Add §25, Pub Health L; amd §§6509 & 6530, Ed L; amd §§740 & 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
________________________________________________________________________
596
2019-2020 Regular Sessions
IN SENATE
January 9, 2019
___________
Introduced by Sens. HOYLMAN, KAVANAGH, KRUEGER, MONTGOMERY, SEPULVEDA --
read twice and ordered printed, and when printed to be committed to
the Committee on Health
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
19 principle of beneficence. In contrast, a health care professional who,
20 for example, attends to a prisoner in order to allow torture or improper
21 treatment to commence or continue is not acting beneficently. Such
22 practices are inconsistent with professional ethics and standards and
23 are violations of this legislation. The legislature is mindful that
24 ordinarily there are limits on New York state's jurisdiction relating to
25 conduct outside the state or under federal authority. However, it is
26 proper for the state to regulate health care professional licensure in
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD03431-01-9
S. 596 2
1 relation to a professional's conduct, even where the conduct occurs
2 outside the state; certain wrongful out-of-state conduct is already
3 grounds for professional discipline. Therefore, it is the legislature's
4 intent that this legislation be applied to the fullest extent possible.
5 § 2. The public health law is amended by adding a new section 25 to
6 read as follows:
7 § 25. Participation in torture or improper treatment of prisoners by
8 health care professionals. 1. Definitions. As used in this section, the
9 terms "torture" and "improper treatment" shall be interpreted in accord-
10 ance with applicable law, including international treaties to which the
11 United States is a party. However, for the purposes of this section, it
12 shall not be an element of either "torture" or "improper treatment" that
13 such acts be committed by a government or non-government actor, entity,
14 or official; under color of law; or not under color of law. As used in
15 this section, unless the context clearly requires otherwise, the follow-
16 ing terms have the following meanings:
17 (a) "Health care professional" means any person licensed, registered,
18 certified, or exempt to practice under (i) any of the following articles
19 of the education law: one hundred thirty-one (medicine), one hundred
20 thirty-one-B (physician assistants), one hundred thirty-one-C (special-
21 ist assistants), one hundred thirty-two (chiropractic), one hundred
22 thirty-three (dentistry and dental hygiene), one hundred thirty-six
23 (physical therapy and physical therapist assistants), one hundred thir-
24 ty-seven (pharmacy), one hundred thirty-nine (nursing), one hundred
25 forty (professional midwifery practice act), one hundred forty-one
26 (podiatry), one hundred forty-three (optometry), one hundred forty-four
27 (ophthalmic dispensing), one hundred fifty-three (psychology), one
28 hundred fifty-four (social work), one hundred fifty-five (massage thera-
29 py), one hundred fifty-six (occupational therapy), one hundred fifty-
30 seven (dietetics and nutrition), one hundred fifty-nine (speech-language
31 pathologists and audiologists), one hundred sixty (acupuncture), one
32 hundred sixty-three (mental health practitioners), one hundred sixty-
33 four (respiratory therapists and respiratory therapy technicians), one
34 hundred sixty-five (clinical laboratory technology practice act), or one
35 hundred sixty-six (medical physics practice), or (ii) article thirty-
36 five of this chapter (practice of radiologic technology).
37 (b) "Torture" means any intentional act or intentional omission by
38 which severe pain or suffering, whether physical or mental, is inflicted
39 on a person for such purposes as obtaining from the person or from a
40 third person information or a confession, punishing the person for an
41 act the person or a third person has committed (including the holding of
42 a belief or membership in any group) or is suspected of having commit-
43 ted, or intimidating or coercing the person or a third person, or for
44 any reason based on discrimination of any kind. It does not include
45 pain or suffering arising only from, inherent in or incidental to lawful
46 sanction.
47 (c) "Improper treatment" means (i) cruel, inhuman or degrading, treat-
48 ment or punishment as defined by applicable international treaties and
49 their corresponding interpreting bodies; or cruel and unusual punishment
50 as defined in the United States Constitution or the New York state
51 constitution; or (ii) any violation of subdivision three or four of this
52 section.
53 (d) "Prisoner" means any person who is subject to punishment,
54 detention, incarceration, interrogation, intimidation or coercion,
55 regardless of whether such action is performed or committed by a govern-
S. 596 3
1 ment or non-government actor, entity, or official; under color of law;
2 or not under color of law.
3 (e) To "adversely affect" a person's physical or mental health or
4 condition does not include causing adverse effects that may arise from
5 treatment or care when that treatment or care is performed in accordance
6 with generally applicable legal, health and professional standards and
7 for the purposes of evaluating, treating, protecting or improving the
8 person's health.
9 (f) "Interrogation" means the questioning related to law enforcement,
10 the enforcement of rules or regulations of an institution in which
11 people are detained through the criminal justice system or for military
12 or national security reasons (such as a jail or other detention facili-
13 ty, police facility, prison, immigration facility, or military facility)
14 or to military and national security intelligence gathering, whether by
15 a government or non-government actor, entity or official. "Interro-
16 gation" shall also include questioning to aid or accomplish any illegal
17 activity or purpose, whether by a government or non-government actor,
18 entity or official. Interrogations are distinct from questioning used by
19 health care professionals to assess the physical or mental condition of
20 an individual.
21 2. Knowledge. It shall be an element of any violation of this section
22 that the actor knew or reasonably should have known that his or her
23 conduct is of the kind prohibited under this section. A health care
24 professional who receives information that indicates that a prisoner as
25 defined by this section is being, may in the future be, or has been
26 subjected to torture or improper treatment, must use due diligence, in
27 order to assess the nature of his or her conduct as covered by this
28 section.
29 3. General obligations of health care professionals. (a) Every health
30 care professional shall provide every prisoner under his or her profes-
31 sional care with care or treatment consistent with generally applicable
32 legal, health and professional standards to the extent that he or she is
33 reasonably able to do so under the circumstances, including protecting
34 the confidentiality of patient information.
35 (b) In all clinical assessments relating to a prisoner, whether for
36 therapeutic or evaluative purposes, health care professionals shall
37 exercise their professional judgment independent of the interests of a
38 government or other third party.
39 4. Certain conduct of health care professionals prohibited. (a) No
40 health care professional shall apply his or her knowledge or skills in
41 relation to, engage in any professional relationship with, or perform
42 professional services in relation to any prisoner unless the purpose is
43 solely to evaluate, treat, protect, or improve the physical or mental
44 health or condition of the prisoner (except as permitted by paragraph
45 (b) or (c) of subdivision five of this section).
46 (b) No health care professional shall engage, directly or indirectly,
47 in any act which constitutes participation in, complicity in, incitement
48 to, assistance in, planning or design of, or attempt or conspiracy to
49 commit torture or improper treatment of a prisoner. Prohibited forms of
50 engagement include but are not limited to:
51 (i) providing means, knowledge or skills, including clinical findings
52 or treatment, with the intent to facilitate the practice of torture or
53 improper treatment;
54 (ii) permitting his or her knowledge, skills or clinical findings or
55 treatment to be used in the process of or to facilitate torture or
56 improper treatment;
S. 596 4
1 (iii) examining, evaluating, or treating a prisoner to certify whether
2 torture or improper treatment can begin, be continued, or be resumed;
3 (iv) being present while torture or improper treatment is being admin-
4 istered;
5 (v) omitting or suppressing indications of torture or improper treat-
6 ment from records or reports; and
7 (vi) altering health care records or reports to hide, misrepresent or
8 destroy evidence of torture or improper treatment.
9 (c) No health care professional shall apply his or her knowledge or
10 skills or perform any professional service in order to assist in the
11 punishment, detention, incarceration, intimidation, or coercion of a
12 prisoner when such assistance is provided in a manner that may adversely
13 affect the physical or mental health or condition of the prisoner
14 (except as permitted by paragraph (a) or (b) of subdivision five of this
15 section).
16 (d) No health care professional shall participate in the interrogation
17 of a prisoner, including being present in the interrogation room, asking
18 or suggesting questions, advising on the use of specific interrogation
19 techniques, monitoring the interrogation, or medically or psychological-
20 ly evaluating a person for the purpose of identifying potential interro-
21 gation methods or strategies. However, this paragraph shall not bar a
22 health care professional from engaging in conduct under paragraph (d) of
23 subdivision five of this section.
24 5. Certain conduct of health care professionals permitted. A health
25 care professional may engage in the following conduct so long as it does
26 not violate subdivision three or four of this section, it does not
27 adversely affect the physical or mental health or condition of a prison-
28 er or potential subject, and is not otherwise unlawful:
29 (a) appropriately participating or aiding in the investigation, prose-
30 cution, or defense of a criminal, administrative or civil matter;
31 (b) participating in an act that restrains a prisoner or temporarily
32 alters the physical or mental activity of a prisoner, where the act
33 complies with generally applicable legal, health and professional stand-
34 ards, is necessary for the protection of the physical or mental health,
35 condition or safety of the prisoner, other prisoners, or persons caring
36 for, guarding or confining the prisoner;
37 (c) conducting bona fide human subject research in accordance with
38 generally accepted legal, health and professional standards where the
39 research includes safeguards for human subjects equivalent to those
40 required by federal law, including informed consent and institutional
41 review board approval where applicable;
42 (d) training related to the following purposes, so long as it is not
43 provided in support of specific ongoing or anticipated interrogations:
44 (i) recognizing and responding to persons with physical or mental
45 illness or conditions,
46 (ii) the possible physical and mental effects of particular techniques
47 and conditions of interrogation, or
48 (iii) the development of effective interrogation strategies not
49 involving the practice of torture or improper treatment.
50 6. Duty to report. A health care professional who has reasonable
51 grounds (not based solely on publicly available information) to believe
52 that torture, improper treatment or other conduct in violation of this
53 section has occurred, is occurring, or will occur shall, as soon as is
54 possible without jeopardizing the physical safety of himself or herself,
55 the prisoner, or other parties, report such conduct to:
S. 596 5
1 (a) a government agency that the health care professional reasonably
2 believes has legal authority to punish or prevent the continuation of
3 torture or the improper treatment of a prisoner or conduct in violation
4 of this section and is reasonably likely to attempt to do so; or
5 (b) a governmental or non-governmental entity that the health care
6 professional reasonably believes will notify such a government agency of
7 the torture or the improper treatment of a prisoner or conduct in
8 violation of this section or take other action to publicize or prevent
9 such torture, treatment or conduct; and
10 (c) in addition to reporting under paragraph (a) or (b) of this subdi-
11 vision: (i) in the case of an alleged violation by a health care profes-
12 sional licensed under article one hundred thirty-one, one hundred thir-
13 ty-one-B or one hundred thirty-one-C of the education law, a report
14 shall be filed with the office of professional medical conduct; and (ii)
15 in the case of an alleged violation by any other health care profes-
16 sional licensed, registered or certified under title eight of the educa-
17 tion law, a report shall be filed with the office of professional disci-
18 pline; provided that for the purpose of this paragraph, where a person
19 holds a license, registration or certification under the laws of a
20 jurisdiction other than the state of New York that is for a profession
21 substantially comparable to one listed in paragraph (a) of subdivision
22 one of this section, the person shall be deemed to be a health care
23 professional and the person's license, registration or certification
24 shall be deemed to be under the appropriate article of title eight of
25 the education law.
26 7. Mitigation. The following may be considered in full or partial
27 mitigation of a violation of this section by the health care profes-
28 sional:
29 (a) compliance with subdivision six of this section; or
30 (b) cooperation in good faith with an investigation of a violation of
31 this section.
32 8. Applicability. This section shall apply to conduct taking place
33 within or outside New York state, and without regard to whether the
34 conduct is committed by a governmental or non-governmental entity, offi-
35 cial, or actor or under actual or asserted color of law.
36 9. Scope of practice not expanded. This section shall not be construed
37 to expand the lawful scope of practice of any health care professional.
38 § 3. Section 6509 of the education law is amended by adding a new
39 subdivision 15 to read as follows:
40 (15) Any violation of section twenty-five of the public health law
41 (relating to participation in torture or improper treatment of prisoners
42 by health care professionals), subject to mitigation under that section.
43 § 4. Section 6530 of the education law is amended by adding a new
44 subdivision 50 to read as follows:
45 50. Any violation of section twenty-five of the public health law
46 (relating to participation in torture or improper treatment of prisoners
47 by health care professionals), subject to mitigation under that section.
48 § 5. Paragraphs (b) and (c) of subdivision 2 of section 740 of the
49 labor law, as added by chapter 660 of the laws of 1984, are amended and
50 a new paragraph (d) is added to read as follows:
51 (b) provides information to, or testifies before, any public body
52 conducting an investigation, hearing or inquiry into any such violation
53 of a law, rule or regulation by such employer; [or]
54 (c) objects to, or refuses to participate in any such activity, policy
55 or practice in violation of a law, rule or regulation[.]; or
S. 596 6
1 (d) reports or threatens to report any violation of section twenty-
2 five of the public health law (relating to participation in torture or
3 improper treatment of prisoners by health care professionals).
4 § 6. Subdivision 3 of section 740 of the labor law, as added by chap-
5 ter 660 of the laws of 1984, is amended to read as follows:
6 3. Application. The protection against retaliatory personnel action
7 provided by paragraph (a) of subdivision two of this section pertaining
8 to disclosure to a public body shall not apply to an employee who makes
9 such disclosure to a public body unless the employee has brought the
10 activity, policy or practice in violation of law, rule or regulation to
11 the attention of a supervisor of the employer and has afforded such
12 employer a reasonable opportunity to correct such activity, policy or
13 practice. However, this subdivision shall not apply to any report of a
14 violation under section twenty-five of the public health law (partic-
15 ipation in torture or improper treatment of prisoners by health care
16 professionals).
17 § 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the
18 labor law, as added by chapter 24 of the laws of 2002, are amended and a
19 new paragraph (c) is added to read as follows:
20 (a) discloses or threatens to disclose to a supervisor, or to a public
21 body an activity, policy or practice of the employer or agent that the
22 employee, in good faith, reasonably believes constitutes improper quali-
23 ty of patient care; [or]
24 (b) objects to, or refuses to participate in any activity, policy or
25 practice of the employer or agent that the employee, in good faith,
26 reasonably believes constitutes improper quality of patient care[.]; or
27 (c) reports or threatens to report any violation of section twenty-
28 five of the public health law (participation in torture or improper
29 treatment of prisoners by health care professionals).
30 § 8. Subdivision 3 of section 741 of the labor law, as added by chap-
31 ter 24 of the laws of 2002, is amended to read as follows:
32 3. Application. The protection against retaliatory personnel action
33 provided by subdivision two of this section shall not apply unless the
34 employee has brought the improper quality of patient care to the atten-
35 tion of a supervisor and has afforded the employer a reasonable opportu-
36 nity to correct such activity, policy or practice. This subdivision
37 shall not apply to an action or failure to act described in paragraph
38 (a) of subdivision two of this section where the improper quality of
39 patient care described therein presents an imminent threat to public
40 health or safety or to the health of a specific patient and the employee
41 reasonably believes in good faith that reporting to a supervisor would
42 not result in corrective action. However, this subdivision shall not
43 apply to any report of a violation under section twenty-five of the
44 public health law (participation in torture or improper treatment of
45 prisoners by health care professionals).
46 § 9. The introduction or enactment of this act shall not be construed
47 to mean that: (a) conduct described by this act does not already violate
48 state law or constitute professional misconduct; or (b) conduct other
49 than that described by this act does not violate other state law or
50 otherwise constitute professional misconduct.
51 § 10. Severability. If any provision of this act, or any application
52 of any provision of this act, is held to be invalid, that shall not
53 affect the validity or effectiveness of any other provision of this act
54 or any other application of any provision of this act.
55 § 11. This act shall take effect on the first of January next
56 succeeding the date on which it shall have become a law.
