Florida Senate - 2013 CS for SB 1420
By the Committee on Health Policy; and Senator Sobel
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; amending s. 916.15, F.S.; providing
12 a timeframe within which commitment hearings must be
13 held; amending s. 985.19, F.S.; standardizing the
14 protocols, procedures, diagnostic criteria, and
15 information and findings that must be included in an
16 expert’s competency evaluation report; providing an
17 effective date.
19 Be It Enacted by the Legislature of the State of Florida:
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
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
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 prior to the
77 expiration of the initial 90-day order, petition the court for
78 an order authorizing the continuation of treatment for another
79 90 days 90-day period. This procedure shall be repeated until
80 the client provides consent or is discharged by the committing
82 3. At the hearing on the issue of whether the court should
83 enter an order authorizing treatment for which a client was
84 unable to or refused to give express and informed consent, the
85 court shall determine by clear and convincing evidence that the
86 client has mental illness, retardation, or autism, that the
87 treatment not consented to is essential to the care of the
88 client, and that the treatment not consented to is not
89 experimental and does not present an unreasonable risk of
90 serious, hazardous, or irreversible side effects. In arriving at
91 the substitute judgment decision, the court must consider at
92 least the following factors:
93 a. The client’s expressed preference regarding treatment;
94 b. The probability of adverse side effects;
95 c. The prognosis without treatment; and
96 d. The prognosis with treatment.
98 The hearing shall be as convenient to the client as may be
99 consistent with orderly procedure and shall be conducted in
100 physical settings not likely to be injurious to the client’s
101 condition. The court may appoint a general or special magistrate
102 to preside at the hearing. The client or the client’s guardian,
103 and the representative, shall be provided with a copy of the
104 petition and the date, time, and location of the hearing. The
105 client has the right to have an attorney represent him or her at
106 the hearing, and, if the client is indigent, the court shall
107 appoint the office of the public defender to represent the
108 client at the hearing. The client may testify or not, as he or
109 she chooses, and has the right to cross-examine witnesses and
110 may present his or her own witnesses.
111 Section 2. Subsection (2) of section 916.13, Florida
112 Statutes, is amended to read:
113 916.13 Involuntary commitment of defendant adjudicated
115 (2) A defendant who has been charged with a felony and who
116 has been adjudicated incompetent to proceed due to mental
117 illness, and who meets the criteria for involuntary commitment
118 to the department under the provisions of this chapter, may be
119 committed to the department, and the department shall retain and
120 treat the defendant.
121 (a) Within No later than 6 months after the date of
122 admission and at the end of any period of extended commitment,
123 or at any time the administrator or designee has shall have
124 determined that the defendant has regained competency to proceed
125 or no longer meets the criteria for continued commitment, the
126 administrator or designee shall file a report with the court
127 pursuant to the applicable Florida Rules of Criminal Procedure.
128 (b) A competency hearing must be held within 30 days after
129 the court receives notification that the defendant is competent
130 to proceed or no longer meets the criteria for continued
132 Section 3. Section 916.145, Florida Statutes, is amended to
134 (Substantial rewording of section.
135 See s. 916.145, F.S., for present text.)
136 916.145 Dismissal of charges.—
137 (1) The charges against any defendant adjudicated
138 incompetent to proceed due to mental illness shall be dismissed
139 without prejudice to the state if the defendant remains
140 incompetent to proceed:
141 (a) 3 years after such determination; or
142 (b) 5 years after such determination if the charge related
143 to commitment is:
144 1. Arson;
145 2. Sexual Battery;
146 3. Robbery;
147 4. Kidnapping;
148 5. Aggravated child abuse;
149 6. Aggravated abuse of an elderly person or disabled adult;
150 7. Aggravated assault with a deadly weapon;
151 8. Murder;
152 9. Manslaughter;
153 10. Aggravated manslaughter of an elderly person or
154 disabled adult;
155 11. Aggravated manslaughter of a child;
156 12. Unlawful throwing, placing or discharging of a
157 destructive device or bomb;
158 13. Armed burglary;
159 14. Aggravated battery; or
160 15. Aggravated stalking.
162 Unless the court, in an order, specifies reasons for believing
163 that the defendant will become competent to proceed, and
164 specifies a reasonable time within which the defendant is
165 expected to become competent.
166 (2) Nothing in this section of law shall be construed to
167 prohibit the state from refiling dismissed charges, should the
168 defendant be declared to be competent to proceed in the future.
169 Section 4. Subsection (5) is added to section 916.15,
170 Florida Statutes, to read:
171 916.15 Involuntary commitment of defendant adjudicated not
172 guilty by reason of insanity.—
173 (5) The commitment hearing must be held within 30 days
174 after the court receives notification that the defendant no
175 longer meets the criteria for continued commitment.
176 Section 5. Subsection (1) of section 985.19, Florida
177 Statutes, is amended to read:
178 985.19 Incompetency in juvenile delinquency cases.—
179 (1) If, at any time prior to or during a delinquency case,
180 the court has reason to believe that the child named in the
181 petition may be incompetent to proceed with the hearing, the
182 court on its own motion may, or on the motion of the child’s
183 attorney or state attorney must, stay all proceedings and order
184 an evaluation of the child’s mental condition.
185 (a) Any motion questioning the child’s competency to
186 proceed must be served upon the child’s attorney, the state
187 attorney, the attorneys representing the Department of Juvenile
188 Justice, and the attorneys representing the Department of
189 Children and Families Family Services. Thereafter, any motion,
190 notice of hearing, order, or other legal pleading relating to
191 the child’s competency to proceed with the hearing must be
192 served upon the child’s attorney, the state attorney, the
193 attorneys representing the Department of Juvenile Justice, and
194 the attorneys representing the Department of Children and
195 Families Family Services.
196 (b) All determinations of competency must shall be made at
197 a hearing, with findings of fact based on an evaluation of the
198 child’s mental condition made by at least not less than two but
199 not nor more than three experts appointed by the court. The
200 basis for the determination of incompetency must be specifically
201 stated in the evaluation. In addition, a recommendation as to
202 whether residential or nonresidential treatment or training is
203 required must be included in the evaluation. Experts appointed
204 by the court to determine the mental condition of a child shall
205 be allowed reasonable fees for services rendered. State
206 employees may be paid expenses pursuant to s. 112.061. The fees
207 shall be taxed as costs in the case.
208 (c) A child is competent to proceed if the child has
209 sufficient present ability to consult with counsel with a
210 reasonable degree of rational understanding and the child has a
211 rational and factual understanding of the present proceedings.
212 The expert’s competency evaluation report must specifically
213 state the basis for the determination of the child’s mental
214 condition and must include written findings that:
215 1. Identify the specific matters referred for evaluation.
216 2. Identify the sources of information used by the expert.
217 3. Describe the procedures, techniques, and diagnostic
218 tests used in the examination to determine the basis of the
219 child’s mental condition.
220 4. Address the child’s capacity to:
221 a. Appreciate the charges or allegations against the child.
222 b. Appreciate the range and nature of possible penalties
223 that may be imposed in the proceedings against the child, if
225 c. Understand the adversarial nature of the legal process.
226 d. Disclose to counsel facts pertinent to the proceedings
227 at issue.
228 e. Display appropriate courtroom behavior.
229 f. Testify relevantly.
230 5. Present the factual basis for the expert’s clinical
231 findings and opinions of the child’s mental condition. The
232 expert’s factual basis of his or her clinical findings and
233 opinions must be supported by the diagnostic criteria found in
234 the most recent edition of the Diagnostic and Statistical Manual
235 of Mental Disorders (DSM) published by the American Psychiatric
236 Association and must be presented in a separate section of the
237 report entitled “summary of findings.” This section must
239 a. The day, month, year, and length of time of the face-to
240 face diagnostic clinical interview to determine the child’s
241 mental condition.
242 b. A statement that identifies the DSM clinical name and
243 associated diagnostic code for the specific mental disorder that
244 forms the basis of the child’s incompetency.
245 c. A statement of how the child would benefit from
246 competency restoration services in the community or in a secure
247 residential treatment facility.
248 d. An assessment of the probable duration of the treatment
249 to restore competence and the probability that the child will
250 attain competence to proceed in the foreseeable future.
251 e. A description of recommended treatment or education
252 appropriate for the mental disorder.
253 6. If the evaluator determines the child to be incompetent
254 to proceed to trial, the evaluator must report on the mental
255 disorder that forms the basis of the incompetency.
256 (d) (c) All court orders determining incompetency must
257 include specific written findings by the court as to the nature
258 of the incompetency and whether the child requires secure or
259 nonsecure treatment or training environment environments.
260 (e) (d) For competency incompetency evaluations related to
261 mental illness, the Department of Children and Families Family
262 Services shall maintain and annually provide the courts with a
263 list of available mental health professionals who have completed
264 a training program approved by the Department of Children and
265 Families Family Services to perform the evaluations.
266 (f) (e) For competency incompetency evaluations related to
267 mental retardation or autism, the court shall order the Agency
268 for Persons with Disabilities to examine the child to determine
269 if the child meets the definition of “retardation” or “autism”
270 in s. 393.063 and, provide a clinical opinion as to if so,
271 whether the child is competent to proceed with delinquency
273 (f) A child is competent to proceed if the child has
274 sufficient present ability to consult with counsel with a
275 reasonable degree of rational understanding and the child has a
276 rational and factual understanding of the present proceedings.
277 The report must address the child’s capacity to:
278 1. Appreciate the charges or allegations against the child.
279 2. Appreciate the range and nature of possible penalties
280 that may be imposed in the proceedings against the child, if
282 3. Understand the adversarial nature of the legal process.
283 4. Disclose to counsel facts pertinent to the proceedings
284 at issue.
285 5. Display appropriate courtroom behavior.
286 6. Testify relevantly.
287 (g) Immediately upon the filing of the court order finding
288 a child incompetent to proceed, the clerk of the court shall
289 notify the Department of Children and Families Family Services
290 and the Agency for Persons with Disabilities and fax or hand
291 deliver to the department and to the agency a referral packet
292 that includes, at a minimum, the court order, the charging
293 documents, the petition, and the court-appointed evaluator’s
295 (h) After placement of the child in the appropriate
296 setting, the Department of Children and Families Family Services
297 in consultation with the Agency for Persons with Disabilities,
298 as appropriate, must, within 30 days after placement of the
299 child, prepare and submit to the court a treatment or training
300 plan for the child’s restoration of competency. A copy of the
301 plan must be served upon the child’s attorney, the state
302 attorney, and the attorneys representing the Department of
303 Juvenile Justice.
304 Section 6. This act shall take effect July 1, 2013.