Florida Senate - 2014                       CS for CS for SB 944
       
       
        
       By the Committees on Criminal Justice; and Health Policy; and
       Senator Sobel
       
       
       
       
       591-03465-14                                           2014944c2
    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
    5         psychotherapeutics for individuals receiving such
    6         medications in the jail before admission; amending s.
    7         916.13, F.S.; providing timeframes within which status
    8         hearings must be held; amending s. 916.145, F.S.;
    9         revising the time for dismissal of certain charges for
   10         defendants that remain incompetent to proceed to
   11         trial; providing exceptions; amending s. 916.15, F.S.;
   12         providing a timeframe within which status hearings
   13         must be held; providing an effective date.
   14          
   15  Be It Enacted by the Legislature of the State of Florida:
   16  
   17         Section 1. Paragraph (a) of subsection (3) of section
   18  916.107, Florida Statutes, is amended to read:
   19         916.107 Rights of forensic clients.—
   20         (3) RIGHT TO EXPRESS AND INFORMED CONSENT.—
   21         (a) A forensic client shall be asked to give express and
   22  informed written consent for treatment. If a client refuses such
   23  treatment as is deemed necessary and essential by the client’s
   24  multidisciplinary treatment team for the appropriate care of the
   25  client, such treatment may be provided under the following
   26  circumstances:
   27         1. In an emergency situation in which there is immediate
   28  danger to the safety of the client or others, such treatment may
   29  be provided upon the written order of a physician for a period
   30  not to exceed 48 hours, excluding weekends and legal holidays.
   31  If, after the 48-hour period, the client has not given express
   32  and informed consent to the treatment initially refused, the
   33  administrator or designee of the civil or forensic facility
   34  shall, within 48 hours, excluding weekends and legal holidays,
   35  petition the committing court or the circuit court serving the
   36  county in which the facility is located, at the option of the
   37  facility administrator or designee, for an order authorizing the
   38  continued treatment of the client. In the interim, the need for
   39  treatment shall be reviewed every 48 hours and may be continued
   40  without the consent of the client upon the continued written
   41  order of a physician who has determined that the emergency
   42  situation continues to present a danger to the safety of the
   43  client or others.
   44         2. In a situation other than an emergency situation, the
   45  administrator or designee of the facility shall petition the
   46  court for an order authorizing necessary and essential treatment
   47  for the client.
   48         a. If the client has been receiving psychotherapeutic
   49  medications at the jail at the time of transfer to the forensic
   50  or civil facility and lacks the capacity to make an informed
   51  decision regarding mental health treatment at the time of
   52  admission, the admitting physician may order continued
   53  administration of psychotherapeutic medications if, in the
   54  clinical judgment of the physician, abrupt cessation of
   55  psychotherapeutic medications could pose a risk to the health or
   56  safety of the client during the time a court order to medicate
   57  is pursued. The administrator or designee of the civil or
   58  forensic facility shall, within 5 days after admission,
   59  excluding weekends and legal holidays, petition the committing
   60  court or the circuit court serving the county in which the
   61  facility is located, at the option of the facility administrator
   62  or designee, for an order authorizing the continued treatment of
   63  a client. The jail physician shall provide a current
   64  psychotherapeutic medication order at the time of transfer to
   65  the forensic or civil facility or upon request of the admitting
   66  physician after the client is evaluated.
   67         b. The court order shall allow such treatment for up to a
   68  period not to exceed 90 days after following the date of the
   69  entry of the order. Unless the court is notified in writing that
   70  the client has provided express and informed consent in writing
   71  or that the client has been discharged by the committing court,
   72  the administrator or designee shall, before the expiration of
   73  the initial 90-day order, petition the court for an order
   74  authorizing the continuation of treatment for another 90 days
   75  90-day period. This procedure shall be repeated until the client
   76  provides consent or is discharged by the committing court.
   77         3. At the hearing on the issue of whether the court should
   78  enter an order authorizing treatment for which a client was
   79  unable to or refused to give express and informed consent, the
   80  court shall determine by clear and convincing evidence that the
   81  client has mental illness, intellectual disability, or autism,
   82  that the treatment not consented to is essential to the care of
   83  the client, and that the treatment not consented to is not
   84  experimental and does not present an unreasonable risk of
   85  serious, hazardous, or irreversible side effects. In arriving at
   86  the substitute judgment decision, the court must consider at
   87  least the following factors:
   88         a. The client’s expressed preference regarding treatment;
   89         b. The probability of adverse side effects;
   90         c. The prognosis without treatment; and
   91         d. The prognosis with treatment.
   92  
   93  The hearing shall be as convenient to the client as may be
   94  consistent with orderly procedure and shall be conducted in
   95  physical settings not likely to be injurious to the client’s
   96  condition. The court may appoint a general or special magistrate
   97  to preside at the hearing. The client or the client’s guardian,
   98  and the representative, shall be provided with a copy of the
   99  petition and the date, time, and location of the hearing. The
  100  client has the right to have an attorney represent him or her at
  101  the hearing, and, if the client is indigent, the court shall
  102  appoint the office of the public defender to represent the
  103  client at the hearing. The client may testify or not, as he or
  104  she chooses, and has the right to cross-examine witnesses and
  105  may present his or her own witnesses.
  106         Section 2. Subsection (2) of section 916.13, Florida
  107  Statutes, is amended to read:
  108         916.13 Involuntary commitment of defendant adjudicated
  109  incompetent.—
  110         (2) A defendant who has been charged with a felony and who
  111  has been adjudicated incompetent to proceed due to mental
  112  illness, and who meets the criteria for involuntary commitment
  113  to the department under the provisions of this chapter, may be
  114  committed to the department, and the department shall retain and
  115  treat the defendant.
  116         (a) Within No later than 6 months after the date of
  117  admission and at the end of any period of extended commitment,
  118  or at any time the administrator or designee has shall have
  119  determined that the defendant has regained competency to proceed
  120  or no longer meets the criteria for continued commitment, the
  121  administrator or designee shall file a report with the court
  122  pursuant to the applicable Florida Rules of Criminal Procedure.
  123         (b) A status hearing must be held within 30 days after the
  124  court receives notification that the defendant is competent to
  125  proceed or no longer meets the criteria for continued
  126  commitment.
  127         Section 3. Section 916.145, Florida Statutes, is amended to
  128  read:
  129         (Substantial rewording of section. See
  130         s. 916.145, F.S., for present text.)
  131         916.145 Dismissal of charges.—
  132         (1) The charges against a defendant adjudicated incompetent
  133  to proceed due to mental illness shall be dismissed without
  134  prejudice to the state if the defendant remains incompetent to
  135  proceed 5 years after such determination, unless the court in
  136  its order specifies its reasons for believing that the defendant
  137  will become competent to proceed within the foreseeable future
  138  and specifies the time within which the defendant is expected to
  139  become competent to proceed. The court may dismiss these charges
  140  between 3 and 5 years after such determination, unless the
  141  charge is:
  142         (a) Arson;
  143         (b) Sexual battery;
  144         (c) Robbery;
  145         (d) Kidnapping;
  146         (e) Aggravated child abuse;
  147         (f) Aggravated abuse of an elderly person or disabled
  148  adult;
  149         (g) Aggravated assault with a deadly weapon;
  150         (h) Murder;
  151         (i) Manslaughter;
  152         (j) Aggravated manslaughter of an elderly person or
  153  disabled adult;
  154         (k) Aggravated manslaughter of a child;
  155         (l) Unlawful throwing, projecting, placing, or discharging
  156  of a destructive device or bomb;
  157         (m) Armed burglary;
  158         (n) Aggravated battery;
  159         (o) Aggravated stalking;
  160         (p) A forcible felony as defined in s. 776.08 and not
  161  listed elsewhere in this subsection;
  162         (q) An offense involving the possession, use, or discharge
  163  of a firearm;
  164         (r) An attempt to commit an offense listed in this
  165  subsection;
  166         (s) An offense allegedly committed by a defendant who has
  167  had a forcible or violent felony conviction within the 5 years
  168  preceding the date of arrest for the nonviolent felony sought to
  169  be dismissed;
  170         (t) An offense allegedly committed by a defendant who,
  171  after having been found incompetent and under court supervision
  172  in a community-based program, is formally charged by a state
  173  attorney with a new felony offense; or
  174         (u) One for which there is an identifiable victim and such
  175  victim has not consented to the dismissal.
  176         (2) This section does not prohibit the state from refiling
  177  dismissed charges if the defendant is declared to be competent
  178  to proceed in the future.
  179         Section 4. Subsection (5) is added to section 916.15,
  180  Florida Statutes, to read:
  181         916.15 Involuntary commitment of defendant adjudicated not
  182  guilty by reason of insanity.—
  183         (5) A status hearing must be held within 30 days after the
  184  court receives notification that the defendant no longer meets
  185  the criteria for continued commitment.
  186         Section 5. This act shall take effect July 1, 2014.