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Amending the Law to Prohibit Participating in Torture and Improper Treatment of Prisoners by Health Care Officials

June 14, 2011 

Subject: A.5891 (Gottfried)

(AN ACT to amend the public health law, the education law and the labor law, in relation to prohibiting participating in torture and improper treatment of prisoners by health care professionals).

Position: SUPPORT

This bill proposes to amend New York State’s public health law, education law and labor law, by barring health care professionals from participating in torture or the improper treatment of prisoners. In doing so, this bill gives effect to international treaties and standards; federal, state and local law; and professional standards relating to health care matters.

Because the NYCLU believes that any form of torture violates the rule of law, and that the participation and complicity of medical personnel in torture and cruel, inhuman, and degrading treatment undermines the public’s trust in the medical profession, we urge the passage of this bill.

This bill reaffirms existing legal and ethical obligations of health care professionals by prohibiting any participation in torture by these professionals. While the definition of torture has been, and continues to be, a considerable source of debate, this bill draws a clear line between permissible and impermissible conduct by relying on established legal and professional standards that govern the conduct of medical professionals.

Thus, the bill recognizes the responsibility of medical professional to evaluate, treat, protect, or improve the physical or mental health or condition of prisoners, while prohibiting health care professionals from engaging in any conduct that constitutes participation in torture or the improper treatment of a prisoner.

As a jurisdictional matter, this bill appropriately targets the conduct of medical professionals both inside and outside of the state’s boundaries. While states are generally limited in their authority to regulate conduct occurring beyond their borders, it is widely established that states have the authority to consider professional conduct both within and outside of the states when regulating the licensing of health care professionals. Consequently, the provisions of this law will be enforced by New York State’s licensing boards, which possess the authority to discipline professionals pursuant to their licensing programs.

In upholding the existing legal and ethical obligations of health care professionals, this legislation imposes a broad duty upon such professionals not only to refrain from, but also to assist in combating, the practice of torture and the improper treatment of prisoners.

To that end, the bill requires health care professionals to disclose incidents of torture and illegal tactics, but also provides for mitigation of a violation if a health care professional (1) reports such conduct or (2) cooperates in good faith in the investigation of a violation of this law, once enacted. The bill would also protect from retaliatory action by employers those health care professionals who comply with the provisions of this proposed law.

The involvement of medical professionals in torture and cruel, inhuman, and degrading treatment is no longer a matter of dispute. Documents recently released by the Obama Administration show the full extent to which medical professionals have offered both explicit and implicit support for the development, implementation, and legitimization of torture and cruel, inhuman, or degrading treatment during interrogations.

Physicians for Human Rights, the Center for Constitutional Rights, and the International Committee of the Red Cross have all published reports detailing how American officials relied on medical expertise to rationalize and carry out these abusive and unlawful tactics.

For example, the CIA’s Office of Medical Services gave medical clearance to illegal techniques by stating that that sleep deprivation up to 180 hours does not qualify as torture, that confinement in a dark, small space for 18 hours a day is acceptable, that detainees can be exposed to cold air or hosed down with cold water for up to two-thirds of the time it takes for hypothermia to set in, that placing a detainee in handcuffs attached by a chain to a ceiling and then forcing the detainee to stand with his feet shackled to a bolt in the floor, “does not result in significant pain for the subject,” and that with few limitations, water boarding is medically acceptable.

Concern about the complicity of medical personnel in unethical activity is not limited to interrogations of terrorism suspects overseas. In the United States, the American Medical Association (“AMA”) has long opposed the involvement of medical professionals in the process of executing inmates, even when the conduct medical professionals are conscripted to perform is designed to minimize the pain of the condemned prisoner.

Indeed, in May 2010, the American Board of Anesthesiologists (“ABA”) announced that it would revoke the certification of any member who participates in executing a prisoner by lethal injection. ABA board secretary Mark A. Rockoff said that while doctors can provide effective anesthesia, “doing so in order to cause a patient’s death is a violation of their fundamental duty as physicians to do no harm.”

Thus, far from producing a radical shift in the law, this bill would bring New York’s regulatory framework in line with the ethical rules promulgated by the AMA, ABA, and other medical organizations. The involvement of health professionals in torture and the inhumane treatment of prisoners and detainees constitute violations of the ethical obligations imposed on health care practitioners, which call on them to “do no harm.”

Because the standards set forth in this bill would be clear and uniformly applicable to all New York licensed health care professionals wherever they use their professional expertise, it would also avoid the need for costly and lengthy litigation to resolve and remedy future allegations of violations. For example, the NYCLU is currently bringing a lawsuit in New York state court that seeks a court order requiring a disciplinary investigation of a New York licensed psychologist who is alleged to have participated in torture and improper treatment at Guantanamo Bay, Cuba.

Passage of this bill would ensure that, in the future, any allegation that a health care professional has participated in torture or other improper treatment will be investigated and resolved efficiently—without the need for lengthy and costly litigation.

This bill would promote accountability, enforce the ethical rules of conduct for health care professionals, and effectively eliminate any participation, direct or indirect, of health care professionals in torture by prohibiting them from engaging in, planning, or assisting in the torture or unethical treatment of prisoners.

As part of the ACLU’s ongoing campaign to eliminate torture, the NYCLU, the New York State affiliate of the ACLU, strongly encourages the passage of A.5891 which would move New York and the United States one step closer toward ending the inhumane treatment of prisoners and detainees.

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