Bill H.3361

HOUSE DOCKET, NO. 2809 FILED ON: 2/18/2011

HOUSE . . . . . . . . . . . . . . . No. 3361

By Mr. Lewis of Winchester, a petition (accompanied by bill, House, No. 3361) of Cory Atkins and others relative to the crime of health care professionals participating in the torture and abusive treatment of prisoners. The Judiciary.

The Commonwealth of Massachusetts

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In the Year Two Thousand Eleven

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An Act to prohibit the participation of healthcare professionals in the torture and abusive treatment of prisoners.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

“Whereas, The deferred operation of this act would tend to defeat its purpose, which is forthwith to regulate the conduct of health care professionals, therefore, it is hereby declared to be an emergency law, necessary for the immediate preservation of the public safety."

SECTION 1. Section 5O of chapter 111 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the first sentence the following sentence:- The department shall issue notices of violations and orders as are necessary to enforce section 1B of chapter 112.

SECTION 2. Section 14 of chapter 111C of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by inserting after the first sentence the following sentence:- The department shall estabilsh and implement regulations addressing the provisions of section 1B.

SECTION 3. Chapter 112 of the General Laws is hereby amended by inserting after section 1A the following section:-

Section 1B. (a) As used in this section, the following terms shall, unless the context clearly requires otherwise, have the following meanings:

"Abusive treatment", (1) cruel and unusual; or cruel, inhuman or degrading, treatment or punishment as defined by applicable international treaties and their corresponding interpreting bodies; or cruel and unusual punishment as defined in the United States Constitution or the general laws; or (2) any violation of subsection (c) or (d).

“Interrogation”, the questioning related to law enforcement, the enforcement of rules or regulations of a closed institution such as a jail or other detention facility, police facility, prison, immigration facility, or psychiatric or military facility or to military and national security intelligence gathering, designed to prevent harm or danger to individuals, the public, or national security, whether by a government or non-government actor, entity or official. Interrogation shall also include questioning to aid or accomplish any illegal activity or purpose, whether by a government or non-government actor, entity or official. Interrogations are distinct from questioning used by health care professionals to assess the physical or mental condition of an individual.

"Health care professional", (1) any person licensed, registered, certified, or exempt to practice a health-related profession under the following: chapter 111; chapter 111C; sections 2, 3, 9C, 13, 23R, 24, 43, 51, 51½, 66, 73C, 74, 87, 89, 118, 123A, 130, 138, 149, 163, 196, 198, 211, and 252 of chapter 112; and this chapter or (2) any other person licensed, registered, certified, or exempt to practice a health-related profession.

"Prisoner", any person who is subject to detention, incarceration, interrogation, or who is being held involuntarily regardless of whether such action is performed or committed by a government or non-government actor, entity, or official; under color of law; or not under color of law.

"Torture", any intentional act or intentional omission by which severe pain or suffering, whether physical or mental, is inflicted on a person for such purposes as obtaining from the person or from a third person information or a confession, punishing the person for an act the person or a third person has committed, including the holding of a belief or membership in any group, or is suspected of having committed, or intimidating or coercing the person or a third person, or for any reason based on discrimination of any kind.

For the purposes of this section, the terms "torture" and "abusive treatment" including "cruel, inhuman and degrading treatment" shall be interpreted in accordance with applicable international treaties, principles and standards as well as the decisions, observations and recommendations of the corresponding interpreting bodies; provided however, that it shall not be an element of either "torture" or "abusive 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; with specific intent; or without specific intent.

For the purposes of this section "adversely affect" a person's physical or mental health or condition shall 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.

(b) It shall be an element of any violation of this section that the actor knew or reasonably should have known his or her conduct is of the kind prohibited under this section. If a health care professional is denied access to the information necessary to ascertain whether torture or abusive 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 shall presume that the prisoner is at risk of torture or abusive treatment.

(c) It shall not be an element of any violation of this section that the health care professional be acting in his or her capacity as a health care professional.

(d) Every health care professional who uses his or her knowledge or skills in relation to a prisoner shall do so in a way 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.

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.

(e) (1) No health care professional shall apply his or her knowledge or skills in relation to, engage in any relationship with, or perform services using his or his knowledge and skills in relation to any prisoner where the purpose is not solely to evaluate, treat, protect, or improve the physical or mental health or condition of the prisoner; except as permitted by paragraph (2) or (3).

(2) 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 abusive treatment of a prisoner. Prohibited forms of engagement shall include, but not be limited to:

(i) providing means or knowledge with the intent to facilitate the practice of torture or abusive treatment;

(ii) permitting his or her knowledge or the clinical findings, treatment or health records of a prisoner to be used in the process of torture or abusive treatment;

(iii) examining, evaluating, or treating a prisoner to certify whether torture or abusive treatment can begin or be resumed;

(iv) being present while torture or abusive treatment is being administered;

(v) omitting indications of torture or abusive treatment from records or reports; and

(vi) altering health care records or reports to hide, misrepresent or destroy evidence of torture or abusive treatment.

(3) No health care professional shall apply his or her knowledge or skills or perform any service using his or her knowledge or skills in order to assist in the creation of conditions of confinement, incarceration or detention designed to harm, weaken, break-down, exhaust or otherwise impair a prisoner.

(4) No health care professional shall apply his or her knowledge or skills or perform any service using his or her knowledge or skills 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 clause (1) or (2) of subsection (f).

(5) No health care professional shall participate in the interrogation of a prisoner, including being present in the interrogation room, asking or suggesting questions, advising on the use of specific interrogation techniques, monitoring the interrogation, or medically or psychologically evaluating a person for the purpose of identifying potential interrogation methods or strategies. This paragraph shall not bar a health care professional from engaging in conduct under clause (3) of subsection (f).

(f) A health care professional may engage in the following conduct so long as it does not violate clause (3) or (4), it shall not adversely affect the physical or mental health or condition of a prisoner or potential subject, and is not otherwise unlawful:

(1) appropriately participating or aiding in the investigation, prosecution, or defense of a criminal, administrative or civil matter;

(2) participating in an act that restrains a prisoner or temporarily alters the physical or mental activity of a prisoner, where the act complies with generally applicable legal, health and professional standards, is necessary for the protection of the physical or mental health, condition or safety of the prisoner, other prisoners, or persons directly caring for, guarding or confining the prisoner;

(3) 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.

(4) conducting human subject research in accordance with generally accepted legal, health and professional standards. Research shall include safeguards for human subjects equivalent to those required by federal law, including informed consent and institutional review board approval where applicable.

(g) A health care professional who has reasonable grounds; provided, that such grounds are not based solely on publicly available information, to believe that torture, abusive 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 third parties, report such conduct to: (1) a government agency that the health care professional reasonably believes has legal authority to punish or prevent the continuation of torture or the abusive treatment of a prisoner or conduct in violation of this section and is reasonably likely to attempt to do so; and (2) in the case of an alleged violation by a health care professional licensed under the laws of the commonwealth, a report shall be filed with appropriate licensing authority.

(h) The following may be considered in full or partial mitigation of a violation of this section by the health care professional: (1) compliance with subsection (f); or (2) cooperation in good faith with an investigation of a violation of this section.

(i) This section shall apply to conduct taking place within or outside the commonwealth, and without regard to whether the conduct is committed by a governmental or non-governmental entity, official, or actor or under actual or asserted color of law, or with specific intent or without specific intent.

(j) This section shall not be construed to expand the lawful scope of practice of any health care professional.

SECTION 4. The tenth paragraph of section 5 of chapter 112 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding the following clause:-

(i) is guilty of violating section 1B.

SECTION 5. The second paragraph of section 9H of said chapter 112, as so appearing, is hereby amended by adding the following clause:--

(i) is guilty of violationg section 1B.

SECTION 6. Section 18 of said chapter 112, as so appearing, is hereby amended by inserting after the word “terpitude”, in line 6, the following words:- or has violated section 1B.

SECTION 7. Section 23K of said chapter 112, as so appearing, is hereby amended by adding the following clause:-

(g) has violated section 1B.

SECTION 8. Section 23X of said chapter 112, as so appearing, is hereby amended by adding the following clause:-

(g) has violated section 1B.

SECTION 9. Section 32 of said chapter 112, as so appearing, is hereby amended by inserting after the word “sections”, in line 2, the following words:- section 1B.

SECTION 10. Section 42A of said chapter 112, as so appearing, is hereby amended by inserting after the word “jurisdiction”, in line 4, the following words:- including such rules and regulations as are necessary to enable it to properly enforce the provisions of section 1B.

SECTION 11. The last paragraph of section 51 of said chapter 112, as so appearing, is hereby amended by adding the following sentence:- The board shall adopt rules and regulations necessary to enforce the provisions of section 1B.

SECTION 12. The last paragraph of section 51½ of said chapter 112, as so appearing, is hereby amended by adding the following sentence:-

The board shall adopt rules and regulations consistent with section 1B.

SECTION 13. Section 71 of said chapter 112, as so appearing, is hereby amended by inserting after the word “incompetence”, in line 7, the following words:- for violation of any provision of section 1B.

SECTION 14. Section 73H of chapter 112, as so appearing, is hereby amended by inserting after the word “turpitude”, in line 8, the following words:- or for the violation of any provision of section 1B.

SECTION 15. Section 77 of chapter 112, as so appearing, is hereby amended by inserting after the word “of”, in line 1, the following words:- section 1B.

SECTION 16. Section 93 of chapter 112, as so appearing, is hereby amended by inserting after the word “turpitude”, in line 2, the following words:- who has violated section 1B.

SECTION 17. The second paragraph of section 128 of said chapter 112, as so appearing, is hereby amended by adding the following clause:--

(i) is guilty of violating section 1B.

SECTION 18. Section 137 of said chapter 112, as so appearing, is hereby amended by inserting after the word “unethically”, in line 7, the following words:- or has been found guilty by the board of violating section 1B.

SECTION 19. Subdivision (4) of section 139 of said chapter 112, as so appearing, is hereby amended by adding the following clause:- (e) has violated any of the provisions of section 1B.

SECTION 20. Section 158 of said chapter 112, as so appearing, is hereby amended by adding the following clause:-

(k) violated any of the provisions of section 1B.

SECTION 21. Section 215 of said chapter 112, as so appearing, is hereby amended by adding the following clause:-

(h) has violated any of the provisions of section 1B.

SECTION 22. Section 258 of chapter 112, as so appearing, is hereby amended by adding the following clause:--

(h) has violated any of the provisions of section 1B.

SECTION 23. Subsection (b) of section 185 of chapter 149 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by adding the following clause:-

(4) Reports or threatens to report any violation or suspected violation of section 1B of chapter 112.

SECTION 24. Clause (2) of subsection (c) of said section 185 of said chapter 149, as so appearing, is hereby amended by inserting after the word “crime”, in line 65, the following words:- or (D) is reporting any violation or suspected violation of section 1B of chapter 112.

SECTION 25. This act shall not be construed to mean that: (1) conduct described by this act does not already violate state law or constitute professional misconduct; or (2) conduct other than that described by this act does not violate other state law or otherwise constitute professional misconduct.

Name:	District/Address:	Date Added:
Cory Atkins	14th Middlesex	1/27/2011
Frank I. Smizik	15th Norfolk	1/28/2011
William N. Brownsberger		1/28/2011
Ruth B. Balser	12th Middlesex	2/2/2011
Patricia D. Jehlen		2/1/2011
Timothy J. Toomey, Jr.	26th Middlesex	2/3/2011
Ellen Story	3rd Hampshire	2/4/2011
Benjamin Swan	11th Hampden	2/4/2011