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MENTALLY DEFICIENT AND MENTALLY ILL DEFENDANTS

Editor's Note: Most clients with mental health issues do NOT meet the criteria for incompetency or insanity. As a result, they fall through the cracks of this section of law. Our One Stop Therapy program was created to fill this large and serious gap.

PART I

GENERAL PROVISIONS (ss. 916.10-916.1093)

PART II

FORENSIC SERVICES FOR PERSONS WHO ARE MENTALLY ILL
(ss. 916.111-916.17)

PART III

FORENSIC SERVICES FOR PERSONS WHO ARE RETARDED OR AUTISTIC
(ss. 916.301-916.304)

PART I

GENERAL PROVISIONS

916.10 Short title.

916.105 Legislative intent.

916.106 Definitions.

916.107 Rights of forensic clients.

916.1075 Sexual misconduct prohibited; reporting required; penalties.

916.1081 Escape from program; penalty.

916.1085 Introduction or removal of certain articles unlawful; penalty.

916.1091 Duties, functions, and powers of institutional security personnel.

916.1093 Operation and administration; rules.

916.10 Short title.--This chapter may be cited as the "Forensic Client Services Act."

916.105 Legislative intent.--

(1) It is the intent of the Legislature that the Department of Children and Family Services establish, locate, and maintain separate and secure facilities and programs for the treatment or training of defendants who are charged with a felony and who have been found to be incompetent to proceed due to their mental illness, retardation, or autism, or who have been acquitted of felonies by reason of insanity, and who, while still under the jurisdiction of the committing court, are committed to the department under the provisions of this chapter. The separate, secure facilities shall be sufficient to accommodate the number of defendants committed under the conditions noted above, except those defendants found by the department to be appropriate for treatment or training in a civil treatment facility or program. Such secure facilities shall 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 further the intent of the Legislature that treatment or training programs for defendants who are found to be mentally ill, retarded, or autistic and are involuntarily committed to the department, and who are still under the jurisdiction of the committing court, be provided in such a manner, subject to security requirements and other mandates of this chapter, as to ensure 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 are mentally ill, retarded, or autistic be provided in community settings, in community residential facilities, or in civil, nonforensic facilities, whenever this is a feasible alternative to treatment or training in a state forensic facility.

916.106 Definitions.--For the purposes of this chapter:

(1) "Autism" means a pervasive, neurologically based developmental disability of extended duration which causes severe learning, communication, and behavior disorders, with the age of onset of autism occurring during infancy or childhood. Individuals with autism exhibit impairment in reciprocal social interaction, impairment in verbal and nonverbal communication and imaginative ability, and a markedly restricted repertoire of activities and interests.

(2) "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."

(3) "Civil facility" means a mental health facility established within 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.

(4) "Court" means the circuit court.

(5) "Department" means the Department of Children and Family Services.

(6) "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.

(7) "Forensic client" or "client" means any defendant who is mentally ill, retarded, or autistic and who is committed to the department pursuant to this chapter and:

(a) Who has been determined to need treatment for a mental illness or training for retardation or autism;

(b) Who has been found incompetent to proceed on a felony offense or has been acquitted of a felony offense by reason of insanity;

(c) Who has been determined by the department to:

1. Be dangerous to himself or herself or others; or

2. Present a clear and present potential to escape; and

(d) Who is an adult or a juvenile prosecuted as an adult.

(8) "Forensic facility" means a separate and secure facility established within the department to serve forensic clients. Such separate and secure facilities shall be security-grade buildings located on grounds distinct in location from other facilities for persons who are mentally ill. The Florida State Hospital shall not be required to maintain separate facilities for mentally ill, retarded, or autistic defendants who are found incompetent to proceed or who are acquitted of a criminal offense by reason of insanity.

(9) "Incompetent to proceed" means unable to proceed at any material stage of a criminal proceeding, which shall include 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.

(10) "Institutional security personnel" means staff members who meet or exceed the requirements of s. 943.13 and who are responsible for providing security, for protection of clients and personnel, for the enforcement of rules, for prevention and investigation of unauthorized activities, and for safeguarding the interests of citizens in the surrounding communities.

(11) "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 a defendant's ability to meet the ordinary demands of living. For the purposes of this chapter, the term does not apply to defendants who are solely retarded or autistic, and does not include intoxication or conditions manifested only by antisocial behavior or substance abuse impairment.

(12) "Retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. "Significantly subaverage general intellectual functioning," for the purpose of this definition, means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department. "Adaptive behavior," for the purpose of this definition, means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected of the individual's age, cultural group, and community.

(13) "Social service professional," for the purposes of part III, 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 with retardation, autism, or other developmental disabilities.

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. Defendants who are mentally ill, retarded, or autistic and who are charged with committing felonies shall receive appropriate treatment or training. In a criminal case involving a defendant 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 from the date the department receives a completed copy of the commitment order containing the documentation required by Rules 3.212 and 3.217, Florida Rules of Criminal Procedure. For a defendant who is mentally ill, retarded, or autistic, who is held in a jail, and who has been adjudicated incompetent to proceed or not guilty by reason of insanity, evaluation and treatment or training shall be provided in the jail by the local public receiving facility for mental health services or by the developmental services program for persons with retardation or autism, the client's physician or psychologist, or any other appropriate program until the client is transferred to the custody of the department.

(b) Mentally ill, retarded, or autistic defendants who are committed to the department pursuant to this chapter and 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 the department shall not deny treatment or training to any client and that no services shall be delayed at a facility 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 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 client committed pursuant to this act 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 client committed to the department pursuant to this act shall be asked to give express and informed written consent for treatment. If a client in a forensic facility refuses such treatment as is deemed necessary by the client's multidisciplinary treatment team at the forensic facility for the appropriate care of the client and the safety of the client or others, 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 written order of a physician for a period not to exceed 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 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, treatment may be continued without the consent of the client upon the continued written 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 forensic facility shall petition the court for an order authorizing the treatment to the client. The order shall allow such treatment for a period not to exceed 90 days from the date of the entry of the order. Unless the court is notified in writing that the client has provided express and informed consent in writing or that the client has been discharged by the committing court, the administrator or designee shall, prior to the expiration of the initial 90-day order, petition the court for an order authorizing the continuation of treatment for another 90-day period. 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 has refused to give express and informed consent, the court shall determine by clear and convincing evidence that the client is mentally ill, retarded, or autistic as defined in this chapter, 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 cannot be obtained.

(4) QUALITY OF TREATMENT.--Each client committed pursuant to this chapter 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 is directed to coordinate the services of the Mental Health Program Office and the Developmental Disabilities Program Office with all other programs of the department and other appropriate state agencies.

(5) COMMUNICATION, ABUSE REPORTING, AND VISITS.--

(a) Each client committed pursuant to the provisions of this chapter 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.

(b) Each client committed under the provisions of this chapter 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 which 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. "Correspondence" shall not include parcels or packages. Forensic facilities are authorized to 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.

(c) If a client's right to communicate is restricted by the administrator, written notice of such 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.

(d) Each facility shall establish reasonable institutional policies governing visitors, visiting hours, and the use of telephones by clients in the least restrictive manner possible.

(e) Each client committed pursuant to this chapter 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.

(f) The department'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 client's right to possession of clothing and personal effects shall be respected. The department by rule, or the administrator of any facility by written institutional policy, may declare certain items to be hazardous to the 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 client committed pursuant to this chapter 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 shall establish rules to enable clients to obtain voter registration forms, applications for absentee ballots, and absentee ballots.

(8) CLINICAL RECORD; CONFIDENTIALITY.--A clinical record for each 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. 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 when the administrator of the facility or secretary of the department 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 pursuant to this chapter has declared an intention to harm other persons. When such a declaration has been made, 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 mentally ill, retarded, or autistic person 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.

(b) Notwithstanding other provisions of this subsection, the department 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 to which a client may be returned; 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 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.--

(a) At any time, and without notice, a 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 committed pursuant to this chapter 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.--

(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 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 department personnel as opposed to transportation performed by other means and, if sheriff's department 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 to ensure the safety and dignity of the clients.

(11) LIABILITY FOR VIOLATIONS.--Any person who violates or abuses any rights or privileges of a client provided by this act is liable for damages as determined by law. Any person who acts in good faith in complying with the provisions of this act 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.

916.1075 Sexual misconduct prohibited; reporting required; penalties.--

(1) As used in this section, the term:

(a) "Employee" includes any paid staff member, volunteer, or intern of the department; any person under contract with the department; and any person providing care or support to a client on behalf of the department or its 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 an employee and a client, 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 an employee.

(2) An employee who engages in sexual misconduct with a 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. An employee may be found guilty of violating this subsection without having committed the crime of sexual battery.

(3) The consent of the client to sexual activity is not a defense to prosecution under this section.

(4) This section does not apply to an employee who:

(a) Is legally married to the client; or

(b) Has no reason to believe that the person with whom the employee engaged in sexual misconduct is a client receiving services as described in subsection (2).

(5) An employee 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. Such employee 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. The employee shall deliver the report to the supervisor or program director, who is responsible for providing copies to the department's inspector general. The inspector general shall immediately conduct an appropriate administrative investigation, and, if there is probable cause to believe that sexual misconduct has occurred, the inspector general shall notify the state attorney in the circuit in which the incident occurred.

(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.

916.1081 Escape from program; penalty.--A defendant involuntarily committed to the department under the provisions of this chapter 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.

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 to take or attempt to take or send therefrom, any of the following articles, which are hereby 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;

3. Any firearm or deadly weapon; or

4. Any other item as determined by the department, and as designated by departmental rule or by the administrator of any facility, and designated by written institutional policies, to be hazardous to the welfare of patients 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 any article or thing declared by this section to be contraband, at any place which 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 as defined in s. 916.106(10) or by a law enforcement officer as defined in s. 943.10.

(c) 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.

916.1091 Duties, functions, and powers of institutional security personnel.--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 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 such protection and security. Under no circumstances shall any such 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.

916.1093 Operation and administration; rules.--

(1) The department is authorized to 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 has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter.

PART II

FORENSIC SERVICES FOR PERSONS
WHO ARE MENTALLY ILL

916.111 Training of mental health experts.

916.115 Appointment of experts.

916.12 Mental competence to proceed.

916.13 Involuntary commitment of defendant adjudicated incompetent.

916.14 Statute of limitations; former jeopardy.

916.145 Adjudication of incompetency due to mental illness; dismissal of charges.

916.15 Involuntary commitment of defendant adjudicated not guilty by reason of insanity.

916.16 Jurisdiction of committing court.

916.17 Conditional release.

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 community 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 community mental health professionals in the application of these protocols and procedures in performing forensic evaluations and providing reports to the courts; 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.

916.115 Appointment of experts.--

(1)(a) Annually, the department shall provide the courts with a list of mental health professionals who have completed approved training as experts.

(b) The court may appoint no more than three experts to determine issues of the mental condition of a defendant in a criminal case, including the issues of competency to proceed, insanity, and involuntary hospitalization or placement. An expert may evaluate the defendant in jail or in another appropriate local facility.

(c) To the extent possible, an appointed expert shall have completed forensic evaluator training approved by the department and be either a psychiatrist, licensed psychologist, or physician.

(2) Expert witnesses 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 of competence or sanity and as witnesses.

(a)1. 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 in his or her evaluation 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.

2. Pursuant to s. 29.006, the office of the public defender shall pay for any expert retained by the office.

3. Pursuant to s. 29.005, the office of the state attorney shall pay for any expert retained by the office. Notwithstanding subparagraph 1., the office of the state attorney shall pay 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.

4. 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.

5. 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.

(b) State employees shall be paid expenses pursuant to s. 112.061.

(c) The fees shall be taxed as costs in the case.

(d) 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.

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) An expert shall first determine whether the person is mentally ill and, if so, consider the factors related to the issue of whether the defendant meets the criteria for competence to proceed; that is, whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings. 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; and

(f) Testify relevantly;

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 treatment or treatments appropriate for the mental illness of the defendant and an explanation of each of the possible treatment alternatives in order of choices;

(c) The availability of acceptable treatment and, if treatment 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 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.

(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.

916.13 Involuntary commitment of defendant adjudicated incompetent.--

(1) Every defendant who is charged with a felony and who is adjudicated incompetent to proceed, pursuant to the applicable Florida Rules of Criminal Procedure, may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:

(a) The defendant is mentally ill 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; and

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 or community inpatient or outpatient settings, 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.

(2) A defendant who has been charged with a felony and who has been adjudicated incompetent to proceed, and who meets the criteria for commitment to the department under the provisions of this chapter, may be committed to the department, and the department shall retain and treat the defendant. No later than 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 shall have determined 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.

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.

916.145 Adjudication of incompetency due to mental illness; dismissal of charges.--The charges against any defendant adjudicated incompetent to proceed due to the defendant's mental illness shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed 5 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 charges against the defendant are dismissed without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.

916.15 Involuntary commitment of defendant adjudicated not guilty by reason of insanity.--

(1) 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 is mentally ill and, because of the illness, is manifestly dangerous to himself or herself or others.

(2) 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. 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 the administrator or designee shall have determined 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.

(3) In all proceedings under this subsection, 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.

916.16 Jurisdiction of committing court.--

(1) The committing court shall retain jurisdiction in the case of any defendant hospitalized as incompetent to proceed or because of a finding of not guilty by reason of insanity pursuant to this chapter. No such defendant may be released except by order of the committing court. The administrative hearing examiner shall have no jurisdiction to determine issues of continuing hospitalization or release of any defendant admitted pursuant to this chapter.

(2) The committing court shall retain jurisdiction in the case of any defendant placed on conditional release. No such defendant may be released from the conditions of release except by order of the committing court.

916.17 Conditional release.--

(1) The committing court may order a conditional release of any defendant who has been found to be incompetent to proceed or not guilty by reason of insanity, based on an approved plan for providing appropriate outpatient care and treatment. 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. 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 treatment.

(3) If at any time it is determined after a hearing that the defendant no longer requires court-supervised followup care, the court shall terminate its jurisdiction in the cause and discharge the defendant.

PART III

FORENSIC SERVICES FOR PERSONS
WHO ARE RETARDED OR AUTISTIC

916.301 Appointment of experts.

916.3012 Mental competence to proceed.

916.302 Involuntary commitment of defendant determined to be incompetent to proceed due to retardation or autism.

916.3025 Jurisdiction of committing court.

916.303 Determination of incompetency due to retardation or autism; dismissal of charges.

916.304 Conditional release.

916.301 Appointment of experts.--

(1) The department shall provide the courts annually with a list of retardation and autism professionals who are qualified to perform evaluations of defendants alleged to be incompetent to proceed due to retardation or autism. The courts may use professionals from this list when ordering evaluations for defendants suspected of being retarded or autistic.

(2) If a defendant's suspected mental condition is retardation or autism, the court shall appoint two experts, one of whom must be the developmental services program of the department, each of whom will evaluate whether the defendant meets the definition of retardation or autism and, if so, whether the defendant is competent to proceed.

(3) At the request of any party, the court may appoint one additional expert to evaluate the defendant. The expert appointed by the court will evaluate whether the defendant meets the definition of retardation or autism and, if so, whether the defendant is competent to proceed.

(4) The developmental services program shall select a psychologist who is licensed or authorized by law to practice in this state, with experience in evaluating persons suspected of having retardation or autism, and a social service professional with experience in working with persons with retardation or autism to evaluate the defendant.

(a) The psychologist shall evaluate whether the defendant meets the definition of retardation or autism and, if so, whether the defendant is incompetent to proceed due to retardation or autism.

(b) The social service professional shall provide a social and developmental history of the defendant.

(5) All evaluations ordered by the court must be from qualified experts with experience in evaluating persons with retardation or autism.

(6) The panel of experts may examine the defendant in jail, in another appropriate local facility, or on an outpatient basis.

(7) Expert witnesses 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.

916.3012 Mental competence to proceed.--

(1) A defendant whose suspected mental condition is retardation 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) The experts shall first consider whether the defendant meets the definition of retardation or autism and, if so, consider the factors related to the issue of whether the defendant meets the criteria for competence to proceed; that is, whether the defendant has sufficient present ability to consult with counsel with a reasonable degree of rational understanding and whether the defendant has a rational, as well as factual, understanding of the pending proceedings.

(3) In considering the issue of competence to proceed, the examining experts shall first consider and specifically include in their 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; and

(f) Testify relevantly;

and include in their report any other factor deemed relevant by the experts.

(4) If the experts should 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 retardation or autism causing the incompetence;

(b) The training appropriate for the retardation 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.

916.302 Involuntary commitment of defendant determined to be incompetent to proceed due to retardation or autism.--

(1) CRITERIA.--Every defendant who is charged with a felony and who is found to be incompetent to proceed, pursuant to this chapter and the applicable Florida Rules of Criminal Procedure, may be involuntarily committed for training upon a finding by the court of clear and convincing evidence that:

(a) The defendant is retarded or autistic;

(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 retardation 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, and who meets the criteria for commitment to the department under the provisions of this chapter, shall be committed to the department, and the department shall retain and serve the defendant. No later than 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 shall have determined 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 retardation or autism may be ordered by a circuit court into a secure facility designated by the department for retarded or autistic defendants.

(c) The department may transfer a defendant from a designated secure facility to another designated secure facility and must notify the court of the transfer within 30 days after the transfer is completed.

(d) The department may not transfer a defendant from a designated secure facility to a nonsecure facility without first notifying the court, and all parties, 30 days before the proposed transfer. If the court objects to the proposed transfer to a nonsecure facility, it must send its written objection to the department. The department 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 is both retarded or autistic and mentally ill, evaluations must address which condition is primarily affecting the defendant's competency to proceed. Referral of the defendant should be made to the facility or program most appropriate to address the symptoms which are the cause of the defendant's incompetence.

(b) Transfer from one facility or program to another facility or program may occur when, in the department's judgment, it is in the defendant's best treatment or training interests. Transfer will require an amended order from the committing court.

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 and ordered into a secure facility designated by the department for retarded or autistic defendants. No defendant may be released except by the order of the committing court.

(2) The committing court shall retain jurisdiction in the case of any defendant placed on conditional release. No such defendant may be released from the conditions of release except by order of the committing court.

(3) The committing court shall consider the petition to involuntarily admit to residential services provided by the department's developmental services program a person whose charges have been dismissed, 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.

916.303 Determination of incompetency due to retardation or autism; dismissal of charges.--

(1) The charges against any defendant found to be incompetent to proceed due to retardation 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 against the defendant are dismissed without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.

(2)(a) 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 department, the state attorney, or the defendant's attorney may apply to the committing court to involuntarily admit the defendant to residential services pursuant to s. 393.11.

(b) If the defendant is considered to need involuntary residential services under s. 393.11 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, then the person or entity filing the petition under s. 393.11, the state attorney, the defendant's counsel, the petitioning commission, or the department may also petition the committing court to continue the defendant's placement in a secure facility or program pursuant to this section. Any defendant involuntarily admitted under this paragraph shall have his or her status reviewed by the court at least annually at a hearing. The annual review and hearing shall determine whether the defendant continues to meet the criteria for involuntary residential services and, if so, whether the defendant still requires placement in a secure facility or program because the court finds that the defendant is likely to physically injure others as specified in s. 393.11 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 to the defendant's attorney. In no instance may a defendant's placement in a secure facility or program exceed the maximum sentence for the crime for which the defendant was charged.

916.304 Conditional release.--

(1) The committing court may order a conditional release of any defendant who has been found to be incompetent to proceed, based on an approved plan for providing continuing community-based training. The committing criminal court may order a conditional release of any defendant 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 shall 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. 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 returned to involuntary residential services of the department if it is found, after the appointment and report of experts, that the defendant meets the criteria for involuntary residential services.

(3) If at any time it is determined after a hearing that the defendant no longer requires court-supervised follow up care, the court shall terminate its jurisdiction in the cause and discharge the defendant.

This section of Florida law is provided for informational purposes only. This section does not include case law construction and is not intended to constitute legal interpretation nor advice.