F.S. 916.10 Short title.
This chapter may be cited as the “Forensic Client Services Act.”
MENTALLY ILL AND INTELLECTUALLY DISABLED DEFENDANTS
F.S. Ch. 916
in effectF.S. 916.12 Mental competence to proceed.
(1)
A defendant is incompetent to proceed within the meaning of this chapter if the defendant does not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her or him.
(2)
Mental health experts appointed pursuant to s. 916.115 shall first determine whether the defendant has a mental illness and, if so, consider the factors related to the issue of whether the defendant meets the criteria for competence to proceed as described in subsection (1). A defendant must be evaluated by no fewer than two experts before the court commits the defendant or takes other action authorized by this chapter or the Florida Rules of Criminal Procedure, except if one expert finds that the defendant is incompetent to proceed and the parties stipulate to that finding, the court may commit the defendant or take other action authorized by this chapter or the rules without further evaluation or hearing, or the court may appoint no more than two additional experts to evaluate the defendant. Notwithstanding any stipulation by the state and the defendant, the court may require a hearing with testimony from the expert or experts before ordering the commitment of a defendant.
(3)
In considering the issue of competence to proceed, an examining expert shall first consider and specifically include in his or her report the defendant’s capacity to:
(a)
Appreciate the charges or allegations against the defendant.
(b)
Appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant.
(c)
Understand the adversarial nature of the legal process.
(d)
Disclose to counsel facts pertinent to the proceedings at issue.
(e)
Manifest appropriate courtroom behavior.
(f)
Testify relevantly.
In addition, an examining expert shall consider and include in his or her report any other factor deemed relevant by the expert.
(4)
If an expert finds that the defendant is incompetent to proceed, the expert shall report on any recommended treatment for the defendant to attain competence to proceed. In considering the issues relating to treatment, the examining expert shall specifically report on:
(a)
The mental illness causing the incompetence.
(b)
The completion of a clinical assessment by approved mental health experts trained by the department to ensure safety of the patient and the community.
(c)
The treatment or treatments appropriate for the mental illness of the defendant and an explanation of each of the possible treatment alternatives, including, at a minimum, mental health services, treatment services, rehabilitative services, support services, and case management services as described in s. 394.67, which may be provided by or within multidisciplinary community treatment teams, such as Florida Assertive Community Treatment, conditional release programs, outpatient services or intensive outpatient treatment programs, and supportive employment and supportive housing opportunities in treating and supporting the recovery of the patient.
(d)
The availability of acceptable treatment and, if treatment is available in the community, the expert shall so state in the report. In determining what acceptable treatments are available in the community, the expert shall, at a minimum, use current information or resources on less restrictive treatment alternatives, as described in paragraph (c) and those obtained from forensic evaluators training provided by the department.
(e)
The likelihood of the defendant’s attaining competence under the treatment recommended, an assessment of the probable duration of the treatment required to restore competence, and the probability that the defendant will attain competence to proceed in the foreseeable future.
The examining expert’s report to the court shall include a full and detailed explanation regarding why the alternative treatment options referenced in the evaluation are insufficient to meet the needs of the defendant.
(5)
A defendant who, because of psychotropic medication, is able to understand the nature of proceedings and assist in the defendant’s own defense shall not automatically be deemed incompetent to proceed simply because the defendant’s satisfactory mental functioning is dependent upon such medication. As used in this subsection, “psychotropic medication” means any drug or compound used to treat mental or emotional disorders affecting the mind, behavior, intellectual functions, perception, moods, or emotions and includes antipsychotic, antidepressant, antimanic, and antianxiety drugs.
F.S. 916.13 Involuntary commitment of defendant adjudicated incompetent.
(1)
Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a)
The defendant has a mental illness and because of the mental illness:
1.
The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being; or
2.
There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b)
All available, less restrictive treatment alternatives, including treatment in community residential facilities, community inpatient or outpatient settings, and any other mental health services, treatment services, rehabilitative services, support services, and case management services as described in s. 394.67, which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(c)
There is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.
Before issuing a commitment order, the court shall review the examining expert’s report to ensure alternative treatment options have been fully considered and found insufficient to meet the needs of the defendant.
(2)
A defendant who has been charged with a felony and who has been adjudicated incompetent to proceed due to mental illness, and who meets the criteria for involuntary commitment under this chapter, may be committed to the department, and the department shall retain and treat the defendant.
(a)
Immediately after receipt of a completed copy of the court commitment order containing all documentation required by the applicable Florida Rules of Criminal Procedure, the department shall request all medical information relating to the defendant from the jail. The jail shall provide the department with all medical information relating to the defendant within 3 business days after receipt of the department’s request or at the time the defendant enters the physical custody of the department, whichever is earlier.
(b)
Within 60 days after the date of admission and at the end of any period of extended commitment, or at any time the administrator or his or her designee determines that the defendant has regained competency to proceed or no longer meets the criteria for continued commitment, the administrator or designee shall file a report with the court pursuant to the applicable Florida Rules of Criminal Procedure.
(c)1.
If the department determines at any time that a defendant will not or is unlikely to regain competency to proceed, the department shall, within 30 days after the determination, complete and submit a competency evaluation report to the circuit court to determine if the defendant meets the criteria for involuntary civil commitment under s. 394.467. A qualified professional, as defined in s. 394.455, must sign the competency evaluation report for the circuit court under penalty of perjury. A copy of the report shall be provided, at a minimum, to the court, state attorney, and counsel for the defendant before initiating any transfer of the defendant back to the committing jurisdiction.
2.
For purposes of this paragraph, the term “competency evaluation report to the circuit court” means a report by the department regarding a defendant’s incompetence to proceed in a criminal proceeding due to mental illness as set forth in this section. The report shall include, at a minimum, the following regarding the defendant:
a.
A description of mental, emotional, and behavioral disturbances.
b.
An explanation to support the opinion of incompetence to proceed.
c.
The rationale to support why the defendant is unlikely to gain competence to proceed in the foreseeable future.
d.
A clinical opinion regarding whether the defendant no longer meets the criteria for involuntary forensic commitment pursuant to this section.
e.
A recommendation on whether the defendant meets the criteria for involuntary services pursuant to s. 394.467.
(d)
The defendant must be transported, in accordance with s. 916.107, to the committing court’s jurisdiction within 7 days after notification that the defendant is competent to proceed or no longer meets the criteria for continued commitment. A determination on the issue of competency must be made at a hearing within 30 days of the notification. If the defendant is receiving psychotropic medication at a mental health facility at the time he or she is discharged and transferred to the jail, the administering of such medication must continue unless the jail physician documents the need to change or discontinue it. To ensure continuity of care, the referring mental health facility must transfer the patient with up to 30 days of medications and assist in discharge planning with medical teams at the receiving county jail. The jail and department physicians shall collaborate to ensure that medication changes do not adversely affect the defendant’s mental health status or his or her ability to continue with court proceedings; however, the final authority regarding the administering of medication to an inmate in jail rests with the jail physician. Notwithstanding this paragraph, a defendant who meets the criteria for involuntary examination pursuant to s. 394.463 as determined by an independent clinical opinion shall appear remotely for the hearing. Court witnesses may appear remotely.
F.S. 916.14 Statute of limitations; former jeopardy.
The statute of limitations shall not be applicable to criminal charges dismissed because of the incompetency of the defendant to proceed. If a defendant is declared incompetent to proceed during trial and afterwards is declared competent to proceed, the defendant’s other, uncompleted trial shall not constitute former jeopardy.
F.S. 916.15 Involuntary commitment of defendant adjudicated not guilty by reason of insanity.
(1)
The determination of whether a defendant is not guilty by reason of insanity shall be determined in accordance with Rule 3.217, Florida Rules of Criminal Procedure.
(2)
A defendant who is acquitted of criminal charges because of a finding of not guilty by reason of insanity may be involuntarily committed pursuant to such finding if the defendant has a mental illness and, because of the illness, is manifestly dangerous to himself or herself or others.
(3)(a)
Every defendant acquitted of criminal charges by reason of insanity and found to meet the criteria for involuntary commitment may be committed and treated in accordance with the provisions of this section and the applicable Florida Rules of Criminal Procedure.
(b)
Immediately after receipt of a completed copy of the court commitment order containing all documentation required by the applicable Florida Rules of Criminal Procedure, the department shall request all medical information relating to the defendant from the jail. The jail shall provide the department with all medical information relating to the defendant within 3 business days after receipt of the department’s request or at the time the defendant enters the physical custody of the department, whichever is earlier.
(c)
The department shall admit a defendant so adjudicated to an appropriate facility or program for treatment and shall retain and treat such defendant. No later than 6 months after the date of admission, prior to the end of any period of extended commitment, or at any time that the administrator or his or her designee determines that the defendant no longer meets the criteria for continued commitment placement, the administrator or designee shall file a report with the court pursuant to the applicable Florida Rules of Criminal Procedure.
(4)
In all proceedings under this section, both the defendant and the state shall have the right to a hearing before the committing court. Evidence at such hearing may be presented by the hospital administrator or the administrator’s designee as well as by the state and the defendant. The defendant shall have the right to counsel at any such hearing. In the event that a defendant is determined to be indigent pursuant to s. 27.52, the public defender shall represent the defendant. The parties shall have access to the defendant’s records at the treating facilities and may interview or depose personnel who have had contact with the defendant at the treating facilities.
(5)
The commitment hearing shall be held within 30 days after the court receives notification that the defendant no longer meets the criteria for continued commitment. The defendant must be transported to the committing court’s jurisdiction for the hearing. Each defendant returning to a jail shall continue to receive the same psychotropic medications as prescribed by the facility physician at the time of discharge from a forensic or civil facility, unless the jail physician determines there is a compelling medical reason to change or discontinue the medication for the health and safety of the defendant. If the jail physician changes or discontinues the medication and the defendant is later determined at the competency hearing to be incompetent to stand trial and is recommitted to the department, the jail physician may not change or discontinue the defendant’s prescribed psychotropic medication upon the defendant’s next discharge from the forensic or civil facility.
F.S. 916.16 Jurisdiction of committing court.
(1)
The committing court shall retain jurisdiction over any defendant involuntarily committed due to a determination of incompetency to proceed due to mental illness or a finding of not guilty by reason of insanity pursuant to this chapter. The defendant may not be released except by order of the committing court. An administrative hearing examiner does not have jurisdiction to determine issues of continuing commitment or release of any defendant involuntarily committed pursuant to this chapter.
(2)
The committing court shall retain jurisdiction in the case of any defendant placed on conditional release pursuant to s. 916.17. Such defendant may not be released from the conditions of release except by order of the committing court.
F.S. 916.17 Conditional release.
(1)
Except for an inmate currently serving a prison sentence, the committing court may order a conditional release of any defendant in lieu of an involuntary commitment to a facility pursuant to s. 916.13 or s. 916.15 based upon an approved plan for providing appropriate outpatient care and treatment. Upon a recommendation that outpatient treatment of the defendant is appropriate, a written plan for outpatient treatment, including recommendations from qualified professionals, must be filed with the court, with copies to all parties. Such a plan may also be submitted by the defendant and filed with the court with copies to all parties. The plan shall include:
(a)
Special provisions for residential care or adequate supervision of the defendant.
(b)
Provisions for outpatient mental health services.
(c)
If appropriate, recommendations for auxiliary services such as vocational training, educational services, or special medical care.
In its order of conditional release, the court shall specify the conditions of release based upon the release plan and shall direct the appropriate agencies or persons to submit periodic reports to the court regarding the defendant’s compliance with the conditions of the release and progress in treatment, with copies to all parties.
(2)
Upon the filing of an affidavit or statement under oath by any person that the defendant has failed to comply with the conditions of release, that the defendant’s condition has deteriorated to the point that inpatient care is required, or that the release conditions should be modified, the court shall hold a hearing within 7 days after receipt of the affidavit or statement under oath. After the hearing, the court may modify the release conditions. The court may also order that the defendant be returned to the department if it is found, after the appointment and report of experts, that the person meets the criteria for involuntary commitment under s. 916.13 or s. 916.15.
(3)
If at any time it is determined after a hearing that the defendant who has been conditionally released under subsection (1) no longer requires court-supervised followup care, the court shall terminate its jurisdiction in the cause and discharge the defendant.
F.S. 916.105 Legislative intent.
(1)
It is the intent of the Legislature that the Department of Children and Families and the Agency for Persons with Disabilities, as appropriate, establish, locate, and maintain separate and secure forensic facilities and programs for the treatment or training of defendants who have been charged with a felony and who have been found to be incompetent to proceed due to their mental illness, intellectual disability, or autism, or who have been acquitted of a felony by reason of insanity, and who, while still under the jurisdiction of the committing court, are committed to the department or agency under this chapter. Such facilities must be sufficient to accommodate the number of defendants committed under the conditions noted above. Except for those defendants found by the department or agency to be appropriate for treatment or training in a civil facility or program pursuant to subsection (3), forensic facilities must be designed and administered so that ingress and egress, together with other requirements of this chapter, may be strictly controlled by staff responsible for security in order to protect the defendant, facility personnel, other clients, and citizens in adjacent communities.
(2)
It is the intent of the Legislature that treatment or training programs for defendants who are found to have mental illness, intellectual disability, or autism and are involuntarily committed to the department or agency, and who are still under the jurisdiction of the committing court, be provided in a manner, subject to security requirements and other mandates of this chapter, which ensures the rights of the defendants as provided in this chapter.
(3)
It is the intent of the Legislature that evaluation and services to defendants who have mental illness, intellectual disability, or autism be provided in community settings, in community residential facilities, or in civil facilities, whenever this is a feasible alternative to treatment or training in a state forensic facility.
(4)
It is the intent of the Legislature that a defendant who is charged with certain felonies, any misdemeanor, or any ordinance violation and who has a mental illness, intellectual disability, or autism be evaluated and provided services in a community setting, whenever this is a feasible alternative to incarceration.
(5)
It is the intent of the Legislature to minimize and achieve an ongoing reduction in the use of restraint and seclusion on persons who are committed to a civil or forensic facility under this chapter.
(6)
It is the intent of the Legislature that law enforcement agencies in this state provide law enforcement officers with crisis intervention team training.
F.S. 916.106 Definitions.
For the purposes of this chapter, the term:
(1)
“Agency” means the Agency for Persons with Disabilities. The agency is responsible for training forensic clients who are developmentally disabled due to intellectual disability or autism and have been determined incompetent to proceed.
(2)
“Autism” has the same meaning as in s. 393.063.
(3)
“Chemical weapon” means any shell, cartridge, bomb, gun, or other device capable of emitting chloroacetophenone (CN), chlorobenzalmalononitrile (CS) or any derivatives thereof in any form, or any other agent with lacrimatory properties, and shall include products such as that commonly known as “mace.”
(4)
“Civil facility” means:
(a)
A mental health facility established within the department or by contract with the department to serve individuals committed pursuant to chapter 394 and those defendants committed pursuant to this chapter who do not require the security provided in a forensic facility; or
(b)
An intermediate care facility for the developmentally disabled, a foster care facility, a group home facility, or a supported living setting, as defined in s. 393.063, designated by the agency to serve those defendants who do not require the security provided in a forensic facility.
(5)
“Court” means the circuit court.
(6)
“Defendant” means an adult, or a juvenile who is prosecuted as an adult, who has been arraigned and charged with a felony offense under the laws of this state.
(7)
“Department” means the Department of Children and Families. The department is responsible for the treatment of forensic clients who have been determined incompetent to proceed due to mental illness or who have been acquitted of a felony by reason of insanity.
(8)
“Express and informed consent” or “consent” means consent given voluntarily in writing after a conscientious and sufficient explanation and disclosure of the purpose of the proposed treatment, the common side effects of the treatment, if any, the expected duration of the treatment, and any alternative treatment available.
(9)
“Forensic client” or “client” means any defendant who has been committed to the department or agency pursuant to s. 916.13, s. 916.15, or s. 916.302.
(10)
“Forensic facility” means a separate and secure facility established within the department or agency, or contracted using department funding, to serve forensic clients. A separate and secure facility means a security-grade building for the purpose of separately housing persons who have mental illness from persons who have intellectual disabilities or autism and separately housing persons who have been involuntarily committed pursuant to this chapter from nonforensic residents. The term includes a facility serving forensic clients committed to the department which is colocated in a county jail and operated by a community mental health provider through a contract.
(11)
“Incompetent to proceed” means unable to proceed at any material stage of a criminal proceeding, which includes the trial of the case, pretrial hearings involving questions of fact on which the defendant might be expected to testify, entry of a plea, proceedings for violation of probation or violation of community control, sentencing, and hearings on issues regarding a defendant’s failure to comply with court orders or conditions or other matters in which the mental competence of the defendant is necessary for a just resolution of the issues being considered.
(12)
“Institutional security personnel” means the staff of forensic facilities who meet or exceed the requirements of s. 943.13 and who are responsible for providing security, protecting clients and personnel, enforcing rules, preventing and investigating unauthorized activities, and safeguarding the interests of residents in the surrounding communities.
(13)
“Intellectual disability” has the same meaning as in s. 393.063.
(14)
“Mental illness” means an impairment of the emotional processes that exercise conscious control of one’s actions, or of the ability to perceive or understand reality, which impairment substantially interferes with the defendant’s ability to meet the ordinary demands of living. For the purposes of this chapter, the term does not apply to defendants who have only an intellectual disability or autism or a defendant with traumatic brain injury or dementia who lacks a co-occurring mental illness, and does not include intoxication or conditions manifested only by antisocial behavior or substance abuse impairment.
(15)
“Restraint” means a physical device, method, or drug used to control dangerous behavior.
(a)
A physical restraint is any manual method or physical or mechanical device, material, or equipment attached or adjacent to a person’s body so that he or she cannot easily remove the restraint and that restricts freedom of movement or normal access to one’s body.
(b)
A drug used as a restraint is a medication used to control the person’s behavior or to restrict his or her freedom of movement and not part of the standard treatment regimen of the person with a diagnosed mental illness who is a client of the department. Physically holding a person during a procedure to forcibly administer psychotropic medication is a physical restraint.
(c)
Restraint does not include physical devices, such as orthopedically prescribed appliances, surgical dressings and bandages, supportive body bands, or other physical holding necessary for routine physical examinations and tests; for purposes of orthopedic, surgical, or other similar medical treatment; to provide support for the achievement of functional body position or proper balance; or to protect a person from falling out of bed.
(16)
“Seclusion” means the physical segregation of a person in any fashion or the involuntary isolation of a person in a room or area from which the person is prevented from leaving. The prevention may be by physical barrier or by a staff member who is acting in a manner, or who is physically situated, so as to prevent the person from leaving the room or area. For purposes of this chapter, the term does not mean isolation due to a person’s medical condition or symptoms, the confinement in a forensic facility to a bedroom or area during normal hours of sleep when there is not an active order for seclusion, or during an emergency such as a riot or hostage situation when clients may be temporarily placed in their rooms for their own safety.
(17)
“Social service professional” means a person whose minimum qualifications include a bachelor’s degree and at least 2 years of social work, clinical practice, special education, habilitation, or equivalent experience working directly with persons who have intellectual disabilities, autism, or other developmental disabilities.
F.S. 916.107 Rights of forensic clients.
(1)
RIGHT TO INDIVIDUAL DIGNITY.
—
(a)
The policy of the state is that the individual dignity of the client shall be respected at all times and upon all occasions, including any occasion when the forensic client is detained, transported, or treated. Clients with mental illness, intellectual disability, or autism and who are charged with committing felonies shall receive appropriate treatment or training. In a criminal case involving a client who has been adjudicated incompetent to proceed or not guilty by reason of insanity, a jail may be used as an emergency facility for up to 15 days following the date the department or agency receives a completed copy of the court commitment order containing all documentation required by the applicable Florida Rules of Criminal Procedure. For a forensic client who is held in a jail awaiting admission to a facility of the department or agency, evaluation and treatment or training may be provided in the jail by the local community mental health provider for mental health services, by the developmental disabilities program for persons with intellectual disability or autism, the client’s physician or psychologist, or any other appropriate program until the client is transferred to a civil or forensic facility. The sheriff shall administer or permit the department to administer the appropriate psychotropic medication to forensic clients before admission to a state mental health treatment facility.
(b)
Forensic clients who are initially placed in, or subsequently transferred to, a civil facility as described in part I of chapter 394 or to a residential facility as described in chapter 393 shall have the same rights as other persons committed to these facilities for as long as they remain there.
(2)
RIGHT TO TREATMENT.
—
(a)
The policy of the state is that neither the department nor the agency shall deny treatment or training to any client and that no services shall be delayed because the forensic client is indigent pursuant to s. 27.52 and presently unable to pay. However, every reasonable effort to collect appropriate reimbursement for the cost of providing services to clients able to pay for the services, including reimbursement from insurance or other third-party payments, shall be made by facilities providing services pursuant to this chapter and in accordance with the provisions of s. 402.33.
(b)
Each forensic client shall be given, at the time of admission and at regular intervals thereafter, a physical examination, which shall include screening for communicable disease by a health practitioner authorized by law to give such screenings and examinations.
(c)
Every forensic client shall be afforded the opportunity to participate in activities designed to enhance self-image and the beneficial effects of other treatments or training, as determined by the facility.
(d)
Not more than 30 days after admission, each client shall have and receive, in writing, an individualized treatment or training plan which the client has had an opportunity to assist in preparing.
(3)
RIGHT TO EXPRESS AND INFORMED CONSENT.
—
(a)
A forensic client shall be asked to give express and informed written consent for treatment. If a client refuses such treatment as is deemed necessary and essential by the client’s multidisciplinary treatment team for the appropriate care of the client, such treatment may be provided under the following circumstances:
1.
In an emergency situation in which there is immediate danger to the safety of the client or others, such treatment may be provided upon the order of a physician for up to 48 hours, excluding weekends and legal holidays. If, after the 48-hour period, the client has not given express and informed consent to the treatment initially refused, the administrator or designee of the civil or forensic facility shall, within 48 hours, excluding weekends and legal holidays, petition the committing court or the circuit court serving the county in which the facility is located, at the option of the facility administrator or designee, for an order authorizing the continued treatment of the client. In the interim, the need for treatment shall be reviewed every 48 hours and may be continued without the consent of the client upon the continued order of a physician who has determined that the emergency situation continues to present a danger to the safety of the client or others.
2.
In a situation other than an emergency situation, the administrator or designee of the facility shall petition the court for an order authorizing necessary and essential treatment for the client.
a.
If the client has been receiving psychotropic medication at the jail at the time of transfer to the forensic or civil facility and lacks the capacity to make an informed decision regarding mental health treatment at the time of admission, the admitting physician shall order continued administration of psychotropic medication if, in the clinical judgment of the physician, abrupt cessation of that psychotropic medication could pose a risk to the health or safety of the client while a court order to medicate is pursued. The administrator or designee of the forensic or civil facility shall, within 5 days after a client’s admission, excluding weekends and legal holidays, petition the committing court or the circuit court serving the county in which the facility is located, at the option of the facility administrator or designee, for an order authorizing the continued treatment of a client with psychotropic medication. The jail physician shall provide a current psychotropic medication order at the time of transfer to the forensic or civil facility or upon request of the admitting physician after the client is evaluated.
b.
The court order shall allow such treatment for up to 90 days after the date that the order was entered. Unless the court is notified in writing that the client has provided express and informed written consent or that the client has been discharged by the committing court, the administrator or designee of the facility shall, before the expiration of the initial 90-day order, petition the court for an order authorizing the continuation of treatment for an additional 90 days. This procedure shall be repeated until the client provides consent or is discharged by the committing court.
3.
At the hearing on the issue of whether the court should enter an order authorizing treatment for which a client was unable to or refused to give express and informed consent, the court shall determine by clear and convincing evidence that the client has mental illness, intellectual disability, or autism; that the treatment not consented to is essential to the care of the client; and that the treatment not consented to is not experimental and does not present an unreasonable risk of serious, hazardous, or irreversible side effects. In arriving at the substitute judgment decision, the court must consider at least the following factors:
a.
The client’s expressed preference regarding treatment;
b.
The probability of adverse side effects;
c.
The prognosis without treatment; and
d.
The prognosis with treatment.
The hearing shall be as convenient to the client as may be consistent with orderly procedure and shall be conducted in physical settings not likely to be injurious to the client’s condition. The court may appoint a general or special magistrate to preside at the hearing. The client or the client’s guardian, and the representative, shall be provided with a copy of the petition and the date, time, and location of the hearing. The client has the right to have an attorney represent him or her at the hearing, and, if the client is indigent, the court shall appoint the office of the public defender to represent the client at the hearing. The client may testify or not, as he or she chooses, and has the right to cross-examine witnesses and may present his or her own witnesses.
(b)
In addition to the provisions of paragraph (a), in the case of surgical procedures requiring the use of a general anesthetic or electroconvulsive treatment or nonpsychiatric medical procedures, and prior to performing the procedure, written permission shall be obtained from the client, if the client is legally competent; from the parent or guardian of a minor client; or from the guardian of an incompetent client. The administrator or designee of the forensic facility or a designated representative may, with the concurrence of the client’s attending physician, authorize emergency surgical or nonpsychiatric medical treatment if such treatment is deemed lifesaving or for a situation threatening serious bodily harm to the client and permission of the client or the client’s guardian could not be obtained before provision of the needed treatment.
(4)
QUALITY OF TREATMENT.
—
(a)
Each forensic client shall receive treatment or training suited to the client’s needs, which shall be administered skillfully, safely, and humanely with full respect for the client’s dignity and personal integrity. Each client shall receive such medical, vocational, social, educational, and rehabilitative services as the client’s condition requires to bring about a return to court for disposition of charges or a return to the community. In order to achieve this goal, the department and the agency shall coordinate their services with each other, the Department of Corrections, and other appropriate state agencies.
(b)
Forensic clients shall be free from the unnecessary use of restraint or seclusion. Restraints shall be employed only in emergencies or to protect the client or others from imminent injury. Restraints may not be employed as punishment or for the convenience of staff.
(5)
COMMUNICATION, ABUSE REPORTING, AND VISITS.
—
Each forensic client has the right to communicate freely and privately with persons outside the facility unless it is determined that such communication is likely to be harmful to the client or others. Clients shall have the right to contact and to receive communication from their attorneys at any reasonable time.
(a)
Each forensic client shall be allowed to receive, send, and mail sealed, unopened correspondence; and no client’s incoming or outgoing correspondence shall be opened, delayed, held, or censored by the facility unless there is reason to believe that it contains items or substances that may be harmful to the client or others, in which case the administrator or designee may direct reasonable examination of such mail and may regulate the disposition of such items or substances. For purposes of this paragraph, the term “correspondence” does not include parcels or packages. Forensic facilities may promulgate reasonable institutional policies to provide for the inspection of parcels or packages and for the removal of contraband items for health or security reasons prior to the contents being given to a client.
(b)
If a client’s right to communicate is restricted by the administrator, written notice of such restriction and the duration of the restriction shall be served on the client or his or her legal guardian or representatives, and such restriction shall be recorded on the client’s clinical record with the reasons therefor. The restriction of a client’s right to communicate shall be reviewed at least every 7 days.
(c)
Each forensic facility shall establish reasonable institutional policies governing visitors, visiting hours, and the use of telephones by clients in the least restrictive manner possible.
(d)
Each forensic client shall have ready access to a telephone in order to report an alleged abuse. The facility or program staff shall orally and in writing inform each client of the procedure for reporting abuse and shall present the information in a language the client understands. A written copy of that procedure, including the telephone number of the central abuse hotline and reporting forms, shall be posted in plain view.
(e)
The department’s or agency’s forensic facilities shall develop policies providing a procedure for reporting abuse. Facility staff shall be required, as a condition of employment, to become familiar with the procedures for the reporting of abuse.
(6)
CARE AND CUSTODY OF PERSONAL EFFECTS OF CLIENTS.
—
A forensic client’s right to possession of clothing and personal effects shall be respected. The department or agency by rule, or the administrator of any forensic facility by written institutional policy, may declare certain items to be hazardous to the health or welfare of clients or others or to the operation of the facility. Such items may be restricted from introduction into the facility or may be restricted from being in a client’s possession. The administrator or designee may take temporary custody of such effects when required for medical and safety reasons. Custody of such personal effects shall be recorded in the client’s clinical record.
(7)
VOTING IN PUBLIC ELECTIONS.
—
A forensic client who is eligible to vote according to the laws of the state has the right to vote in the primary and general elections. The department and agency shall establish rules to enable clients to obtain voter registration forms, applications for vote-by-mail ballots, and vote-by-mail ballots.
(8)
CLINICAL RECORD; CONFIDENTIALITY.
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A clinical record for each forensic client shall be maintained. The record shall include data pertaining to admission and such other information as may be required under rules of the department or the agency. Unless waived by express and informed consent of the client or the client’s legal guardian or, if the client is deceased, by the client’s personal representative or by that family member who stands next in line of intestate succession or except as otherwise provided in this subsection, the clinical record is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(a)
Such clinical record may be released:
1.
To such persons and agencies as are designated by the client or the client’s legal guardian.
2.
To persons authorized by order of court and to the client’s counsel when the records are needed by the counsel for adequate representation.
3.
To a qualified researcher, as defined by rule; a staff member of the facility; or an employee of the department or agency when the administrator of the facility, or secretary or director of the department or agency, deems it necessary for treatment of the client, maintenance of adequate records, compilation of treatment data, or evaluation of programs.
4.
For statistical and research purposes if the information is abstracted in such a way as to protect the identity of individuals.
5.
If a client receiving services has declared an intention to harm other persons, the administrator shall authorize the release of sufficient information to provide adequate warning to the person threatened with harm by the client, and to the committing court, the state attorney, and the attorney representing the client.
6.
To the parent or next of kin of a client who is committed to, or is being served by, a facility or program when such information is limited to that person’s service plan and current physical and mental condition. Release of such information shall be in accordance with the code of ethics of the profession involved and must comply with all state and federal laws and regulations pertaining to the release of personal health information.
(b)
Notwithstanding other provisions of this subsection, the department or agency may request or receive from or provide to any of the following entities client information to facilitate treatment, habilitation, rehabilitation, and continuity of care of any forensic client:
1.
The Social Security Administration and the United States Department of Veterans Affairs;
2.
Law enforcement agencies, state attorneys, defense attorneys, and judges in regard to the client’s status;
3.
Jail personnel in the jail in which a client may be housed; and
4.
Community agencies and others expected to provide followup care to the client upon the client’s return to the community.
(c)
The department or agency may provide notice to any client’s next of kin or first representative regarding any serious medical illness or the death of the client.
(d)1.
Any law enforcement agency, facility, or other governmental agency that receives information pursuant to this subsection shall maintain the confidentiality of such information except as otherwise provided herein.
2.
Any agency or private practitioner who acts in good faith in releasing information pursuant to this subsection is not subject to civil or criminal liability for such release.
(9)
HABEAS CORPUS.
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(a)
At any time, and without notice, a forensic client detained by a facility, or a relative, friend, guardian, representative, or attorney on behalf of such client, may petition for a writ of habeas corpus to question the cause and legality of such detention and request that the committing court issue a writ for release. Each client shall receive a written notice of the right to petition for a writ of habeas corpus.
(b)
A client or his or her legal guardian or representatives or attorney may file a petition in the circuit court in the county where the client is committed alleging that the client is being unjustly denied a right or privilege granted herein or that a procedure authorized herein is being abused. Upon the filing of such a petition, the circuit court shall have the authority to conduct a judicial inquiry and to issue any appropriate order to correct an abuse of the provisions of this chapter.
(10)
TRANSPORTATION.
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(a)
The sheriff shall consult with the governing board of the county as to the most appropriate and cost-effective means of transportation for forensic clients who have been committed for treatment or training. Such consultation shall include, but is not limited to, consideration of the cost to the county of transportation performed by sheriff’s personnel as opposed to transportation performed by other means and, if sheriff’s personnel are to be used for transportation, the effect such use will have, if any, on service delivery levels of the sheriff’s road patrol. After such consultation with the governing board of the county, the sheriff shall determine the most appropriate and cost-effective means of transportation for forensic clients committed for treatment or training.
(b)
The governing board of each county is authorized to contract with private transport companies for the transportation of such clients to and from a facility.
(c)
Any company that transports a client pursuant to this section is considered an independent contractor and is solely liable for the safe and dignified transportation of the client. Any transport company that contracts with the governing board of a county for the transport of clients as provided for in this section shall be insured and provide no less than $100,000 in liability insurance with respect to the transportation of the clients.
(d)
Any company that contracts with a governing board of a county to transport clients shall comply with the applicable rules of the department or agency to ensure the safety and dignity of the clients.
(11)
LIABILITY FOR VIOLATIONS.
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Any person who violates or abuses any rights or privileges of a forensic client in the custody of the department or agency that are provided under this chapter shall be liable for damages as determined by law. Any person who acts in good faith in complying with the provisions of this chapter is immune from civil or criminal liability for his or her actions in connection with the admission, diagnosis, treatment, training, or discharge of a client to or from a facility. However, this subsection does not relieve any person from liability if he or she is negligent.
F.S. 916.111 Training of mental health experts.
The evaluation of defendants for competency to proceed or for sanity at the time of the commission of the offense shall be conducted in such a way as to ensure uniform application of the criteria enumerated in Rules 3.210 and 3.216, Florida Rules of Criminal Procedure. The department shall develop, and may contract with accredited institutions:
(1)
To provide:
(a)
A plan for training mental health professionals to perform forensic evaluations and to standardize the criteria and procedures to be used in these evaluations;
(b)
Clinical protocols and procedures based upon the criteria of Rules 3.210 and 3.216, Florida Rules of Criminal Procedure; and
(c)
Training for mental health professionals in the application of these protocols and procedures in performing forensic evaluations and providing reports to the courts. Training must include, but is not limited to, information on statutes and rules related to competency restoration, evidence-based practices, least restrictive treatment alternatives and placement options as described in s. 916.12(4)(c); and
(2)
To compile and maintain the necessary information for evaluating the success of this program, including the number of persons trained, the cost of operating the program, and the effect on the quality of forensic evaluations as measured by appropriateness of admissions to state forensic facilities and to community-based care programs.
F.S. 916.115 Appointment of experts.
(1)
The court shall appoint no more than three experts to determine the mental condition of a defendant in a criminal case, including competency to proceed, insanity, involuntary placement, and treatment. The experts may evaluate the defendant in jail or in another appropriate local facility or in a facility of the Department of Corrections.
(a)
The court-appointed experts shall:
1.
Be a psychiatrist, licensed psychologist, or physician.
2.
Have completed initial and annual forensic evaluator training, provided by the department.
3.
If performing juvenile evaluations, have completed initial and annual juvenile forensic competency evaluation training provided by the department.
(b)
Existing evaluators as of July 1, 2024, shall complete department-provided annual forensic evaluator training by July 1, 2026, to remain active on the list described in paragraph (c).
(c)
The department shall maintain and annually provide the courts with a list of available mental health professionals who have completed the initial and annual training as experts.
(2)
The court shall pay for any expert that it appoints by court order, upon motion of counsel for the defendant or the state or upon its own motion. If the defense or the state retains an expert and waives the confidentiality of the expert’s report, the court may pay for no more than two additional experts appointed by court order. If an expert appointed by the court upon motion of counsel for the defendant specifically to evaluate the competence of the defendant to proceed also addresses issues related to sanity as an affirmative defense, the court shall pay only for that portion of the expert’s fees relating to the evaluation on competency to proceed, and the balance of the fees shall be chargeable to the defense.
(a)
Pursuant to s. 29.006, the office of the public defender shall pay for any expert retained by the office.
(b)
Pursuant to s. 29.005, the office of the state attorney shall pay for any expert retained by the office and for any expert whom the office retains and whom the office moves the court to appoint in order to ensure that the expert has access to the defendant.
(c)
An expert retained by the defendant who is represented by private counsel appointed under s. 27.5303 shall be paid by the Justice Administrative Commission.
(d)
An expert retained by a defendant who is indigent for costs as determined by the court and who is represented by private counsel, other than private counsel appointed under s. 27.5303, on a fee or pro bono basis, or who is representing himself or herself, shall be paid by the Justice Administrative Commission from funds specifically appropriated for these expenses.
(e)
State employees shall be reimbursed for expenses pursuant to s. 112.061.
(f)
The fees shall be taxed as costs in the case.
(g)
In order for an expert to be paid for the services rendered, the expert’s report and testimony must explicitly address each of the factors and follow the procedures set out in this chapter and in the Florida Rules of Criminal Procedure.
F.S. 916.135 Misdemeanor or ordinance violation mental health diversion program.
(1)
As used in this section, the term:
(a)
“Court” means a circuit court, a county court, or any court presiding over felony, misdemeanor, or ordinance violations under the laws of this state or any of its political subdivisions.
(b)
“Defendant” means a person who has been charged as an adult by a law enforcement agency or a state attorney solely with a misdemeanor offense or an ordinance violation under the laws of this state or any of its political subdivisions.
(c)
“Qualified mental health professional” means a physician, a physician assistant, a clinical psychologist, a psychiatric nurse, an advanced practice registered nurse registered under s. 464.0123, or a mental health counselor, a marriage and family therapist, or a clinical social worker, as those terms are defined in s. 394.455.
(d)
“Receiving facility” has the same meaning as in s. 394.455.
(2)
A community desiring to establish a misdemeanor or ordinance violation mental health diversion program to divert clinically appropriate defendants from jails to treatment is encouraged to apply for the Criminal Justice, Mental Health, and Substance Abuse Reinvestment Grant Program under s. 394.656 for the purpose of obtaining funds to plan, implement, or expand such mental health diversion programs. This section provides a model process for diverting such defendants to treatment, but the process may be modified according to each community’s particular resources. A community that obtains a grant pursuant to s. 394.658 must adhere to the processes in this section to the extent that local resources are available to do so.
(a)
The local sheriff’s department, the state attorney, the public defender, the court, and local treatment providers may collaborate to establish policies and procedures to meet the specific needs of each community and to develop a form that a defendant must sign to consent to treatment.
(b)
A consent form must include the defendant’s consent to treatment and to the release of any records necessary to demonstrate compliance with and completion of treatment. Additionally, the consent form must include that the defendant agrees to waive his or her right to a speedy trial by participating in the diversion program. A defendant must sign the consent form to participate in the diversion program.
(3)
Within 24 hours after a defendant is booked into a jail, the jail’s corrections or medical staff may screen the defendant using a standardized, validated mental health screening instrument to determine if there is an indication of a mental illness. If there is an indication of a mental illness, the defendant may be promptly evaluated for involuntary examination under chapter 394 by a qualified mental health professional. In conducting this evaluation, the qualified mental health professional may evaluate the defendant as if he or she is at liberty in the community and may not rely on the person’s incarcerated status to defeat the involuntary examination criteria provided for in s. 394.463.
(a)
If the evaluation demonstrates that the defendant meets the criteria for involuntary examination under s. 394.463, the qualified mental health professional may issue a professional certificate referring the defendant to a receiving facility.
(b)
Upon the issuance of a professional certificate, the defendant must be transported within 72 hours to a receiving facility for further evaluation for involuntary examination under chapter 394. Such transport may be made with a hold for jail custody notation so that the receiving facility may only release the defendant back to jail custody. Alternatively, the court may request on the transport order that the defendant be transported back to appear before the court, depending upon the outcome of the evaluation at the receiving facility, the court’s availability of other resources and diversion programs, and the willingness of the defendant to receive treatment.
(c)
Once at the receiving facility, the defendant may be assessed and evaluated to determine whether he or she meets the criteria for involuntary services under chapter 394. If the criteria are met, the receiving facility may forward the court a discharge plan when the defendant no longer meets criteria for inpatient treatment, or an outpatient treatment plan, as appropriate, as soon as such a plan is developed. If the defendant does not meet the criteria for involuntary services, the receiving facility may issue an outpatient treatment plan and forward it to the court as soon as such plan is developed. If appropriate, the receiving facility may notify the court that no treatment is necessary.
(d)
Upon receipt of a discharge plan or an outpatient treatment plan, the court may consider releasing the defendant on his or her own recognizance on the condition that he or she comply fully with the discharge plan or outpatient treatment plan. The state attorney and the defense attorney must have an opportunity to be heard before the court releases the defendant.
(e)
If a professional certificate is not issued under paragraph (a), but the defendant has a mental illness, the court must order that the defendant be assessed for outpatient treatment by a local mental health treatment center. This assessment may be completed:
1.
At the jail via telehealth assessment by the local mental health treatment center;
2.
At the local mental health treatment center after the sheriff or jail authorities transport the defendant to and from the treatment center; or
3.
By releasing the defendant on his or her own recognizance on the conditions that the assessment be completed at the local mental health treatment center within 48 hours after his or her release and that all treatment recommendations be followed.
If the assessment under this paragraph results in an outpatient treatment plan, and the defendant has not already been released, the defendant may be released on his or her own recognizance on the condition that all treatment recommendations must be followed. The state attorney and the defense attorney must have an opportunity to be heard before the court releases the defendant.
(f)
If the defendant is released from the custody of the jail on pretrial release at any point before the completion of the process in this section, evaluation or assessment of the defendant under this section by a qualified mental health professional may be initiated at any time by order of the court at the request of the state attorney or the defense attorney, or on the court’s own motion. If this process results in the creation of a discharge plan by a receiving facility or an outpatient treatment plan by the local mental health treatment center, the court may set as a condition of the defendant’s continued pretrial release compliance with all of the terms of the discharge plan or outpatient treatment plan.
(4)
If a defendant has not been referred to the diversion program under this section, the state attorney, the defense attorney, or the court may, at any stage of the criminal proceedings, request that the defendant be screened pursuant to subsection (3) to determine if there is an indication of mental illness. If the defendant is no longer in custody, the defendant may be evaluated or assessed pursuant to paragraph (3)(f).
(5)
Upon the defendant’s successful completion of all of the treatment recommendations from any mental health evaluation or assessment completed pursuant to this section, the state attorney must consider dismissal of the charges. If dismissal is deemed inappropriate by the state attorney, the state attorney may consider referral of the defendant’s case to mental health court or another available mental health diversion program.
(6)
If the defendant fails to comply with any aspect of his or her discharge or outpatient treatment plan under this section, the court may exhaust therapeutic interventions aimed at improving compliance before considering returning the defendant to the jail.
F.S. 916.136 Pretrial felony mental health diversion program.
(1)
As used in this section, the term:
(a)
“Conviction” means a determination of guilt that is the result of a plea agreement, including a plea of nolo contendere, or trial. For purposes of this section, a conviction does not include an offense for which an adjudication of guilt was withheld.
(b)
“Court” means a circuit court or any court presiding over felony violations under the laws of this state or any of its political subdivisions.
(c)
“Defendant” means a person who has been charged as an adult by a law enforcement agency or a state attorney with a felony of the second degree or felony of the third degree, and who is eligible for the diversion program as provided in subsection (3).
(d)
“Qualified mental health professional” means a physician, a physician assistant, a clinical psychologist, a psychiatric nurse, an advanced practice registered nurse registered under s. 464.0123, or a mental health counselor, a marriage and family therapist, or a clinical social worker, as those terms are defined in s. 394.455.
(2)
A community desiring to establish a pretrial felony mental health diversion program to divert clinically appropriate defendants from jails to treatment is encouraged to apply for the Criminal Justice, Mental Health, and Substance Abuse Reinvestment Grant Program under s. 394.656 for the purpose of obtaining funds to plan, implement, or expand such programs. This section provides a model process for diverting such defendants to treatment, but this process may be modified according to each community’s particular resources.
(a)
The local sheriff’s department, the state attorney, the public defender, the court, and local treatment providers may collaborate to establish policies and procedures to meet the specific needs of each community and to develop a form that a defendant must sign to consent to treatment.
(b)
A consent form must include the defendant’s consent to treatment and to the release of any records necessary to demonstrate compliance with and completion of treatment. Additionally, such form must include that the defendant agrees to waive his or her right to a speedy trial by participating in the diversion program. A defendant must sign the consent form to participate in the diversion program.
(3)
A defendant may be eligible for the pretrial felony mental health diversion program under this section if he or she meets the following criteria:
(a)
Has a mental illness;
(b)
Has no more than three prior felony convictions in the past 5 years;
(c)
Is not charged with a violent felony; and
(d)
Does not have a significant history of violence.
The state attorney has the sole discretion to determine a defendant’s eligibility for the pretrial felony mental health diversion program. Meeting the criteria in this subsection does not guarantee eligibility. Additionally, the state attorney may, in extenuating circumstances, waive the criteria in this subsection if he or she finds that it is in the interest of justice.
(4)
At any stage in the pretrial process, the state attorney may recommend that a defendant be screened using a standardized, validated mental health screening instrument to determine if there is an indication of mental illness. Such screening may be completed by the jail’s corrections or medical staff or by any qualified mental health professional. The results of such screening must be forwarded to the state attorney and the defense attorney.
(5)
If there is an indication of mental illness, the state attorney may consider an offer of pretrial felony mental health diversion under this section. Entry into the diversion program is voluntary, and the defendant must sign the consent form as described in subsection (2) before participating in the program.
(6)
Upon the defendant agreeing to participate in pretrial felony mental health diversion under this section, the defendant must be assessed for outpatient treatment by a local mental health treatment center. This assessment may be completed:
(a)
At the jail via telehealth assessment by the local mental health treatment center;
(b)
At the local mental health treatment center after the sheriff or jail authorities transport the defendant to and from the treatment center; or
(c)
By releasing the defendant on his or her own recognizance on the conditions that the assessment be completed at the local mental health treatment center within 48 hours after his or her release and that all treatment recommendations be followed.
If the assessment under this subsection results in an outpatient treatment plan, and the defendant has not already been released, the defendant may be released on his or her own recognizance on the condition that all treatment recommendations be followed.
(7)
Upon the defendant’s successful completion of all treatment recommendations from the mental health evaluation or assessment completed pursuant to this section, the state attorney must consider dismissal of the charges.
(8)
If the defendant fails to comply with pretrial release or with any aspect of his or her treatment plan under this section, the state attorney may revoke the defendant’s participation in the pretrial felony mental health diversion program.
F.S. 916.145 Dismissal of charges.
(1)
The charges against a defendant adjudicated incompetent to proceed due to mental illness shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed for 5 continuous, uninterrupted years after such determination, unless the court in its order specifies its reasons for believing that the defendant will become competent to proceed within the foreseeable future and specifies the time within which the defendant is expected to become competent to proceed. The court may dismiss such charges at least 3 years after such determination, unless the charge is:
(a)
Arson;
(b)
Sexual battery;
(c)
Robbery;
(d)
Kidnapping;
(e)
Aggravated child abuse;
(f)
Aggravated abuse of an elderly person or disabled adult;
(g)
Aggravated assault with a deadly weapon;
(h)
Murder;
(i)
Manslaughter;
(j)
Aggravated manslaughter of an elderly person or disabled adult;
(k)
Aggravated manslaughter of a child;
(l)
Unlawful throwing, projecting, placing, or discharging of a destructive device or bomb;
(m)
Armed burglary;
(n)
Aggravated battery;
(o)
Aggravated stalking;
(p)
A forcible felony as defined in s. 776.08 and not listed elsewhere in this subsection;
(q)
An offense where an element of the offense requires the possession, use, or discharge of a firearm;
(r)
An attempt to commit an offense listed in this subsection;
(s)
An offense allegedly committed by a defendant who has had a forcible or violent felony conviction within the 5 years immediately preceding the date of arrest for the nonviolent felony sought to be dismissed;
(t)
An offense allegedly committed by a defendant who, after having been found incompetent and placed under court supervision in a community-based program, is formally charged by a state attorney or the Office of the Statewide Prosecutor with a new felony offense; or
(u)
An offense for which there is an identifiable victim and such victim has not consented to the dismissal.
(2)
This section does not prohibit the state from refiling dismissed charges if the defendant is declared to be competent to proceed in the future.
F.S. 916.185 Forensic Hospital Diversion Pilot Program.
(1)
LEGISLATIVE FINDINGS AND INTENT.
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The Legislature finds that many jail inmates who have serious mental illnesses and who are committed to state forensic mental health treatment facilities for restoration of competency to proceed could be served more effectively and at less cost in community-based alternative programs. The Legislature further finds that many people who have serious mental illnesses and who have been discharged from state forensic mental health treatment facilities could avoid returning to the criminal justice and forensic mental health systems if they received specialized treatment in the community. Therefore, it is the intent of the Legislature to create the Forensic Hospital Diversion Pilot Program to serve offenders who have mental illnesses or co-occurring mental illnesses and substance use disorders and who are involved in or at risk of entering state forensic mental health treatment facilities, prisons, jails, or state civil mental health treatment facilities.
(2)
DEFINITIONS.
—
As used in this section, the term:
(a)
“Best practices” means treatment services that incorporate the most effective and acceptable interventions available in the care and treatment of offenders who are diagnosed as having mental illnesses or co-occurring mental illnesses and substance use disorders.
(b)
“Community forensic system” means the community mental health and substance use forensic treatment system, including the comprehensive set of services and supports provided to offenders involved in or at risk of becoming involved in the criminal justice system.
(c)
“Evidence-based practices” means interventions and strategies that, based on the best available empirical research, demonstrate effective and efficient outcomes in the care and treatment of offenders who are diagnosed as having mental illnesses or co-occurring mental illnesses and substance use disorders.
(3)
CREATION.
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There is authorized a Forensic Hospital Diversion Pilot Program to provide competency-restoration and community-reintegration services in either a locked residential treatment facility when appropriate or a community-based facility based on considerations of public safety, the needs of the individual, and available resources.
(a)
The department may implement a Forensic Hospital Diversion Pilot Program modeled after the Miami-Dade Forensic Alternative Center, taking into account local needs and resources in Okaloosa County, in conjunction with the First Judicial Circuit in Okaloosa County; in Duval County, in conjunction with the Fourth Judicial Circuit in Duval County; in Broward County, in conjunction with the Seventeenth Judicial Circuit in Broward County; in Miami-Dade County, in conjunction with the Eleventh Judicial Circuit in Miami-Dade County; and in Hillsborough County, in conjunction with the Thirteenth Judicial Circuit in Hillsborough County.
(b)
If the department elects to create and implement the program, the department shall include a comprehensive continuum of care and services that use evidence-based practices and best practices to treat offenders who have mental health and co-occurring substance use disorders.
(c)
The department and the corresponding judicial circuits may implement this section if existing resources are available to do so on a recurring basis. The department may request budget amendments pursuant to chapter 216 to realign funds between mental health services and community substance abuse and mental health services in order to implement this pilot program.
(4)
ELIGIBILITY.
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Participation in the Forensic Hospital Diversion Pilot Program is limited to offenders who:
(a)
Are 18 years of age or older.
(b)
Are charged with a felony of the second degree or a felony of the third degree.
(c)
Do not have a significant history of violent criminal offenses.
(d)
Are adjudicated incompetent to proceed to trial or not guilty by reason of insanity pursuant to this part.
(e)
Meet public safety and treatment criteria established by the department for placement in a community setting.
(f)
Otherwise would be admitted to a state mental health treatment facility.
(5)
TRAINING.
—
The Legislature encourages the Florida Supreme Court, in consultation and cooperation with the Florida Supreme Court Task Force on Substance Abuse and Mental Health Issues in the Courts, to develop educational training for judges in the pilot program areas which focuses on the community forensic system.
(6)
RULEMAKING.
—
The department may adopt rules to administer this section.
F.S. 916.301 Appointment of experts.
(1)
All evaluations ordered by the court under this part must be conducted by qualified experts who have expertise in evaluating persons who have an intellectual disability or autism. The agency shall maintain and provide the courts annually with a list of available professionals who are appropriately licensed and qualified to perform evaluations of defendants alleged to be incompetent to proceed due to intellectual disability or autism. The courts may use professionals from this list when appointing experts and ordering evaluations under this part.
(2)
If a defendant’s suspected mental condition is intellectual disability or autism, the court shall appoint the following:
(a)
At least one, or at the request of any party, two experts to evaluate whether the defendant meets the definition of intellectual disability or autism and, if so, whether the defendant is competent to proceed; and
(b)
A psychologist selected by the agency who is licensed or authorized by law to practice in this state, with experience in evaluating persons suspected of having an intellectual disability or autism, and a social service professional, with experience in working with persons who have an intellectual disability or autism.
1.
The psychologist shall evaluate whether the defendant meets the definition of intellectual disability or autism and, if so, whether the defendant is incompetent to proceed due to intellectual disability or autism.
2.
The social service professional shall provide a social and developmental history of the defendant.
(3)
The experts may examine the defendant in jail, in another appropriate local facility, in a facility of the Department of Corrections, or on an outpatient basis.
(4)
Experts appointed by the court to evaluate the mental condition of a defendant in a criminal case shall be allowed reasonable fees for services rendered as evaluators and as witnesses, which shall be paid by the court. State employees shall be paid expenses pursuant to s. 112.061. The fees shall be taxed as costs in the case. In order for the experts to be paid for the services rendered, the reports and testimony must explicitly address each of the factors and follow the procedures set out in this chapter and in the Florida Rules of Criminal Procedure.
F.S. 916.302 Involuntary commitment of defendant determined to be incompetent to proceed.
(1)
CRITERIA.
—
Every defendant who is charged with a felony and who is adjudicated incompetent to proceed due to intellectual disability or autism may be involuntarily committed for training upon a finding by the court of clear and convincing evidence that:
(a)
The defendant has an intellectual disability or autism;
(b)
There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(c)
All available, less restrictive alternatives, including services provided in community residential facilities or other community settings, which would offer an opportunity for improvement of the condition have been judged to be inappropriate; and
(d)
There is a substantial probability that the intellectual disability or autism causing the defendant’s incompetence will respond to training and the defendant will regain competency to proceed in the reasonably foreseeable future.
(2)
ADMISSION TO A FACILITY.
—
(a)
A defendant who has been charged with a felony and who is found to be incompetent to proceed due to intellectual disability or autism, and who meets the criteria for involuntary commitment to the agency under this chapter, shall be committed to the agency, and the agency shall retain and provide appropriate training for the defendant. Within 6 months after the date of admission or at the end of any period of extended commitment or at any time the administrator or designee determines that the defendant has regained competency to proceed or no longer meets the criteria for continued commitment, the administrator or designee shall file a report with the court pursuant to this chapter and the applicable Florida Rules of Criminal Procedure.
(b)
A defendant determined to be incompetent to proceed due to intellectual disability or autism may be ordered by a circuit court into a forensic facility designated by the agency for defendants who have an intellectual disability or autism.
(c)
The agency may transfer a defendant from a designated forensic facility to another designated forensic facility and must notify the court of the transfer within 30 days after the transfer is completed.
(d)
The agency may not transfer a defendant from a designated forensic facility to a civil facility without first notifying the court, and all parties, 30 days before the proposed transfer. If the court objects to the proposed transfer, it must send its written objection to the agency. The agency may transfer the defendant unless it receives the written objection from the court within 30 days after the court’s receipt of the notice of the proposed transfer.
(3)
PLACEMENT OF DUALLY DIAGNOSED DEFENDANTS.
—
(a)
If a defendant has both an intellectual disability or autism and a mental illness, evaluations must address which condition is primarily affecting the defendant’s competency to proceed. Referral of the defendant should be made to a civil or forensic facility most appropriate to address the symptoms that are the cause of the defendant’s incompetence.
(b)
Transfer from one civil or forensic facility to another civil or forensic facility may occur when, in the department’s and agency’s judgment, it is in the defendant’s best treatment or training interests. The department and agency shall submit an evaluation and justification for the transfer to the court. The court may consult with an outside expert if necessary. Transfer will require an amended order from the committing court.
F.S. 916.303 Determination of incompetency; dismissal of charges.
(1)
The charges against any defendant found to be incompetent to proceed due to intellectual disability or autism shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years, unless the court in its order specifies its reasons for believing that the defendant will become competent to proceed within the foreseeable future and specifies the time within which the defendant is expected to become competent to proceed. The charges may be refiled by the state if the defendant is declared competent to proceed in the future.
(2)
If the charges are dismissed and if the defendant is considered to lack sufficient capacity to give express and informed consent to a voluntary application for services and lacks the basic survival and self-care skills to provide for his or her well-being or is likely to physically injure himself or herself or others if allowed to remain at liberty, the agency, the state attorney, or the defendant’s attorney shall apply to the committing court to involuntarily admit the defendant to residential services pursuant to s. 393.11.
(3)
If the defendant is considered to need involuntary residential services for reasons described in subsection (2) and, further, there is a substantial likelihood that the defendant will injure another person or continues to present a danger of escape, and all available less restrictive alternatives, including services in community residential facilities or other community settings, which would offer an opportunity for improvement of the condition have been judged to be inappropriate, the agency, the state attorney, or the defendant’s counsel may request the committing court to continue the defendant’s placement in a secure facility pursuant to this part. Any placement so continued must be reviewed by the court at least annually at a hearing. The annual review and hearing must determine whether the defendant continues to meet the criteria described in this subsection and, if so, whether the defendant still requires involuntary placement in a secure facility and whether the defendant is receiving adequate care, treatment, habilitation, and rehabilitation, including psychotropic medication and behavioral programming. Notice of the annual review and review hearing shall be given to the state attorney and the defendant’s attorney. A defendant’s placement in a secure facility may not exceed the maximum sentence for the crime for which the defendant was charged.
F.S. 916.304 Conditional release.
(1)
Except for an inmate currently serving a prison sentence, the committing court may order a conditional release of any defendant who has been found to be incompetent to proceed due to intellectual disability or autism, based on an approved plan for providing community-based training. The committing criminal court may order a conditional release of any defendant to a civil facility in lieu of an involuntary commitment to a forensic facility pursuant to s. 916.302. Upon a recommendation that community-based training for the defendant is appropriate, a written plan for community-based training, including recommendations from qualified professionals, may be filed with the court, with copies to all parties. Such a plan may also be submitted by the defendant and filed with the court, with copies to all parties. The plan must include:
(a)
Special provisions for residential care and adequate supervision of the defendant, including recommended location of placement.
(b)
Recommendations for auxiliary services such as vocational training, psychological training, educational services, leisure services, and special medical care.
In its order of conditional release, the court shall specify the conditions of release based upon the release plan and shall direct the appropriate agencies or persons to submit periodic reports to the courts regarding the defendant’s compliance with the conditions of the release and progress in training, with copies to all parties.
(2)
Upon the filing of an affidavit or statement under oath by any person that the defendant has failed to comply with the conditions of release, that the defendant’s condition has deteriorated, or that the release conditions should be modified, the court shall hold a hearing within 7 days after receipt of the affidavit or statement under oath. With notice to the court and all parties, the agency may detain a defendant in a forensic facility until the hearing occurs. After the hearing, the court may modify the release conditions. The court may also order that the defendant be placed into more appropriate programs for further training or may order the defendant to be committed to a forensic facility if it is found, after the appointment and report of experts, that the defendant meets the criteria for placement in a forensic facility.
(3)
If at any time it is determined after a hearing that the defendant conditionally released under subsection (1) no longer requires court-supervised followup care, the court shall terminate its jurisdiction in the cause and discharge the defendant.
F.S. 916.1065 Confidentiality of forensic behavioral health evaluations.
(1)
A forensic behavioral health evaluation filed with the court under this chapter is confidential and exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution.
(2)
As used in this section, the term “forensic behavioral health evaluation” means any record, including supporting documentation, derived from a competency, substance abuse, psychosexual, psychological, psychiatric, psychosocial, cognitive impairment, sanity, or other mental health evaluation of an individual.
(3)
The exemption under subsection (1) applies to forensic behavioral health evaluations filed with a court before, on, or after July 1, 2014.
F.S. 916.1075 Sexual misconduct prohibited; reporting required; penalties.
(1)
As used in this section, the term:
(a)
“Covered person” means an employee, volunteer, or intern of the department or agency; any person under contract with the department or agency; and any person providing care or support to a forensic client on behalf of the department, the agency, or their providers.
(b)
“Sexual activity” means:
1.
Fondling the genital area, groin, inner thighs, buttocks, or breasts of a person.
2.
The oral, anal, or vaginal penetration by or union with the sexual organ of another or the anal or vaginal penetration of another by any other object.
3.
Intentionally touching in a lewd or lascivious manner the breasts, genitals, the genital area, or buttocks, or the clothing covering them, of a person, or forcing or enticing a person to touch the perpetrator.
4.
Intentionally masturbating in the presence of another person.
5.
Intentionally exposing the genitals in a lewd or lascivious manner in the presence of another person.
6.
Intentionally committing any other sexual act that does not involve actual physical or sexual contact with the victim, including, but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity in the presence of a victim.
(c)
“Sexual misconduct” means any sexual activity between a covered person and a forensic client in the custody of the department or agency, regardless of the consent of the client. The term does not include an act done for a bona fide medical purpose or an internal search conducted in the lawful performance of duty by a covered person.
(2)
A covered person who engages in sexual misconduct with a forensic client who resides in a civil or forensic facility commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Such person may be found guilty of violating this subsection without having committed the crime of sexual battery.
(3)
The consent of a forensic client to sexual activity is not a defense to prosecution under this section.
(4)
This section does not apply to a covered person who:
(a)
Is legally married to the client; or
(b)
Has no reason to believe that the person with whom the covered person engaged in sexual misconduct is a client receiving services as described in subsection (2).
(5)
A covered person who witnesses sexual misconduct, or who otherwise knows or has reasonable cause to suspect that a person has engaged in sexual misconduct, shall immediately report the incident to the department’s central abuse hotline and to the appropriate local law enforcement agency. The covered person shall also prepare, date, and sign an independent report that specifically describes the nature of the sexual misconduct, the location and time of the incident, and the persons involved. For an allegation pertaining to a forensic client committed to the department or agency, the covered person shall deliver the report directly to the department’s or agency’s inspector general, as appropriate, or to the supervisor or program director, who shall provide copies to the department’s or agency’s inspector general.
(6)(a)
Any person who is required to make a report under this section and who knowingly or willfully fails to do so, or who knowingly or willfully prevents another person from doing so, commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(b)
Any person who knowingly or willfully submits inaccurate, incomplete, or untruthful information with respect to a report required under this section commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
(c)
Any person who knowingly or willfully coerces or threatens any other person with the intent to alter testimony or a written report regarding an incident of sexual misconduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(7)
The provisions and penalties set forth in this section are in addition to any other civil, administrative, or criminal action provided by law which may be applied against an employee.
F.S. 916.1081 Escape from program; penalty.
(1)
A forensic client who is involuntarily committed to the department or agency, who is in the custody of the department or agency, and who escapes or attempts to escape from a civil or forensic facility commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(2)
A person who is involuntarily committed to the department or the agency, who is in the custody of the Department of Corrections, and who escapes or attempts to escape from a facility or program commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Any punishment of imprisonment imposed under this subsection shall run consecutive to any former sentence imposed upon the person.
F.S. 916.1085 Introduction or removal of certain articles unlawful; penalty.
(1)(a)
Except as authorized by law or as specifically authorized by the person in charge of a facility, it is unlawful to introduce into or upon the grounds of any facility under the supervision or control of the department or agency, or to take or attempt to take or send therefrom, any of the following articles, which are declared to be contraband for the purposes of this section:
1.
Any intoxicating beverage or beverage which causes or may cause an intoxicating effect;
2.
Any controlled substance as defined in chapter 893, marijuana as defined in s. 381.986, hemp as defined in s. 581.217, or industrial hemp as defined in s. 1004.4473;
3.
Any firearm or deadly weapon;
4.
Any cellular telephone or other portable communication device as described in s. 944.47(1)(a)6., intentionally and unlawfully introduced inside the secure perimeter of any forensic facility under the operation and control of the department or agency. As used in this subparagraph, the term “portable communication device” does not include any device that has communication capabilities which has been approved or issued by the person in charge of the forensic facility;
5.
Any vapor-generating electronic device as defined in s. 386.203, intentionally and unlawfully introduced inside the secure perimeter of any forensic facility under the operation and control of the department or agency; or
6.
Any other item as determined by the department or the agency, and as designated by rule or by written institutional policies, to be hazardous to the welfare of clients or the operation of the facility.
(b)
It is unlawful to transmit to, attempt to transmit to, or cause or attempt to cause to be transmitted to or received by any client of any facility under the supervision or control of the department or agency any article or thing declared by this section to be contraband, at any place that is outside of the grounds of such facility, except as authorized by law or as specifically authorized by the person in charge of such facility.
(2)(a)
All individuals or vehicles entering upon the grounds of any facility under the supervision or control of the department may be subject to reasonable search and seizure of any contraband materials introduced thereon, for purpose of enforcement of this chapter.
(b)
These provisions shall be enforced by institutional security personnel or by a law enforcement officer as defined in s. 943.10.
(c)1.
A person who violates any provision of subparagraph (1)(a)2. or subparagraph (1)(a)3. commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
2.
A person who violates any provision of subparagraph (1)(a)1., subparagraph (1)(a)4., subparagraph (1)(a)5., or subparagraph (1)(a)6. commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
F.S. 916.1091 Duties, functions, and powers of institutional security personnel.
(1)
In case of emergency, and when necessary to provide protection and security to any client, to the personnel, equipment, buildings, or grounds of a department or agency facility, or to citizens in the surrounding community, institutional security personnel may, when authorized by the administrator of the facility or her or his designee when the administrator is not present, use a chemical weapon against a patient housed in a forensic facility. However, such weapon shall be used only to the extent necessary to provide protection and security. Under no circumstances shall any officer carry a chemical weapon on her or his person except during the period of the emergency for which its use was authorized. All chemical weapons shall be placed in secure storage when their use is not authorized as provided in this section.
(2)
The department, the agency, or an entity contracting with the department or agency to operate a forensic facility under this chapter is considered an employing agency as that term is defined in s. 943.10 and is authorized to employ certified correctional officers as institutional security personnel. This authority applies retroactively to all certified officers employed in such capacity beginning January 1, 1974.
F.S. 916.1093 Operation and administration; rules.
(1)
The department or agency may enter into contracts and do such things as may be necessary and incidental to assure compliance with and to carry out the provisions of this chapter in accordance with the stated legislative intent.
(2)
The department and agency are authorized to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter. Such rules must address the use of restraint and seclusion in forensic facilities and must be consistent with recognized best practices; prohibit inherently dangerous restraint or seclusion procedures; establish limitations on the use and duration of restraint and seclusion; establish measures to ensure the safety of clients and staff during an incident of restraint or seclusion; establish procedures for staff to follow before, during, and after incidents of restraint or seclusion; establish professional qualifications of and training for staff who may order or be engaged in the use of restraint or seclusion; provide data reporting and data collection procedures relating to the use of restraint and seclusion; and provide for the documentation of the use of restraint or seclusion in the client’s facility record.
F.S. 916.3012 Mental competence to proceed.
(1)
A defendant whose suspected mental condition is intellectual disability or autism is incompetent to proceed within the meaning of this chapter if the defendant does not have sufficient present ability to consult with the defendant’s lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against the defendant.
(2)
Experts in intellectual disability or autism appointed pursuant to s. 916.301 shall first consider whether the defendant meets the definition of intellectual disability or autism and, if so, consider the factors related to the issue of whether the defendant meets the criteria for competence to proceed as described in subsection (1).
(3)
In considering the issue of competence to proceed, an examining expert shall first consider and specifically include in his or her report the defendant’s capacity to:
(a)
Appreciate the charges or allegations against the defendant.
(b)
Appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant.
(c)
Understand the adversarial nature of the legal process.
(d)
Disclose to counsel facts pertinent to the proceedings at issue.
(e)
Manifest appropriate courtroom behavior.
(f)
Testify relevantly.
In addition, an examining expert shall consider and include in his or her report any other factor deemed relevant by the expert.
(4)
If the experts find that the defendant is incompetent to proceed, the experts shall report on any recommended training for the defendant to attain competence to proceed. In considering the issues relating to training, the examining experts shall specifically report on:
(a)
The intellectual disability or autism causing the incompetence;
(b)
The training appropriate for the intellectual disability or autism of the defendant and an explanation of each of the possible training alternatives in order of choices;
(c)
The availability of acceptable training and, if training is available in the community, the expert shall so state in the report; and
(d)
The likelihood of the defendant’s attaining competence under the training recommended, an assessment of the probable duration of the training required to restore competence, and the probability that the defendant will attain competence to proceed in the foreseeable future.
F.S. 916.3025 Jurisdiction of committing court.
(1)
The committing court shall retain jurisdiction in the case of any defendant found to be incompetent to proceed due to intellectual disability or autism and ordered into a forensic facility designated by the agency for defendants who have intellectual disabilities or autism. A defendant may not be released except by the order of the committing court. An administrative hearing examiner does not have jurisdiction to determine issues of continuing commitment or release of any defendant involuntarily committed pursuant to this chapter.
(2)
The committing court shall retain jurisdiction in the case of any defendant placed on conditional release pursuant to s. 916.304. Such defendant may not be released from the conditions of release except by order of the committing court.
(3)
The committing court shall consider a petition to involuntarily admit a defendant whose charges have been dismissed to residential services provided by the agency and, when applicable, to continue secure placement of such person as provided in s. 916.303. The committing court shall retain jurisdiction over such person so long as he or she remains in secure placement or is on conditional release as provided in s. 916.304. However, upon request, the court may transfer continuing jurisdiction to the court in the circuit where the defendant resides. The defendant may not be released from an order for secure placement except by order of the court.
Source: FL Statutes (Official Site)URL: https://www.flsenate.gov/Laws/Statutes/2025/Chapter916/AllFetched: 7/8/2026