senate Bill S2397

Prohibits participation in torture and improper treatment of prisoners by health care professionals

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Bill Status


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor
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  • 17 / Jan / 2013
    • REFERRED TO HEALTH
  • 08 / Jan / 2014
    • REFERRED TO HEALTH

Summary

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.

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Bill Details

See Assembly Version of this Bill:
A4440
Versions:
S2397
Legislative Cycle:
2013-2014
Current Committee:
Senate Health
Law Section:
Public Health Law
Laws Affected:
Add §23, Pub Health L; amd §§6509 & 6530, Ed L; amd §§740 & 741, Lab L
Versions Introduced in Previous Legislative Cycles:
2011-2012: S6795, A5891A
2009-2010: A6665C, A6665C
2007-2008: A9891, A9891

Sponsor Memo

BILL NUMBER:S2397

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 health
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.

Bill section 2 would create a new Public Health Law § 23. Subdivision
1 defines "health care professional" to include all health
professions licensed by Title Eight of the Education Law, The
definitions of "torture" and "improper treatment" of a prisoner are
consistent with applicable law and international treaties to which
the us 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 § 23 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
professionals in relation to the treatment of prisoners and detained
persons,
consistent with generally applicable legal, health and professional
standards, including protection of confidential patient information.

Subdivision 4 prohibits direct and indirect actions which constitute
Participation, complicity, incitement, assistance, planning, design,
attempt, or conspiracy to commit torture or improper treatment of a
prisoner. Health care professionals may not use their knowledge 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 reasonably
able under the circumstances. The purpose must be to evaluate, treat,
protect, or improve the physical or mental health or condition 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 research, in
accordance with accepted legal and professional standards. They may
provide training only in relation to recognizing and responding to
physical and mental illness; the effects of interrogation techniques
and the development of effective interrogation strategies, 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 professional.

Subdivision 7 establishes mitigation for compliance with an
investigation of, or reporting, alleged torture or mistreatment of
prisoners.

Subdivision 8 applies this section to conduct taking place within and
beyond New York's borders.
Bill sections 3 and 4 add the violation of the new 23 to the
definition of professional misconduct in Education Law §§ 6509
(health care Professionals other than physicians or physician
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, inhuman
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 that the
interrogation may continue, making a prisoner's medical records
available to interrogators, advising on strategies for a torture
session, and developing torture techniques.

Health care professionals have an ethical obligation to protect
prisoners against torture and other cruel, inhuman, or degrading
treatment. However, we now know that American governmental
authorities have reinterpreted both the meaning of torture and health
professionals' ethical obligations to encourage them to participate
in these acts. It is
reasonable to assume that state and local authorities, as well as
foreign 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 contained
the "Guidelines for Medical Doctors concerning Torture and other
Cruel, Inhuman or Degrading Treatment or Punishment in relation 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 relevant to
the role of health personnel, particularly Physicians, in the
protection of prisoners against torture and other cruel, inhuman 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
implements these widely held rules of professional conduct. Both the
Declaration of Tokyo and the UN principles call for all governments
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 general
obligations of health professionals should not be presumed to be in
violation when she or he is fulfilling the ethical principle of
beneficence. In contrast, a professional who, for example, attends to
a prisoner, detainee, victim of torture etc. in order to allow
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:
2008:A.9891- Reported to Rules Committee
2009-10: A 6665C - Advanced to Third Reading
2011-2011 S.6795 - Reported to Senate Health Committee

FISCAL IMPLICATIONS: None to the state.

EFFECTIVE DATE:
January 1 after the date that it shall have become law.

FOOTNOTES:

(1) Lifton RJ, Doctors and Torture; New England Journal of Medicine;
2004:351, 415. Katherine Eban. Rorschach and A we. Vanity Fair (web
edition) http://www.vanityfaincom/politics/features/2007/07/torture
200707.

(2) Jane Mayer, The Black Sites, New Yorker August 13, 2007. Bloche
MG. Marks J14; When Doctors Go to War, New England Journal of
Medicine; 2005:352, 3, http://www.newyorker.com/reporting/2007
/08/13/070813fa_fact_mayer.


(3) Resolution 37/194 (Principles of Medical Ethics) adopted by the
United Nations General Assembly on 19 December 1982.
http://www.ciorns.ch/1983textsofguidelines.htm.

view bill text
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2397

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            January 17, 2013
                               ___________

Introduced  by  Sen. HOYLMAN -- 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:

  Section  1.  Legislative  policy and intent. This legislation is based
on, and is intended to give effect to, international treaties and stand-
ards; 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  obli-
gations  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
relation to a professional's conduct,  even  where  the  conduct  occurs

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01195-01-3

S. 2397                             2

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.
  S  2.  The  public health law is amended by adding a new section 23 to
read as follows:
  S 23. 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 ACCORD-
ANCE  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 FOLLOW-
ING 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  (SPECIAL-
IST  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 THIR-
TY-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 THERA-
PY),  ONE  HUNDRED  FIFTY-SIX  (OCCUPATIONAL   THERAPY),   ONE   HUNDRED
FIFTY-SEVEN   (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 SIXTY-FOUR (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  THIRTY-FIVE OF THIS CHAPTER (PRACTICE OF RADIOLOGIC TECH-
NOLOGY).
  (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 COMMIT-
TED, 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, TREAT-
MENT 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-

S. 2397                             3

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  FACILI-
TY, 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.  "INTERRO-
GATION"  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 PROFES-
SIONAL 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;

S. 2397                             4

  (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 ADMIN-
ISTERED;
  (V)  OMITTING OR SUPPRESSING INDICATIONS OF TORTURE OR IMPROPER TREAT-
MENT 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 PSYCHOLOGICAL-
LY EVALUATING A PERSON FOR THE PURPOSE OF IDENTIFYING POTENTIAL INTERRO-
GATION 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 PRISON-
ER OR POTENTIAL SUBJECT, AND IS NOT OTHERWISE UNLAWFUL:
  (A) APPROPRIATELY PARTICIPATING OR AIDING IN THE INVESTIGATION, PROSE-
CUTION, 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 STAND-
ARDS,  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:

S. 2397                             5

  (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
  (C) IN ADDITION TO REPORTING UNDER PARAGRAPH (A) OR (B) OF THIS SUBDI-
VISION: (I) IN THE CASE OF AN ALLEGED VIOLATION BY A HEALTH CARE PROFES-
SIONAL LICENSED UNDER ARTICLE ONE HUNDRED THIRTY-ONE, ONE HUNDRED  THIR-
TY-ONE-B  OR  ONE  HUNDRED  THIRTY-ONE-C  OF THE EDUCATION LAW, A REPORT
SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL MEDICAL CONDUCT; AND (II)
IN THE CASE OF AN ALLEGED VIOLATION BY ANY  OTHER  HEALTH  CARE  PROFES-
SIONAL LICENSED, REGISTERED OR CERTIFIED UNDER TITLE EIGHT OF THE EDUCA-
TION LAW, A REPORT SHALL BE FILED WITH THE OFFICE OF PROFESSIONAL DISCI-
PLINE;  PROVIDED  THAT FOR THE PURPOSE OF THIS PARAGRAPH, WHERE A PERSON
HOLDS A LICENSE, REGISTRATION OR  CERTIFICATION  UNDER  THE  LAWS  OF  A
JURISDICTION  OTHER  THAN THE STATE OF NEW YORK THAT IS FOR A PROFESSION
SUBSTANTIALLY COMPARABLE TO ONE LISTED IN PARAGRAPH (A)  OF  SUBDIVISION
ONE  OF  THIS  SECTION,  THE  PERSON SHALL BE DEEMED TO BE A HEALTH CARE
PROFESSIONAL AND THE PERSON'S  LICENSE,  REGISTRATION  OR  CERTIFICATION
SHALL  BE  DEEMED  TO BE UNDER THE APPROPRIATE ARTICLE OF TITLE EIGHT OF
THE EDUCATION LAW.
  7. MITIGATION. THE FOLLOWING MAY BE  CONSIDERED  IN  FULL  OR  PARTIAL
MITIGATION  OF  A  VIOLATION  OF THIS SECTION BY THE HEALTH CARE PROFES-
SIONAL:
  (A) COMPLIANCE WITH SUBDIVISION SIX OF THIS SECTION; OR
  (B) COOPERATION IN GOOD FAITH WITH AN INVESTIGATION OF A VIOLATION  OF
THIS SECTION.
  8.  APPLICABILITY.  THIS  SECTION  SHALL APPLY TO CONDUCT TAKING PLACE
WITHIN OR OUTSIDE NEW YORK STATE, AND  WITHOUT  REGARD  TO  WHETHER  THE
CONDUCT IS COMMITTED BY A GOVERNMENTAL OR NON-GOVERNMENTAL ENTITY, OFFI-
CIAL, OR ACTOR OR UNDER ACTUAL OR ASSERTED COLOR OF LAW.
  9. SCOPE OF PRACTICE NOT EXPANDED. THIS SECTION SHALL NOT BE CONSTRUED
TO EXPAND THE LAWFUL SCOPE OF PRACTICE OF ANY HEALTH CARE PROFESSIONAL.
  S  3.  Section  6509  of  the education law is amended by adding a new
subdivision 15 to read as follows:
  (15) ANY VIOLATION OF SECTION TWENTY-THREE OF THE  PUBLIC  HEALTH  LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
  S  4.  Section  6530  of  the education law is amended by adding a new
subdivision 50 to read as follows:
  50. ANY VIOLATION OF SECTION TWENTY-THREE OF  THE  PUBLIC  HEALTH  LAW
(RELATING TO PARTICIPATION IN TORTURE OR IMPROPER TREATMENT OF PRISONERS
BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER THAT SECTION.
  S  5.  Paragraphs  (b)  and (c) of subdivision 2 of section 740 of the
labor law, as added by chapter 660 of the laws of 1984, are amended  and
a new paragraph (d) is added to read as follows:
  (b)  provides  information  to,  or  testifies before, any public body
conducting an investigation, hearing or inquiry into any such  violation
of a law, rule or regulation by such employer; [or]
  (c) objects to, or refuses to participate in any such activity, policy
or practice in violation of a law, rule or regulation[.]; OR

S. 2397                             6

  (D)   REPORTS   OR  THREATENS  TO  REPORT  ANY  VIOLATION  OF  SECTION
TWENTY-THREE OF THE PUBLIC HEALTH  LAW  (RELATING  TO  PARTICIPATION  IN
TORTURE  OR  IMPROPER  TREATMENT  OF  PRISONERS  BY  HEALTH CARE PROFES-
SIONALS).
  S  6. Subdivision 3 of section 740 of the labor law, as added by chap-
ter 660 of the laws of 1984, is amended to read as follows:
  3. Application. The protection against  retaliatory  personnel  action
provided  by paragraph (a) of subdivision two of this section pertaining
to disclosure to a public body shall not apply to an employee who  makes
such  disclosure  to  a  public body unless the employee has brought the
activity, policy or practice in violation of law, rule or regulation  to
the  attention  of  a  supervisor  of the employer and has afforded such
employer a reasonable opportunity to correct such  activity,  policy  or
practice.  HOWEVER,  THIS SUBDIVISION SHALL NOT APPLY TO ANY REPORT OF A
VIOLATION UNDER SECTION TWENTY-THREE OF THE PUBLIC HEALTH  LAW  (PARTIC-
IPATION  IN  TORTURE  OR  IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE
PROFESSIONALS).
  S 7. Paragraphs (a) and (b) of subdivision 2 of  section  741  of  the
labor law, as added by chapter 24 of the laws of 2002, are amended and a
new paragraph (c) is added to read as follows:
  (a) discloses or threatens to disclose to a supervisor, or to a public
body  an  activity, policy or practice of the employer or agent that the
employee, in good faith, reasonably believes constitutes improper quali-
ty of patient care; [or]
  (b) objects to, or refuses to participate in any activity,  policy  or
practice  of  the  employer  or  agent that the employee, in good faith,
reasonably believes constitutes improper quality of patient care[.]; OR
  (C)  REPORTS  OR  THREATENS  TO  REPORT  ANY  VIOLATION   OF   SECTION
TWENTY-THREE  OF  THE  PUBLIC  HEALTH  LAW  (PARTICIPATION IN TORTURE OR
IMPROPER TREATMENT OF PRISONERS BY HEALTH CARE PROFESSIONALS).
  S 8. Subdivision 3 of section 741 of the labor law, as added by  chap-
ter 24 of the laws of 2002, is amended to read as follows:
  3.  Application.  The  protection against retaliatory personnel action
provided by subdivision two of this section shall not apply  unless  the
employee  has brought the improper quality of patient care to the atten-
tion of a supervisor and has afforded the employer a reasonable opportu-
nity to correct such activity,  policy  or  practice.  This  subdivision
shall  not  apply  to an action or failure to act described in paragraph
(a) of subdivision two of this section where  the  improper  quality  of
patient  care  described  therein  presents an imminent threat to public
health or safety or to the health of a specific patient and the employee
reasonably believes in good faith that reporting to a  supervisor  would
not  result  in corrective action.   HOWEVER, THIS SUBDIVISION SHALL NOT
APPLY TO ANY REPORT OF A VIOLATION UNDER  SECTION  TWENTY-THREE  OF  THE
PUBLIC  HEALTH  LAW  (PARTICIPATION  IN TORTURE OR IMPROPER TREATMENT OF
PRISONERS BY HEALTH CARE PROFESSIONALS).
  S 9. The introduction or enactment of this act shall not be  construed
to mean that: (a) conduct described by this act does not already violate
state  law  or  constitute professional misconduct; or (b) conduct other
than that described by this act does not  violate  other  state  law  or
otherwise constitute professional misconduct.
  S  10.  Severability. If any provision of this act, or any application
of any provision of this act, is held to  be  invalid,  that  shall  not
affect  the validity or effectiveness of any other provision of this act
or any other application of any provision of this act.

S. 2397                             7

  S 11.   This act shall take  effect  on  the  first  of  January  next
succeeding the date on which it shall have become a law.

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