House Bill 4057

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    Florida House of Representatives - 1998                HB 4057

        By Representative Stabins






  1                      A bill to be entitled

  2         An act relating to criminal defendants with

  3         mental conditions or alleged mental conditions;

  4         creating the "Insanity Defense Reform Act";

  5         creating s. 916.201, F.S.; providing a short

  6         title; amending and renumbering s. 916.106,

  7         F.S., relating to definitions with respect to

  8         the Forensic Client Services Act; providing or

  9         revising definitions; creating s. 916.203,

10         F.S.; barring mental condition from being

11         raised as a defense to any criminal offense

12         charged; requiring that a person suffering from

13         a mental condition requiring treatment be

14         committed to the Department of Corrections or

15         as otherwise provided by law for placement in

16         an appropriate facility for treatment;

17         providing for incarceration or less restrictive

18         confinement if a sentence of incarceration has

19         been imposed on the person; providing for time

20         incarcerated for treatment to be credited

21         against the remainder of the time sentenced to

22         incarceration; providing for construction;

23         creating s. 916.204, F.S.; prohibiting trial,

24         conviction, sentencing, or punishment of a

25         person during the period the person lacks

26         capacity to understand the proceedings or

27         assist in the defense as a result of mental

28         illness; creating s. 916.205, F.S.; providing

29         for examination of a defendant by a

30         psychiatrist or psychologist appointed by the

31         court, or designated by the Secretary of

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  1         Children and Family Services upon the court's

  2         request, under specified circumstances when

  3         there is reason to doubt the defendant's

  4         fitness to proceed; providing for appointment

  5         of additional experts; providing for court

  6         orders to confine the defendant up to 30 days

  7         for examination purposes; providing for release

  8         of records; providing for a report; providing

  9         for voluntary examination; providing for

10         defendant's release within a specified period

11         after being confined solely for the purpose of

12         examination; creating s. 916.206, F.S.;

13         providing for court determination of the

14         defendant's fitness to proceed; requiring a

15         hearing under specified circumstances when the

16         report is contested; providing certain rights

17         of the contesting party; providing for

18         suspension of the criminal proceeding, under

19         certain circumstances; providing for commitment

20         of the defendant for up to 90 days to the

21         Department of Children and Family Services for

22         care and treatment at an appropriate facility,

23         or commitment to the Department of Corrections

24         if the defendant is found "dangerously mentally

25         ill," as defined; providing exceptions;

26         providing for initial commitment orders and

27         orders for continued commitment up to an

28         additional 180 days; providing for admission

29         evaluations; prescribing contents and

30         guidelines for progress reports; requiring any

31         determination by the director of the facility

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  1         that the defendant is fit to proceed to be

  2         reported to the court; providing for

  3         involuntary commitment proceedings to be

  4         instituted under specified circumstances;

  5         requiring the Department of Children and Family

  6         Services to determine whether the defendant is

  7         fit to proceed in its review of commitments;

  8         providing for notice to the court and

  9         resumption of the criminal proceedings or

10         dismissal of the charge, under specified

11         circumstances; creating s. 916.207, F.S.;

12         providing for inadmissibility for certain

13         purposes of certain statements by the person

14         subject to the psychiatric or psychological

15         examination or treatment; providing exceptions;

16         creating s. 916.208, F.S.; providing for forms

17         of general verdict; creating s. 916.209, F.S.;

18         providing for psychiatric or psychological

19         examination of a defendant when there is reason

20         to believe that the mental condition of the

21         defendant will be a significant factor in

22         sentencing and when good cause is shown;

23         providing for payment of the examination by the

24         defendant if financially able; providing for

25         the order appointing or requesting designation

26         of a psychiatrist or licensed psychologist to

27         specify the issues to be resolved; providing

28         for alternative examination methods;

29         prescribing guidelines and contents of

30         examination reports; providing for

31         construction; creating s. 916.211, F.S.;

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  1         prescribing criteria with respect to the

  2         defendant's mental condition for the court to

  3         consider in sentencing the defendant, under

  4         specified circumstances when the mental

  5         condition is a significant factor; requiring

  6         court authorization of treatment during the

  7         period of confinement or probation or other

  8         supervision specified in the sentence under

  9         specified circumstances when the court makes

10         certain findings by clear and convincing

11         evidence; requiring pronouncement of sentence;

12         creating s. 916.212, F.S.; requiring the

13         Department of Corrections and Department of

14         Children and Family Services to adopt rules

15         providing for certain procedures with respect

16         to treatment and treatment plans for criminal

17         defendants for whom the sentencing court has

18         authorized treatment; creating s. 916.213,

19         F.S.; providing for adoption of rules by the

20         Department of Children and Family Services and

21         Department of Corrections with respect to

22         transfer to facilities of the Department of

23         Children and Family Services of persons

24         committed to the Department of Corrections;

25         amending s. 40.29, F.S., relating to estimated

26         pay for jurors and witnesses, to conform to

27         changes made by the act; amending s. 394.467,

28         F.S., relating to involuntary placement;

29         removing reference to insanity defense and

30         removing cross reference to conform to changes

31         made by the act; amending s. 394.4672, F.S.,

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  1         relating to procedure for placement of veteran

  2         with federal agency; removing reference to

  3         insanity defense to conform to changes made by

  4         the act; amending ss. 916.105, 916.107,

  5         916.108, and 916.11, F.S., relating to

  6         legislative intent, rights of forensic clients,

  7         training of mental health experts, and

  8         appointment of experts, respectively;

  9         conforming provisions relating to forensic

10         client services to changes made by the act;

11         repealing s. 916.10, F.S., relating to the

12         short title of the Forensic Client Services

13         Act, s. 916.13, F.S., relating to involuntary

14         commitment of defendant adjudicated incompetent

15         to stand trial or incompetent for sentencing,

16         s. 916.145, F.S., relating to adjudication of

17         incompetency due to mental retardation and

18         dismissal of charges, s. 916.15, F.S., relating

19         to involuntary commitment of defendant

20         adjudicated not guilty by reason of insanity,

21         s. 916.16, F.S., relating to jurisdiction of

22         committing court, and s. 916.17, F.S., relating

23         to conditional release; amending s. 916.178,

24         F.S., relating to unlawful introduction or

25         removal of certain articles; conforming a cross

26         reference; repealing Rules 3.210, 3.211, 3.212,

27         3.213, 3.214, 3.215, 3.216, 3.217, 3.218, and

28         3.219, Florida Rules of Criminal Procedure,

29         relating to incompetence to proceed and

30         procedures for raising the issue, competence to

31         proceed and scope of examination and report,

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  1         hearing and disposition, continuing

  2         incompetency to proceed, incompetency to

  3         proceed to sentencing, effect of adjudication

  4         of incompetency to proceed, insanity at time of

  5         offense or probation or community control

  6         violation, judgment of not guilty by reason of

  7         insanity, commitment of a defendant found not

  8         guilty by reason of insanity, and conditional

  9         release, respectively, to the extent of

10         inconsistency with the act; providing for

11         severability; providing an effective date.

12

13  Be It Enacted by the Legislature of the State of Florida:

14

15         Section 1.  This act may be cited as the "Insanity

16  Defense Reform Act."

17         Section 2.  Section 916.106, Florida Statutes, is

18  renumbered as section 916.202, Florida Statutes, and amended

19  to read:

20         916.202 916.106  Definitions.--For the purposes of this

21  chapter:

22         (1)  "Chemical weapon" means any shell, cartridge,

23  bomb, gun, or other device capable of emitting

24  chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any

25  derivatives thereof in any form, or any other agent with

26  lacrimatory properties, and shall include products such as

27  that commonly known as "mace."

28         (2)  "Court" means the circuit court.

29         (3)  "Dangerous mental illness" means a mental

30  condition which causes the person to need supervision,

31  evaluation, treatment, and care and to present a substantial

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  1  risk of physical harm to other persons as manifested by

  2  evidence of violent behavior by the person.

  3         (4)(3)  "Department" means the Department of Children

  4  Health and Family Rehabilitative Services.

  5         (5)(4)  "Forensic client" or "patient" means any

  6  mentally retarded or mentally ill person or dangerously

  7  mentally ill person who is committed to the department or

  8  Department of Corrections and:

  9         (a)  Who has been determined to need treatment for a

10  mental illness or dangerous mental illness mental retardation;

11  and

12         (b)  Who has been found incompetent to stand trial or

13  incompetent for sentencing, has been acquitted of a criminal

14  offense by reason of insanity, has criminal charges pending,

15  or has been found guilty of a criminal offense but is not an

16  inmate of the Department of Corrections or any other

17  correctional facility; and

18         (c)  Who has been determined by the department to:

19         1.  Be dangerous to himself or herself or others; or

20         2.  Present a clear and present potential to escape.

21         (6)(5)  "Forensic facility" means:

22         (a)  A separate and secure facility established within

23  the department for the treatment of forensic clients.  Such

24  separate and secure facilities shall be security-grade

25  buildings located on grounds distinct in location from other

26  treatment facilities for persons who are mentally ill. The

27  Florida State Hospital shall not be required to maintain

28  separate treatment facilities for mentally ill or mentally

29  retarded persons found incompetent for trial or acquitted of a

30  criminal offense by reason of insanity.; or

31

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  1         (b)  A state hospital, state correctional or other

  2  state institution, or mental health center equipped to

  3  evaluate or rehabilitate dangerously mentally ill defendants.

  4         (7)(6)  "Institutional security personnel" means staff

  5  members who meet or exceed the requirements of s. 943.13 and

  6  who are responsible for providing security, for protection of

  7  clients and personnel, for the enforcement of rules, for

  8  prevention and investigation of unauthorized activities, and

  9  for safeguarding the interests of citizens in the surrounding

10  communities.

11         (8)(7)  "Mental illness Mentally ill" includes, but is

12  not limited to, a mental disease or defect and means having an

13  impairment of the emotional processes, of the ability to

14  exercise conscious control of one's actions, or of the ability

15  to perceive reality or to understand, which impairment

16  substantially interferes with a person's ability to meet the

17  ordinary demands of living, regardless of etiology; except

18  that, for the purposes of this chapter, the term does not

19  include simple intoxication, persons who are solely mentally

20  retarded, or conditions manifested only by antisocial behavior

21  or drug addiction.

22         (9)(8)  "Mental retardation" means significantly

23  subaverage general intellectual functioning existing

24  concurrently with deficits in adaptive behavior and manifested

25  during the period from conception to age 18. "Significantly

26  subaverage general intellectual functioning," for the purpose

27  of this definition, means performance which is two or more

28  standard deviations from the mean score on a standardized

29  intelligence test specified in the rules of the department.

30  "Adaptive behavior," for the purpose of this definition, means

31  the effectiveness or degree with which an individual meets the

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  1  standards of personal independence and social responsibility

  2  expected of the individual's age, cultural group, and

  3  community.

  4         Section 3.  Sections 916.201, 916.203, 916.204,

  5  916.205, 916.206, 916.207, 916.208, 916.209, 916.211, 916.212,

  6  and 916.213, Florida Statutes, are created to read:

  7         916.201  Short title.--Sections 916.201-916.213,

  8  Florida Statutes, may be cited as the "Mental Condition of

  9  Criminal Defendants Act."

10         916.203  Mental condition not a defense; treatment

11  during incarceration.--

12         (1)  Mental condition shall not be a defense to any

13  charge of criminal conduct.

14         (2)  If the court finds that a person convicted of a

15  crime suffers from any mental condition requiring treatment,

16  such person shall be committed to the Department of

17  Corrections or as otherwise provided by law for placement in

18  an appropriate facility for treatment, with due regard for

19  such conditions of security as the case may require. In the

20  event a sentence of incarceration has been imposed, the

21  defendant shall receive treatment in a facility that provides

22  for incarceration or less restrictive confinement. In the

23  event that a course of treatment thus commenced shall be

24  concluded prior to the expiration of the sentence imposed, the

25  offender shall remain liable for the remainder of such

26  sentence, but shall have credit for time incarcerated for

27  treatment.

28         (3)  Nothing in ss. 916.201-916.213 is intended to

29  prevent the admission of expert evidence concerning any state

30  of mind which is an element of the offense, subject to the

31  rules of evidence.

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  1         916.204  Lack of capacity to understand

  2  proceedings.--No person who, as a result of mental illness,

  3  lacks capacity to understand the proceedings against him or

  4  her or to assist in his or her own defense shall be tried,

  5  convicted, sentenced, or punished for the commission of an

  6  offense so long as such incapacity endures.

  7         916.205  Examination of defendant.--

  8         (1)  Whenever there is reason to doubt the defendant's

  9  fitness to proceed as set forth in s. 916.203, the court shall

10  appoint experts to examine the defendant as provided in s.

11  916.11. In addition, at least one qualified psychiatrist or

12  licensed psychologist shall request the Secretary of Children

13  and Family Services to designate at least one qualified

14  psychiatrist or licensed psychologist to examine the report

15  upon the mental condition of the defendant as to the

16  defendant's capacity to assist counsel with defense or to

17  understand the proceedings. The cost of examination shall be

18  paid by the defendant if he or she is financially able. The

19  determination of ability to pay shall be made in accordance

20  with part III of chapter 27 and any other laws of this state

21  governing provisions of counsel to indigent defendants.

22         (2)  Within 3 days, excluding Saturdays, Sundays, and

23  legal holidays, of the appointment or designation, the

24  examiner shall determine the best location for the

25  examination. If practical, the examination shall be conducted

26  locally on an outpatient basis.

27         (3)  If the examiner determines that confinement is

28  necessary for purposes of the examination, the court may order

29  the defendant to be confined to a jail, hospital, or other

30  suitable facility for that purpose for a period not exceeding

31  30 days. The order of confinement shall require the county

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  1  sheriff to transport the defendant to and from the facility

  2  and shall notify the facility of any known medical,

  3  behavioral, or security requirements of the defendant. The

  4  court, upon request, may make available to the examiner any

  5  court records relating to the defendant.

  6         (4)  In such examination any method may be employed

  7  which is accepted by the examiner's profession for the

  8  examination of those alleged not to be competent to assist

  9  counsel in their defense.

10         (5)  Upon completion of the examination, a report shall

11  be submitted to the court and shall include the following:

12         (a)  A description of the nature of the examination;

13         (b)  A diagnosis or evaluation of the mental condition

14  of the defendant;

15         (c)  An opinion as to the defendant's capacity to

16  understand the proceedings against him or her and to assist in

17  his or her own defense;

18         (d)  When directed by the court, an opinion as to the

19  capacity of the defendant to form a particular state of mind

20  which is an element of the offense charged.

21         (6)  If the examination cannot be conducted by reason

22  of the unwillingness of the defendant to participate in the

23  examination, the report shall so state and shall include, if

24  possible, an opinion as to whether such unwillingness of

25  defendant was the result of mental illness.

26         (7)  The report of the examination shall be filed with

27  the clerk of the court, who shall deliver copies to the

28  prosecuting attorney and to counsel for the defendant.

29         (8)  When the defendant wishes to be examined by an

30  expert of the defendant's own choice, such examiner shall be

31

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  1  permitted to have reasonable access to the defendant for the

  2  purpose of examination.

  3         (9)  In addition to the psychiatrist or licensed

  4  psychologist, the court may appoint additional experts to

  5  examine the defendant besides those required by s. 916.11.

  6         (10)  If the defendant lacks capacity to make informed

  7  decisions about treatment, the court may authorize consent to

  8  be given pursuant to part I of chapter 394 and any other civil

  9  commitment laws of this state. A defendant lacks capacity to

10  make informed decisions about treatment if, by reason of

11  mental illness, after conscientious efforts at explanation,

12  the defendant is unable to achieve a rudimentary understanding

13  of the purpose, nature, and possible significant risks and

14  benefits of treatment.

15         (11)  If the defendant was confined solely for the

16  purpose of examination, he or she shall be released from the

17  facility within 3 days, excluding Saturdays, Sundays, and

18  legal holidays, following notification of completion of the

19  examination.

20         916.206  Determination of fitness of defendant to

21  proceed.--

22         (1)  When the defendant's fitness to proceed is drawn

23  in question, the issue shall be determined by the court. If

24  neither the prosecuting attorney nor counsel for the defendant

25  contests the findings of the report filed pursuant to s.

26  916.205, the court may make the determination on the basis of

27  such report. If the finding is contested, the court shall hold

28  a hearing on the issue. If the report is received in evidence

29  upon such hearing, the party who contests the finding thereof

30  shall have the right to summon as a witness and to examine the

31

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  1  psychiatrist or licensed psychologist who submitted the report

  2  and to offer evidence upon the issue.

  3         (2)  If the court determines that the defendant lacks

  4  fitness to proceed, the criminal proceeding against the

  5  defendant shall be suspended, except as otherwise provided in

  6  this section, and the court shall commit the defendant to the

  7  custody of the department for care and treatment at an

  8  appropriate facility of the department or, if the defendant is

  9  found to be dangerously mentally ill, to the Department of

10  Corrections for a period not exceeding 90 days.

11         (a)  The order of commitment shall require the county

12  sheriff to transport the defendant to and from the facility

13  and require an evaluation of the defendant's mental condition

14  at the time of admission to the facility, and a progress

15  report on the defendant's mental condition.

16         (b)  The progress report shall include an opinion as to

17  whether the defendant is fit to proceed or, if not, whether

18  there is a substantial probability the defendant will be fit

19  to proceed within the foreseeable future. If the report

20  concludes that there is a substantial probability that the

21  defendant will be fit to proceed in the foreseeable future,

22  the court may order the continued commitment of the defendant

23  for an additional 180 days. If at any time the director of the

24  facility to which the defendant is committed determines that

25  the defendant is fit to proceed, such determination shall be

26  reported to the court.

27         (3)  Each report shall be filed with the clerk of the

28  court, who shall deliver copies to the prosecuting attorney

29  and to counsel for the defendant. Upon receipt of a report,

30  the court shall determine, after a hearing if a hearing is

31  requested, whether the defendant is fit to proceed. If the

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  1  court determines that the defendant is fit to proceed, the

  2  proceeding shall be resumed. If, at the end of the initial 90

  3  days, the court determines that the defendant is unfit and

  4  there is not a substantial probability the defendant will be

  5  fit to proceed within the foreseeable future, or if the

  6  defendant is not fit to proceed after the expiration of the

  7  additional 180 days, involuntary commitment proceedings shall

  8  be instituted pursuant to the laws of this state in the court

  9  in which the criminal charge is pending.

10         (4)  The department shall review at least monthly its

11  commitment under this section. In its review of commitments,

12  the department shall determine whether the defendant is fit to

13  proceed with trial. If the defendant is fit to proceed, the

14  court in which the criminal charge is pending shall be

15  notified and the criminal proceedings may resume. However, if

16  the court is of the view that so much time has elapsed,

17  excluding any time spent free from custody by reason of the

18  escape of the defendant, since the commitment of the defendant

19  that it would be unjust to resume the criminal proceeding, the

20  court may dismiss the charge.

21         916.207  Admissibility of statements by examined

22  person.--A statement made by a person subjected to psychiatric

23  or psychological examination or treatment pursuant to s.

24  916.204, s. 916.205, or s. 916.206, for the purposes of such

25  examination or treatment, shall not be admissible in evidence

26  in any criminal proceeding against the defendant on any issue

27  other than the defendant's ability to assist counsel at trial

28  or to form any specific intent which is an element of the

29  crime charged, except that such statements of a defendant to a

30  psychiatrist or psychologist as are relevant for impeachment

31

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  1  purposes may be received subject to the usual rules of

  2  evidence governing matters of impeachment.

  3         916.208  Forms of general verdict.--For purposes of

  4  this chapter, general verdict upon a plea of not guilty is

  5  either "guilty" or "not guilty," which imports a conviction or

  6  an acquittal of the offense charged.

  7         916.209  Examination of defendant for evidence of

  8  mental condition; appointment of psychiatrists or licensed

  9  psychologists; hospitalization reports.--

10         (1)  If there is reason to believe the mental condition

11  of the defendant will be a significant factor at sentencing

12  and for good cause shown, the court shall appoint at least one

13  psychiatrist or licensed psychologist to examine and report

14  upon the mental condition of the defendant. The cost of

15  examination shall be paid by the defendant if he or she is

16  financially able. The determination of ability to pay shall be

17  made in accordance with part III of chapter 27 and any other

18  laws of this state governing provision of counsel to indigent

19  defendants. The order appointing or requesting the designation

20  of a psychiatrist or licensed psychologist shall specify the

21  issues to be resolved for which the examiner is appointed or

22  designated.

23         (2)  In making such examinations, any method may be

24  employed which is accepted by the examiner's profession for

25  the examination of those alleged to be suffering from a mental

26  illness.

27         (3)  The report of the examination shall include the

28  following:

29         (a)  A description of the nature of the examination;

30         (b)  A diagnosis, evaluation, or prognosis of the

31  mental condition of the defendant;

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  1         (c)  An analysis of the degree of the defendant's

  2  mental illness and level of functional impairment;

  3         (d)  An assessment of whether treatment is available

  4  for the defendant's mental condition;

  5         (e)  An analysis of the relative risks and benefits of

  6  treatment or nontreatment; and

  7         (f)  An assessment of the risk of danger that the

  8  defendant may create to the public if at large.

  9         (4)  The report of the examination shall be filed with

10  the clerk of the court, who shall deliver copies to the

11  prosecuting attorney and to counsel for the defendant.

12         (5)  When the defendant wishes to be examined by an

13  expert of the defendant's own choice, such examiner shall be

14  permitted to have reasonable access to the defendant for the

15  purpose of examination.

16         (6)  Nothing in this section is intended to limit the

17  consideration of other evidence relevant to the imposition of

18  sentence.

19         916.211  Consideration of mental illness in

20  sentencing.--

21         (1)  Evidence of mental condition shall be received, if

22  offered, at the time of sentencing of any person convicted of

23  a crime. In determining the sentence to be imposed, in

24  addition to other criteria provided by law, if the defendant's

25  mental condition is a significant factor, the court shall

26  consider such factors as:

27         (a)  The extent and degree to which the defendant is

28  mentally ill;

29         (b)  The level of functional impairment;

30         (c)  The prognosis for improvement or rehabilitation;

31

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  1         (d)  The availability of treatment and level of care

  2  required;

  3         (e)  Any risk or danger that the defendant may create

  4  for the public, if at large, or the absence of such risk;

  5         (f)  The capacity of the defendant to appreciate the

  6  wrongfulness of his or her conduct or to conform his or her

  7  conduct to the requirements of law to the time of the offense

  8  charged.

  9         (2)  The court shall authorize treatment during the

10  period of confinement or probation or other form of

11  postrelease supervision specified in the sentence if, after

12  the sentencing hearing, it concludes by clear and convincing

13  evidence that:

14         (a)  The defendant suffers from a severe and reliably

15  diagnosable mental illness resulting in the defendant's

16  inability to appreciate the wrongfulness of his or her conduct

17  or to conform his or her conduct to the requirements of law;

18         (b)  Without treatment, the immediate prognosis is for

19  major distress resulting in serious mental or physical

20  deterioration of the defendant;

21         (c)  Treatment is available for such mental illness;

22  and

23         (d)  The relative risks and benefits of treatment or

24  nontreatment are such that a reasonable person would consent

25  to treatment.

26         (3)  In addition to making the authorization of

27  treatment, if any, the court shall pronounce sentence as

28  provided by law.

29         916.212  Review of involuntary treatment.--The

30  Department of Corrections and Department of Children and

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  1  Family Services shall adopt rules for procedures ensuring

  2  that:

  3         (1)  Treatment plans are developed for patients at the

  4  facility for whom the sentencing court has authorized

  5  treatment;

  6         (2)  The relative risks and benefits or specific modes

  7  of treatment contained in such plans are explained, to the

  8  extent possible, to each patient;

  9         (3)  When treatment is given over the objection of a

10  patient, there is a review of the decision to provide

11  treatment independent of the treating professional; and

12         (4)  A statement explaining the reasons for giving

13  treatment over objection of the patient is entered in the

14  patient's treatment record over the signature of the facility

15  administrator.

16         916.213  Transfer to noncorrectional

17  facilities.--Prisoners with a mental illness committed to the

18  Department of Corrections may be transferred to facilities of

19  the Department of Children and Family Services in accordance

20  with rules adopted jointly by the two departments.

21         Section 4.  Subsection (1) of section 40.29, Florida

22  Statutes, is amended to read:

23         40.29  Clerks to estimate amount for pay of jurors and

24  witnesses and make requisition.--

25         (1)  The clerk of the court in and for any county shall

26  make an estimate of the amount necessary during any quarterly

27  fiscal period beginning July 1 and during each succeeding

28  quarterly fiscal period for the payment by the state of:

29         (a)  Jurors in the circuit court and the county court;

30         (b)  Witnesses before the grand jury;

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  1         (c)  Witnesses summoned to appear for an investigation,

  2  preliminary hearing, or trial in a criminal case when the

  3  witnesses are summoned by a state attorney or on behalf of an

  4  indigent defendant;

  5         (d)  Mental health professionals who are appointed

  6  pursuant to s. 394.473 and required in a court hearing

  7  involving an indigent; and

  8         (e)  Expert witnesses who are appointed pursuant to s.

  9  916.11(3) and required in a court hearing involving an

10  indigent;

11

12  and shall forward each such estimate to the State Courts

13  Administrator no later than the date scheduled by the State

14  Courts Administrator. At the time of any forwarding of such

15  estimate, the clerk of such court shall make a requisition

16  upon the State Courts Administrator for the amount of such

17  estimate; and the State Courts Administrator may reduce the

18  amount if in his or her judgment the requisition is excessive.

19         Section 5.  Paragraph (a) of subsection (7) of section

20  394.467, Florida Statutes, is amended to read:

21         394.467  Involuntary placement.--

22         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.--

23         (a)  Hearings on petitions for continued involuntary

24  placement shall be administrative hearings and shall be

25  conducted in accordance with the provisions of s. 120.57(1),

26  except that any order entered by the hearing officer shall be

27  final and subject to judicial review in accordance with s.

28  120.68.  Orders concerning patients committed after

29  successfully pleading not guilty by reason of insanity shall

30  be governed by the provisions of s. 916.15.

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  1         Section 6.  Subsection (3) of section 394.4672, Florida

  2  Statutes, is amended to read:

  3         394.4672  Procedure for placement of veteran with

  4  federal agency.--

  5         (3)  Upon receipt of a certificate of the United States

  6  Department of Veterans Affairs or such other federal agency

  7  that facilities are available for the care or treatment of

  8  mentally ill persons and that the person is eligible for care

  9  or treatment, the administrator of the receiving or treatment

10  facility may cause the transfer of that person to the United

11  States Department of Veterans Affairs or other federal agency.

12  Upon effecting such transfer, the committing court shall be

13  notified by the transferring agency. No person shall be

14  transferred to the United States Department of Veterans

15  Affairs or other federal agency if he or she is confined

16  pursuant to the conviction of any felony or misdemeanor or if

17  he or she has been acquitted of the charge solely on the

18  ground of insanity, unless prior to transfer the court placing

19  such person enters an order for the transfer after appropriate

20  motion and hearing and without objection by the United States

21  Department of Veterans Affairs.

22         Section 7.  Section 916.10, Florida Statutes, is hereby

23  repealed:

24         916.10  Short title.--This chapter may be cited as the

25  "Forensic Client Services Act."

26         Section 8.  Section 916.105, Florida Statutes, is

27  amended to read:

28         916.105  Legislative intent.--

29         (1)  It is the intent of the Legislature that the

30  Department of Children Health and Family Rehabilitative

31  Services establish, locate, and maintain separate and secure

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  1  facilities and programs for the treatment of forensic clients

  2  who have been found to be mentally retarded or mentally ill

  3  defendants, or who have been acquitted of crimes by reason of

  4  insanity, and who, while still under the jurisdiction of the

  5  committing court, are committed to the department for mental

  6  retardation or mental health services under the provisions of

  7  this chapter.  The separate, secure facilities shall be

  8  sufficient to accommodate the number of clients committed

  9  under the conditions noted above, except those clients found

10  by the department to be appropriate for treatment in a civil

11  mental health treatment facility. Such facilities shall be

12  designed and administered so that ingress and egress, together

13  with other requirements of this chapter, may be strictly

14  controlled by staff responsible for security in order to

15  protect the client, hospital personnel, other clients, and

16  citizens in adjacent communities.

17         (2)  It is further the intent of the Legislature that

18  treatment programs for clients who are found to be mentally

19  ill retarded or dangerously mentally ill defendants and are

20  involuntarily committed to any facility certain mental

21  retardation or mental health facilities, and who are still

22  under the jurisdiction of the committing court, be provided in

23  such a manner, subject to security requirements and other

24  mandates of this chapter, as to ensure the rights of said

25  clients as provided in this chapter.

26         (3)  It is the intent of the Legislature that

27  evaluation and treatment of mentally ill and mentally retarded

28  defendants be provided in community inpatient or outpatient

29  settings, in community residential facilities, or in civil,

30  nonforensic facilities, whenever this is a feasible

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  1  alternative otherwise permitted by law to treatment in a state

  2  forensic facility.

  3         Section 9.  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 patient shall be respected at all times and

  9  upon all occasions, including any occasion when the patient is

10  detained, transported, or treated.  Persons who are mentally

11  ill or dangerously mentally ill retarded and who are charged

12  with, or who have been convicted of, committing criminal acts

13  shall receive appropriate treatment.  In a criminal case

14  involving a person who has been found adjudicated incompetent

15  to stand trial or not guilty by reason of insanity, or who has

16  otherwise been found by the court to meet the criteria for

17  involuntary commitment, a jail may be used as an emergency

18  facility for up to 15 days from the date the department

19  receives a completed copy of the commitment order containing

20  the documentation required by the Rules 3.212 and 3.217,

21  Florida Rules of Criminal Procedure.  In every case in which a

22  mentally ill or dangerously mentally ill retarded person is

23  held in a jail, evaluation and treatment shall be provided in

24  the jail by the local receiving facility, the patient's

25  physician or clinical psychologist, or any other mental health

26  program available to provide such treatment until the person

27  is transferred to the custody of the department or Department

28  of Corrections.

29         (b)  Mentally ill or mentally retarded persons who are

30  committed to the department pursuant to this chapter and who

31  are initially placed in, or subsequently transferred to, a

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  1  civil mental health treatment facility shall have the same

  2  rights as other persons committed to civil facilities as

  3  described in part I of chapter 394, as long as they remain in

  4  a civil facility.

  5         (2)  RIGHT TO TREATMENT.--

  6         (a)  The policy of the state is that the department or

  7  Department of Corrections shall not deny treatment of mental

  8  illness or dangerous mental illness retardation to any client

  9  and that no services shall be delayed at a forensic mental

10  health treatment facility because the client is unable to pay.

11  However, every reasonable effort to collect appropriate

12  reimbursement for the cost of providing mental health services

13  to persons able to pay for the services, including

14  reimbursement from insurance or other third-party payments,

15  shall be made by forensic facilities providing services

16  pursuant to this chapter and in accordance with the provisions

17  of s. 402.33.

18         (b)  Each client who is a patient at a forensic

19  facility shall be given, at the time of admission and at

20  regular intervals thereafter, a physical examination, which

21  shall include screening for communicable disease by a health

22  practitioner authorized by law to give such screenings and

23  examinations.

24         (c)  Every patient committed pursuant to this chapter

25  act shall be afforded the opportunity to participate in

26  activities designed to enhance self-image and the beneficial

27  effects of other treatments, as determined by the facility.

28         (d)  Not more than 30 days after admission, each

29  patient shall have and receive, in writing, an individualized

30  treatment plan which the patient has had an opportunity to

31  assist in preparing.

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  1         (3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--

  2         (a)  A person committed to the department pursuant to

  3  this chapter act shall be asked to give express and informed

  4  written consent for treatment. "Express and informed consent"

  5  or "consent" means consent given voluntarily in writing after

  6  a conscientious and sufficient explanation and disclosure of

  7  the purpose of the proposed treatment, the common side effects

  8  of the treatment, if any, the expected duration of the

  9  treatment, and any alternative treatment available.  If a

10  patient in a forensic facility refuses such treatment as is

11  deemed necessary by the patient's multidisciplinary treatment

12  team at the forensic facility for the appropriate care of the

13  patient and the safety of the patient or others, such

14  treatment may be provided under the following circumstances:

15         1.  In an emergency situation in which there is

16  immediate danger to the safety of the patient or others, such

17  treatment may be provided upon the written order of a

18  physician for a period not to exceed 48 hours, excluding

19  weekends and legal holidays.  If, after the 48-hour period,

20  the patient has not given express and informed consent to the

21  treatment initially refused, the administrator of the forensic

22  facility shall, within 48 hours, excluding weekends and legal

23  holidays, petition the committing court or the circuit court

24  serving the county in which the facility is located, at the

25  option of the facility administrator, for an order authorizing

26  the continued treatment of the patient.  In the interim,

27  treatment may be continued without the consent of the patient

28  upon the continued written order of a physician who has

29  determined that the emergency situation continues to present a

30  danger to the safety of the patient or others.

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  1         2.  In a situation other than an emergency situation,

  2  the administrator of the forensic facility shall petition the

  3  court for an order authorizing the treatment of the patient.

  4  The order shall allow such treatment for a period not to

  5  exceed 90 days from the date of the entry of the order. Unless

  6  the court is notified in writing that the patient has provided

  7  express and informed consent in writing or that the patient

  8  has been discharged by the committing court, the administrator

  9  shall, prior to the expiration of the initial 90-day order,

10  petition the court for an order authorizing the continuation

11  of treatment for another 90-day period.  This procedure shall

12  be repeated until the patient provides consent or is

13  discharged by the committing court.

14         3.  At the hearing on the issue of whether the court

15  should enter an order authorizing treatment for which a

16  patient has refused to give express and informed consent, the

17  court shall determine by clear and convincing evidence that

18  the patient is mentally ill or dangerously mentally ill

19  retarded as defined in this chapter, that the treatment not

20  consented to is essential to the care of the patient, and that

21  the treatment not consented to is not experimental and does

22  not present an unreasonable risk of serious, hazardous, or

23  irreversible side effects.  In arriving at the substitute

24  judgment decision, the court must consider at least the

25  following factors:

26         a.  The patient's expressed preference regarding

27  treatment;

28         b.  The probability of adverse side effects;

29         c.  The prognosis without treatment; and

30         d.  The prognosis with treatment.

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  1  The hearing shall be as convenient to the patient as may be

  2  consistent with orderly procedure and shall be conducted in

  3  physical settings not likely to be injurious to the patient's

  4  condition. The court may appoint a master to preside at the

  5  hearing. The patient or the patient's guardian, and his or her

  6  representative, shall be provided with a copy of the petition

  7  and the date, time, and location of the hearing. The patient

  8  has the right to have an attorney represent him or her at the

  9  hearing, and, if the patient is indigent, the court shall

10  appoint the office of the public defender to represent the

11  patient at the hearing.  The patient may testify or not, as he

12  or she chooses, and has the right to cross-examine witnesses

13  testifying on behalf of the facility and may present his or

14  her own witnesses.

15         (b)  In addition to the provisions of paragraph (a), in

16  the case of surgical procedures requiring the use of a general

17  anesthetic or electroconvulsive treatment or nonpsychiatric

18  medical procedures, and prior to performing the procedure,

19  written permission shall be obtained from the patient, if he

20  or she is legally competent, from the parent or guardian of a

21  minor patient, or from the guardian of an incompetent patient.

22  The administrator of the forensic facility or his or her

23  designated representative may, with the concurrence of the

24  patient's attending physician, authorize emergency surgical or

25  nonpsychiatric medical treatment if such treatment is deemed

26  lifesaving or for a situation threatening serious bodily harm

27  to the patient and permission of the patient or the patient's

28  guardian cannot be obtained.

29         (4)  QUALITY OF TREATMENT.--Each patient committed

30  pursuant to this chapter shall receive treatment suited to his

31  or her needs, which shall be administered skillfully, safely,

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  1  and humanely with full respect for the patient's dignity and

  2  personal integrity.  Each patient shall receive such medical,

  3  vocational, social, educational, and rehabilitative services

  4  as the patient's condition requires to bring about an early

  5  return to his or her community, if otherwise permitted by law.

  6  In order to achieve this goal, the department is directed to

  7  coordinate its forensic mental health program and mental

  8  retardation programs with all other programs of the

  9  department, the Department of Corrections, and other

10  appropriate state agencies.

11         (5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--

12         (a)  Each patient committed pursuant to the provisions

13  of this chapter has the right to communicate freely and

14  privately with persons outside the facility unless otherwise

15  prohibited by law or unless it is determined that such

16  communication is likely to be harmful to the patient or

17  others.

18         (b)  Each patient committed under the provisions of

19  this chapter shall be allowed to receive, send, and mail

20  sealed, unopened correspondence; and no patient's incoming or

21  outgoing correspondence shall be opened, delayed, held, or

22  censored by the facility unless otherwise provided by law or

23  unless there is reason to believe that it contains items or

24  substances which may be harmful to the patient or others, in

25  which case the administrator may direct reasonable examination

26  of such mail and may regulate the disposition of such items or

27  substances. "Correspondence" shall not include parcels or

28  packages.  Forensic facilities are authorized to promulgate

29  reasonable rules to provide for the inspection of parcels or

30  packages and for the removal of contraband items for health or

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  1  security reasons prior to the contents being given to a

  2  resident.

  3         (c)  If a patient's right to communicate is restricted

  4  by the administrator, written notice of such restriction shall

  5  be served on the patient or the patient's guardian or

  6  representatives, and such restriction shall be recorded on the

  7  patient's clinical record with the reasons therefor. The

  8  restriction of a patient's right to communicate shall be

  9  reviewed at least every 90 days.

10         (d)  Each forensic facility shall establish reasonable

11  rules governing visitors, visiting hours, and the use of

12  telephones by patients in the least restrictive possible

13  manner.

14         (e)  Each patient committed to the department pursuant

15  to this chapter shall have ready access to a telephone in

16  order to report an alleged abuse.  The facility or program

17  staff shall verbally and in writing inform each patient of the

18  procedure for reporting abuse.  A written copy of that

19  procedure, including the telephone number of the abuse

20  registry and reporting forms, shall be posted in plain view.

21         (f)  The department shall adopt rules providing a

22  procedure for reporting abuse.  Facility staff shall be

23  required, as a condition of employment, to become familiar

24  with the procedures for the reporting of abuse.

25         (6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF

26  PATIENTS.--A patient's right to his or her clothing and

27  personal effects shall be respected.  The department by rule,

28  or the administrator of any facility by written institutional

29  policy, may declare certain items to be hazardous to the

30  welfare of patients or others or to the operation of the

31  facility.  Such items may be restricted from introduction into

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  1  the facility or may be restricted from being in a patient's

  2  possession.  The administrator may take temporary custody of

  3  such effects when required for medical and safety reasons.

  4  Custody of such personal effects shall be recorded in the

  5  patient's clinical record.

  6         (7)  VOTING IN PUBLIC ELECTIONS.--A patient committed

  7  pursuant to this chapter who is eligible to vote according to

  8  the laws of the state has the right to vote in the primary and

  9  general elections.  The department shall establish rules to

10  enable patients to obtain voter registration forms,

11  applications for absentee ballots, and absentee ballots.

12         (8)  CLINICAL RECORD; CONFIDENTIALITY.--A clinical

13  record for each patient shall be maintained by the department.

14  The record shall include data pertaining to admission and such

15  other information as may be required under rules of the

16  department. Unless waived by express and informed consent by

17  the patient or the patient's legal guardian or, if the patient

18  is deceased, by the patient's personal representative or by

19  that family member who stands next in line of intestate

20  succession or except as otherwise provided in this subsection,

21  the clinical record is confidential and exempt from the

22  provisions of s. 119.07(1) and s. 24(a), Art. I of the State

23  Constitution.

24         (a)  Such clinical record may be released:

25         1.  To such persons and agencies as are designated by

26  the patient or the patient's legal guardian.

27         2.  To persons authorized by order of court.

28         3.  To a qualified researcher, as defined by rule; a

29  staff member of the facility; or an employee of the department

30  when the administrator of the facility or secretary of the

31  department deems it necessary for treatment of the patient,

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  1  maintenance of adequate records, compilation of treatment

  2  data, or evaluation of programs.

  3         4.  For statistical and research purposes if the

  4  information is abstracted in such a way as to protect the

  5  identity of individuals.

  6         5.  If a patient receiving services pursuant to this

  7  chapter has declared an intention to harm other persons;

  8  however, only the declaration may be disclosed.

  9         6.  To the parent of a mentally ill or mentally

10  retarded person who is committed to, or is being treated by, a

11  forensic mental health facility or program when such

12  information is limited to that person's treatment plan and

13  current physical and mental condition. Release of such

14  information shall be in accordance with the code of ethics of

15  the profession involved.

16         (b)  Notwithstanding other provisions of this

17  subsection, the department may request or receive from or

18  provide to any of the following entities client information to

19  facilitate treatment, rehabilitation, and continuity of care

20  of any forensic client:

21         1.  The Social Security Administration and the United

22  States Department of Veterans Affairs;

23         2.  Law enforcement agencies, state attorneys, public

24  defenders or other attorneys defending the patient, and judges

25  in regard to the patient's status;

26         3.  Jail personnel in the jail to which a client may be

27  returned; and

28         4.  Community agencies and others expected to provide

29  followup care to the patient upon his or her return to the

30  community.

31

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  1         (c)  The department may provide notice to any patient's

  2  next of kin or first representative regarding any serious

  3  medical illness or the death of the 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 person detained

13  by a facility, or a relative, friend, guardian,

14  representative, or attorney on behalf of such person, may

15  petition for a writ of habeas corpus to question the cause and

16  legality of such detention and request that the circuit court

17  issue a writ for release.  Each patient committed pursuant to

18  this chapter shall receive a written notice of the right to

19  petition for a writ of habeas corpus.

20         (b)  A patient or the patient's guardian or

21  representatives may file a petition in the circuit court in

22  the county where the patient is committed alleging that the

23  patient is being unjustly denied a right or privilege granted

24  herein or that a procedure authorized herein is being abused.

25  Upon the filing of such a petition, the circuit court shall

26  have the authority to conduct a judicial inquiry and to issue

27  any appropriate order to correct an abuse of the provisions of

28  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.  Such consultation shall include, but is not

  3  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.

13         (b)  The governing board of each county is authorized

14  to contract with private transport companies for the

15  transportation of such patients to and from a forensic

16  facility.

17         (c)  Any company that transports a patient pursuant to

18  this section is considered an independent contractor and is

19  solely liable for the safe and dignified transportation of the

20  patient. Any transport company that contracts with the

21  governing board of a county for the transport of patients as

22  provided for in this section shall be insured and provide no

23  less than $100,000 in liability insurance with respect to the

24  transportation of the patients.

25         (d)  Any company that contracts with a governing board

26  of a county to transport patients shall comply with the

27  applicable rules of the department to ensure the safety and

28  dignity of the patients.

29         (11)  LIABILITY FOR VIOLATIONS.--Any person who

30  violates or abuses any rights or privileges of a patient

31  provided by this chapter act is liable for damages as

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  1  determined by law.  Any person who acts in good faith in

  2  complying with the provisions of this act is immune from civil

  3  or criminal liability for his or her actions in connection

  4  with the admission, diagnosis, treatment, or discharge of a

  5  patient to or from a facility.  However, this subsection does

  6  not relieve any person from liability if the person is

  7  negligent.

  8         Section 10.  Section 916.108, Florida Statutes, is

  9  amended to read:

10         916.108  Training of mental health experts.--The

11  evaluation of defendants for competency to stand trial or

12  sanity at the time of the commission of the offense shall be

13  conducted in such a way as to ensure uniform application of

14  all applicable laws and rules the criteria enumerated in Rules

15  3.210 and 3.216, Florida Rules of Criminal Procedure.  The

16  department shall develop, and may contract with accredited

17  institutions:

18         (1)  To provide:

19         (a)  A plan for training community mental health

20  professionals to perform forensic evaluations and to

21  standardize the criteria and procedures to be used in these

22  evaluations;

23         (b)  Clinical protocols and procedures based upon the

24  criteria of Rules 3.210 and 3.216, Florida Rules of Criminal

25  Procedure; and

26         (c)  Training for community mental health professionals

27  in the application of these protocols and procedures in

28  performing forensic evaluations and providing reports to the

29  courts; and

30         (2)  To compile and maintain the necessary information

31  for evaluating the success of this program, including the

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  1  number of persons trained, the cost of operating the program,

  2  and the effect on the quality of forensic evaluations as

  3  measured by appropriateness of admissions to state forensic

  4  facilities and to community-based care programs.

  5         Section 11.  Section 916.11, Florida Statutes, is

  6  amended to read:

  7         916.11  Appointment of experts.--

  8         (1)(a)  Semiannually, the department shall provide the

  9  courts with a list of mental health professionals who have

10  completed approved training as experts.

11         (b)  The court may appoint no more than three nor fewer

12  than two experts to determine issues of the mental condition

13  of a defendant in a criminal case, including the issues of

14  competency to stand trial, insanity, and involuntary

15  hospitalization or placement.  The panel of experts may

16  evaluate the defendant in jail or in another appropriate local

17  facility.

18         (c)  To the extent possible, at least one of the

19  appointed experts shall be either a state-employed

20  psychiatrist, psychologist, or physician if in the local

21  vicinity; a psychiatrist, psychologist, or physician

22  designated by the district alcohol, drug abuse, and mental

23  health program office; or a community mental health center

24  psychiatrist, psychologist, or physician.

25         (d)  If a defendant's suspected mental condition

26  involves is mental retardation, the court shall appoint the

27  developmental services program of the Department of Children

28  Health and Family Rehabilitative Services to examine the

29  defendant and determine whether she or he meets the definition

30  of "retardation" in s. 393.063 and, if so, offer an opinion on

31  whether she or he is competent to stand trial.

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  1         (2)  Expert witnesses appointed by the court to

  2  determine the mental condition of a defendant in a criminal

  3  case shall be allowed reasonable fees for services rendered as

  4  witnesses, which shall be paid by the county in which the

  5  indictment was found or the information or affidavit was

  6  filed. State employees shall be paid expenses pursuant to s.

  7  112.061. The fees shall be taxed as costs in the case.

  8         Section 12.  Section 916.12, Florida Statutes, reads:

  9         916.12  Mental competence to stand trial.--

10         (1)  A person is incompetent to stand trial within the

11  meaning of this chapter if the person does not have sufficient

12  present ability to consult with her or his lawyer with a

13  reasonable degree of rational understanding or if the person

14  has no rational, as well as factual, understanding of the

15  proceedings against her or him.

16         (2)  A defendant who, because of psychotropic

17  medication, is able to understand the nature of proceedings

18  and assist in her or his defense shall not automatically be

19  deemed incompetent to stand trial simply because the

20  defendant's satisfactory mental functioning is dependent upon

21  such medication. As used in this subsection, "psychotropic

22  medication" means any drug or compound used to treat mental or

23  emotional disorders affecting the mind, behavior, intellectual

24  functions, perception, moods, or emotions and includes

25  antipsychotic, antidepressant, antimanic, and antianxiety

26  drugs.

27         Section 13.  Section 916.13, Florida Statutes, is

28  hereby repealed:

29         916.13  Involuntary commitment of defendant adjudicated

30  incompetent to stand trial or incompetent for sentencing.--

31

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  1         (1)  CRITERIA.--Every person adjudicated incompetent to

  2  stand trial or incompetent for sentencing, pursuant to the

  3  applicable Florida Rules of Criminal Procedure, may be

  4  involuntarily committed for treatment upon a finding by the

  5  court of clear and convincing evidence that:

  6         (a)  The person is mentally ill and because of her or

  7  his mental illness, or that the person is mentally retarded

  8  and because of her or his mental retardation:

  9         1.  The person is manifestly incapable of surviving

10  alone or with the help of willing and responsible family or

11  friends, including available alternative services, and,

12  without treatment, the person is likely to suffer from neglect

13  or refuse to care for herself or himself and such neglect or

14  refusal poses a real and present threat of substantial harm to

15  her or his well-being; or

16         2.  There is a substantial likelihood that in the near

17  future the person will inflict serious bodily harm on herself

18  or himself or another person, as evidenced by recent behavior

19  causing, attempting, or threatening such harm; and

20         (b)  All available, less restrictive treatment

21  alternatives, including treatment in community residential

22  facilities or community inpatient or outpatient settings,

23  which would offer an opportunity for improvement of the

24  person's condition have been judged to be inappropriate.

25         (2)  ADMISSION TO A FORENSIC FACILITY.--

26         (a)  Every person who has been adjudicated incompetent

27  to stand trial or incompetent for sentencing, and who meets

28  the criteria for commitment to the department under the

29  provisions of this chapter, shall be committed to the

30  department, and the department may retain and treat the

31  defendant.  No later than 6 months after the date of

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  1  commitment or at the end of any period of extended commitment,

  2  or at any time the administrator shall have determined that

  3  the defendant has regained competency to stand trial or no

  4  longer meets the criteria for continued commitment, the

  5  administrator shall file a report with the court pursuant to

  6  the applicable Florida Rules of Criminal Procedure.

  7         (b)  A defendant adjudicated incompetent to stand trial

  8  due to her or his mental retardation may be ordered into a

  9  secure facility designated by the department for retarded

10  defendants.  The department may not transfer a client from the

11  secure facility to another residential setting without first

12  notifying the court; the department may transfer such

13  defendant unless the department receives written objection to

14  the transfer from the court within 30 days after receipt of

15  the notice by the court.  No retarded client may be placed in

16  the designated secure facility except by criminal court order.

17  However, if criminal charges are subsequently dropped and the

18  client is involuntarily admitted to retardation residential

19  services, the placement at the secure facility may be

20  continued if so ordered by the committing court following a

21  hearing with the same due process requirements as set out in

22  s. 393.11 for an initial involuntary admission. Such court

23  hearings shall be held at least annually, with notice to the

24  state attorney, and each order of continuing placement shall

25  be based on a finding that the client is likely to physically

26  injure others as specified in s. 393.11(1)(c)2. In no case may

27  a client's placement in a secure facility exceed the maximum

28  sentence for the crime for which she or he was charged.

29         Section 14.  Section 916.14, Florida Statutes, reads:

30         916.14  Statute of limitations; former jeopardy.--The

31  statute of limitations shall not be applicable to criminal

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  1  charges dismissed because of the incompetency of the defendant

  2  to stand trial.  If a defendant is declared incompetent to

  3  stand trial during trial and afterwards is declared competent

  4  to stand trial, the defendant's other, uncompleted trial shall

  5  not constitute former jeopardy.

  6         Section 15.  Section 916.145, Florida Statutes, is

  7  hereby repealed:

  8         916.145  Adjudication of incompetency due to mental

  9  retardation; dismissal of charges.--The charges against any

10  defendant adjudicated incompetent to stand trial due to his or

11  her mental retardation shall be dismissed if the defendant

12  remains incompetent to stand trial 2 years after such

13  adjudication, unless the court in its order specifies its

14  reasons for believing that the defendant will become competent

15  to stand trial and the time within which the defendant is

16  expected to become competent to stand trial.

17         Section 16.  Section 916.15, Florida Statutes, is

18  hereby repealed:

19         916.15  Involuntary commitment of defendant adjudicated

20  not guilty by reason of insanity.--

21         (1)  A person who is acquitted of criminal charges

22  because of a finding of not guilty by reason of insanity may

23  be involuntarily committed pursuant to such finding if the

24  person is mentally ill and, because of the person's illness,

25  is manifestly dangerous to himself or herself or others.

26         (2)  Every person acquitted of criminal charges by

27  reason of insanity and found to meet the criteria for

28  involuntary commitment may be committed and treated in

29  accordance with the provisions of this section and the

30  applicable Florida Rules of Criminal Procedure.  The

31  department shall admit a defendant so adjudicated to an

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  1  appropriate facility or program for treatment and may retain

  2  and treat such defendant.  No later than 6 months after the

  3  date of admission, prior to the end of any period of extended

  4  commitment, or at any time the administrator shall have

  5  determined that the defendant no longer meets the criteria for

  6  continued commitment placement, the administrator shall file a

  7  report with the court pursuant to the applicable Florida Rules

  8  of Criminal Procedure.

  9         (3)  In all proceedings under this subsection, both the

10  patient and the state shall have the right to a hearing before

11  the committing court. Evidence at such hearing may be

12  presented by the hospital administrator or his or her designee

13  as well as by the state and the defendant.  The defendant

14  shall have the right to counsel at any such hearing.  In the

15  event that a defendant cannot afford counsel, the court shall

16  appoint the public defender to represent the defendant.  The

17  parties shall have access to the defendant's records at the

18  treating facilities and may interview or depose personnel who

19  have had contact with the defendant at the treating

20  facilities.

21         Section 17.  Section 916.16, Florida Statutes, is

22  hereby repealed:

23         916.16  Jurisdiction of committing court.--The

24  committing court shall retain jurisdiction in the case of any

25  patient hospitalized or, if retarded, admitted to retardation

26  residential services pursuant to this chapter.  No such person

27  may be released except by order of the committing court. The

28  administrative hearing examiner shall have no jurisdiction to

29  determine issues of continuing hospitalization or release of

30  any person admitted pursuant to this chapter.

31

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  1         Section 18.  Section 916.17, Florida Statutes, is

  2  hereby repealed:

  3         916.17  Conditional release.--

  4         (1)  The committing court may order a conditional

  5  release of any defendant who has been committed according to a

  6  finding of incompetency to stand trial or an adjudication of

  7  not guilty by reason of insanity, based on an approved plan

  8  for providing appropriate outpatient care and treatment.  At

  9  such time as the administrator shall determine outpatient

10  treatment of the defendant to be appropriate, she or he may

11  file with the court, with copies to all parties, a written

12  plan for outpatient treatment, including recommendations from

13  qualified professionals.  Such a plan may be submitted by the

14  defendant.  The plan shall include:

15         (a)  Special provisions for residential care or

16  adequate supervision of the defendant.

17         (b)  Provisions for outpatient mental health services.

18         (c)  If appropriate, recommendations for auxiliary

19  services such as vocational training, educational services, or

20  special medical care.

21

22  In its order of conditional release, the court shall specify

23  the conditions of release based upon the release plan and

24  shall direct the appropriate agencies or persons to submit

25  periodic reports to the court regarding the defendant's

26  compliance with the conditions of the release and progress in

27  treatment, with copies to all parties.

28         (2)  If at any time it appears that the defendant has

29  failed to comply with the conditions of release, that the

30  defendant's condition has deteriorated to the point that

31  inpatient care is required, or that the release conditions

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  1  should be modified, the court shall hold a hearing within 7

  2  days and may modify the release conditions or order that the

  3  defendant be returned to the department for further treatment.

  4         (3)  If at any time it is determined after a hearing

  5  that the defendant no longer requires court-supervised

  6  followup care, the court shall terminate its jurisdiction in

  7  the cause and discharge the defendant.

  8         Section 19.  Section 916.175, Florida Statutes, reads:

  9         916.175  Escape from treatment program; penalty.--A

10  client involuntarily committed to the department under the

11  provisions of this chapter who escapes or attempts to escape

12  from the department is guilty of a felony of the second

13  degree, punishable as provided in s. 775.082, s. 775.083, or

14  s. 775.084.

15         Section 20.  Section 916.178, Florida Statutes, is

16  amended to read:

17         916.178  Introduction or removal of certain articles

18  unlawful; penalty.--

19         (1)(a)  Except as authorized by law or as specifically

20  authorized by the person in charge of a forensic facility, it

21  is unlawful to introduce into or upon the grounds of any

22  forensic facility under the supervision or control of the

23  department, or to take or attempt to take or send therefrom,

24  any of the following articles, which are hereby declared to be

25  contraband for the purposes of this section:

26         1.  Any intoxicating beverage or beverage which causes

27  or may cause an intoxicating effect;

28         2.  Any controlled substance as defined in chapter 893;

29         3.  Any firearm or deadly weapon; or

30         4.  Other items as determined by the department, and as

31  designated by departmental rule or by the administrator of any

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  1  facility, and designated by written institutional policies, to

  2  be hazardous to the welfare of patients or the operation of

  3  the facility.

  4         (b)  It is unlawful to transmit to, attempt to transmit

  5  to, or cause or attempt to cause to be transmitted to or

  6  received by any patient of any facility any article or thing

  7  declared by this section to be contraband, at any place which

  8  is outside of the grounds of such facility, except as

  9  authorized by law or as specifically authorized by the person

10  in charge of such facility.

11         (2)(a)  All individuals or vehicles entering upon the

12  grounds of any forensic facility under the supervision or

13  control of the department shall be subject to reasonable

14  search and seizure of any contraband materials introduced

15  thereon, for purpose of enforcement of this chapter.

16         (b)  These provisions shall be enforced by

17  institutional security personnel as defined in s.

18  916.106(7)(6).

19         (c)  Whoever violates any provision of subparagraph

20  (1)(a)2. or subparagraph (1)(a)3. is guilty of a felony of the

21  third degree, punishable as provided in s. 775.082, s.

22  775.083, or s. 775.084.

23         Section 21.  Section 916.19, Florida Statutes, reads:

24         916.19  Duties, functions, and powers of institutional

25  security personnel.--In case of emergency, and when necessary

26  to provide protection and security to any patient, to the

27  personnel, equipment, buildings, or grounds of a department

28  facility, or to citizens in the surrounding community,

29  institutional security personnel may, when authorized by the

30  administrator of the facility or her or his designee when the

31  administrator is not present, use a chemical weapon against a

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  1  patient housed in a forensic facility. However, such weapon

  2  shall be used only to the extent necessary to provide such

  3  protection and security.  Under no circumstances shall any

  4  such officer carry a chemical weapon on her or his person

  5  except during the period of the emergency for which its use

  6  was authorized.  All chemical weapons shall be placed in

  7  secure storage when their use is not authorized as provided in

  8  this section.

  9         Section 22.  Section 916.20, Florida Statutes, reads:

10         916.20  Operation and administration; rules.--

11         (1)  The department is authorized to promulgate rules,

12  enter into contracts, and do such things as may be necessary

13  and incidental to assure compliance with and to carry out the

14  provisions of this chapter in accordance with the stated

15  legislative intent.

16         (2)  Rules of the department shall be adopted in

17  accordance with the provisions of chapter 120, the

18  Administrative Procedure Act.

19         Section 23.  Rules 3.210, 3.211, 3.212, 3.213, 3.214,

20  3.215, 3.216, 3.217, 3.218, and 3.219, Florida Rules of

21  Criminal Procedure, are hereby repealed to the extent that

22  they are inconsistent with the provisions of this act.

23         Section 24.  If any provisions of this act or the

24  application thereof to any person or circumstance is held

25  invalid, the invalidity shall not affect other provisions or

26  applications of the act which can be given effect without the

27  invalid provision or application, and to this end the

28  provisions of this act are declared severable.

29         Section 25.  This act shall take effect October 1 of

30  the year in which enacted, except that section 23 shall take

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  1  effect only if this act is passed by the affirmative vote of

  2  two-thirds of the membership of each house of the Legislature.

  3

  4            *****************************************

  5                          HOUSE SUMMARY

  6
      Creates the "Insanity Defense Reform Act." Provides for
  7    determination whether a defendant is mentally ill,
      dangerously mentally ill, or fit to stand trial. Provides
  8    for placement of defendants determined to be mentally ill
      in the custody of the Department of Children and Family
  9    Services until they are fit to stand trial. Provides for
      placement of defendants determined to be dangerously
10    mentally ill with the Department of Corrections until
      such time as they may be fit to stand trial.
11

12    Permits dismissal of charges under specified
      circumstances when a defendant is still not fit to stand
13    trial after a significant period of time. Provides that
      the defendant's mental state during the commission of a
14    crime may not be considered for certain prosecution
      purposes, but may be considered in deciding whether to
15    incorporate treatment as part of the sentence. See bill
      for details.
16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

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