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.)
345 945.43 Involuntary 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.)
379 945.44 Placement 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.)
559 945.48 Emergency 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:
604 945.485 Management 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:
730 945.6042 Inmate 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.