Florida Senate - 2014 CS for SB 944
By the Committee on Health Policy; and Senator Sobel
588-02833-14 2014944c1
1 A bill to be entitled
2 An act relating to mental health treatment; amending
3 s. 916.107, F.S.; authorizing forensic and civil
4 facilities to order the continuation of
5 psychotherapeutics for individuals receiving such
6 medications in the jail before admission; amending s.
7 916.13, F.S.; providing timeframes within which
8 competency hearings must be held; amending s. 916.145,
9 F.S.; revising the time for dismissal of certain
10 charges for defendants that remain incompetent to
11 proceed to trial; providing exceptions; amending s.
12 916.15, F.S.; providing a timeframe within which
13 commitment hearings must be held; amending s. 985.19,
14 F.S.; standardizing the protocols, procedures,
15 diagnostic criteria, and information and findings that
16 must be included in an expert’s competency evaluation
17 report; providing an effective date.
18
19 Be It Enacted by the Legislature of the State of Florida:
20
21 Section 1. Paragraph (a) of subsection (3) of section
22 916.107, Florida Statutes, is amended to read:
23 916.107 Rights of forensic clients.—
24 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
25 (a) A forensic client shall be asked to give express and
26 informed written consent for treatment. If a client refuses such
27 treatment as is deemed necessary and essential by the client’s
28 multidisciplinary treatment team for the appropriate care of the
29 client, such treatment may be provided under the following
30 circumstances:
31 1. In an emergency situation in which there is immediate
32 danger to the safety of the client or others, such treatment may
33 be provided upon the written order of a physician for a period
34 not to exceed 48 hours, excluding weekends and legal holidays.
35 If, after the 48-hour period, the client has not given express
36 and informed consent to the treatment initially refused, the
37 administrator or designee of the civil or forensic facility
38 shall, within 48 hours, excluding weekends and legal holidays,
39 petition the committing court or the circuit court serving the
40 county in which the facility is located, at the option of the
41 facility administrator or designee, for an order authorizing the
42 continued treatment of the client. In the interim, the need for
43 treatment shall be reviewed every 48 hours and may be continued
44 without the consent of the client upon the continued written
45 order of a physician who has determined that the emergency
46 situation continues to present a danger to the safety of the
47 client or others.
48 2. In a situation other than an emergency situation, the
49 administrator or designee of the facility shall petition the
50 court for an order authorizing necessary and essential treatment
51 for the client.
52 a. If the client has been receiving psychotherapeutic
53 medications at the jail at the time of transfer to the forensic
54 or civil facility and lacks the capacity to make an informed
55 decision regarding mental health treatment at the time of
56 admission, the admitting physician may order continued
57 administration of psychotherapeutic medications if, in the
58 clinical judgment of the physician, abrupt cessation of
59 psychotherapeutic medications could pose a risk to the health or
60 safety of the client during the time a court order to medicate
61 is pursued. The administrator or designee of the civil or
62 forensic facility shall, within 5 days after admission,
63 excluding weekends and legal holidays, petition the committing
64 court or the circuit court serving the county in which the
65 facility is located, at the option of the facility administrator
66 or designee, for an order authorizing the continued treatment of
67 a client. The jail physician shall provide a current
68 psychotherapeutic medication order at the time of transfer to
69 the forensic or civil facility or upon request of the admitting
70 physician after the client is evaluated.
71 b. The court order shall allow such treatment for up to a
72 period not to exceed 90 days after following the date of the
73 entry of the order. Unless the court is notified in writing that
74 the client has provided express and informed consent in writing
75 or that the client has been discharged by the committing court,
76 the administrator or designee shall, before the expiration of
77 the initial 90-day order, petition the court for an order
78 authorizing the continuation of treatment for another 90 days
79 90-day period. This procedure shall be repeated until the client
80 provides consent or is discharged by the committing court.
81 3. At the hearing on the issue of whether the court should
82 enter an order authorizing treatment for which a client was
83 unable to or refused to give express and informed consent, the
84 court shall determine by clear and convincing evidence that the
85 client has mental illness, intellectual disability, or autism,
86 that the treatment not consented to is essential to the care of
87 the client, and that the treatment not consented to is not
88 experimental and does not present an unreasonable risk of
89 serious, hazardous, or irreversible side effects. In arriving at
90 the substitute judgment decision, the court must consider at
91 least the following factors:
92 a. The client’s expressed preference regarding treatment;
93 b. The probability of adverse side effects;
94 c. The prognosis without treatment; and
95 d. The prognosis with treatment.
96
97 The hearing shall be as convenient to the client as may be
98 consistent with orderly procedure and shall be conducted in
99 physical settings not likely to be injurious to the client’s
100 condition. The court may appoint a general or special magistrate
101 to preside at the hearing. The client or the client’s guardian,
102 and the representative, shall be provided with a copy of the
103 petition and the date, time, and location of the hearing. The
104 client has the right to have an attorney represent him or her at
105 the hearing, and, if the client is indigent, the court shall
106 appoint the office of the public defender to represent the
107 client at the hearing. The client may testify or not, as he or
108 she chooses, and has the right to cross-examine witnesses and
109 may present his or her own witnesses.
110 Section 2. Subsection (2) of section 916.13, Florida
111 Statutes, is amended to read:
112 916.13 Involuntary commitment of defendant adjudicated
113 incompetent.—
114 (2) A defendant who has been charged with a felony and who
115 has been adjudicated incompetent to proceed due to mental
116 illness, and who meets the criteria for involuntary commitment
117 to the department under the provisions of this chapter, may be
118 committed to the department, and the department shall retain and
119 treat the defendant.
120 (a) Within No later than 6 months after the date of
121 admission and at the end of any period of extended commitment,
122 or at any time the administrator or designee has shall have
123 determined that the defendant has regained competency to proceed
124 or no longer meets the criteria for continued commitment, the
125 administrator or designee shall file a report with the court
126 pursuant to the applicable Florida Rules of Criminal Procedure.
127 (b) A competency hearing must be held within 30 days after
128 the court receives notification that the defendant is competent
129 to proceed or no longer meets the criteria for continued
130 commitment.
131 Section 3. Section 916.145, Florida Statutes, is amended to
132 read:
133 (Substantial rewording of section. See
134 s. 916.145, F.S., for present text.)
135 916.145 Dismissal of charges.—
136 (1) The charges against a defendant adjudicated incompetent
137 to proceed due to mental illness shall be dismissed without
138 prejudice to the state if the defendant remains incompetent to
139 proceed 5 years after such determination, unless the court in
140 its order specifies its reasons for believing that the defendant
141 will become competent to proceed within the foreseeable future
142 and specifies the time within which the defendant is expected to
143 become competent to proceed. The court may dismiss these charges
144 between 3 and 5 years after such determination, unless the
145 charge is:
146 (a) Arson;
147 (b) Sexual battery;
148 (c) Robbery;
149 (d) Kidnapping;
150 (e) Aggravated child abuse;
151 (f) Aggravated abuse of an elderly person or disabled
152 adult;
153 (g) Aggravated assault with a deadly weapon;
154 (h) Murder;
155 (i) Manslaughter;
156 (j) Aggravated manslaughter of an elderly person or
157 disabled adult;
158 (k) Aggravated manslaughter of a child;
159 (l) Unlawful throwing, projecting, placing, or discharging
160 of a destructive device or bomb;
161 (m) Armed burglary;
162 (n) Aggravated battery;
163 (o) Aggravated stalking;
164 (p) Any forcible felony as defined in s. 776.08, not listed
165 in paragraphs (a)-(o);
166 (q) Any offense involving the possession, use, or discharge
167 of a firearm;
168 (r) An attempt to commit any of the offenses listed in
169 paragraphs (a)-(q);
170 (s) Committed by a defendant who has had a forcible or
171 violent felony conviction within the 5 years preceding the date
172 of arrest for the nonviolent felony sought to be dismissed;
173 (t) Committed by a defendant who, after having been found
174 incompetent and under court supervision in a community based
175 program, is formally charged by a state attorney with a new
176 felony offense; or
177 (u) Where there is an identifiable victim and such victim
178 has not consented.
179 (2) This section does not prohibit the state from refiling
180 dismissed charges if the defendant is declared to be competent
181 to proceed in the future.
182 Section 4. Subsection (5) is added to section 916.15,
183 Florida Statutes, to read:
184 916.15 Involuntary commitment of defendant adjudicated not
185 guilty by reason of insanity.—
186 (5) The commitment hearing must be held within 30 days
187 after the court receives notification that the defendant no
188 longer meets the criteria for continued commitment.
189 Section 5. Subsection (1) of section 985.19, Florida
190 Statutes, is amended to read:
191 985.19 Incompetency in juvenile delinquency cases.—
192 (1) If, at any time prior to or during a delinquency case,
193 the court has reason to believe that the child named in the
194 petition may be incompetent to proceed with the hearing, the
195 court on its own motion may, or on the motion of the child’s
196 attorney or state attorney must, stay all proceedings and order
197 an evaluation of the child’s mental condition.
198 (a) Any motion questioning the child’s competency to
199 proceed must be served upon the child’s attorney, the state
200 attorney, the attorneys representing the Department of Juvenile
201 Justice, and the attorneys representing the Department of
202 Children and Families Family Services. Thereafter, any motion,
203 notice of hearing, order, or other legal pleading relating to
204 the child’s competency to proceed with the hearing must be
205 served upon the child’s attorney, the state attorney, the
206 attorneys representing the Department of Juvenile Justice, and
207 the attorneys representing the Department of Children and
208 Families Family Services.
209 (b) All determinations of competency must shall be made at
210 a hearing, with findings of fact based on an evaluation of the
211 child’s mental condition made by at least not less than two but
212 not nor more than three experts appointed by the court. The
213 basis for the determination of incompetency must be specifically
214 stated in the evaluation. In addition, a recommendation as to
215 whether residential or nonresidential treatment or training is
216 required must be included in the evaluation. Experts appointed
217 by the court to determine the mental condition of a child shall
218 be allowed reasonable fees for services rendered. State
219 employees may be paid expenses pursuant to s. 112.061. The fees
220 shall be taxed as costs in the case.
221 (c) A child is competent to proceed if the child has
222 sufficient present ability to consult with counsel with a
223 reasonable degree of rational understanding and the child has a
224 rational and factual understanding of the present proceedings.
225 The expert’s competency evaluation report must specifically
226 state the basis for the determination of the child’s mental
227 condition and must include written findings that:
228 1. Identify the specific matters referred for evaluation.
229 2. Identify the sources of information used by the expert.
230 3. Describe the procedures, techniques, and diagnostic
231 tests used in the examination to determine the basis of the
232 child’s mental condition.
233 4. Address the child’s capacity to:
234 a. Appreciate the charges or allegations against the child.
235 b. Appreciate the range and nature of possible penalties
236 that may be imposed in the proceedings against the child, if
237 applicable.
238 c. Understand the adversarial nature of the legal process.
239 d. Disclose to counsel facts pertinent to the proceedings
240 at issue.
241 e. Display appropriate courtroom behavior.
242 f. Testify relevantly.
243 5. Present the factual basis for the expert’s clinical
244 findings and opinions of the child’s mental condition. The
245 expert’s factual basis of his or her clinical findings and
246 opinions must be supported by the diagnostic criteria found in
247 the most recent edition of the Diagnostic and Statistical Manual
248 of Mental Disorders (DSM) published by the American Psychiatric
249 Association and must be presented in a separate section of the
250 report entitled “summary of findings.” This section must
251 include:
252 a. The day, month, year, and length of time of the face-to
253 face diagnostic clinical interview to determine the child’s
254 mental condition.
255 b. A statement that identifies the DSM clinical name and
256 associated diagnostic code for the specific mental disorder that
257 forms the basis of the child’s incompetency.
258 c. A statement of how the child would benefit from
259 competency restoration services in the community or in a secure
260 residential treatment facility.
261 d. An assessment of the probable duration of the treatment
262 to restore competence and the probability that the child will
263 attain competence to proceed in the foreseeable future.
264 e. A description of recommended treatment or education
265 appropriate for the mental disorder.
266 6. If the evaluator determines the child to be incompetent
267 to proceed to trial, the evaluator must report on the mental
268 disorder that forms the basis of the incompetency.
269 (d)(c) All court orders determining incompetency must
270 include specific written findings by the court as to the nature
271 of the incompetency and whether the child requires secure or
272 nonsecure treatment or training environment environments.
273 (e)(d) For competency incompetency evaluations related to
274 mental illness, the Department of Children and Families Family
275 Services shall maintain and annually provide the courts with a
276 list of available mental health professionals who have completed
277 a training program approved by the Department of Children and
278 Families Family Services to perform the evaluations.
279 (f)(e) For competency incompetency evaluations related to
280 intellectual disability or autism, the court shall order the
281 Agency for Persons with Disabilities to examine the child to
282 determine if the child meets the definition of “intellectual
283 disability” or “autism” in s. 393.063 and, provide a clinical
284 opinion as to if so, whether the child is competent to proceed
285 with delinquency proceedings.
286 (f) A child is competent to proceed if the child has
287 sufficient present ability to consult with counsel with a
288 reasonable degree of rational understanding and the child has a
289 rational and factual understanding of the present proceedings.
290 The report must address the child’s capacity to:
291 1. Appreciate the charges or allegations against the child.
292 2. Appreciate the range and nature of possible penalties
293 that may be imposed in the proceedings against the child, if
294 applicable.
295 3. Understand the adversarial nature of the legal process.
296 4. Disclose to counsel facts pertinent to the proceedings
297 at issue.
298 5. Display appropriate courtroom behavior.
299 6. Testify relevantly.
300 (g) Immediately upon the filing of the court order finding
301 a child incompetent to proceed, the clerk of the court shall
302 notify the Department of Children and Families Family Services
303 and the Agency for Persons with Disabilities and fax or hand
304 deliver to the department and to the agency a referral packet
305 that includes, at a minimum, the court order, the charging
306 documents, the petition, and the court-appointed evaluator’s
307 reports.
308 (h) After placement of the child in the appropriate
309 setting, the Department of Children and Families Family Services
310 in consultation with the Agency for Persons with Disabilities,
311 as appropriate, must, within 30 days after placement of the
312 child, prepare and submit to the court a treatment or training
313 plan for the child’s restoration of competency. A copy of the
314 plan must be served upon the child’s attorney, the state
315 attorney, and the attorneys representing the Department of
316 Juvenile Justice.
317 Section 6. This act shall take effect July 1, 2014.