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A bill to be entitled

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An act relating to forensic client services; amending s.

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916.105, F.S.; providing legislative intent that forensic

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client services be provided to a person charged with a

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misdemeanor as well as with a felony; amending s. 916.106,

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F.S.; redefining the term "court" to include the county

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court; amending ss. 916.107, 916.13, and 916.302, F.S.,

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relating to the rights of forensic clients, the

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involuntary commitment of a defendant with mental illness,

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and the involuntary commitment of a defendant determined

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to be incompetent; conforming provisions to changes made

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by the act; providing an effective date.

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

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     Section 1.  Subsection (1) of section 916.105, Florida

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Statutes, is amended to read:

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     916.105  Legislative intent.--

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

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of Children and Family Services and the Agency for Persons with

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Disabilities, as appropriate, establish, locate, and maintain

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separate and secure forensic facilities and programs for the

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treatment or training of defendants who have been charged with a

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felony or a misdemeanor and who have been found to be incompetent

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to proceed due to their mental illness, mental retardation, or

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autism, or who have been acquitted of a felony or a misdemeanor

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by reason of insanity, and who, while still under the

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jurisdiction of the committing court, are committed to the

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department or agency under the provisions of this chapter. The

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Such facilities must shall be sufficient to accommodate the

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number of defendants committed under the conditions noted above.

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Except for those defendants found by the department or agency to

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be appropriate for treatment or training in a civil facility or

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program pursuant to subsection (3), forensic facilities shall be

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designed and administered so that ingress and egress, together

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with other requirements of this chapter, may be strictly

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controlled by staff responsible for security in order to protect

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the defendant, facility personnel, other clients, and citizens in

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adjacent communities.

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     Section 2.  Subsection (5) of section 916.106, Florida

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Statutes, is amended to read:

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     916.106  Definitions.--For the purposes of this chapter, the

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term:

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     (5) "Court" means the circuit or county court.

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     Section 3.  Subsections (1) and (3) of section 916.107,

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Florida Statutes, are amended to read:

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     916.107  Rights of forensic clients.--

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     (1)  RIGHT TO INDIVIDUAL DIGNITY.--

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     (a)  The policy of the state is that the individual dignity

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of the client shall be respected at all times and upon all

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occasions, including any occasion when the forensic client is

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detained, transported, or treated. Clients with mental illness,

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retardation, or autism and who are charged with committing

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felonies or misdemeanors shall receive appropriate treatment or

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training. In a criminal case involving a client who has been

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adjudicated incompetent to proceed or not guilty by reason of

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insanity, a jail may be used as an emergency facility for up to

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15 days following the date the department or agency receives a

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completed copy of the court commitment order containing all

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documentation required by the applicable Florida Rules of

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Criminal Procedure. For a forensic client who is held in a jail

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awaiting admission to a facility of the department or agency,

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evaluation and treatment or training may be provided in the jail

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by the local community mental health provider for mental health

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services, by the developmental disabilities program for persons

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with retardation or autism, the client's physician or

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psychologist, or any other appropriate program until the client

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is transferred to a civil or forensic facility.

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     (b)  Forensic clients who are initially placed in, or

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subsequently transferred to, a civil facility as described in

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part I of chapter 394 or to a residential facility as described

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in chapter 393 shall have the same rights as other persons

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committed to these facilities for as long as they remain there.

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

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     (a)  A forensic client shall be asked to give express and

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informed written consent for treatment. If a client refuses such

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treatment as is deemed necessary and essential by the client's

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multidisciplinary treatment team for the appropriate care of the

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client, the such treatment may be provided under the following

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circumstances:

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     1.  In an emergency situation in which there is immediate

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danger to the safety of the client or others, the such treatment

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may be provided upon the written order of a physician for a

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period not to exceed 48 hours, excluding weekends and legal

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holidays. If, after the 48-hour period, the client has not given

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express and informed consent to the treatment initially refused,

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the administrator or designee of the civil or forensic facility

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shall, within 48 hours, excluding weekends and legal holidays,

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petition the committing court or the circuit or county court

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

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option of the facility administrator or designee, for an order

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authorizing the continued treatment of the client. In the

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interim, the need for treatment shall be reviewed every 48 hours

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and may be continued without the consent of the client upon the

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continued written order of a physician who has determined that

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the emergency situation continues to present a danger to the

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safety of the client or others.

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

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administrator or designee of the facility shall petition the

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circuit or county court for an order authorizing necessary and

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essential treatment for the client. The order shall allow such

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treatment for a period not to exceed 90 days following the date

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of the entry of the order. Unless the court is notified in

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writing that the client has provided express and informed consent

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in writing or that the client has been discharged by the

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committing court, the administrator or designee shall, before

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prior to the expiration of the initial 90-day order, petition the

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court for an order authorizing the continuation of treatment for

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another 90-day period. This procedure shall be repeated until the

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client provides consent or is discharged by the committing court.

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

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enter an order authorizing treatment for which a client was

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unable to or refused to give express and informed consent, the

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court shall determine by clear and convincing evidence that the

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client has mental illness, retardation, or autism, that the

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treatment not consented to is essential to the care of the

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client, and that the treatment not consented to is not

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experimental and does not present an unreasonable risk of

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serious, hazardous, or irreversible side effects. In arriving at

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the substitute judgment decision, the court must consider at

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least the following factors:

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     a.  The client's expressed preference regarding treatment;

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     b.  The probability of adverse side effects;

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     c.  The prognosis without treatment; and

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     d.  The prognosis with treatment.

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The hearing shall be as convenient to the client as may be

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consistent with orderly procedure and shall be conducted in

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physical settings not likely to be injurious to the client's

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condition. The court may appoint a general or special magistrate

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to preside at the hearing. The client or the client's guardian,

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and the representative, shall be provided with a copy of the

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petition and the date, time, and location of the hearing. The

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

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the hearing, and, if the client is indigent, the court shall

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appoint the office of the public defender to represent the client

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at the hearing. The client may testify or not, as he or she

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chooses, and has the right to cross-examine witnesses and may

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present his or her own witnesses.

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

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case of surgical procedures requiring the use of a general

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anesthetic or electroconvulsive treatment or nonpsychiatric

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medical procedures, and prior to performing the procedure,

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written permission shall be obtained from the client, if the

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client is legally competent, from the parent or guardian of a

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minor client, or from the guardian of an incompetent client. The

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administrator or designee of the forensic facility or a

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designated representative may, with the concurrence of the

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client's attending physician, authorize emergency surgical or

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nonpsychiatric medical treatment if the such treatment is deemed

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lifesaving or for a situation threatening serious bodily harm to

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the client and permission of the client or the client's guardian

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could not be obtained before provision of the needed treatment.

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     Section 4.  Section 916.13, Florida Statutes, is amended to

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read:

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     916.13  Involuntary commitment of defendant adjudicated

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incompetent.--

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     (1) Every defendant who is charged with a felony or

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misdemeanor and who is adjudicated incompetent to proceed may be

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involuntarily committed for treatment upon a finding by the court

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of clear and convincing evidence that:

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     (a)  The defendant has a mental illness and because of the

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mental illness:

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     1.  The defendant is manifestly incapable of surviving alone

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or with the help of willing and responsible family or friends,

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including available alternative services, and, without treatment,

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the defendant is likely to suffer from neglect or refuse to care

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for herself or himself and such neglect or refusal poses a real

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and present threat of substantial harm to the defendant's well-

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being; or

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     2.  There is a substantial likelihood that in the near

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future the defendant will inflict serious bodily harm on herself

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or himself or another person, as evidenced by recent behavior

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causing, attempting, or threatening such harm;

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     (b)  All available, less restrictive treatment alternatives,

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including treatment in community residential facilities or

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community inpatient or outpatient settings, which would offer an

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opportunity for improvement of the defendant's condition have

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been judged to be inappropriate; and

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     (c)  There is a substantial probability that the mental

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illness causing the defendant's incompetence will respond to

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treatment and the defendant will regain competency to proceed in

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the reasonably foreseeable future.

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     (2) A defendant who has been charged with a felony or

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misdemeanor and who has been adjudicated incompetent to proceed

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due to mental illness, and who meets the criteria for involuntary

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commitment to the department under the provisions of this

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chapter, may be committed to the department, and the department

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shall retain and treat the defendant. No later than 6 months

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after the date of admission and at the end of any period of

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extended commitment, or at any time the administrator or designee

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shall have determined that the defendant has regained competency

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to proceed or no longer meets the criteria for continued

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commitment, the administrator or designee shall file a report

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with the court under pursuant to the applicable Florida Rules of

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Criminal Procedure.

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     Section 5.  Subsections (1) and (2) of section 916.302,

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Florida Statutes, are amended to read:

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     916.302  Involuntary commitment of defendant determined to

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be incompetent to proceed.--

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     (1)  CRITERIA.--Every defendant who is charged with a felony

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or misdemeanor and who is adjudicated incompetent to proceed due

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to retardation or autism may be involuntarily committed for

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training upon a finding by the court of clear and convincing

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evidence that:

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     (a)  The defendant has retardation or autism;

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     (b)  There is a substantial likelihood that in the near

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future the defendant will inflict serious bodily harm on himself

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or herself or another person, as evidenced by recent behavior

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causing, attempting, or threatening such harm;

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     (c)  All available, less restrictive alternatives, including

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services provided in community residential facilities or other

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community settings, which would offer an opportunity for

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improvement of the condition have been judged to be

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inappropriate; and

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     (d)  There is a substantial probability that the retardation

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or autism causing the defendant's incompetence will respond to

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training and the defendant will regain competency to proceed in

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the reasonably foreseeable future.

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     (2)  ADMISSION TO A FACILITY.--

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     (a) A defendant who has been charged with a felony or

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misdemeanor and who is found to be incompetent to proceed due to

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retardation or autism, and who meets the criteria for involuntary

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commitment to the agency under the provisions of this chapter,

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shall be committed to the agency, and the agency shall retain and

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provide appropriate training for the defendant. No later than 6

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months after the date of admission or at the end of any period of

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extended commitment or at any time the administrator or designee

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shall have determined that the defendant has regained competency

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to proceed or no longer meets the criteria for continued

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commitment, the administrator or designee shall file a report

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with the court pursuant to this chapter and the applicable

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Florida Rules of Criminal Procedure.

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     (b)  A defendant determined to be incompetent to proceed due

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to retardation or autism may be ordered by a circuit court into a

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forensic facility designated by the agency for defendants who

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have mental retardation or autism.

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     (c)  The agency may transfer a defendant from a designated

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forensic facility to another designated forensic facility and

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must notify the court of the transfer within 30 days after the

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transfer is completed.

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     (d)  The agency may not transfer a defendant from a

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designated forensic facility to a civil facility without first

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notifying the court, and all parties, 30 days before the proposed

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transfer. If the court objects to the proposed transfer, it must

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send its written objection to the agency. The agency may transfer

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the defendant unless it receives the written objection from the

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court within 30 days after the court's receipt of the notice of

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the proposed transfer.

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     Section 6.  This act shall take effect July 1, 2008.