Florida Senate - 2016                                     SB 862
       
       
        
       By Senator Legg
       
       
       
       
       
       17-00963-16                                            2016862__
    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 psychotropic
    5         medications for clients receiving such medication in
    6         the jail before admission to those facilities under
    7         certain circumstances; requiring a jail physician to
    8         provide a current psychotropic medication order under
    9         certain circumstances; amending s. 916.13, F.S.;
   10         requiring that a competency hearing be held within a
   11         specified time; amending s. 916.15, F.S.; requiring
   12         that a commitment hearing be held within a specified
   13         time; reenacting s. 916.106(9), F.S., relating to the
   14         definition of the terms “forensic client” or “client,”
   15         to incorporate the amendments made to ss. 916.13 and
   16         916.15, F.S., in references thereto; reenacting s.
   17         394.467(7)(a), F.S., relating to involuntary inpatient
   18         placement, to incorporate the amendments made to s.
   19         916.15, F.S., in a reference thereto; providing an
   20         effective date.
   21          
   22  Be It Enacted by the Legislature of the State of Florida:
   23  
   24         Section 1. Paragraph (a) of subsection (3) of section
   25  916.107, Florida Statutes, is amended to read:
   26         916.107 Rights of forensic clients.—
   27         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
   28         (a) A forensic client shall be asked to give express and
   29  informed written consent for treatment. If a client refuses such
   30  treatment as is deemed necessary and essential by the client’s
   31  multidisciplinary treatment team for the appropriate care of the
   32  client, such treatment may be provided under the following
   33  circumstances:
   34         1. In an emergency situation in which there is immediate
   35  danger to the safety of the client or others, such treatment may
   36  be provided upon the written order of a physician for up to a
   37  period not to exceed 48 hours, excluding weekends and legal
   38  holidays. If, after the 48-hour period, the client has not given
   39  express and informed consent to the treatment initially refused,
   40  the administrator or designee of the civil or forensic facility
   41  shall, within 48 hours, excluding weekends and legal holidays,
   42  petition the committing court or the circuit court serving the
   43  county in which the facility is located, at the option of the
   44  facility administrator or designee, for an order authorizing the
   45  continued treatment of the client. In the interim, the need for
   46  treatment shall be reviewed every 48 hours and may be continued
   47  without the consent of the client upon the continued written
   48  order of a physician who has determined that the emergency
   49  situation continues to present a danger to the safety of the
   50  client or others.
   51         2. In a situation other than an emergency situation, the
   52  administrator or designee of the facility shall petition the
   53  court for an order authorizing necessary and essential treatment
   54  for the client.
   55         a. If the client has been receiving psychotropic medication
   56  while incarcerated at the time of transfer to the forensic or
   57  civil facility and lacks the capacity to make an informed
   58  decision regarding mental health treatment at the time of
   59  admission, the admitting physician may order continued
   60  administration of psychotropic medication if, in the clinical
   61  judgment of the physician, abrupt cessation of psychotropic
   62  medication could pose a risk to the health or safety of the
   63  client while a court order to medicate is pursued. The
   64  administrator or designee of the civil or forensic facility may,
   65  within 5 days after admission, excluding weekends and legal
   66  holidays, petition the committing court or the circuit court
   67  serving the county in which the facility is located, at the
   68  option of the facility administrator or designee, for an order
   69  authorizing the continued treatment of a client using the
   70  psychotropic medication. The jail physician shall provide a
   71  current psychotropic medication order at the time of transfer to
   72  the forensic or civil facility or upon request of the admitting
   73  physician after the client is evaluated.
   74         b. The court order shall allow such treatment for up to a
   75  period not to exceed 90 days after following the date that of
   76  the entry of the order was entered. Unless the court is notified
   77  in writing that the client has provided express and informed
   78  written consent in writing or that the client has been
   79  discharged by the committing court, the administrator or
   80  designee of the facility shall, before the expiration of the
   81  initial 90-day order, petition the court for an order
   82  authorizing the continuation of treatment for an additional 90
   83  days another 90-day period. This procedure shall be repeated
   84  until the client provides consent or is discharged by the
   85  committing court.
   86         3. At the hearing on the issue of whether the court should
   87  enter an order authorizing treatment for which a client was
   88  unable to or refused to give express and informed consent, the
   89  court shall determine by clear and convincing evidence that the
   90  client has mental illness, intellectual disability, or autism,
   91  that the treatment not consented to is essential to the care of
   92  the client, and that the treatment not consented to is not
   93  experimental and does not present an unreasonable risk of
   94  serious, hazardous, or irreversible side effects. In arriving at
   95  the substitute judgment decision, the court must consider at
   96  least the following factors:
   97         a. The client’s expressed preference regarding treatment;
   98         b. The probability of adverse side effects;
   99         c. The prognosis without treatment; and
  100         d. The prognosis with treatment.
  101  
  102  The hearing shall be as convenient to the client as may be
  103  consistent with orderly procedure and shall be conducted in
  104  physical settings not likely to be injurious to the client’s
  105  condition. The court may appoint a general or special magistrate
  106  to preside at the hearing. The client or the client’s guardian,
  107  and the representative, shall be provided with a copy of the
  108  petition and the date, time, and location of the hearing. The
  109  client has the right to have an attorney represent him or her at
  110  the hearing, and, if the client is indigent, the court shall
  111  appoint the office of the public defender to represent the
  112  client at the hearing. The client may testify or not, as he or
  113  she chooses, and has the right to cross-examine witnesses and
  114  may present his or her own witnesses.
  115         Section 2. Subsection (2) of section 916.13, Florida
  116  Statutes, is amended to read:
  117         916.13 Involuntary commitment of defendant adjudicated
  118  incompetent.—
  119         (2) A defendant who has been charged with a felony and who
  120  has been adjudicated incompetent to proceed due to mental
  121  illness, and who meets the criteria for involuntary commitment
  122  to the department under the provisions of this chapter, may be
  123  committed to the department, and the department shall retain and
  124  treat the defendant.
  125         (a) Within No later than 6 months after the date of
  126  admission and at the end of any period of extended commitment,
  127  or at any time the administrator or designee determines shall
  128  have determined that the defendant has regained competency to
  129  proceed or no longer meets the criteria for continued
  130  commitment, the administrator or designee shall file a report
  131  with the court pursuant to the applicable Florida Rules of
  132  Criminal Procedure.
  133         (b) A competency hearing shall be held within 30 days after
  134  the court receives notification that the defendant is competent
  135  to proceed or no longer meets the criteria for continued
  136  commitment. The defendant must be transported back to the
  137  committing court’s jurisdiction for the hearing.
  138         Section 3. Subsection (5) is added to section 916.15,
  139  Florida Statutes, to read:
  140         916.15 Involuntary commitment of defendant adjudicated not
  141  guilty by reason of insanity.—
  142         (5) The commitment hearing shall be held within 30 days
  143  after the court receives notification that the defendant is
  144  competent to proceed and no longer meets the criteria for
  145  continued commitment. The defendant must be transported back to
  146  the committing court’s jurisdiction for the hearing.
  147         Section 4. For the purpose of incorporating the amendments
  148  made by this act to sections 916.13 and 916.15, Florida
  149  Statutes, in reference theretos, subsection (9) of section
  150  916.106, Florida Statutes, is reenacted to read:
  151         916.106 Definitions.—For the purposes of this chapter, the
  152  term:
  153         (9) “Forensic client” or “client” means any defendant who
  154  has been committed to the department or agency pursuant to s.
  155  916.13, s. 916.15, or s. 916.302.
  156         Section 5. For the purpose of incorporating the amendment
  157  made by this act to section 916.15, Florida Statutes, in a
  158  reference thereto, paragraph (a) of subsection (7) of section
  159  394.467, Florida Statutes, is reenacted to read:
  160         394.467 Involuntary inpatient placement.—
  161         (7) PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT
  162  PLACEMENT.—
  163         (a) Hearings on petitions for continued involuntary
  164  inpatient placement shall be administrative hearings and shall
  165  be conducted in accordance with the provisions of s. 120.57(1),
  166  except that any order entered by the administrative law judge
  167  shall be final and subject to judicial review in accordance with
  168  s. 120.68. Orders concerning patients committed after
  169  successfully pleading not guilty by reason of insanity shall be
  170  governed by the provisions of s. 916.15.
  171         Section 6. This act shall take effect July 1, 2016.