Florida Senate - 2012                                    SB 1712
       
       
       
       By Senator Storms
       
       
       
       
       10-01329B-12                                          20121712__
    1                        A bill to be entitled                      
    2         An act relating to mental health; amending s. 916.107,
    3         F.S.; authorizing, in certain circumstances,
    4         continuation of psychotherapeutic medication for
    5         individuals receiving such medication in a jail before
    6         admission to a psychiatric or forensic facility;
    7         amending s. 916.111, F.S.; requiring forensic
    8         evaluator training for mental health experts appointed
    9         to evaluate defendants for competency to proceed or
   10         for sanity at the time of the commission of the
   11         offense; amending s. 916.115, F.S.; requiring the
   12         Department of Children and Family Services to maintain
   13         and annually provide the courts with a forensic
   14         evaluator registry; amending s. 916.13, F.S.;
   15         providing timeframes for competency hearings to be
   16         held; amending s. 916.15, F.S.; providing timeframes
   17         for commitment hearings to be held; amending s.
   18         985.19, F.S.; standardizing the protocols, procedures,
   19         and criteria used in reporting expert findings in
   20         determining competency in juvenile cases; revising
   21         requirements related to the forensic evaluator
   22         training program that appointed experts must complete;
   23         requiring experts after a specified date to have
   24         completed such training; providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Paragraph (a) of subsection (3) of section
   29  916.107, Florida Statutes, is amended to read:
   30         916.107 Rights of forensic clients.—
   31         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
   32         (a) A forensic client shall be asked to give express and
   33  informed written consent for treatment. If a client refuses such
   34  treatment as is deemed necessary and essential by the client’s
   35  multidisciplinary treatment team for the appropriate care of the
   36  client, such treatment may be provided under the following
   37  circumstances:
   38         1. In an emergency situation in which there is immediate
   39  danger to the safety of the client or others, such treatment may
   40  be provided upon the written order of a physician for a period
   41  not to exceed 48 hours, excluding weekends and legal holidays.
   42  If, after the 48-hour period, the client has not given express
   43  and informed consent to the treatment initially refused, the
   44  administrator or designee of the civil or forensic facility
   45  shall, within 48 hours, excluding weekends and legal holidays,
   46  petition the committing court or the circuit court serving the
   47  county in which the facility is located, at the option of the
   48  facility administrator or designee, for an order authorizing the
   49  continued treatment of the client. In the interim, the need for
   50  treatment shall be reviewed every 48 hours and may be continued
   51  without the consent of the client upon the continued written
   52  order of a physician who has determined that the emergency
   53  situation continues to present a danger to the safety of the
   54  client or others.
   55         2. In a situation other than an emergency situation, the
   56  administrator or designee of the facility shall petition the
   57  court for an order authorizing necessary and essential treatment
   58  for the client.
   59         a. If the client has been receiving psychotherapeutic
   60  medication at the jail at the time of transfer to the forensic
   61  or civil facility and lacks the capacity to make an informed
   62  decision regarding mental health treatment at the time of
   63  admission, the admitting physician may order continued
   64  administration of the psychotherapeutic medication if, in the
   65  clinical judgment of the physician, abrupt cessation of the
   66  psychotherapeutic medication could cause a risk to the health
   67  and safety of the client during the time a court order to
   68  medicate is pursued. The jail physician shall provide a current
   69  psychotherapeutic medication order at the time of transfer to
   70  the forensic or civil facility.
   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 prior to the
   77  expiration of the initial 90-day order, petition the court for
   78  an order authorizing the continuation of treatment for another
   79  90 days 90-day period. This procedure shall be repeated until
   80  the client provides consent or is discharged by the committing
   81  court.
   82         3. At the hearing on the issue of whether the court should
   83  enter an order authorizing treatment for which a client was
   84  unable to or refused to give express and informed consent, the
   85  court shall determine by clear and convincing evidence that the
   86  client has mental illness, retardation, or autism, that the
   87  treatment not consented to is essential to the care of the
   88  client, and that the treatment not consented to is not
   89  experimental and does not present an unreasonable risk of
   90  serious, hazardous, or irreversible side effects. In arriving at
   91  the substitute judgment decision, the court must consider at
   92  least the following factors:
   93         a. The client’s expressed preference regarding treatment;
   94         b. The probability of adverse side effects;
   95         c. The prognosis without treatment; and
   96         d. The prognosis with treatment.
   97  
   98  The hearing shall be as convenient to the client as may be
   99  consistent with orderly procedure and shall be conducted in
  100  physical settings not likely to be injurious to the client’s
  101  condition. The court may appoint a general or special magistrate
  102  to preside at the hearing. The client or the client’s guardian,
  103  and the representative, shall be provided with a copy of the
  104  petition and the date, time, and location of the hearing. The
  105  client has the right to have an attorney represent him or her at
  106  the hearing, and, if the client is indigent, the court shall
  107  appoint the office of the public defender to represent the
  108  client at the hearing. The client may testify or not, as he or
  109  she chooses, and has the right to cross-examine witnesses and
  110  may present his or her own witnesses.
  111         Section 2. Section 916.111, Florida Statutes, is amended to
  112  read:
  113         916.111 Training of mental health experts.—
  114         (1) The evaluation of defendants for competency to proceed
  115  or for sanity at the time of the commission of the offense shall
  116  be conducted in such a way as to ensure uniform application of
  117  the criteria enumerated in Rules 3.210 and 3.216, Florida Rules
  118  of Criminal Procedure.
  119         (2) Appointed experts shall have completed forensic
  120  evaluator training as specified in this section.
  121         (3) A forensic evaluator training course approved by the
  122  department must be provided at least annually to ensure that
  123  mental health professionals have the opportunity to be placed on
  124  the department’s forensic evaluator registry.
  125         (a) Beginning July 1, 2013, if an expert chooses to remain
  126  on the registry, he or she must have completed or retaken the
  127  required training course within the previous 5 years. Those who
  128  have not completed the training course must be removed from the
  129  registry and may not conduct evaluations for the courts.
  130         (b) A mental health professional who has completed the
  131  training course within the previous 5 years must maintain
  132  documentation of completion of the required training course and
  133  provide current contact information to the department.
  134         (4) The department shall develop, and may contract with
  135  accredited institutions:
  136         (a)(1) To provide:
  137         1.(a) A plan for training mental health professionals to
  138  perform forensic evaluations and to standardize the criteria and
  139  procedures to be used in these evaluations;
  140         2.(b) Clinical protocols and procedures based upon the
  141  criteria of Rules 3.210 and 3.216, Florida Rules of Criminal
  142  Procedure; and
  143         3.(c) Training for mental health professionals in the
  144  application of these protocols and procedures in performing
  145  forensic evaluations and providing reports to the courts; and
  146         (b)(2) To compile and maintain the necessary information
  147  for evaluating the success of this program, including the number
  148  of persons trained, the cost of operating the program, and the
  149  effect on the quality of forensic evaluations as measured by
  150  appropriateness of admissions to state forensic facilities and
  151  to community-based care programs.
  152         Section 3. Paragraph (b) of subsection (1) of section
  153  916.115, Florida Statutes, is amended to read:
  154         916.115 Appointment of experts.—
  155         (1) The court shall appoint no more than three experts to
  156  determine the mental condition of a defendant in a criminal
  157  case, including competency to proceed, insanity, involuntary
  158  placement, and treatment. The experts may evaluate the defendant
  159  in jail or in another appropriate local facility or in a
  160  facility of the Department of Corrections.
  161         (b) The department shall maintain and annually provide the
  162  courts with a forensic evaluator registry list of available
  163  mental health professionals who have completed the approved
  164  training as experts.
  165         Section 4. Subsection (2) of section 916.13, Florida
  166  Statutes, is amended to read:
  167         916.13 Involuntary commitment of defendant adjudicated
  168  incompetent.—
  169         (2) A defendant who has been charged with a felony and who
  170  has been adjudicated incompetent to proceed due to mental
  171  illness, and who meets the criteria for involuntary commitment
  172  to the department under the provisions of this chapter, may be
  173  committed to the department, and the department shall retain and
  174  treat the defendant.
  175         (a) Within No later than 6 months after the date of
  176  admission and at the end of any period of extended commitment,
  177  or at any time the administrator or designee has shall have
  178  determined that the defendant has regained competency to proceed
  179  or no longer meets the criteria for continued commitment, the
  180  administrator or designee shall file a report with the court
  181  pursuant to the applicable Florida Rules of Criminal Procedure.
  182         (b) A competency hearing must be held within 30 days after
  183  a court receives notification that the defendant is competent to
  184  proceed or no longer meets the criteria for continued
  185  commitment.
  186         Section 5. Subsection (5) is added to section 916.15,
  187  Florida Statutes, to read:
  188         916.15 Involuntary commitment of defendant adjudicated not
  189  guilty by reason of insanity.—
  190         (5) The commitment hearing must be held within 30 days
  191  after the court receives notification that the defendant no
  192  longer meets the criteria for continued commitment.
  193         Section 6. Subsection (1) of section 985.19, Florida
  194  Statutes, is amended, subsection (7) is renumbered as subsection
  195  (8), and a new subsection (7) is added to that section, to read:
  196         985.19 Incompetency in juvenile delinquency cases.—
  197         (1) If, at any time prior to or during a delinquency case,
  198  the court has reason to believe that the child named in the
  199  petition may be incompetent to proceed with the hearing, the
  200  court on its own motion may, or on the motion of the child’s
  201  attorney or state attorney must, stay all proceedings and order
  202  an evaluation of the child’s mental condition.
  203         (a) Any motion questioning the child’s competency to
  204  proceed must be served upon the child’s attorney, the state
  205  attorney, the attorneys representing the Department of Juvenile
  206  Justice, and the attorneys representing the Department of
  207  Children and Family Services. Thereafter, any motion, notice of
  208  hearing, order, or other legal pleading relating to the child’s
  209  competency to proceed with the hearing must be served upon the
  210  child’s attorney, the state attorney, the attorneys representing
  211  the Department of Juvenile Justice, and the attorneys
  212  representing the Department of Children and Family Services.
  213         (b) All determinations of competency must shall be made at
  214  a hearing, with findings of fact based on an evaluation of the
  215  child’s mental condition made by at least not less than two but
  216  not nor more than three experts appointed by the court. The
  217  basis for the determination of incompetency must be specifically
  218  stated in the evaluation. In addition, a recommendation as to
  219  whether residential or nonresidential treatment or training is
  220  required must be included in the evaluation. Experts appointed
  221  by the court to determine the mental condition of a child shall
  222  be allowed reasonable fees for services rendered. State
  223  employees may be paid expenses pursuant to s. 112.061. The fees
  224  shall be taxed as costs in the case.
  225         (c) A child is competent to proceed if the child has
  226  sufficient present ability to consult with counsel with a
  227  reasonable degree of rational understanding and the child has a
  228  rational and factual understanding of the present proceedings.
  229         (d) The basis for the determination of a child’s mental
  230  condition must be specifically stated in the expert’s competency
  231  evaluation report and must include written findings that:
  232         1. Identify the specific matters referred for evaluation.
  233         2. Identify the sources of information used by the expert.
  234         3. Describe the procedures, techniques, and diagnostic
  235  tests used in the examination to determine the basis of the
  236  child’s mental condition.
  237         4. Address the child’s capacity to:
  238         a. Appreciate the charges or allegations against the child.
  239         b. Appreciate the range and nature of possible penalties
  240  that may be imposed in the proceedings against the child, if
  241  applicable.
  242         c. Understand the adversarial nature of the legal process.
  243         d. Disclose to counsel facts pertinent to the proceedings
  244  at issue.
  245         e. Display appropriate courtroom behavior.
  246         f. Testify relevantly.
  247         5. Present the factual basis for the expert’s clinical
  248  findings and opinions of the child’s mental condition.
  249         (e) If the evaluator determines the child to be incompetent
  250  to proceed to trial, the evaluator must report on the mental
  251  disorder that forms the basis of the incompetency.
  252         (f) The expert’s factual basis of his or her clinical
  253  findings and opinions must be supported by the diagnostic
  254  criteria found in the most recent edition of the Diagnostic and
  255  Statistical Manual of the American Psychiatric Association (DSM
  256  IV) and must be presented in a section of his or her competency
  257  evaluation report that shall be identified as a summary of
  258  findings. This section must include:
  259         1. The day, month, year, and length of time of the face-to
  260  face diagnostic clinical interview to determine the child’s
  261  mental condition.
  262         2. A statement that identifies the DSM-IV clinical name and
  263  associated diagnostic code for the specific mental disorder that
  264  forms the basis of the child’s incompetency.
  265         3. A statement of how the child would benefit from
  266  competency restoration services in the community or in a secure
  267  residential treatment facility.
  268         4. An assessment of the probable duration of the treatment
  269  to restore competence, and the probability that the child will
  270  attain competence to proceed in the foreseeable future.
  271         5. A description of recommended treatment or education
  272  appropriate for the mental disorder.
  273         (g)(c) All court orders determining incompetency must
  274  include specific written findings by the court as to the nature
  275  of the incompetency and whether the child requires a secure or
  276  nonsecure treatment or training environment environments.
  277         (h)(d) For competency incompetency evaluations related to
  278  mental illness, the Department of Children and Family Services
  279  shall maintain and annually provide the courts with a forensic
  280  evaluator registry list of available mental health professionals
  281  who have completed the approved a training as experts pursuant
  282  to this section program approved by the Department of Children
  283  and Family Services to perform the evaluations.
  284         (i)(e) For competency incompetency evaluations related to
  285  mental retardation or autism, the court shall order the Agency
  286  for Persons with Disabilities to examine the child to determine
  287  if the child meets the definition of “retardation” or “autism”
  288  in s. 393.063 and provide a clinical opinion as to, if so,
  289  whether the child is competent to proceed with delinquency
  290  proceedings.
  291         (f) A child is competent to proceed if the child has
  292  sufficient present ability to consult with counsel with a
  293  reasonable degree of rational understanding and the child has a
  294  rational and factual understanding of the present proceedings.
  295  The report must address the child’s capacity to:
  296         1. Appreciate the charges or allegations against the child.
  297         2. Appreciate the range and nature of possible penalties
  298  that may be imposed in the proceedings against the child, if
  299  applicable.
  300         3. Understand the adversarial nature of the legal process.
  301         4. Disclose to counsel facts pertinent to the proceedings
  302  at issue.
  303         5. Display appropriate courtroom behavior.
  304         6. Testify relevantly.
  305         (j)(g) Immediately upon the filing of the court order
  306  finding a child incompetent to proceed, the clerk of the court
  307  shall notify the Department of Children and Family Services and
  308  the Agency for Persons with Disabilities and fax or hand deliver
  309  to the department and to the agency a referral packet that
  310  includes, at a minimum, the court order, the charging documents,
  311  the petition, and the court-appointed evaluator’s reports.
  312         (k)(h) After placement of the child in the appropriate
  313  setting, the Department of Children and Family Services in
  314  consultation with the Agency for Persons with Disabilities, as
  315  appropriate, must, within 30 days after placement of the child,
  316  prepare and submit to the court a treatment or training plan for
  317  the child’s restoration of competency. A copy of the plan must
  318  be served upon the child’s attorney, the state attorney, and the
  319  attorneys representing the Department of Juvenile Justice.
  320         (7) Effective July 1, 2013, court-appointed experts must
  321  have completed forensic evaluator training approved by the
  322  Department of Children and Family Services and comply with these
  323  additional requirements:
  324         (a) If an expert chooses to remain on the registry, the
  325  expert must have completed or retaken the required training
  326  course within the previous 5 years. An expert who has not
  327  completed the required training within the previous 5 years must
  328  be removed from the registry and may not conduct competency
  329  evaluations for the courts.
  330         (b) A mental health professional who has completed the
  331  training course within the previous 5 years must maintain
  332  documentation of having completed the required training and
  333  provide current contact information to the Department of
  334  Children and Family Services.
  335         Section 7. This act shall take effect July 1, 2012.