Florida Senate - 2014                                     SB 944
       
       
        
       By Senator Sobel
       
       
       
       
       
       33-01440-14                                            2014944__
    1                        A bill to be entitled                      
    2         An act relating to mental health treatment; amending
    3         s. 916.107, F.S.; authorizing forensic and civil
    4         facilities to order the continuation of
    5         psychotherapeutics for individuals receiving such
    6         medications in the jail before admission; amending s.
    7         916.13, F.S.; providing timeframes within which
    8         competency hearings must be held; amending s. 916.145,
    9         F.S.; revising the time for dismissal of certain
   10         charges for defendants that remain incompetent to
   11         proceed to trial; providing exceptions; amending s.
   12         916.15, F.S.; providing a timeframe within which
   13         commitment hearings must be held; amending s. 985.19,
   14         F.S.; standardizing the protocols, procedures,
   15         diagnostic criteria, and information and findings that
   16         must be included in an expert’s competency evaluation
   17         report; providing an effective date.
   18          
   19  Be It Enacted by the Legislature of the State of Florida:
   20  
   21         Section 1. Paragraph (a) of subsection (3) of section
   22  916.107, Florida Statutes, is amended to read:
   23         916.107 Rights of forensic clients.—
   24         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
   25         (a) A forensic client shall be asked to give express and
   26  informed written consent for treatment. If a client refuses such
   27  treatment as is deemed necessary and essential by the client’s
   28  multidisciplinary treatment team for the appropriate care of the
   29  client, such treatment may be provided under the following
   30  circumstances:
   31         1. In an emergency situation in which there is immediate
   32  danger to the safety of the client or others, such treatment may
   33  be provided upon the written order of a physician for a period
   34  not to exceed 48 hours, excluding weekends and legal holidays.
   35  If, after the 48-hour period, the client has not given express
   36  and informed consent to the treatment initially refused, the
   37  administrator or designee of the civil or forensic facility
   38  shall, within 48 hours, excluding weekends and legal holidays,
   39  petition the committing court or the circuit court serving the
   40  county in which the facility is located, at the option of the
   41  facility administrator or designee, for an order authorizing the
   42  continued treatment of the client. In the interim, the need for
   43  treatment shall be reviewed every 48 hours and may be continued
   44  without the consent of the client upon the continued written
   45  order of a physician who has determined that the emergency
   46  situation continues to present a danger to the safety of the
   47  client or others.
   48         2. In a situation other than an emergency situation, the
   49  administrator or designee of the facility shall petition the
   50  court for an order authorizing necessary and essential treatment
   51  for the client.
   52         a. If the client has been receiving psychotherapeutic
   53  medications at the jail at the time of transfer to the forensic
   54  or civil facility and lacks the capacity to make an informed
   55  decision regarding mental health treatment at the time of
   56  admission, the admitting physician may order continued
   57  administration of psychotherapeutic medications if, in the
   58  clinical judgment of the physician, abrupt cessation of
   59  psychotherapeutic medications could pose a risk to the health or
   60  safety of the client during the time a court order to medicate
   61  is pursued. The administrator or designee of the civil or
   62  forensic facility shall, within 5 days after admission,
   63  excluding weekends and legal holidays, petition the committing
   64  court or the circuit court serving the county in which the
   65  facility is located, at the option of the facility administrator
   66  or designee, for an order authorizing the continued treatment of
   67  a client. The jail physician shall provide a current
   68  psychotherapeutic medication order at the time of transfer to
   69  the forensic or civil facility or upon request of the admitting
   70  physician after the client is evaluated.
   71         b. The court order shall allow such treatment for up to a
   72  period not to exceed 90 days after following the date of the
   73  entry of the order. Unless the court is notified in writing that
   74  the client has provided express and informed consent in writing
   75  or that the client has been discharged by the committing court,
   76  the administrator or designee shall, before the expiration of
   77  the initial 90-day order, petition the court for an order
   78  authorizing the continuation of treatment for another 90 days
   79  90-day period. This procedure shall be repeated until the client
   80  provides consent or is discharged by the committing court.
   81         3. At the hearing on the issue of whether the court should
   82  enter an order authorizing treatment for which a client was
   83  unable to or refused to give express and informed consent, the
   84  court shall determine by clear and convincing evidence that the
   85  client has mental illness, intellectual disability, or autism,
   86  that the treatment not consented to is essential to the care of
   87  the client, and that the treatment not consented to is not
   88  experimental and does not present an unreasonable risk of
   89  serious, hazardous, or irreversible side effects. In arriving at
   90  the substitute judgment decision, the court must consider at
   91  least the following factors:
   92         a. The client’s expressed preference regarding treatment;
   93         b. The probability of adverse side effects;
   94         c. The prognosis without treatment; and
   95         d. The prognosis with treatment.
   96  
   97  The hearing shall be as convenient to the client as may be
   98  consistent with orderly procedure and shall be conducted in
   99  physical settings not likely to be injurious to the client’s
  100  condition. The court may appoint a general or special magistrate
  101  to preside at the hearing. The client or the client’s guardian,
  102  and the representative, shall be provided with a copy of the
  103  petition and the date, time, and location of the hearing. The
  104  client has the right to have an attorney represent him or her at
  105  the hearing, and, if the client is indigent, the court shall
  106  appoint the office of the public defender to represent the
  107  client at the hearing. The client may testify or not, as he or
  108  she chooses, and has the right to cross-examine witnesses and
  109  may present his or her own witnesses.
  110         Section 2. Subsection (2) of section 916.13, Florida
  111  Statutes, is amended to read:
  112         916.13 Involuntary commitment of defendant adjudicated
  113  incompetent.—
  114         (2) A defendant who has been charged with a felony and who
  115  has been adjudicated incompetent to proceed due to mental
  116  illness, and who meets the criteria for involuntary commitment
  117  to the department under the provisions of this chapter, may be
  118  committed to the department, and the department shall retain and
  119  treat the defendant.
  120         (a) Within No later than 6 months after the date of
  121  admission and at the end of any period of extended commitment,
  122  or at any time the administrator or designee has shall have
  123  determined that the defendant has regained competency to proceed
  124  or no longer meets the criteria for continued commitment, the
  125  administrator or designee shall file a report with the court
  126  pursuant to the applicable Florida Rules of Criminal Procedure.
  127         (b) A competency hearing must be held within 30 days after
  128  the court receives notification that the defendant is competent
  129  to proceed or no longer meets the criteria for continued
  130  commitment.
  131         Section 3. Section 916.145, Florida Statutes, is amended to
  132  read:
  133         (Substantial rewording of section. See
  134         s. 916.145, F.S., for present text.)
  135  
  136         916.145 Dismissal of charges.—
  137         (1) The charges against a defendant adjudicated incompetent
  138  to proceed due to mental illness shall be dismissed without
  139  prejudice to the state if the defendant remains incompetent to
  140  proceed:
  141         (a) Three years after such determination; or
  142         (b) Five years after such determination if the charge
  143  related to commitment is:
  144         1. Arson;
  145         2. Sexual battery;
  146         3. Robbery;
  147         4. Kidnapping;
  148         5. Aggravated child abuse;
  149         6. Aggravated abuse of an elderly person or disabled adult;
  150         7. Aggravated assault with a deadly weapon;
  151         8. Murder;
  152         9. Manslaughter;
  153         10. Aggravated manslaughter of an elderly person or
  154  disabled adult;
  155         11. Aggravated manslaughter of a child;
  156         12. Unlawful throwing, projecting, placing, or discharging
  157  of a destructive device or bomb;
  158         13. Armed burglary;
  159         14. Aggravated battery; or
  160         15. Aggravated stalking,
  161  
  162  unless the court, in an order, specifies reasons for believing
  163  that the defendant will become competent to proceed, and
  164  specifies a reasonable time within which the defendant is
  165  expected to become competent.
  166         (2) This section does not prohibit the state from refiling
  167  dismissed charges if the defendant is declared to be competent
  168  to proceed in the future.
  169         Section 4. Subsection (5) is added to section 916.15,
  170  Florida Statutes, to read:
  171         916.15 Involuntary commitment of defendant adjudicated not
  172  guilty by reason of insanity.—
  173         (5) The commitment hearing must be held within 30 days
  174  after the court receives notification that the defendant no
  175  longer meets the criteria for continued commitment.
  176         Section 5. Subsection (1) of section 985.19, Florida
  177  Statutes, is amended to read:
  178         985.19 Incompetency in juvenile delinquency cases.—
  179         (1) If, at any time prior to or during a delinquency case,
  180  the court has reason to believe that the child named in the
  181  petition may be incompetent to proceed with the hearing, the
  182  court on its own motion may, or on the motion of the child’s
  183  attorney or state attorney must, stay all proceedings and order
  184  an evaluation of the child’s mental condition.
  185         (a) Any motion questioning the child’s competency to
  186  proceed must be served upon the child’s attorney, the state
  187  attorney, the attorneys representing the Department of Juvenile
  188  Justice, and the attorneys representing the Department of
  189  Children and Families Family Services. Thereafter, any motion,
  190  notice of hearing, order, or other legal pleading relating to
  191  the child’s competency to proceed with the hearing must be
  192  served upon the child’s attorney, the state attorney, the
  193  attorneys representing the Department of Juvenile Justice, and
  194  the attorneys representing the Department of Children and
  195  Families Family Services.
  196         (b) All determinations of competency must shall be made at
  197  a hearing, with findings of fact based on an evaluation of the
  198  child’s mental condition made by at least not less than two but
  199  not nor more than three experts appointed by the court. The
  200  basis for the determination of incompetency must be specifically
  201  stated in the evaluation. In addition, a recommendation as to
  202  whether residential or nonresidential treatment or training is
  203  required must be included in the evaluation. Experts appointed
  204  by the court to determine the mental condition of a child shall
  205  be allowed reasonable fees for services rendered. State
  206  employees may be paid expenses pursuant to s. 112.061. The fees
  207  shall be taxed as costs in the case.
  208         (c) A child is competent to proceed if the child has
  209  sufficient present ability to consult with counsel with a
  210  reasonable degree of rational understanding and the child has a
  211  rational and factual understanding of the present proceedings.
  212  The expert’s competency evaluation report must specifically
  213  state the basis for the determination of the child’s mental
  214  condition and must include written findings that:
  215         1. Identify the specific matters referred for evaluation.
  216         2. Identify the sources of information used by the expert.
  217         3. Describe the procedures, techniques, and diagnostic
  218  tests used in the examination to determine the basis of the
  219  child’s mental condition.
  220         4. Address the child’s capacity to:
  221         a. Appreciate the charges or allegations against the child.
  222         b. Appreciate the range and nature of possible penalties
  223  that may be imposed in the proceedings against the child, if
  224  applicable.
  225         c. Understand the adversarial nature of the legal process.
  226         d. Disclose to counsel facts pertinent to the proceedings
  227  at issue.
  228         e. Display appropriate courtroom behavior.
  229         f. Testify relevantly.
  230         5. Present the factual basis for the expert’s clinical
  231  findings and opinions of the child’s mental condition. The
  232  expert’s factual basis of his or her clinical findings and
  233  opinions must be supported by the diagnostic criteria found in
  234  the most recent edition of the Diagnostic and Statistical Manual
  235  of Mental Disorders (DSM) published by the American Psychiatric
  236  Association and must be presented in a separate section of the
  237  report entitled “summary of findings.” This section must
  238  include:
  239         a. The day, month, year, and length of time of the face-to
  240  face diagnostic clinical interview to determine the child’s
  241  mental condition.
  242         b. A statement that identifies the DSM clinical name and
  243  associated diagnostic code for the specific mental disorder that
  244  forms the basis of the child’s incompetency.
  245         c. A statement of how the child would benefit from
  246  competency restoration services in the community or in a secure
  247  residential treatment facility.
  248         d. An assessment of the probable duration of the treatment
  249  to restore competence and the probability that the child will
  250  attain competence to proceed in the foreseeable future.
  251         e. A description of recommended treatment or education
  252  appropriate for the mental disorder.
  253         6. If the evaluator determines the child to be incompetent
  254  to proceed to trial, the evaluator must report on the mental
  255  disorder that forms the basis of the incompetency.
  256         (d)(c) All court orders determining incompetency must
  257  include specific written findings by the court as to the nature
  258  of the incompetency and whether the child requires secure or
  259  nonsecure treatment or training environment environments.
  260         (e)(d) For competency incompetency evaluations related to
  261  mental illness, the Department of Children and Families Family
  262  Services shall maintain and annually provide the courts with a
  263  list of available mental health professionals who have completed
  264  a training program approved by the Department of Children and
  265  Families Family Services to perform the evaluations.
  266         (f)(e) For competency incompetency evaluations related to
  267  intellectual disability or autism, the court shall order the
  268  Agency for Persons with Disabilities to examine the child to
  269  determine if the child meets the definition of “intellectual
  270  disability” or “autism” in s. 393.063 and, provide a clinical
  271  opinion as to if so, whether the child is competent to proceed
  272  with delinquency proceedings.
  273         (f) A child is competent to proceed if the child has
  274  sufficient present ability to consult with counsel with a
  275  reasonable degree of rational understanding and the child has a
  276  rational and factual understanding of the present proceedings.
  277  The report must address the child’s capacity to:
  278         1. Appreciate the charges or allegations against the child.
  279         2. Appreciate the range and nature of possible penalties
  280  that may be imposed in the proceedings against the child, if
  281  applicable.
  282         3. Understand the adversarial nature of the legal process.
  283         4. Disclose to counsel facts pertinent to the proceedings
  284  at issue.
  285         5. Display appropriate courtroom behavior.
  286         6. Testify relevantly.
  287         (g) Immediately upon the filing of the court order finding
  288  a child incompetent to proceed, the clerk of the court shall
  289  notify the Department of Children and Families Family Services
  290  and the Agency for Persons with Disabilities and fax or hand
  291  deliver to the department and to the agency a referral packet
  292  that includes, at a minimum, the court order, the charging
  293  documents, the petition, and the court-appointed evaluator’s
  294  reports.
  295         (h) After placement of the child in the appropriate
  296  setting, the Department of Children and Families Family Services
  297  in consultation with the Agency for Persons with Disabilities,
  298  as appropriate, must, within 30 days after placement of the
  299  child, prepare and submit to the court a treatment or training
  300  plan for the child’s restoration of competency. A copy of the
  301  plan must be served upon the child’s attorney, the state
  302  attorney, and the attorneys representing the Department of
  303  Juvenile Justice.
  304         Section 6. This act shall take effect July 1, 2014.