House Bill 3247c2
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Florida House of Representatives - 1998 CS/CS/HB 3247
By the Committees on Family Law & Children, Elder Affairs
& Long Term Care and Representative Argenziano
1 A bill to be entitled
2 An act relating to forensic client services;
3 amending s. 40.29, F.S., relating to estimated
4 amount of pay for expert witnesses, to conform
5 a reference; amending s. 393.11, F.S.;
6 specifying persons or entities that may file
7 petition for proposed involuntary admission to
8 residential services arising out of ch. 916,
9 F.S., relating to forensic services; providing
10 for petitions for defendants with autism;
11 revising required contents of the petition;
12 revising requirements relating to notice of
13 filing of petition or service of copy of order;
14 prohibiting release from order for involuntary
15 admission except by court order; amending and
16 reorganizing ch. 916, F.S., the Forensic Client
17 Services Act; creating pt. I of ch. 916, F.S.;
18 providing general provisions of the chapter;
19 amending s. 916.105, F.S.; revising legislative
20 intent; amending s. 916.106, F.S.; providing or
21 revising definitions with respect to ch. 916,
22 F.S.; redefining "department" to refer to the
23 Department of Children and Family Services in
24 lieu of the Department of Health and
25 Rehabilitative Services; amending s. 916.107,
26 F.S.; revising state policy with respect to the
27 rights of forensic clients, and conforming
28 terminology; amending and renumbering s.
29 916.175, F.S., relating to criminal escape by a
30 client; prohibiting escape or attempted escape
31 from a facility or program by a client under
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1 specified circumstances, and providing
2 penalties therefor; amending and renumbering s.
3 916.178, F.S.; prohibiting the introduction of
4 certain articles into or upon, or the taking or
5 attempt to take or send certain articles from,
6 facility grounds, under specified
7 circumstances, and providing penalties
8 therefor; providing for enforcement by
9 institutional security personnel or law
10 enforcement officers; conforming a reference;
11 amending and renumbering s. 916.19, F.S.;
12 providing for client protection and security;
13 renumbering s. 916.20, F.S., relating to
14 departmental rulemaking; creating pt. II of ch.
15 916, F.S., relating to forensic services for
16 persons who are mentally ill; amending and
17 renumbering s. 916.108, F.S.; providing for
18 evaluation of defendant for competency to
19 proceed or for sanity, under specified
20 circumstances; amending and renumbering s.
21 916.11, F.S.; revising time limits and
22 guidelines relating to appointment of experts;
23 amending s. 916.12, F.S.; providing duties of
24 examining experts and guidelines with respect
25 to reports on defendant's mental competence to
26 proceed and recommended treatment for defendant
27 to attain competence to proceed; amending s.
28 916.13, F.S.; providing criteria for
29 involuntary commitment of defendant adjudicated
30 incompetent to proceed due to mental illness;
31 revising duties of the court or the department
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1 and guidelines relating to commitment and
2 placement of defendant and filing of reports;
3 amending s. 916.14, F.S.; providing for
4 inapplicability of statute of limitations and
5 of bar against former jeopardy under specified
6 circumstances when defendant is incompetent to
7 proceed; amending s. 916.145, F.S.; revising
8 time limits and guidelines with respect to
9 dismissal of charges against a defendant
10 adjudicated incompetent to proceed; providing
11 for dismissal without prejudice under specified
12 circumstances; amending s. 916.15, F.S.,
13 relating to involuntary commitment of defendant
14 adjudicated not guilty by reason of insanity;
15 conforming terminology; providing for mandatory
16 departmental retention and treatment of
17 defendant; reenacting s. 394.467(7)(a), F.S.,
18 relating to procedure for continued involuntary
19 placement, to incorporate said amendment in a
20 reference; amending s. 916.16, F.S.; providing
21 for retention of jurisdiction by committing
22 court over a defendant hospitalized as
23 incompetent to proceed or because of a finding
24 of not guilty by reason of insanity or over a
25 defendant placed on conditional release;
26 prohibiting release except by court order in
27 specified circumstances; amending s. 916.17,
28 F.S.; revising procedures and guidelines
29 relating to conditional release and
30 modification of release conditions, including
31 filing requirements for plans for outpatient
3
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1 treatment; creating pt. III of ch. 916, F.S.,
2 relating to forensic services for persons who
3 are mentally retarded or autistic; creating s.
4 916.301, F.S.; providing for appointment of
5 experts who are mental retardation or autism
6 professionals, under specified circumstances;
7 providing for examination of the defendant by
8 the experts; providing for certain witness fees
9 and evaluator fees as court costs; providing
10 for reimbursement of certain travel and per
11 diem expenses of state employees; creating s.
12 916.3012, F.S.; providing for determination of
13 incompetence to proceed when the defendant's
14 suspected mental condition is mental
15 retardation or autism; creating s. 916.302,
16 F.S.; providing for involuntary commitment of
17 defendant determined to be incompetent to
18 proceed due to mental retardation or autism;
19 requiring the department to notify the court of
20 transfer of a defendant; creating s. 916.3025,
21 F.S.; providing for retention of jurisdiction
22 over certain defendants found incompetent to
23 proceed and ordered into a secure facility for
24 mentally retarded or autistic defendants;
25 prohibiting release except by court order;
26 creating s. 916.303, F.S.; providing for
27 dismissal of charges without prejudice or
28 involuntary admission to residential services
29 or a training program under specified
30 circumstances when the defendant is found
31 incompetent to proceed due to mental
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1 retardation or autism; providing for petitions
2 to continue defendant's placement in a secure
3 facility or program under specified
4 circumstances; requiring a review and hearing
5 to be held at least annually of the
6 involuntarily admitted defendant's status,
7 under specified circumstances; requiring the
8 court to make certain determinations; providing
9 for notice of the review and hearing; providing
10 that the defendant's placement in a secure
11 facility or program may not exceed in length
12 the maximum sentence for the crime charged;
13 creating s. 916.304, F.S.; providing for
14 conditional release based on an approved plan
15 for providing continuing community-based
16 training of defendant; providing for
17 modification of release conditions or
18 termination of jurisdiction under specified
19 circumstances; providing an effective date.
20
21 Be It Enacted by the Legislature of the State of Florida:
22
23 Section 1. Subsection (1) of section 40.29, Florida
24 Statutes, is amended to read:
25 40.29 Clerks to estimate amount for pay of jurors and
26 witnesses and make requisition.--
27 (1) The clerk of the court in and for any county shall
28 make an estimate of the amount necessary during any quarterly
29 fiscal period beginning July 1 and during each succeeding
30 quarterly fiscal period for the payment by the state of:
31 (a) Jurors in the circuit court and the county court;
5
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1 (b) Witnesses before the grand jury;
2 (c) Witnesses summoned to appear for an investigation,
3 preliminary hearing, or trial in a criminal case when the
4 witnesses are summoned by a state attorney or on behalf of an
5 indigent defendant;
6 (d) Mental health professionals who are appointed
7 pursuant to s. 394.473 and required in a court hearing
8 involving an indigent; and
9 (e) Expert witnesses who are appointed pursuant to s.
10 916.115(2) 916.11(3) and required in a court hearing involving
11 an indigent;
12
13 and shall forward each such estimate to the State Courts
14 Administrator no later than the date scheduled by the State
15 Courts Administrator. At the time of any forwarding of such
16 estimate, the clerk of such court shall make a requisition
17 upon the State Courts Administrator for the amount of such
18 estimate; and the State Courts Administrator may reduce the
19 amount if in his or her judgment the requisition is excessive.
20 Section 2. Subsections (2), (3), (8), and (11) of
21 section 393.11, Florida Statutes, are amended to read:
22 393.11 Involuntary admission to residential
23 services.--
24 (2) PETITION.--
25 (a) A petition for involuntary admission to
26 residential services may be executed by a petitioning
27 commission. For proposed involuntary admission to residential
28 services arising out of chapter 916, the petition may be filed
29 by a petitioning commission, the department, the state
30 attorney of the circuit from which the defendant was
31 committed, or the defendant's attorney.
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1 (b) The petitioning commission shall consist of three
2 persons. One of these persons shall be a physician licensed
3 and practicing under chapter 458 or chapter 459.
4 (c) The petition shall be verified and shall:
5 1. State the name, age, and present address of the
6 commissioners and their relationship to the person with mental
7 retardation or autism;
8 2. State the name, age, county of residence, and
9 present address of the person with mental retardation or
10 autism;
11 3. Allege that the commission believes that the person
12 needs involuntary residential services and specify the factual
13 information on which such belief is based;
14 4. Allege that the person lacks sufficient capacity to
15 give express and informed consent to a voluntary application
16 for services and lacks the basic survival and self-care skills
17 to provide for the person's well-being or is likely to
18 physically injure others if allowed to remain at liberty, and
19 specify the factual basis for such allegation; and
20 5. State which residential setting is the least
21 restrictive and most appropriate alternative and specify the
22 factual information on which such belief is based.
23 (d) The petition shall be filed in the circuit court
24 of the county in which the person with mental retardation or
25 autism resides.
26 (3) NOTICE.--
27 (a) Notice of the filing of the petition shall be
28 given to the individual and his or her legal guardian parent
29 or parents. The notice shall be given both verbally and in
30 writing in the language of the client, or in other modes of
31 communication of the client, and in English. Notice shall also
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1 be given to such other persons as the court may direct. The
2 petition for involuntary admission to residential services
3 shall be served with the notice.
4 (b) Whenever a motion or petition has been filed
5 pursuant to s. 916.303 to dismiss criminal charges against a
6 defendant with retardation or autism, and a petition is filed
7 to involuntarily admit the defendant to residential services,
8 the notice of the filing of the petition shall also be given
9 to the defendant's attorney, to the defendant's legal
10 guardian, and to the state attorney of the circuit from which
11 the defendant was committed.
12 (c)(b) The notice shall state that a hearing shall be
13 set to determine whether inquire into the need of the person
14 with mental retardation or autism meets the criteria for
15 involuntary residential services. The notice shall also state
16 the date of the hearing on the petition.
17 (d)(c) The notice shall state that the individual with
18 mental retardation or autism has the right to be represented
19 by counsel of his or her own choice and that, if the person
20 cannot afford an attorney, the court shall appoint one.
21 (8) ORDER.--
22 (a) In all cases, the court shall issue written
23 findings of fact and conclusions of law to support its
24 decision. The order shall state the basis for such findings
25 of fact.
26 (b) An order of involuntary admission to residential
27 services shall not be entered unless the court finds that:
28 1. The person is mentally retarded or autistic;
29 2. Placement in a residential setting is the least
30 restrictive and most appropriate alternative to meet the
31 person's needs; and
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1 3. Because of the person's degree of mental
2 retardation or autism, the person:
3 a. Lacks sufficient capacity to give express and
4 informed consent to a voluntary application for services
5 pursuant to s. 393.065 and lacks basic survival and self-care
6 skills to such a degree that close supervision and
7 habilitation in a residential setting is necessary and, if not
8 provided, would result in a real and present threat of
9 substantial harm to the person's well-being; or
10 b. Is likely to physically injure others if allowed to
11 remain at liberty.
12 (c) If the evidence presented to the court is not
13 sufficient to warrant involuntary admission to residential
14 services, but the court feels that residential services would
15 be beneficial, the court may recommend that the person seek
16 voluntary admission.
17 (d) If an order of involuntary admission to
18 residential services provided by the developmental services
19 program of the department is entered by the court, a copy of
20 the written order shall be served upon the person, the
21 person's counsel, and the department, and, if a forensic
22 matter pursuant to chapter 916, the state attorney and the
23 person's defense counsel, if applicable. The order of
24 involuntary admission sent to the department shall also be
25 accompanied by a copy of the examining committee's report and
26 other reports contained in the court file.
27 (e) Upon receiving the order, the department shall,
28 within 45 days, provide the court with a copy of the person's
29 family or individual support plan and copies of all
30 examinations and evaluations, outlining the treatment and
31 rehabilitative programs. The department shall document that
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1 the person has been placed in the most appropriate, least
2 restrictive and cost-beneficial residential facility. A copy
3 of the family or individual support plan and other
4 examinations and evaluations shall be served upon the person
5 and the person's counsel at the same time the documents are
6 filed with the court.
7 (11) CONTINUING JURISDICTION.--The court which issues
8 the initial order for involuntary admission to residential
9 services under this section shall have continuing jurisdiction
10 to enter further orders to ensure that the person is receiving
11 adequate care, treatment, habilitation, and rehabilitation,
12 including psychotropic medication and behavioral programming.
13 Upon request, the court may transfer the continuing
14 jurisdiction to the court where a client resides if it is
15 different from where the original involuntary admission order
16 was issued. No person may be released from an order for
17 involuntary admission to residential services except by the
18 order of the court.
19 Section 3. For the purpose of incorporating the
20 amendment to section 916.15, Florida Statutes, in a reference
21 thereto, paragraph (a) of subsection (7) of section 394.467,
22 Florida Statutes, is reenacted to read:
23 394.467 Involuntary placement.--
24 (7) PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.--
25 (a) Hearings on petitions for continued involuntary
26 placement shall be administrative hearings and shall be
27 conducted in accordance with the provisions of s. 120.57(1),
28 except that any order entered by the hearing officer shall be
29 final and subject to judicial review in accordance with s.
30 120.68. Orders concerning patients committed after
31
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1 successfully pleading not guilty by reason of insanity shall
2 be governed by the provisions of s. 916.15.
3 Section 4. Part I of chapter 916, Florida Statutes,
4 consisting of sections 916.10, 916.105, 916.106, 916.107,
5 916.1081, 916.1085, 916.1091, and 916.1093, is created and
6 entitled "General Provisions."
7 Section 5. Section 916.105, Florida Statutes, is
8 amended to read:
9 916.105 Legislative intent.--
10 (1) It is the intent of the Legislature that the
11 Department of Children and Family Health and Rehabilitative
12 Services establish, locate, and maintain separate and secure
13 facilities and programs for the treatment or training of
14 defendants forensic clients who are charged with a felony and
15 who have been found to be incompetent to proceed due to their
16 mental illness, mental retardation, or autism mentally
17 retarded or mentally ill defendants, or who have been
18 acquitted of felonies crimes by reason of insanity, and who,
19 while still under the jurisdiction of the committing court,
20 are committed to the department for mental retardation or
21 mental health services under the provisions of this chapter.
22 The separate, secure facilities shall be sufficient to
23 accommodate the number of defendants clients committed under
24 the conditions noted above, except those defendants clients
25 found by the department to be appropriate for treatment or
26 training in a civil mental health treatment facility or
27 program. Such secure facilities shall be designed and
28 administered so that ingress and egress, together with other
29 requirements of this chapter, may be strictly controlled by
30 staff responsible for security in order to protect the
31
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1 defendant client, facility hospital personnel, other clients,
2 and citizens in adjacent communities.
3 (2) It is further the intent of the Legislature that
4 treatment or training programs for defendants clients who are
5 found to be mentally retarded or mentally ill, mentally
6 retarded, or autistic defendants and are involuntarily
7 committed to the department certain mental retardation or
8 mental health facilities, and who are still under the
9 jurisdiction of the committing court, be provided in such a
10 manner, subject to security requirements and other mandates of
11 this chapter, as to ensure the rights of the defendants said
12 clients as provided in this chapter.
13 (3) It is the intent of the Legislature that
14 evaluation and services to defendants who are treatment of
15 mentally ill, and mentally retarded, or autistic defendants be
16 provided in community inpatient or outpatient settings, in
17 community residential facilities, or in civil, nonforensic
18 facilities, whenever this is a feasible alternative to
19 treatment or training in a state forensic facility.
20 Section 6. Section 916.106, Florida Statutes, is
21 amended to read:
22 916.106 Definitions.--For the purposes of this
23 chapter:
24 (1) "Autism" means "autism" as defined in s.
25 393.063(2).
26 (2)(1) "Chemical weapon" means any shell, cartridge,
27 bomb, gun, or other device capable of emitting
28 chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any
29 derivatives thereof in any form, or any other agent with
30 lacrimatory properties, and shall include products such as
31 that commonly known as "mace."
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1 (3) "Civil facility" means a mental health facility
2 established within the department to serve individuals
3 committed pursuant to chapter 394 and those defendants
4 committed pursuant to this chapter who do not require the
5 security provided in a forensic facility.
6 (4)(2) "Court" means the circuit court.
7 (5)(3) "Department" means the Department of Children
8 and Family Health and Rehabilitative Services.
9 (6) "Express and informed consent" or "consent" means
10 consent given voluntarily in writing after a conscientious and
11 sufficient explanation and disclosure of the purpose of the
12 proposed treatment, the common side effects of the treatment,
13 if any, the expected duration of the treatment, and any
14 alternative treatment available.
15 (7)(4) "Forensic client" or "client" "patient" means
16 any defendant who is mentally ill, mentally retarded, or
17 autistic and mentally ill person who is committed to the
18 department pursuant to this chapter and:
19 (a) Who has been determined to need treatment for a
20 mental illness or training for mental retardation or autism;
21 (b) Who has been found incompetent to proceed on a
22 felony offense stand trial or incompetent for sentencing, has
23 been acquitted of a felony criminal offense by reason of
24 insanity;, has criminal charges pending, or has been found
25 guilty of a criminal offense but is not an inmate of the
26 Department of Corrections or any other correctional facility;
27 and
28 (c) Who has been determined by the department to:
29 1. Be dangerous to himself or herself or others; or
30 2. Present a clear and present potential to escape;
31 and
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1 (d) Who is an adult or juvenile prosecuted as an
2 adult.
3 (8)(5) "Forensic facility" means a separate and secure
4 facility established within the department to serve for the
5 treatment of forensic clients. Such separate and secure
6 facilities shall be security-grade buildings located on
7 grounds distinct in location from other treatment facilities
8 for persons who are mentally ill. The Florida State Hospital
9 shall not be required to maintain separate treatment
10 facilities for mentally ill, or mentally retarded, or autistic
11 defendants who are persons found incompetent to proceed for
12 trial or who are acquitted of a criminal offense by reason of
13 insanity.
14 (9) "Incompetent to proceed" means unable to proceed
15 at any material stage of a criminal proceeding, which shall
16 include trial of the case, pretrial hearings involving
17 questions of fact on which the defendant might be expected to
18 testify, entry of a plea, proceedings for violation of
19 probation or violation of community control, sentencing, and
20 hearings on issues regarding a defendant's failure to comply
21 with court orders or conditions or other matters in which the
22 mental competence of the defendant is necessary for a just
23 resolution of the issues being considered.
24 (10)(6) "Institutional security personnel" means staff
25 members who meet or exceed the requirements of s. 943.13 and
26 who are responsible for providing security, for protection of
27 clients and personnel, for the enforcement of rules, for
28 prevention and investigation of unauthorized activities, and
29 for safeguarding the interests of citizens in the surrounding
30 communities.
31
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1 (11)(7) "Mental illness" "Mentally ill" means having
2 an impairment of the emotional processes that, of the ability
3 to exercise conscious control of one's actions, or of the
4 ability to perceive or understand reality or to understand,
5 which impairment substantially interferes with a defendant's
6 person's ability to meet the ordinary demands of living.,
7 regardless of etiology; except that, For the purposes of this
8 chapter, the term does not apply to defendants include simple
9 intoxication, persons who are solely mentally retarded or
10 autistic, and does not include intoxication or conditions
11 manifested only by antisocial behavior or substance abuse
12 impairment drug addiction.
13 (12)(8) "Mental retardation" means "retardation" as
14 defined in s. 393.063(43). significantly subaverage general
15 intellectual functioning existing concurrently with deficits
16 in adaptive behavior and manifested during the period from
17 conception to age 18. "Significantly subaverage general
18 intellectual functioning," for the purpose of this definition,
19 means performance which is two or more standard deviations
20 from the mean score on a standardized intelligence test
21 specified in the rules of the department. "Adaptive
22 behavior," for the purpose of this definition, means the
23 effectiveness or degree with which an individual meets the
24 standards of personal independence and social responsibility
25 expected of the individual's age, cultural group, and
26 community.
27 (13) "Social service professional," for the purposes
28 of part III, means a person whose minimum qualifications
29 include a bachelor's degree and at least 2 years of social
30 work, clinical practice, or equivalent experience working
31 directly with persons with mental retardation, autism or other
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1 developmental disabilities, special education, or habilitation
2 programs.
3 Section 7. Section 916.107, Florida Statutes, is
4 amended to read:
5 916.107 Rights of forensic clients.--
6 (1) RIGHT TO INDIVIDUAL DIGNITY.--
7 (a) The policy of the state is that the individual
8 dignity of the client patient shall be respected at all times
9 and upon all occasions, including any occasion when the
10 forensic client patient is detained, transported, or treated.
11 Defendants Persons who are mentally ill, or mentally retarded,
12 or autistic and who are charged with, or who have been
13 convicted of, committing felonies criminal acts shall receive
14 appropriate treatment or training. In a criminal case
15 involving a defendant person who has been adjudicated
16 incompetent to proceed stand trial or not guilty by reason of
17 insanity, or who has otherwise been found by the court to meet
18 the criteria for involuntary commitment, a jail may be used as
19 an emergency facility for up to 15 days from the date the
20 department receives a completed copy of the commitment order
21 containing the documentation required by Rules 3.212 and
22 3.217, Florida Rules of Criminal Procedure. For In every case
23 in which a defendant who is mentally ill, or mentally
24 retarded, or autistic, who person is held in a jail, and who
25 has been adjudicated incompetent to proceed or not guilty by
26 reason of insanity, evaluation and treatment or training shall
27 be provided in the jail by the local public receiving facility
28 for mental health services or by the developmental services
29 program for persons with mental retardation or autism, the
30 client's patient's physician or clinical psychologist, or any
31 other appropriate mental health program available to provide
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1 such treatment until the client person is transferred to the
2 custody of the department.
3 (b) Mentally ill, or mentally retarded, or autistic
4 defendants persons who are committed to the department
5 pursuant to this chapter and who are initially placed in, or
6 subsequently transferred to, a civil mental health treatment
7 facility as described in part I of chapter 394 or to a
8 residential facility as described in chapter 393 shall have
9 the same rights as other persons committed to these civil
10 facilities for as described in part I of chapter 394, as long
11 as they remain there in a civil facility.
12 (2) RIGHT TO TREATMENT.--
13 (a) The policy of the state is that the department
14 shall not deny treatment or training of mental illness or
15 mental retardation to any client and that no services shall be
16 delayed at a forensic mental health treatment facility because
17 the forensic client is unable to pay. However, every
18 reasonable effort to collect appropriate reimbursement for the
19 cost of providing mental health services to clients persons
20 able to pay for the services, including reimbursement from
21 insurance or other third-party payments, shall be made by
22 forensic facilities providing services pursuant to this
23 chapter and in accordance with the provisions of s. 402.33.
24 (b) Each client who is a patient at a forensic
25 facility shall be given, at the time of admission and at
26 regular intervals thereafter, a physical examination, which
27 shall include screening for communicable disease by a health
28 practitioner authorized by law to give such screenings and
29 examinations.
30 (c) Every client patient committed pursuant to this
31 act shall be afforded the opportunity to participate in
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1 activities designed to enhance self-image and the beneficial
2 effects of other treatments or training, as determined by the
3 facility.
4 (d) Not more than 30 days after admission, each client
5 patient shall have and receive, in writing, an individualized
6 treatment or training plan which the client patient has had an
7 opportunity to assist in preparing.
8 (3) RIGHT TO EXPRESS AND INFORMED CONSENT.--
9 (a) A client person committed to the department
10 pursuant to this act shall be asked to give express and
11 informed written consent for treatment. "Express and informed
12 consent" or "consent" means consent given voluntarily in
13 writing after a conscientious and sufficient explanation and
14 disclosure of the purpose of the proposed treatment, the
15 common side effects of the treatment, if any, the expected
16 duration of the treatment, and any alternative treatment
17 available. If a client patient in a forensic facility refuses
18 such treatment as is deemed necessary by the client's
19 patient's multidisciplinary treatment team at the forensic
20 facility for the appropriate care of the client patient and
21 the safety of the client patient or others, such treatment may
22 be provided under the following circumstances:
23 1. In an emergency situation in which there is
24 immediate danger to the safety of the client patient or
25 others, such treatment may be provided upon the written order
26 of a physician for a period not to exceed 48 hours, excluding
27 weekends and legal holidays. If, after the 48-hour period,
28 the client patient has not given express and informed consent
29 to the treatment initially refused, the administrator or
30 designee of the forensic facility shall, within 48 hours,
31 excluding weekends and legal holidays, petition the committing
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1 court or the circuit court serving the county in which the
2 facility is located, at the option of the facility
3 administrator or designee, for an order authorizing the
4 continued treatment of the client patient. In the interim,
5 treatment may be continued without the consent of the client
6 patient upon the continued written order of a physician who
7 has determined that the emergency situation continues to
8 present a danger to the safety of the client patient or
9 others.
10 2. In a situation other than an emergency situation,
11 the administrator or designee of the forensic facility shall
12 petition the court for an order authorizing the treatment to
13 of the client patient. The order shall allow such treatment
14 for a period not to exceed 90 days from the date of the entry
15 of the order. Unless the court is notified in writing that the
16 client patient has provided express and informed consent in
17 writing or that the client patient has been discharged by the
18 committing court, the administrator or designee shall, prior
19 to the expiration of the initial 90-day order, petition the
20 court for an order authorizing the continuation of treatment
21 for another 90-day period. This procedure shall be repeated
22 until the client patient provides consent or is discharged by
23 the committing court.
24 3. At the hearing on the issue of whether the court
25 should enter an order authorizing treatment for which a client
26 patient has refused to give express and informed consent, the
27 court shall determine by clear and convincing evidence that
28 the client patient is mentally ill, or mentally retarded, or
29 autistic as defined in this chapter, that the treatment not
30 consented to is essential to the care of the client patient,
31 and that the treatment not consented to is not experimental
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1 and does not present an unreasonable risk of serious,
2 hazardous, or irreversible side effects. In arriving at the
3 substitute judgment decision, the court must consider at least
4 the following factors:
5 a. The client's patient's expressed preference
6 regarding treatment;
7 b. The probability of adverse side effects;
8 c. The prognosis without treatment; and
9 d. The prognosis with treatment.
10
11 The hearing shall be as convenient to the client patient as
12 may be consistent with orderly procedure and shall be
13 conducted in physical settings not likely to be injurious to
14 the client's patient's condition. The court may appoint a
15 master to preside at the hearing. The client patient or the
16 client's patient's guardian, and the his or her
17 representative, shall be provided with a copy of the petition
18 and the date, time, and location of the hearing. The client
19 patient has the right to have an attorney represent him or her
20 at the hearing, and, if the client patient is indigent, the
21 court shall appoint the office of the public defender to
22 represent the client patient at the hearing. The client
23 patient may testify or not, as he or she chooses, and has the
24 right to cross-examine witnesses testifying on behalf of the
25 facility and may present his or her own witnesses.
26 (b) In addition to the provisions of paragraph (a), in
27 the case of surgical procedures requiring the use of a general
28 anesthetic or electroconvulsive treatment or nonpsychiatric
29 medical procedures, and prior to performing the procedure,
30 written permission shall be obtained from the client patient,
31 if the client he or she is legally competent, from the parent
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1 or guardian of a minor client patient, or from the guardian of
2 an incompetent client patient. The administrator or designee
3 of the forensic facility or a his or her designated
4 representative may, with the concurrence of the client's
5 patient's attending physician, authorize emergency surgical or
6 nonpsychiatric medical treatment if such treatment is deemed
7 lifesaving or for a situation threatening serious bodily harm
8 to the client patient and permission of the client patient or
9 the client's patient's guardian cannot be obtained.
10 (4) QUALITY OF TREATMENT.--Each client patient
11 committed pursuant to this chapter shall receive treatment or
12 training suited to the client's his or her needs, which shall
13 be administered skillfully, safely, and humanely with full
14 respect for the the client's patient's dignity and personal
15 integrity. Each client patient shall receive such medical,
16 vocational, social, educational, and rehabilitative services
17 as the client's patient's condition requires to bring about a
18 return to court for disposition of charges or a an early
19 return to the his or her community. In order to achieve this
20 goal, the department is directed to coordinate the services of
21 the Alcohol, Drug Abuse and Mental Health Program Office and
22 the Developmental Services Program Office its forensic mental
23 health and mental retardation programs with all other programs
24 of the department and other appropriate state agencies.
25 (5) COMMUNICATION, ABUSE REPORTING, AND VISITS.--
26 (a) Each client patient committed pursuant to the
27 provisions of this chapter has the right to communicate freely
28 and privately with persons outside the facility unless it is
29 determined that such communication is likely to be harmful to
30 the client patient or others. Clients shall have the right to
31
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1 contact and to receive communication from their attorneys at
2 any reasonable time.
3 (b) Each client patient committed under the provisions
4 of this chapter shall be allowed to receive, send, and mail
5 sealed, unopened correspondence; and no client's patient's
6 incoming or outgoing correspondence shall be opened, delayed,
7 held, or censored by the facility unless there is reason to
8 believe that it contains items or substances which may be
9 harmful to the client patient or others, in which case the
10 administrator or designee may direct reasonable examination of
11 such mail and may regulate the disposition of such items or
12 substances. "Correspondence" shall not include parcels or
13 packages. Forensic facilities are authorized to promulgate
14 reasonable institutional policies rules to provide for the
15 inspection of parcels or packages and for the removal of
16 contraband items for health or security reasons prior to the
17 contents being given to a client resident.
18 (c) If a client's patient's right to communicate is
19 restricted by the administrator, written notice of such
20 restriction shall be served on the client patient or his or
21 her legal the patient's guardian or representatives, and such
22 restriction shall be recorded on the client's patient's
23 clinical record with the reasons therefor. The restriction of
24 a client's patient's right to communicate shall be reviewed at
25 least every 7 90 days.
26 (d) Each forensic facility shall establish reasonable
27 institutional policies rules governing visitors, visiting
28 hours, and the use of telephones by clients patients in the
29 least restrictive possible manner possible.
30 (e) Each client patient committed pursuant to this
31 chapter shall have ready access to a telephone in order to
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1 report an alleged abuse. The facility or program staff shall
2 orally verbally and in writing inform each client patient of
3 the procedure for reporting abuse and shall present the
4 information in a language the client understands. A written
5 copy of that procedure, including the telephone number of the
6 abuse registry and reporting forms, shall be posted in plain
7 view.
8 (f) The department's forensic facilities department
9 shall develop policies adopt rules providing a procedure for
10 reporting abuse. Facility staff shall be required, as a
11 condition of employment, to become familiar with the
12 procedures for the reporting of abuse.
13 (6) CARE AND CUSTODY OF PERSONAL EFFECTS OF CLIENTS
14 PATIENTS.--A client's patient's right to possession of his or
15 her clothing and personal effects shall be respected. The
16 department by rule, or the administrator of any facility by
17 written institutional policy, may declare certain items to be
18 hazardous to the welfare of clients patients or others or to
19 the operation of the facility. Such items may be restricted
20 from introduction into the facility or may be restricted from
21 being in a client's patient's possession. The administrator
22 or designee may take temporary custody of such effects when
23 required for medical and safety reasons. Custody of such
24 personal effects shall be recorded in the client's patient's
25 clinical record.
26 (7) VOTING IN PUBLIC ELECTIONS.--A client patient
27 committed pursuant to this chapter who is eligible to vote
28 according to the laws of the state has the right to vote in
29 the primary and general elections. The department shall
30 establish rules to enable clients patients to obtain voter
31
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1 registration forms, applications for absentee ballots, and
2 absentee ballots.
3 (8) CLINICAL RECORD; CONFIDENTIALITY.--A clinical
4 record for each client patient shall be maintained. The record
5 shall include data pertaining to admission and such other
6 information as may be required under rules of the department.
7 Unless waived by express and informed consent of by the client
8 patient or the client's patient's legal guardian or, if the
9 client patient is deceased, by the client's patient's personal
10 representative or by that family member who stands next in
11 line of intestate succession or except as otherwise provided
12 in this subsection, the clinical record is confidential and
13 exempt from the provisions of s. 119.07(1) and s. 24(a), Art.
14 I of the State Constitution.
15 (a) Such clinical record may be released:
16 1. To such persons and agencies as are designated by
17 the client patient or the client's patient's legal guardian.
18 2. To persons authorized by order of court and to the
19 defendant's counsel when the records are needed by the counsel
20 for adequate representation.
21 3. To a qualified researcher, as defined by rule; a
22 staff member of the facility; or an employee of the department
23 when the administrator of the facility or secretary of the
24 department deems it necessary for treatment of the client
25 patient, maintenance of adequate records, compilation of
26 treatment data, or evaluation of programs.
27 4. For statistical and research purposes if the
28 information is abstracted in such a way as to protect the
29 identity of individuals.
30 5. If a client patient receiving services pursuant to
31 this chapter has declared an intention to harm other persons.
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1 When such a declaration has been made, the administrator shall
2 authorize the release of sufficient information to provide
3 adequate warning to the person threatened with harm by the
4 client, and to the committing court, the state attorney, and
5 the attorney representing the client; however, only the
6 declaration may be disclosed.
7 6. To the parent or next of kin of a mentally ill, or
8 mentally retarded, or autistic person who is committed to, or
9 is being served treated by, a forensic mental health facility
10 or program when such information is limited to that person's
11 service treatment plan and current physical and mental
12 condition. Release of such information shall be in accordance
13 with the code of ethics of the profession involved.
14 (b) Notwithstanding other provisions of this
15 subsection, the department may request or receive from or
16 provide to any of the following entities client information to
17 facilitate treatment, habilitation, rehabilitation, and
18 continuity of care of any forensic client:
19 1. The Social Security Administration and the United
20 States Department of Veterans Affairs;
21 2. Law enforcement agencies, state attorneys, defense
22 attorneys public defenders or other attorneys defending the
23 patient, and judges in regard to the client's patient's
24 status;
25 3. Jail personnel in the jail to which a client may be
26 returned; and
27 4. Community agencies and others expected to provide
28 followup care to the client patient upon the client's his or
29 her return to the community.
30
31
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1 (c) The department may provide notice to any client's
2 patient's next of kin or first representative regarding any
3 serious medical illness or the death of the client patient.
4 (d)1. Any law enforcement agency, treatment facility,
5 or other governmental agency that receives information
6 pursuant to this subsection shall maintain the confidentiality
7 of such information except as otherwise provided herein.
8 2. Any agency or private practitioner who acts in good
9 faith in releasing information pursuant to this subsection is
10 not subject to civil or criminal liability for such release.
11 (9) HABEAS CORPUS.--
12 (a) At any time, and without notice, a client person
13 detained by a facility, or a relative, friend, guardian,
14 representative, or attorney on behalf of such client person,
15 may petition for a writ of habeas corpus to question the cause
16 and legality of such detention and request that the committing
17 circuit court issue a writ for release. Each client patient
18 committed pursuant to this chapter shall receive a written
19 notice of the right to petition for a writ of habeas corpus.
20 (b) A client patient or his or her legal the patient's
21 guardian or representatives or attorney may file a petition in
22 the circuit court in the county where the client patient is
23 committed alleging that the client patient is being unjustly
24 denied a right or privilege granted herein or that a procedure
25 authorized herein is being abused. Upon the filing of such a
26 petition, the circuit court shall have the authority to
27 conduct a judicial inquiry and to issue any appropriate order
28 to correct an abuse of the provisions of this chapter.
29 (10) TRANSPORTATION.--
30 (a) The sheriff shall consult with the governing board
31 of the county as to the most appropriate and cost-effective
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1 means of transportation for forensic clients committed for
2 treatment or training. Such consultation shall include, but
3 is not limited to, consideration of the cost to the county of
4 transportation performed by sheriff's department personnel as
5 opposed to transportation performed by other means and, if
6 sheriff's department personnel are to be used for
7 transportation, the effect such use will have, if any, on
8 service delivery levels of the sheriff's road patrol. After
9 such consultation with the governing board of the county, the
10 sheriff shall determine the most appropriate and
11 cost-effective means of transportation for forensic clients
12 committed for treatment or training.
13 (b) The governing board of each county is authorized
14 to contract with private transport companies for the
15 transportation of such clients patients to and from a forensic
16 facility.
17 (c) Any company that transports a client patient
18 pursuant to this section is considered an independent
19 contractor and is solely liable for the safe and dignified
20 transportation of the client patient. Any transport company
21 that contracts with the governing board of a county for the
22 transport of clients patients as provided for in this section
23 shall be insured and provide no less than $100,000 in
24 liability insurance with respect to the transportation of the
25 clients patients.
26 (d) Any company that contracts with a governing board
27 of a county to transport clients patients shall comply with
28 the applicable rules of the department to ensure the safety
29 and dignity of the clients patients.
30 (11) LIABILITY FOR VIOLATIONS.--Any person who
31 violates or abuses any rights or privileges of a client
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1 patient provided by this act is liable for damages as
2 determined by law. Any person who acts in good faith in
3 complying with the provisions of this act is immune from civil
4 or criminal liability for his or her actions in connection
5 with the admission, diagnosis, treatment, training, or
6 discharge of a client patient to or from a facility. However,
7 this subsection does not relieve any person from liability if
8 he or she the person is negligent.
9 Section 8. Section 916.175, Florida Statutes, is
10 renumbered as section 916.1081, Florida Statutes, and amended
11 to read:
12 916.1081 916.175 Escape from treatment program;
13 penalty.--A defendant client involuntarily committed to the
14 department under the provisions of this chapter who escapes or
15 attempts to escape from a facility or program commits the
16 department is guilty of a felony of the second degree,
17 punishable as provided in s. 775.082, s. 775.083, or s.
18 775.084.
19 Section 9. Section 916.178, Florida Statutes, is
20 renumbered as section 916.1085, Florida Statutes, and amended
21 to read:
22 916.1085 916.178 Introduction or removal of certain
23 articles unlawful; penalty.--
24 (1)(a) Except as authorized by law or as specifically
25 authorized by the person in charge of a forensic facility, it
26 is unlawful to introduce into or upon the grounds of any
27 forensic facility under the supervision or control of the
28 department, or to take or attempt to take or send therefrom,
29 any of the following articles, which are hereby declared to be
30 contraband for the purposes of this section:
31
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1 1. Any intoxicating beverage or beverage which causes
2 or may cause an intoxicating effect;
3 2. Any controlled substance as defined in chapter 893;
4 3. Any firearm or deadly weapon; or
5 4. Any other item items as determined by the
6 department, and as designated by departmental rule or by the
7 administrator of any facility, and designated by written
8 institutional policies, to be hazardous to the welfare of
9 patients or the operation of the facility.
10 (b) It is unlawful to transmit to, attempt to transmit
11 to, or cause or attempt to cause to be transmitted to or
12 received by any client patient of any facility any article or
13 thing declared by this section to be contraband, at any place
14 which is outside of the grounds of such facility, except as
15 authorized by law or as specifically authorized by the person
16 in charge of such facility.
17 (2)(a) All individuals or vehicles entering upon the
18 grounds of any forensic facility under the supervision or
19 control of the department may shall be subject to reasonable
20 search and seizure of any contraband materials introduced
21 thereon, for purpose of enforcement of this chapter.
22 (b) These provisions shall be enforced by
23 institutional security personnel as defined in s.
24 916.106(10)(6) or by a law enforcement officer as defined in
25 s. 943.10.
26 (c) A person who Whoever violates any provision of
27 subparagraph (1)(a)2. or subparagraph (1)(a)3. commits is
28 guilty of a felony of the third degree, punishable as provided
29 in s. 775.082, s. 775.083, or s. 775.084.
30
31
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1 Section 10. Section 916.19, Florida Statutes, is
2 renumbered as section 916.1091, Florida Statutes, and amended
3 to read:
4 916.1091 916.19 Duties, functions, and powers of
5 institutional security personnel.--In case of emergency, and
6 when necessary to provide protection and security to any
7 client patient, to the personnel, equipment, buildings, or
8 grounds of a department facility, or to citizens in the
9 surrounding community, institutional security personnel may,
10 when authorized by the administrator of the facility or her or
11 his designee when the administrator is not present, use a
12 chemical weapon against a patient housed in a forensic
13 facility. However, such weapon shall be used only to the
14 extent necessary to provide such protection and security.
15 Under no circumstances shall any such officer carry a chemical
16 weapon on her or his person except during the period of the
17 emergency for which its use was authorized. All chemical
18 weapons shall be placed in secure storage when their use is
19 not authorized as provided in this section.
20 Section 11. Section 916.20, Florida Statutes, is
21 renumbered as section 916.1093, Florida Statutes.
22 Section 12. Part II of chapter 916, Florida Statutes,
23 consisting of sections 916.111, 916.115, 916.12, 916.13,
24 916.14, 916.145, 916.15, 916.16, and 916.17, is created and
25 entitled "Forensic Services for Persons Who are Mentally Ill."
26 Section 13. Section 916.108, Florida Statutes, is
27 renumbered as section 916.111, Florida Statutes, and amended
28 to read:
29 916.111 916.108 Training of mental health
30 experts.--The evaluation of defendants for competency to
31 proceed stand trial or for sanity at the time of the
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1 commission of the offense shall be conducted in such a way as
2 to ensure uniform application of the criteria enumerated in
3 Rules 3.210 and 3.216, Florida Rules of Criminal Procedure.
4 The department shall develop, and may contract with accredited
5 institutions:
6 (1) To provide:
7 (a) A plan for training community mental health
8 professionals to perform forensic evaluations and to
9 standardize the criteria and procedures to be used in these
10 evaluations;
11 (b) Clinical protocols and procedures based upon the
12 criteria of Rules 3.210 and 3.216, Florida Rules of Criminal
13 Procedure; and
14 (c) Training for community mental health professionals
15 in the application of these protocols and procedures in
16 performing forensic evaluations and providing reports to the
17 courts; and
18 (2) To compile and maintain the necessary information
19 for evaluating the success of this program, including the
20 number of persons trained, the cost of operating the program,
21 and the effect on the quality of forensic evaluations as
22 measured by appropriateness of admissions to state forensic
23 facilities and to community-based care programs.
24 Section 14. Section 916.11, Florida Statutes, is
25 renumbered as section 916.115, Florida Statutes, and amended
26 to read:
27 916.115 916.11 Appointment of experts.--
28 (1)(a) Annually Semiannually, the department shall
29 provide the courts with a list of mental health professionals
30 who have completed approved training as experts.
31
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1 (b) The court may appoint no more than three nor fewer
2 than two experts to determine issues of the mental condition
3 of a defendant in a criminal case, including the issues of
4 competency to proceed stand trial, insanity, and involuntary
5 hospitalization or placement. The panel of experts may
6 evaluate the defendant in jail or in another appropriate local
7 facility.
8 (c) To the extent possible, at least one of the
9 appointed experts shall have completed forensic evaluator
10 training approved by the department and be either a
11 state-employed psychiatrist, psychologist, or physician if in
12 the local vicinity; a psychiatrist, psychologist, or physician
13 designated by the district alcohol, drug abuse, and mental
14 health program office; or a community mental health center
15 psychiatrist, psychologist, or physician.
16 (d) If a defendant's suspected mental condition is
17 mental retardation, the court shall appoint the developmental
18 services program of the Department of Health and
19 Rehabilitative Services to examine the defendant and determine
20 whether she or he meets the definition of "retardation" in s.
21 393.063 and, if so, whether she or he is competent to stand
22 trial.
23 (2) Expert witnesses appointed by the court to
24 evaluate determine the mental condition of a defendant in a
25 criminal case shall be allowed reasonable fees for services
26 rendered as evaluators of competence or sanity and as
27 witnesses, which shall be paid by the county in which the
28 indictment was found or the information or affidavit was
29 filed. State employees shall be paid expenses pursuant to s.
30 112.061. The fees shall be taxed as costs in the case. In
31 order for the experts to be paid for the services rendered,
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1 the reports and testimony must explicitly address each of the
2 factors and follow the procedures set out in this chapter and
3 in the Florida Rules of Criminal Procedure.
4 Section 15. Section 916.12, Florida Statutes, is
5 amended to read:
6 916.12 Mental competence to proceed stand trial.--
7 (1) A defendant person is incompetent to proceed stand
8 trial within the meaning of this chapter if the defendant
9 person does not have sufficient present ability to consult
10 with her or his lawyer with a reasonable degree of rational
11 understanding or if the defendant person has no rational, as
12 well as factual, understanding of the proceedings against her
13 or him.
14 (2) The experts shall first determine whether the
15 person is mentally ill and, if so, consider the factors
16 related to the issue of whether the defendant meets the
17 criteria for competence to proceed; that is, whether the
18 defendant has sufficient present ability to consult with
19 counsel with a reasonable degree of rational understanding and
20 whether the defendant has a rational, as well as factual,
21 understanding of the pending proceedings.
22 (3) In considering the issue of competence to proceed,
23 the examining experts shall first consider and specifically
24 include in their report the defendant's capacity to:
25 (a) Appreciate the charges or allegations against the
26 defendant;
27 (b) Appreciate the range and nature of possible
28 penalties, if applicable, that may be imposed in the
29 proceedings against the defendant;
30 (c) Understand the adversarial nature of the legal
31 process;
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1 (d) Disclose to counsel facts pertinent to the
2 proceedings at issue;
3 (e) Manifest appropriate courtroom behavior; and
4 (f) Testify relevantly;
5
6 and include in their report any other factor deemed relevant
7 by the experts.
8 (4) If the experts should find that the defendant is
9 incompetent to proceed, the experts shall report on any
10 recommended treatment for the defendant to attain competence
11 to proceed. In considering the issues relating to treatment,
12 the examining experts shall specifically report on:
13 (a) The mental illness causing the incompetence;
14 (b) The treatment or treatments appropriate for the
15 mental illness of the defendant and an explanation of each of
16 the possible treatment alternatives in order of choices;
17 (c) The availability of acceptable treatment and, if
18 treatment is available in the community, the expert shall so
19 state in the report; and
20 (d) The likelihood of the defendant attaining
21 competence under the treatment recommended, an assessment of
22 the probable duration of the treatment required to restore
23 competence, and the probability that the defendant will attain
24 competence to proceed in the foreseeable future.
25 (5)(2) A defendant who, because of psychotropic
26 medication, is able to understand the nature of proceedings
27 and assist in the defendant's own her or his defense shall not
28 automatically be deemed incompetent to proceed stand trial
29 simply because the defendant's satisfactory mental functioning
30 is dependent upon such medication. As used in this subsection,
31 "psychotropic medication" means any drug or compound used to
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1 treat mental or emotional disorders affecting the mind,
2 behavior, intellectual functions, perception, moods, or
3 emotions and includes antipsychotic, antidepressant,
4 antimanic, and antianxiety drugs.
5 Section 16. Section 916.13, Florida Statutes, is
6 amended to read:
7 916.13 Involuntary commitment of defendant adjudicated
8 incompetent to stand trial or incompetent for sentencing.--
9 (1) CRITERIA.--Every defendant who is charged with a
10 felony and who is person adjudicated incompetent to proceed
11 stand trial or incompetent for sentencing, pursuant to the
12 applicable Florida Rules of Criminal Procedure, may be
13 involuntarily committed for treatment upon a finding by the
14 court of clear and convincing evidence that:
15 (a) The defendant person is mentally ill and because
16 of the her or his mental illness, or that the person is
17 mentally retarded and because of her or his mental
18 retardation:
19 1. The defendant person is manifestly incapable of
20 surviving alone or with the help of willing and responsible
21 family or friends, including available alternative services,
22 and, without treatment, the defendant person is likely to
23 suffer from neglect or refuse to care for herself or himself
24 and such neglect or refusal poses a real and present threat of
25 substantial harm to the defendant's her or his well-being; and
26 or
27 2. There is a substantial likelihood that in the near
28 future the defendant person will inflict serious bodily harm
29 on herself or himself or another person, as evidenced by
30 recent behavior causing, attempting, or threatening such harm;
31 and
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1 (b) All available, less restrictive treatment
2 alternatives, including treatment in community residential
3 facilities or community inpatient or outpatient settings,
4 which would offer an opportunity for improvement of the
5 defendant's person's condition have been judged to be
6 inappropriate; and.
7 (c) There is a substantial probability that the mental
8 illness causing the defendant's incompetence will respond to
9 treatment and the defendant will regain competency to proceed
10 in the reasonably foreseeable future.
11 (2) ADMISSION TO A FORENSIC FACILITY.--
12 (a) A defendant Every person who has been charged with
13 a felony and who has been adjudicated incompetent to proceed
14 stand trial or incompetent for sentencing, and who meets the
15 criteria for commitment to the department under the provisions
16 of this chapter, may shall be committed to the department, and
17 the department shall may retain and treat the defendant. No
18 later than 6 months after the date of admission commitment or
19 at the end of any period of extended commitment, or at any
20 time the administrator or designee shall have determined that
21 the defendant has regained competency to proceed stand trial
22 or no longer meets the criteria for continued commitment, the
23 administrator or designee shall file a report with the court
24 pursuant to the applicable Florida Rules of Criminal
25 Procedure.
26 (b) A defendant adjudicated incompetent to stand trial
27 due to her or his mental retardation may be ordered into a
28 secure facility designated by the department for retarded
29 defendants. The department may not transfer a client from the
30 secure facility to another residential setting without first
31 notifying the court; the department may transfer such
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1 defendant unless the department receives written objection to
2 the transfer from the court within 30 days after receipt of
3 the notice by the court. No retarded client may be placed in
4 the designated secure facility except by criminal court order.
5 However, if criminal charges are subsequently dropped and the
6 client is involuntarily admitted to retardation residential
7 services, the placement at the secure facility may be
8 continued if so ordered by the committing court following a
9 hearing with the same due process requirements as set out in
10 s. 393.11 for an initial involuntary admission. Such court
11 hearings shall be held at least annually, with notice to the
12 state attorney, and each order of continuing placement shall
13 be based on a finding that the client is likely to physically
14 injure others as specified in s. 393.11(1)(c)2. In no case may
15 a client's placement in a secure facility exceed the maximum
16 sentence for the crime for which she or he was charged.
17 Section 17. Section 916.14, Florida Statutes, is
18 amended to read:
19 916.14 Statute of limitations; former jeopardy.--The
20 statute of limitations shall not be applicable to criminal
21 charges dismissed because of the incompetency of the defendant
22 to proceed stand trial. If a defendant is declared
23 incompetent to proceed stand trial during trial and afterwards
24 is declared competent to proceed stand trial, the defendant's
25 other, uncompleted trial shall not constitute former jeopardy.
26 Section 18. Section 916.145, Florida Statutes, is
27 amended to read:
28 916.145 Adjudication of incompetency due to mental
29 illness retardation; dismissal of charges.--The charges
30 against any defendant adjudicated incompetent to proceed stand
31 trial due to the defendant's his or her mental illness
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1 retardation shall be dismissed without prejudice to the state
2 if the defendant remains incompetent to proceed within a
3 reasonable time after such determination, not to exceed 5
4 years stand trial 2 years after such adjudication, unless the
5 court in its order specifies its reasons for believing that
6 the defendant will become competent to proceed within the
7 foreseeable future stand trial and specifies the time within
8 which the defendant is expected to become competent to proceed
9 stand trial. The charges against the defendant are dismissed
10 without prejudice to the state to refile the charges should
11 the defendant be declared competent to proceed in the future.
12 Section 19. Section 916.15, Florida Statutes, is
13 amended to read:
14 916.15 Involuntary commitment of defendant adjudicated
15 not guilty by reason of insanity.--
16 (1) A defendant person who is acquitted of criminal
17 charges because of a finding of not guilty by reason of
18 insanity may be involuntarily committed pursuant to such
19 finding if the defendant person is mentally ill and, because
20 of the person's illness, is manifestly dangerous to himself or
21 herself or others.
22 (2) Every defendant person acquitted of criminal
23 charges by reason of insanity and found to meet the criteria
24 for involuntary commitment may be committed and treated in
25 accordance with the provisions of this section and the
26 applicable Florida Rules of Criminal Procedure. The
27 department shall admit a defendant so adjudicated to an
28 appropriate facility or program for treatment and shall may
29 retain and treat such defendant. No later than 6 months after
30 the date of admission, prior to the end of any period of
31 extended commitment, or at any time the administrator or
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1 designee shall have determined that the defendant no longer
2 meets the criteria for continued commitment placement, the
3 administrator or designee shall file a report with the court
4 pursuant to the applicable Florida Rules of Criminal
5 Procedure.
6 (3) In all proceedings under this subsection, both the
7 defendant patient and the state shall have the right to a
8 hearing before the committing court. Evidence at such hearing
9 may be presented by the hospital administrator or the
10 administrator's his or her designee as well as by the state
11 and the defendant. The defendant shall have the right to
12 counsel at any such hearing. In the event that a defendant
13 cannot afford counsel, the court shall appoint the public
14 defender to represent the defendant. The parties shall have
15 access to the defendant's records at the treating facilities
16 and may interview or depose personnel who have had contact
17 with the defendant at the treating facilities.
18 Section 20. Section 916.16, Florida Statutes, is
19 amended to read:
20 916.16 Jurisdiction of committing court.--
21 (1) The committing court shall retain jurisdiction in
22 the case of any defendant patient hospitalized as incompetent
23 to proceed or because of a finding of not guilty by reason of
24 insanity or, if retarded, admitted to retardation residential
25 services pursuant to this chapter. No such defendant person
26 may be released except by order of the committing court. The
27 administrative hearing examiner shall have no jurisdiction to
28 determine issues of continuing hospitalization or release of
29 any defendant person admitted pursuant to this chapter.
30 (2) The committing court shall retain jurisdiction in
31 the case of any defendant placed on conditional release. No
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1 such defendant may be released from the conditions of release
2 except by order of the committing court.
3 Section 21. Section 916.17, Florida Statutes, is
4 amended to read:
5 916.17 Conditional release.--
6 (1) The committing court may order a conditional
7 release of any defendant who has been found to be incompetent
8 to proceed committed according to a finding of incompetency to
9 stand trial or an adjudication of not guilty by reason of
10 insanity, based on an approved plan for providing appropriate
11 outpatient care and treatment. The committing court may order
12 a conditional release of any defendant in lieu of an
13 involuntary commitment to a forensic facility pursuant to s.
14 916.13 or s. 916.15. Upon a recommendation that At such time
15 as the administrator shall determine outpatient treatment of
16 the defendant is to be appropriate, she or he may file with
17 the court, with copies to all parties, a written plan for
18 outpatient treatment, including recommendations from qualified
19 professionals, must be filed with the court, with copies to
20 all parties. Such a plan may also be submitted by the
21 defendant and filed with the court with copies to all parties.
22 The plan shall include:
23 (a) Special provisions for residential care or
24 adequate supervision of the defendant.
25 (b) Provisions for outpatient mental health services.
26 (c) If appropriate, recommendations for auxiliary
27 services such as vocational training, educational services, or
28 special medical care.
29
30 In its order of conditional release, the court shall specify
31 the conditions of release based upon the release plan and
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1 shall direct the appropriate agencies or persons to submit
2 periodic reports to the court regarding the defendant's
3 compliance with the conditions of the release and progress in
4 treatment, with copies to all parties.
5 (2) Upon the filing of an affidavit or statement under
6 oath by any person If at any time it appears that the
7 defendant has failed to comply with the conditions of release,
8 that the defendant's condition has deteriorated to the point
9 that inpatient care is required, or that the release
10 conditions should be modified, the court shall hold a hearing
11 within 7 days after receipt of the affidavit or statement
12 under oath. After the hearing, the court and may modify the
13 release conditions. The court may also or order that the
14 defendant be returned to the department if it is found, after
15 the appointment and report of experts, that the person meets
16 the criteria for involuntary further treatment.
17 (3) If at any time it is determined after a hearing
18 that the defendant no longer requires court-supervised
19 followup care, the court shall terminate its jurisdiction in
20 the cause and discharge the defendant.
21 Section 22. Part III of chapter 916, Florida Statutes,
22 consisting of sections 916.301, 916.3012, 916.302, 916.3025,
23 916.303, and 916.304, is created and entitled "Forensic
24 Services for Persons Who Are Mentally Retarded or Autistic."
25 Section 23. Section 916.301, Florida Statutes, is
26 created to read:
27 916.301 Appointment of experts.--
28 (1) The department shall provide the courts quarterly
29 with a list of mental retardation and autism professionals who
30 are qualified to perform evaluations of defendants alleged to
31 be incompetent to proceed due to mental retardation or autism.
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1 The courts may use professionals from this list when ordering
2 evaluations for defendants suspected of being retarded or
3 autistic.
4 (2) If a defendant's suspected mental condition is
5 mental retardation or autism, the court shall appoint two
6 experts, one of whom must be selected by the developmental
7 services program of the department, each of whom will evaluate
8 whether the defendant meets the definition of "mental
9 retardation" or "autism" and, if so, whether the defendant is
10 competent to proceed.
11 (3) At the request of any party, the court may appoint
12 one additional expert to evaluate the defendant. The expert
13 appointed by the court will evaluate whether the defendant
14 meets the definition of "mental retardation" or "autism" and,
15 if so, whether the defendant is competent to proceed.
16 (4) The developmental services program shall select a
17 psychologist who is licensed or authorized by law to practice
18 in this state, with experience in evaluating persons suspected
19 of having mental retardation or autism, and a social service
20 professional with experience in working with persons with
21 mental retardation or autism to evaluate the defendant.
22 (a) The psychologist shall evaluate whether the
23 defendant meets the definition of "mental retardation" or
24 "autism" and, if so, whether the defendant is incompetent to
25 proceed due to mental retardation or autism.
26 (b) The social service professional shall provide a
27 social and developmental history of the defendant.
28 (5) All evaluations ordered by the court must be from
29 qualified experts with experience in evaluating persons with
30 mental retardation or autism and may include, but are not
31 limited to, those of psychologists, physicians, or
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1 psychiatrists licensed or authorized by law to practice in
2 this state.
3 (6) The panel of experts may examine the defendant in
4 jail, in another appropriate local facility, or on an out
5 patient basis.
6 (7) Expert witnesses appointed by the court to
7 evaluate the mental condition of a defendant in a criminal
8 case shall be allowed reasonable fees for services rendered as
9 evaluators and as witnesses, which shall be paid by the county
10 in which the indictment was found or the information or
11 affidavit was filed. State employees shall be paid expenses
12 pursuant to s. 112.061. The fees shall be taxed as costs in
13 the case. In order for the experts to be paid for the services
14 rendered, the reports and testimony must explicitly address
15 each of the factors and follow the procedures set out in this
16 chapter and in the Florida Rules of Criminal Procedure.
17 Section 24. Section 916.3012, Florida Statutes, is
18 created to read:
19 916.3012 Mental competence to proceed.--
20 (1) A defendant whose suspected mental condition is
21 mental retardation or autism is incompetent to proceed within
22 the meaning of this chapter if the defendant does not have
23 sufficient present ability to consult with the defendant's
24 lawyer with a reasonable degree of rational understanding or
25 if the defendant has no rational, as well as factual,
26 understanding of the proceedings against the defendant.
27 (2) The experts shall first consider whether the
28 defendant meets the definition of mental retardation or autism
29 and, if so, consider the factors related to the issue of
30 whether the defendant meets the criteria for competence to
31 proceed; that is, whether the defendant has sufficient present
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1 ability to consult with counsel with a reasonable degree of
2 rational understanding and whether the defendant has a
3 rational, as well as factual, understanding of the pending
4 proceedings.
5 (3) In considering the issue of competence to proceed,
6 the examining experts shall first consider and specifically
7 include in their report the defendant's capacity to:
8 (a) Appreciate the charges or allegations against the
9 defendant;
10 (b) Appreciate the range and nature of possible
11 penalties, if applicable, that may be imposed in the
12 proceedings against the defendant;
13 (c) Understand the adversarial nature of the legal
14 process;
15 (d) Disclose to counsel facts pertinent to the
16 proceedings at issue;
17 (e) Manifest appropriate courtroom behavior; and
18 (f) Testify relevantly;
19
20 and include in their report any other factor deemed relevant
21 by the experts.
22 (4) If the experts should find that the defendant is
23 incompetent to proceed, the experts shall report on any
24 recommended training for the defendant to attain competence to
25 proceed. In considering the issues relating to training, the
26 examining experts shall specifically report on:
27 (a) The mental retardation or autism causing the
28 incompetence;
29 (b) The training appropriate for the mental
30 retardation or autism of the defendant and an explanation of
31
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1 each of the possible training alternatives in order of
2 choices;
3 (c) The availability of acceptable training and, if
4 training is available in the community, the expert shall so
5 state in the report; and
6 (d) The likelihood of the defendant attaining
7 competence under the training recommended, an assessment of
8 the probable duration of the training required to restore
9 competence, and the probability that the defendant will attain
10 competence to proceed in the foreseeable future.
11 Section 25. Section 916.302, Florida Statutes, is
12 created to read:
13 916.302 Involuntary commitment of defendant determined
14 to be incompetent to proceed due to mental retardation or
15 autism.--
16 (1) CRITERIA.--Every defendant who is charged with a
17 felony and who is found to be incompetent to proceed, pursuant
18 to this chapter and the applicable Florida Rules of Criminal
19 Procedure, may be involuntarily committed for training upon a
20 finding by the court of clear and convincing evidence that:
21 (a) The defendant is mentally retarded or autistic;
22 (b) There is a substantial likelihood that in the near
23 future the defendant will inflict serious bodily harm on
24 himself or herself or another person, as evidenced by recent
25 behavior causing, attempting, or threatening such harm;
26 (c) All available, less restrictive alternatives,
27 including services provided in community residential
28 facilities or other community settings, which would offer an
29 opportunity for improvement of the condition have been judged
30 to be inappropriate; and
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1 (d) There is a substantial probability that the mental
2 retardation or autism causing the defendant's incompetence
3 will respond to training and the defendant will regain
4 competency to proceed in the reasonably foreseeable future.
5 (2) ADMISSION TO A FACILITY.--
6 (a) A defendant who has been charged with a felony and
7 who is found to be incompetent to proceed, and who meets the
8 criteria for commitment to the department under the provisions
9 of this part, shall be committed to the department, and the
10 department shall retain and serve the defendant. No later than
11 6 months after the date of admission or at the end of any
12 period of extended commitment or at any time the administrator
13 or designee shall have determined that the defendant has
14 regained competency to proceed or no longer meets the criteria
15 for continued commitment, the administrator or designee shall
16 file a report with the court pursuant to this chapter and the
17 applicable Florida Rules of Criminal Procedure.
18 (b) A defendant determined to be incompetent to
19 proceed due to mental retardation or autism may be ordered by
20 a circuit court into a secure facility designated by the
21 department for mentally retarded or autistic defendants.
22 (c) The department may transfer a defendant from a
23 designated secure facility to another designated secure
24 facility and must notify the court of the transfer within 30
25 days after the transfer is completed.
26 (d) The department may not transfer a defendant from a
27 designated secure facility to a nonsecure facility without
28 first notifying the court, and all parties, 30 days before the
29 proposed transfer. If the court objects to the proposed
30 transfer to a nonsecure facility, it must send its written
31 objection to the department. The department may transfer the
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1 defendant unless it receives the written objection from the
2 court within 30 days after the court's receipt of the notice
3 of the proposed transfer.
4 (3) PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.--
5 (a) If a defendant is both retarded or autistic and
6 mentally ill, evaluations must address which condition is
7 primarily affecting the defendant's competency to proceed.
8 Referral of the defendant should be made to the facility or
9 program most appropriate to address the symptoms which are the
10 cause of the defendant's incompetence.
11 (b) Transfer from one facility or program to another
12 facility or program may occur when, in the department's
13 judgment, it is in the defendant's best treatment or training
14 interests. Transfer will require an amended order from the
15 committing court.
16 Section 26. Section 916.3025, Florida Statutes, is
17 created to read:
18 916.3025 Jurisdiction of committing court.--
19 (1) The committing court shall retain jurisdiction in
20 the case of any defendant found to be incompetent to proceed
21 and ordered into a secure facility designated by the
22 department for mentally retarded or autistic defendants. No
23 defendant may be released except by the order of the
24 committing court.
25 (2) The committing court shall retain jurisdiction in
26 the case of any defendant placed on conditional release. No
27 such defendant may be released from the conditions of release
28 except by order of the committing court.
29 (3) The committing court shall consider the petition
30 to involuntarily admit to residential services provided by the
31 department's developmental services program a person whose
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1 charges have been dismissed, and, when applicable, to continue
2 secure placement of such person as provided in s. 916.303. The
3 committing court shall retain jurisdiction over such person so
4 long as he or she remains in secure placement or is on
5 conditional release.
6 Section 27. Section 916.303, Florida Statutes, is
7 created to read:
8 916.303 Determination of incompetency due to mental
9 retardation or autism; dismissal of charges.--
10 (1) The charges against any defendant found to be
11 incompetent to proceed due to mental retardation or autism
12 shall be dismissed without prejudice to the state if the
13 defendant remains incompetent to proceed within a reasonable
14 time after such determination, not to exceed 2 years, unless
15 the court in its order specifies its reasons for believing
16 that the defendant will become competent to proceed within the
17 foreseeable future and specifies the time within which the
18 defendant is expected to become competent to proceed. The
19 charges against the defendant are dismissed without prejudice
20 to the state to refile the charges should the defendant be
21 declared competent to proceed in the future.
22 (2)(a) If the charges are dismissed and if the
23 defendant is considered to lack sufficient capacity to give
24 express and informed consent to a voluntary application for
25 services and lacks the basic survival and self-care skills to
26 provide for his or her well-being or is likely to physically
27 injure himself or herself or others if allowed to remain at
28 liberty, the department, the state attorney or the defendant's
29 attorney may apply to the committing court to involuntarily
30 admit the defendant to residential services pursuant to s.
31 393.11.
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1 (b) If the defendant is considered to need involuntary
2 residential services under s. 393.11 and, further, there is a
3 substantial likelihood that the defendant will injure another
4 person or continues to present a danger of escape, and all
5 available less restrictive alternatives, including services in
6 community residential facilities or other community settings,
7 which would offer an opportunity for improvement of the
8 condition have been judged to be inappropriate, then the
9 person or entity filing the petition under s. 393.11, the
10 state attorney, the defendant's counsel, the petitioning
11 commission, or the department may also petition the committing
12 court to continue the defendant's placement in a secure
13 facility or program pursuant to this section. Any defendant
14 involuntarily admitted pursuant to this paragraph shall have
15 his or her status reviewed by the court at least annually at a
16 hearing. The annual review and hearing shall be held for the
17 court to determine whether the defendant continues to meet the
18 criteria for involuntary residential services and, if so,
19 whether the defendant still requires placement in a secure
20 facility or program because the court finds that the defendant
21 is likely to physically injure others as specified in s.
22 393.11 and whether the defendant is receiving adequate care,
23 treatment, habilitation, and rehabilitation, including
24 psychotropic medication and behavioral programming. Notice of
25 the annual review and review hearing shall be given to the
26 state attorney, to the defendant's attorney, and to the
27 defendant's legal guardian. In no instance may a defendant's
28 placement in a secure facility or program exceed in length the
29 maximum sentence for the crime for which the defendant was
30 charged.
31
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1 Section 28. Section 916.304, Florida Statutes, is
2 created to read:
3 916.304 Conditional release.--
4 (1) The committing court may order a conditional
5 release of any defendant who has been found to be incompetent
6 to proceed, based on an approved plan for providing continuing
7 community-based training. The committing court may order a
8 conditional release of any defendant in lieu of an involuntary
9 commitment to a forensic facility pursuant to s. 916.302. Upon
10 a recommendation that community-based training for the
11 defendant is appropriate, a written plan for community-based
12 training, including recommendations from qualified
13 professionals, may be filed with the court, with copies to all
14 parties. Such a plan may also be submitted by the defendant
15 and filed with the court, with copies to all parties. The plan
16 shall include:
17 (a) Special provisions for residential care and
18 adequate supervision of the defendant, including recommended
19 location of placement.
20 (b) Recommendations for auxiliary services such as
21 vocational training, psychological training, educational
22 services, leisure services, and special medical care.
23
24 In its order of conditional release, the court shall specify
25 the conditions of release based upon the release plan and
26 shall direct the appropriate agencies or persons to submit
27 periodic reports to the courts regarding the defendant's
28 compliance with the conditions of the release and progress in
29 training, with copies to all parties.
30 (2) Upon the filing of an affidavit or statement under
31 oath by any person that the defendant has failed to comply
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1 with the conditions of release, that the defendant's condition
2 has deteriorated, or that the release conditions should be
3 modified, the court shall hold a hearing within 7 days after
4 receipt of the affidavit or statement under oath. After the
5 hearing, the court may modify the release conditions. The
6 court may also order that the defendant be placed into more
7 appropriate programs for further training or may order the
8 defendant to be returned to involuntary residential services
9 of the department if it is found, after the appointment and
10 report of experts, that the defendant meets the criteria for
11 involuntary residential services.
12 (3) If at any time it is determined after a hearing
13 that the defendant no longer requires court-supervised
14 followup care, the court shall terminate its jurisdiction in
15 the cause and discharge the defendant.
16 Section 29. This act shall take effect October 1 of
17 the year in which enacted.
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