What's happening
This bill prohibits health care professionals from participating in torture or improper treatment of prisoners and requires reporting of such conduct.
Why it matters
Expands accountability for health care professionals. by explicitly defining and prohibiting their involvement in torture or improper treatment of prisoners, including activities such as evaluating prisoners for torture, being present during such acts, or helping conceal evidence. This clarifies professional boundaries in settings like prisons, jails, or detention centers.
Establishes a mandatory duty to report. suspected or known instances of torture or improper treatment, with specific procedures for reporting inside and outside of New York, and protects those who make such reports from employer retaliation. This strengthens whistleblower protections and encourages ethical conduct.
Applies to conduct both inside and outside New York. and regardless of whether the acts are carried out by government or private actors, recognizing that health care professionals licensed in New York are held to these standards globally.
Links violations to professional discipline and licensure. , meaning health care professionals found violating these provisions could face loss of license or other disciplinary measures, reinforcing professional ethics and aligning state law with international human rights standards.
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Who cares
Headline styles
Ban Health Worker Torture
Plain English, a few words. Used as the page title.
Sponsors
History
- Referred to health
- Referred to health
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Ban Health Worker Torture Aid
Assembly Floor Calendar · Sponsor Richard Gottfried
Full text
6 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
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 Assembly, do enact as follows:
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, 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
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03431-01-9
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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 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 govern-
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ment 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:
(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;
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(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.
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:
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(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
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
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
Purpose or general idea of bill
To bar health care professionals from participating in torture or improper treatment of prisoners, and provide a means by which healt h care professionals responsible for the care of prisoners or detainees can refuse an order to directly or indirectly participate in torture and to insist on providing professionally responsible care and treatment.
Summary of specific provisions
Bill section one is a statement of the legislature's intent to give effect to existing international treaties and standards, federal, state and local laws, and professional standards.
Read the full memo (1,268 words)
Bill section 2 would create a new Public Health Law § 25. Subdivision 1 defines "health care professional" to include all health prof essions licensed by Title Eight of the Education Law, The definitions of "torture" and "improper treatment" of a prisoner are consist ent with applicable law and international treaties to which the U.S. is a party. "Prisoner" is defined "as any person who is subject to punishment, detention, incarceration, interrogation, intimidation or coercion.
Subdivision 2 of the new § 25 provides that it shall be an element of any violation of this section that the health care professional knew or reasonably should have known the nature of his or her actions.
Subdivision 3 establishes general obligations of health care profes- sionals in relation to the treatment of prisoners and detained per sons, consistent with generally applicable legal, health and professional standards, including protection of confidential patient inf ormation.
Subdivision 4 prohibits direct and indirect actions which constitute participation, complicity, incitement, assistance, planning, des ign, attempt, or conspiracy to commit torture or improper treatment of a prisoner. Health care professionals may not use their knowle dge or skill to adversely affect a prisoner's health by punishment, detention, incarceration, interrogation, intimidation or coercion , or to evaluate or treat a prisoner so that such improper treatment may be used or continued.
Subdivision 5 permits the proper conduct of health care professionals towards prisoners: to provide proper care and treatment as reas onably able under the circumstances. The purpose must be to evaluate, treat, protect, or improve the physical or mental health or con dition of a prisoner. They may restrain or sedate a prisoner, where such actions comply with appropriate standards, are necessary to protect health or safety, and do not harm the prisoner. Health care professionals may appropriately participate in the investigation, prosecution or defense in criminal, administrative, civil matters. Health care professionals may participate in bonafide human resea rch, in accordance with accepted legal and professional standards. They may provide training only in relation to recognizing and resp onding to physical and mental illness; the effects of interrogation techniques and the development of effective interrogation strateg ies, so long as such training is not in support of specific interrogations.
Subdivision 6 establishes a duty to report, consistent with protecting the safety of both the prisoner and the health care profession al.
Subdivision 7 establishes mitigation for compliance with an investi- gation of, or reporting, alleged torture or mistreatment of prison ers.
Subdivision 8 applies this section to conduct taking place within and beyond New York's borders. Bill sections 3 and 4 add the violat ion of the new § 25 to the definition of professional misconduct in Education Law §§ 6509 (health care Professionals other than physi cians or physi- cian assistants) and 6530 (physicians and physician assistants).
Bill section 5, 6, 7 and 8 adds whistle blower protections for employees and contractors to labor law §§ 740 and 741.
Bill section 9 clarifies that the enactment of this law shall not be construed to mean that the actions it prohibits are not already or otherwise unlawful, nor that conduct not covered by the bill does not violate other law.
Justification
There is very strong evidence that U.S. health professionals have been directly engaged in or complicit in torture and other cruel, i nhuman or degrading treatment of prisoners and detainees. (1.2) The situation does not appear to be that of a few errant individuals, but a more systemic problem, facilitated by official policy. Most frequently, involvement is indirect, such as enabling mistreatment to continue by treating the consequences of the mistreatment. However, complicity has also become more direct: evaluating a prisoner prior to interrogation and setting the limits for torture, resuscitating or treating a prisoner during an interrogation session so t hat the interrogation may continue, making a prisoner's medical records available to interrogators, advising on stra- tegies for a tort ure session, and developing torture techniques.
Health care professionals have an ethical obligation to protect prison- ers against torture and other cruel, inhuman, or degrading trea tment. However, we now know that American governmental authorities have rein- terpreted both the meaning of torture and health professi onals' ethical obligations to encourage them to participate in these acts. It is reasonable to assume that state and local authorities, as well as f oreign governments, are also engaging in such practices and involving American health care professionals.
Widely accepted principles of medical ethics clearly define the roles and responsibilities of health care professionals in regard to the ethical treatment of prisoners and detainees. In 1975, the World Medical Association adopted the Declaration of Tokyo, which cont ained the "Guidelines for Medical Doctors concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in relatio n to Detention and Imprisonment." These guidelines were amended and strengthened in 2006 to forbid the participation of physicians in any interrogation of an individual detainee or prisoner. In 1982, the UN General Assembly adopted "Principles of medical ethics rele vant to the role of health personnel, particularly Physicians, in the protection of prisoners against torture and other cruel, inhuma n or degrading treatment or punishment, "(3) drafted by the World Health Organization. The American Medical Association, the American Psychiatric Association, and other professional organizations have adopted these and similar principles
For professionals licensed by New York State, it is appropriate for New York to adopt legislation that provides accountability and im plements these widely held rules of professional conduct. Both the Declaration of Tokyo and the UN principles call for all government s and professional organizations to adopt standards implementing these principles.
A professional licensed by the State of New York who comes to the aid of a prisoner, detainee, victim of torture etc., under the gene ral obli- gations of health professionals should not be presumed to be in violation when she or he is fulfilling the ethical principle of benefi- cence. In contrast, a professional who, for example, attends to a pris- oner, detainee, victim of torture etc. in order to all ow torture or improper treatment to commence or continue is not acting beneficently. Such practices are inconsistent with ethics and standards in the health profession and are violations of this legislation.
Prior legislative history
S.0112 of 2017-2018 (Hoylman): Died in Health
A.3079 of 2017-2018 (Gottfried): Advanced to Third Reading
S.2015 of 2015-2016 (Hoylman): Died in Health
A.4489 of 2015-2016 (Gottfried): Reported Referred to Rules (2015)/Advanced to Third Reading Calendar (2016)
S.2397 of 2013-2014 (Hoylman): Died in Health
A.4440 of 2013-2014 (Gottfried): Advanced to Third Reading (2013)/Reported Referred to Rules (2014)
S.6795 of 2012 (Duane): Died in Health
A.5891-A of 2011-2012 (Gottfried): Reported Referred to Rules
Fiscal implications
None to the state.
Effective date
This act shall take effect on the first of January after the date on
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