The Florida Senate

916.107  Rights of forensic clients.--

(1)  RIGHT TO INDIVIDUAL DIGNITY.--

(a)  The policy of the state is that the individual dignity of the patient shall be respected at all times and upon all occasions, including any occasion when the patient is detained, transported, or treated. Persons who are mentally ill or mentally retarded and who are charged with, or who have been convicted of, committing criminal acts shall receive appropriate treatment. In a criminal case involving a person who has been adjudicated incompetent to stand trial or not guilty by reason of insanity, or who has otherwise been found by the court to meet the criteria for involuntary commitment, a jail may be used as an emergency facility for up to 15 days from the date the department receives a completed copy of the commitment order containing the documentation required by Rules 3.212 and 3.217, Florida Rules of Criminal Procedure. In every case in which a mentally ill or mentally retarded person is held in a jail, evaluation and treatment shall be provided in the jail by the local receiving facility, the patient's physician or clinical psychologist, or any other mental health program available to provide such treatment until the person is transferred to the custody of the department.

(b)  Mentally ill or mentally retarded persons who are committed to the department pursuant to this chapter and who are initially placed in, or subsequently transferred to, a civil mental health treatment facility shall have the same rights as other persons committed to civil facilities as described in part I of chapter 394, as long as they remain in a civil facility.

(2)  RIGHT TO TREATMENT.--

(a)  The policy of the state is that the department shall not deny treatment of mental illness or mental retardation to any client and that no services shall be delayed at a forensic mental health treatment facility because the client is unable to pay. However, every reasonable effort to collect appropriate reimbursement for the cost of providing mental health services to persons able to pay for the services, including reimbursement from insurance or other third-party payments, shall be made by forensic facilities providing services pursuant to this chapter and in accordance with the provisions of s. 402.33.

(b)  Each client who is a patient at a forensic facility shall be given, at the time of admission and at regular intervals thereafter, a physical examination, which shall include screening for communicable disease by a health practitioner authorized by law to give such screenings and examinations.

(c)  Every patient committed pursuant to this act shall be afforded the opportunity to participate in activities designed to enhance self-image and the beneficial effects of other treatments, as determined by the facility.

(d)  Not more than 30 days after admission, each patient shall have and receive, in writing, an individualized treatment plan which the patient has had an opportunity to assist in preparing.

(3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--

(a)  A person committed to the department pursuant to this act shall be asked to give express and informed written consent for treatment. "Express and informed consent" or "consent" means consent given voluntarily in writing after a conscientious and sufficient explanation and disclosure of the purpose of the proposed treatment, the common side effects of the treatment, if any, the expected duration of the treatment, and any alternative treatment available. If a patient in a forensic facility refuses such treatment as is deemed necessary by the patient's multidisciplinary treatment team at the forensic facility for the appropriate care of the patient and the safety of the patient or others, such treatment may be provided under the following circumstances:

1.  In an emergency situation in which there is immediate danger to the safety of the patient or others, such treatment may be provided upon the written order of a physician for a period not to exceed 48 hours, excluding weekends and legal holidays. If, after the 48-hour period, the patient has not given express and informed consent to the treatment initially refused, the administrator of the forensic facility shall, within 48 hours, excluding weekends and legal holidays, petition the committing court or the circuit court serving the county in which the facility is located, at the option of the facility administrator, for an order authorizing the continued treatment of the patient. In the interim, treatment may be continued without the consent of the patient upon the continued written order of a physician who has determined that the emergency situation continues to present a danger to the safety of the patient or others.

2.  In a situation other than an emergency situation, the administrator of the forensic facility shall petition the court for an order authorizing the treatment of the patient. The order shall allow such treatment for a period not to exceed 90 days from the date of the entry of the order. Unless the court is notified in writing that the patient has provided express and informed consent in writing or that the patient has been discharged by the committing court, the administrator shall, prior to the expiration of the initial 90-day order, petition the court for an order authorizing the continuation of treatment for another 90-day period. This procedure shall be repeated until the patient provides consent or is discharged by the committing court.

3.  At the hearing on the issue of whether the court should enter an order authorizing treatment for which a patient has refused to give express and informed consent, the court shall determine by clear and convincing evidence that the patient is mentally ill or mentally retarded as defined in this chapter, that the treatment not consented to is essential to the care of the patient, and that the treatment not consented to is not experimental and does not present an unreasonable risk of serious, hazardous, or irreversible side effects. In arriving at the substitute judgment decision, the court must consider at least the following factors:

a.  The patient's expressed preference regarding treatment;

b.  The probability of adverse side effects;

c.  The prognosis without treatment; and

d.  The prognosis with treatment.

The hearing shall be as convenient to the patient as may be consistent with orderly procedure and shall be conducted in physical settings not likely to be injurious to the patient's condition. The court may appoint a master to preside at the hearing. The patient or the patient's guardian, and his or her representative, shall be provided with a copy of the petition and the date, time, and location of the hearing. The patient has the right to have an attorney represent him or her at the hearing, and, if the patient is indigent, the court shall appoint the office of the public defender to represent the patient at the hearing. The patient may testify or not, as he or she chooses, and has the right to cross-examine witnesses testifying on behalf of the facility and may present his or her own witnesses.

(b)  In addition to the provisions of paragraph (a), in the case of surgical procedures requiring the use of a general anesthetic or electroconvulsive treatment or nonpsychiatric medical procedures, and prior to performing the procedure, written permission shall be obtained from the patient, if he or she is legally competent, from the parent or guardian of a minor patient, or from the guardian of an incompetent patient. The administrator of the forensic facility or his or her designated representative may, with the concurrence of the patient's attending physician, authorize emergency surgical or nonpsychiatric medical treatment if such treatment is deemed lifesaving or for a situation threatening serious bodily harm to the patient and permission of the patient or the patient's guardian cannot be obtained.

(4)  QUALITY OF TREATMENT.--Each patient committed pursuant to this chapter shall receive treatment suited to his or her needs, which shall be administered skillfully, safely, and humanely with full respect for the patient's dignity and personal integrity. Each patient shall receive such medical, vocational, social, educational, and rehabilitative services as the patient's condition requires to bring about an early return to his or her community. In order to achieve this goal, the department is directed to coordinate its forensic mental health and mental retardation programs with all other programs of the department and other appropriate state agencies.

(5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--

(a)  Each patient committed pursuant to the provisions of this chapter has the right to communicate freely and privately with persons outside the facility unless it is determined that such communication is likely to be harmful to the patient or others.

(b)  Each patient committed under the provisions of this chapter shall be allowed to receive, send, and mail sealed, unopened correspondence; and no patient's incoming or outgoing correspondence shall be opened, delayed, held, or censored by the facility unless there is reason to believe that it contains items or substances which may be harmful to the patient or others, in which case the administrator may direct reasonable examination of such mail and may regulate the disposition of such items or substances. "Correspondence" shall not include parcels or packages. Forensic facilities are authorized to promulgate reasonable rules to provide for the inspection of parcels or packages and for the removal of contraband items for health or security reasons prior to the contents being given to a resident.

(c)  If a patient's right to communicate is restricted by the administrator, written notice of such restriction shall be served on the patient or the patient's guardian or representatives, and such restriction shall be recorded on the patient's clinical record with the reasons therefor. The restriction of a patient's right to communicate shall be reviewed at least every 90 days.

(d)  Each forensic facility shall establish reasonable rules governing visitors, visiting hours, and the use of telephones by patients in the least restrictive possible manner.

(e)  Each patient committed pursuant to this chapter shall have ready access to a telephone in order to report an alleged abuse. The facility or program staff shall verbally and in writing inform each patient of the procedure for reporting abuse. A written copy of that procedure, including the telephone number of the abuse registry and reporting forms, shall be posted in plain view.

(f)  The department shall adopt rules providing a procedure for reporting abuse. Facility staff shall be required, as a condition of employment, to become familiar with the procedures for the reporting of abuse.

(6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF PATIENTS.--A patient's right to his or her clothing and personal effects shall be respected. The department by rule, or the administrator of any facility by written institutional policy, may declare certain items to be hazardous to the welfare of patients or others or to the operation of the facility. Such items may be restricted from introduction into the facility or may be restricted from being in a patient's possession. The administrator may take temporary custody of such effects when required for medical and safety reasons. Custody of such personal effects shall be recorded in the patient's clinical record.

(7)  VOTING IN PUBLIC ELECTIONS.--A patient committed pursuant to this chapter who is eligible to vote according to the laws of the state has the right to vote in the primary and general elections. The department shall establish rules to enable patients to obtain voter registration forms, applications for absentee ballots, and absentee ballots.

(8)  CLINICAL RECORD; CONFIDENTIALITY.--A clinical record for each patient shall be maintained. The record shall include data pertaining to admission and such other information as may be required under rules of the department. Unless waived by express and informed consent by the patient or the patient's legal guardian or, if the patient is deceased, by the patient's personal representative or by that family member who stands next in line of intestate succession or except as otherwise provided in this subsection, the clinical record is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

(a)  Such clinical record may be released:

1.  To such persons and agencies as are designated by the patient or the patient's legal guardian.

2.  To persons authorized by order of court.

3.  To a qualified researcher, as defined by rule; a staff member of the facility; or an employee of the department when the administrator of the facility or secretary of the department deems it necessary for treatment of the patient, maintenance of adequate records, compilation of treatment data, or evaluation of programs.

4.  For statistical and research purposes if the information is abstracted in such a way as to protect the identity of individuals.

5.  If a patient receiving services pursuant to this chapter has declared an intention to harm other persons; however, only the declaration may be disclosed.

6.  To the parent of a mentally ill or mentally retarded person who is committed to, or is being treated by, a forensic mental health facility or program when such information is limited to that person's treatment plan and current physical and mental condition. Release of such information shall be in accordance with the code of ethics of the profession involved.

(b)  Notwithstanding other provisions of this subsection, the department may request or receive from or provide to any of the following entities client information to facilitate treatment, rehabilitation, and continuity of care of any forensic client:

1.  The Social Security Administration and the United States Department of Veterans Affairs;

2.  Law enforcement agencies, state attorneys, public defenders or other attorneys defending the patient, and judges in regard to the patient's status;

3.  Jail personnel in the jail to which a client may be returned; and

4.  Community agencies and others expected to provide followup care to the patient upon his or her return to the community.

(c)  The department may provide notice to any patient's next of kin or first representative regarding any serious medical illness or the death of the patient.

(d)

1.  Any law enforcement agency, treatment facility, or other governmental agency that receives information pursuant to this subsection shall maintain the confidentiality of such information except as otherwise provided herein.

2.  Any agency or private practitioner who acts in good faith in releasing information pursuant to this subsection is not subject to civil or criminal liability for such release.

(9)  HABEAS CORPUS.--

(a)  At any time, and without notice, a person detained by a facility, or a relative, friend, guardian, representative, or attorney on behalf of such person, may petition for a writ of habeas corpus to question the cause and legality of such detention and request that the circuit court issue a writ for release. Each patient committed pursuant to this chapter shall receive a written notice of the right to petition for a writ of habeas corpus.

(b)  A patient or the patient's guardian or representatives may file a petition in the circuit court in the county where the patient is committed alleging that the patient is being unjustly denied a right or privilege granted herein or that a procedure authorized herein is being abused. Upon the filing of such a petition, the circuit court shall have the authority to conduct a judicial inquiry and to issue any appropriate order to correct an abuse of the provisions of this chapter.

(10)  TRANSPORTATION.--

(a)  The sheriff shall consult with the governing board of the county as to the most appropriate and cost-effective means of transportation for forensic clients committed for treatment. Such consultation shall include, but is not limited to, consideration of the cost to the county of transportation performed by sheriff's department personnel as opposed to transportation performed by other means and, if sheriff's department personnel are to be used for transportation, the effect such use will have, if any, on service delivery levels of the sheriff's road patrol. After such consultation with the governing board of the county, the sheriff shall determine the most appropriate and cost-effective means of transportation for forensic clients committed for treatment.

(b)  The governing board of each county is authorized to contract with private transport companies for the transportation of such patients to and from a forensic facility.

(c)  Any company that transports a patient pursuant to this section is considered an independent contractor and is solely liable for the safe and dignified transportation of the patient. Any transport company that contracts with the governing board of a county for the transport of patients as provided for in this section shall be insured and provide no less than $100,000 in liability insurance with respect to the transportation of the patients.

(d)  Any company that contracts with a governing board of a county to transport patients shall comply with the applicable rules of the department to ensure the safety and dignity of the patients.

(11)  LIABILITY FOR VIOLATIONS.--Any person who violates or abuses any rights or privileges of a patient provided by this act is liable for damages as determined by law. Any person who acts in good faith in complying with the provisions of this act is immune from civil or criminal liability for his or her actions in connection with the admission, diagnosis, treatment, or discharge of a patient to or from a facility. However, this subsection does not relieve any person from liability if the person is negligent.

History.--s. 32, ch. 85-167; s. 73, ch. 87-226; s. 56, ch. 93-268; s. 2, ch. 94-258; s. 51, ch. 96-169; s. 436, ch. 96-406; s. 1835, ch. 97-102.