Florida Senate - 2015 SB 1340
By Senator Latvala
20-00160-15 20151340__
1 A bill to be entitled
2 An act relating to mental health and substance abuse;
3 amending s. 394.4598, F.S.; authorizing a family
4 member of a patient or an interested party to petition
5 a court for the appointment of a guardian advocate;
6 requiring a court to give preference to certain
7 specified surrogates if such surrogate has already
8 been designated by the patient; creating s. 397.803,
9 F.S.; establishing the Substance Abuse Assistance
10 Pilot Program within the Department of Children and
11 Families; requiring the department to determine a
12 target number of participants within available funds;
13 providing the purpose of the pilot program; requiring
14 the program to develop safe and cost efficient
15 treatment alternatives and provide comprehensive case
16 management services for eligible substance abuse
17 impaired adults; authorizing participation in the
18 program as an alternative to criminal imprisonment;
19 requiring that each pilot program submit specified
20 data to the department on a monthly basis; providing
21 eligibility criteria; requiring that maximum
22 enrollment be determined on the basis of available
23 funding; requiring the department to contract with
24 specified entities to serve as program managers;
25 specifying the functions of the program manager;
26 requiring the department to establish certain criteria
27 and qualifications for the project manager; requiring
28 a pilot program site to only have one network in the
29 region; providing requirements for provider networks;
30 specifying services that must be provided by a
31 provider network; specifying that the primary payor
32 for services provided through the program is the
33 participant’s private pay or Medicaid insurance
34 coverage; allowing eligible participants to share in
35 the cost of provided services based on ability to pay;
36 requiring the department to provide an annual report
37 to the Governor and Legislature evaluating the impact
38 of the program; requiring such report to include
39 specified information; transferring and renumbering s.
40 765.401, F.S.; transferring and renumbering s.
41 765.404, F.S.; providing a directive to the Division
42 of Law Revision and Information; creating s. 765.4015,
43 F.S.; providing a short title; creating s. 765.402,
44 F.S.; providing legislative findings; creating s.
45 765.403, F.S.; defining terms; creating s. 765.405,
46 F.S.; authorizing an adult with capacity to execute a
47 mental health or substance abuse treatment advance
48 directive; providing a presumption of validity if
49 certain requirements are met; providing for execution
50 of the mental health or substance abuse treatment
51 advanced directive; creating s. 765.406, F.S.;
52 establishing requirements for a valid mental health or
53 substance abuse treatment advance directive; providing
54 that a mental health or substance abuse treatment
55 directive is valid upon execution even if a part of
56 the mental health or substance abuse treatment
57 directive takes effect at a later date; allowing a
58 mental health or substance abuse treatment directive
59 to be revoked, in whole or in part, or to expire under
60 its own terms; specifying that a mental health or
61 substance abuse treatment advance directive does not
62 or may not serve specified purposes; creating s.
63 765.407, F.S.; providing circumstances under which a
64 mental health or substance abuse treatment advance
65 directive may be revoked; providing circumstances
66 under which a principal may waive specific directive
67 provisions without revoking the directive; creating s.
68 765.408, F.S.; providing legislative findings and
69 legislative intent for self-binding arrangements;
70 providing requirements for creating such arrangements;
71 creating s. 765.409, F.S.; specifying the conditions
72 under which a principal may be admitted for inpatient
73 mental health or substance abuse treatment; providing
74 that creation of an irrevocable directive of consent
75 to inpatient treatment creates a rebuttable
76 presumption of incapacity; authorizing a principal to
77 be admitted to, or remain in, inpatient treatment for
78 up to 14 days; requiring express consent in a
79 directive for the administration of psychotropic
80 medication; requiring conditions for administering
81 such medication; prohibiting a principal from
82 authorizing psychosurgery or electroconvulsive therapy
83 in a directive; authorizing a principal to seek
84 specified injunctive relief; creating s. 765.410,
85 F.S.; prohibiting criminal prosecution of a health
86 care facility, provider, or surrogate who acts
87 pursuant to a mental health or substance abuse
88 treatment decision; creating s. 765.411, F.S.;
89 providing for recognition of a mental health and
90 substance abuse treatment advanced directive executed
91 in another state if it complies with the laws of this
92 state; amending ss. 395.0197, 395.1051, 456.0575,
93 765.101, and 765.104, F.S.; conforming cross
94 references; reenacting ss. 394.459(3)(b), 394.4598(6)
95 and (7), 394.4655(6)(d) and (7)(f), 394.467(6)(d),
96 394.46715, and 765.202(5), F.S., to incorporate the
97 amendment made to s. 394.4598, F.S., in references
98 thereto; providing an effective date.
99
100 Be It Enacted by the Legislature of the State of Florida:
101
102 Section 1. Subsections (1) and (5) of section 394.4598,
103 Florida Statutes, are amended to read:
104 394.4598 Guardian advocate.—
105 (1) The administrator, a family member of the patient, or
106 an interested party, may petition the court for the appointment
107 of a guardian advocate based upon the opinion of a psychiatrist
108 that the patient is incompetent to consent to treatment. If the
109 court finds that a patient is incompetent to consent to
110 treatment and has not been adjudicated incapacitated and a
111 guardian with the authority to consent to mental health
112 treatment appointed, it shall appoint a guardian advocate. The
113 patient has the right to have an attorney represent him or her
114 at the hearing. If the person is indigent, the court shall
115 appoint the office of the public defender to represent him or
116 her at the hearing. The patient has the right to testify, cross
117 examine witnesses, and present witnesses. The proceeding shall
118 be recorded either electronically or stenographically, and
119 testimony shall be provided under oath. One of the professionals
120 authorized to give an opinion in support of a petition for
121 involuntary placement, as described in s. 394.4655 or s.
122 394.467, must testify. A guardian advocate must meet the
123 qualifications of a guardian contained in part IV of chapter
124 744, except that a professional referred to in this part, an
125 employee of the facility providing direct services to the
126 patient under this part, a departmental employee, a facility
127 administrator, or member of the Florida local advocacy council
128 shall not be appointed. A person who is appointed as a guardian
129 advocate must agree to the appointment.
130 (5) In selecting a guardian advocate, the court shall give
131 preference to a health care, mental health care, or substance
132 abuse treatment surrogate, if one has already been designated by
133 the patient. If the patient has not previously selected a health
134 care, mental health care, or substance abuse treatment
135 surrogate, except for good cause documented in the court record,
136 the selection shall be made from the following list in the order
137 of listing:
138 (a) The patient’s spouse.
139 (b) An adult child of the patient.
140 (c) A parent of the patient.
141 (d) The adult next of kin of the patient.
142 (e) An adult friend of the patient.
143 (f) An adult trained and willing to serve as guardian
144 advocate for the patient.
145 Section 2. Section 397.803, Florida Statutes, is created to
146 read:
147 397.803 Substance Abuse Assistance Pilot Program.—
148 (1) PILOT PROGRAM.—
149 (a) There is created within the Department of Children and
150 Families the Substance Abuse Assistance Pilot Program in such
151 regions of the state as may be designated in the general
152 appropriations act.
153 (b) Within available funding, the department shall
154 determine a target number of participants in each pilot program
155 region.
156 (c) The pilot program is created to determine whether the
157 provision of comprehensive care through a coordinated system of
158 case management that offers a range of recovery support services
159 during and after treatment for acute episodes leads to increased
160 employment, stability in housing, and decreased involvement in
161 the criminal justice system on the part of participants.
162 (d) The pilot program shall provide a comprehensive
163 continuum of high-quality and accessible substance abuse
164 intervention, residential and outpatient treatment,
165 comprehensive case management, and recovery support services for
166 substance abuse impaired adults.
167 (e) The pilot program in each selected region shall develop
168 safe and cost efficient treatment alternatives and provide
169 comprehensive case management and continuum of care services for
170 eligible substance abuse impaired adults.
171 (f) Participation in the pilot program may be designated as
172 an alternative to criminal imprisonment for substance abuse
173 impaired adults, as appropriate.
174 (g) Each pilot program region shall submit data to the
175 department on a monthly basis that, at a minimum, reports
176 characteristics of the participants, use of services, and such
177 data as necessary to measure changes in participants’ status
178 with regard to housing, employment, and criminal activity.
179 (2) ELIGIBILITY AND ENROLLMENT.—
180 (a) To be eligible for participation in the pilot program,
181 a person must:
182 1. Be 18 years of age or older with a history of chronic
183 substance abuse or addiction.
184 2. Execute a mental health or substance abuse treatment
185 directive as defined in s. 765.403. The directive must include a
186 self-binding arrangement as specified in s. 765.408. In the
187 event that an eligible participant does not have a family member
188 or other adult available to serve as a surrogate as defined in
189 s. 765.403, the entity under contract with the Statewide Public
190 Guardianship Office in that region shall be appointed to serve
191 as the surrogate.
192 3. Eligible participants shall share responsibility for the
193 costs of pilot program services according to their ability to
194 pay, based on a sliding fee scale.
195 (b) Maximum enrollment shall be determined by the
196 department, based on available funding.
197 (3) SYSTEM OF CARE; CASE MANAGEMENT; PAYMENT METHOD.—
198 (a) The department shall contract with the Medicaid managed
199 care organization or behavioral health managing entity operating
200 in the applicable geographic region to serve as program manager.
201 (b) The program manager is responsible for the following
202 functions:
203 1. Network management including recruitment and retention
204 of an adequate number of qualified service providers to ensure
205 accessibility and quality of care;
206 2. Coordination of care, including the development and
207 implementation of organizational structures and operational
208 policies necessary to ensure that the network provides
209 continuity of care and avoids unnecessary duplication of
210 services;
211 3. Comprehensive case management, which may be provided by
212 the program manager or by a contracted service provider,
213 including direct interaction with participants and other
214 activities necessary to assess, plan, implement, and monitor the
215 needed services; and
216 4. Administrative functions for the network including, but
217 not limited to, data management, financial management, and
218 contract compliance.
219 (c) The department shall establish criteria for ensuring
220 that an adequate number of providers are included in the network
221 and for provider qualifications, which shall be specified in the
222 contract with the program manager. The pilot program shall be
223 limited to one network in the region for the duration of the
224 pilot program. The provider network shall:
225 1. Offer a comprehensive range of services for substance
226 abuse impaired or drug addicted adults.
227 2. Enter into agreements with law enforcement agencies and
228 the criminal justice system to divert nonviolent offenders with
229 histories of serious substance abuse or chronic addiction into
230 intensive treatment, comprehensive case management, and
231 rehabilitation services.
232 3. Enter into an agreement with the appropriate
233 neighborhood housing services program to provide housing
234 assistance to eligible participants.
235 4. Enter into an agreement with the entity under contract
236 with the Statewide Public Guardianship Office in the pilot
237 program region to provide guardians to act in the capacity of
238 surrogates for eligible participants who do not have family
239 members or other adults available to perform such duties.
240 5. Enter into an agreement with the applicable nonprofit
241 local legal services organization serving the pilot program
242 region to provide legal assistance to eligible participants.
243 (4) SERVICES.—The network must be capable of providing, at
244 a minimum, the following services to substance abuse impaired or
245 drug addicted adults:
246 1. Comprehensive case management and continuum of care
247 coordination;
248 2. Outpatient treatment services;
249 3. Crisis care, including mobile response, and
250 detoxification in short-term residential facilities;
251 4. Inpatient treatment services;
252 5. Step-down residential treatment services;
253 6. Housing needs assessment and assistance;
254 7. Employment assistance programs;
255 8. Transportation needs assessment and assistance; and
256 9. Legal services.
257 (5) PAYMENT FOR SERVICES.—
258 (a) The general revenue funds appropriated by the
259 legislature for the purposes of this section shall be applied to
260 payment for services only after an eligible participant’s
261 private pay or Medicaid insurance coverage has been exhausted.
262 (b) An eligible participant may share in the cost of
263 provided services based on his or her ability to pay.
264 (6) ACCOUNTABILITY; ANNUAL REPORTS.—
265 (a) By October 1 of each year, the department shall provide
266 a written report to the Governor, the President of the Senate,
267 and the Speaker of the House of Representatives which describes
268 the operation and effectiveness of the pilot program. The report
269 must include, but is not limited to, an evaluation of the impact
270 of the following components of the program:
271 1. Comprehensive case management;
272 2. Care coordination and followup care;
273 3. Housing initiatives; and
274 4. Employment assistance.
275 (b) The report must include a recommendation regarding the
276 continuation, expansion, or termination of the pilot program.
277 Section 3. Section 765.401, Florida Statutes, is
278 transferred and renumbered as section 765.311, Florida Statutes.
279 Section 4. Section 765.404, Florida Statutes, is
280 transferred and renumbered as section 765.312, Florida Statutes.
281 Section 5. The Division of Law Revision and Information is
282 directed to rename part IV of chapter 765, Florida Statutes, as
283 “Mental Health and Substance Abuse Advance Directives.”
284 Section 6. Section 765.4015 is created to read:
285 765.4015 Short title.—Sections 765.402-765.411 may be cited
286 as the “Jennifer Act.”
287 Section 7. Section 765.402, Florida Statutes, is created to
288 read:
289 765.402 Legislative findings.—
290 (1) The Legislature recognizes that an individual with
291 capacity has the ability to control decisions relating to his or
292 her own mental health care or substance abuse treatment. The
293 Legislature finds that:
294 (a) Substance abuse and some mental illnesses cause
295 individuals to fluctuate between capacity and incapacity;
296 (b) During periods when an individual’s capacity is
297 unclear, the individual may be unable to provide informed
298 consent necessary to access needed treatment;
299 (c) Early treatment may prevent an individual from becoming
300 so ill that involuntary treatment is necessary; and
301 (d) Individuals with substance abuse impairment or mental
302 illness need an established procedure to express their
303 instructions and preferences for treatment and provide advance
304 consent to or refusal of treatment. This procedure should be
305 less expensive and less restrictive than guardianship.
306 (2) The Legislature further recognizes that:
307 (a) A mental health or substance abuse treatment advance
308 directive must provide the individual with a full range of
309 choices.
310 (b) For a mental health or substance abuse directive to be
311 an effective tool, individuals must be able to choose how they
312 want their directives to be applied, including the right of
313 revocation, during periods of incapacity.
314 (c) There must be a clear process so that treatment
315 providers can abide by an individual’s treatment choices.
316 Section 8. Section 765.403, Florida Statutes, is created to
317 read:
318 765.403 Definitions.—As used in this section, the term:
319 (1) “Adult” means any individual who has attained the age
320 of majority or is an emancipated minor.
321 (2) “Capacity” means that an adult has not been found to be
322 incapacitated pursuant to s. 394.463.
323 (3) “Health care facility” means a hospital, nursing home,
324 hospice, home health agency, or health maintenance organization
325 licensed in this state, or any facility subject to part I of
326 chapter 394.
327 (4) “Incapacity” or “incompetent” means an adult who is:
328 (a) Unable to understand the nature, character, and
329 anticipated results of proposed treatment or alternatives or the
330 recognized serious possible risks, complications, and
331 anticipated benefits of treatments and alternatives, including
332 nontreatment;
333 (b) Physically or mentally unable to communicate a willful
334 and knowing decision about mental health care or substance abuse
335 treatment;
336 (c) Unable to communicate his or her understanding or
337 treatment decisions; or
338 (d) Determined incompetent pursuant to s. 394.463.
339 (5) “Informed consent” means consent voluntarily given by a
340 person after a sufficient explanation and disclosure of the
341 subject matter involved to enable that person to have a general
342 understanding of the treatment or procedure and the medically
343 acceptable alternatives, including the substantial risks and
344 hazards inherent in the proposed treatment or procedures or
345 nontreatment, and to make knowing mental health care or
346 substance abuse treatment decisions without coercion or undue
347 influence.
348 (6) “Mental health or substance abuse treatment advance
349 directive” means a written document in which the principal makes
350 a declaration of instructions or preferences or appoints a
351 surrogate to make decisions on behalf of the principal regarding
352 the principal’s mental health or substance abuse treatment, or
353 both.
354 (7) “Mental health professional” means a psychiatrist,
355 psychologist, psychiatric nurse, or social worker, and such
356 other mental health professionals licensed pursuant to chapter
357 458, chapter 464, chapter 490, or chapter 491.
358 (8) “Principal” means a competent adult who executes a
359 mental health or substance abuse treatment directive and on
360 whose behalf mental health care or substance abuse treatment
361 decisions are to be made.
362 (9) “Self-binding arrangement” means an affirmative
363 statement, also known as a Ulysses Arrangement, contained within
364 a mental health or substance abuse treatment directive, executed
365 voluntarily by the principal, which allows the principal to form
366 self-binding arrangements for mental health or substance abuse
367 treatment as a means of ensuring early intervention and to avoid
368 involuntary commitment. The inclusion of a self-binding
369 arrangement is limited to directives executed by participants in
370 a substance abuse assistance pilot program created pursuant to
371 s. 397.803.
372 (10) “Surrogate” means any competent adult expressly
373 designated by a principal to make mental health care or
374 substance abuse treatment decisions on behalf of the principal
375 as set forth in the principal’s mental health or substance abuse
376 treatment advance directive or self-binding arrangement as those
377 terms are defined in this section.
378
379 Section 9. Section 765.405, Florida Statutes, is created to
380 read:
381 765.405 Mental health or substance abuse treatment advance
382 directive; execution; allowable provisions.—
383 (1) An adult with capacity may execute a mental health or
384 substance abuse treatment advance directive.
385 (2) A directive executed in accordance with this section is
386 presumed to be valid. The inability to honor one or more
387 provisions of a directive does not affect the validity of the
388 remaining provisions.
389 (3) A directive may include any provision relating to
390 mental health or substance abuse treatment or the care of the
391 principal or the principal’s personal affairs. Without
392 limitation, a directive may include:
393 (a) The principal’s preferences and instructions for mental
394 health or substance abuse treatment.
395 (b) Consent to specific types of mental health or substance
396 abuse treatment.
397 (c) Refusal to consent to specific types of mental health
398 or substance abuse treatment.
399 (d) Consent to admission to and retention in a facility for
400 mental health or substance abuse treatment for up to 14 days.
401 Such consent must be an affirmative statement contained within
402 the directive and must clearly indicate whether such consent is
403 revocable by the principal during a mental health or substance
404 abuse crisis.
405 (e) Descriptions of situations that may cause the principal
406 to experience a mental health or substance abuse crisis.
407 (f) Suggested alternative responses that may supplement or
408 be in lieu of direct mental health or substance abuse treatment,
409 such as treatment approaches from other providers.
410 (g) Appointment of a surrogate to make mental health or
411 substance abuse treatment decisions on the principal’s behalf.
412 In the event the directive includes a self-binding arrangement
413 allowing the surrogate authority to consent on the principal’s
414 behalf to voluntary admission to inpatient mental health or
415 substance abuse treatment, such authority must be clearly stated
416 in the directive.
417 (h) The principal’s nomination of a guardian, limited
418 guardian, or guardian advocate as provided chapter 744.
419 (4) A directive may be combined with or be independent of a
420 nomination of a guardian or other durable power of attorney.
421 Section 10. Section 765.406, Florida Statutes, is created
422 to read:
423 765.406 Execution of a mental health or substance abuse
424 advanced directive; effective date; expiration.—
425 (1) A directive must:
426 (a) Be in writing.
427 (b) Contain language that clearly indicates that the
428 principal intends to create a directive.
429 (c) Contain language that clearly indicates whether the
430 principal intends for the surrogate to have the authority to
431 provide consent on the principal’s behalf to voluntary admission
432 to inpatient mental health or substance abuse treatment and
433 whether the principal’s consent is revocable.
434 (d) Be dated and signed by the principal or, if the
435 principal is unable to sign, at the principal’s direction in the
436 principal’s presence.
437 (e) Be witnessed by two adults, each of whom must declare
438 that he or she personally knows the principal and was present
439 when the principal dated and signed the directive, and that the
440 principal did not appear to be incapacitated or acting under
441 fraud, undue influence, or duress. The person designated as the
442 surrogate may not act as a witness to the execution of the
443 document designating the mental health or substance abuse care
444 treatment surrogate. At least one person who acts as a witness
445 must be neither the principal’s spouse nor his or her blood
446 relative.
447 (2) A directive is valid upon execution, but all or part of
448 the directive may take effect at a later date as designated by
449 the principal in the directive.
450 (3) A directive may:
451 (a) Be revoked, in whole or in part, pursuant to s.
452 765.407; or
453 (b) Expire under its own terms.
454 (4) A directive does not or may not:
455 (a) Create an entitlement to mental health, substance
456 abuse, or medical treatment or supersede a determination of
457 medical necessity.
458 (b) Obligate any health care provider, professional person,
459 or health care facility to pay the costs associated with the
460 treatment requested.
461 (c) Obligate a health care provider, professional person,
462 or health care facility to be responsible for the nontreatment
463 or personal care of the principal or the principal’s personal
464 affairs outside the scope of services the facility normally
465 provides.
466 (d) Replace or supersede any will or testamentary document
467 or supersede the provision of intestate succession.
468 (e) Be revoked by an incapacitated principal unless that
469 principal selected the option to permit revocation while
470 incapacitated at the time his or her directive was executed.
471 (f) Be used as the authority for inpatient admission for
472 more than 14 days.
473 Section 11. Section 765.407, Florida Statutes, is created
474 to read:
475 765.407 Revocation; waiver.—
476 (1)(a) A principal with capacity may, by written statement
477 of the principal or at the principal’s direction in the
478 principal’s presence, revoke a directive in whole or in part.
479 (b) An incapacitated principal may revoke a directive only
480 if he or she elected at the time of executing the directive to
481 be able to revoke when incapacitated.
482 (2) The principal shall provide a copy of his or her
483 written statement of revocation to his or her agent, if any, and
484 to each health care provider, professional person, or health
485 care facility that received a copy of the directive from the
486 principal.
487 (3) The written statement of revocation is effective as to
488 a health care provider, professional person, or health care
489 facility upon receipt. The professional person, health care
490 provider, or health care facility, or persons acting under their
491 direction, shall make the statement of revocation part of the
492 principal’s medical record.
493 (4) A directive also may:
494 (a) Be revoked, in whole or in part, expressly or to the
495 extent of any inconsistency, by a subsequent directive; or
496 (b) Be superseded or revoked by a court order, including
497 any order entered in a criminal matter. A directive may be
498 superseded by a court order regardless of whether the order
499 contains an explicit reference to the directive. A directive may
500 not be interpreted in a manner that interferes with:
501 1. Incarceration or detention by the Department of
502 Corrections or in a municipal or county jail; or
503 2. Treatment of a principal who is a subject to involuntary
504 treatment pursuant to chapter 394.
505 (5) A directive that would have otherwise expired but is
506 effective because the principal is incapacitated remains
507 effective until the principal is no longer incapacitated unless
508 the principal elected to be able to revoke while incapacitated
509 and has revoked the directive.
510 (6) When a principal with capacity consents to treatment
511 that differs from, or refuses treatment consented to in, his or
512 her directive, the consent or refusal constitutes a waiver of a
513 particular provision and does not constitute a revocation of the
514 provision or the directive unless that principal also revokes
515 the provision or directive.
516 Section 12. Section 765.408, Florida Statutes, is created
517 to read:
518 765.408 Self-binding arrangements.—
519 (1) The Legislature finds that each competent adult has the
520 fundamental right of self-determination regarding decisions
521 pertaining to his or her own mental health care or substance
522 abuse treatment decisions.
523 (2) The Legislature further finds that the facilitation of
524 advance planning helps:
525 (a) Prevent unnecessary involuntary commitment and
526 incarceration;
527 (b) Improve patient safety and health; and
528 (c) Improve care and enable patients to exercise control
529 over their treatment.
530 (3) To ensure such right is not lost or diminished, the
531 Legislature intends that a procedure be established to allow a
532 person to plan for episodes that compromise his or her ability
533 to recognize his or her need for treatment before meeting
534 involuntary commitment criteria. The principal must include a
535 specific provision in his or her mental health and substance
536 abuse advance directive authorizing the surrogate to direct the
537 course of his or her mental health or substance abuse treatment.
538 (4) A principal has a right to form a self-binding
539 arrangement for care, which allows the principal to obtain
540 treatment in the event that an acute episode renders him or her
541 unable to provide consent to or induces the principal to refuse
542 treatment. Such arrangement must be affirmatively stated in the
543 directive and include whether the principal has the right of
544 revocation during an acute episode.
545 (5) To create an arrangement under this section, the
546 principal must obtain a written, signed attestation of capacity
547 from a health care professional, mental health care provider, or
548 health care facility.
549 (6) A self-binding arrangement must:
550 (a) Be in writing.
551 (b) Be dated and signed by the principal or the principal’s
552 designated representative if the principal is unable to sign.
553 (c) State whether the principal wishes to be able to revoke
554 the directive at any time or whether directive remains
555 irrevocable when the principal is unable to consent to treatment
556 or is incapacitated. Failure to clarify whether the directive is
557 revocable does not render it unenforceable. If the directive
558 fails to state whether it is revocable, the principal may revoke
559 it at any time.
560 (d) Contain a clear affirmation that the principal is aware
561 of the nature of the document signed and that the directive was
562 signed freely and voluntarily.
563 (e) Be witnessed by at least two adults. A witness may not
564 be:
565 1. A member of the principal’s treatment team;
566 2. Related to the principal by blood, adoption, or
567 marriage;
568 3. Be in a romantic or dating relationship with the
569 principal;
570 4. The surrogate named by the principal in the signed
571 directive; or
572 5. The owner, operator, or employee of, or a relative of
573 the owner or operator of, a treatment facility in which the
574 principal is a patient.
575 (f) Be witnessed by persons who attest that:
576 1. They were present when the principal signed the
577 directive;
578 2. The principal did not appear incapacitated or under
579 undue influence or duress when the principal signed the
580 directive; and
581 3. The principal presented identification or the witness
582 personally knows the principal.
583 (g) If it contains a provision that the directive is
584 irrevocable, contain a written, signed attestation from a mental
585 health professional that the principal had capacity at the time
586 the directive was executed. If the principal is free to revoke
587 the directive at any time, such attestation is not required.
588 (h) Be valid upon execution.
589 (i) Contain a designated activation standard other than the
590 principal’s inability to provide consent or incapacity by
591 describing the circumstances under which the directive becomes
592 active.
593 (j) Affirmatively state that despite activation, a
594 directive does not prevail over contemporaneous preferences
595 expressed by a principal who has the ability to consent to
596 treatment or capacity and has not included a self-binding
597 arrangement provision in the directive.
598 (k) Appoint a surrogate to make all health care and
599 substance abuse treatment decisions for the principal, including
600 decisions to consent on behalf of the principal to inpatient
601 mental health or substance abuse treatment.
602 (l) Contain a provision that decisions made by a surrogate
603 for a principal’s mental health care or substance abuse
604 treatment are effective without judicial approval.
605 Section 13. Section 765.409, Florida Statutes, is created
606 to read:
607 765.409 Admission to inpatient treatment; effect of
608 directive.—
609 (1) A principal may be admitted for inpatient mental health
610 or substance abuse treatment only if he or she:
611 (a) Chose not to be able to revoke his or her directive
612 during any period of inability to provide consent or incapacity;
613 (b) Consented to voluntary admission to inpatient mental
614 health or substance abuse treatment, or authorized a surrogate
615 to consent on the principal’s behalf;
616 (c) At the time of admission to inpatient treatment,
617 refuses to be admitted; and
618 (d) The principal created an irrevocable directive that
619 consents to treatment and which the principal is refusing under
620 the influence of a mental health or substance abuse crisis.
621 (2) The creation of an irrevocable directive of consent to
622 inpatient treatment creates a rebuttable presumption of
623 incapacity.
624 (3)(a) The principal may only be admitted to, or remain in,
625 inpatient treatment for a period of up to 14 days.
626 (b) The principal’s directive must contain express consent
627 to the administration of psychotropic medication in
628 contravention of illness-induced objections. Such medication may
629 be administered by licensed psychiatrists and only if two
630 psychiatrists recommend, in writing, the specific medication.
631 (c) The principal is prohibited from authorizing
632 psychosurgery or electroconvulsive therapy in his or her
633 directive.
634 (d) The principal may seek injunctive relief for release
635 from the inpatient facility.
636 Section 14. Section 765.410, Florida Statutes, is created
637 to read:
638 765.410 Immunity from liability; weight of proof;
639 presumption.—
640 (1) A health care facility, provider, or other person who
641 acts under the direction of a health care facility or provider
642 is not subject to criminal prosecution or civil liability, and
643 may not be deemed to have engaged in unprofessional conduct, as
644 a result of carrying out a mental health care or substance abuse
645 treatment decision made in accordance with this section. The
646 surrogate who makes a mental health care or substance abuse
647 treatment decision on a principal’s behalf, pursuant to this
648 section, is not subject to criminal prosecution or civil
649 liability for such action.
650 (2) This section applies unless it is shown by a
651 preponderance of the evidence that the person authorizing or
652 effectuating a mental health or substance abuse treatment
653 decision did not, in good faith, comply with this section.
654 Section 15. Section 765.411, Florida Statutes, is created
655 to read:
656 765.411 Recognition of mental health and substance abuse
657 treatment advance directive executed in another state.—A mental
658 health or substance abuse treatment advance directive executed
659 in another state in compliance with the law of that state is
660 validly executed for the purposes of this chapter.
661 Section 16. Paragraph (d) of subsection (1) of section
662 395.0197, Florida Statutes, is amended to read:
663 395.0197 Internal risk management program.—
664 (1) Every licensed facility shall, as a part of its
665 administrative functions, establish an internal risk management
666 program that includes all of the following components:
667 (d) A system for informing a patient or an individual
668 identified pursuant to s. 765.311(1) 765.401(1) that the patient
669 was the subject of an adverse incident, as defined in subsection
670 (5). Such notice shall be given by an appropriately trained
671 person designated by the licensed facility as soon as
672 practicable to allow the patient an opportunity to minimize
673 damage or injury.
674 Section 17. Section 395.1051, Florida Statutes, is amended
675 to read:
676 395.1051 Duty to notify patients.—An appropriately trained
677 person designated by each licensed facility shall inform each
678 patient, or an individual identified pursuant to s. 765.311(1)
679 765.401(1), in person about adverse incidents that result in
680 serious harm to the patient. Notification of outcomes of care
681 that result in harm to the patient under this section shall not
682 constitute an acknowledgment or admission of liability, nor can
683 it be introduced as evidence.
684 Section 18. Section 456.0575, Florida Statutes, is amended
685 to read:
686 456.0575 Duty to notify patients.—Every licensed health
687 care practitioner shall inform each patient, or an individual
688 identified pursuant to s. 765.311(1) 765.401(1), in person about
689 adverse incidents that result in serious harm to the patient.
690 Notification of outcomes of care that result in harm to the
691 patient under this section shall not constitute an
692 acknowledgment of admission of liability, nor can such
693 notifications be introduced as evidence.
694 Section 19. Subsection (15) of section 765.101, Florida
695 Statutes, is amended to read:
696 765.101 Definitions.—As used in this chapter:
697 (15) “Proxy” means a competent adult who has not been
698 expressly designated to make health care decisions for a
699 particular incapacitated individual, but who, nevertheless, is
700 authorized pursuant to s. 765.311 765.401 to make health care
701 decisions for such individual.
702 Section 20. Subsection (4) of section 765.104, Florida
703 Statutes, is amended to read:
704 765.104 Amendment or revocation.—
705 (4) Any patient for whom a medical proxy has been
706 recognized under s. 765.311 765.401 and for whom any previous
707 legal disability that precluded the patient’s ability to consent
708 is removed may amend or revoke the recognition of the medical
709 proxy and any uncompleted decision made by that proxy. The
710 amendment or revocation takes effect when it is communicated to
711 the proxy, the health care provider, or the health care facility
712 in writing or, if communicated orally, in the presence of a
713 third person.
714 Section 21. Paragraph (b) of subsection (3) of s. 394.459,
715 subsections (6) and (7) of s. 394.4598, paragraph (d) of
716 subsection (6) and paragraph (f) of subsection (7) of s.
717 394.4655, paragraph (d) of subsection (6) of s. 394.467, s.
718 394.46715, and subsection (5) of s. 765.202, Florida Statutes,
719 are reenacted for the purpose of incorporating the amendments
720 made to s. 394.4598, Florida Statutes.
721 Section 22. This act shall take effect July 1, 2015.