Florida Senate - 2021                                    SB 1736
       
       
        
       By Senator Ausley
       
       
       
       
       
       3-01240A-21                                           20211736__
    1                        A bill to be entitled                      
    2         An act relating to mental health treatment and
    3         examinations; amending s. 394.459, F.S.; specifying
    4         additional persons who may consent to mental health
    5         treatment in certain circumstances; revising the
    6         frequency with which the restriction on a patient’s
    7         right to communicate or receive visitors must be
    8         reviewed; amending s. 394.4599, F.S.; authorizing a
    9         receiving facility to seek assistance from a mobile
   10         crisis response team for certain purposes; amending s.
   11         394.462, F.S.; authorizing counties to use mobile
   12         crisis response teams for certain purposes; deleting a
   13         requirement that a receiving facility provide
   14         examination and treatment to a felony arrestee who
   15         appears to meet the criteria for involuntary
   16         examination or placement at the place where he or she
   17         is held; amending s. 394.463, F.S.; revising criteria
   18         for involuntary examination; authorizing, rather than
   19         requiring, an officer to take a person who appears to
   20         meet the criteria for involuntary examination into
   21         custody and deliver the person to a receiving
   22         facility; revising standards for the use of physical
   23         force and restraint in taking custody of persons
   24         subject to ex parte orders; revising provisions on
   25         return of firearms to persons after confiscation;
   26         providing for release of certain persons to behavioral
   27         health diversion programs; amending s. 394.4655, F.S.;
   28         revising who may testify as to a patient’s history in
   29         considering criteria for involuntary outpatient
   30         services; amending s. 394.4573, F.S.; specifying that
   31         recovery support services include access to certified
   32         peer specialists; amending s. 394.496, F.S.; deleting
   33         physicians from the list of professionals required to
   34         develop service plans; amending s. 951.23, F.S.;
   35         defining the term “inmate”; specifying rights to
   36         treatment of persons in county and municipal detention
   37         facilities; providing for such treatment; providing an
   38         effective date.
   39          
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Paragraph (a) of subsection (3) and paragraph
   43  (c) of subsection (5) of section 394.459, Florida Statutes, are
   44  amended to read:
   45         394.459 Rights of patients.—
   46         (3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.—
   47         (a)1. Each patient entering treatment shall be asked to
   48  give express and informed consent for admission or treatment. If
   49  the patient has been adjudicated incapacitated or found to be
   50  incompetent to consent to treatment, express and informed
   51  consent to treatment shall be sought instead from the patient’s
   52  guardian, or guardian advocate, health care surrogate,
   53  representative, or proxy. If the patient is a minor, express and
   54  informed consent for admission or treatment shall also be
   55  requested from the patient’s guardian. Express and informed
   56  consent for admission or treatment of a patient under 18 years
   57  of age shall be required from the patient’s guardian, unless the
   58  minor is seeking outpatient crisis intervention services under
   59  s. 394.4784. Express and informed consent for admission or
   60  treatment given by a patient who is under 18 years of age shall
   61  not be a condition of admission when the patient’s guardian
   62  gives express and informed consent for the patient’s admission
   63  pursuant to s. 394.463 or s. 394.467.
   64         2. Before giving express and informed consent, the
   65  following information shall be provided and explained in plain
   66  language to the patient;, or to the patient’s guardian if the
   67  patient is 18 years of age or older and has been adjudicated
   68  incapacitated;, or to the patient’s guardian advocate if the
   69  patient has been found to be incompetent to consent to
   70  treatment; or to the patient’s health care surrogate,
   71  representative, or proxy, or to both the patient and the
   72  guardian if the patient is a minor:
   73         a. The reason for admission or treatment.;
   74         b. The proposed treatment.;
   75         c. The purpose of the treatment to be provided.;
   76         d. The common risks, benefits, and side effects thereof.;
   77         e. The specific dosage range for the medication, when
   78  applicable.;
   79         f. Alternative treatment modalities.;
   80         g. The approximate length of care.;
   81         h. The potential effects of stopping treatment.;
   82         i. How treatment will be monitored.; and
   83         j. That any consent given for treatment may be revoked
   84  orally or in writing before or during the treatment period by
   85  the patient or by a person who is legally authorized to make
   86  health care decisions on behalf of the patient.
   87         (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.—
   88         (c) Each facility must permit immediate access to any
   89  patient, subject to the patient’s right to deny or withdraw
   90  consent at any time, by the patient’s family members, guardian,
   91  guardian advocate, representative, Florida statewide or local
   92  advocacy council, or attorney, unless such access would be
   93  detrimental to the patient. If a patient’s right to communicate
   94  or to receive visitors is restricted by the facility, written
   95  notice of such restriction and the reasons for the restriction
   96  shall be served on the patient, the patient’s attorney, and the
   97  patient’s guardian, guardian advocate, or representative; and
   98  such restriction shall be recorded on the patient’s clinical
   99  record with the reasons therefor. The restriction of a patient’s
  100  right to communicate or to receive visitors shall be reviewed at
  101  least every 24 hours 7 days. The right to communicate or receive
  102  visitors shall not be restricted as a means of punishment.
  103  Nothing in This paragraph does not shall be construed to limit
  104  the provisions of paragraph (d).
  105         Section 2. Paragraph (c) of subsection (2) of section
  106  394.4599, Florida Statutes, is amended to read:
  107         394.4599 Notice.—
  108         (2) INVOLUNTARY ADMISSION.—
  109         (c)1. A receiving facility shall give notice of the
  110  whereabouts of a minor who is being involuntarily held for
  111  examination pursuant to s. 394.463 to the minor’s parent,
  112  guardian, caregiver, or guardian advocate, in person or by
  113  telephone or other form of electronic communication, immediately
  114  after the minor’s arrival at the facility. The facility may
  115  delay notification for no more than 24 hours after the minor’s
  116  arrival if the facility has submitted a report to the central
  117  abuse hotline, pursuant to s. 39.201, based upon knowledge or
  118  suspicion of abuse, abandonment, or neglect and if the facility
  119  deems a delay in notification to be in the minor’s best
  120  interest.
  121         2. The receiving facility shall attempt to notify the
  122  minor’s parent, guardian, caregiver, or guardian advocate until
  123  the receiving facility receives confirmation from the parent,
  124  guardian, caregiver, or guardian advocate, verbally, by
  125  telephone or other form of electronic communication, or by
  126  recorded message, that notification has been received. Attempts
  127  to notify the parent, guardian, caregiver, or guardian advocate
  128  must be repeated at least once every hour during the first 12
  129  hours after the minor’s arrival and once every 24 hours
  130  thereafter and must continue until such confirmation is
  131  received, unless the minor is released at the end of the 72-hour
  132  examination period, or until a petition for involuntary services
  133  is filed with the court pursuant to s. 394.463(2)(g). The
  134  receiving facility may seek assistance from a law enforcement
  135  agency or a mobile crisis response team to notify the minor’s
  136  parent, guardian, caregiver, or guardian advocate if the
  137  facility has not received within the first 24 hours after the
  138  minor’s arrival a confirmation by the parent, guardian,
  139  caregiver, or guardian advocate that notification has been
  140  received. The receiving facility must document notification
  141  attempts in the minor’s clinical record.
  142         Section 3. Paragraphs (a), (b), (f), (h), (k), and (l)
  143  subsection (1) of section 394.462, Florida Statutes, are amended
  144  to read:
  145         394.462 Transportation.—A transportation plan shall be
  146  developed and implemented by each county in collaboration with
  147  the managing entity in accordance with this section. A county
  148  may enter into a memorandum of understanding with the governing
  149  boards of nearby counties to establish a shared transportation
  150  plan. When multiple counties enter into a memorandum of
  151  understanding for this purpose, the counties shall notify the
  152  managing entity and provide it with a copy of the agreement. The
  153  transportation plan shall describe methods of transport to a
  154  facility within the designated receiving system for individuals
  155  subject to involuntary examination under s. 394.463 or
  156  involuntary admission under s. 397.6772, s. 397.679, s.
  157  397.6798, or s. 397.6811, and may identify responsibility for
  158  other transportation to a participating facility when necessary
  159  and agreed to by the facility. The plan may rely on emergency
  160  medical transport services or private transport companies, as
  161  appropriate. The plan shall comply with the transportation
  162  provisions of this section and ss. 397.6772, 397.6795, 397.6822,
  163  and 397.697.
  164         (1) TRANSPORTATION TO A RECEIVING FACILITY.—
  165         (a) Each county shall designate a single law enforcement
  166  agency or contract with a mobile crisis response team within the
  167  county, or portions thereof, to take a person into custody upon
  168  the entry of an ex parte order or the execution of a certificate
  169  for involuntary examination by an authorized professional and to
  170  transport that person to the appropriate facility within the
  171  designated receiving system pursuant to a transportation plan.
  172         (b)1. The designated law enforcement agency or contracted
  173  mobile crisis response team may decline to transport the person
  174  to a receiving facility only if:
  175         a. The jurisdiction designated by the county has contracted
  176  on an annual basis with an emergency medical transport service
  177  or private transport company for transportation of persons to
  178  receiving facilities pursuant to this section at the sole cost
  179  of the county; and
  180         b. The law enforcement agency or contracted mobile crisis
  181  response team and the emergency medical transport service or
  182  private transport company agree that the continued presence of
  183  law enforcement personnel is not necessary for the safety of the
  184  person or others.
  185         2. The entity providing transportation may seek
  186  reimbursement for transportation expenses. The party responsible
  187  for payment for such transportation is the person receiving the
  188  transportation. The county shall seek reimbursement from the
  189  following sources in the following order:
  190         a. From a private or public third-party payor, if the
  191  person receiving the transportation has applicable coverage.
  192         b. From the person receiving the transportation.
  193         c. From a financial settlement for medical care, treatment,
  194  hospitalization, or transportation payable or accruing to the
  195  injured party.
  196         (f) When a member of a mental health overlay program or a
  197  mobile crisis response service is a professional authorized to
  198  initiate an involuntary examination pursuant to s. 394.463 or s.
  199  397.675 and that professional evaluates a person and determines
  200  that transportation to a receiving facility is needed, the
  201  service, at its discretion, may transport the person to the
  202  facility or may call on the law enforcement agency, contracted
  203  mobile crisis response team, or other transportation arrangement
  204  best suited to the needs of the patient.
  205         (h) When any law enforcement officer has arrested a person
  206  for a felony and it appears that the person meets the statutory
  207  guidelines for involuntary examination or placement under this
  208  part, such person must first be processed in the same manner as
  209  any other criminal suspect. The law enforcement agency shall
  210  thereafter immediately notify the appropriate facility within
  211  the designated receiving system pursuant to a transportation
  212  plan. The receiving facility shall be responsible for promptly
  213  arranging for the examination and treatment of the person. A
  214  receiving facility is not required to admit a person charged
  215  with a crime for whom the facility determines and documents that
  216  it is unable to provide adequate security, but shall provide
  217  examination and treatment to the person where he or she is held.
  218         (k) The appropriate facility within the designated
  219  receiving system pursuant to a transportation plan must accept
  220  persons brought by law enforcement officers, a mobile crisis
  221  response team, or an emergency medical transport service or a
  222  private transport company authorized by the county, for
  223  involuntary examination pursuant to s. 394.463.
  224         (l) The appropriate facility within the designated
  225  receiving system pursuant to a transportation plan must provide
  226  persons brought by law enforcement officers, a mobile crisis
  227  response team, or an emergency medical transport service or a
  228  private transport company authorized by the county, pursuant to
  229  s. 397.675, a basic screening or triage sufficient to refer the
  230  person to the appropriate services.
  231         Section 4. Paragraph (b) of subsection (1) and paragraphs
  232  (a), (c), (d), and (g) of subsection (2) of section 394.463,
  233  Florida Statutes, are amended to read:
  234         394.463 Involuntary examination.—
  235         (1) CRITERIA.—A person may be taken to a receiving facility
  236  for involuntary examination if there is reason to believe that
  237  the person has a mental illness and because of his or her mental
  238  illness:
  239         (b)1. Without care or treatment, the person is likely to
  240  suffer from neglect or refuse to care for himself or herself;
  241  such neglect or refusal poses a real and present threat of
  242  substantial harm to his or her well-being; and it is not
  243  apparent that such harm may be avoided through the help of
  244  willing, able, and responsible family members or friends or the
  245  provision of other services; or
  246         2. There is a substantial likelihood that in the near
  247  future and without care or treatment the person will inflict
  248  serious cause serious bodily harm to self himself or herself or
  249  others in the near future, as evidenced by recent behavior
  250  causing, attempting to cause, or threatening such harm, such as
  251  causing significant property damage.
  252         (2) INVOLUNTARY EXAMINATION.—
  253         (a) An involuntary examination may be initiated by any one
  254  of the following means:
  255         1. A circuit or county court may enter an ex parte order
  256  stating that a person appears to meet the criteria for
  257  involuntary examination and specifying the findings on which
  258  that conclusion is based. The ex parte order for involuntary
  259  examination must be based on written or oral sworn testimony
  260  that includes specific facts that support the findings. If other
  261  less restrictive means are not available, such as voluntary
  262  appearance for outpatient evaluation, a law enforcement officer,
  263  or other designated agent of the court, shall take the person
  264  into custody and deliver him or her to an appropriate, or the
  265  nearest, facility within the designated receiving system
  266  pursuant to s. 394.462 for involuntary examination. The order of
  267  the court shall be made a part of the patient’s clinical record.
  268  A fee may not be charged for the filing of an order under this
  269  subsection. A facility accepting the patient based on this order
  270  must send a copy of the order to the department within 5 working
  271  days. The order may be submitted electronically through existing
  272  data systems, if available. The order shall be valid only until
  273  the person is delivered to the facility or for the period
  274  specified in the order itself, whichever comes first. If a time
  275  limit is not specified in the order, the order is valid for 7
  276  days after the date that the order was signed.
  277         2. A law enforcement officer may shall take a person who
  278  appears to meet the criteria for involuntary examination into
  279  custody and deliver the person or have him or her delivered to
  280  an appropriate, or the nearest, facility within the designated
  281  receiving system pursuant to s. 394.462 for examination. The
  282  officer shall execute a written report detailing the
  283  circumstances under which the person was taken into custody,
  284  which must be made a part of the patient’s clinical record. Any
  285  facility accepting the patient based on this report must send a
  286  copy of the report to the department within 5 working days.
  287         3. A physician, a clinical psychologist, a psychiatric
  288  nurse, an advanced practice registered nurse registered under s.
  289  464.0123, a mental health counselor, a marriage and family
  290  therapist, or a clinical social worker may execute a certificate
  291  stating that he or she has examined a person within the
  292  preceding 48 hours and finds that the person appears to meet the
  293  criteria for involuntary examination and stating the
  294  observations upon which that conclusion is based. If other less
  295  restrictive means, such as voluntary appearance for outpatient
  296  evaluation, are not available, a law enforcement officer shall
  297  take into custody the person named in the certificate and
  298  deliver him or her to the appropriate, or nearest, facility
  299  within the designated receiving system pursuant to s. 394.462
  300  for involuntary examination. The law enforcement officer shall
  301  execute a written report detailing the circumstances under which
  302  the person was taken into custody. The report and certificate
  303  shall be made a part of the patient’s clinical record. Any
  304  facility accepting the patient based on this certificate must
  305  send a copy of the certificate to the department within 5
  306  working days. The document may be submitted electronically
  307  through existing data systems, if applicable.
  308  
  309  When sending the order, report, or certificate to the
  310  department, a facility shall, at a minimum, provide information
  311  about which action was taken regarding the patient under
  312  paragraph (g), which information shall also be made a part of
  313  the patient’s clinical record.
  314         (c) A law enforcement officer acting in accordance with an
  315  ex parte order issued pursuant to this subsection may:
  316         1. Serve and execute such order on any day of the week, at
  317  any time of the day or night; and
  318         2. Use such reasonable physical force as is necessary to
  319  gain entry to the premises, and any dwellings, buildings, or
  320  other structures located on the premises, and take custody of
  321  the person who is the subject of the ex parte order. Physical
  322  force should not be used in executing an ex parte order unless
  323  the person executing the order reasonably believes that there is
  324  imminent danger or harm to himself or herself, to the person who
  325  is the subject of the order, or to others present. If physical
  326  force is used, the least amount of physical force should be
  327  used, including refraining from using handcuffs if the person
  328  can be safely transported without them. If When practicable, a
  329  law enforcement officer is assigned to serve and execute the ex
  330  parte order, he or she shall have received 40 hours of who has
  331  received crisis intervention team (CIT) training through the
  332  Memphis Model or its equivalent within the preceding 5 calendar
  333  years. The court may also designate another agent to serve and
  334  execute the ex parte order shall be assigned to serve and
  335  execute the ex parte order.
  336         (d)1. A law enforcement officer taking custody of a person
  337  under this subsection may seize and hold a firearm or any
  338  ammunition the person possesses at the time of taking him or her
  339  into custody if the person poses a potential danger to himself
  340  or herself or others and has made a credible threat of violence
  341  against another person.
  342         2. If the law enforcement officer takes custody of the
  343  person at the person’s residence and the criteria in
  344  subparagraph 1. have been met, the law enforcement officer may
  345  seek the voluntary surrender of firearms or ammunition kept in
  346  the residence which have not already been seized under
  347  subparagraph 1. If such firearms or ammunition are not
  348  voluntarily surrendered, or if the person has other firearms or
  349  ammunition that were not seized or voluntarily surrendered when
  350  he or she was taken into custody, a law enforcement officer may
  351  petition the appropriate court under s. 790.401 for a risk
  352  protection order against the person.
  353         3. Firearms or ammunition seized or voluntarily surrendered
  354  under this paragraph must be made available for return no later
  355  than 24 hours after the person taken into custody can document
  356  that he or she is no longer subject to involuntary examination
  357  and has been released or discharged from any inpatient or
  358  involuntary outpatient treatment provided or ordered under
  359  paragraph (g), unless a risk protection order entered under s.
  360  790.401 directs the law enforcement agency to hold the firearms
  361  or ammunition for a longer period or the person is subject to a
  362  firearm purchase disability under s. 790.065(2), or a firearm
  363  possession and firearm ownership disability under s. 790.064.
  364  The process for the actual return of firearms or ammunition
  365  seized or voluntarily surrendered under this paragraph may not
  366  take longer than 7 days, unless a behavioral health professional
  367  who has conducted a current mental health assessment of the
  368  person certifies that there is substantial likelihood that in
  369  the near future, the person will inflict serious bodily harm on
  370  self or others, as evidenced by recent behavior causing,
  371  attempting, or threatening such harm.
  372         4. Law enforcement agencies must develop policies and
  373  procedures relating to the seizure, storage, and return of
  374  firearms or ammunition held under this paragraph.
  375         (g) The examination period must be for up to 72 hours. For
  376  a minor, the examination shall be initiated within 12 hours
  377  after the patient’s arrival at the facility. Within the
  378  examination period or, if the examination period ends on a
  379  weekend or holiday, no later than the next working day
  380  thereafter, one of the following actions must be taken, based on
  381  the individual needs of the patient:
  382         1. The patient shall be released, unless he or she is
  383  charged with a crime, in which case the patient shall be
  384  returned to the custody of a law enforcement officer, unless a
  385  court has adjudicated and assigned the patient into a behavioral
  386  health diversion treatment program, in which case the patient
  387  will be sent to the determined location for the diversion
  388  treatment program;
  389         2. The patient shall be released, subject to subparagraph
  390  1., for voluntary outpatient treatment;
  391         3. The patient, unless he or she is charged with a crime,
  392  shall be asked to give express and informed consent to placement
  393  as a voluntary patient and, if such consent is given, the
  394  patient shall be admitted as a voluntary patient; or
  395         4. A petition for involuntary services shall be filed in
  396  the circuit court if inpatient treatment is deemed necessary or
  397  with the criminal county court, as defined in s. 394.4655(1), as
  398  applicable. When inpatient treatment is deemed necessary, the
  399  least restrictive treatment consistent with the optimum
  400  improvement of the patient’s condition shall be made available.
  401  When a petition is to be filed for involuntary outpatient
  402  placement, it shall be filed by one of the petitioners specified
  403  in s. 394.4655(4)(a). A petition for involuntary inpatient
  404  placement shall be filed by the facility administrator.
  405         Section 5. Paragraph (g) of subsection (2) of section
  406  394.4655, Florida Statutes, is amended to read:
  407         394.4655 Involuntary outpatient services.—
  408         (2) CRITERIA FOR INVOLUNTARY OUTPATIENT SERVICES.—A person
  409  may be ordered to involuntary outpatient services upon a finding
  410  of the court, by clear and convincing evidence, that the person
  411  meets all of the following criteria:
  412         (g)1. In view of the person’s treatment history and current
  413  behavior, the person is in need of involuntary outpatient
  414  services in order to prevent a relapse or deterioration that
  415  would be likely to result in serious bodily harm to himself or
  416  herself or others, or a substantial harm to his or her well
  417  being as set forth in s. 394.463(1).
  418         2. The consideration of the person’s history must include
  419  testimony from family members, should they desire to testify, as
  420  well as testimony by other individuals deemed by the court to be
  421  relevant under state law, regarding the person’s prior history
  422  and how that prior history relates to the person’s current
  423  condition.
  424         Section 6. Paragraph (l) of subsection (2) of section
  425  394.4573, Florida Statutes, is amended to read:
  426         394.4573 Coordinated system of care; annual assessment;
  427  essential elements; measures of performance; system improvement
  428  grants; reports.—On or before December 1 of each year, the
  429  department shall submit to the Governor, the President of the
  430  Senate, and the Speaker of the House of Representatives an
  431  assessment of the behavioral health services in this state. The
  432  assessment shall consider, at a minimum, the extent to which
  433  designated receiving systems function as no-wrong-door models,
  434  the availability of treatment and recovery services that use
  435  recovery-oriented and peer-involved approaches, the availability
  436  of less-restrictive services, and the use of evidence-informed
  437  practices. The assessment shall also consider the availability
  438  of and access to coordinated specialty care programs and
  439  identify any gaps in the availability of and access to such
  440  programs in the state. The department’s assessment shall
  441  consider, at a minimum, the needs assessments conducted by the
  442  managing entities pursuant to s. 394.9082(5). Beginning in 2017,
  443  the department shall compile and include in the report all plans
  444  submitted by managing entities pursuant to s. 394.9082(8) and
  445  the department’s evaluation of each plan.
  446         (2) The essential elements of a coordinated system of care
  447  include:
  448         (l) Recovery support, including, but not limited to,
  449  support for competitive employment, educational attainment,
  450  independent living skills development, family support and
  451  education, wellness management and self-care, access to support
  452  services provided by a certified peer specialist, and assistance
  453  in obtaining housing that meets the individual’s needs. Such
  454  housing may include mental health residential treatment
  455  facilities, limited mental health assisted living facilities,
  456  adult family care homes, and supportive housing. Housing
  457  provided using state funds must provide a safe and decent
  458  environment free from abuse and neglect.
  459         Section 7. Subsection (5) of section 394.496, Florida
  460  Statutes, is amended to read:
  461         394.496 Service planning.—
  462         (5) A professional as defined in s. 394.455(5), (7), (33),
  463  (36), or (37) or a professional licensed under chapter 491 must
  464  be included among those persons developing the services plan.
  465         Section 8. Paragraphs (d), (e), and (f) of subsection (1)
  466  of section 951.23, Florida Statutes, are redesignated as
  467  paragraphs (e), (f), and (g), respectively, and a new paragraph
  468  (d) is added to that subsection and subsections (12) through
  469  (16) are added to that section, to read:
  470         951.23 County and municipal detention facilities;
  471  definitions; administration; standards and requirements.—
  472         (1) DEFINITIONS.—As used in this section, the term:
  473         (d) As used in subsections (14) through (16), the term
  474  “inmate” has the same meaning as the term “county prisoner.”
  475         (12) RIGHT TO QUALITY TREATMENT.—An inmate in a
  476  correctional facility has the right to receive treatment that is
  477  suited to his or her needs and that is provided in a humane
  478  environment. Such treatment shall be administered skillfully,
  479  safely, and humanely with respect for the inmate’s dignity and
  480  personal integrity.
  481         (13) RIGHT TO EXPRESS AND INFORMED CONSENT.—
  482         (a) Unless it is determined that there is a guardian with
  483  the authority to consent to medical treatment, an inmate
  484  provided psychiatric treatment within a county detention
  485  facility shall be asked to give his or her express and informed
  486  written consent for such treatment.
  487         (b) As used in this subsection, the terms “express and
  488  informed written consent” or “consent” mean consent voluntarily
  489  given in writing after a conscientious and sufficient
  490  explanation and disclosure of the purpose of the proposed
  491  treatment; the common side effects of the treatment, if any; the
  492  expected duration of the treatment; and any alternative
  493  treatment available. The explanation shall enable the inmate to
  494  make a knowing and willful decision without any element of
  495  fraud, deceit, or duress or any other form of constraint or
  496  coercion.
  497         (14) INVOLUNTARY TREATMENT OF INMATES; APPOINTMENT OF
  498  COUNSEL.—Involuntary treatment of an inmate who refuses
  499  treatment and is unable to be transported to a receiving
  500  facility may be provided at a county detention facility if
  501  deemed necessary for the appropriate care of the inmate and the
  502  safety of the inmate or others. Except as provided in
  503  subsections (15) and (16), an inmate confined in a county
  504  detention facility may not be administered any psychiatric
  505  medication without his or her prior informed consent. The inmate
  506  shall be provided with a copy of the petition described in
  507  paragraph (15)(a) along with the proposed treatment; the basis
  508  for the proposed treatment; the names of the experts; and the
  509  date, time, and location of the hearing. The inmate may have an
  510  attorney represent him or her at the hearing. If the inmate is
  511  indigent, the court shall appoint the public defender in the
  512  county in which the inmate is held to represent the inmate who
  513  is the subject of the petition within 1 court working day after
  514  the filing of a petition for involuntary treatment, unless the
  515  inmate is otherwise represented by counsel. The clerk of the
  516  court in the county in which the inmate is held shall
  517  immediately notify the public defender of such appointment. An
  518  attorney representing the inmate shall have access to the inmate
  519  and any records, including medical or mental health records,
  520  which are relevant to the representation of the inmate.
  521         (15) PROCEDURES FOR INVOLUNTARY TREATMENT OF AN INMATE.—
  522         (a) A county detention facility may petition the circuit
  523  court for an order for involuntary treatment if all of the
  524  following conditions have been met:
  525         1. A psychiatrist, psychologist, psychiatric nurse
  526  practitioner, or licensed mental health professional has
  527  determined that the inmate has a serious mental illness.
  528         2. A psychiatrist or psychiatric nurse practitioner has
  529  determined that, as a result of that mental illness, the inmate
  530  does not have the capacity to refuse treatment with psychiatric
  531  medications, or is a danger to self or others.
  532         3. A psychiatrist or psychiatric nurse practitioner has
  533  prescribed one or more psychiatric medications for the treatment
  534  of the inmate’s illness, has considered the risks, benefits, and
  535  treatment alternatives to involuntary medication, and has
  536  determined that the treatment alternatives to involuntary
  537  medication are unlikely to meet the needs of the inmate.
  538         4. The inmate has been advised of the risks and benefits
  539  of, and treatment alternatives to, the psychiatric medication
  540  and refuses, or is unable to consent to, the administration of
  541  the medication.
  542         5. The county detention facility has made a documented
  543  attempt to locate an available bed for the inmate in a receiving
  544  facility in lieu of seeking to administer involuntary
  545  medication.
  546         6. The inmate is provided a hearing before the circuit
  547  court, or court-appointed general magistrate or hearing officer
  548  in the county in which the inmate is held. If the inmate is in
  549  custody awaiting trial, any hearing pursuant to this section
  550  shall be held before a circuit court judge.
  551         7. A copy of the petition and written notice has been
  552  issued at least 5 days before the hearing which:
  553         a. Sets forth the diagnosis, the factual basis for the
  554  diagnosis, the basis upon which psychiatric medication is
  555  recommended, the expected benefits of the medication, and any
  556  potential side effects or risks to the inmate from the
  557  medication.
  558         b. Advises the inmate of the right to be present at the
  559  hearing, the right to be represented by counsel at all stages of
  560  the proceedings, the right to present evidence, and the right to
  561  cross-examine witnesses.
  562         c. Informs the inmate of his or her right to appeal any
  563  determination of the circuit court, and his or her right to file
  564  a petition for writ of habeas corpus with respect to any
  565  findings of the circuit court or court-appointed magistrate if
  566  involuntary treatment is authorized.
  567         (b) The court shall hold the hearing on involuntary
  568  treatment within 5 court working days. The court may appoint a
  569  general or special magistrate to preside. Except for good cause
  570  documented in the court file, the hearing must occur in the
  571  county in which the inmate is held, must be as convenient to the
  572  inmate as is consistent with orderly procedure, and shall be
  573  conducted in physical settings not likely to be injurious to the
  574  inmate’s condition. If the court finds that the inmate’s
  575  attendance at the hearing is not consistent with the best
  576  interests of the inmate, and the inmate’s counsel does not
  577  object, the court may waive the presence of the inmate from all
  578  or any portion of the hearing. The inmate may testify or not, as
  579  he or she chooses, may cross-examine witnesses testifying on
  580  behalf of the county detention facility, and may present his or
  581  her own witnesses.
  582         (c)1. At the hearing on the issue of whether the court
  583  should authorize treatment for which an inmate has refused to
  584  give express and informed consent, the court shall determine by
  585  clear and convincing evidence whether:
  586         a. The inmate has a serious mental illness.
  587         b. Such treatment is essential to the care of the inmate.
  588         c. The treatment is experimental or presents an
  589  unreasonable risk of hazardous or irreversible side effects.
  590         2. In arriving at the substitute judgment decision, the
  591  court must consider at least the following:
  592         a. The inmate’s expressed preference regarding treatment.
  593         b. The prognosis for the inmate without treatment.
  594         c. The prognosis for the inmate with treatment.
  595         (d) The historical course of the inmate’s mental illness,
  596  as determined by available relevant information about the course
  597  of the inmate’s mental illness, shall be considered when it has
  598  direct bearing on the determination of whether the inmate is a
  599  danger to self or others, or is incompetent to refuse medication
  600  as the result of a mental illness.
  601         (e) If the court concludes that the inmate meets the
  602  criteria for involuntary treatment, it may issue an order
  603  authorizing such treatment for a period not to exceed 90 days
  604  after the date of the order.
  605         (f) An inmate is entitled to file one motion for
  606  reconsideration following a determination that he or she may
  607  receive involuntary medication, and may seek a hearing to
  608  present new evidence, upon good cause shown. This paragraph does
  609  not prevent a court from reviewing, modifying, or terminating an
  610  involuntary medication order for an inmate, if there is a
  611  showing that the involuntary medication is interfering with the
  612  inmate’s due process rights in the criminal proceeding for which
  613  he or she is held.
  614         (g) Any determination of an inmate’s incapacity to refuse
  615  treatment with antipsychotic medication made under this section
  616  shall remain in effect only until one of the following occurs,
  617  whichever is first:
  618         1. The duration of the inmate’s confinement ends;
  619         2. The petitioner files a certification of person’s
  620  competence to provide express and informed consent;
  621         3. A court determines that the inmate no longer meets the
  622  criteria for involuntary treatment; or
  623         4. A court issues any other order terminating the order.
  624         (h) This subsection does not prohibit a physician from
  625  taking appropriate action in an emergency pursuant to an
  626  emergency treatment order.
  627         (16) PROCEDURES FOR PETITIONS FOR CONTINUED INVOLUNTARY
  628  TREATMENT OF AN INMATE.—
  629         (a) A copy of a subsequent petition to renew or continue
  630  involuntary treatment of an inmate shall be provided to the
  631  inmate and the inmate’s attorney. In determining whether the
  632  criteria for involuntary medication still exists, the court
  633  shall consider the petition and underlying affidavit of the
  634  psychiatrist or psychiatrists and any supplemental information
  635  provided by the inmate’s attorney. The court may also require
  636  the testimony from the psychiatrist, if necessary. The court, at
  637  a subsequent hearing, may continue the order authorizing
  638  involuntary medication, vacate the order, or make any other
  639  appropriate order.
  640         (b) The request to renew or continue the order shall be
  641  filed and served no later than 14 days before the expiration of
  642  the current order authorizing involuntary medication.
  643         (c) The inmate shall be entitled to, and shall be given,
  644  the same due process protections as provided in subsections (14)
  645  and (15).
  646         (d) An order renewing or continuing an existing order shall
  647  be granted based on clear and convincing evidence that the
  648  inmate has a serious mental illness that requires treatment with
  649  psychiatric medication, and that, but for the medication, the
  650  inmate would revert to the behavior that was the basis for the
  651  prior order authorizing involuntary medication, coupled with
  652  evidence that the inmate lacks insight regarding his or her need
  653  for the medication. No new acts need be alleged or proven to
  654  renew or continue an existing order.
  655         (e) The hearing on any petition to renew or continue an
  656  order for involuntary medication shall be conducted before the
  657  expiration of the current order.
  658         Section 9. This act shall take effect July 1, 2021.