this legislation be applied to the fullest extent possible.
13 § 2. The public health law is amended by adding a new section 25 to
14 read as follows:
15 § 25. Participation in torture or improper treatment of prisoners by
16 health care professionals. 1. Definitions. As used in this section, the
17 terms "torture" and "improper treatment" shall be interpreted in accord-
18 ance with applicable law, including international treaties to which the
19 United States is a party. However, for the purposes of this section, it
20 shall not be an element of either "torture" or "improper treatment" that
21 such acts be committed by a government or non-government actor, entity,
22 or official; under color of law; or not under color of law. As used in
23 this section, unless the context clearly requires otherwise, the follow-
24 ing terms have the following meanings:
25 (a) "Health care professional" means any person licensed, registered,
26 certified, or exempt to practice under (i) any of the following articles
27 of the education law: one hundred thirty-one (medicine), one hundred
28 thirty-one-B (physician assistants), one hundred thirty-one-C (special-
29 ist assistants), one hundred thirty-two (chiropractic), one hundred
30 thirty-three (dentistry and dental hygiene), one hundred thirty-six
31 (physical therapy and physical therapist assistants), one hundred thir-
32 ty-seven (pharmacy), one hundred thirty-nine (nursing), one hundred
33 forty (professional midwifery practice act), one hundred forty-one
34 (podiatry), one hundred forty-three (optometry), one hundred forty-four
35 (ophthalmic dispensing), one hundred fifty-three (psychology), one
36 hundred fifty-four (social work), one hundred fifty-five (massage thera-
37 py), one hundred fifty-six (occupational therapy), one hundred fifty-
38 seven (dietetics and nutrition), one hundred fifty-nine (speech-language
39 pathologists and audiologists), one hundred sixty (acupuncture), one
40 hundred sixty-three (mental health practitioners), one hundred sixty-
41 four (respiratory therapists and respiratory therapy technicians), one
42 hundred sixty-five (clinical laboratory technology practice act), or one
43 hundred sixty-six (medical physics practice), or (ii) article thirty-
44 five of this chapter (practice of radiologic technology).
45 (b) "Torture" means any intentional act or intentional omission by
46 which severe pain or suffering, whether physical or mental, is inflicted
47 on a person for such purposes as obtaining from the person or from a
48 third person information or a confession, punishing the person for an
49 act the person or a third person has committed (including the holding of
50 a belief or membership in any group) or is suspected of having commit-
51 ted, or intimidating or coercing the person or a third person, or for
52 any reason based on discrimination of any kind. It does not include
53 pain or suffering arising only from, inherent in or incidental to lawful
54 sanction.
55 (c) "Improper treatment" means (i) cruel, inhuman or degrading, treat-
56 ment or punishment as defined by applicable international treaties and
A. 4489 3
1 their corresponding interpreting bodies; or cruel and unusual punishment
2 as defined in the United States Constitution or the New York state
3 constitution; or (ii) any violation of subdivision three or four of this
4 section.
5 (d) "Prisoner" means any person who is subject to punishment,
6 detention, incarceration, interrogation, intimidation or coercion,
7 regardless of whether such action is performed or committed by a govern-
8 ment or non-government actor, entity, or official; under color of law;
9 or not under color of law.
10 (e) To "adversely affect" a person's physical or mental health or
11 condition does not include causing adverse effects that may arise from
12 treatment or care when that treatment or care is performed in accordance
13 with generally applicable legal, health and professional standards and
14 for the purposes of evaluating, treating, protecting or improving the
15 person's health.
16 (f) "Interrogation" means the questioning related to law enforcement,
17 the enforcement of rules or regulations of an institution in which
18 people are detained through the criminal justice system or for military
19 or national security reasons (such as a jail or other detention facili-
20 ty, police facility, prison, immigration facility, or military facility)
21 or to military and national security intelligence gathering, whether by
22 a government or non-government actor, entity or official. "Interro-
23 gation" shall also include questioning to aid or accomplish any illegal
24 activity or purpose, whether by a government or non-government actor,
25 entity or official. Interrogations are distinct from questioning used by
26 health care professionals to assess the physical or mental condition of
27 an individual.
28 2. Knowledge. It shall be an element of any violation of this section
29 that the actor knew or reasonably should have known that his or her
30 conduct is of the kind prohibited under this section. A health care
31 professional who receives information that indicates that a prisoner as
32 defined by this section is being, may in the future be, or has been
33 subjected to torture or improper treatment, must use due diligence, in
34 order to assess the nature of his or her conduct as covered by this
35 section.
36 3. General obligations of health care professionals. (a) Every health
37 care professional shall provide every prisoner under his or her profes-
38 sional care with care or treatment consistent with generally applicable
39 legal, health and professional standards to the extent that he or she is
40 reasonably able to do so under the circumstances, including protecting
41 the confidentiality of patient information.
42 (b) In all clinical assessments relating to a prisoner, whether for
43 therapeutic or evaluative purposes, health care professionals shall
44 exercise their professional judgment independent of the interests of a
45 government or other third party.
46 4. Certain conduct of health care professionals prohibited. (a) No
47 health care professional shall apply his or her knowledge or skills in
48 relation to, engage in any professional relationship with, or perform
49 professional services in relation to any prisoner unless the purpose is
50 solely to evaluate, treat, protect, or improve the physical or mental
51 health or condition of the prisoner (except as permitted by paragraph
52 (b) or (c) of subdivision five of this section).
53 (b) No health care professional shall engage, directly or indirectly,
54 in any act which constitutes participation in, complicity in, incitement
55 to, assistance in, planning or design of, or attempt or conspiracy to
A. 4489 4
1 commit torture or improper treatment of a prisoner. Prohibited forms of
2 engagement include but are not limited to:
3 (i) providing means, knowledge or skills, including clinical findings
4 or treatment, with the intent to facilitate the practice of torture or
5 improper treatment;
6 (ii) permitting his or her knowledge, skills or clinical findings or
7 treatment to be used in the process of or to facilitate torture or
8 improper treatment;
9 (iii) examining, evaluating, or treating a prisoner to certify whether
10 torture or improper treatment can begin, be continued, or be resumed;
11 (iv) being present while torture or improper treatment is being admin-
12 istered;
13 (v) omitting or suppressing indications of torture or improper treat-
14 ment from records or reports; and
15 (vi) altering health care records or reports to hide, misrepresent or
16 destroy evidence of torture or improper treatment.
17 (c) No health care professional shall apply his or her knowledge or
18 skills or perform any professional service in order to assist in the
19 punishment, detention, incarceration, intimidation, or coercion of a
20 prisoner when such assistance is provided in a manner that may adversely
21 affect the physical or mental health or condition of the prisoner
22 (except as permitted by paragraph (a) or (b) of subdivision five of this
23 section).
24 (d) No health care professional shall participate in the interrogation
25 of a prisoner, including being present in the interrogation room, asking
26 or suggesting questions, advising on the use of specific interrogation
27 techniques, monitoring the interrogation, or medically or psychological-
28 ly evaluating a person for the purpose of identifying potential interro-
29 gation methods or strategies. However, this paragraph shall not bar a
30 health care professional from engaging in conduct under paragraph (d) of
31 subdivision five of this section.
32 5. Certain conduct of health care professionals permitted. A health
33 care professional may engage in the following conduct so long as it does
34 not violate subdivision three or four of this section, it does not
35 adversely affect the physical or mental health or condition of a prison-
36 er or potential subject, and is not otherwise unlawful:
37 (a) appropriately participating or aiding in the investigation, prose-
38 cution, or defense of a criminal, administrative or civil matter;
39 (b) participating in an act that restrains a prisoner or temporarily
40 alters the physical or mental activity of a prisoner, where the act
41 complies with generally applicable legal, health and professional stand-
42 ards, is necessary for the protection of the physical or mental health,
43 condition or safety of the prisoner, other prisoners, or persons caring
44 for, guarding or confining the prisoner;
45 (c) conducting bona fide human subject research in accordance with
46 generally accepted legal, health and professional standards where the
47 research includes safeguards for human subjects equivalent to those
48 required by federal law, including informed consent and institutional
49 review board approval where applicable;
50 (d) training related to the following purposes, so long as it is not
51 provided in support of specific ongoing or anticipated interrogations:
52 (i) recognizing and responding to persons with physical or mental
53 illness or conditions,
54 (ii) the possible physical and mental effects of particular techniques
55 and conditions of interrogation, or
A. 4489 5
1 (iii) the development of effective interrogation strategies not
2 involving the practice of torture or improper treatment.
3 6. Duty to report. A health care professional who has reasonable
4 grounds (not based solely on publicly available information) to believe
5 that torture, improper treatment or other conduct in violation of this
6 section has occurred, is occurring, or will occur shall, as soon as is
7 possible without jeopardizing the physical safety of himself or herself,
8 the prisoner, or other parties, report such conduct to:
9 (a) a government agency that the health care professional reasonably
10 believes has legal authority to punish or prevent the continuation of
11 torture or the improper treatment of a prisoner or conduct in violation
12 of this section and is reasonably likely to attempt to do so; or
13 (b) a governmental or non-governmental entity that the health care
14 professional reasonably believes will notify such a government agency of
15 the torture or the improper treatment of a prisoner or conduct in
16 violation of this section or take other action to publicize or prevent
17 such torture, treatment or conduct; and
18 (c) in addition to reporting under paragraph (a) or (b) of this subdi-
19 vision: (i) in the case of an alleged violation by a health care profes-
20 sional licensed under article one hundred thirty-one, one hundred thir-
21 ty-one-B or one hundred thirty-one-C of the education law, a report
22 shall be filed with the office of professional medical conduct; and (ii)
23 in the case of an alleged violation by any other health care profes-
24 sional licensed, registered or certified under title eight of the educa-
25 tion law, a report shall be filed with the office of professional disci-
26 pline; provided that for the purpose of this paragraph, where a person
27 holds a license, registration or certification under the laws of a
28 jurisdiction other than the state of New York that is for a profession
29 substantially comparable to one listed in paragraph (a) of subdivision
30 one of this section, the person shall be deemed to be a health care
31 professional and the person's license, registration or certification
32 shall be deemed to be under the appropriate article of title eight of
33 the education law.
34 7. Mitigation. The following may be considered in full or partial
35 mitigation of a violation of this section by the health care profes-
36 sional:
37 (a) compliance with subdivision six of this section; or
38 (b) cooperation in good faith with an investigation of a violation of
39 this section.
40 8. Applicability. This section shall apply to conduct taking place
41 within or outside New York state, and without regard to whether the
42 conduct is committed by a governmental or non-governmental entity, offi-
43 cial, or actor or under actual or asserted color of law.
44 9. Scope of practice not expanded. This section shall not be construed
45 to expand the lawful scope of practice of any health care professional.
46 § 3. Section 6509 of the education law is amended by adding a new
47 subdivision 15 to read as follows:
48 (15) Any violation of section twenty-five of the public health law
49 (relating to participation in torture or improper treatment of prisoners
50 by health care professionals), subject to mitigation under that section.
51 § 4. Section 6530 of the education law is amended by adding a new
52 subdivision 50 to read as follows:
53 50. Any violation of section twenty-five of the public health law
54 (relating to participation in torture or improper treatment of prisoners
55 by health care professionals), subject to mitigation under that section.
A. 4489 6
1 § 5. Paragraphs (b) and (c) of subdivision 2 of section 740 of the
2 labor law, as added by chapter 660 of the laws of 1984, are amended and
3 a new paragraph (d) is added to read as follows:
4 (b) provides information to, or testifies before, any public body
5 conducting an investigation, hearing or inquiry into any such violation
6 of a law, rule or regulation by such employer; [or]
7 (c) objects to, or refuses to participate in any such activity, policy
8 or practice in violation of a law, rule or regulation[.]; or
9 (d) reports or threatens to report any violation of section twenty-
10 five of the public health law (relating to participation in torture or
11 improper treatment of prisoners by health care professionals).
12 § 6. Subdivision 3 of section 740 of the labor law, as added by chap-
13 ter 660 of the laws of 1984, is amended to read as follows:
14 3. Application. The protection against retaliatory personnel action
15 provided by paragraph (a) of subdivision two of this section pertaining
16 to disclosure to a public body shall not apply to an employee who makes
17 such disclosure to a public body unless the employee has brought the
18 activity, policy or practice in violation of law, rule or regulation to
19 the attention of a supervisor of the employer and has afforded such
20 employer a reasonable opportunity to correct such activity, policy or
21 practice. However, this subdivision shall not apply to any report of a
22 violation under section twenty-five of the public health law (partic-
23 ipation in torture or improper treatment of prisoners by health care
24 professionals).
25 § 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the
26 labor law, as added by chapter 24 of the laws of 2002, are amended and a
27 new paragraph (c) is added to read as follows:
28 (a) discloses or threatens to disclose to a supervisor, or to a public
29 body an activity, policy or practice of the employer or agent that the
30 employee, in good faith, reasonably believes constitutes improper quali-
31 ty of patient care; [or]
32 (b) objects to, or refuses to participate in any activity, policy or
33 practice of the employer or agent that the employee, in good faith,
34 reasonably believes constitutes improper quality of patient care[.]; or
35 (c) reports or threatens to report any violation of section twenty-
36 five of the public health law (participation in torture or improper
37 treatment of prisoners by health care professionals).
38 § 8. Subdivision 3 of section 741 of the labor law, as added by chap-
39 ter 24 of the laws of 2002, is amended to read as follows:
40 3. Application. The protection against retaliatory personnel action
41 provided by subdivision two of this section shall not apply unless the
42 employee has brought the improper quality of patient care to the atten-
43 tion of a supervisor and has afforded the employer a reasonable opportu-
44 nity to correct such activity, policy or practice. This subdivision
45 shall not apply to an action or failure to act described in paragraph
46 (a) of subdivision two of this section where the improper quality of
47 patient care described therein presents an imminent threat to public
48 health or safety or to the health of a specific patient and the employee
49 reasonably believes in good faith that reporting to a supervisor would
50 not result in corrective action. However, this subdivision shall not
51 apply to any report of a violation under section twenty-five of the
52 public health law (participation in torture or improper treatment of
53 prisoners by health care professionals).
54 § 9. The introduction or enactment of this act shall not be construed
55 to mean that: (a) conduct described by this act does not already violate
56 state law or constitute professional misconduct; or (b) conduct other
A. 4489 7
1 than that described by this act does not violate other state law or
2 otherwise constitute professional misconduct.
3 § 10. Severability. If any provision of this act, or any application
4 of any provision of this act, is held to be invalid, that shall not
5 affect the validity or effectiveness of any other provision of this act
6 or any other application of any provision of this act.
7 § 11. This act shall take effect on the first of January next
8 succeeding the date on which it shall have become a law.
