A.3079 – Prohibiting participation in torture and improper treatment of prisoners
May 12, 2017
To: Members of the NYS Assembly Codes Committee:
RE: A.3079– 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 Medical Society of the State of New York is writing to you relative to the above referenced legislation which would bar health care professionals from participating in torture or improper treatment of prisoners. The bill also provides 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 professional responsible care and treatment.
The Medical Society of the State of New York and the American Medical Association believe that any involvement by physicians in torture is incompatible with the physician’s role of healer. There are core ethical principles under the Code of Medical Ethics that both organizations have adopted. After almost 18 months of study of this issue by the BioEthics Committee, the Medical Society’s Council adopted on Nov. 19, 2009, MSSNY POLICY 95.973 Physician Involvement in Interrogation and in Torture. (copy attached) The statement, says in part, that:
“Physicians who engage in any activity that relies on their medical knowledge and skills, regardless of jurisdiction or location, must continue to uphold principles of medical ethics. Physicians must not engage, directly or indirectly, in torture or in interrogations. Questions about the propriety of physician participation in interrogations and in the development of interrogation strategies may be addressed by balancing obligations to individuals with obligations to protect the public interest, e.g. from terrorist attack. Precedent for this may be found in public health ethics in which physicians’ expertise inform guidelines, policies, and procedure that lead to the imposition of relatively minor hardships on individuals for public welfare. However, when a physician is directly and clinically involved with an individual, the physician’s obligations to the individual take precedence over public interests”.
The Medical Society of the State of New York at its 2015 House of Delegates unanimously reaffirmed MSSNY Policy 95.973 on this matter.
The Medical Society, supports the basic intent of the bill, i.e. that physicians should not conduct, support, aide, abet, or condone the torture of prisoners. However, we remain troubled by the issue of whether this legislation is necessary since torture is already a federal crime. Furthermore, current statements in the Geneva Convention, Military Manual of Conduct and from professional societies (e.g. AMA) already provide an explicit basis for refusal to participate in torture. It is not clear that a central purpose of the legislation – i.e., to provide physicians with an additional legal basis and therefore more powerful platform to refuse to participate in torture will in actuality have such an effect in circumstances in which a commanding officer directs a physician to participate in torture. The bill provides no practical recourse for physicians who are intimidated by military superiors into withholding reports of torture. There are inherent challenges and barriers to evidentiary discovery for accusations of torture in the military and prisons. Physicians may be poorly positioned to defend themselves since, ostensibly, many of these incidents would occur overseas. Physicians would have to overcome claims of national security and national defense and would have to operate in domains in which civil authority will be limited.
At this time, the Medical Society of the State of New York and the American Medical Association is supportive of continued Congressional inquiries into interrogation techniques used by the military as well as the role of physician and non-physician health care providers. We believe that this is the proper venue for this issue.
We will continue to work with you on this most important matter as it continues to be considered and examined.
Morris Auster, Esq.
Pat Clancy, VP