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Updated November, 2003
394.451 Short title.--This
part shall be known as "The Florida Mental Health Act" or "The
Baker Act."
394.453 Legislative intent.--It is the intent of the
Legislature to authorize and direct the Department of Children and Family
Services to evaluate, research, plan, and recommend to the Governor and the
Legislature programs designed to reduce the occurrence, severity, duration, and
disabling aspects of mental, emotional, and behavioral disorders. It is the
intent of the Legislature that treatment programs for such disorders shall
include, but not be limited to, comprehensive health, social, educational, and
rehabilitative services to persons requiring intensive short-term and continued
treatment in order to encourage them to assume responsibility for their
treatment and recovery. It is intended that such persons be provided with
emergency service and temporary detention for evaluation when required; that
they be admitted to treatment facilities on a voluntary basis when extended or
continuing care is needed and unavailable in the community; that involuntary
placement be provided only when expert evaluation determines that it is
necessary; that any involuntary treatment or examination be accomplished in a
setting which is clinically appropriate and most likely to facilitate the
person's return to the community as soon as possible; and that individual
dignity and human rights be guaranteed to all persons who are admitted to
mental health facilities or who are being held under s. 394.463. It is the
further intent of the Legislature that the least restrictive means of
intervention be employed based on the individual needs of each person, within
the scope of available services.
394.455 Definitions.--As used
in this part, unless the context clearly requires otherwise, the term:
(1)
"Administrator" means the chief administrative officer of a
receiving or treatment facility or his or her designee.
(2) "Clinical
psychologist" means a psychologist as defined in s. 490.003(7) with 3
years of postdoctoral experience in the practice of clinical psychology,
inclusive of the experience required for licensure, or a psychologist employed
by a facility operated by the United States Department of Veterans Affairs that
qualifies as a receiving or treatment facility under this part.
(3) "Clinical
record" means all parts of the record required to be maintained and
includes all medical records, progress notes, charts, and admission and
discharge data, and all other information recorded by a facility which pertains
to the patient's hospitalization and treatment.
(4) "Clinical
social worker" means a person licensed as a clinical social worker under
chapter 491.
(5) "Community
facility" means any community service provider contracting with the
department to furnish substance abuse or mental health services under part IV
of this chapter.
(6) "Community
mental health center or clinic" means a publicly funded, not-for-profit
center which contracts with the department for the provision of inpatient,
outpatient, day treatment, or emergency services.
(7)
"Court," unless otherwise specified, means the circuit court.
(8)
"Department" means the Department of Children and Family
Services.
(9) "Express and
informed consent" means consent voluntarily given in writing, by a
competent person, after sufficient explanation and disclosure of the subject
matter involved to enable the person to make a knowing and willful decision
without any element of force, fraud, deceit, duress, or other form of
constraint or coercion.
(10) "Facility" means any hospital,
community facility, public or private facility, or receiving or treatment
facility providing for the evaluation, diagnosis, care, treatment, training, or
hospitalization of persons who appear to have a mental illness or have been
diagnosed as having a mental illness. "Facility" does not include any
program or entity licensed pursuant to chapter 400.
(11)
"Guardian" means the natural guardian of a minor, or a person
appointed by a court to act on behalf of a ward's person if the ward is a minor
or has been adjudicated incapacitated.
(12) "Guardian
advocate" means a person appointed by a court to make decisions regarding
mental health treatment on behalf of a patient who has been found incompetent
to consent to treatment pursuant to this part. The guardian advocate may be
granted specific additional powers by written order of the court, as provided
in this part.
(13)
"Hospital" means a facility licensed under chapter 395.
(14)
"Incapacitated" means that a person has been adjudicated
incapacitated pursuant to part V of chapter 744 and a guardian of the person
has been appointed.
(15)
"Incompetent to consent to treatment" means that a person's
judgment is so affected by his or her mental illness that the person lacks the
capacity to make a well-reasoned, willful, and knowing decision concerning his
or her medical or mental health treatment.
(16) "Law
enforcement officer" means a law enforcement officer as defined in s.
943.10.
(17) "Mental
health overlay program" means a mobile service which provides an
independent examination for voluntary admissions and a range of supplemental
onsite services to persons with a mental illness in a residential setting such
as a nursing home, assisted living facility, adult family-care home, or
nonresidential setting such as an adult day care center. Independent
examinations provided pursuant to this part through a mental health overlay
program must only be provided under contract with the department for this
service or be attached to a public receiving facility that is also a community
mental health center.
(18) "Mental
illness" means an impairment of the mental or emotional processes that
exercise conscious control of one's actions or of the ability to perceive or
understand reality, which impairment substantially interferes with a person's
ability to meet the ordinary demands of living, regardless of etiology. For the
purposes of this part, the term does not include retardation or developmental
disability as defined in chapter 393, intoxication, or conditions manifested
only by antisocial behavior or substance abuse impairment.
(19) "Mobile
crisis response service" means a nonresidential crisis service attached to
a public receiving facility and available 24 hours a day, 7 days a week,
through which immediate intensive assessments and interventions, including
screening for admission into a receiving facility, take place for the purpose
of identifying appropriate treatment services.
(20)
"Patient" means any person who is held or accepted for mental
health treatment.
(21)
"Physician" means a medical practitioner licensed under
chapter 458 or chapter 459 who has experience in the diagnosis and treatment of
mental and nervous disorders or a physician employed by a facility operated by
the United States Department of Veterans Affairs which qualifies as a receiving
or treatment facility under this part.
(22) "Private
facility" means any hospital or facility operated by a for-profit or
not-for-profit corporation or association that provides mental health services
and is not a public facility.
(23)
"Psychiatric nurse" means a registered nurse licensed under
part I of chapter 464 who has a master's degree or a doctorate in psychiatric
nursing and 2 years of post-master's clinical experience under the supervision
of a physician.
(24)
"Psychiatrist" means a medical practitioner licensed under
chapter 458 or chapter 459 who has primarily diagnosed and treated mental and
nervous disorders for a period of not less than 3 years, inclusive of
psychiatric residency.
(25) "Public
facility" means any facility that has contracted with the department to
provide mental health services to all persons, regardless of their ability to
pay, and is receiving state funds for such purpose.
(26) "Receiving
facility" means any public or private facility designated by the
department to receive and hold involuntary patients under emergency conditions
or for psychiatric evaluation and to provide short-term treatment. The term
does not include a county jail.
(27)
"Representative" means a person selected to receive notice of
proceedings during the time a patient is held in or admitted to a receiving or
treatment facility.
(28)
"Secretary" means the Secretary of Children and Family
Services.
(29) "Transfer
evaluation" means the process, as approved by the appropriate district
office of the department, whereby a person who is being considered for
placement in a state treatment facility is first evaluated for appropriateness
of admission to the facility by a community-based public receiving facility or
by a community mental health center or clinic if the public receiving facility
is not a community mental health center or clinic.
(30) "Treatment
facility" means any state-owned, state-operated, or state-supported
hospital, center, or clinic designated by the department for extended treatment
and hospitalization, beyond that provided for by a receiving facility, of
persons who have a mental illness, including facilities of the United States
Government, and any private facility designated by the department when
rendering such services to a person pursuant to the provisions of this part.
Patients treated in facilities of the United States Government shall be solely
those whose care is the responsibility of the United States Department of
Veterans Affairs.
394.457 Operation and administration.--
(1)
ADMINISTRATION.--The Department of Children and Family Services is
designated the "Mental Health Authority" of
(2) RESPONSIBILITIES
OF THE DEPARTMENT.--The department is responsible for:
(a)
The planning, evaluation, and implementation of a complete and
comprehensive statewide program of mental health, including community services,
receiving and treatment facilities, child services, research, and training as
authorized and approved by the Legislature, based on the annual program budget
of the department. The department is also responsible for the coordination of
efforts with other departments and divisions of the state government, county
and municipal governments, and private agencies concerned with and providing mental
health services. It is responsible for establishing standards, providing
technical assistance, and exercising supervision of mental health programs of,
and the treatment of patients at, community facilities, other facilities for
persons who have a mental illness, and any agency or facility providing
services to patients pursuant to this part.
(b)
The publication and distribution of an information handbook to
facilitate understanding of this part, the policies and procedures involved in
the implementation of this part, and the responsibilities of the various
providers of services under this part. It shall stimulate research by public
and private agencies, institutions of higher learning, and hospitals in the
interest of the elimination and amelioration of mental illness.
(3) POWER TO
CONTRACT.--The department may contract to provide, and be provided with,
services and facilities in order to carry out its responsibilities under this
part with the following agencies: public and private hospitals; receiving and
treatment facilities; clinics; laboratories; departments, divisions, and other
units of state government; the state colleges and universities; the community
colleges; private colleges and universities; counties, municipalities, and any
other governmental unit, including facilities of the United States Government;
and any other public or private entity which provides or needs facilities or
services. Baker Act funds for community inpatient, crisis stabilization,
short-term residential treatment, and screening services must be allocated to
each county pursuant to the department's funding allocation methodology.
Notwithstanding the provisions of s. 287.057(5)(f),
contracts for community-based Baker Act services for inpatient, crisis
stabilization, short-term residential treatment, and screening provided under
this part, other than those with other units of government, to be provided for
the department must be awarded using competitive sealed bids when the county
commission of the county receiving the services makes a request to the
department's district office by January 15 of the contracting year. The
district shall not enter into a competitively bid contract under this provision
if such action will result in increases of state or local expenditures for
Baker Act services within the district. Contracts for these Baker Act services
using competitive sealed bids will be effective for 3 years. Services
contracted for by the department may be reimbursed by the state at a rate up to
100 percent. The department shall adopt rules establishing minimum standards
for such contracted services and facilities and shall make periodic audits and
inspections to assure that the contracted services are provided and meet the
standards of the department.
(4) APPLICATION FOR
AND ACCEPTANCE OF GIFTS AND GRANTS.--The department may apply for and accept
any funds, grants, gifts, or services made available to it by any agency or
department of the Federal Government or any other public or private agency or
individual in aid of mental health programs. All such moneys shall be deposited
in the State Treasury and shall be disbursed as provided by law.
(5) RULES.--
(a)
The department shall adopt rules establishing forms and procedures
relating to the rights and privileges of patients seeking mental health
treatment from facilities under this part.
(b)
The department shall adopt rules necessary for the implementation and
administration of the provisions of this part, and a program subject to the
provisions of this part shall not be permitted to operate unless rules designed
to ensure the protection of the health, safety, and welfare of the patients
treated through such program have been adopted.
(c)
The department shall adopt rules establishing minimum standards for
services provided by a mental health overlay program or a mobile crisis
response service.
(6) PERSONNEL.--
(a)
The department shall, by rule, establish minimum standards of education
and experience for professional and technical personnel employed in mental health
programs, including members of a mobile crisis response service.
(b)
The department shall design and distribute appropriate materials for the
orientation and training of persons actively engaged in implementing the
provisions of this part relating to the involuntary examination and placement
of persons who are believed to have a mental illness.
(7) PAYMENT FOR CARE
OF PATIENTS.--Fees and fee collections for patients in state-owned,
state-operated, or state-supported treatment facilities shall be according to
s. 402.33.
394.4572 Screening of mental health personnel.--
(1)(a) The department
and the Agency for Health Care Administration shall require employment
screening for mental health personnel using the standards for level 2 screening
set forth in chapter 435. "Mental health personnel" includes all
program directors, professional clinicians, staff members, and volunteers
working in public or private mental health programs and facilities who have
direct contact with unmarried patients under the age of 18 years.
(b) Students in the health care professions who
are interning in a mental health facility licensed under chapter 395, where the
primary purpose of the facility is not the treatment of minors, are exempt from the fingerprinting
and screening requirements, provided they are under direct supervision in the
actual physical presence of a licensed health care professional.
(c)
Mental health personnel working in a facility licensed under chapter 395
who have less than 15 hours per week of direct contact with patients or who are
health care professionals licensed by the Agency for Health Care Administration
or a board thereunder are exempt from the
fingerprinting and screening requirements, except for persons working in mental
health facilities where the primary purpose of the facility is the treatment of
minors.
(d)
A volunteer who assists on an intermittent basis for less than 40 hours
per month is exempt from the fingerprinting and screening requirements,
provided the volunteer is under direct and constant supervision by persons who
meet the screening requirements of paragraph (a).
(2) The department or
the Agency for Health Care Administration may grant exemptions from
disqualification as provided in s. 435.06.
(3) Prospective
mental health personnel who have previously been fingerprinted or screened
pursuant to this chapter, chapter 393, chapter 397, chapter 402, or chapter
409, or teachers who have been fingerprinted pursuant to chapter 1012, who have
not been unemployed for more than 90 days thereafter, and who under the penalty
of perjury attest to the completion of such fingerprinting or screening and to
compliance with the provisions of this section and the standards for level 1
screening contained in chapter 435, shall not be required to be refingerprinted or rescreened in
order to comply with any screening requirements of this part.
394.4573 Continuity of care management system; measures of performance; reports.--
(1) For the purposes
of this section:
(a)
"Case management" means those activities aimed at assessing
client needs, planning services, linking the service system to a client,
coordinating the various system components, monitoring service delivery, and
evaluating the effect of service delivery.
(b)
"Case manager" means an individual who works with clients, and
their families and significant others, to provide case management.
(c)
"Client manager" means an employee of the department who is
assigned to specific provider agencies and geographic areas to ensure that the
full range of needed services is available to clients.
(d)
"Continuity of care management system" means a system that
assures, within available resources, that clients have access to the full array
of services within the mental health services delivery system.
(2) The department is
directed to implement a continuity of care management system for the provision
of mental health care, through the provision of client and case management,
including clients referred from state treatment facilities to community mental
health facilities. Such system shall include a network of client managers and
case managers throughout the state designed to:
(a)
Reduce the possibility of a client's admission or readmission to a state
treatment facility.
(b)
Provide for the creation or designation of an agency in each county to
provide single intake services for each person seeking mental health services.
Such agency shall provide information and referral services necessary to ensure
that clients receive the most appropriate and least restrictive form of care,
based on the individual needs of the person seeking treatment. Such agency
shall have a single telephone number, operating 24 hours per day, 7 days per
week, where practicable, at a central location, where each client will have a
central record.
(c)
Advocate on behalf of the client to ensure that all appropriate services
are afforded to the client in a timely and dignified manner.
(d)
Require that any public receiving facility initiating a patient transfer
to a licensed hospital for acute care mental health services not accessible
through the public receiving facility shall notify the hospital of such
transfer and send all records relating to the emergency psychiatric or medical
condition.
(3) The department is
directed to develop and include in contracts with service providers measures of
performance with regard to goals and objectives as specified in the state plan.
Such measures shall use, to the extent practical, existing data collection methods
and reports and shall not require, as a result of this subsection, additional
reports on the part of service providers. The department shall plan monitoring
visits of community mental health facilities with other state, federal, and
local governmental and private agencies charged with monitoring such
facilities.
(4) The department is
directed to submit a report to the Legislature, prior to April 1 of each year,
outlining departmental progress towards the implementation of the minimum
staffing patterns' standards in state mental health treatment facilities. The
report shall contain, by treatment facility, information regarding goals and
objectives and departmental performance toward meeting each such goal and
objective.
394.4574 Department responsibilities for a mental health resident who resides in an
assisted living facility that holds a limited mental health license.--
(1) The term
"mental health resident," for purposes of this section, means an
individual who receives social security disability income due to a mental
disorder as determined by the Social Security Administration or receives
supplemental security income due to a mental disorder as determined by the
Social Security Administration and receives optional state supplementation.
(2) The department
must ensure that:
(a)
A mental health resident has been assessed by a psychiatrist, clinical
psychologist, clinical social worker, or psychiatric nurse, or an individual
who is supervised by one of these professionals, and determined to be
appropriate to reside in an assisted living facility. The documentation must be
provided to the administrator of the facility within 30 days after the mental
health resident has been admitted to the facility. An evaluation completed upon
discharge from a state mental hospital meets the requirements of this
subsection related to appropriateness for placement as a mental health resident
if it was completed within 90 days prior to admission to the facility.
(b)
A cooperative agreement, as required in s. 400.4075, is developed
between the mental health care services provider that serves a mental health
resident and the administrator of the assisted living facility with a limited
mental health license in which the mental health resident is living. Any entity
that provides Medicaid prepaid health plan services shall ensure the
appropriate coordination of health care services with an assisted living
facility in cases where a Medicaid recipient is both a member of the entity's
prepaid health plan and a resident of the assisted living facility. If the
entity is at risk for Medicaid targeted case management and behavioral health
services, the entity shall inform the assisted living facility of the
procedures to follow should an emergent condition arise.
(c)
The community living support plan, as defined in s. 400.402, has been
prepared by a mental health resident and a mental health case manager of that
resident in consultation with the administrator of the facility or the
administrator's designee. The plan must be provided to the administrator of the
assisted living facility with a limited mental health license in which the
mental health resident lives. The support plan and the agreement may be in one
document.
(d)
The assisted living facility with a limited mental health license is
provided with documentation that the individual meets the definition of a
mental health resident.
(e)
The mental health services provider assigns a case manager to each
mental health resident who lives in an assisted living facility with a limited
mental health license. The case manager is responsible for coordinating the
development of and implementation of the community living support plan defined
in s. 400.402. The plan must be updated at least annually.
(3) The Secretary of
Children and Family Services, in consultation with the Agency for Health Care
Administration, shall annually require each district administrator to develop,
with community input, detailed plans that demonstrate how the district will
ensure the provision of state-funded mental health and substance abuse
treatment services to residents of assisted living facilities that hold a
limited mental health license. These plans must be consistent with the
substance abuse and mental health district plan developed pursuant to s. 394.75
and must address case management services; access to consumer-operated drop-in
centers; access to services during evenings, weekends, and holidays;
supervision of the clinical needs of the residents; and access to emergency
psychiatric care.
394.458 Introduction or removal of certain articles unlawful; penalty.--
(1)(a) Except as
authorized by law or as specifically authorized by the person in charge of each
hospital providing mental health services under this part, it is unlawful to
introduce into or upon the grounds of such hospital, or to take or attempt to
take or send therefrom, any of the following
articles, which are hereby declared to be contraband for the purposes of this
section:
1.
Any intoxicating beverage or beverage which causes or may cause an
intoxicating effect;
2.
Any controlled substance as defined in chapter 893; or
3.
Any firearms or deadly weapon.
(b)
It is unlawful to transmit to, or attempt to transmit to, or cause or
attempt to cause to be transmitted to, or received by, any patient of any
hospital providing mental health services under this part any article or thing
declared by this section to be contraband, at any place which is outside of the
grounds of such hospital, except as authorized by law or as specifically
authorized by the person in charge of such hospital.
(2) A person who
violates any provision of this section commits a felony of the third degree,
punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
394.459 Rights of patients.--
(1) RIGHT TO
INDIVIDUAL DIGNITY.--It is the policy of this state that the individual dignity
of the patient shall be respected at all times and upon all occasions,
including any occasion when the patient is taken into custody, held, or transported.
Procedures, facilities, vehicles, and restraining devices utilized for
criminals or those accused of crime shall not be used in connection with
persons who have a mental illness, except for the protection of the patient or
others. Persons who have a mental illness but who are not charged with a
criminal offense shall not be detained or incarcerated in the jails of this
state. A person who is receiving treatment for mental illness in a facility
shall not be deprived of any constitutional rights. However, if such a person
is adjudicated incapacitated, his or her rights may be limited to the same
extent the rights of any incapacitated person are limited by law.
(2) RIGHT TO
TREATMENT.--
(a)
A person shall not be denied treatment for mental illness and services
shall not be delayed at a receiving or treatment facility because of inability
to pay. However, every reasonable effort to collect appropriate reimbursement
for the cost of providing mental health services to persons able to pay for
services, including insurance or third-party payments, shall be made by
facilities providing services pursuant to this part.
(b)
It is further the policy of the state that the least restrictive
appropriate available treatment be utilized based on the individual needs and
best interests of the patient and consistent with optimum improvement of the
patient's condition.
(c)
Each person who remains at a receiving or treatment facility for more
than 12 hours shall be given a physical examination by a health practitioner
authorized by law to give such examinations, within 24 hours after arrival at
such facility.
(d)
Every patient in a facility shall be afforded the opportunity to
participate in activities designed to enhance self-image and the beneficial
effects of other treatments, as determined by the facility.
(e)
Not more than 5 days after admission to a facility, each patient shall
have and receive an individualized treatment plan in writing which the patient
has had an opportunity to assist in preparing and to review prior to its
implementation. The plan shall include a space for the patient's comments.
(3) RIGHT TO EXPRESS
AND INFORMED PATIENT CONSENT.--
(a)
Each patient entering a facility shall be asked to give express and
informed consent for admission and treatment. If the patient has been
adjudicated incapacitated or found to be incompetent to consent to treatment,
express and informed consent to treatment shall be sought instead from the
patient's guardian or guardian advocate. If the patient is a minor, express and
informed consent for admission and treatment shall also be requested from the
patient's guardian. Express and informed consent for admission and treatment of
a patient under 18 years of age shall be required from
the patient's guardian, unless the minor is seeking outpatient crisis
intervention services under s. 394.4784. Express and informed consent for
admission and treatment given by a patient who is under 18 years of age shall
not be a condition of admission when the patient's guardian gives express and
informed consent for the patient's admission pursuant to s. 394.463 or s.
394.467. Prior to giving consent, the following information shall be disclosed
to the patient, or to the patient's guardian if the patient is 18 years of age or
older and has been adjudicated incapacitated, or to the patient's guardian
advocate if the patient has been found to be incompetent to consent to
treatment, or to both the patient and the guardian if the patient is a minor:
the reason for admission, the proposed treatment, the purpose of the treatment
to be provided, the common side effects thereof, alternative treatment
modalities, the approximate length of care, and that any consent given by a
patient may be revoked orally or in writing prior to or during the treatment
period by the patient, the guardian advocate, or the guardian.
(b)
In the case of medical procedures requiring the use of a general
anesthetic or electroconvulsive treatment, and prior
to performing the procedure, express and informed consent shall be obtained
from the patient if the patient is legally competent, from the guardian of a
minor patient, from the guardian of a patient who has been adjudicated
incapacitated, or from the guardian advocate of the patient if the guardian
advocate has been given express court authority to consent to medical
procedures or electroconvulsive treatment as provided
under s. 394.4598.
(c)
When the department is the legal guardian of a patient, or is the
custodian of a patient whose physician is unwilling to perform a medical
procedure, including an electroconvulsive treatment,
based solely on the patient's consent and whose guardian or guardian advocate
is unknown or unlocatable, the court shall hold a
hearing to determine the medical necessity of the medical procedure. The
patient shall be physically present, unless the patient's medical condition
precludes such presence, represented by counsel, and provided the right and
opportunity to be confronted with, and to cross-examine, all witnesses alleging
the medical necessity of such procedure. In such proceedings, the burden of
proof by clear and convincing evidence shall be on the party alleging the
medical necessity of the procedure.
(d)
The administrator of a receiving or treatment facility may, upon the
recommendation of the patient's attending physician, authorize emergency
medical treatment, including a surgical procedure, if such treatment is deemed
lifesaving, or if the situation threatens serious bodily harm to the patient,
and permission of the patient or the patient's guardian or guardian advocate
cannot be obtained.
(4) QUALITY OF
TREATMENT.--
(a)
Each patient in a facility shall receive services suited to his or her
needs, which shall be administered skillfully, safely, and humanely with full
respect for the patient's dignity and personal integrity. Each patient shall
receive such medical, vocational, social, educational, and rehabilitative
services as his or her condition requires to bring
about an early return to the community. In order to achieve this goal, the
department is directed to coordinate its mental health programs with all other
programs of the department and other state agencies.
(b)
Receiving and treatment facilities shall develop and maintain, in a form
accessible to and readily understandable by patients, the following:
1.
Criteria, procedures, and required staff training for any use of close
or elevated levels of supervision, of restraint, seclusion, or isolation, or of
emergency treatment orders, and for the use of bodily control and physical
management techniques.
2.
Procedures for documenting, monitoring, and requiring clinical review of
all uses of the procedures described in subparagraph 1. and for documenting and
requiring review of any incidents resulting in injury to patients.
3.
A system for the review of complaints by patients or their families or
guardians.
(c)
A facility may not use seclusion or restraint for punishment, to
compensate for inadequate staffing, or for the convenience of staff. Facilities
shall ensure that all staff are made aware of these restrictions on the use of
seclusion and restraint and shall make and maintain records which demonstrate
that this information has been conveyed to individual staff members.
(5) COMMUNICATION, ABUSE
REPORTING, AND VISITS.--
(a)
Each person receiving services in a facility providing mental health
services under this part 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 person or others. Each facility shall make
available as soon as reasonably possible to persons receiving services a
telephone that allows for free local calls and access to a long-distance
service. A facility is not required to pay the costs of a patient's
long-distance calls. The telephone shall be readily accessible to the patient
and shall be placed so that the patient may use it to communicate privately and
confidentially. The facility may establish reasonable rules for the use of this
telephone, provided that the rules do not interfere with a patient's access to
a telephone to report abuse pursuant to paragraph (e).
(b)
Each patient admitted to a facility under the provisions of this part
shall be allowed to receive, send, and mail sealed, unopened correspondence;
and no patient'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 patient or others, in
which case the administrator may direct reasonable examination of such mail and
may regulate the disposition of such items or substances.
(c)
Each facility must permit immediate access to any patient, subject to
the patient's right to deny or withdraw consent at any time, by the patient's
family members, guardian, guardian advocate, representative,
(d)
Each facility shall establish reasonable rules governing visitors,
visiting hours, and the use of telephones by patients in the least restrictive
possible manner. Patients shall have the right to contact and to receive
communication from their attorneys at any reasonable time.
(e)
Each patient receiving mental health treatment in any facility shall
have ready access to a telephone in order to report an alleged abuse. The
facility staff shall orally and in writing inform each patient of the procedure
for reporting abuse and shall make every reasonable effort to present the
information in a language the patient 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 shall adopt rules providing a procedure for reporting
abuse. Facility staff shall be required, as a condition of employment, to
become familiar with the requirements and procedures for the reporting of
abuse.
(6) CARE AND CUSTODY
OF PERSONAL EFFECTS OF PATIENTS.--A patient's right to the possession of his or
her clothing and personal effects shall be respected. The facility may take
temporary custody of such effects when required for medical and safety reasons.
A patient's clothing and personal effects shall be inventoried upon their
removal into temporary custody. Copies of this inventory shall be given to the
patient and to the patient's guardian, guardian advocate, or representative and
shall be recorded in the patient's clinical record. This inventory may be
amended upon the request of the patient or the patient's guardian, guardian
advocate, or representative. The inventory and any amendments to it must be
witnessed by two members of the facility staff and by the patient, if able. All
of a patient's clothing and personal effects held by the facility shall be returned
to the patient immediately upon the discharge or transfer of the patient from
the facility, unless such return would be detrimental to the patient. If
personal effects are not returned to the patient, the reason must be documented
in the clinical record along with the disposition of the clothing and personal
effects, which may be given instead to the patient's guardian, guardian
advocate, or representative. As soon as practicable after an emergency transfer
of a patient, the patient's clothing and personal effects shall be transferred
to the patient's new location, together with a copy of the inventory and any
amendments, unless an alternate plan is approved by the patient, if able, and
by the patient's guardian, guardian advocate, or representative.
(7) VOTING IN PUBLIC
ELECTIONS.--A patient in a facility 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 patients to obtain voter registration
forms, applications for absentee ballots, and absentee ballots.
(8) HABEAS CORPUS.--
(a)
At any time, and without notice, a person held in a receiving or
treatment facility, or a relative, friend, guardian, guardian advocate,
representative, or attorney, or the department, on behalf of such person, may
petition for a writ of habeas corpus to question the cause and legality of such
detention and request that the court order a return to the writ in accordance
with chapter 79. Each patient held in a facility shall receive a written notice
of the right to petition for a writ of habeas corpus.
(b)
At any time, and without notice, a person who is a patient in a
receiving or treatment facility, or a relative, friend, guardian, guardian
advocate, representative, or attorney, or the department, on behalf of such
person, may file a petition in the circuit court in the county where the
patient is being held alleging that the patient 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 court shall have the
authority to conduct a judicial inquiry and to issue any order needed to
correct an abuse of the provisions of this part.
(c)
The administrator of any receiving or treatment facility receiving a
petition under this subsection shall file the petition with the clerk of the
court on the next court working day.
(d)
No fee shall be charged for the filing of a petition under this
subsection.
(9) VIOLATIONS.--The
department shall report to the Agency for Health Care Administration any
violation of the rights or privileges of patients, or of any procedures
provided under this part, by any facility or professional licensed or regulated
by the agency. The agency is authorized to impose any sanction authorized for
violation of this part, based solely on the investigation and findings of the
department.
(10) LIABILITY FOR
VIOLATIONS.--Any person who violates or abuses any rights or privileges of
patients provided by this part is liable for damages as determined by law. Any
person who acts in good faith in compliance with the provisions of this part is
immune from civil or criminal liability for his or her actions in connection
with the admission, diagnosis, treatment, or discharge of a patient to or from
a facility. However, this section does not relieve any person from liability if
such person commits negligence.
(11) RIGHT TO
PARTICIPATE IN TREATMENT AND DISCHARGE PLANNING.--The patient shall have the opportunity
to participate in treatment and discharge planning and shall be notified in
writing of his or her right, upon discharge from the facility, to seek
treatment from the professional or agency of the patient's choice.
(12) POSTING OF
NOTICE OF RIGHTS OF PATIENTS.--Each facility shall post a notice listing and
describing, in the language and terminology that the persons to whom the notice
is addressed can understand, the rights provided in this section. This notice
shall include a statement that provisions of the federal Americans with
Disabilities Act apply and the name and telephone number of a person to contact
for further information. This notice shall be posted in a place readily
accessible to patients and in a format easily seen by patients. This notice
shall include the telephone numbers of the
394.4595 Florida statewide and local advocacy
councils; access to patients and records.--Any facility designated by the department as a
receiving or treatment facility must allow access to any patient and the
clinical and legal records of any patient admitted pursuant to the provisions
of this act by members of the Florida statewide and local advocacy councils.
394.4597 Persons to be notified; patient's representative.--
(1) VOLUNTARY
PATIENTS.--At the time a patient is voluntarily admitted to a receiving or
treatment facility, the identity and contact information of a person to be
notified in case of an emergency shall be entered in the patient's clinical
record.
(2) INVOLUNTARY
PATIENTS.--
(a)
At the time a patient is admitted to a facility for involuntary
examination or placement, or when a petition for involuntary placement is
filed, the names, addresses, and telephone numbers of the patient's guardian or
guardian advocate, or representative if the patient has no guardian, and the
patient's attorney shall be entered in the patient's clinical record.
(b)
If the patient has no guardian, the patient shall be asked to designate
a representative. If the patient is unable or unwilling to designate a
representative, the facility shall select a representative.
(c)
The patient shall be consulted with regard to the selection of a
representative by the receiving or treatment facility and shall have authority
to request that any such representative be replaced.
(d)
When the receiving or treatment facility selects a representative, first
preference shall be given to a health care surrogate, if one has been previously
selected by the patient. If the patient has not previously selected a health
care surrogate, the selection, except for good cause documented in the
patient's clinical record, shall be made from the following list in the order
of listing:
1.
The patient's spouse.
2.
An adult child of the patient.
3.
A parent of the patient.
4.
The adult next of kin of the patient.
5.
An adult friend of the patient.
6.
The appropriate
(e)
A licensed professional providing services to the patient under this
part, an employee of a facility providing direct services to the patient under
this part, a department employee, a person providing other substantial services
to the patient in a professional or business capacity, or a creditor of the
patient shall not be appointed as the patient's representative.
394.4598 Guardian advocate.--
(1) The administrator
may petition the court for the appointment of a guardian advocate based upon
the opinion of a psychiatrist that the patient is incompetent to consent to
treatment. If the court finds that a patient is incompetent to consent to
treatment and has not been adjudicated incapacitated and a guardian with the
authority to consent to mental health treatment appointed, it shall appoint a
guardian advocate. The patient has the right to have an attorney represent him
or her at the hearing. If the person is indigent, the court shall appoint the
office of the public defender to represent him or her at the hearing. The
patient has the right to testify, cross-examine witnesses, and present
witnesses. The proceeding shall be recorded either electronically or stenographically, and testimony shall be provided under
oath. One of the professionals authorized to give an opinion in support of a
petition for involuntary placement, as described in s. 394.467(2), must
testify. A guardian advocate must meet the qualifications of a guardian
contained in part IV of chapter 744, except that a professional referred to in
this part, an employee of the facility providing direct services to the patient
under this part, a departmental employee, a facility administrator, or member
of the Florida local advocacy council shall not be appointed. A person who is
appointed as a guardian advocate must agree to the appointment.
(2) A facility
requesting appointment of a guardian advocate must, prior to the appointment,
provide the prospective guardian advocate with information about the duties and
responsibilities of guardian advocates, including the information about the
ethics of medical decisionmaking. Before asking a
guardian advocate to give consent to treatment for a patient, the facility
shall provide to the guardian advocate sufficient information so that the
guardian advocate can decide whether to give express and informed consent to
the treatment, including information that the treatment is essential to the
care of the patient, and that the treatment does not present an unreasonable
risk of serious, hazardous, or irreversible side effects. Before giving consent
to treatment, the guardian advocate must meet and talk with the patient and the
patient's physician in person, if at all possible, and by telephone, if not.
The decision of the guardian advocate may be reviewed by the court, upon
petition of the patient's attorney, the patient's family, or the facility
administrator.
(3) Prior to a
guardian advocate exercising his or her authority, the guardian advocate shall
attend a training course approved by the court. This training course, of not
less than 4 hours, must include, at minimum, information about the patient
rights, psychotropic medications, diagnosis of mental illness, the ethics of
medical decisionmaking, and duties of guardian
advocates. This training course shall take the place of the training required
for guardians appointed pursuant to chapter 744.
(4) The information
to be supplied to prospective guardian advocates prior to their appointment and
the training course for guardian advocates must be developed and completed
through a course developed by the department and approved by the chief judge of
the circuit court and taught by a court-approved organization. Court-approved
organizations may include, but are not limited to, community or junior
colleges, guardianship organizations, and the local bar association or The
Florida Bar. The court may, in its discretion, waive some or all of the
training requirements for guardian advocates or impose additional requirements.
The court shall make its decision on a case-by-case basis and, in making its
decision, shall consider the experience and education of the guardian advocate,
the duties assigned to the guardian advocate, and the needs of the patient.
(5) In selecting a
guardian advocate, the court shall give preference to a health care surrogate,
if one has already been designated by the patient. If the patient has not
previously selected a health care surrogate, except for good cause documented
in the court record, the selection shall be made from the following list in the
order of listing:
(a)
The patient's spouse.
(b)
An adult child of the patient.
(c)
A parent of the patient.
(d)
The adult next of kin of the patient.
(e)
An adult friend of the patient.
(f)
An adult trained and willing to serve as guardian advocate for the
patient.
(6) If a guardian
with the authority to consent to medical treatment has not already been
appointed or if the patient has not already designated a health care surrogate,
the court may authorize the guardian advocate to consent to medical treatment,
as well as mental health treatment. Unless otherwise limited by the court, a
guardian advocate with authority to consent to medical treatment shall have the
same authority to make health care decisions and be subject to the same
restrictions as a proxy appointed under part IV of chapter 765. Unless the
guardian advocate has sought and received express court approval in proceeding
separate from the proceeding to determine the competence of the patient to
consent to medical treatment, the guardian advocate may not consent to:
(a)
Abortion.
(b)
Sterilization.
(c)
Electroconvulsive treatment.
(d)
Psychosurgery.
(e)
Experimental treatments that have not been approved by a federally
approved institutional review board in accordance with 45 C.F.R. part 46 or 21
C.F.R. part 56.
The court must base its decision on evidence that the
treatment or procedure is essential to the care of the patient and that the
treatment does not present an unreasonable risk of serious, hazardous, or
irreversible side effects. The court shall follow the procedures set forth in
subsection (1) of this section.
(7) The guardian
advocate shall be discharged when the patient is discharged from a receiving or
treatment facility to the community or when the patient is transferred from
involuntary to voluntary status. The court or a hearing officer shall consider
the competence of the patient pursuant to subsection (1) and may consider an
involuntarily placed patient's competence to consent to treatment at any
hearing. Upon sufficient evidence, the court may restore, or the hearing
officer may recommend that the court restore, the patient's competence. A copy
of the order restoring competence or the certificate of discharge containing
the restoration of competence shall be provided to the patient and the guardian
advocate.
394.4599 Notice.--
(1) VOLUNTARY
PATIENTS.--Notice of a voluntary patient's admission shall only be given at the
request of the patient, except that in an emergency, notice shall be given as
determined by the facility.
(2) INVOLUNTARY
PATIENTS.--
(a)
Whenever notice is required to be given under this part, such notice
shall be given to the patient and the patient's guardian, guardian advocate,
attorney, and representative.
1.
When notice is required to be given to a patient, it shall be given both
orally and in writing, in the language and terminology that the patient can
understand, and, if needed, the facility shall provide an interpreter for the
patient.
2.
Notice to a patient's guardian, guardian advocate, attorney, and
representative shall be given by
(b)
A receiving facility shall give prompt notice of the whereabouts of a
patient who is being involuntarily held for examination, by telephone or in
person within 24 hours after the patient's arrival at the facility, unless the
patient requests that no notification be made. Contact attempts shall be
documented in the patient's clinical record and shall begin as soon as
reasonably possible after the patient's arrival. Notice that a patient is being
admitted as an involuntary patient shall be given to the
(c)
The written notice of the filing of the petition for involuntary
placement must contain the following:
1.
Notice that the petition has been filed with the circuit court in the
county in which the patient is hospitalized and the address of such court.
2.
Notice that the office of the public defender has been appointed to
represent the patient in the proceeding, if the patient is not otherwise
represented by counsel.
3.
The date, time, and place of the hearing and the name of each examining
expert and every other person expected to testify in support of continued
detention.
4.
Notice that the patient, the patient's guardian or representative, or
the administrator may apply for a change of venue for the convenience of the
parties or witnesses or because of the condition of the patient.
5.
Notice that the patient is entitled to an independent expert examination
and, if the patient cannot afford such an examination, that the court will
provide for one.
(d)
A treatment facility shall provide notice of a patient's involuntary
admission on the next regular working day after the patient's arrival at the
facility.
(e)
When a patient is to be transferred from one facility to another, notice
shall be given by the facility where the patient is located prior to the
transfer.
394.460 Rights of professionals.-- No professional referred to in this part shall be required to accept
patients for treatment of mental, emotional, or behavioral disorders. Such
participation shall be voluntary.
394.461 Designation of receiving and treatment
facilities.--The
department is authorized to designate and monitor receiving facilities and
treatment facilities and may suspend or withdraw such designation for failure
to comply with this part and rules adopted under this part. Unless designated
by the department, facilities are not permitted to hold or treat involuntary
patients under this part.
(1) RECEIVING
FACILITY.--The department may designate any community facility as a receiving
facility. Any other facility within the state, including a private facility or
a federal facility, may be so designated by the department, provided that such
designation is agreed to by the governing body or authority of the facility.
(2) TREATMENT
FACILITY.--The department may designate any state-owned, state-operated, or
state-supported facility as a state treatment facility. A civil patient shall
not be admitted to a state treatment facility without previously undergoing a
transfer evaluation. Before a court hearing for involuntary placement in a
state treatment facility, the court shall receive and consider the information
documented in the transfer evaluation. Any other facility, including a private
facility or a federal facility, may be designated as a treatment facility by
the department, provided that such designation is agreed to by the appropriate
governing body or authority of the facility.
(3) PRIVATE
FACILITIES.--Private facilities designated as receiving and treatment
facilities by the department may provide examination and treatment of
involuntary patients, as well as voluntary patients, and are subject to all the
provisions of this part.
(4) RULES.--The
department shall adopt rules relating to:
(a)
Procedures and criteria for receiving and evaluating facility
applications for designation, which may include onsite facility inspection and
evaluation of an applicant's licensing status and performance history, as well
as consideration of local service needs.
(b)
Minimum standards consistent with this part that a facility must meet
and maintain in order to be designated as a receiving or treatment facility and
procedures for monitoring continued adherence to such standards.
(c)
Procedures for receiving complaints against a designated facility and
for initiating inspections and investigations of facilities alleged to have
violated the provisions of this part or rules adopted under this part.
(d)
Procedures and criteria for the suspension or withdrawal of designation.
394.4615 Clinical records; confidentiality.--
(1) A clinical record
shall be maintained for each patient. The record shall include data pertaining
to admission and such other information as may be required under rules of the
department. A clinical record is confidential and exempt from the provisions of
s. 119.07(1). Unless waived by express and informed consent, by the patient or
the patient's guardian or guardian advocate or, if the patient is deceased, by
the patient's personal representative or the family member who stands next in
line of intestate succession, the confidential status
of the clinical record shall not be lost by either authorized or unauthorized
disclosure to any person, organization, or agency.
(2) The clinical
record shall be released when:
(a)
The patient or the patient's guardian authorizes the release. The
guardian or guardian advocate shall be provided access to the appropriate
clinical records of the patient. The patient or the patient's guardian or
guardian advocate may authorize the release of information and clinical records
to appropriate persons to ensure the continuity of the patient's health care or
mental health care.
(b)
The patient is represented by counsel and the records are needed by the
patient's counsel for adequate representation.
(c)
The court orders such release. In determining whether there is good
cause for disclosure, the court shall weigh the need for the information to be
disclosed against the possible harm of disclosure to the person to whom such
information pertains.
(d)
The patient is committed to, or is to be returned to, the Department of
Corrections from the Department of Children and Family Services, and the
Department of Corrections requests such records. These records shall be
furnished without charge to the Department of Corrections.
(3) Information from
the clinical record may be released when:
(a)
A patient has declared an intention to harm other persons. When such
declaration has been made, the administrator may authorize the release of
sufficient information to provide adequate warning to the person threatened
with harm by the patient.
(b)
The administrator of the facility or secretary of the department deems
release to a qualified researcher as defined in administrative rule, an
aftercare treatment provider, or an employee or agent of the department is
necessary for treatment of the patient, maintenance of adequate records,
compilation of treatment data, aftercare planning, or evaluation of programs.
(4) Information from
clinical records may be used for statistical and research purposes if the
information is abstracted in such a way as to protect the identity of
individuals.
(5) Information from
clinical records may be used by the Agency for Health Care Administration, the
department, and the
(6) Clinical records
relating to a Medicaid recipient shall be furnished to the Medicaid Fraud
Control Unit in the Department of Legal Affairs, upon request.
(7) Any person,
agency, or entity receiving information pursuant to this section shall maintain
such information as confidential and exempt from the provisions of s.
119.07(1).