Massachusetts 2023-2024 Regular Session

Massachusetts House Bill H3619 Compare Versions

Only one version of the bill is available at this time.

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1	1	1 of 1
2	2	HOUSE DOCKET, NO. 3869 FILED ON: 1/20/2023
3	3	HOUSE . . . . . . . . . . . . . . . No. 3619
4	4	The Commonwealth of Massachusetts
5	5	_________________
6	6	PRESENTED BY:
7	7	Michael S. Day
8	8	_________________
9	9	To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
10	10	Court assembled:
11	11	The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
12	12	An Act prohibiting the participation of healthcare professionals in the torture and abuse of
13	13	prisoners.
14	14	_______________
15	15	PETITION OF:
16	16	NAME:DISTRICT/ADDRESS :DATE ADDED:Michael S. Day31st Middlesex1/20/2023 1 of 8
17	17	HOUSE DOCKET, NO. 3869 FILED ON: 1/20/2023
18	18	HOUSE . . . . . . . . . . . . . . . No. 3619
19	19	By Representative Day of Stoneham, a petition (accompanied by bill, House, No. 3619) of
20	20	Michael S. Day for legislation to prohibit the participation of healthcare professionals in the
21	21	torture and abuse of prisoners. Public Health.
22	22	[SIMILAR MATTER FILED IN PREVIOUS SESSION
23	23	SEE HOUSE, NO. 2256 OF 2021-2022.]
24	24	The Commonwealth of Massachusetts
25	25	_______________
26	26	In the One Hundred and Ninety-Third General Court
27	27	(2023-2024)
28	28	_______________
29	29	An Act prohibiting the participation of healthcare professionals in the torture and abuse of
30	30	prisoners.
31	31	Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
32	32	of the same, as follows:
33	33	1 SECTION 1. Chapter 112 of the General Laws is hereby amended by inserting after
34	34	2section 1B the following language:--
35	35	3 Section 1C: Participation in torture or abusive treatment of prisoners by health care
36	36	4professionals.
37	37	5 1. Definitions.
38	38	6 As used in this section, unless the context requires otherwise, the following terms shall
39	39	7have the following meanings: 2 of 8
40	40	8 (a) "Health care professional" means any person licensed, registered, certified, or exempt
41	41	9to practice a health-related profession under the laws of the commonwealth of Massachusetts,
42	42	10including but not limited to the following: chapter 111; chapter 111C; or sections two, three,
43	43	11nine C, thirteen, twenty-three A, twenty-three R, twenty-four, forty-three, fifty-one, fifty-one and
44	44	12one half, sixty-six, seventy-three C, seventy-four, eighty-seven WWW, eighty-nine, one hundred
45	45	13and eight, one hundred and eighteen, one hundred and thirty, one hundred thirty-eight, one
46	46	14hundred forty-nine, one hundred and sixty-three, one hundred and ninety-six, two hundred and
47	47	15eleven, or two hundred and fifty-two of chapter 112;
48	48	16 (b) "Torture" means any intentional act or intentional omission by which severe pain or
49	49	17suffering, whether physical or mental, is inflicted on a person for any of the following purposes:
50	50	18to obtain from the subject or from a third person information or a confession; to punish the
51	51	19subject for an act that the subject or a third person has committed or is suspected of having
52	52	20committed; to punish the subject or a third person for actual or suspected beliefs or membership
53	53	21in any group; to intimidate or coerce the subject or a third person; or for any discriminatory
54	54	22reason.
55	55	23 (c) "Abusive treatment" means (i) cruel, inhuman or degrading, treatment or punishment
56	56	24as defined by applicable international treaties and their corresponding interpreting bodies; (ii)
57	57	25cruel and unusual punishment as defined in the United States Constitution or the laws of
58	58	26Massachusetts; or (iii) any violation of subsection two of this section.
59	59	27 (d) "Prisoner" means any person who is being detained, incarcerated, or held
60	60	28involuntarily, whether by a government or non-government actor, entity, or official; and whether
61	61	29or not under color of law. 3 of 8
62	62	30 (e) To "adversely affect" a person's physical or mental health or condition does not
63	63	31include causing adverse effects that may arise from treatment or care when that treatment or care
64	64	32is performed in accordance with generally applicable legal, health and professional standards and
65	65	33for the purposes of evaluating, treating, protecting or improving the person's health.
66	66	34 (f) “Interrogation” means the questioning of a prisoner, whether by a government or non-
67	67	35government actor, entity or official, for purposes of: (1) law enforcement; (2) the enforcement of
68	68	36rules or regulations of a closed institution such as a jail or other detention facility, police facility,
69	69	37prison, immigration facility, or psychiatric or military facility; (3) obtaining military and national
70	70	38security intelligence; or (4) aiding or accomplishing any illegal activity or purpose. Questioning
71	71	39by licensed health care professionals to assess the physical or mental condition of an individual
72	72	40for the exclusive purpose of providing care and treatment of that individual within the patient-
73	73	41provider relationship does not constitute interrogation.
74	74	42 The terms "torture" and "abusive treatment" shall be interpreted in accordance with
75	75	43applicable international treaties, principles and standards, as well as the decisions, observations
76	76	44and recommendations of the corresponding interpreting bodies.
77	77	45 2. Certain conduct of health care professionals prohibited.
78	78	46 No health care professional shall:
79	79	47 (a) apply his or her knowledge or skills in relation to, engage in any professional
80	80	48relationship with, or perform services using his or her knowledge and skills in relation to any
81	81	49prisoner except for: 4 of 8
82	82	50 (i) the purpose of evaluating, treating, protecting, or improving the physical or mental
83	83	51health of the prisoner within a patient-provider relationship; or
84	84	52 (ii) situations permitted by paragraphs (a), (b) or (c) of subdivision four of this section.
85	85	53 (b) engage, directly or indirectly, in the torture or abusive treatment of a prisoner, nor
86	86	54participate in, incite, assist in, plan or design, or conspire to commit torture or abusive treatment.
87	87	55This general prohibition includes, but is not limited to:
88	88	56 (i) providing means or knowledge with the intent to facilitate the practice of torture or
89	89	57abusive treatment;
90	90	58 (ii) permitting his or her knowledge, or the clinical findings, treatment or health records
91	91	59regarding a prisoner, to be used in the process of torture or abusive treatment;
92	92	60 (iii) examining, evaluating, or treating a prisoner to certify whether torture or abusive
93	93	61treatment can begin or be resumed;
94	94	62 (iv) being present while torture or abusive treatment is being administered;
95	95	63 (v) omitting indications of torture or abusive treatment from records or reports; or
96	96	64 (vi) altering health care records or reports to hide, misrepresent or destroy evidence of
97	97	65torture or abusive treatment;
98	98	66 (c) use his or her knowledge or skills in any way to help create conditions of
99	99	67confinement, incarceration or detention designed to harm, weaken, break down, exhaust or
100	100	68otherwise impair a prisoner; 5 of 8
101	101	69 (d) use his or her knowledge or skills to further or facilitate the punishment, intimidation,
102	102	70or coercion of a prisoner (except as permitted by paragraph (a) or (b) of subdivision four of this
103	103	71section);
104	104	72 (e) use his or her knowledge or skills in any way to assist in the detention or incarceration
105	105	73of a prisoner when such assistance may adversely affect the prisoner’s physical or mental health
106	106	74(except as permitted by paragraph (a) or (b) of subdivision four of this section); or
107	107	75 (f) participate in the interrogation of a prisoner, including, but not limited to, being
108	108	76physically present in the interrogation room, having the ability to see or hear what is taking place
109	109	77in the interrogation room by any technical means or methods, asking or suggesting questions,
110	110	78advising on the use of specific interrogation techniques, monitoring the interrogation, or
111	111	79medically or psychologically evaluating a person for the purpose of identifying potential
112	112	80interrogation methods or strategies. However, this paragraph shall not bar a health care
113	113	81professional from assessing the competency or sanity of a prisoner in connection with her/his
114	114	82participation in a matter authorized by paragraph (a) of subdivision four of this section or from
115	115	83engaging in conduct permitted under paragraph (d) of subdivision four.
116	116	84 3. General obligations of health care professionals.
117	117	85 (a) Every health care professional who uses his or her knowledge or skills in relation to a
118	118	86prisoner shall do so in a way consistent with generally applicable legal, health and professional
119	119	87standards, including but not limited to those pertaining to the confidentiality of patient
120	120	88information. 6 of 8
121	121	89 (b) In all clinical assessments relating to a prisoner, whether for therapeutic or evaluative
122	122	90purposes, health care professionals shall exercise their professional judgment independent of the
123	123	91interests of a government or other third party.
124	124	92 4. Certain conduct of health care professionals permitted.
125	125	93 A health care professional may engage in the following conduct, so long as it is
126	126	94consistent with legal and professional standards; it does not adversely affect the physical or
127	127	95mental health or condition of an individual; it does not violate subdivision two or three of this
128	128	96section; and it is not otherwise unlawful:
129	129	97 (a) participate in or aid the investigation, prosecution, or defense of a criminal,
130	130	98administrative or civil matter;
131	131	99 (b) participate in acts to restrain or temporarily alter the physical or mental activity of a
132	132	100prisoner, where necessary for the physical or mental health or safety of the prisoner or for the
133	133	101safety of other prisoners, or persons directly caring for, guarding or confining the prisoner;
134	134	102 (c) conduct human subject research in accordance with all safeguards for human subjects
135	135	103required by Massachusetts, federal and international law, including but not limited to the
136	136	104informed consent of the subject and institutional review board approval;
137	137	105 (d) conduct training related to the non-abusive interrogation of prisoners solely for one or
138	138	106more of the following purposes, provided that such training is not specific to ongoing or
139	139	107anticipated interrogations:
140	140	108 (i) assessing a physical or mental illness or condition of a person subject to interrogation; 7 of 8
141	141	109 (ii) assessing the possible physical and mental effects of particular techniques and
142	142	110conditions of interrogation; and
143	143	111 (iii) developing effective, non-abusive interrogation strategies.
144	144	112 5. Duty to report.
145	145	113 A health care professional who has reasonable grounds, based on more information than
146	146	114is publicly available, to believe that torture, abusive treatment or conduct in violation of this
147	147	115section has occurred, is ongoing, or will take place in the future shall immediately report such
148	148	116conduct to:
149	149	117 (a) a government agency that the health care professional reasonably believes has legal
150	150	118authority to investigate, prevent or punish the continuation of torture or abusive treatment of a
151	151	119prisoner or conduct in violation of this section and is reasonably likely to attempt to do so; and
152	152	120 (b) in the case of an alleged violation by a health care professional licensed under the
153	153	121laws of Massachusetts, the appropriate licensing authority.
154	154	122 6. Knowledge.
155	155	123 It shall be a violation of this section if the health care professional knew or reasonably
156	156	124should have known his or her conduct is of the kind prohibited, and regardless of whether he or
157	157	125she is acting in his or her professional capacity. If a health care professional is denied access to
158	158	126the information necessary to ascertain whether torture or abusive treatment has occurred, is
159	159	127occurring or will occur, the health care professional must presume that the prisoner is at risk of
160	160	128torture or abusive treatment.
161	161	129 7. Mitigation. 8 of 8
162	162	130 The following may be considered in full or partial mitigation of a violation of this section
163	163	131by the health care professional:
164	164	132 (a) compliance with subsection four of this section; or
165	165	133 (b) cooperation in good faith with an investigation of a violation of this section.
166	166	134 8. Applicability.
167	167	135 This section shall apply without regard to whether the proscribed conduct takes place
168	168	136within or outside of the commonwealth of Massachusetts; whether it is committed by a
169	169	137governmental or non-governmental entity, official, or actor; or whether it is committed under
170	170	138actual or asserted color of law.
171	171	139 9. Scope of practice not expanded.
172	172	140 This section shall not be construed to expand the lawful scope of practice of any health
173	173	141care professional.
174	174	142 SECTION 2. The introduction or enactment of this act shall not be construed to mean that
175	175	143the conduct proscribed herein does not already violate state law or constitute professional
176	176	144misconduct.