NEW MENTAL HEALTH LEGISLATION

2018

The Legislature finds there is a need to comprehensively address the crisis of gun violence, including but not limited to, gun violence on school campuses. The Legislature intends to address this crisis by providing law enforcement and the courts with the tools to enhance public safety by temporarily restricting firearm possession by a person who is undergoing a mental health crisis and when there is evidence of a threat of violence, and by promoting school safety and enhanced coordination between education and law enforcement entities at the state and local level.

SB 7026 – Public Safety

The bill provides that a person who has been adjudicated mentally defective or who has been committed to a mental institution may not own or possess a firearm. The bill establishes a process to petition the court to remove a firearm possession and firearm ownership disability.

The bill also establishes a process for a law enforcement office to petition the court for a temporary, ex parte risk-protection order and a final risk-protection order to prevent a person from accessing firearms under certain circumstances. The court must find by clear and convincing evidence that a person poses a significant danger to himself or herself or others based upon a number of considerations, such as a recent act or threat of violence; evidence of serious mental illness or recurring mental health issues; violation of a protection order or no-contact order; a past criminal conviction for domestic violence or other violent crime; ownership of, access to, or an intent to possess a firearm; the unlawful or reckless use, display, or brandishing of a firearm; corroborated evidence of drug or alcohol abuse; recent acquisition of a firearm; etc.

Upon a finding of significant danger, the court may issue a risk-protection order for a period of up to 12 months. The court must order the respondent to surrender all firearms and ammunition in his or her custody, control, or possession, as well as any license to carry a concealed weapon or firearm. A law enforcement officer may petition the court for a search warrant to conduct a search for firearms or ammunition if he or she has probable cause to believe that the respondent has failed to surrender such items.

A person who knowingly files a petition containing materially false information, or files with the intent to harass the respondent, commits a first-degree misdemeanor. A person who purchases, possesses, or receives a firearm or ammunition with knowledge that he or she is violating a risk-protection order commits a third-degree felony.

The bill creates the Multiagency Services Network for Students with Severe Emotional Disturbances (SEDNET) to facilitate interagency collaboration in the education, mental health, substance abuse, child welfare, and juvenile justice systems. The bill also requires school districts to create mental health services allocation plan to provide mental health services to students.

2016

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.

HB 769 – Mental Health Treatment

Amends ss. 916.13, 916.145, 916.15, Fla. Stat.

Dismissal of charges after finding of incompetence. The amendment shortens the length of time a court must wait to dismiss an incompetent defendant’s charges to 3 years. Unless the charge is one of the enumerated offenses (murder, manslaughter, robbery, etc. or attempts of these crimes), the court can dismiss the charges against the defendant who remains incompetent for 3 years after the initial finding of incompetency. There are other exceptions to this rule including (1) the defendant’s possession, use or discharge of a firearm, (2) a prior conviction for a forcible felony within the five years preceding arrest in the instant case, (3) he was previously found incompetent and on conditional release when he was formally charged with a new felony or (4) the victim does not consent to dismissal.

Competency Hearing within 30 Days for ITP and NGI. The bill requires that a competency hearing be held within 30 days of the court’s notification that a defendant is either competent to proceed or no longer meets the criteria for continued commitment. If the defendant was found Not Guilty by Reason of Insanity, a commitment hearing must be held within 30 days after the court has been notified the defendant no longer meets the criteria for commitment. For both types of hearings, the defendant must be transported to court for the hearing.

Forced Medication. Fla Stat 916.107 – If client is receiving psychotropic medication at the jail and is transferred to a forensic facility and lacks capacity to make informed decision as to treatment, the court can order continued medication.  The order can be in effect up to 90 days and then if necessary can be extended up to another 90 days.  This procedure can be repeated until the client consents to medication or is discharged.  Need for medication has to be proven by clear and convincing evidence and there are several factors that have to be proven.  Public defender may be appointed to represent client during this process.

HB 439 – Mental Health

Amends s. 394.4655, Fla. Stat.

Court can order involuntary outpatient services if all criteria are met by clear and convincing evidence:  (1) 18 years of age; (2) Has mental illness; (3) Unlikely to survive safely in the community without supervision; (4) Client has a history of lack of compliance with treatment; (5) Client has been involuntarily committed via baker act, incompetence or insanity twice in the last 36 months or received mental health services in a forensic or correctional facility twice in the last 36 months OR engaged in serious violent behavior towards self or others in the preceding 36 months; (6) Unlikely to voluntarily participate in a treatment plan and has refused treatment in the past; (7)Client is in need of involuntary outpatient services to prevent relapse or deterioration that would result in harm to self or others; (8) Client will benefit from involuntary outpatient services; (9) No less restrictive alternative. The requirements for the petition are strict.

A Public Defender will be appointed after one day of the petition being filed.  The order can be in effect up to 90 days.  If client violated, they can be involuntarily committed or placed back on involuntary outpatient services for the remainder of the 90 days.

Fla. Stat. s. 948.001 – Mental Health Probation

Specialized probation emphasizing mental health treatment. Mental health probation officers should be restricted to a maximum of 50 cases or less.

Fla. Stat. s. 948.01. Criteria for Mental Health Probation/Community Control

  • Offense committed after 7/1/16.
  • Defendant has been adjudicated.
  • Offense is a nonviolent felony (Resisting Arrest with Violence, Battery on a Law Enforcement Officer or Aggravated Assault, can participate if victim provided right to testify or make a statement)
  • Defendant is amenable to mental health treatment, including taking medications.
  • Is otherwise qualified under s. 394.47892(4).

Fla. Stat. s. 948.06

For offenses committed after 7-1-16, on a violation of probation a court can order the client to complete mental health court or vet court of they meet the criteria.  The client must agree to participate.  If the court orders mental health or vet court then jurisdiction is transferred to the judge over those courts.  If client is terminated from one of the specialty courts, jurisdiction returns to the sentencing judge.

Fla. Stat. s. 948.08. Pretrial Intervention for veterans and mental health clients.

“Veteran” now expressly includes a veteran who was discharged or released under a general discharge.

Defendants with mental health conditions can be placed in a pretrial intervention program on motion of the parties or the judge’s own motion if the defendant: (1) has a mental illness; (2) has not been convicted of a felony; and (3) is charged with a nonviolent felony or if the felony is a Battery on a Law Enforcement Officer, Resisting Arrest with Violence, or Aggravated Assault, the victim and Assistant State Attorney must consent to placement in the program. If the court determines that the defendant has successfully completed the pretrial intervention program, it shall dismiss the charges against him.

Fla. Stat. s. 948.16. Misdemeanor pretrial mental health court program.

A defendant charged with a misdemeanor and has a mental illness is eligible for this program.

Fla. Stat. 948.21. Condition of probation for vets.

A defendant who is a veteran and has a military related mental illness, traumatic brain injury, substance abuse disorder or psychological problem, the court may impose a condition requiring the probationer or community controllee to participate in a treatment program capable of treating his mental illness or psychological problem.

Fla. Stat. 985.345 – Juvenile pretrial intervention programs.

A child who has been identified as having a mental illness and who has not been previously adjudicated for a felony is eligible for this program on motion of either party or court’s own motion.  A child charged with a misdemeanor, nonviolent felony or Resisting Arrest with Violence, Battery on a Law Enforcement Officer, or Aggravated Assault (with consent of victim and State). The court may dismiss the charges after successful completion of the program. A child whose charges are dismissed may have his criminal history for those charges expunged.