Senate Bill sb2032

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    Florida Senate - 2004                                  SB 2032

    By Senator Smith





    14-989A-04

  1                      A bill to be entitled

  2         An act relating to involuntary mental health

  3         treatment of mentally ill inmates; amending s.

  4         945.41, F.S.; deleting a provision requiring

  5         the Department of Corrections to contract with

  6         the Department of Children and Family Services

  7         for mental health services; providing

  8         legislative intent with respect to the

  9         involuntary administration of psychotropic

10         medications to a mentally ill inmate who

11         refuses treatment and poses a threat to others;

12         amending s. 945.42, F.S.; defining the term

13         "administrative panel"; redefining the term

14         "mental health treatment facility"; amending s.

15         945.48, F.S.; revising the period during which

16         involuntary mental health treatment may be

17         provided; requiring an administrative panel

18         rather than the circuit court to determine

19         whether to continue involuntary mental health

20         treatment of an inmate in an emergency or

21         nonemergency situation; extending the period

22         for providing involuntary mental health

23         treatment in a nonemergency situation;

24         specifying circumstances under which an

25         administrative panel may issue an order

26         authorizing the continuation of involuntary

27         mental health treatment; requiring the

28         Department of Corrections to adopt procedures

29         for conducting hearings of the administrative

30         panel; specifying conditions that the

31         administrative panel must consider in

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    Florida Senate - 2004                                  SB 2032
    14-989A-04




 1         determining whether to order involuntary mental

 2         health treatment for an inmate; deleting

 3         requirements that an inmate be provided with a

 4         copy of the petition for involuntary mental

 5         health treatment and an attorney; amending s.

 6         945.49, F.S.; deleting a requirement that the

 7         Department of Children and Family Services

 8         cooperate in adopting rules for administering

 9         the Corrections Mental Health Act; providing an

10         effective date.

11  

12  Be It Enacted by the Legislature of the State of Florida:

13  

14         Section 1.  Section 945.41, Florida Statutes, is

15  amended to read:

16         945.41  Legislative intent of ss. 945.40-945.49.--It is

17  the intent of the Legislature that mentally ill inmates in the

18  custody of the Department of Corrections receive evaluation

19  and appropriate treatment for their mental illness through a

20  continuum of services.  It is further the intent of the

21  Legislature that:

22         (1)  Inmates in the custody of the department who have

23  mental illnesses that require hospitalization and intensive

24  psychiatric inpatient treatment or care receive appropriate

25  treatment or care in Department of Corrections mental health

26  treatment facilities designated for that purpose. The

27  department shall contract with the Department of Children and

28  Family Services for the provision of mental health services in

29  any departmental mental health treatment facility.  The

30  Department of Corrections shall provide mental health services

31  

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    Florida Senate - 2004                                  SB 2032
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 1  to inmates committed to it and may contract with any persons

 2  or agencies qualified to provide such services.

 3         (2)  Mental health treatment facilities be secure and

 4  adequately equipped and staffed for the provision of mental

 5  health services and that, to the extent possible, such

 6  services be provided in the least restrictive manner

 7  consistent with optimum improvement of the inmate's condition.

 8         (3)  Inmates who are transferred to any facility for

 9  the purpose of mental health treatment be given consideration

10  for parole and be eligible for release by reason of gain-time

11  allowances as provided in s. 944.291 and release by expiration

12  of sentence, consistent with guidelines established for that

13  purpose by the department.

14         (4)  Any inmate sentenced as a youthful offender, or

15  designated as a youthful offender by the department pursuant

16  to chapter 958, who is transferred pursuant to this act to a

17  mental health treatment facility be separated from other

18  inmates, if necessary, as determined by the warden of the

19  treatment facility.  In no case shall any youthful offender be

20  placed at the Florida State Prison or the Union Correctional

21  Institution for mental health treatment.

22         (5)  The department may designate a mental health

23  treatment facility for adult and youthful female offenders or

24  may contract with other appropriate agencies for such

25  services.

26         (6)  Any inmate who is mentally ill, whose mental

27  impairment poses a risk of harm to self or others, and who

28  refuses treatment with psychotropic medications deemed

29  necessary and appropriate by an administrative panel, be

30  administered such treatment involuntarily.

31  

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    Florida Senate - 2004                                  SB 2032
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 1         Section 2.  Section 945.42, Florida Statutes, is

 2  amended to read:

 3         945.42  Definitions; ss. 945.40-945.49.--As used in ss.

 4  945.40-945.49, the following terms shall have the meanings

 5  ascribed to them, unless the context shall clearly indicate

 6  otherwise:

 7         (1) "Administrative panel" means a panel of at least

 8  three health care professionals licensed in this state who

 9  shall conduct hearings to determine whether involuntary

10  treatment with psychotropic medications is necessary and

11  appropriate for an inmate refusing such treatment. A member of

12  the panel may not be involved in the delivery or supervision

13  of mental health care and treatment to the inmate refusing

14  treatment with psychotropic medication. Each panel shall be

15  comprised of at least one psychiatrist licensed in this state

16  with the remaining members being physicians licensed under

17  chapter 458 or chapter 459. Members of the panel shall be

18  appointed by the Assistant Secretary for Health Services or

19  his or her designee.

20         (2)(1)  "Court" means the circuit court.

21         (3)(2)  "Department" means the Department of

22  Corrections.

23         (4)(3)  "Director" means the Director for Mental Health

24  Services of the Department of Corrections or his or her

25  designee.

26         (5)(4)  "In immediate need of care and treatment" means

27  that an inmate is apparently mentally ill and is not able to

28  be appropriately cared for in the institution where the inmate

29  is confined and that, without intervention, the alleged mental

30  illness poses an immediate, real, and present threat of

31  

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    Florida Senate - 2004                                  SB 2032
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 1  substantial harm to the inmate's well-being or to the safety

 2  of others.

 3         (6)(5)  "In need of care and treatment" means that an

 4  inmate has a mental illness for which inpatient services in a

 5  mental health treatment facility are necessary, which mental

 6  illness poses a real and present threat of substantial harm to

 7  the inmate's well-being or to the safety of others.

 8         (7)(6)  "Inmate" means any person committed to the

 9  custody of the Department of Corrections.

10         (8)(7)  "Mental health treatment facility" means an

11  institution, facility, or unit within an institution of the

12  department which is designated by the Assistant Secretary of

13  Health Services the Corrections Mental Health Institution and

14  any other institution that the Assistant Secretary for Health

15  Services of the department specifically designates by rule to

16  provide acute psychiatric care at the hospital level, in

17  contrast to less intensive levels of care such as outpatient

18  mental health care, transitional mental health care, or crisis

19  stabilization care.

20         (9)(8)  "Mentally ill" means an impairment of the

21  emotional processes, of the ability to exercise conscious

22  control of one's actions, or of the ability to perceive

23  reality or to understand, which impairment substantially

24  interferes with a person's ability to meet the ordinary

25  demands of living, regardless of etiology, except that, for

26  the purposes of transfer of an inmate to a mental health

27  treatment facility, the term does not include retardation or

28  developmental disability as defined in chapter 393, simple

29  intoxication, or conditions manifested only by antisocial

30  behavior or drug addiction.

31  

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    Florida Senate - 2004                                  SB 2032
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 1         (10)(9)  "Psychiatrist" means a medical practitioner

 2  licensed pursuant to chapter 458 or chapter 459 who has

 3  primarily diagnosed and treated nervous and mental disorders

 4  for a period of not less than 3 years inclusive of psychiatric

 5  residency.

 6         (11)(10)  "Psychologist" means a behavioral

 7  practitioner who has an approved degree in psychology that is

 8  primarily clinical in nature from a university or professional

 9  graduate school that is state-authorized or accredited by an

10  accrediting agency approved by the United States Department of

11  Education and who is professionally certified by the

12  appropriate professional psychology association or is licensed

13  as a psychologist pursuant to chapter 490.

14         (12)(11)  "Secretary" means the Secretary of

15  Corrections.

16         (13)(12)  "Transitional mental health care" means a

17  level of care that is more intensive than outpatient care, but

18  less intensive than crisis stabilization care, and is

19  characterized by the provision of traditional mental health

20  treatments such as group and individual therapy, activity

21  therapy, recreational therapy, and chemotherapy, in the

22  context of a structured residential setting.  Transitional

23  mental health care is indicated for a person with chronic or

24  residual symptomatology who does not require crisis

25  stabilization care or acute psychiatric care at the hospital

26  level, but whose impairments in functioning nevertheless

27  render him or her incapable of adjusting satisfactorily within

28  the general inmate population, even with the assistance of

29  outpatient care.

30         (14)(13)  "Warden" means the warden of a state

31  corrections facility or his or her designee.

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    Florida Senate - 2004                                  SB 2032
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 1         Section 3.  Subsection (2) of section 945.48, Florida

 2  Statutes, is amended to read:

 3         945.48  Rights of inmate provided treatment.--

 4         (2)  RIGHT TO EXPRESS AND INFORMED CONSENT.--Any inmate

 5  provided psychiatric treatment within the department shall be

 6  asked to give his or her express and informed written consent

 7  for such treatment. "Express and informed written consent" or

 8  "consent" means consent voluntarily given in writing after a

 9  conscientious and sufficient explanation and disclosure of the

10  purpose of the proposed treatment; the common side effects of

11  the treatment, if any; the expected duration of the treatment;

12  and the alternative treatment available.  The explanation

13  shall enable the inmate to make a knowing and willful decision

14  without any element of fraud, deceit, or duress or any other

15  form of constraint or coercion.  Involuntary mental health

16  treatment of an inmate who refuses treatment that is deemed to

17  be necessary for the appropriate care of the inmate and the

18  safety of the inmate or others may be provided at an

19  institution authorized to do so by the Assistant Secretary for

20  Health Services under the following circumstances:

21         (a)  In an emergency situation in which there is

22  immediate danger to the health and safety of the inmate or

23  others other inmates, such treatment may be provided upon the

24  written order of a physician for a period not to exceed 72 48

25  hours, excluding weekends and legal holidays.  If, after the

26  72-hour 48-hour period, the inmate has not given express and

27  informed consent to the treatment initially refused, the

28  warden shall, within 48 hours, excluding weekends and legal

29  holidays, contact the Assistant Secretary of Health Services

30  or his or her designee to convene an administrative panel for

31  a hearing to determine whether an order authorizing continued

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    Florida Senate - 2004                                  SB 2032
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 1  treatment of the inmate should be issued petition the circuit

 2  court serving the county in which the facility is located for

 3  an order authorizing the continued treatment of the inmate. In

 4  the interim, treatment may be continued upon the written order

 5  of a physician who has determined that the emergency situation

 6  continues to present a danger to the safety of the inmate or

 7  others.  If an inmate must be isolated for mental health

 8  purposes, that decision must be reviewed within 72 hours by

 9  medical staff different from that making the original

10  placement.

11         (b)  In a situation other than an emergency situation,

12  the warden shall contact the Assistant Secretary of Health

13  Services or his or her designee to request that an

14  administrative panel be convened to conduct a hearing to

15  determine whether an order authorizing treatment of the inmate

16  should be issued petition the court for an order authorizing

17  the treatment of the inmate. The order shall allow such

18  treatment for a period not to exceed 180 90 days from the date

19  of the order.  Unless the Assistant Secretary for Health

20  Services or his or her designee court is notified in writing

21  that the inmate has provided express and informed consent in

22  writing, that the inmate has been transferred to another

23  institution of the department, or that the inmate is no longer

24  in need of treatment, the warden shall, prior to the

25  expiration of the initial 180-day 90-day order, contact the

26  Assistant Secretary for Health Services to convene an

27  administrative panel petition the court for an order

28  authorizing the continuation of treatment for another 180-day

29  90-day period.  This procedure shall be repeated until the

30  inmate provides consent or is no longer in need of treatment.

31  

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    Florida Senate - 2004                                  SB 2032
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 1  Treatment may be continued pending a hearing before an

 2  administrative panel after the filing of any petition.

 3         (c)  An order by the administrative panel authorizing

 4  treatment shall be issued only after a hearing and only after

 5  a finding by the administrative panel that the treatment

 6  authorized is necessary for the appropriate care of the inmate

 7  and the safety of the inmate or others.

 8         (d)(c)  The department shall establish by rule

 9  procedures for the conduct of hearings by the administrative

10  panel to determine need for treatment. Such procedures shall

11  ensure that an inmate is afforded appropriate due process. At

12  the hearing on the issue of whether the administrative panel

13  court should authorize treatment for which an inmate has

14  refused to give express and informed consent, the

15  administrative panel court shall determine by clear and

16  convincing evidence whether the inmate is mentally ill as

17  defined in this chapter; whether such treatment is medically

18  appropriate and essential for the safety of the inmate or

19  others. In determining whether such treatment is medically

20  appropriate for the inmate, the administrative panel shall

21  determine to the care of the inmate; and whether the treatment

22  is experimental or presents an unreasonable risk of serious,

23  hazardous, or irreversible side effects.  In arriving at its

24  determination the substitute judgment decision, the

25  administrative panel court must consider at least the

26  following:

27         1.  The inmate's expressed preference regarding

28  treatment;

29         2.  The probability of adverse side effects;

30         3.  The prognosis for the inmate without treatment; and

31         4.  The prognosis for the inmate with treatment.

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    Florida Senate - 2004                                  SB 2032
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 1  

 2  The inmate and the inmate's representative shall be provided

 3  with a copy of the petition and the date, time, and location

 4  of the hearing. The inmate may have an attorney represent him

 5  or her at the hearing, and, if the inmate is indigent, the

 6  court shall appoint the office of the public defender to

 7  represent him or her at the hearing.  The inmate may testify

 8  or not, as he or she chooses, may cross-examine witnesses

 9  testifying on behalf of the facility, and may present his or

10  her own witnesses.

11         (e)(d)  In addition to the above provisions, when the

12  permission of the inmate cannot be obtained, the warden of a

13  mental health treatment facility, or his or her designated

14  representative, with the concurrence of the inmate's attending

15  physician, may authorize emergency surgical or nonpsychiatric

16  medical treatment if such treatment is deemed lifesaving or

17  there is a situation threatening serious bodily harm to the

18  inmate.

19         Section 4.  Subsections (2) and (3) of section 945.49,

20  Florida Statutes, are amended to read:

21         945.49  Operation and administration.--

22         (2)  RULES.--The department, in cooperation with the

23  Mental Health Program Office of the Department of Children and

24  Family Services, shall adopt rules necessary for

25  administration of ss. 945.40-945.49 in accordance with chapter

26  120.

27         (3)  ORIENTATION AND TRAINING.--Correctional officers

28  assigned to employed by a mental health treatment facility

29  shall receive specialized training above and beyond that

30  required for basic certification pursuant to chapter 943. Such

31  

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 1  training shall be in accordance with requirements of the

 2  Criminal Justice Standards and Training Commission.

 3         Section 5.  This act shall take effect July 1, 2004.

 4  

 5            *****************************************

 6                          SENATE SUMMARY

 7    Revises various provisions of the Corrections Mental
      Health Act. Deletes a requirement that the Department of
 8    Corrections contract with the Department of Children and
      Family Services for providing mental health services to
 9    inmates. Provides for the involuntary administration of
      mental health treatment to a mentally ill inmate who
10    refuses treatment and poses a threat to others. Revises
      the time period during which involuntary mental health
11    treatment may be provided. Requires an administrative
      panel rather than the circuit court to determine whether
12    to continue involuntary mental health treatment in
      emergency and nonemergency situations. Requires the
13    Department of Corrections to adopt rules. Deletes a
      requirement that an inmate be provided with a copy of the
14    petition for involuntary mental health treatment and an
      attorney. (See bill for details.)
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