Senate Bill S4495

2009-2010 Legislative Session

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

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Archive: Last Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 06, 2010	referred to health
Jun 03, 2009	print number 4495a
Jun 03, 2009	amend and recommit to health
Apr 24, 2009	referred to health

Bill Amendments

Original

A (Active)

co-Sponsors

2009-S4495 - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Add §22, Pub Health L; amd §§6509 & 6530, Ed L; amd §§740 & 741, Lab L

2009-S4495 - Summary

Prohibits participation in torture and improper treatment of prisoners by health care professional; 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.

2009-S4495 - Sponsor Memo

                                 BILL NUMBER:  S4495

 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 § 22. 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
international treaties, federal and state law and professional
standards. "Prisoner" is defined as any person who is subject to
punishment, detention, incarceration, interrogation, intimidation or

coercion.

Subdivision 2 of the new §22 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 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 §22 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 and 6 adds whistleblower protections for employees and
contractors to labor law §§740 and 741.

 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.

 PRIOR LEGISLATIVE HISTORY :  2008: Based upon A.9891 reported to
Rules committee

 FISCAL IMPLICATIONS : None to the state
 EFFECTIVE DATE : January 1 after the date that it shall have become
law.

2009-S4495 - Bill Text download pdf

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

                                  4495

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 24, 2009
                               ___________

Introduced  by  Sen.  DUANE  -- 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.
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 wrong-
ful 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.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00774-03-9

S. 4495                             2

  S 2. The public health law is amended by adding a new  section  22  to
read as follows:
  S  22.  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 INTERNATIONAL TREATIES, PRINCIPLES AND STANDARDS AS
WELL AS THE DECISIONS, OBSERVATIONS AND RECOMMENDATIONS  OF  THE  CORRE-
SPONDING INTERPRETING BODIES. 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  AND  SPECIALIST  ASSISTANTS),  ONE
HUNDRED  THIRTY-TWO  (CHIROPRACTIC), ONE HUNDRED THIRTY-THREE (DENTISTRY
AND DENTAL HYGIENE), ONE HUNDRED THIRTY-SIX (PHYSICAL THERAPY AND  PHYS-
ICAL  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 (OCCUPA-
TIONAL 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 LABO-
RATORY TECHNOLOGY PRACTICE ACT), OR ONE HUNDRED SIXTY-SIX (MEDICAL PHYS-
ICS PRACTICE), OR (II) ARTICLE THIRTY-FIVE 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  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 AND UNUSUAL, CRUEL, INHUMAN
OR DEGRADING, TREATMENT OR PUNISHMENT AS DEFINED BY APPLICABLE  INTERNA-
TIONAL  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-
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

S. 4495                             3

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.
  2.  KNOWLEDGE. IT SHALL BE AN ELEMENT OF ANY VIOLATION OF THIS SECTION
THAT THE ACTOR KNEW OR REASONABLY SHOULD HAVE KNOWN THE NATURE OF HIS OR
HER CONDUCT. IF A HEALTH CARE PROFESSIONAL  WHO  OPERATES  IN  A  CLOSED
INSTITUTION SUCH AS A JAIL OR OTHER DETENTION FACILITY, POLICE FACILITY,
PRISON,  OR PSYCHIATRIC OR MILITARY FACILITY, IS NOT GIVEN ACCESS BY THE
INSTITUTION TO THE INFORMATION NECESSARY TO ASSESS THE NATURE OF HIS  OR
HER  CONDUCT  AS  COVERED  BY THIS SECTION, THE HEALTH CARE PROFESSIONAL
MUST PRESUME THAT THE PRISONER FACES RISK OF TORTURE OR IMPROPER  TREAT-
MENT.
  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 AS THE HEALTH CARE PROFESSIONAL
IS  REASONABLY  ABLE  TO  PROVIDE  UNDER  THE  CIRCUMSTANCES,  INCLUDING
PROTECTION OF THE CONFIDENTIALITY OF PATIENT INFORMATION.
  (B) IN ALL CLINICAL ASSESSMENTS RELATING TO A  PRISONER,  WHETHER  FOR
THERAPEUTIC  OR  EVALUATIVE  PURPOSES,  HEALTH  CARE PROCESSIONALS 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 WHERE THE  PURPOSE  IS
NOT  TO  EVALUATE,  TREAT,  PROTECT,  OR  IMPROVE THE PHYSICAL OR MENTAL
HEALTH OR CONDITION OF THE PRISONER (EXCEPT AS  PERMITTED  BY  PARAGRAPH
(B) 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 OR KNOWLEDGE WITH THE  INTENT  TO  FACILITATE  THE
PRACTICE OF TORTURE OR IMPROPER TREATMENT;
  (II) PERMITTING HIS OR HER KNOWLEDGE OR CLINICAL FINDINGS OR TREATMENT
TO BE USED IN THE PROCESS OF TORTURE OR IMPROPER TREATMENT;
  (III) EXAMINING, EVALUATING, OR TREATING A PRISONER TO CERTIFY WHETHER
TORTURE OR IMPROPER TREATMENT CAN BEGIN OR BE RESUMED;
  (IV) BEING PRESENT WHILE TORTURE OR IMPROPER TREATMENT IS BEING ADMIN-
ISTERED;
  (V) OMITTING 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, OR INCARCERATION, INTERROGATION, 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

S. 4495                             4

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 (C) 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) 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.
  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 INNOCENT 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.
  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:

S. 4495                             5

  (15) ANY VIOLATION OF SECTION TWENTY-TWO  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-TWO  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
  (D) REPORTS OR THREATENS TO REPORT ANY VIOLATION OF SECTION TWENTY-TWO
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  6.  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-TWO
OF THE PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR IMPROPER TREATMENT
OF  PRISONERS BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION UNDER
THAT SECTION.
  S 7. 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 8. This act shall take effect on the first of January next  succeed-
ing the date on which it shall have become a law.

co-Sponsors

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2009-S4495A (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Add §22, Pub Health L; amd §§6509 & 6530, Ed L; amd §§740 & 741, Lab L

2009-S4495A (ACTIVE) - Summary

2009-S4495A (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S4495A

 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 § 22. 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
international treaties, federal and state law and professional

standards. "Prisoner" is defined "as any person who is Subject to
punishment, detention, incarceration, interrogation, intimidation or
coercion.

Subdivision 2 of the new §22 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 maybe
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 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 §22 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 and 6 adds whistle blower protections for employees and
contractors to labor law §§740 and 741.

 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: Based upon A.9891 Reported to Rules 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.vanityfair.com/politics/features/2007/07
/torture200707.
(2) Jane Mayer, The Black sites. New Yorker August 13, 2007. Bloche
MG, Marks JH; When Doctors Go to War, New England Journal of Medicine;
2005:352, 3, http://www.newyorker.com/reporting/2007 /08/13/070813 fa
fact mayer.
(3) Resolution 37/194 (principles of Medical Ethics) adopted by the
United Nations General Assembly on 19 December 1982.
http://www.cioms.ch/1983textsofguidelines.htm.

2009-S4495A (ACTIVE) - Bill Text download pdf

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

                                 4495--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 24, 2009
                               ___________

Introduced  by  Sens.  DUANE, KRUEGER, PERKINS -- read twice and ordered
  printed, and when printed to be committed to the Committee  on  Health
  --  committee  discharged,  bill amended, ordered reprinted as amended
  and recommitted to said committee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD00774-07-9

S. 4495--A                          2

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.
  S 2. The public health law is amended by adding a new  section  22  to
read as follows:
  S  22.  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 INTERNATIONAL TREATIES, PRINCIPLES AND STANDARDS AS
WELL AS THE DECISIONS, OBSERVATIONS AND RECOMMENDATIONS  OF  THE  CORRE-
SPONDING INTERPRETING BODIES. 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  AND  SPECIALIST  ASSISTANTS),  ONE
HUNDRED  THIRTY-TWO  (CHIROPRACTIC), ONE HUNDRED THIRTY-THREE (DENTISTRY
AND DENTAL HYGIENE), ONE HUNDRED THIRTY-SIX (PHYSICAL THERAPY AND  PHYS-
ICAL  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 (OCCUPA-
TIONAL 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 LABO-
RATORY TECHNOLOGY PRACTICE ACT), OR ONE HUNDRED SIXTY-SIX (MEDICAL PHYS-
ICS PRACTICE), OR (II) ARTICLE THIRTY-FIVE 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  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 AND UNUSUAL; OR CRUEL, INHU-
MAN 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  CONSTITU-
TION OR THE NEW YORK STATE CONSTITUTION; OR (II) ANY VIOLATION OF SUBDI-
VISION THREE OR FOUR OF THIS SECTION.
  (D)  "PRISONER"  MEANS  ANY  PERSON  WHO  IS  SUBJECT  TO  PUNISHMENT,
DETENTION,  INCARCERATION,  INTERROGATION,  INTIMIDATION  OR   COERCION,

S. 4495--A                          3

REGARDLESS OF WHETHER SUCH ACTION IS PERFORMED OR COMMITTED BY A GOVERN-
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.
  2.  KNOWLEDGE. IT SHALL BE AN ELEMENT OF ANY VIOLATION OF THIS SECTION
THAT THE ACTOR KNEW OR REASONABLY SHOULD HAVE KNOWN THE NATURE OF HIS OR
HER CONDUCT. IF A HEALTH CARE PROFESSIONAL  WHO  OPERATES  IN  A  CLOSED
INSTITUTION SUCH AS A JAIL OR OTHER DETENTION FACILITY, POLICE FACILITY,
PRISON,  OR PSYCHIATRIC OR MILITARY FACILITY, IS NOT GIVEN ACCESS BY THE
INSTITUTION TO THE INFORMATION NECESSARY TO ASCERTAIN WHETHER TORTURE OR
IMPROPER TREATMENT HAS OCCURRED, IS OCCURRING OR WILL OCCUR, IN ORDER TO
ASSESS THE NATURE OF HIS OR HER CONDUCT AS COVERED BY THIS SECTION,  THE
HEALTH  CARE  PROFESSIONAL  MUST PRESUME THAT THE PRISONER FACES RISK OF
TORTURE OR IMPROPER TREATMENT.
  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 AS THE HEALTH CARE PROFESSIONAL
IS  REASONABLY  ABLE  TO  PROVIDE  UNDER  THE  CIRCUMSTANCES,  INCLUDING
PROTECTION OF 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 WHERE THE PURPOSE IS
NOT TO EVALUATE, TREAT, PROTECT,  OR  IMPROVE  THE  PHYSICAL  OR  MENTAL
HEALTH  OR  CONDITION  OF THE PRISONER (EXCEPT AS PERMITTED BY PARAGRAPH
(B) 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  OR  KNOWLEDGE WITH THE INTENT TO FACILITATE THE
PRACTICE OF TORTURE OR IMPROPER TREATMENT;
  (II) PERMITTING HIS OR HER KNOWLEDGE OR CLINICAL FINDINGS OR TREATMENT
TO BE USED IN THE PROCESS OF TORTURE OR IMPROPER TREATMENT;
  (III) EXAMINING, EVALUATING, OR TREATING A PRISONER TO CERTIFY WHETHER
TORTURE OR IMPROPER TREATMENT CAN BEGIN OR BE RESUMED;
  (IV) BEING PRESENT WHILE TORTURE OR IMPROPER TREATMENT IS BEING ADMIN-
ISTERED;
  (V) OMITTING 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, OR INCARCERATION, INTERROGATION, INTIMIDATION, OR

S. 4495--A                          4

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 (C) 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)  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.
  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 INNOCENT 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; OR
  (C)  IN THE CASE OF AN ALLEGED VIOLATION BY A HEALTH CARE PROFESSIONAL
LICENSED  UNDER  ARTICLES  ONE  HUNDRED  THIRTY-ONE   OR   ONE   HUNDRED
THIRTY-ONE-B OF THE EDUCATION LAW, A REPORT MAY BE FILED WITH THE OFFICE
OF  PROFESSIONAL MEDICAL CONDUCT. IN THE CASE OF AN ALLEGED VIOLATION BY
ANY OTHER HEALTH CARE PROFESSIONAL LICENSED UNDER  TITLE  EIGHT  OF  THE
EDUCATION  LAW,  A  REPORT  MAY BE FILED WITH THE OFFICE OF PROFESSIONAL
DISCIPLINE.

S. 4495--A                          5

  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-TWO 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-TWO  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
  (D) REPORTS OR THREATENS TO REPORT ANY VIOLATION OF SECTION TWENTY-TWO
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 6. 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-TWO
OF THE PUBLIC HEALTH LAW (PARTICIPATION IN TORTURE OR IMPROPER TREATMENT
OF PRISONERS BY HEALTH CARE PROFESSIONALS), SUBJECT TO MITIGATION  UNDER
THAT SECTION.
  S 7. 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  8. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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Senate Bill S4495

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2009-S4495 - Details

2009-S4495 - Summary

2009-S4495 - Sponsor Memo

2009-S4495 - Bill Text download pdf

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2009-S4495A (ACTIVE) - Details

2009-S4495A (ACTIVE) - Summary

2009-S4495A (ACTIVE) - Sponsor Memo

2009-S4495A (ACTIVE) - Bill Text download pdf

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Archive: Last Bill Status - In Senate Committee Health Committee

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2009-S4495 - Details

2009-S4495 - Summary

2009-S4495 - Sponsor Memo

2009-S4495 - Bill Text download pdf

co-Sponsors

2009-S4495A (ACTIVE) - Details

2009-S4495A (ACTIVE) - Summary

2009-S4495A (ACTIVE) - Sponsor Memo

2009-S4495A (ACTIVE) - Bill Text download pdf

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