Bill Text: FL S1284 | 2024 | Regular Session | Introduced


Bill Title: Health Care for Inmates

Spectrum: Partisan Bill (Republican 1-0)

Status: (Failed) 2024-03-08 - Died in Fiscal Policy [S1284 Detail]

Download: Florida-2024-S1284-Introduced.html
       Florida Senate - 2024                                    SB 1284
       
       
        
       By Senator Martin
       
       
       
       
       
       33-00971A-24                                          20241284__
    1                        A bill to be entitled                      
    2         An act relating to health care for inmates; amending
    3         s. 945.41, F.S.; revising and providing legislative
    4         intent; providing construction; providing for
    5         individual dignity and treatment; providing for
    6         express and informed consent and emergency medical
    7         treatment; amending s. 945.42, F.S.; defining,
    8         revising, and deleting terms; amending s. 945.43,
    9         F.S.; substantially rewording provisions concerning
   10         involuntary examinations of inmates and providing
   11         requirements therefor; amending s. 945.44, F.S.;
   12         substantially rewording provisions relating to
   13         placement and treatment of an inmate in a mental
   14         health treatment facility and providing requirements
   15         therefor; repealing s. 945.45, F.S., relating to
   16         continued placement of inmates in mental health
   17         treatment facilities; amending s. 945.46, F.S.;
   18         providing requirements for filing petitions for
   19         involuntary inpatient placement for certain inmates;
   20         authorizing the court to order alternative means and
   21         venues for certain hearings; requiring, rather than
   22         authorizing, inmates to be transported to the nearest
   23         receiving facility in certain circumstances; amending
   24         s. 945.47, F.S.; specifying purposes for which an
   25         inmate’s mental health treatment records may be
   26         provided to the Florida Commission on Offender Review
   27         and the Department of Children and Families;
   28         authorizing such records to be provided to certain
   29         facilities upon request; amending s. 945.48, F.S.;
   30         substantially rewording provisions relating to
   31         emergency treatment orders and use of force and
   32         providing requirements therefor; providing
   33         requirements for emergency and psychotropic
   34         medications and use of force; creating s. 945.485,
   35         F.S.; providing legislative findings; providing
   36         requirements for management and treatment for self
   37         injurious behaviors; requiring facility wardens to
   38         consult with an inmate’s treating physician in certain
   39         circumstances and make certain determinations;
   40         providing for petitions to compel an inmate to submit
   41         to medical treatment in certain circumstances;
   42         providing construction; amending s. 945.49, F.S.;
   43         deleting a requirement that the Department of
   44         Corrections adopt certain rules in cooperation with
   45         the Mental Health Program Office of the Department of
   46         Children and Families; creating s. 945.6042, F.S.;
   47         providing definitions; providing legislative findings
   48         and intent; providing requirements for inmate
   49         capacity, health care advance directives, and proxies;
   50         authorizing use of force on incapacitated inmates in
   51         certain circumstances; providing immunity from
   52         liability for certain persons in certain
   53         circumstances; providing an effective date.
   54          
   55  Be It Enacted by the Legislature of the State of Florida:
   56  
   57         Section 1. Section 945.41, Florida Statutes, is amended to
   58  read:
   59         945.41 Mental health treatment for inmates; legislative
   60  intent of ss. 945.40-945.49.—
   61         (1)INTENT.—It is the intent of the Legislature that:
   62         (a)mentally ill Inmates in the custody of the department
   63  who have a mental illness of Corrections receive an evaluation
   64  and appropriate treatment for their mental illness through a
   65  continuum of outpatient and inpatient mental health treatment
   66  and services.
   67         (b)The department is authorized to purchase treatment
   68  materials and equipment to support inmate rehabilitation; to
   69  ameliorate disabling mental symptoms associated with impairment
   70  in behavioral functioning, sensory and motor skills, and impulse
   71  control; and to improve adaptive coping skills consistent with
   72  the department’s jurisdiction as defined in s. 945.025.
   73         (c)Sections 945.40-945.49 do not supplement, amend, or
   74  change the responsibilities of the Department of Children and
   75  Families pursuant to chapter 916, the Forensic Client Services
   76  Act, which governs forensic services for persons who are
   77  incompetent to proceed as defined in s. 916.106.
   78         (2)INDIVIDUAL DIGNITY AND TREATMENT.—
   79         (a)An inmate in the custody of the department shall be
   80  offered treatment that is suited to his or her needs as
   81  determined by health care staff and that is provided in a humane
   82  psychological environment. Such treatment shall be administered
   83  skillfully, safely, and humanely with respect for the inmate’s
   84  dignity and personal integrity.
   85         (b)The department shall provide mental health treatment
   86  and services to inmates and may contract with any entities,
   87  persons, or agencies qualified to provide such treatment and
   88  services.
   89         (c)Inmates receiving mental health treatment and services
   90  shall be offered the opportunity to participate in the
   91  development of a written individualized treatment plan and
   92  provided a copy of such plan before its implementation. It is
   93  further the intent of the Legislature that:
   94         (d)(1) Inmates in the custody of the department who have
   95  mental illnesses that require hospitalization and intensive
   96  mental health psychiatric inpatient treatment and services or
   97  care shall be offered receive appropriate treatment or care in
   98  an inpatient setting Department of Corrections mental health
   99  treatment facilities designated for that purpose. Inmates who
  100  have mental illnesses that require intensive hospitalization
  101  level mental health inpatient treatment and services shall be
  102  transferred to a department mental health treatment facility
  103  designated for that purpose The Department of Corrections shall
  104  provide mental health services to inmates committed to it and
  105  may contract with any entities, persons, or agencies qualified
  106  to provide such services.
  107         (e)(2) Mental health treatment facilities shall be secure
  108  and adequately equipped and staffed for the provision of mental
  109  health treatment and services. Inmates shall be offered the
  110  least restrictive appropriate available treatment and services
  111  based on their assessed needs and best interests and consistent
  112  with improvement of their condition for facilitation of
  113  appropriate adjustment within the correctional environment and
  114  that, to the extent possible, such services be provided in the
  115  least restrictive manner consistent with optimum improvement of
  116  the inmate’s condition.
  117         (3)EXPRESS AND INFORMED CONSENT.—
  118         (a)A mentally competent inmate offered mental health
  119  treatment within the department shall give his or her express
  120  and informed consent for such treatment. Before giving such
  121  consent, the following information shall be provided and
  122  explained in plain language to the inmate:
  123         1.The proposed treatment.
  124         2.The purpose of the treatment.
  125         3.The common risks, benefits, and side effects of the
  126  treatment and the specific dosage range for a medication, if
  127  applicable.
  128         4.Alternative treatment modalities.
  129         5.The approximate length of treatment.
  130         6.The potential effects of stopping treatment.
  131         7.How treatment will be monitored.
  132         8.That any consent given for treatment may be revoked
  133  orally or in writing before or during the treatment period by
  134  the inmate or by a person legally authorized to make health care
  135  decisions on behalf of the inmate.
  136         (b)Inmates who are determined to be incompetent to consent
  137  to treatment shall receive treatment deemed to be necessary for
  138  their appropriate care and for the safety of the inmate or
  139  others in accordance with the procedures established in ss.
  140  945.40-945.49.
  141         (4)(3)PAROLE.—Inmates who are transferred to any facility
  142  for the purpose of mental health treatment and services shall be
  143  given consideration for parole and be eligible for release by
  144  reason of gain-time allowances as provided in s. 944.291 and
  145  release by expiration of sentence, consistent with guidelines
  146  established for that purpose by the department.
  147         (5)(4)YOUTHFUL OFFENDERS.—Any inmate sentenced as a
  148  youthful offender, or designated as a youthful offender by the
  149  department under chapter 958, who is transferred pursuant to
  150  this act to a mental health treatment facility shall be
  151  separated from other inmates, if necessary, as determined by the
  152  warden of the mental health treatment facility.
  153         (6)(5)TREATMENT FACILITIES.—The department may designate
  154  mental health treatment facilities for adult, youthful, and
  155  female offenders or may contract with other appropriate
  156  entities, persons, or agencies for such services.
  157         (7)EMERGENCY MEDICAL TREATMENT.—Notwithstanding any other
  158  provision of this section, when the express and informed consent
  159  of an inmate placed in a mental health treatment facility in
  160  accordance with s. 945.44 cannot be obtained or the inmate is
  161  incompetent to consent to treatment, the warden of a mental
  162  health treatment facility, or his or her designated
  163  representative, under the direction of the inmate’s attending
  164  physician, may authorize nonpsychiatric, emergency surgical
  165  treatment or other routine medical treatment if such treatment
  166  is deemed lifesaving or there is a situation threatening serious
  167  bodily harm to the inmate.
  168         Section 2. Section 945.42, Florida Statutes, is amended to
  169  read:
  170         945.42 Definitions; ss. 945.40-945.49.—As used in ss.
  171  945.40-945.49, the following terms shall have the meanings
  172  ascribed to them, unless the context shall clearly indicate
  173  otherwise:
  174         (1)“Chief” means the Chief of Mental Health Services of
  175  the Department of Corrections or his or her designee.
  176         (2)(1) “Court” means the circuit court.
  177         (3)(2) “Crisis stabilization care” means an inpatient a
  178  level of care that is less restrictive and intensive intense
  179  than care provided in a mental health treatment facility, that
  180  includes a broad range of evaluation and treatment and services
  181  provided within a secure and highly structured residential
  182  setting or locked residential setting, and that is intended for
  183  inmates who are experiencing acute psychological emotional
  184  distress and who cannot be adequately evaluated and treated in a
  185  transitional care unit or infirmary isolation management room.
  186  Such treatment and services are is also more intense than
  187  treatment and services provided in a transitional care unit and
  188  are is devoted principally toward rapid stabilization of acute
  189  symptoms and conditions.
  190         (4)(3) “Department” means the Department of Corrections.
  191         (5)“Express and informed consent” means consent
  192  voluntarily given in writing, by a competent inmate, after
  193  sufficient explanation and disclosure of the subject matter
  194  involved, to enable the inmate to make a knowing and willful
  195  decision without any element of force, fraud, deceit, duress, or
  196  other form of constraint or coercion.
  197         (6)“Gravely disabled” means a condition in which an
  198  inmate, as a result of a diagnosed mental illness, is:
  199         (a)In danger of serious physical harm resulting from the
  200  inmate’s failure to provide for his or her essential physical
  201  needs of food, clothing, hygiene, health, or safety without the
  202  assistance of others; or
  203         (b)Experiencing a substantial deterioration in behavioral
  204  functioning evidenced by the inmate’s unremitting decline in
  205  volitional control over his or her actions.
  206         (7)“Incompetent to consent to treatment” means a state in
  207  which an inmate’s judgment is so affected by mental illness that
  208  he or she lacks the capacity to make a well-reasoned, willful,
  209  and knowing decision concerning his or her medical or mental
  210  health treatment and services. The term is distinguished from
  211  the term “incompetent to proceed,” as defined in s. 916.106, and
  212  only refers to an inmate’s inability to provide express and
  213  informed consent for medical or mental health treatment and
  214  services.
  215         (4)“Director” means the Director for Mental Health
  216  Services of the Department of Corrections or his or her
  217  designee.
  218         (5)“In immediate need of care and treatment” means that an
  219  inmate is apparently mentally ill and is not able to be
  220  appropriately cared for in the institution where he or she is
  221  confined and that, but for being isolated in a more restrictive
  222  and secure housing environment, because of the apparent mental
  223  illness:
  224         (a)1.The inmate is demonstrating a refusal to care for
  225  himself or herself and without immediate treatment intervention
  226  is likely to continue to refuse to care for himself or herself,
  227  and such refusal poses an immediate, real, and present threat of
  228  substantial harm to his or her well-being; or
  229         2.There is an immediate, real, and present threat that the
  230  inmate will inflict serious bodily harm on himself or herself or
  231  another person, as evidenced by recent behavior involving
  232  causing, attempting, or threatening such harm;
  233         (b)The inmate is unable to determine for himself or
  234  herself whether placement is necessary; and
  235         (c)All available less restrictive treatment alternatives
  236  that would offer an opportunity for improvement of the inmate’s
  237  condition have been clinically determined to be inappropriate.
  238         (8)(6) “In need of care and treatment” means that an inmate
  239  has a mental illness for which inpatient services in a mental
  240  health treatment facility are necessary and that, but for being
  241  isolated in a more restrictive and secure housing environment,
  242  because of the mental illness:
  243         (a) But for being isolated in a more restrictive and secure
  244  housing environment:
  245         1. The inmate is demonstrating a refusal to care for
  246  himself or herself and without treatment is likely to continue
  247  to refuse to care for himself or herself, and such refusal poses
  248  a real and present threat of substantial harm to his or her
  249  well-being.; or
  250         2. There is a substantial likelihood that in the near
  251  future, without treatment, the inmate will inflict serious
  252  bodily harm on himself or herself or another person, as
  253  evidenced by recent behavior causing, attempting, or threatening
  254  such harm.;
  255         (b)The inmate is incompetent to consent to treatment and
  256  is unable or is refusing to provide express and informed consent
  257  to treatment.
  258         (c)(b) The inmate is unable to determine for himself or
  259  herself whether placement is necessary.; and
  260         (d)(c) All available less restrictive treatment
  261  alternatives that would offer an opportunity for improvement of
  262  the inmate’s condition have been clinically determined to be
  263  inappropriate.
  264         (9)(7) “Inmate” means any person committed to the custody
  265  of the department of Corrections.
  266         (10)“Involuntary examination” means a psychiatric
  267  examination performed at a mental health treatment facility to
  268  determine whether an inmate should be placed in the mental
  269  health treatment facility for inpatient mental health treatment
  270  and services.
  271         (11)“Likelihood of serious harm” means:
  272         (a)A substantial risk that the inmate will inflict serious
  273  physical harm upon his or her own person, as evidenced by
  274  threats or attempts to commit suicide or the actual infliction
  275  of serious physical harm on self;
  276         (b)A substantial risk that the inmate will inflict
  277  physical harm upon another person, as evidenced by behavior
  278  which has caused such harm or which places any person in
  279  reasonable fear of sustaining such harm; or
  280         (c)A reasonable degree of medical certainty that the
  281  inmate will suffer serious physical or mental harm as evidenced
  282  by the inmate’s recent behavior demonstrating an inability to
  283  refrain from engaging in self-harm behavior.
  284         (12)(8) “Mental health treatment facility” means any
  285  extended treatment or hospitalization-level unit within the
  286  corrections system which the Assistant Secretary for Health
  287  Services of the department specifically designates by rule to
  288  provide acute mental health psychiatric care and which may
  289  include involuntary treatment and therapeutic intervention in
  290  contrast to less intensive levels of care such as outpatient
  291  mental health care, transitional mental health care, or crisis
  292  stabilization care. The term does not include a forensic
  293  facility as defined in s. 916.106.
  294         (13)(9)“Mental illness” or “mentally ill” means an
  295  impairment of the mental or emotional processes that exercise
  296  conscious control of one’s actions or of the ability to perceive
  297  or understand reality, which impairment substantially interferes
  298  with the person’s ability to meet the ordinary demands of
  299  living. However, for the purposes of transferring an inmate to a
  300  mental health treatment facility, the term does not include a
  301  developmental disability as defined in s. 393.063, simple
  302  intoxication, or conditions manifested only by antisocial
  303  behavior or substance abuse addiction. However, an individual
  304  who is developmentally disabled may also have a mental illness.
  305         (14)(10) “Psychiatrist” means a medical practitioner
  306  licensed pursuant to chapter 458 or chapter 459 who has
  307  primarily diagnosed and treated nervous and mental disorders for
  308  a period of not less than 3 years inclusive of psychiatric
  309  residency.
  310         (15)(11) “Psychological professional” means a behavioral
  311  practitioner who has an approved doctoral degree in psychology
  312  as defined in s. 490.003(3)(b) s. 490.003(3) and is employed by
  313  the department or who is licensed as a psychologist pursuant to
  314  chapter 490.
  315         (16)(12) “Secretary” means the Secretary of Corrections.
  316         (17)(13) “Transitional mental health care” means a level of
  317  care that is more intensive than outpatient care, but less
  318  intensive than crisis stabilization care, and is characterized
  319  by the provision of traditional mental health treatment and
  320  services treatments such as group and individual therapy,
  321  activity therapy, recreational therapy, and psychotropic
  322  medications in the context of a secure, structured residential
  323  setting. Transitional mental health care is indicated for an
  324  inmate a person with chronic or residual symptomatology who does
  325  not require crisis stabilization care or acute mental health
  326  psychiatric care, but whose impairment in functioning
  327  nevertheless renders him or her incapable of adjusting
  328  satisfactorily within the general inmate population.
  329         (18)“Treatment” means psychotropic medications prescribed
  330  by a medical practitioner licensed pursuant to chapter 458 or
  331  chapter 459, including those laboratory tests and related
  332  medical procedures that are essential for the safe and effective
  333  administration of a psychotropic medication and psychological
  334  interventions and services such as group and individual
  335  psychotherapy, activity therapy, recreational therapy, and music
  336  therapy. The term does not include forensic services for inmate
  337  defendants who are incompetent to proceed as defined in s.
  338  916.106.
  339         (19)(14) “Warden” means the warden of a state corrections
  340  facility or his or her designee.
  341         Section 3. Section 945.43, Florida Statutes, is amended to
  342  read:
  343         (Substantial rewording of section. See
  344         s. 945.43, F.S., for present text.)
  345         945.43Involuntary examination.—
  346         (1)If there is reason to believe that an inmate has a
  347  mental illness and the inmate is in need of care and treatment,
  348  the inmate’s treating clinician may refer the inmate to a mental
  349  health treatment facility for an involuntary examination. Upon
  350  referral, the warden of the facility where the inmate is housed
  351  shall transfer the inmate to a mental health treatment facility.
  352         (2)Upon arrival to the mental health treatment facility,
  353  the inmate shall be examined by a psychiatrist and a second
  354  psychiatrist or psychological professional to determine whether
  355  the inmate is in need of care and treatment.
  356         (3)If, after the examination, the inmate is determined to
  357  be in need of care and treatment, the psychiatrist shall propose
  358  a recommended course of treatment that is essential to the care
  359  of the inmate and the warden shall initiate proceedings for
  360  placement of the inmate in the mental health treatment facility
  361  and for involuntary treatment of the inmate as specified in s.
  362  945.44. If the inmate is not in need of care and treatment, he
  363  or she shall be transferred out of the mental health treatment
  364  facility and provided with appropriate mental health services.
  365         (4)The involuntary examination and initiation of court
  366  proceedings for the placement and applicable involuntary
  367  treatment of the inmate in the mental health treatment facility
  368  shall be completed within 10 calendar days after arrival.
  369         (5)The inmate may remain in the mental health treatment
  370  facility pending a hearing after the timely filing of a petition
  371  as described in s. 945.44. Pending a hearing, necessary
  372  emergency treatment may be provided in the mental health
  373  treatment facility upon the written order of a physician as
  374  provided in s. 945.48.
  375         Section 4. Section 945.44, Florida Statutes, is amended to
  376  read:
  377         (Substantial rewording of section. See
  378         s. 945.44, F.S., for present text.)
  379         945.44Placement and treatment of an inmate in a mental
  380  health treatment facility.—
  381         (1)CRITERIA.—An inmate may be placed in a mental health
  382  treatment facility if he or she is mentally ill and is in need
  383  of care and treatment. Involuntary mental health treatment that
  384  is deemed to be essential for the appropriate care of the inmate
  385  and the safety of the inmate or others may be provided at the
  386  mental health treatment facility if the inmate is either gravely
  387  disabled or presents a likelihood of serious harm.
  388         (2)HEARING PROCEDURES FOR PETITIONS FOR PLACEMENT AND
  389  TREATMENT.—
  390         (a)An inmate may be placed and involuntarily treated in a
  391  mental health treatment facility after notice and hearing upon
  392  the recommendation of the warden of the facility where the
  393  inmate is confined. The warden of the institution where the
  394  mental health treatment facility is located shall petition the
  395  circuit court serving the county for an order authorizing the
  396  placement and treatment of the inmate. The petition must be
  397  supported by the expert opinion of at least one of the inmate’s
  398  treating psychiatrists.
  399         (b)The inmate shall be provided with a copy of the
  400  petition along with the proposed treatment, the basis for the
  401  proposed treatment, the names of the examining experts, and the
  402  date, time, and location of the hearing. After considering the
  403  public safety and security concerns presented by transporting
  404  the inmate or in conducting onsite hearings, the court may order
  405  that the hearing be conducted by electronic means or in person
  406  at the facility or at another location designated by the court.
  407  If the hearing is ordered by the court to be conducted at a
  408  location other than the facility, the department is authorized
  409  to transport the inmate to the location of the hearing.
  410         (c)The inmate may have an attorney represent him or her at
  411  the hearing, and, if the inmate is indigent, the court shall
  412  appoint the office of the public defender or private counsel
  413  pursuant to s. 27.40(1) to represent the inmate at the hearing.
  414  An attorney representing the inmate shall have access to the
  415  inmate and any records, including medical or mental health
  416  records, which are relevant to the representation of the inmate.
  417         (d)The hearing on the petition for involuntary placement
  418  and treatment shall be held as expeditiously as possible after
  419  the petition is filed, but no later than 14 calendar days after
  420  filing. The court may appoint a general or special magistrate to
  421  preside. The inmate may testify or not, as he or she chooses,
  422  may cross-examine witnesses testifying on behalf of the
  423  facility, and may present his or her own witnesses.
  424         (e)The court may waive the presence of the inmate at the
  425  hearing if the waiver is consistent with the best interests of
  426  the inmate and the inmate’s counsel does not object. One of the
  427  inmate’s physicians whose opinion supported the petition shall
  428  appear as a witness at the hearing.
  429         (f)If the court finds by clear and convincing evidence
  430  that the inmate is mentally ill and in need of care and
  431  treatment, the court shall order that he or she be placed in the
  432  mental health treatment facility for a period not to exceed 6
  433  months.
  434         (g)On the issue of whether the court should authorize
  435  treatment for which an inmate is unable or has refused to
  436  provide express and informed consent, the court shall determine
  437  by clear and convincing evidence whether:
  438         1.The inmate is mentally ill.
  439         2.The treatment is essential to the care of the inmate.
  440         3.The treatment is not experimental and does not present
  441  an unreasonable risk of serious, hazardous, or irreversible side
  442  effects.
  443         4.The inmate is gravely disabled or poses a likelihood of
  444  serious harm.
  445         5.The inmate is incompetent to consent to treatment.
  446         (h)The court must consider at least all of the following:
  447         1.The inmate’s expressed preference regarding treatment,
  448  if the inmate is able to express a preference.
  449         2.The probability of adverse side effects.
  450         3.The prognosis for the inmate without treatment.
  451         4.The prognosis for the inmate with treatment.
  452         (3)ORDERS FOR TREATMENT.—If the court finds by clear and
  453  convincing evidence that the inmate is mentally ill and that the
  454  inmate meets the criteria in subsection (2), the court shall
  455  order that the inmate be involuntarily treated for a period not
  456  to exceed 6 months, concurrent with an order for placement in
  457  the mental health treatment facility.
  458         (4)STATUS HEARINGS AND CONTINUING JURISDICTION.—An order
  459  authorizing involuntary placement and treatment shall allow such
  460  placement and treatment for a period not to exceed 6 months
  461  following the date of the order. Unless the court is notified in
  462  writing that the inmate has been discharged from the mental
  463  health treatment facility because he or she is no longer in need
  464  of care and treatment, has been transferred to another
  465  institution of the department, or has been released from the
  466  department’s custody, the warden shall, before the expiration of
  467  the initial order, file a notice with the court to set a status
  468  hearing for an order authorizing the continuation of placement
  469  and treatment for another period not to exceed 6 months. This
  470  procedure shall be repeated until the inmate is no longer in
  471  need of care and treatment. Placement and treatment may be
  472  continued pending a hearing after the timely filing of any
  473  petition.
  474         (5)COPIES OF ORDERS.—The court shall provide a copy of its
  475  order authorizing placement and treatment along with all
  476  supporting documentation relating to the inmate’s condition to
  477  the warden of the mental health treatment facility.
  478         (6)DISMISSAL OF PETITIONS.—If the court finds that
  479  criteria for placement and treatment are not satisfied, it shall
  480  dismiss the petition and the inmate shall be transferred out of
  481  the mental health treatment facility and provided with
  482  appropriate mental health services.
  483         Section 5. Section 945.45, Florida Statutes, is repealed.
  484         Section 6. Present subsection (3) of section 945.46,
  485  Florida Statutes, is redesignated as subsection (5) and amended,
  486  and a new subsection (3) and subsection (4) are added to that
  487  section, to read:
  488         945.46 Initiation of involuntary placement proceedings with
  489  respect to a mentally ill inmate scheduled for release.—
  490         (3)The warden shall file petitions for involuntary
  491  inpatient placement for inmates scheduled to be released in the
  492  court in the county where the inmate is located. Upon filing,
  493  the clerk of the court shall provide copies to the Department of
  494  Children and Families, the inmate, and the state attorney and
  495  public defender of the judicial circuit in which the inmate is
  496  located. A fee may not be charged for the filing of a petition
  497  under chapter 394. Within 1 court working day after the filing
  498  of a petition for involuntary inpatient placement, the court
  499  shall appoint the public defender to represent the inmate who is
  500  the subject of the petition, unless the inmate is otherwise
  501  represented by counsel. The clerk of the court shall immediately
  502  notify the public defender of such appointment. Any attorney
  503  representing the inmate shall have access to the inmate,
  504  witnesses, and records relevant to the presentation of the
  505  patient’s case and shall represent the interests of the inmate,
  506  regardless of the source of payment to the attorney. The state
  507  attorney for the circuit in which the inmate is located shall
  508  represent the state, rather than the petitioning warden, as the
  509  real party in interest in the proceeding. The remainder of the
  510  proceedings shall be governed by chapter 394.
  511         (4)After considering the public safety and security
  512  concerns presented by transporting a mentally ill inmate to
  513  court, the court may order that the hearing be conducted by
  514  electronic means, at the facility in person, or at another
  515  location designated by the court. If the hearing is ordered by
  516  the court to be conducted at a location other than the facility,
  517  the department is authorized to transport the inmate to the
  518  location of the hearing.
  519         (5)(3) The department may transport an individual who is
  520  being released from its custody to a receiving or mental health
  521  treatment facility for involuntary examination or placement.
  522  Such transport shall be made to a facility that is specified by
  523  the Department of Children and Families as able to meet the
  524  specific needs of the individual. If the Department of Children
  525  and Families does not specify a facility, transport shall may be
  526  made to the nearest receiving facility.
  527         Section 7. Section 945.47, Florida Statutes, is amended to
  528  read:
  529         945.47 Discharge of inmate from mental health treatment.—
  530         (1) An inmate who has been placed in a mental health
  531  treatment facility transferred for the purpose of mental health
  532  treatment shall be discharged from treatment by the warden under
  533  the following conditions:
  534         (a) If the inmate is no longer in need of care and
  535  treatment, as defined in s. 945.42, he or she may be transferred
  536  out of the mental health treatment facility and provided with
  537  appropriate mental health services; or
  538         (b) If the inmate’s sentence expires during his or her
  539  treatment, but he or she is no longer in need of care and
  540  treatment as an inpatient, the inmate may be released with a
  541  recommendation for outpatient treatment, pursuant to the
  542  provisions of ss. 945.40-945.49.
  543         (2) At any time that an inmate who has received mental
  544  health treatment while in the custody of the department becomes
  545  eligible for release under supervision or upon end of sentence,
  546  a record of the inmate’s mental health treatment may be provided
  547  to the Florida Commission on Offender Review and to the
  548  Department of Children and Families to arrange postrelease
  549  aftercare placement and to prospective recipient inpatient
  550  health care or residential facilities upon request. The record
  551  shall include, at a minimum, a summary of the inmate’s
  552  diagnosis, length of stay in treatment, clinical history,
  553  prognosis, prescribed medication, treatment plan, and
  554  recommendations for aftercare services.
  555         Section 8. Section 945.48, Florida Statutes, is amended to
  556  read:
  557         (Substantial rewording of section. See
  558         s. 945.48, F.S., for present text.)
  559         945.48Emergency treatment orders and use of force.—
  560         (1)EMERGENCY MEDICATION.—The department is authorized to
  561  involuntarily administer psychotropic medication to an inmate on
  562  an emergency basis without following the procedure outlined in
  563  s. 945.43 only as specified in this section. An emergency
  564  treatment order for psychotropic medication may be provided to
  565  the inmate upon the written order of a physician licensed
  566  pursuant to chapter 458 or chapter 459 in an emergency not
  567  exceeding 72 hours, excluding weekends and legal holidays. An
  568  emergency exists when an inmate with a mental illness presents
  569  an immediate threat of:
  570         (a)Bodily harm to self or others; or
  571         (b)Extreme deterioration in behavioral functioning
  572  secondary to the mental illness.
  573         (2)PSYCHOTROPIC MEDICATION.—Psychotropic medication may be
  574  administered only when the medication constitutes an appropriate
  575  treatment for a mental illness and its symptoms and alternative
  576  treatments are not available or indicated, or would not be
  577  effective. If after the 72-hour period the inmate has not given
  578  express and informed consent to the medication initially
  579  refused, the inmate’s treating physician shall refer the inmate
  580  to a mental health treatment facility for an involuntary
  581  examination in accordance with the procedures described in s.
  582  945.43. Upon such referral, the warden shall, within 48 hours,
  583  excluding weekends and legal holidays, transfer the inmate to a
  584  mental health treatment facility. Upon transfer of the inmate
  585  for an involuntary examination, the emergency treatment order
  586  may be continued upon the written order of a physician as long
  587  as the physician has determined that the emergency continues to
  588  present a danger to the safety of the inmate or others and the
  589  criteria described in this subsection are satisfied. If
  590  psychotropic medication is still recommended after the
  591  emergency, it may only be administered after following the
  592  procedures outlined in s. 945.44.
  593         (3)USE OF FORCE.—An employee or agent of the department is
  594  authorized to apply physical force upon an inmate when and to
  595  the extent that it reasonably appears necessary to effectuate
  596  the treatment of an inmate as described in this section, for the
  597  application of psychiatric restraint, to effectuate clinically
  598  necessary hygiene, or pursuant to a valid court order issued
  599  under s. 945.44 or s. 945.485. The requirements of s. 944.35
  600  shall be followed when using force to effectuate such treatment,
  601  apply such restraint, or effectuate such hygiene.
  602         Section 9. Section 945.485, Florida Statutes, is created to
  603  read:
  604         945.485Management and treatment for self-injurious
  605  behaviors.—
  606         (1)The Legislature finds that nonsuicidal self-injurious
  607  behaviors in correctional institutions, or acts intended to
  608  cause bodily harm but not death, have increased in the
  609  correctional environment. Self-injurious behavior may include
  610  nonsuicidal self-injury or self-mutilation, such as cutting,
  611  reopening wounds, and ingesting or inserting foreign objects or
  612  dangerous instruments into the body. These behaviors pose a
  613  significant threat to inmates, staff, and, in many cases, the
  614  safe and secure operation of the correctional institution. In
  615  addition, self-injurious behaviors, coupled with repeated
  616  refusals to provide express and informed consent for medical
  617  treatment and care, are a significant challenge for correctional
  618  medical and mental health professionals, resulting in higher
  619  costs for medical services, and may result in inadvertent
  620  mortality in the incarcerated population.
  621         (2)In accordance with s. 945.6042, the Legislature finds
  622  that an inmate retains the fundamental right of self
  623  determination regarding decisions pertaining to his or her own
  624  health, including the right to choose or refuse medical
  625  treatment or life-saving medical procedures. However, the
  626  inmate’s right to privacy and decisionmaking regarding medical
  627  treatment may be outweighed by compelling state interests.
  628         (3)When an inmate is engaging in active or ongoing self
  629  injurious behavior and has refused to provide express and
  630  informed consent for treatment related to the self-injurious
  631  behavior, the warden of the facility where the inmate is housed
  632  shall consult with the inmate’s treating physician regarding the
  633  inmate’s medical and mental health status, current medical and
  634  mental health treatment needs, and competency to provide express
  635  and informed consent for treatment. The warden shall also
  636  determine whether the inmate’s self-injurious behavior presents
  637  a danger to the safety of department staff or other inmates or
  638  the security, internal order, or discipline of the institution.
  639         (a)If the inmate’s treating physician determines that the
  640  inmate has a mental illness and is incompetent to consent to
  641  treatment, the physician shall proceed in accordance with s.
  642  945.6042 for any necessary surgical or medical services. If the
  643  inmate is in need of care and treatment as defined in s. 945.42,
  644  the inmate shall be referred to a mental health treatment
  645  facility for an involuntary examination in accordance with s.
  646  945.44.
  647         (b)If the inmate is competent, refusing necessary surgical
  648  or medical treatment, and engaging in active or ongoing self
  649  injurious behavior that presents a threat to the safety of
  650  department staff or other inmates or the security, internal
  651  order, or discipline of the institution, the warden shall follow
  652  the procedure set forth in subsection (4).
  653         (4)(a)The warden, or his or her designated representative,
  654  shall, on behalf of the state, petition the circuit court of the
  655  county in which the inmate is residing or the county in which
  656  the inmate is hospitalized for an order compelling the inmate to
  657  submit to emergency surgical intervention or other medical
  658  services to the extent necessary to remedy the threat to the
  659  safety of staff or other inmates or the security, internal
  660  order, or discipline of the institution. The petition must be
  661  supported by the expert opinion of at least one of the inmate’s
  662  treating physicians and may be supported by other staff as
  663  necessary.
  664         (b)The inmate shall be provided with a copy of the
  665  petition along with the proposed intervention, the basis for the
  666  proposed intervention, the names of the testifying experts and
  667  witnesses, and the date, time, and location of the hearing.
  668  After considering the medical status of the inmate, public
  669  safety, and security concerns presented by transporting the
  670  inmate, the court may order that the hearing be conducted by
  671  electronic means or in person at the institution or at another
  672  location designated by the court. If the hearing is ordered by
  673  the court to be conducted at a location other than the
  674  institution, the department is authorized to transport the
  675  inmate to the location of the hearing.
  676         (c)The inmate may have an attorney represent him or her at
  677  the hearing, and, if the inmate is indigent, the court shall
  678  appoint the office of the public defender or private counsel
  679  pursuant to s. 27.40(1) to represent the inmate at the hearing.
  680  An attorney representing the inmate shall have access to the
  681  inmate and any records, including medical or mental health
  682  records, which are relevant to the representation of the inmate.
  683         (d)The hearing on the petition shall be held as
  684  expeditiously as possible after the petition is filed, but no
  685  later than 5 calendar days after filing. The court may appoint a
  686  general or special magistrate to preside. The inmate may testify
  687  or not, as he or she chooses, may cross-examine witnesses
  688  testifying on behalf of the institution, and may present his or
  689  her own witnesses.
  690         (e)The court may waive the presence of the inmate at the
  691  hearing if the waiver is consistent with the best interests of
  692  the inmate and the inmate’s counsel does not object.
  693         (f)The court shall determine whether the warden has
  694  established, by clear and convincing evidence, a compelling
  695  state interest sufficient to outweigh the inmate’s right to
  696  refuse treatment. The court shall consider all of the following:
  697         1.Preservation of the life of the inmate.
  698         2.Prevention of suicide.
  699         3.Protection of innocent third parties.
  700         4.Maintenance of the ethical integrity of the medical
  701  profession.
  702         5.Preservation of the security, internal order, or
  703  discipline of the institution.
  704         6.Rehabilitation of the inmate.
  705         7.Any other compelling state interest.
  706         (g)If the court determines that there are compelling state
  707  interests sufficient to override the inmate’s right to refuse
  708  treatment, the court shall enter an order authorizing emergency
  709  surgical intervention or other medical services, narrowly
  710  tailored and in the least intrusive manner possible, only as
  711  necessary to remedy the threat to the safety of third parties or
  712  the security, internal order, or discipline of the institution.
  713  Emergency surgical intervention or other medical services
  714  authorized by the court may be carried out at the institution or
  715  at a licensed hospital, as applicable.
  716         (5)This section does not repeal by implication any
  717  provision of s. 766.103, the Florida Medical Consent Law, or s.
  718  768.13, the Good Samaritan Act. For all purposes, the Florida
  719  Medical Consent Law and the Good Samaritan Act shall be
  720  considered an alternative to this section.
  721         Section 10. Subsection (2) of section 945.49, Florida
  722  Statutes, is amended to read:
  723         945.49 Operation and administration.—
  724         (2) RULES.—The department, in cooperation with the Mental
  725  Health Program Office of the Department of Children and
  726  Families, shall adopt rules necessary for administration of ss.
  727  945.40-945.49 in accordance with chapter 120.
  728         Section 11. Section 945.6042, Florida Statutes, is created
  729  to read:
  730         945.6042Inmate health care advance directives.—
  731         (1)DEFINITIONS.—The terms used in this section have the
  732  same meanings as in s. 765.101 unless otherwise specified in
  733  this section. For purposes of this section, the term:
  734         (a)“Health care facility” has the same meaning as in s.
  735  765.101 and includes any correctional institution or facility
  736  where health care is provided.
  737         (b)“Incapacity” or “incompetent” means an inmate is
  738  physically or mentally unable to communicate a willful and
  739  knowing health care decision.
  740         (c)“Informed consent” means consent voluntarily given by
  741  an inmate after a sufficient explanation and disclosure of the
  742  subject matter involved to enable the inmate to have a general
  743  understanding of the treatment or procedure and the medically
  744  acceptable alternatives, including the substantial risks and
  745  hazards inherent in the proposed treatment or procedures, and to
  746  make a knowing health care decision without coercion or undue
  747  influence.
  748         (d)“Inmate” means any person committed to the custody of
  749  the department.
  750         (e)“Ombudsman” means an individual designated and
  751  specifically trained by the department to identify conditions
  752  that may pose a threat to the rights, health, safety, and
  753  welfare of inmates in a health care facility and who may be
  754  appointed to serve as a proxy for an inmate who is physically or
  755  mentally unable to communicate a willful and knowing health care
  756  decision.
  757         (f)“Proxy” means a competent adult who has not been
  758  expressly designated to make health care decisions for a
  759  particular incapacitated inmate, but who, nevertheless, is
  760  authorized pursuant to s. 765.401 and as specified in this
  761  section to make health care decisions for such inmate.
  762         (g)“Proxy review team” means a team of at least five
  763  members, appointed by the Assistant Secretary for Health
  764  Services. The team shall be composed of, at a minimum, one
  765  physician licensed pursuant to chapter 458 or chapter 459, one
  766  psychologist licensed pursuant to chapter 490, one nurse
  767  licensed pursuant to chapter 464, and one department chaplain.
  768         (2)LEGISLATIVE FINDINGS AND INTENT.-
  769         (a)In accordance with chapter 765, the Legislature finds
  770  that an inmate retains the fundamental right of self
  771  determination regarding decisions pertaining to his or her own
  772  health, including the right to choose or refuse medical
  773  treatment. In accordance with chapter 765, this right is subject
  774  to certain institutional interests including the protection of
  775  human life, the preservation of ethical standards in the medical
  776  profession, and, for inmates committed to the custody of the
  777  department, the security and good order of the institutional
  778  setting.
  779         (b)To ensure that such right is not lost or diminished by
  780  virtue of later physical or mental incapacity, the Legislature
  781  intends that the procedures specified in chapter 765, and as
  782  modified in this section for the institutional health care
  783  setting, apply to incarcerated inmates. These procedures should
  784  be less expensive and less restrictive than guardianship and
  785  allow an inmate to plan for incapacity by executing a document
  786  or orally designating another person to direct the course of his
  787  or her health care or receive his or her health information, or
  788  both, upon his or her incapacity. These procedures permit a
  789  previously incapacitated inmate to exercise his or her full
  790  right to make health care decisions as soon as the capacity to
  791  make such decisions has been regained.
  792         (c)In order to ensure that the rights and intentions of an
  793  inmate are respected when the inmate is not able to participate
  794  actively in decisions concerning himself or herself, and to
  795  encourage communication among such inmate, his or her family,
  796  and his or her treating physicians, the Legislature declares
  797  that the laws of this state recognize the right of a competent
  798  incarcerated adult to make an advance directive instructing his
  799  or her physicians to provide, withhold, or withdraw life
  800  prolonging procedures or to designate another person to make the
  801  health care decision for him or her in the event that such
  802  incarcerated person should become incapacitated and unable to
  803  personally direct his or her health care. It is further the
  804  intent of the Legislature that the department provide the
  805  opportunity for inmates to make advance directives as specified
  806  in this section.
  807         (d)The Legislature further recognizes that incarcerated
  808  inmates may not avail themselves of the opportunity to make an
  809  advance directive or, because of incarceration, may not have a
  810  surrogate, as defined in s. 765.101, willing, able, or
  811  reasonably available to make health care decisions on his or her
  812  behalf. Additionally, because of incarceration, the individuals
  813  designated in s. 765.401 who are eligible to serve as an
  814  appointed proxy may not be reasonably available, willing, or
  815  competent to make health care decisions for the inmate in the
  816  event of incapacity. Thus, it is the intent of the Legislature
  817  that the department have an efficient process that is less
  818  expensive and less restrictive than guardianship for the
  819  appointment of a proxy to allow for the expedient delivery of
  820  necessary health care to an incarcerated inmate.
  821         (e)This section does not supersede the process for inmate
  822  involuntary mental health treatment in ss. 945.40-945.49.
  823         (3)CAPACITY OF INMATE; PROCEDURE.—
  824         (a)An inmate is presumed to be capable of making health
  825  care decisions for himself or herself unless he or she is
  826  determined to be incapacitated. When an inmate has
  827  decisionmaking capacity, the inmate’s wishes are controlling.
  828  Each physician or health care provider must clearly communicate
  829  the treatment plan and any change to the treatment plan before
  830  implementation of the plan or any change to the plan. Incapacity
  831  may not be inferred from an inmate’s involuntary hospitalization
  832  for mental illness or from his or her intellectual disability.
  833         (b)If an inmate’s capacity to make health care decisions
  834  for himself or herself or provide informed consent is in
  835  question, the inmate’s treating physician at the health care
  836  facility where the inmate is located shall evaluate the inmate’s
  837  capacity and, if the evaluating physician concludes that the
  838  inmate lacks capacity, enter that evaluation in the inmate’s
  839  medical record. If the evaluating physician has a question as to
  840  whether the inmate lacks capacity, another physician shall also
  841  evaluate the inmate’s capacity, and if the second physician
  842  finds that the inmate lacks the capacity to make health care
  843  decisions for himself or herself or provide informed consent,
  844  both physicians’ evaluations shall be entered in the inmate’s
  845  medical record.
  846         (c)If the inmate is found to be incapacitated and has
  847  designated a health care surrogate in accordance with chapter
  848  765, the institution’s or facility’s health care staff shall
  849  notify the surrogate and proceed as specified in chapter 765. If
  850  the incapacitated inmate has not designated a health care
  851  surrogate, the health care facility shall appoint a proxy to
  852  make health care decisions for the inmate as specified in this
  853  section.
  854         (d)A determination made pursuant to this section that an
  855  inmate lacks the capacity to make health care decisions for
  856  himself or herself may not be construed as a finding that an
  857  inmate lacks capacity for any other purpose.
  858         (4)HEALTH CARE ADVANCE DIRECTIVE; PROCEDURE.—
  859         (a)In accordance with chapter 765, the department shall
  860  offer inmates the opportunity to execute an advance directive as
  861  defined in s. 765.101.
  862         (b)The department shall provide to each inmate written
  863  information concerning advance directives and necessary forms to
  864  allow inmates to execute an advance directive. The department
  865  and its health care providers shall document in the inmate’s
  866  medical records whether the inmate has executed an advance
  867  directive. Neither the department nor its health care providers
  868  may require an inmate to execute an advance directive using the
  869  department’s forms. The inmate’s advance directive shall travel
  870  with the inmate within the department as part of the inmate’s
  871  medical record.
  872         (c)An advance directive may be amended or revoked at any
  873  time by a competent inmate by means of:
  874         1.A signed, dated writing of intent to amend or revoke;
  875         2.The physical cancellation or destruction of the advance
  876  directive by the inmate or by another person in the inmate’s
  877  presence and at the inmate’s direction;
  878         3.An oral expression of intent to amend or revoke; or
  879         4.A subsequently executed advance directive that is
  880  materially different from a previously executed advance
  881  directive.
  882         (5)PROXY.—
  883         (a)If an incapacitated inmate has not executed an advance
  884  directive, or designated a health care surrogate in accordance
  885  with the procedures specified in chapter 765 or the designated
  886  health care surrogate is no longer available to make health care
  887  decisions, health care decisions may be made for the inmate by
  888  any of the individuals specified in the priority order provided
  889  in s. 765.401(1)(a)-(g) as proxy. Documentation of the efforts
  890  to locate a proxy from the classes specified in s.
  891  765.401(1)(a)-(g) shall be recorded in the inmate’s medical
  892  file.
  893         (b)If there are no individuals as specified in s.
  894  765.401(1)(a)-(g) available, willing, or competent to act on
  895  behalf of the inmate, and the inmate is housed in a correctional
  896  institution or facility where health care is provided in a
  897  nonhospital setting, the warden of the institution where the
  898  inmate is housed, or the warden’s designee, shall consult with
  899  the Assistant Secretary for Health Services or his or her
  900  designee who shall appoint a department ombudsman to serve as
  901  the proxy. This appointment terminates when the inmate regains
  902  capacity or is no longer incarcerated in the custody of the
  903  department. In accordance with chapter 765 and as provided in
  904  this section, decisions to withhold or withdraw life-prolonging
  905  procedures will be reviewed by the department’s proxy review
  906  team for compliance with chapter 765 and the requirements of
  907  this section.
  908         (c)The ombudsman appointed to serve as the proxy is
  909  authorized to request the assistance of the treating physician
  910  and, upon request, a second physician not involved in the
  911  inmate’s care to assist the proxy in evaluating the inmate’s
  912  treatment.
  913         (d)In accordance with chapter 765, any health care
  914  decision made by any appointed proxy under this section must be
  915  based on the proxy’s informed consent and on the decision that
  916  the proxy reasonably believes the inmate would have made under
  917  the circumstances. If there is no indication of what decision
  918  the inmate would have made, the proxy may consider the inmate’s
  919  best interest in deciding that proposed treatments are to be
  920  withheld or that treatments currently in effect are to be
  921  withdrawn.
  922         (e)Before exercising the incapacitated inmate’s rights to
  923  select or decline health care, the proxy must comply with ss.
  924  765.205 and 765.305, except that any proxy’s decision to
  925  withhold or withdraw life-prolonging procedures must be
  926  supported by clear and convincing evidence that the decision
  927  would have been the one the inmate would have made had he or she
  928  been competent or, if there is no indication of what decision
  929  the inmate would have made, that the decision is in the inmate’s
  930  best interest.
  931         (f)Notwithstanding s. 456.057 and pursuant to s. 945.10
  932  and 45 C.F.R. part 164, subpart E, relevant protected health
  933  information and mental health and medical records of an
  934  incapacitated inmate may be disclosed to a proxy appointed to
  935  make health care decisions for an inmate.
  936         (6)USE OF FORCE.—In addition to s. 944.35(1), an employee
  937  of the department may apply reasonable physical force upon an
  938  incapacitated inmate to administer medical treatment only by or
  939  under the clinical supervision of a physician or his or her
  940  designee and only to carry out a health care decision made in
  941  accordance with this section and chapter 765.
  942         (7)IMMUNITY FROM LIABILITY.—A department health care
  943  provider, ombudsman, or other employee who acts under the
  944  direction of a health care provider as authorized in this
  945  section or chapter 765 is not subject to criminal prosecution or
  946  civil liability and may not be deemed to have engaged in
  947  unprofessional conduct as a result of carrying out a health care
  948  decision made in accordance with this section or chapter 765 on
  949  an inmate’s behalf.
  950         Section 12. This act shall take effect July 1, 2024.

feedback