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.
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.
(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.
STATE OF NEW YORK ________________________________________________________________________ 2397 2013-2014 Regular Sessions IN SENATE 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 occursEXPLANATION--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 [.]; ORS. 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.