Management and treatment for self-injurious behaviors.

(1) The Legislature finds that nonsuicidal self-injurious behaviors in correctional institutions, or acts intended to cause bodily harm but not death, have increased in the correctional environment. Self-injurious behavior may include nonsuicidal self-injury or self-mutilation, such as cutting, reopening wounds, and ingesting or inserting foreign objects or dangerous instruments into the body. These behaviors pose a significant threat to inmates, staff, and, in many cases, the safe and secure operation of the correctional institution. In addition, self-injurious behaviors, coupled with repeated refusals to provide express and informed consent for medical treatment and care, are a significant challenge for correctional medical and mental health professionals, resulting in higher costs for medical services, and may result in inadvertent mortality in the incarcerated population.

(2) In accordance with s. 945.6402, the Legislature finds that an inmate retains the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment or life-saving medical procedures. However, the inmate’s right to privacy and decisionmaking regarding medical treatment may be outweighed by compelling state interests.

(3) When an inmate is engaging in active or ongoing self-injurious behavior and has refused to provide express and informed consent for treatment related to the self-injurious behavior, the warden of the facility where the inmate is housed shall consult with the inmate’s treating physician regarding the inmate’s medical and mental health status, current medical and mental health treatment needs, and competency to provide express and informed consent for treatment. The warden shall also determine whether the inmate’s self-injurious behavior presents a danger to the safety of department staff or other inmates or the security, internal order, or discipline of the institution.

(a) If the inmate’s treating physician determines that the inmate has a mental illness and is incompetent to consent to treatment, the physician shall proceed in accordance with s. 945.6402 for any necessary surgical or medical services. If the inmate is in need of care and treatment as defined in s. 945.42, the inmate shall be referred to a mental health treatment facility for an involuntary examination in accordance with s. 945.44.

(b) If the inmate is competent, refusing necessary surgical or medical treatment, and engaging in active or ongoing self-injurious behavior that presents a threat to the safety of department staff or other inmates or the security, internal order, or discipline of the institution, the warden shall follow the procedure set forth in subsection (4).

(4)(a) The warden, or his or her designated representative, shall, on behalf of the state, petition the circuit court of the county in which the inmate is residing or the county in which the inmate is hospitalized for an order compelling the inmate to submit to emergency surgical intervention or other medical services to the extent necessary to remedy the threat to the safety of staff or other inmates or the security, internal order, or discipline of the institution. The petition must be supported by the expert opinion of at least one of the inmate’s treating physicians and may be supported by other staff as necessary.

(b) The inmate shall be provided with a copy of the petition along with the proposed intervention; the basis for the proposed intervention; the names of the testifying experts and witnesses; and the date, time, and location of the hearing. After considering the medical status of the inmate, public safety, and security concerns presented by transporting the inmate, the court may order that the hearing be conducted by electronic means or in person at the institution or at another location designated by the court. If the hearing is ordered by the court to be conducted at a location other than the institution, the department is authorized to transport the inmate to the location of the hearing.

(c) The inmate may have an attorney represent him or her at the hearing, and, if the inmate is indigent, the court shall appoint the office of the public defender or private counsel pursuant to s. 27.40(1) to represent the inmate at the hearing. An attorney representing the inmate shall have access to the inmate and any records, including medical or mental health records, which are relevant to the representation of the inmate.

(d) The hearing on the petition shall be held as expeditiously as possible after the petition is filed, but no later than 5 calendar days after filing. The court may appoint a general or special magistrate to preside. The inmate may testify or not, as he or she chooses; may cross-examine witnesses testifying on behalf of the institution; and may present his or her own witnesses.

(e) The court may waive the presence of the inmate at the hearing if the waiver is consistent with the best interests of the inmate and the inmate’s counsel does not object.

(f) The court shall determine whether the warden has established, by clear and convincing evidence, a compelling state interest sufficient to outweigh the inmate’s right to refuse treatment. The court shall consider all of the following:

1. Preservation of the life of the inmate.

2. Prevention of suicide.

3. Protection of innocent third parties.

4. Maintenance of the ethical integrity of the medical profession.

5. Preservation of the security, internal order, or discipline of the institution.

6. Rehabilitation of the inmate.

7. Any other compelling state interest.

(g) If the court determines that there are compelling state interests sufficient to override the inmate’s right to refuse treatment, the court shall enter an order authorizing emergency surgical intervention or other medical services, narrowly tailored and in the least intrusive manner possible, only as necessary to remedy the threat to the safety of third parties or the security, internal order, or discipline of the institution. Emergency surgical intervention or other medical services authorized by the court may be carried out at the institution or at a licensed hospital, as applicable.

(5) This section does not repeal by implication any provision of s. 766.103, the Florida Medical Consent Law, or s. 768.13, the Good Samaritan Act. For all purposes, the Florida Medical Consent Law and the Good Samaritan Act shall be considered alternatives to this section.