Florida Senate - 2017                                    SB 1614
       
       
        
       By Senator Garcia
       
       
       
       
       
       36-01339A-17                                          20171614__
    1                        A bill to be entitled                      
    2         An act relating to involuntary commitment; amending s.
    3         393.11, F.S.; requiring a petition for involuntary
    4         admission to be executed by a petitioning commission
    5         except under certain circumstances; requiring that one
    6         person on the petitioning commission be either a
    7         licensed physician or a licensed psychologist;
    8         requiring the petition to allege that the person lacks
    9         the capacity to give certain consent and has no
   10         guardian or guardian advocate who can provide that
   11         consent; requiring that the notice of the filing of a
   12         petition for involuntary admission to residential
   13         services be given to the Agency for Persons with
   14         Disabilities; requiring that the agency’s written
   15         report on the examination of the person being
   16         considered for involuntary admission be served on any
   17         appointed guardian or guardian advocate; revising the
   18         requirements for a court’s appointment of an examining
   19         committee; extending the right to challenge the
   20         qualifications of those appointed to the examining
   21         committee to the agency’s counsel and a specified
   22         state attorney; requiring that a committee member’s
   23         report must include an assessment of the person’s need
   24         for secure placement and other criteria; requiring
   25         that the committee’s report be served on any appointed
   26         guardian or guardian advocate; providing that the
   27         person may appear by video teleconference throughout
   28         the initial proceeding on the petition for involuntary
   29         admission to residential services; requiring that all
   30         stages of each proceeding be recorded rather than
   31         stenographically reported; specifying that an order of
   32         involuntary admission to residential services must
   33         specify whether the placement is to be secure or
   34         nonsecure and the level of supervision needed;
   35         providing that a copy of an order of involuntary
   36         admission be provided to any appointed guardian or
   37         guardian advocate; authorizing the court to order
   38         special provisions for residential services and
   39         adequate supervision of the person under certain
   40         conditions; specifying that an order authorizing
   41         admission to residential services may not be
   42         considered an adjudication of mental incapacity;
   43         requiring that any minor involuntarily admitted to
   44         residential services shall be evaluated within 6
   45         months before reaching majority; drawing a distinction
   46         between the terms “capacity” and “competency”;
   47         specifying that the court issuing the order has
   48         jurisdiction to enter further orders as recommended by
   49         a certain support plan; adding a requirement to a
   50         certain annual review of the person’s continued
   51         involuntary admission to residential services;
   52         providing an effective date.
   53          
   54  Be It Enacted by the Legislature of the State of Florida:
   55  
   56         Section 1. Section 393.11, Florida Statutes, is amended to
   57  read:
   58         393.11 Involuntary admission to residential services.—
   59         (1) JURISDICTION.—If a person has an intellectual
   60  disability or autism and requires involuntary admission to
   61  residential services provided by the agency, the circuit court
   62  of the county in which the person resides has jurisdiction to
   63  conduct a hearing, inquire as to whether the person has a
   64  guardian or guardian advocate who can consent to voluntary
   65  services on the person’s behalf, and enter an order
   66  involuntarily admitting the person in order for the person to
   67  receive the care, treatment, habilitation, and rehabilitation
   68  that the person needs. For the purpose of identifying
   69  intellectual disability or autism, diagnostic capability shall
   70  be established by the agency. Except as otherwise specified, the
   71  proceedings under this section are governed by the Florida Rules
   72  of Civil Procedure.
   73         (2) PETITION.—
   74         (a) A petition for involuntary admission to residential
   75  services shall may be executed by a petitioning commission,
   76  unless the petition is filed pursuant to s. 916.303.
   77         (b) The petitioning commission shall consist of three
   78  persons. One of these persons shall be a physician licensed and
   79  practicing under chapter 458 or chapter 459, or a psychologist
   80  licensed under chapter 490.
   81         (c) The petition shall be verified and must:
   82         1. State the name, age, and present address of the
   83  commissioners and their relationship to the person who has an
   84  intellectual disability or autism;
   85         2. State the name, age, county of residence, and present
   86  address of the person who has an intellectual disability or
   87  autism;
   88         3. Allege that the commission believes that the person
   89  needs involuntary residential services and specify the factual
   90  information on which the belief is based;
   91         4. Allege that the person lacks sufficient capacity to give
   92  express and informed consent to a voluntary application for
   93  services pursuant to s. 393.065 and does not have a guardian or
   94  guardian advocate who can do so, and lacks the basic survival
   95  and self-care skills to provide for the person’s well-being or
   96  is likely to physically injure others if allowed to remain at
   97  liberty; and
   98         5. State whether a secure or nonsecure which residential
   99  setting is the least restrictive and most appropriate
  100  alternative and specify the factual information on which the
  101  belief is based.
  102         (d) The petition must be filed in the circuit court of the
  103  county in which the person who has the intellectual disability
  104  or autism resides.
  105         (3) NOTICE.—
  106         (a) Notice of the filing of the petition shall be given to
  107  the individual and his or her legal guardian or guardian
  108  advocate if one has been appointed. The notice shall be given
  109  both verbally and in writing in the language of the client, or
  110  in other modes of communication of the client, and in English.
  111  Notice shall also be given to the agency and such other persons
  112  as the court may direct. The petition for involuntary admission
  113  to residential services shall be served with the notice.
  114         (b) If a motion or petition has been filed pursuant to s.
  115  916.303 to dismiss criminal charges against a defendant who has
  116  an intellectual disability or autism, and a petition is filed to
  117  involuntarily admit the defendant to residential services under
  118  this section, the notice of the filing of the petition must also
  119  be given to the defendant’s attorney, the state attorney of the
  120  circuit from which the defendant was committed, and the agency.
  121         (c) The notice must state that a hearing shall be set to
  122  inquire into the need of the person who has an intellectual
  123  disability or autism for involuntary residential services. The
  124  notice must also state the date of the hearing on the petition.
  125         (d) The notice must state that the individual who has an
  126  intellectual disability or autism has the right to be
  127  represented by counsel of his or her own choice and that, if the
  128  person cannot afford an attorney, the court shall appoint one.
  129         (4) AGENCY PARTICIPATION.—
  130         (a) Upon receiving the petition, the court shall
  131  immediately order the agency to examine the person being
  132  considered for involuntary admission to residential services.
  133         (b) Following examination, the agency shall file a written
  134  report with the court at least 10 working days before the date
  135  of the hearing. The report must be served on the petitioner, the
  136  person who has the intellectual disability or autism, his or her
  137  guardian or guardian advocate if one has been appointed, and the
  138  person’s attorney at the time the report is filed with the
  139  court.
  140         (c) The report must contain the findings of the agency’s
  141  evaluation, any recommendations deemed appropriate, and a
  142  determination of whether the person is eligible for services
  143  under this chapter.
  144         (5) EXAMINING COMMITTEE.—
  145         (a) Upon receiving the petition, the court shall
  146  immediately appoint an examining committee to examine the person
  147  being considered for involuntary admission to residential
  148  services provided by the agency.
  149         (b) The court shall appoint at least two, but no more than
  150  three, disinterested qualified experts who meet the requirements
  151  for a qualified evaluator as defined in paragraph (15)(d) have
  152  demonstrated to the court an expertise in the diagnosis,
  153  evaluation, and treatment of persons who have intellectual
  154  disabilities or autism. The committee must include at least one
  155  licensed and qualified physician, one licensed and qualified
  156  psychologist, and one qualified professional who, at a minimum,
  157  has a master’s degree in social work, special education, or
  158  vocational rehabilitation counseling, to examine the person and
  159  to testify at the hearing on the involuntary admission to
  160  residential services.
  161         (c) Counsel for the person who is being considered for
  162  involuntary admission to residential services, and counsel for
  163  the petition commission, counsel for the agency, and a state
  164  attorney in cases arising under chapter 916 have has the right
  165  to challenge the qualifications of those appointed to the
  166  examining committee.
  167         (d) Members of the committee may not be employees of the
  168  agency or be associated with each other in practice or in
  169  employer-employee relationships. Members of the committee may
  170  not have served as members of the petitioning commission.
  171  Members of the committee may not be employees of the members of
  172  the petitioning commission or be associated in practice with
  173  members of the commission.
  174         (e) Each member of the committee shall prepare a written
  175  report for the court. The reports report must explicitly
  176  document the extent that the person meets the criteria for
  177  involuntary admission. The report, and expert testimony, must
  178  include, but not be limited to:
  179         1. The degree of the person’s intellectual disability or
  180  autism and whether, using diagnostic capabilities established by
  181  the agency, the person is eligible for agency services;
  182         1.2. Whether, because of the person’s degree of
  183  intellectual disability or autism, the person:
  184         a. Lacks sufficient capacity to give express and informed
  185  consent to a voluntary application for services pursuant to s.
  186  393.065, does not have a guardian or guardian advocate who may
  187  do so for the person, and lacks basic survival and self-care
  188  skills to such a degree that close supervision and habilitation
  189  in a residential setting is necessary, and, if not provided,
  190  would result in a threat of substantial harm to the person’s
  191  well-being; or
  192         b. Is likely to physically injure others if allowed to
  193  remain at liberty.
  194         2.3. The purpose to be served by residential services care;
  195         3.4. A recommendation on the type of residential placement
  196  which would be the most appropriate and least restrictive for
  197  the person, including an assessment of the need for secure
  198  placement if in the opinion of the examining committee members
  199  the person presents a danger to himself or herself, or to
  200  others, and the level of supervision needed; and
  201         4.5. The appropriate care, habilitation, and treatment for
  202  the intellectual disability or autism which is within the
  203  agency’s responsibilities under this chapter.
  204         (f) The committee members shall file the report with the
  205  court at least 10 working days before the date of the hearing.
  206  The report must be served on the petitioner, the person who has
  207  the intellectual disability or autism and his or her guardian or
  208  guardian advocate if one has been appointed, the person’s
  209  attorney at the time the report is filed with the court, and the
  210  agency.
  211         (g) Members of the examining committee shall receive a
  212  reasonable fee to be determined by the court. The fees shall be
  213  paid from the general revenue fund of the county in which the
  214  person who has the intellectual disability or autism resided
  215  when the petition was filed.
  216         (6) COUNSEL; GUARDIAN AD LITEM.—
  217         (a) The person who has the intellectual disability or
  218  autism must be represented by counsel at all stages of the
  219  judicial proceeding, including review hearings. If the person is
  220  indigent and cannot afford counsel, the court shall appoint a
  221  public defender at least 20 working days before the scheduled
  222  hearing. The person’s counsel shall have full access to the
  223  records of the service provider and the agency. In all cases,
  224  the attorney shall represent the rights and legal interests of
  225  the person, regardless of who initiates the proceedings or pays
  226  the attorney fee.
  227         (b) If the attorney, during the course of his or her
  228  representation, reasonably believes that the person who has the
  229  intellectual disability or autism cannot adequately act in his
  230  or her own interest, the attorney may seek the appointment of a
  231  guardian, guardian advocate, or a guardian ad litem. A prior
  232  finding of incapacity incompetency is not required before a
  233  guardian ad litem is appointed pursuant to this section.
  234         (7) HEARING.—
  235         (a) The hearing for involuntary admission shall be
  236  conducted, and the order shall be entered, in the county in
  237  which the petition is filed. The hearing shall be conducted in a
  238  physical setting not likely to be injurious to the person’s
  239  condition.
  240         (b) A hearing on the petition must be held as soon as
  241  practicable after the petition is filed, but reasonable delay
  242  for the purpose of investigation, discovery, or procuring
  243  counsel or witnesses shall be granted.
  244         (c) The court may appoint a general or special magistrate
  245  to preside. Except as otherwise specified, the magistrate’s
  246  proceeding shall be governed by the Florida Rules of Civil
  247  Procedure.
  248         (d) The person who has the intellectual disability or
  249  autism must be physically present, either in person or by video
  250  teleconference, throughout the entire initial proceeding on the
  251  petition for involuntary admission to residential services. If
  252  the person’s attorney believes that the person’s presence at the
  253  hearing is not in his or her best interest, the person’s
  254  presence may be waived once the court has seen the person and
  255  the hearing has commenced.
  256         (e) The person has the right to present evidence and to
  257  cross-examine all witnesses and other evidence alleging the
  258  appropriateness of the person’s admission to residential
  259  services care. Other relevant and material evidence regarding
  260  the appropriateness of the person’s admission to residential
  261  services; the most appropriate, least restrictive residential
  262  placement; and the appropriate care, treatment, and habilitation
  263  of the person, including written or oral reports, may be
  264  introduced at the hearing by any interested person.
  265         (f) The petitioning commission may be represented by
  266  counsel at the hearing. The petitioning commission shall have
  267  the right to call witnesses, present evidence, cross-examine
  268  witnesses, and present argument on behalf of the petitioning
  269  commission.
  270         (g) All evidence shall be presented according to chapter
  271  90. The burden of proof shall be on the party alleging the
  272  appropriateness of the person’s admission to residential
  273  services. The burden of proof shall be by clear and convincing
  274  evidence.
  275         (h) All stages of each proceeding shall be recorded
  276  stenographically reported.
  277         (8) ORDER.—
  278         (a) In all cases, the court shall issue written findings of
  279  fact and conclusions of law to support its decision. The order
  280  must state the basis for the findings of fact.
  281         (b) An order of involuntary admission to residential
  282  services may not be entered unless the court finds that:
  283         1. The person is intellectually disabled or autistic;
  284         2. Placement in a residential setting is the least
  285  restrictive and most appropriate alternative to meet the
  286  person’s needs; and
  287         3. Because of the person’s degree of intellectual
  288  disability or autism, the person:
  289         a. Lacks sufficient capacity to give express and informed
  290  consent to a voluntary application for services pursuant to s.
  291  393.065, does not have a guardian or guardian advocate who may
  292  give consent for the person, and lacks basic survival and self
  293  care skills to such a degree that close supervision and
  294  habilitation in a residential setting is necessary and, if not
  295  provided, would result in a real and present threat of
  296  substantial harm to the person’s well-being; or
  297         b. Is likely to physically injure others if allowed to
  298  remain at liberty.
  299         (c) An order of involuntary admission to residential
  300  services must specify whether placement shall be secure or
  301  nonsecure and state the level of supervision needed.
  302         (d)(c) If the evidence presented to the court is not
  303  sufficient to warrant involuntary admission to residential
  304  services, but the court feels that residential services would be
  305  beneficial, the court may recommend that the person seek
  306  voluntary admission.
  307         (e)(d) If an order of involuntary admission to residential
  308  services provided by the agency is entered by the court, a copy
  309  of the written order shall be served upon the person and his or
  310  her guardian or guardian advocate if one has been appointed, the
  311  person’s counsel, the agency, and the state attorney and the
  312  person’s defense counsel, if applicable. The order of
  313  involuntary admission sent to the agency shall also be
  314  accompanied by a copy of the examining committee’s report and
  315  other reports contained in the court file.
  316         (f)(e)The court may order special provisions for
  317  residential services and adequate supervision of the person in
  318  order to ensure that the person is placed and maintained in the
  319  least restrictive, most appropriate setting. Special provisions
  320  may include auxiliary services that the agency provides to
  321  reduce risk, and with which the person must be compliant to
  322  maintain community safety. Upon receiving the order, the agency
  323  shall, within 45 days, provide the court with a copy of the
  324  person’s family or individual support plan and copies of all
  325  examinations and evaluations, outlining the treatment and
  326  rehabilitative programs. The agency shall document that the
  327  person has been placed in the most appropriate, least
  328  restrictive and cost-beneficial residential setting. A copy of
  329  the family or individual support plan and other examinations and
  330  evaluations shall be served upon the person and the person’s
  331  counsel at the same time the documents are filed with the court.
  332         (9) EFFECT OF THE ORDER OF INVOLUNTARY ADMISSION TO
  333  RESIDENTIAL SERVICES.—
  334         (a) An order authorizing an admission to residential
  335  services care may not be considered an adjudication of mental
  336  incapacity incompetency. A person is not presumed incapacitated
  337  incompetent solely by reason of the person’s involuntary
  338  admission to residential services. A person may not be denied
  339  the full exercise of all legal rights guaranteed to citizens of
  340  this state and of the United States.
  341         (b) Any minor involuntarily admitted to residential
  342  services shall, within the 6 months before upon reaching
  343  majority, be evaluated pursuant to subsection (15) and be given
  344  a hearing to determine the continued appropriateness of his or
  345  her involuntary admission.
  346         (10) CAPACITY COMPETENCY.—
  347         (a) The issue of capacity competency is separate and
  348  distinct from a determination of the appropriateness of
  349  involuntary admission to residential services due to
  350  intellectual disability or autism.
  351         (b) The issue of the capacity competency of a person who
  352  has an intellectual disability or autism for purposes of
  353  assigning guardianship shall be determined in a separate
  354  proceeding according to the procedures and requirements of
  355  chapter 744.
  356         (11) COMPETENCY.—The issue of the competency of a person
  357  who has an intellectual disability or autism for purposes of
  358  determining whether the person is competent to proceed in a
  359  criminal trial shall be determined in accordance with chapter
  360  916.
  361         (12)(11) CONTINUING JURISDICTION.—The court that which
  362  issues the initial order for involuntary admission to
  363  residential services under this section has continuing
  364  jurisdiction to enter further orders to ensure that the person
  365  is receiving adequate care, treatment, habilitation, and
  366  rehabilitation as recommended in the person’s support plan as
  367  described in s. 393.0651, including psychotropic medication and
  368  behavioral programming. Upon request, the court may transfer the
  369  continuing jurisdiction to the court where a client resides if
  370  it is different from where the original involuntary admission
  371  order was issued. A person may not be released from an order for
  372  involuntary admission to residential services except by the
  373  order of the court.
  374         (13)(12) APPEAL.—
  375         (a) Any party to the proceeding who is affected by an order
  376  of the court, including the agency, may appeal to the
  377  appropriate district court of appeal within the time and in the
  378  manner prescribed by the Florida Rules of Appellate Procedure.
  379         (b) The filing of an appeal by the person who has an
  380  intellectual disability or autism stays admission of the person
  381  into residential care. The stay remains in effect during the
  382  pendency of all review proceedings in Florida courts until a
  383  mandate issues.
  384         (14)(13) HABEAS CORPUS.—At any time and without notice, any
  385  person involuntarily admitted into residential care, or the
  386  person’s parent or legal guardian in his or her behalf, is
  387  entitled to file a petition for a writ of habeas corpus to
  388  question the cause, legality, and appropriateness of the
  389  person’s involuntary admission. Each person, or the person’s
  390  parent or legal guardian, shall receive specific written notice
  391  of the right to petition for a writ of habeas corpus at the time
  392  of his or her involuntary placement.
  393         (15)(14) REVIEW OF CONTINUED INVOLUNTARY ADMISSION TO
  394  RESIDENTIAL SERVICES.—
  395         (a) If a person is involuntarily admitted to residential
  396  services provided by the agency, the agency shall employ or, if
  397  necessary, contract with a qualified evaluator to conduct a
  398  review annually, unless otherwise ordered, to determine the
  399  propriety of the person’s continued involuntary admission to
  400  residential services based on the criteria in paragraph (8)(b).
  401  The review shall include an assessment of the most appropriate
  402  and least restrictive type of residential placement for the
  403  person. If the person was committed under the criteria in sub
  404  subparagraph (8)(b)3.a., the review must also address whether a
  405  guardian or guardian advocate has been appointed since the
  406  commitment.
  407         (b) A placement resulting from an involuntary admission to
  408  residential services must be reviewed by the court at a hearing
  409  annually, unless a shorter review period is ordered at a
  410  previous hearing. The agency shall provide to the court the
  411  completed review reviews by the qualified evaluator. The review
  412  and hearing must determine whether the person continues to meet
  413  the criteria in paragraph (8)(b) and, if so, whether the person
  414  still requires involuntary placement in a residential setting
  415  and whether the person is receiving adequate care, treatment,
  416  habilitation, and rehabilitation in the residential setting.
  417         (c) The agency shall provide a copy of the review and
  418  reasonable notice of the hearing to the appropriate state
  419  attorney, if applicable, the person, the person’s attorney, and
  420  the person’s guardian or guardian advocate, if appointed.
  421         (d) For purposes of this section, the term “qualified
  422  evaluator” means a psychiatrist licensed under chapter 458 or
  423  chapter 459, or a psychologist licensed under chapter 490, who
  424  has demonstrated to the court an expertise in the diagnosis,
  425  evaluation, and treatment of persons who have an intellectual
  426  disability or autism disabilities.
  427         Section 2. This act shall take effect July 1, 2017.