Ban Health Worker Torture Aid

Section 1. Legislative policy and intent. This legislation is based on, and is intended to give effect to, international treaties and standards; federal, state and local law; and professional standards relating to torture, improper treatment of prisoners, and related matters. It is guided by two basic principles: (1) health care professionals shall be dedicated to providing the highest standard of health care, with compassion and respect for human dignity and rights; and (2) torture and improper treatment of prisoners are wrong and inconsistent with the practice of the health care professions. The legislature finds that the conduct prohibited by this act violates the ethical and legal obligations of licensed health care professionals. This legislation will further protect the professionalism of New York state licensed health care professionals by authorizing and obligating them to refuse to participate in torture and improper treatment of prisoners, which in turn will protect the life and health of the people of the state and those with whom New York licensed health care professionals interact. A health care professional who comes to the aid of a prisoner should not be presumed to be in violation when she or he is fulfilling the ethical principle of beneficence. In contrast, a health care professional who,

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD03431-01-9

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for example, attends to a prisoner in order to allow torture or improper treatment to commence or continue is not acting beneficently. Such practices are inconsistent with professional ethics and standards and are violations of this legislation. The legislature is mindful that ordinarily there are limits on New York state's jurisdiction relating to conduct outside the state or under federal authority. However, it is proper for the state to regulate health care professional licensure in relation to a professional's conduct, even where the conduct occurs outside the state; certain wrongful out-of-state conduct is already grounds for professional discipline. Therefore, it is the legislature's intent that this legislation be applied to the fullest extent possible.

§ 2. The public health law is amended by adding a new section 25 to read as follows:

§ 25. Participation in torture or improper treatment of prisoners by health care professionals. 1. Definitions. As used in this section, the terms "torture" and "improper treatment" shall be interpreted in accordance with applicable law, including international treaties to which the United States is a party. However, for the purposes of this section, it shall not be an element of either "torture" or "improper treatment" that such acts be committed by a government or non-government actor, entity, or official; under color of law; or not under color of law. As used in this section, unless the context clearly requires otherwise, the following terms have the following meanings:

(a) "Health care professional" means any person licensed, registered, certified, or exempt to practice under (i) any of the following articles of the education law: one hundred thirty-one (medicine), one hundred thirty-one-B (physician assistants), one hundred thirty-one-C (specialist assistants), one hundred thirty-two (chiropractic), one hundred thirty-three (dentistry and dental hygiene), one hundred thirty-six (physical therapy and physical therapist assistants), one hundred thirty-seven (pharmacy), one hundred thirty-nine (nursing), one hundred forty (professional midwifery practice act), one hundred forty-one (podiatry), one hundred forty-three (optometry), one hundred forty-four (ophthalmic dispensing), one hundred fifty-three (psychology), one hundred fifty-four (social work), one hundred fifty-five (massage therapy), one hundred fifty-six (occupational therapy), one hundred fiftyseven (dietetics and nutrition), one hundred fifty-nine (speech-language pathologists and audiologists), one hundred sixty (acupuncture), one hundred sixty-three (mental health practitioners), one hundred sixtyfour (respiratory therapists and respiratory therapy technicians), one hundred sixty-five (clinical laboratory technology practice act), or one hundred sixty-six (medical physics practice), or (ii) article thirtyfive of this chapter (practice of radiologic technology).

(b) "Torture" means any intentional act or intentional omission by which severe pain or suffering, whether physical or mental, is inflicted on a person for such purposes as obtaining from the person or from a third person information or a confession, punishing the person for an act the person or a third person has committed (including the holding of a belief or membership in any group) or is suspected of having committed, or intimidating or coercing the person or a third person, or for any reason based on discrimination of any kind. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanction.

(c) "Improper treatment" means (i) cruel, inhuman or degrading, treatment or punishment as defined by applicable international treaties and their corresponding interpreting bodies; or cruel and unusual punishment

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as defined in the United States Constitution or the New York state constitution; or (ii) any violation of subdivision three or four of this section.

(d) "Prisoner" means any person who is subject to punishment, detention, incarceration, interrogation, intimidation or coercion, regardless of whether such action is performed or committed by a government or non-government actor, entity, or official; under color of law; or not under color of law.

(e) To "adversely affect" a person's physical or mental health or condition does not include causing adverse effects that may arise from treatment or care when that treatment or care is performed in accordance with generally applicable legal, health and professional standards and for the purposes of evaluating, treating, protecting or improving the person's health.

(f) "Interrogation" means the questioning related to law enforcement, the enforcement of rules or regulations of an institution in which people are detained through the criminal justice system or for military or national security reasons (such as a jail or other detention facility, police facility, prison, immigration facility, or military facility) or to military and national security intelligence gathering, whether by a government or non-government actor, entity or official. "Interrogation" shall also include questioning to aid or accomplish any illegal activity or purpose, whether by a government or non-government actor, entity or official. Interrogations are distinct from questioning used by health care professionals to assess the physical or mental condition of an individual.

2. Knowledge. It shall be an element of any violation of this section that the actor knew or reasonably should have known that his or her conduct is of the kind prohibited under this section. A health care professional who receives information that indicates that a prisoner as defined by this section is being, may in the future be, or has been subjected to torture or improper treatment, must use due diligence, in order to assess the nature of his or her conduct as covered by this section.

3. General obligations of health care professionals. (a) Every health care professional shall provide every prisoner under his or her professional care with care or treatment consistent with generally applicable legal, health and professional standards to the extent that he or she is reasonably able to do so under the circumstances, including protecting the confidentiality of patient information.

(b) In all clinical assessments relating to a prisoner, whether for therapeutic or evaluative purposes, health care professionals shall exercise their professional judgment independent of the interests of a government or other third party.

4. Certain conduct of health care professionals prohibited. (a) No health care professional shall apply his or her knowledge or skills in relation to, engage in any professional relationship with, or perform professional services in relation to any prisoner unless the purpose is solely to evaluate, treat, protect, or improve the physical or mental health or condition of the prisoner (except as permitted by paragraph (b) or (c) of subdivision five of this section).

(b) No health care professional shall engage, directly or indirectly, in any act which constitutes participation in, complicity in, incitement to, assistance in, planning or design of, or attempt or conspiracy to commit torture or improper treatment of a prisoner. Prohibited forms of engagement include but are not limited to:

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(i) providing means, knowledge or skills, including clinical findings or treatment, with the intent to facilitate the practice of torture or improper treatment;

(ii) permitting his or her knowledge, skills or clinical findings or treatment to be used in the process of or to facilitate torture or improper treatment;

(iii) examining, evaluating, or treating a prisoner to certify whether torture or improper treatment can begin, be continued, or be resumed;

(iv) being present while torture or improper treatment is being administered;

(v) omitting or suppressing indications of torture or improper treatment from records or reports; and

(vi) altering health care records or reports to hide, misrepresent or destroy evidence of torture or improper treatment.

(c) No health care professional shall apply his or her knowledge or skills or perform any professional service in order to assist in the punishment, detention, incarceration, intimidation, or coercion of a prisoner when such assistance is provided in a manner that may adversely affect the physical or mental health or condition of the prisoner (except as permitted by paragraph (a) or (b) of subdivision five of this section).

(d) No health care professional shall participate in the interrogation of a prisoner, including being present in the interrogation room, asking or suggesting questions, advising on the use of specific interrogation techniques, monitoring the interrogation, or medically or psychologically evaluating a person for the purpose of identifying potential interrogation methods or strategies. However, this paragraph shall not bar a health care professional from engaging in conduct under paragraph (d) of subdivision five of this section.

5. Certain conduct of health care professionals permitted. A health care professional may engage in the following conduct so long as it does not violate subdivision three or four of this section, it does not adversely affect the physical or mental health or condition of a prisoner or potential subject, and is not otherwise unlawful:

(a) appropriately participating or aiding in the investigation, prosecution, or defense of a criminal, administrative or civil matter;

(b) participating in an act that restrains a prisoner or temporarily alters the physical or mental activity of a prisoner, where the act complies with generally applicable legal, health and professional standards, is necessary for the protection of the physical or mental health, condition or safety of the prisoner, other prisoners, or persons caring for, guarding or confining the prisoner;

(c) conducting bona fide human subject research in accordance with generally accepted legal, health and professional standards where the research includes safeguards for human subjects equivalent to those required by federal law, including informed consent and institutional review board approval where applicable;

(d) training related to the following purposes, so long as it is not provided in support of specific ongoing or anticipated interrogations:

(i) recognizing and responding to persons with physical or mental illness or conditions,

(ii) the possible physical and mental effects of particular techniques and conditions of interrogation, or

(iii) the development of effective interrogation strategies not involving the practice of torture or improper treatment.

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6. Duty to report. A health care professional who has reasonable grounds (not based solely on publicly available information) to believe that torture, improper treatment or other conduct in violation of this section has occurred, is occurring, or will occur shall, as soon as is possible without jeopardizing the physical safety of himself or herself, the prisoner, or other parties, report such conduct to:

(a) a government agency that the health care professional reasonably believes has legal authority to punish or prevent the continuation of torture or the improper treatment of a prisoner or conduct in violation of this section and is reasonably likely to attempt to do so; or

(b) a governmental or non-governmental entity that the health care professional reasonably believes will notify such a government agency of the torture or the improper treatment of a prisoner or conduct in violation of this section or take other action to publicize or prevent such torture, treatment or conduct; and