Inmate health care advance directives.

(1) DEFINITIONS.—The terms used in this section have the same meanings as in s. 765.101 unless otherwise specified in this section. For purposes of this section, the term:

(a) “Health care facility” has the same meaning as in s. 765.101 and includes any correctional institution or facility where health care is provided.

(b) “Incapacity” or “incompetent” means an inmate is physically or mentally unable to communicate a willful and knowing health care decision.

(c) “Informed consent” means consent voluntarily given by an inmate after a sufficient explanation and disclosure of the subject matter involved to enable the inmate to have a general understanding of the treatment or procedure and the medically acceptable alternatives, including the substantial risks and hazards inherent in the proposed treatment or procedures, and to make a knowing health care decision without coercion or undue influence.

(d) “Inmate” means any person committed to the custody of the department.

(e) “Ombudsman” means an individual designated and specifically trained by the department to identify conditions that may pose a threat to the rights, health, safety, and welfare of inmates in a health care facility and who may be appointed to serve as a proxy for an inmate who is physically or mentally unable to communicate a willful and knowing health care decision.

(f) “Proxy” means a competent adult who has not been expressly designated to make health care decisions for a particular incapacitated inmate, but who, nevertheless, is authorized pursuant to s. 765.401 and as specified in this section to make health care decisions for such inmate.

(g) “Proxy review team” means a team of at least five members, appointed by the Assistant Secretary for Health Services. The team shall be composed of, at a minimum, one physician licensed pursuant to chapter 458 or chapter 459, one psychologist licensed pursuant to chapter 490, one nurse licensed pursuant to chapter 464, and one department chaplain.

(2) LEGISLATIVE FINDINGS AND INTENT.—

(a) In accordance with chapter 765, 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. In accordance with chapter 765, this right is subject to certain institutional interests including the protection of human life; the preservation of ethical standards in the medical profession; and, for inmates committed to the custody of the department, the security and good order of the institutional setting.

(b) To ensure that such right is not lost or diminished by virtue of later physical or mental incapacity, the Legislature intends that the procedures specified in chapter 765, and as modified in this section for the institutional health care setting, apply to incarcerated inmates. These procedures should be less expensive and less restrictive than guardianship and allow an inmate to plan for incapacity by executing a document or orally designating another person to direct the course of his or her health care or receive his or her health information, or both, upon his or her incapacity. These procedures permit a previously incapacitated inmate to exercise his or her full right to make health care decisions as soon as the capacity to make such decisions has been regained.

(c) In order to ensure that the rights and intentions of an inmate are respected when the inmate is not able to participate actively in decisions concerning himself or herself, and to encourage communication among such inmate, his or her family, and his or her treating physicians, the Legislature declares that the laws of this state recognize the right of a competent incarcerated adult to make an advance directive instructing his or her physicians to provide, withhold, or withdraw life-prolonging procedures or to designate another person to make the health care decision for him or her in the event that such incarcerated person should become incapacitated and unable to personally direct his or her health care. It is further the intent of the Legislature that the department provide the opportunity for inmates to make advance directives as specified in this section.

(d) The Legislature further recognizes that incarcerated inmates may not avail themselves of the opportunity to make an advance directive or, because of incarceration, may not have a surrogate, as defined in s. 765.101, willing, able, or reasonably available to make health care decisions on his or her behalf. Additionally, because of incarceration, the individuals designated in s. 765.401 who are eligible to serve as an appointed proxy may not be reasonably available, willing, or competent to make health care decisions for the inmate in the event of incapacity. Thus, it is the intent of the Legislature that the department have an efficient process that is less expensive and less restrictive than guardianship for the appointment of a proxy to allow for the expedient delivery of necessary health care to an incarcerated inmate.

(e) This section does not supersede the process for inmate involuntary mental health treatment in ss. 945.40-945.49.

(3) CAPACITY OF INMATE; PROCEDURE.—

(a) An inmate is presumed to be capable of making health care decisions for himself or herself unless he or she is determined to be incapacitated. When an inmate has decisionmaking capacity, the inmate’s wishes are controlling. Each physician or health care provider must clearly communicate the treatment plan and any change to the treatment plan before implementation of the plan or any change to the plan. Incapacity may not be inferred from an inmate’s involuntary hospitalization for mental illness or from his or her intellectual disability.

(b) If an inmate’s capacity to make health care decisions for himself or herself or provide informed consent is in question, the inmate’s treating physician at the health care facility where the inmate is located shall evaluate the inmate’s capacity and, if the evaluating physician concludes that the inmate lacks capacity, enter that evaluation in the inmate’s medical record. If the evaluating physician has a question as to whether the inmate lacks capacity, another physician shall also evaluate the inmate’s capacity, and if the second physician finds that the inmate lacks the capacity to make health care decisions for himself or herself or provide informed consent, both physicians’ evaluations shall be entered in the inmate’s medical record.

(c) If the inmate is found to be incapacitated and has designated a health care surrogate in accordance with chapter 765, the institution’s or facility’s health care staff shall notify the surrogate and proceed as specified in chapter 765. If the incapacitated inmate has not designated a health care surrogate, the health care facility shall appoint a proxy to make health care decisions for the inmate as specified in this section.

(d) A determination made pursuant to this section that an inmate lacks the capacity to make health care decisions for himself or herself may not be construed as a finding that an inmate lacks capacity for any other purpose.

(4) HEALTH CARE ADVANCE DIRECTIVE; PROCEDURE.—

(a) In accordance with chapter 765, the department shall offer inmates the opportunity to execute an advance directive as defined in s. 765.101.

(b) The department shall provide to each inmate written information concerning advance directives and necessary forms to allow inmates to execute an advance directive. The department and its health care providers shall document in the inmate’s medical records whether the inmate has executed an advance directive. Neither the department nor its health care providers may require an inmate to execute an advance directive using the department’s forms. The inmate’s advance directive shall travel with the inmate within the department as part of the inmate’s medical record.

(c) An advance directive may be amended or revoked at any time by a competent inmate by means of:

1. A signed, dated writing of intent to amend or revoke;

2. The physical cancellation or destruction of the advance directive by the inmate or by another person in the inmate’s presence and at the inmate’s direction;

3. An oral expression of intent to amend or revoke; or

4. A subsequently executed advance directive that is materially different from a previously executed advance directive.

(5) PROXY.—

(a) If an incapacitated inmate has not executed an advance directive, or designated a health care surrogate in accordance with the procedures specified in chapter 765 or the designated health care surrogate is no longer available to make health care decisions, health care decisions may be made for the inmate by any of the individuals specified in the priority order provided in s. 765.401(1)(a)-(g) as proxy. Documentation of the efforts to locate a proxy from the classes specified in s. 765.401(1)(a)-(g) shall be recorded in the inmate’s medical file.

(b) If there are no individuals as specified in s. 765.401(1)(a)-(g) available, willing, or competent to act on behalf of the inmate, and the inmate is housed in a correctional institution or facility where health care is provided in a nonhospital setting, the warden of the institution where the inmate is housed, or the warden’s designee, shall consult with the Assistant Secretary for Health Services or his or her designee who shall appoint a department ombudsman to serve as the proxy. This appointment terminates when the inmate regains capacity or is no longer incarcerated in the custody of the department. In accordance with chapter 765 and as provided in this section, decisions to withhold or withdraw life-prolonging procedures will be reviewed by the department’s proxy review team for compliance with chapter 765 and the requirements of this section.

(c) The ombudsman appointed to serve as the proxy is authorized to request the assistance of the treating physician and, upon request, a second physician not involved in the inmate’s care to assist the proxy in evaluating the inmate’s treatment.

(d) In accordance with chapter 765, any health care decision made by any appointed proxy under this section must be based on the proxy’s informed consent and on the decision that the proxy reasonably believes the inmate would have made under the circumstances. If there is no indication of what decision the inmate would have made, the proxy may consider the inmate’s best interest in deciding that proposed treatments are to be withheld or that treatments currently in effect are to be withdrawn.

(e) Before exercising the incapacitated inmate’s rights to select or decline health care, the proxy must comply with ss. 765.205 and 765.305, except that any proxy’s decision to withhold or withdraw life-prolonging procedures must be supported by clear and convincing evidence that the decision would have been the one the inmate would have made had he or she been competent or, if there is no indication of what decision the inmate would have made, that the decision is in the inmate’s best interest.

(f) Notwithstanding s. 456.057 and pursuant to s. 945.10 and 45 C.F.R. part 164, subpart E, relevant protected health information and mental health and medical records of an incapacitated inmate may be disclosed to a proxy appointed to make health care decisions for an inmate.

(6) USE OF FORCE.—In addition to s. 944.35(1), an employee of the department may apply reasonable physical force upon an incapacitated inmate to administer medical treatment only by or under the clinical supervision of a physician or his or her designee and only to carry out a health care decision made in accordance with this section and chapter 765.

(7) IMMUNITY FROM LIABILITY.—A department health care provider, ombudsman, or other employee who acts under the direction of a health care provider as authorized in this section or chapter 765 is not subject to criminal prosecution or civil liability and may not be deemed to have engaged in unprofessional conduct as a result of carrying out a health care decision made in accordance with this section or chapter 765 on an inmate’s behalf.