Florida Senate - 2021 SB 1736 By Senator Ausley 3-01240A-21 20211736__ Page 1 of 23 CODING: Words stricken are deletions; words underlined are additions. A bill to be entitled 1

An act relating to mental health treatment and 2 examinations; amending s. 394.459, F.S.; specifying 3 additional persons who may consent to mental health 4 treatment in certain circumstances; revising the 5 frequency with which the restriction on a patient’s 6 right to communicate or receive visitors must be 7 reviewed; amending s. 394.4599, F.S.; authorizing a 8 receiving facility to seek assistance from a mobile 9 crisis response team for certain purposes; amending s. 10 394.462, F.S.; authorizing counties to use mobile 11 crisis response teams for certain purposes; deleting a 12 requirement that a receiving facility provide 13 examination and treatment to a felony arrestee who 14 appears to meet the criteria for involuntary 15 examination or placement at the place where he or she 16 is held; amending s. 394.463, F.S.; revising criteria 17 for involuntary examination; authorizing, rather than 18 requiring, an officer to take a person who appears to 19 meet the criteria for involuntary examination into 20 custody and deliver the person to a receiving 21 facility; revising standards for the use of physical 22 force and restraint in taking custody of persons 23 subject to ex parte orders; revising provisions on 24 return of firearms to persons after confiscation; 25 providing for release of certain persons to behavioral 26 health diversion programs; amending s. 394.4655, F.S.; 27 revising who may testify as to a patient’s history in 28 considering criteria for involuntary outpatient 29

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 2 of 23 CODING: Words stricken are deletions; words underlined are additions. services; amending s. 394.4573, F.S.; specifying that 30 recovery support services include access to certified 31 peer specialists; amending s. 394.496, F.S.; deleting 32 physicians from the list of professionals required to 33 develop service plans; amending s. 951.23, F.S.; 34 defining the term “inmate”; specifying rights to 35 treatment of persons in county and municipal detention 36 facilities; providing for such treatment; providing an 37 effective date. 38 39 Be It Enacted by the Legislature of the State of Florida: 40 41

Section 1. Paragraph (

a) of subsection (3) and paragraph 42 (

c) of subsection (5) of

section 394.459, Florida Statutes, are 43 amended to read: 44 394.459 Rights of patients.— 45

(3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.— 46 (a)1. Each patient entering treatment shall be asked to 47 give express and informed consent for admission or treatment. If 48 the patient has been adjudicated incapacitated or found to be 49 incompetent to consent to treatment, express and informed 50 consent to treatment shall be sought instead from the patient’s 51 guardian, or guardian advocate, health care surrogate, 52 representative, or proxy. If the patient is a minor, express and 53 informed consent for admission or treatment shall also be 54 requested from the patient’s guardian.

Express and informed 55 consent for admission or treatment of a patient under 18 years 56 of age shall be required from the patient’s guardian, unless the 57 minor is seeking outpatient crisis intervention services under 58

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 3 of 23 CODING: Words stricken are deletions; words underlined are additions. s. 394.4784. Express and informed consent for admission or 59 treatment given by a patient who is under 18 years of age shall 60 not be a condition of admission when the patient’s guardian 61 gives express and informed consent for the patient’s admission 62 pursuant to s. 394.463 or s. 394.467. 63 2.

Before giving express and informed consent, the 64 following information shall be provided and explained in plain 65 language to the patient;, or to the patient’s guardian if the 66 patient is 18 years of age or older and has been adjudicated 67 incapacitated;, or to the patient’s guardian advocate if the 68 patient has been found to be incompetent to consent to 69 treatment; or to the patient’s health care surrogate, 70 representative, or proxy, or to both the patient and the 71 guardian if the patient is a minor: 72 a. The reason for admission or treatment.; 73 b. The proposed treatment.; 74 c.

The purpose of the treatment to be provided.; 75 d. The common risks, benefits, and side effects thereof.; 76 e. The specific dosage range for the medication, when 77 applicable.; 78 f. Alternative treatment modalities.; 79 g. The approximate length of care.; 80 h. The potential effects of stopping treatment.; 81 i. How treatment will be monitored.; and 82 j. That any consent given for treatment may be revoked 83 orally or in writing before or during the treatment period by 84 the patient or by a person who is legally authorized to make 85 health care decisions on behalf of the patient. 86

(5) COMMUNICATION, ABUSE REPORTING, AND VISITS.— 87

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 4 of 23 CODING: Words stricken are deletions; words underlined are additions. (

c) Each facility must permit immediate access to any 88 patient, subject to the patient’s right to deny or withdraw 89 consent at any time, by the patient’s family members, guardian, 90 guardian advocate, representative, Florida statewide or local 91 advocacy council, or attorney, unless such access would be 92 detrimental to the patient.

If a patient’s right to communicate 93 or to receive visitors is restricted by the facility, written 94 notice of such restriction and the reasons for the restriction 95 shall be served on the patient, the patient’s attorney, and the 96 patient’s guardian, guardian advocate, or representative; and 97 such restriction shall be recorded on the patient’s clinical 98 record with the reasons therefor. The restriction of a patient’s 99 right to communicate or to receive visitors shall be reviewed at 100 least every 24 hours 7 days.

The right to communicate or receive 101 visitors shall not be restricted as a means of punishment. 102 Nothing in This paragraph does not shall be construed to limit 103 the provisions of paragraph (d). 104

Section 2. Paragraph (

c) of subsection (2) of

section 105 394.4599, Florida Statutes, is amended to read: 106 394.4599 Notice.— 107

(2) INVOLUNTARY ADMISSION.— 108 (c)1. A receiving facility shall give notice of the 109 whereabouts of a minor who is being involuntarily held for 110 examination pursuant to s. 394.463 to the minor’s parent, 111 guardian, caregiver, or guardian advocate, in person or by 112 telephone or other form of electronic communication, immediately 113 after the minor’s arrival at the facility. The facility may 114 delay notification for no more than 24 hours after the minor’s 115 arrival if the facility has submitted a report to the central 116

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 5 of 23 CODING: Words stricken are deletions; words underlined are additions. abuse hotline, pursuant to s. 39.201, based upon knowledge or 117 suspicion of abuse, abandonment, or neglect and if the facility 118 deems a delay in notification to be in the minor’s best 119 interest. 120 2.

The receiving facility shall attempt to notify the 121 minor’s parent, guardian, caregiver, or guardian advocate until 122 the receiving facility receives confirmation from the parent, 123 guardian, caregiver, or guardian advocate, verbally, by 124 telephone or other form of electronic communication, or by 125 recorded message, that notification has been received.

Attempts 126 to notify the parent, guardian, caregiver, or guardian advocate 127 must be repeated at least once every hour during the first 12 128 hours after the minor’s arrival and once every 24 hours 129 thereafter and must continue until such confirmation is 130 received, unless the minor is released at the end of the 72-hour 131 examination period, or until a petition for involuntary services 132 is filed with the court pursuant to s. 394.463(2)(g).

The 133 receiving facility may seek assistance from a law enforcement 134 agency or a mobile crisis response team to notify the minor’s 135 parent, guardian, caregiver, or guardian advocate if the 136 facility has not received within the first 24 hours after the 137 minor’s arrival a confirmation by the parent, guardian, 138 caregiver, or guardian advocate that notification has been 139 received. The receiving facility must document notification 140 attempts in the minor’s clinical record. 141

Section 3. Paragraphs (a), (b), (f), (h), (k), and (l) 142 subsection (1) of

section 394.462, Florida Statutes, are amended 143 to read: 144 394.462 Transportation.—A transportation plan shall be 145

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 6 of 23 CODING: Words stricken are deletions; words underlined are additions. developed and implemented by each county in collaboration with 146 the managing entity in accordance with this section. A county 147 may enter into a memorandum of understanding with the governing 148 boards of nearby counties to establish a shared transportation 149 plan. When multiple counties enter into a memorandum of 150 understanding for this purpose, the counties shall notify the 151 managing entity and provide it with a copy of the agreement.

The 152 transportation plan shall describe methods of transport to a 153 facility within the designated receiving system for individuals 154 subject to involuntary examination under s. 394.463 or 155 involuntary admission under s. 397.6772, s. 397.679, s. 156 397.6798, or s. 397.6811, and may identify responsibility for 157 other transportation to a participating facility when necessary 158 and agreed to by the facility. The plan may rely on emergency 159 medical transport services or private transport companies, as 160 appropriate. The plan shall comply with the transportation 161 provisions of this

section and ss. 397.6772, 397.6795, 397.6822, 162 and 397.697. 163

(1) TRANSPORTATION TO A RECEIVING FACILITY.— 164 (

a) Each county shall designate a single law enforcement 165 agency or contract with a mobile crisis response team within the 166 county, or portions thereof, to take a person into custody upon 167 the entry of an ex parte order or the execution of a certificate 168 for involuntary examination by an authorized professional and to 169 transport that person to the appropriate facility within the 170 designated receiving system pursuant to a transportation plan. 171 (b)1. The designated law enforcement agency or contracted 172 mobile crisis response team may decline to transport the person 173 to a receiving facility only if: 174

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 7 of 23 CODING: Words stricken are deletions; words underlined are additions. a. The jurisdiction designated by the county has contracted 175 on an annual basis with an emergency medical transport service 176 or private transport company for transportation of persons to 177 receiving facilities pursuant to this

section at the sole cost 178 of the county; and 179 b. The law enforcement agency or contracted mobile crisis 180 response team and the emergency medical transport service or 181 private transport company agree that the continued presence of 182 law enforcement personnel is not necessary for the safety of the 183 person or others. 184 2. The entity providing transportation may seek 185 reimbursement for transportation expenses. The party responsible 186 for payment for such transportation is the person receiving the 187 transportation.

The county shall seek reimbursement from the 188 following sources in the following order: 189 a. From a private or public third-party payor, if the 190 person receiving the transportation has applicable coverage. 191 b. From the person receiving the transportation. 192 c. From a financial settlement for medical care, treatment, 193 hospitalization, or transportation payable or accruing to the 194 injured party. 195 (

f) When a member of a mental health overlay program or a 196 mobile crisis response service is a professional authorized to 197 initiate an involuntary examination pursuant to s. 394.463 or s. 198 397.675 and that professional evaluates a person and determines 199 that transportation to a receiving facility is needed, the 200 service, at its discretion, may transport the person to the 201 facility or may call on the law enforcement agency, contracted 202 mobile crisis response team, or other transportation arrangement 203

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 8 of 23 CODING: Words stricken are deletions; words underlined are additions. best suited to the needs of the patient. 204 (

h) When any law enforcement officer has arrested a person 205 for a felony and it appears that the person meets the statutory 206 guidelines for involuntary examination or placement under this 207 part, such person must first be processed in the same manner as 208 any other criminal suspect. The law enforcement agency shall 209 thereafter immediately notify the appropriate facility within 210 the designated receiving system pursuant to a transportation 211 plan. The receiving facility shall be responsible for promptly 212 arranging for the examination and treatment of the person.

A 213 receiving facility is not required to admit a person charged 214 with a crime for whom the facility determines and documents that 215 it is unable to provide adequate security, but shall provide 216 examination and treatment to the person where he or she is held. 217 (

k) The appropriate facility within the designated 218 receiving system pursuant to a transportation plan must accept 219 persons brought by law enforcement officers, a mobile crisis 220 response team, or an emergency medical transport service or a 221 private transport company authorized by the county, for 222 involuntary examination pursuant to s. 394.463. 223 (

l) The appropriate facility within the designated 224 receiving system pursuant to a transportation plan must provide 225 persons brought by law enforcement officers, a mobile crisis 226 response team, or an emergency medical transport service or a 227 private transport company authorized by the county, pursuant to 228 s. 397.675, a basic screening or triage sufficient to refer the 229 person to the appropriate services. 230

Section 4. Paragraph (

b) of subsection (1) and paragraphs 231 (a), (c), (d), and (

g) of subsection (2) of

section 394.463, 232

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 9 of 23 CODING: Words stricken are deletions; words underlined are additions. Florida Statutes, are amended to read: 233 394.463 Involuntary examination.— 234

(1) CRITERIA.—A person may be taken to a receiving facility 235 for involuntary examination if there is reason to believe that 236 the person has a mental illness and because of his or her mental 237 illness: 238 (b)1.

Without care or treatment, the person is likely to 239 suffer from neglect or refuse to care for himself or herself; 240 such neglect or refusal poses a real and present threat of 241 substantial harm to his or her well-being; and it is not 242 apparent that such harm may be avoided through the help of 243 willing, able, and responsible family members or friends or the 244 provision of other services; or 245 2.

There is a substantial likelihood that in the near 246 future and without care or treatment the person will inflict 247 serious cause serious bodily harm to self himself or herself or 248 others in the near future, as evidenced by recent behavior 249 causing, attempting to cause, or threatening such harm, such as 250 causing significant property damage. 251

(2) INVOLUNTARY EXAMINATION.— 252 (

a) An involuntary examination may be initiated by any one 253 of the following means: 254 1. A circuit or county court may enter an ex parte order 255 stating that a person appears to meet the criteria for 256 involuntary examination and specifying the findings on which 257 that conclusion is based. The ex parte order for involuntary 258 examination must be based on written or oral sworn testimony 259 that includes specific facts that support the findings. If other 260 less restrictive means are not available, such as voluntary 261

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 10 of 23 CODING: Words stricken are deletions; words underlined are additions. appearance for outpatient evaluation, a law enforcement officer, 262 or other designated agent of the court, shall take the person 263 into custody and deliver him or her to an appropriate, or the 264 nearest, facility within the designated receiving system 265 pursuant to s. 394.462 for involuntary examination. The order of 266 the court shall be made a part of the patient’s clinical record. 267 A fee may not be charged for the filing of an order under this 268 subsection.

A facility accepting the patient based on this order 269 must send a copy of the order to the department within 5 working 270 days. The order may be submitted electronically through existing 271 data systems, if available. The order shall be valid only until 272 the person is delivered to the facility or for the period 273 specified in the order itself, whichever comes first. If a time 274 limit is not specified in the order, the order is valid for 7 275 days after the date that the order was signed. 276 2.

A law enforcement officer may shall take a person who 277 appears to meet the criteria for involuntary examination into 278 custody and deliver the person or have him or her delivered to 279 an appropriate, or the nearest, facility within the designated 280 receiving system pursuant to s. 394.462 for examination. The 281 officer shall execute a written report detailing the 282 circumstances under which the person was taken into custody, 283 which must be made a part of the patient’s clinical record.

Any 284 facility accepting the patient based on this report must send a 285 copy of the report to the department within 5 working days. 286 3. A physician, a clinical psychologist, a psychiatric 287 nurse, an advanced practice registered nurse registered under s. 288 464.0123, a mental health counselor, a marriage and family 289 therapist, or a clinical social worker may execute a certificate 290

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 11 of 23 CODING: Words stricken are deletions; words underlined are additions. stating that he or she has examined a person within the 291 preceding 48 hours and finds that the person appears to meet the 292 criteria for involuntary examination and stating the 293 observations upon which that conclusion is based.

If other less 294 restrictive means, such as voluntary appearance for outpatient 295 evaluation, are not available, a law enforcement officer shall 296 take into custody the person named in the certificate and 297 deliver him or her to the appropriate, or nearest, facility 298 within the designated receiving system pursuant to s. 394.462 299 for involuntary examination. The law enforcement officer shall 300 execute a written report detailing the circumstances under which 301 the person was taken into custody. The report and certificate 302 shall be made a part of the patient’s clinical record.

Any 303 facility accepting the patient based on this certificate must 304 send a copy of the certificate to the department within 5 305 working days. The document may be submitted electronically 306 through existing data systems, if applicable. 307 308 When sending the order, report, or certificate to the 309 department, a facility shall, at a minimum, provide information 310 about which action was taken regarding the patient under 311 paragraph (g), which information shall also be made a part of 312 the patient’s clinical record. 313 (

c) A law enforcement officer acting in accordance with an 314 ex parte order issued pursuant to this subsection may: 315 1. Serve and execute such order on any day of the week, at 316 any time of the day or night; and 317 2. Use such reasonable physical force as is necessary to 318 gain entry to the premises, and any dwellings, buildings, or 319

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 12 of 23 CODING: Words stricken are deletions; words underlined are additions. other structures located on the premises, and take custody of 320 the person who is the subject of the ex parte order. Physical 321 force should not be used in executing an ex parte order unless 322 the person executing the order reasonably believes that there is 323 imminent danger or harm to himself or herself, to the person who 324 is the subject of the order, or to others present.

If physical 325 force is used, the least amount of physical force should be 326 used, including refraining from using handcuffs if the person 327 can be safely transported without them. If When practicable, a 328 law enforcement officer is assigned to serve and execute the ex 329 parte order, he or she shall have received 40 hours of who has 330 received crisis intervention team (CIT) training through the 331 Memphis Model or its equivalent within the preceding 5 calendar 332 years.

The court may also designate another agent to serve and 333 execute the ex parte order shall be assigned to serve and 334 execute the ex parte order. 335 (d)1. A law enforcement officer taking custody of a person 336 under this subsection may seize and hold a firearm or any 337 ammunition the person possesses at the time of taking him or her 338 into custody if the person poses a potential danger to himself 339 or herself or others and has made a credible threat of violence 340 against another person. 341 2.

If the law enforcement officer takes custody of the 342 person at the person’s residence and the criteria in 343 subparagraph 1. have been met, the law enforcement officer may 344 seek the voluntary surrender of firearms or ammunition kept in 345 the residence which have not already been seized under 346 subparagraph 1. If such firearms or ammunition are not 347 voluntarily surrendered, or if the person has other firearms or 348

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 13 of 23 CODING: Words stricken are deletions; words underlined are additions. ammunition that were not seized or voluntarily surrendered when 349 he or she was taken into custody, a law enforcement officer may 350 petition the appropriate court under s. 790.401 for a risk 351 protection order against the person. 352 3.

Firearms or ammunition seized or voluntarily surrendered 353 under this paragraph must be made available for return no later 354 than 24 hours after the person taken into custody can document 355 that he or she is no longer subject to involuntary examination 356 and has been released or discharged from any inpatient or 357 involuntary outpatient treatment provided or ordered under 358 paragraph (g), unless a risk protection order entered under s. 359 790.401 directs the law enforcement agency to hold the firearms 360 or ammunition for a longer period or the person is subject to a 361 firearm purchase disability under s. 790.065(2), or a firearm 362 possession and firearm ownership disability under s. 790.064. 363 The process for the actual return of firearms or ammunition 364 seized or voluntarily surrendered under this paragraph may not 365 take longer than 7 days, unless a behavioral health professional 366 who has conducted a current mental health assessment of the 367 person certifies that there is substantial likelihood that in 368 the near future, the person will inflict serious bodily harm on 369 self or others, as evidenced by recent behavior causing, 370 attempting, or threatening such harm. 371 4.

Law enforcement agencies must develop policies and 372 procedures relating to the seizure, storage, and return of 373 firearms or ammunition held under this paragraph. 374 (

g) The examination period must be for up to 72 hours. For 375 a minor, the examination shall be initiated within 12 hours 376 after the patient’s arrival at the facility. Within the 377

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 14 of 23 CODING: Words stricken are deletions; words underlined are additions. examination period or, if the examination period ends on a 378 weekend or holiday, no later than the next working day 379 thereafter, one of the following actions must be taken, based on 380 the individual needs of the patient: 381 1.

The patient shall be released, unless he or she is 382 charged with a crime, in which case the patient shall be 383 returned to the custody of a law enforcement officer, unless a 384 court has adjudicated and assigned the patient into a behavioral 385 health diversion treatment program, in which case the patient 386 will be sent to the determined location for the diversion 387 treatment program; 388 2. The patient shall be released, subject to subparagraph 389 1., for voluntary outpatient treatment; 390 3.

The patient, unless he or she is charged with a crime, 391 shall be asked to give express and informed consent to placement 392 as a voluntary patient and, if such consent is given, the 393 patient shall be admitted as a voluntary patient; or 394 4. A petition for involuntary services shall be filed in 395 the circuit court if inpatient treatment is deemed necessary or 396 with the criminal county court, as defined in s. 394.4655(1), as 397 applicable.

When inpatient treatment is deemed necessary, the 398 least restrictive treatment consistent with the optimum 399 improvement of the patient’s condition shall be made available. 400 When a petition is to be filed for involuntary outpatient 401 placement, it shall be filed by one of the petitioners specified 402 in s. 394.4655(4)(a). A petition for involuntary inpatient 403 placement shall be filed by the facility administrator. 404

Section 5. Paragraph (

g) of subsection (2) of

section 405 394.4655, Florida Statutes, is amended to read: 406

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 15 of 23 CODING: Words stricken are deletions; words underlined are additions. 394.4655 Involuntary outpatient services.— 407

(2) CRITERIA FOR INVOLUNTARY OUTPATIENT SERVICES.—A person 408 may be ordered to involuntary outpatient services upon a finding 409 of the court, by clear and convincing evidence, that the person 410 meets all of the following criteria: 411 (g)1. In view of the person’s treatment history and current 412 behavior, the person is in need of involuntary outpatient 413 services in order to prevent a relapse or deterioration that 414 would be likely to result in serious bodily harm to himself or 415 herself or others, or a substantial harm to his or her well-416 being as set forth in s. 394.463(1). 417 2.

The consideration of the person’s history must include 418 testimony from family members, should they desire to testify, as 419 well as testimony by other individuals deemed by the court to be 420 relevant under state law, regarding the person’s prior history 421 and how that prior history relates to the person’s current 422 condition. 423

Section 6. Paragraph (

l) of subsection (2) of

section 424 394.4573, Florida Statutes, is amended to read: 425 394.4573 Coordinated system of care; annual assessment; 426 essential elements; measures of performance; system improvement 427 grants; reports.—On or before December 1 of each year, the 428 department shall submit to the Governor, the President of the 429 Senate, and the Speaker of the House of Representatives an 430 assessment of the behavioral health services in this state.

The 431 assessment shall consider, at a minimum, the extent to which 432 designated receiving systems function as no-wrong-door models, 433 the availability of treatment and recovery services that use 434 recovery-oriented and peer-involved approaches, the availability 435

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 16 of 23 CODING: Words stricken are deletions; words underlined are additions. of less-restrictive services, and the use of evidence-informed 436 practices. The assessment shall also consider the availability 437 of and access to coordinated specialty care programs and 438 identify any gaps in the availability of and access to such 439 programs in the state. The department’s assessment shall 440 consider, at a minimum, the needs assessments conducted by the 441 managing entities pursuant to s. 394.9082(5).

Beginning in 2017, 442 the department shall compile and include in the report all plans 443 submitted by managing entities pursuant to s. 394.9082(8) and 444 the department’s evaluation of each plan. 445

(2) The essential elements of a coordinated system of care 446 include: 447 (

l) Recovery support, including, but not limited to, 448 support for competitive employment, educational attainment, 449 independent living skills development, family support and 450 education, wellness management and self-care, access to support 451 services provided by a certified peer specialist, and assistance 452 in obtaining housing that meets the individual’s needs. Such 453 housing may include mental health residential treatment 454 facilities, limited mental health assisted living facilities, 455 adult family care homes, and supportive housing. Housing 456 provided using state funds must provide a safe and decent 457 environment free from abuse and neglect. 458

Section 7. Subsection (5) of

section 394.496, Florida 459 Statutes, is amended to read: 460 394.496 Service planning.— 461

(5) A professional as defined in s. 394.455(5), (7), (33), 462 (36), or (37) or a professional licensed under

chapter 491 must 463 be included among those persons developing the services plan. 464

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 17 of 23 CODING: Words stricken are deletions; words underlined are additions.

Section 8. Paragraphs (d), (e), and (

f) of subsection (1) 465 of

section 951.23, Florida Statutes, are redesignated as 466 paragraphs (e), (f), and (g), respectively, and a new paragraph 467 (

d) is added to that subsection and subsections (12) through 468 (16) are added to that section, to read: 469 951.23 County and municipal detention facilities; 470

definitions; administration; standards and requirements.— 471

(1) DEFINITIONS.—As used in this section, the term: 472 (

d) As used in subsections (14) through (16), the term 473 “inmate” has the same meaning as the term “county prisoner.” 474

(12) RIGHT TO QUALITY TREATMENT.—An inmate in a 475 correctional facility has the right to receive treatment that is 476 suited to his or her needs and that is provided in a humane 477 environment. Such treatment shall be administered skillfully, 478 safely, and humanely with respect for the inmate’s dignity and 479 personal integrity. 480

(13) RIGHT TO EXPRESS AND INFORMED CONSENT.— 481 (

a) Unless it is determined that there is a guardian with 482 the authority to consent to medical treatment, an inmate 483 provided psychiatric treatment within a county detention 484 facility shall be asked to give his or her express and informed 485 written consent for such treatment. 486 (

b) As used in this subsection, the terms “express and 487 informed written consent” or “consent” mean consent voluntarily 488 given in writing after a conscientious and sufficient 489 explanation and disclosure of the purpose of the proposed 490 treatment; the common side effects of the treatment, if any; the 491 expected duration of the treatment; and any alternative 492 treatment available. The explanation shall enable the inmate to 493

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 18 of 23 CODING: Words stricken are deletions; words underlined are additions. make a knowing and willful decision without any element of 494 fraud, deceit, or duress or any other form of constraint or 495 coercion. 496

(14) INVOLUNTARY TREATMENT OF INMATES; APPOINTMENT OF 497 COUNSEL.—Involuntary treatment of an inmate who refuses 498 treatment and is unable to be transported to a receiving 499 facility may be provided at a county detention facility if 500 deemed necessary for the appropriate care of the inmate and the 501 safety of the inmate or others. Except as provided in 502 subsections (15) and (16), an inmate confined in a county 503 detention facility may not be administered any psychiatric 504 medication without his or her prior informed consent. The inmate 505 shall be provided with a copy of the petition described in 506 paragraph (15)(

a) along with the proposed treatment; the basis 507 for the proposed treatment; the names of the experts; and the 508 date, time, and location of the hearing. The inmate may have an 509 attorney represent him or her at the hearing. If the inmate is 510 indigent, the court shall appoint the public defender in the 511 county in which the inmate is held to represent the inmate who 512 is the subject of the petition within 1 court working day after 513 the filing of a petition for involuntary treatment, unless the 514 inmate is otherwise represented by counsel.

The clerk of the 515 court in the county in which the inmate is held shall 516 immediately notify the public defender of such appointment. An 517 attorney representing the inmate shall have access to the inmate 518 and any records, including medical or mental health records, 519 which are relevant to the representation of the inmate. 520

(15) PROCEDURES FOR INVOLUNTARY TREATMENT OF AN INMATE.— 521 (

a) A county detention facility may petition the circuit 522

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 19 of 23 CODING: Words stricken are deletions; words underlined are additions. court for an order for involuntary treatment if all of the 523 following conditions have been met: 524 1. A psychiatrist, psychologist, psychiatric nurse 525 practitioner, or licensed mental health professional has 526 determined that the inmate has a serious mental illness. 527 2.

A psychiatrist or psychiatric nurse practitioner has 528 determined that, as a result of that mental illness, the inmate 529 does not have the capacity to refuse treatment with psychiatric 530 medications, or is a danger to self or others. 531 3.

A psychiatrist or psychiatric nurse practitioner has 532 prescribed one or more psychiatric medications for the treatment 533 of the inmate’s illness, has considered the risks, benefits, and 534 treatment alternatives to involuntary medication, and has 535 determined that the treatment alternatives to involuntary 536 medication are unlikely to meet the needs of the inmate. 537 4. The inmate has been advised of the risks and benefits 538 of, and treatment alternatives to, the psychiatric medication 539 and refuses, or is unable to consent to, the administration of 540 the medication. 541 5.

The county detention facility has made a documented 542 attempt to locate an available bed for the inmate in a receiving 543 facility in lieu of seeking to administer involuntary 544 medication. 545 6. The inmate is provided a hearing before the circuit 546 court, or court-appointed general magistrate or hearing officer 547 in the county in which the inmate is held. If the inmate is in 548 custody awaiting trial, any hearing pursuant to this

section 549 shall be held before a circuit court judge. 550 7. A copy of the petition and written notice has been 551

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 20 of 23 CODING: Words stricken are deletions; words underlined are additions. issued at least 5 days before the hearing which: 552 a. Sets forth the diagnosis, the factual basis for the 553 diagnosis, the basis upon which psychiatric medication is 554 recommended, the expected benefits of the medication, and any 555 potential side effects or risks to the inmate from the 556 medication. 557 b.

Advises the inmate of the right to be present at the 558 hearing, the right to be represented by counsel at all stages of 559 the proceedings, the right to present evidence, and the right to 560 cross-examine witnesses. 561 c. Informs the inmate of his or her right to appeal any 562 determination of the circuit court, and his or her right to file 563 a petition for writ of habeas corpus with respect to any 564 findings of the circuit court or court-appointed magistrate if 565 involuntary treatment is authorized. 566 (

b) The court shall hold the hearing on involuntary 567 treatment within 5 court working days. The court may appoint a 568 general or special magistrate to preside. Except for good cause 569 documented in the court file, the hearing must occur in the 570 county in which the inmate is held, must be as convenient to the 571 inmate as is consistent with orderly procedure, and shall be 572 conducted in physical settings not likely to be injurious to the 573 inmate’s condition.

If the court finds that the inmate’s 574 attendance at the hearing is not consistent with the best 575 interests of the inmate, and the inmate’s counsel does not 576 object, the court may waive the presence of the inmate from all 577 or any portion of the hearing. The inmate may testify or not, as 578 he or she chooses, may cross-examine witnesses testifying on 579 behalf of the county detention facility, and may present his or 580

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 21 of 23 CODING: Words stricken are deletions; words underlined are additions. her own witnesses. 581 (c)1. At the hearing on the issue of whether the court 582 should authorize treatment for which an inmate has refused to 583 give express and informed consent, the court shall determine by 584 clear and convincing evidence whether: 585 a. The inmate has a serious mental illness. 586 b. Such treatment is essential to the care of the inmate. 587 c.

The treatment is experimental or presents an 588 unreasonable risk of hazardous or irreversible side effects. 589 2. In arriving at the substitute judgment decision, the 590 court must consider at least the following: 591 a. The inmate’s expressed preference regarding treatment. 592 b. The prognosis for the inmate without treatment. 593 c. The prognosis for the inmate with treatment. 594 (

d) The historical course of the inmate’s mental illness, 595 as determined by available relevant information about the course 596 of the inmate’s mental illness, shall be considered when it has 597 direct bearing on the determination of whether the inmate is a 598 danger to self or others, or is incompetent to refuse medication 599 as the result of a mental illness. 600 (

e) If the court concludes that the inmate meets the 601 criteria for involuntary treatment, it may issue an order 602 authorizing such treatment for a period not to exceed 90 days 603 after the date of the order. 604 (

f) An inmate is entitled to file one motion for 605 reconsideration following a determination that he or she may 606 receive involuntary medication, and may seek a hearing to 607 present new evidence, upon good cause shown. This paragraph does 608 not prevent a court from reviewing, modifying, or terminating an 609

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 22 of 23 CODING: Words stricken are deletions; words underlined are additions. involuntary medication order for an inmate, if there is a 610 showing that the involuntary medication is interfering with the 611 inmate’s due process rights in the criminal proceeding for which 612 he or she is held. 613 (

g) Any determination of an inmate’s incapacity to refuse 614 treatment with antipsychotic medication made under this

section 615 shall remain in effect only until one of the following occurs, 616 whichever is first: 617 1. The duration of the inmate’s confinement ends; 618 2. The petitioner files a certification of person’s 619 competence to provide express and informed consent; 620 3. A court determines that the inmate no longer meets the 621 criteria for involuntary treatment; or 622 4. A court issues any other order terminating the order. 623 (

h) This subsection does not prohibit a physician from 624 taking appropriate action in an emergency pursuant to an 625 emergency treatment order. 626

(16) PROCEDURES FOR PETITIONS FOR CONTINUED INVOLUNTARY 627 TREATMENT OF AN INMATE.— 628 (

a) A copy of a subsequent petition to renew or continue 629 involuntary treatment of an inmate shall be provided to the 630 inmate and the inmate’s attorney. In determining whether the 631 criteria for involuntary medication still exists, the court 632 shall consider the petition and underlying affidavit of the 633 psychiatrist or psychiatrists and any supplemental information 634 provided by the inmate’s attorney. The court may also require 635 the testimony from the psychiatrist, if necessary. The court, at 636 a subsequent hearing, may continue the order authorizing 637 involuntary medication, vacate the order, or make any other 638

Florida Senate - 2021 SB 1736 3-01240A-21 20211736__ Page 23 of 23 CODING: Words stricken are deletions; words underlined are additions. appropriate order. 639 (

b) The request to renew or continue the order shall be 640 filed and served no later than 14 days before the expiration of 641 the current order authorizing involuntary medication. 642 (

c) The inmate shall be entitled to, and shall be given, 643 the same due process protections as provided in subsections (14) 644 and (15). 645 (

d) An order renewing or continuing an existing order shall 646 be granted based on clear and convincing evidence that the 647 inmate has a serious mental illness that requires treatment with 648 psychiatric medication, and that, but for the medication, the 649 inmate would revert to the behavior that was the basis for the 650 prior order authorizing involuntary medication, coupled with 651 evidence that the inmate lacks insight regarding his or her need 652 for the medication. No new acts need be alleged or proven to 653 renew or continue an existing order. 654 (

e) The hearing on any petition to renew or continue an 655 order for involuntary medication shall be conducted before the 656 expiration of the current order. 657

Section 9. This act shall take effect July 1, 2021. 658