HB 465

1	A bill to be entitled
2	An act relating to forensic client services; amending s.
3	916.105, F.S.; providing legislative intent that forensic
4	client services be provided to a person charged with a
5	misdemeanor as well as with a felony; amending s. 916.106,
6	F.S.; redefining the term "court" to include the county
7	court and the term "forensic client" to include a person
8	charged with a misdemeanor; amending ss. 916.107, 916.13,
9	and 916.302, F.S., relating to the rights of forensic
10	clients, the involuntary commitment of a defendant with
11	mental illness, and the involuntary commitment of a
12	defendant with mental retardation or autism; conforming
13	provisions to changes made by the act; providing an
14	effective date.
15
16	Be It Enacted by the Legislature of the State of Florida:
17
18	Section 1.  Subsection (1) of section 916.105, Florida
19	Statutes, is amended to read:
20	916.105  Legislative intent.--
21	(1)  It is the intent of the Legislature that the
22	Department of Children and Family Services establish, locate,
23	and maintain separate and secure facilities and programs for the
24	treatment or training of defendants who are charged with a
25	felony or a misdemeanor and who have been found to be
26	incompetent to proceed due to their mental illness, retardation,
27	or autism, or who have been acquitted of felonies or
28	misdemeanors by reason of insanity, and who, while still under
29	the jurisdiction of the committing court, are committed to the
30	department under the provisions of this chapter. The separate,
31	secure facilities must shall be sufficient to accommodate the
32	number of defendants committed under the conditions noted above,
33	except those defendants found by the department to be
34	appropriate for treatment or training in a civil treatment
35	facility or program. The Such secure facilities shall be
36	designed and administered so that ingress and egress, together
37	with other requirements of this chapter, may be strictly
38	controlled by staff responsible for security in order to protect
39	the defendant, facility personnel, other clients, and citizens
40	in adjacent communities.
41	Section 2.  Subsections (4) and (7) of section 916.106,
42	Florida Statutes, are amended to read:
43	916.106  Definitions.--For the purposes of this chapter:
44	(4)  "Court" means the circuit or county court.
45	(7)  "Forensic client" or "client" means any defendant who
46	is mentally ill, retarded, or autistic and who is committed to
47	the department under pursuant to this chapter and:
48	(a)  Who has been determined to need treatment for a mental
49	illness or training for retardation or autism;
50	(b)  Who has been found incompetent to proceed on a felony
51	or misdemeanor offense or has been acquitted of a felony or
52	misdemeanor offense by reason of insanity;
53	(c)  Who has been determined by the department to:
54	1.  Be dangerous to himself or herself or others; or
55	2.  Present a clear and present potential to escape; and
56	(d)  Who is an adult or a juvenile prosecuted as an adult.
57	Section 3.  Subsections (1) and (3) of section 916.107,
58	Florida Statutes, are amended to read:
59	916.107  Rights of forensic clients.--
60	(1)  RIGHT TO INDIVIDUAL DIGNITY.--
61	(a)  The policy of the state is that the individual dignity
62	of the client shall be respected at all times and upon all
63	occasions, including any occasion when the forensic client is
64	detained, transported, or treated. Defendants who are mentally
65	ill, retarded, or autistic and who are charged with committing
66	felonies or misdemeanors shall receive appropriate treatment or
67	training. In a criminal case involving a defendant who has been
68	adjudicated incompetent to proceed or not guilty by reason of
69	insanity, a jail may be used as an emergency facility for up to
70	15 days from the date the department receives a completed copy
71	of the commitment order containing the documentation required by
72	Rules 3.212 and 3.217, Florida Rules of Criminal Procedure. For
73	a defendant who is mentally ill, retarded, or autistic, who is
74	held in a jail, and who has been adjudicated incompetent to
75	proceed or not guilty by reason of insanity, evaluation and
76	treatment or training shall be provided in the jail by the local
77	public receiving facility for mental health services or by the
78	developmental services program for persons with retardation or
79	autism, the client's physician or psychologist, or any other
80	appropriate program until the client is transferred to the
81	custody of the department.
82	(b)  Mentally ill, retarded, or autistic defendants who are
83	committed to the department under pursuant to this chapter and
84	who are initially placed in, or subsequently transferred to, a
85	civil facility as described in part I of chapter 394 or to a
86	residential facility as described in chapter 393 shall have the
87	same rights as other persons committed to these facilities for
88	as long as they remain there.
89	(3)  RIGHT TO EXPRESS AND INFORMED CONSENT.--
90	(a)  A client committed to the department under pursuant to
91	this chapter act shall be asked to give express and informed
92	written consent for treatment. If a client in a forensic
93	facility refuses such treatment as is deemed necessary by the
94	client's multidisciplinary treatment team at the forensic
95	facility for the appropriate care of the client and the safety
96	of the client or others, the such treatment may be provided
97	under the following circumstances:
98	1.  In an emergency situation in which there is immediate
99	danger to the safety of the client or others, the such treatment
100	may be provided upon the written order of a physician for a
101	period not to exceed 48 hours, excluding weekends and legal
102	holidays. If, after the 48-hour period, the client has not given
103	express and informed consent to the treatment initially refused,
104	the administrator or designee of the forensic facility shall,
105	within 48 hours, excluding weekends and legal holidays, petition
106	the committing court or the circuit or county court serving the
107	county in which the facility is located, at the option of the
108	facility administrator or designee, for an order authorizing the
109	continued treatment of the client. In the interim, treatment may
110	be continued without the consent of the client upon the
111	continued written order of a physician who has determined that
112	the emergency situation continues to present a danger to the
113	safety of the client or others.
114	2.  In a situation other than an emergency situation, the
115	administrator or designee of the forensic facility shall
116	petition the circuit or county court for an order authorizing
117	the treatment to the client. The order shall allow such
118	treatment for a period not to exceed 90 days from the date of
119	the entry of the order. Unless the court is notified in writing
120	that the client has provided express and informed consent in
121	writing or that the client has been discharged by the committing
122	court, the administrator or designee shall, before prior to the
123	expiration of the initial 90-day order, petition the court for
124	an order authorizing the continuation of treatment for another
125	90-day period. This procedure shall be repeated until the client
126	provides consent or is discharged by the committing court.
127	3.  At the hearing on the issue of whether the court should
128	enter an order authorizing treatment for which a client has
129	refused to give express and informed consent, the court shall
130	determine by clear and convincing evidence that the client is
131	mentally ill, retarded, or autistic as defined in this chapter,
132	that the treatment not consented to is essential to the care of
133	the client, and that the treatment not consented to is not
134	experimental and does not present an unreasonable risk of
135	serious, hazardous, or irreversible side effects. In arriving at
136	the substitute judgment decision, the court must consider at
137	least the following factors:
138	a.  The client's expressed preference regarding treatment;
139	b.  The probability of adverse side effects;
140	c.  The prognosis without treatment; and
141	d.  The prognosis with treatment.
142
143	The hearing shall be as convenient to the client as may be
144	consistent with orderly procedure and shall be conducted in
145	physical settings not likely to be injurious to the client's
146	condition. The court may appoint a general or special magistrate
147	to preside at the hearing. The client or the client's guardian,
148	and the representative, shall be provided with a copy of the
149	petition and the date, time, and location of the hearing. The
150	client has the right to have an attorney represent him or her at
151	the hearing, and, if the client is indigent, the court shall
152	appoint the office of the public defender to represent the
153	client at the hearing. The client may testify or not, as he or
154	she chooses, and has the right to cross-examine witnesses and
155	may present his or her own witnesses.
156	(b)  In addition to the provisions of paragraph (a), in the
157	case of surgical procedures requiring the use of a general
158	anesthetic or electroconvulsive treatment or nonpsychiatric
159	medical procedures, and prior to performing the procedure,
160	written permission shall be obtained from the client, if the
161	client is legally competent, from the parent or guardian of a
162	minor client, or from the guardian of an incompetent client. The
163	administrator or designee of the forensic facility or a
164	designated representative may, with the concurrence of the
165	client's attending physician, authorize emergency surgical or
166	nonpsychiatric medical treatment if the such treatment is deemed
167	lifesaving or for a situation threatening serious bodily harm to
168	the client and permission of the client or the client's guardian
169	cannot be obtained.
170	Section 4.  Section 916.13, Florida Statutes, is amended to
171	read:
172	916.13  Involuntary commitment of defendant adjudicated
173	incompetent.--
174	(1)  Every defendant who is charged with a felony or
175	misdemeanor and who is adjudicated incompetent to proceed, under
176	pursuant to the applicable Florida Rules of Criminal Procedure,
177	may be involuntarily committed for treatment upon a finding by
178	the court of clear and convincing evidence that:
179	(a)  The defendant is mentally ill and because of the
180	mental illness:
181	1.  The defendant is manifestly incapable of surviving
182	alone or with the help of willing and responsible family or
183	friends, including available alternative services, and, without
184	treatment, the defendant is likely to suffer from neglect or
185	refuse to care for herself or himself and such neglect or
186	refusal poses a real and present threat of substantial harm to
187	the defendant's well-being; and
188	2.  There is a substantial likelihood that in the near
189	future the defendant will inflict serious bodily harm on herself
190	or himself or another person, as evidenced by recent behavior
191	causing, attempting, or threatening such harm;
192	(b)  All available, less restrictive treatment
193	alternatives, including treatment in community residential
194	facilities or community inpatient or outpatient settings, which
195	would offer an opportunity for improvement of the defendant's
196	condition have been judged to be inappropriate; and
197	(c)  There is a substantial probability that the mental
198	illness causing the defendant's incompetence will respond to
199	treatment and the defendant will regain competency to proceed in
200	the reasonably foreseeable future.
201	(2)  A defendant who has been charged with a felony or
202	misdemeanor and who has been adjudicated incompetent to proceed,
203	and who meets the criteria for commitment to the department
204	under the provisions of this chapter, may be committed to the
205	department, and the department shall retain and treat the
206	defendant. No later than 6 months after the date of admission or
207	at the end of any period of extended commitment, or at any time
208	the administrator or designee shall have determined that the
209	defendant has regained competency to proceed or no longer meets
210	the criteria for continued commitment, the administrator or
211	designee shall file a report with the court under pursuant to
212	the applicable Florida Rules of Criminal Procedure.
213	Section 5.  Subsections (1) and (2) of section 916.302,
214	Florida Statutes, are amended to read:
215	916.302  Involuntary commitment of defendant determined to
216	be incompetent to proceed due to retardation or autism.--
217	(1)  CRITERIA.--Every defendant who is charged with a
218	felony or misdemeanor and who is found to be incompetent to
219	proceed under, pursuant to this chapter and the applicable
220	Florida Rules of Criminal Procedure, may be involuntarily
221	committed for training upon a finding by the court of clear and
222	convincing evidence that:
223	(a)  The defendant is retarded or autistic;
224	(b)  There is a substantial likelihood that in the near
225	future the defendant will inflict serious bodily harm on himself
226	or herself or another person, as evidenced by recent behavior
227	causing, attempting, or threatening such harm;
228	(c)  All available, less restrictive alternatives,
229	including services provided in community residential facilities
230	or other community settings, which would offer an opportunity
231	for improvement of the condition have been judged to be
232	inappropriate; and
233	(d)  There is a substantial probability that the
234	retardation or autism causing the defendant's incompetence will
235	respond to training and the defendant will regain competency to
236	proceed in the reasonably foreseeable future.
237	(2)  ADMISSION TO A FACILITY.--
238	(a)  A defendant who has been charged with a felony or
239	misdemeanor and who is found to be incompetent to proceed, and
240	who meets the criteria for commitment to the department under
241	the provisions of this chapter, shall be committed to the
242	department, and the department shall retain and serve the
243	defendant. No later than 6 months after the date of admission or
244	at the end of any period of extended commitment or at any time
245	the administrator or designee shall have determined that the
246	defendant has regained competency to proceed or no longer meets
247	the criteria for continued commitment, the administrator or
248	designee shall file a report with the court under pursuant to
249	this chapter and the applicable Florida Rules of Criminal
250	Procedure.
251	(b)  A defendant determined to be incompetent to proceed
252	due to retardation or autism may be ordered by a circuit court
253	into a secure facility designated by the department for retarded
254	or autistic defendants.
255	(c)  The department may transfer a defendant from a
256	designated secure facility to another designated secure facility
257	and must notify the court of the transfer within 30 days after
258	the transfer is completed.
259	(d)  The department may not transfer a defendant from a
260	designated secure facility to a nonsecure facility without first
261	notifying the court, and all parties, 30 days before the
262	proposed transfer. If the court objects to the proposed transfer
263	to a nonsecure facility, it must send its written objection to
264	the department. The department may transfer the defendant unless
265	it receives the written objection from the court within 30 days
266	after the court's receipt of the notice of the proposed
267	transfer.
268	Section 6.  This act shall take effect July 1, 2006.

CODING: Words stricken are deletions; words underlined are additions.