Florida Senate - 2016                              CS for SB 862
       
       
        
       By the Committee on Criminal Justice; and Senator Legg
       
       591-02913-16                                           2016862c1
    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. 916.145, F.S.; revising
   12         the time for dismissal of certain charges for
   13         defendants that remain incompetent to proceed to
   14         trial; providing exceptions; amending s. 916.15, F.S.;
   15         requiring that a commitment hearing be held within a
   16         specified time; reenacting s. 916.106(9), F.S.,
   17         relating to the definition of the terms “forensic
   18         client” or “client,” to incorporate the amendments
   19         made to ss. 916.13 and 916.15, F.S., in references
   20         thereto; reenacting s. 394.467(7)(a), F.S., relating
   21         to involuntary inpatient placement, to incorporate the
   22         amendments made to s. 916.15, F.S., in a reference
   23         thereto; providing an effective date.
   24          
   25  Be It Enacted by the Legislature of the State of Florida:
   26  
   27         Section 1. Paragraph (a) of subsection (3) of section
   28  916.107, Florida Statutes, is amended to read:
   29         916.107 Rights of forensic clients.—
   30         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
   31         (a) A forensic client shall be asked to give express and
   32  informed written consent for treatment. If a client refuses such
   33  treatment as is deemed necessary and essential by the client’s
   34  multidisciplinary treatment team for the appropriate care of the
   35  client, such treatment may be provided under the following
   36  circumstances:
   37         1. In an emergency situation in which there is immediate
   38  danger to the safety of the client or others, such treatment may
   39  be provided upon the written order of a physician for up to a
   40  period not to exceed 48 hours, excluding weekends and legal
   41  holidays. If, after the 48-hour period, the client has not given
   42  express and informed consent to the treatment initially refused,
   43  the administrator or designee of the civil or forensic facility
   44  shall, within 48 hours, excluding weekends and legal holidays,
   45  petition the committing court or the circuit court serving the
   46  county in which the facility is located, at the option of the
   47  facility administrator or designee, for an order authorizing the
   48  continued treatment of the client. In the interim, the need for
   49  treatment shall be reviewed every 48 hours and may be continued
   50  without the consent of the client upon the continued written
   51  order of a physician who has determined that the emergency
   52  situation continues to present a danger to the safety of the
   53  client or others.
   54         2. In a situation other than an emergency situation, the
   55  administrator or designee of the facility shall petition the
   56  court for an order authorizing necessary and essential treatment
   57  for the client.
   58         a. If the client has been receiving psychotropic medication
   59  while incarcerated at the time of transfer to the forensic or
   60  civil facility and lacks the capacity to make an informed
   61  decision regarding mental health treatment at the time of
   62  admission, the admitting physician may order continued
   63  administration of psychotropic medication if, in the clinical
   64  judgment of the physician, abrupt cessation of psychotropic
   65  medication could pose a risk to the health or safety of the
   66  client while a court order to medicate is pursued. The
   67  administrator or designee of the civil or forensic facility may,
   68  within 5 days after admission, excluding weekends and legal
   69  holidays, petition the committing court or the circuit court
   70  serving the county in which the facility is located, at the
   71  option of the facility administrator or designee, for an order
   72  authorizing the continued treatment of a client using the
   73  psychotropic medication. The jail physician shall provide a
   74  current psychotropic medication order at the time of transfer to
   75  the forensic or civil facility or upon request of the admitting
   76  physician after the client is evaluated.
   77         b. The court order shall allow such treatment for up to a
   78  period not to exceed 90 days after following the date that of
   79  the entry of the order was entered. Unless the court is notified
   80  in writing that the client has provided express and informed
   81  written consent in writing or that the client has been
   82  discharged by the committing court, the administrator or
   83  designee of the facility shall, before the expiration of the
   84  initial 90-day order, petition the court for an order
   85  authorizing the continuation of treatment for an additional 90
   86  days another 90-day period. This procedure shall be repeated
   87  until the client provides consent or is discharged by the
   88  committing court.
   89         3. At the hearing on the issue of whether the court should
   90  enter an order authorizing treatment for which a client was
   91  unable to or refused to give express and informed consent, the
   92  court shall determine by clear and convincing evidence that the
   93  client has mental illness, intellectual disability, or autism,
   94  that the treatment not consented to is essential to the care of
   95  the client, and that the treatment not consented to is not
   96  experimental and does not present an unreasonable risk of
   97  serious, hazardous, or irreversible side effects. In arriving at
   98  the substitute judgment decision, the court must consider at
   99  least the following factors:
  100         a. The client’s expressed preference regarding treatment;
  101         b. The probability of adverse side effects;
  102         c. The prognosis without treatment; and
  103         d. The prognosis with treatment.
  104  
  105  The hearing shall be as convenient to the client as may be
  106  consistent with orderly procedure and shall be conducted in
  107  physical settings not likely to be injurious to the client’s
  108  condition. The court may appoint a general or special magistrate
  109  to preside at the hearing. The client or the client’s guardian,
  110  and the representative, shall be provided with a copy of the
  111  petition and the date, time, and location of the hearing. The
  112  client has the right to have an attorney represent him or her at
  113  the hearing, and, if the client is indigent, the court shall
  114  appoint the office of the public defender to represent the
  115  client at the hearing. The client may testify or not, as he or
  116  she chooses, and has the right to cross-examine witnesses and
  117  may present his or her own witnesses.
  118         Section 2. Subsection (2) of section 916.13, Florida
  119  Statutes, is amended to read:
  120         916.13 Involuntary commitment of defendant adjudicated
  121  incompetent.—
  122         (2) A defendant who has been charged with a felony and who
  123  has been adjudicated incompetent to proceed due to mental
  124  illness, and who meets the criteria for involuntary commitment
  125  to the department under the provisions of this chapter, may be
  126  committed to the department, and the department shall retain and
  127  treat the defendant.
  128         (a) Within No later than 6 months after the date of
  129  admission and at the end of any period of extended commitment,
  130  or at any time the administrator or designee determines shall
  131  have determined that the defendant has regained competency to
  132  proceed or no longer meets the criteria for continued
  133  commitment, the administrator or designee shall file a report
  134  with the court pursuant to the applicable Florida Rules of
  135  Criminal Procedure.
  136         (b) A competency hearing shall be held within 30 days after
  137  the court receives notification that the defendant is competent
  138  to proceed or no longer meets the criteria for continued
  139  commitment. The defendant must be transported back to the
  140  committing court’s jurisdiction for the hearing.
  141         Section 3. Section 916.145, Florida Statutes, is amended to
  142  read:
  143         916.145 Dismissal of charges.—
  144         (1) The charges against a any defendant adjudicated
  145  incompetent to proceed due to the defendant’s mental illness
  146  shall be dismissed without prejudice to the state if the
  147  defendant remains incompetent to proceed 5 continuous
  148  uninterruped years after such determination, unless the court in
  149  its order specifies its reasons for believing that the defendant
  150  will become competent to proceed within the foreseeable future
  151  and specifies the time within which the defendant is expected to
  152  become competent to proceed. The court may dismiss such charges
  153  at least 3 and no more than 5 years after such determination,
  154  unless the charge is:
  155         (a) Arson;
  156         (b) Sexual battery;
  157         (c) Robbery;
  158         (d) Kidnapping;
  159         (e) Aggravated child abuse;
  160         (f) Aggravated abuse of an elderly person or disabled
  161  adult;
  162         (g) Aggravated assault with a deadly weapon;
  163         (h) Murder;
  164         (i) Manslaughter;
  165         (j) Aggravated manslaughter of an elderly person or
  166  disabled adult;
  167         (k) Aggravated manslaughter of a child;
  168         (l) Unlawful throwing, projecting, placing, or discharging
  169  of a destructive device or bomb;
  170         (m) Armed burglary;
  171         (n) Aggravated battery;
  172         (o) Aggravated stalking;
  173         (p) A forcible felony as defined in s. 776.08 and not
  174  listed elsewhere in this subsection;
  175         (q) An offense involving the possession, use, or discharge
  176  of a firearm;
  177         (r) An attempt to commit an offense listed in this
  178  subsection;
  179         (s) An offense allegedly committed by a defendant who has
  180  had a forcible or violent felony conviction within the 5 years
  181  preceding the date of arrest for the nonviolent felony sought to
  182  be dismissed;
  183         (t) An offense allegedly committed by a defendant who,
  184  after having been found incompetent and under court supervision
  185  in a community-based program, is formally charged by a State
  186  Attorney with a new felony offense; or
  187         (u) One for which there is an identifiable victim and such
  188  victim has not consented to the dismissal.
  189         (2) This section does not prohibit the state from refiling
  190  dismissed charges if the defendant is declared to be competent
  191  to proceed in the future against the defendant are dismissed
  192  without prejudice to the state to refile the charges should the
  193  defendant be declared competent to proceed in the future.
  194         Section 4. Subsection (5) is added to section 916.15,
  195  Florida Statutes, to read:
  196         916.15 Involuntary commitment of defendant adjudicated not
  197  guilty by reason of insanity.—
  198         (5) The commitment hearing shall be held within 30 days
  199  after the court receives notification that the defendant is
  200  competent to proceed and no longer meets the criteria for
  201  continued commitment. The defendant must be transported back to
  202  the committing court’s jurisdiction for the hearing.
  203         Section 5. For the purpose of incorporating the amendments
  204  made by this act to sections 916.13 and 916.15, Florida
  205  Statutes, in references thereto, subsection (9) of section
  206  916.106, Florida Statutes, is reenacted to read:
  207         916.106 Definitions.—For the purposes of this chapter, the
  208  term:
  209         (9) “Forensic client” or “client” means any defendant who
  210  has been committed to the department or agency pursuant to s.
  211  916.13, s. 916.15, or s. 916.302.
  212         Section 6. For the purpose of incorporating the amendment
  213  made by this act to section 916.15, Florida Statutes, in a
  214  reference thereto, paragraph (a) of subsection (7) of section
  215  394.467, Florida Statutes, is reenacted to read:
  216         394.467 Involuntary inpatient placement.—
  217         (7) PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT
  218  PLACEMENT.—
  219         (a) Hearings on petitions for continued involuntary
  220  inpatient placement shall be administrative hearings and shall
  221  be conducted in accordance with the provisions of s. 120.57(1),
  222  except that any order entered by the administrative law judge
  223  shall be final and subject to judicial review in accordance with
  224  s. 120.68. Orders concerning patients committed after
  225  successfully pleading not guilty by reason of insanity shall be
  226  governed by the provisions of s. 916.15.
  227         Section 7. This act shall take effect July 1, 2016.