Relates to sexual offenses by health care or mental health care providers; requires certain officers to report certain sex offenses to law enforcement

Justification

The Penal Law provides that a person is deemed incapable of consent when such person is a client or patient and the actor is a health care provider or mental health care provider charged with rape in the third degree, criminal sexual act in the third degree, aggravated sexual abuse in the fourth degree or sexual abuse in the third degree, and the act of sexual conduct occurs during a treatment session, consultation, interview or examination. Mental health care provider is defined to include a licensed physician, licensed psychologist and licensed clinical social worker. Accordingly, if a mental health care provider engages in sexual intercourse with his or her patient during a session, it constitutes third degree rape.

If the mental health care provider is a psychiatrist and the authority charged with investigating complaints about physicians and psychiatrists -- the Office of Professional Misconduct (OPMC), has knowledge of such conduct, OPMC is required to report it to law enforcement. However, if the mental health care provider is a psychotherapist or social worker and the authority charged with investigating complaints about licensed psychologists or clinical social workers -- the office of Professional Discipline (GPD) , or any other professional conduct officer or state board for such profession has knowledge of such conduct, OPD is not required to report the conduct to law enforcement.

There is no rational basis to treat the identical act by licensed professionals differently merely because one set of professionals is overseen by OPMC and the other set of professionals is overseen by OPD or other state board for profession. Both a psychiatrist and a psychotherapist

occupy the same position of trust, authority and dependency vis-a-vis their patient who is likely in a vulnerable and fragile state and seeks their guidance and assistance in what is by nature an intimate setting.

A patient who seeks help from a licensed mental health care provider assumes that the provider he or she has retained has the appropriate training to render assistance. He or she also has the right to expect that the provider will do so with professional integrity and will not compromise his patient's safety and well-being. with this legislation, we will better ensure that the expectation is a reality.

Summary of provisions

Section one amends section 6510 of the education law by adding a new subdivision 5-a to provide that if at any time the professional conduct officer designated to investigate a complaint of a licensee's professional misconduct or the office of professional discipline determines that there is a reasonable belief that an act committed during a treatment session, consultation, interview or examination by the licensee constitutes a sex offense, such professional conduct officer, or the office of professional discipline shall notify the appropriate law enforcement official or authority.

Section two provides the effective date.

Legislative history

New bill.

Fiscal implications

None to the State.

Effective date

Immediate.