January 17, 2020
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The Florida Statutes

The 2003 Florida Statutes

Title XLVII
CRIMINAL PROCEDURE AND CORRECTIONS
Chapter 916
MENTALLY DEFICIENT AND MENTALLY ILL DEFENDANTS
View Entire Chapter
Section 916.107, Florida Statutes 2003

916.107  Rights of forensic clients.--

(1)  RIGHT TO INDIVIDUAL DIGNITY.--

(a)  The policy of the state is that the individual dignity of the client shall be respected at all times and upon all occasions, including any occasion when the forensic client is detained, transported, or treated. Defendants who are mentally ill, retarded, or autistic and who are charged with committing felonies shall receive appropriate treatment or training. In a criminal case involving a defendant who has been adjudicated incompetent to proceed or not guilty by reason of insanity, a jail may be used as an emergency facility for up to 15 days from the date the department receives a completed copy of the commitment order containing the documentation required by Rules 3.212 and 3.217, Florida Rules of Criminal Procedure. For a defendant who is mentally ill, retarded, or autistic, who is held in a jail, and who has been adjudicated incompetent to proceed or not guilty by reason of insanity, evaluation and treatment or training shall be provided in the jail by the local public receiving facility for mental health services or by the developmental services program for persons with retardation or autism, the client's physician or psychologist, or any other appropriate program until the client is transferred to the custody of the department.

(b)  Mentally ill, retarded, or autistic defendants who are committed to the department pursuant to this chapter and who are initially placed in, or subsequently transferred to, a civil facility as described in part I of chapter 394 or to a residential facility as described in chapter 393 shall have the same rights as other persons committed to these facilities for as long as they remain there.

(2)  RIGHT TO TREATMENT.--

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

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

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

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

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

(a)  A client committed to the department pursuant to this act shall be asked to give express and informed written consent for treatment. If a client in a forensic facility refuses such treatment as is deemed necessary by the client's multidisciplinary treatment team at the forensic facility for the appropriate care of the client and the safety of the client or others, such treatment may be provided under the following circumstances:

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

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

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

a.  The client's expressed preference regarding treatment;

b.  The probability of adverse side effects;

c.  The prognosis without treatment; and

d.  The prognosis with treatment.

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

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

(4)  QUALITY OF TREATMENT.--Each client committed pursuant to this chapter shall receive treatment or training suited to the client's needs, which shall be administered skillfully, safely, and humanely with full respect for the client's dignity and personal integrity. Each client shall receive such medical, vocational, social, educational, and rehabilitative services as the client's condition requires to bring about a return to court for disposition of charges or a return to the community. In order to achieve this goal, the department is directed to coordinate the services of the Mental Health Program Office and the Developmental Disabilities Program Office with all other programs of the department and other appropriate state agencies.

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

(a)  Each client committed pursuant to the provisions of this chapter has the right to communicate freely and privately with persons outside the facility unless it is determined that such communication is likely to be harmful to the client or others. Clients shall have the right to contact and to receive communication from their attorneys at any reasonable time.

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

(c)  If a client's right to communicate is restricted by the administrator, written notice of such restriction shall be served on the client or his or her legal guardian or representatives, and such restriction shall be recorded on the client's clinical record with the reasons therefor. The restriction of a client's right to communicate shall be reviewed at least every 7 days.

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

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

(f)  The department's forensic facilities shall develop policies providing a procedure for reporting abuse. Facility staff shall be required, as a condition of employment, to become familiar with the procedures for the reporting of abuse.

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

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

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

(a)  Such clinical record may be released:

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

2.  To persons authorized by order of court and to the client's counsel when the records are needed by the counsel for adequate representation.

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

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

5.  If a client receiving services pursuant to this chapter has declared an intention to harm other persons. When such a declaration has been made, the administrator shall authorize the release of sufficient information to provide adequate warning to the person threatened with harm by the client, and to the committing court, the state attorney, and the attorney representing the client.

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

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

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

2.  Law enforcement agencies, state attorneys, defense attorneys, and judges in regard to the client's status;

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

4.  Community agencies and others expected to provide followup care to the client upon the client's return to the community.

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

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

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

(9)  HABEAS CORPUS.--

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

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

(10)  TRANSPORTATION.--

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

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

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

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

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

History.--s. 32, ch. 85-167; s. 73, ch. 87-226; s. 56, ch. 93-268; s. 2, ch. 94-258; s. 51, ch. 96-169; s. 436, ch. 96-406; s. 1835, ch. 97-102; s. 7, ch. 98-92; s. 71, ch. 2000-139; s. 114, ch. 2000-349; s. 120, ch. 2003-402.

1Note.--Section 120, ch. 2003-402, amended paragraph (2)(a), effective July 1, 2004, to read:

(a)  The policy of the state is that the department shall not deny treatment or training to any client and that no services shall be delayed at a facility because the forensic client is indigent pursuant to s. 27.52 and presently unable to pay. However, every reasonable effort to collect appropriate reimbursement for the cost of providing services to clients able to pay for the services, including reimbursement from insurance or other third-party payments, shall be made by facilities providing services pursuant to this chapter and in accordance with the provisions of s. 402.33.

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