STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER S. ALLSUP, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2313

) STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE )

SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted on April 2, 1981, at Florida State Hospital, Chattahoochee, Florida.

APPEARANCES

For Petitioner: David T. Young, Esquire

Post Office Box 563 Rockledge, Florida 39255

For Respondent: Gerry L. Clark, Esquire

Florida State Hospital Chattahoochee, Florida 32324

ISSUE

The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Christopher S. Allsup, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).

FINDINGS OF FACT

1. The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on December 10, 1980. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until April 2, 1981, to allow Petitioner to be examined by an independent physician.

   
   

2. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Alison Dowling, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr.,

   Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's Exhibit No. 1 was admitted as evidence.

   
   

3. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of court and the authority of Chapter 917, Florida Statutes (1977). Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs.

   
   

4. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as antisocial personality. Persons who carry this diagnosis have a consistent pattern of antisocial behavior involving the violation of rights of others. In the Petitioner's case, this has lead to offenses of breaking and entering and other forms of theft, together with sexual crimes, substance abuse and fighting. In spite of the efforts at treating his condition, the Petitioner has made no significant progress and continues to be dangerous.

   
   

5. The Petitioner has participated in group therapy, recreational therapy, vocational rehabilitation and band and music.

   
   

6. The Petitioner has done well in recreational therapy having been interested in athletics as a young man. In addition, he has made progress in vocational rehabilitation in the typing and accounting courses which he has participated in and has shown satisfactory interest in band and music. Notwithstanding the progress in these areas, his progress in group therapy, the primary treatment modality, has not been satisfactory, and without progress in that area, his achievement in the adjunctive therapies will not lead to a satisfactory result related to his underlying diagnosis.

   
   

7. He simply has not used the group therapy sessions as a vehicle for self discovery which is needed to identify his problems and to clarify the deficiency in his personality. In the group therapy sessions, he has presented minimal information about himself and when asked to discuss his problems, he has been guarded and occasionally hostile. Without opening up, it has been impossible to identify the reason for his sexually deviant behavior which is a symptom of his underlying difficulty.

   
   

8. The Petitioner was referred to Alcoholics Anonymous within the Hospital unit, but he has not participated in that program in a significant way. This program would have assisted the Petitioner in view of his problem with substance abuse.

   
   

9. In the summary of 1980, an informal staffing conference was held to discuss the Petitioner's progress and he was told that the staff did not feel that he was participating freely and that he was not discharging sufficient

   information to achieve progress. The Petitioner did not agree and felt that he had been doing what was necessary. In an effort to try to assist the Petitioner, the staff gave him another chance before they decided that treatment had been exhausted. In addition, an agreement was made with him in which the Petitioner was to refrain from acting out; to be more open in group therapy; to write nightly self-reports to the therapist and to learn to deal with authority figures. The effort by staff to assist the Petitioner in achieving progress was not successful and on November 18, 1980, in the formal staff session, it was determined that the staff had exhausted all available treatment for the patient. It was also determined that he still met the definition of sex offender.

   
   

10. (It should be noted that some attempts have been made to deal with the patient through individual therapy, but this form of treatment is not the most beneficial approach with a person who has an antisocial personality and who tends to be manipulative with his therapist.)

    
    

11. On January 26, 1981, the Petitioner was presented to a screening committee constituted of the program administrators in the various sex offender programs within the State of Florida, and it was the determination of those individuals that treatment had been exhausted for the Petitioner in any program that might be available in the State of Florida.

    
    

12. In summary, although the Petitioner has made improvement, it is not sufficient enough to cause the Respondent to continue to exert effort in remedying his problems. He continues to be guarded and withdrawn and to impart little information about himself.

    
    

13. The Petitioner feels that in his twenty-six (26) months stay in the program, that he has made progress in the area of impulse control and judgment and accepting authority figures and acting more responsibly. He feels that he used to be "hot tempered" and easily intimidated and involved in lots of fights. In this program he has been in only one fight. If allowed to remain, the Petitioner says he could improve and could work in the future, notwithstanding, problems being open around others and a tendency to hesitate in dealing with others. He feels that he has accepted the responsibility for his criminal act and is not proud of it and is in fact ashamed of what he has done and could control himself in the future. His feeling of guilt has slightly placed a burden on his discussing the problem, according to the Petitioner. As he states it, he can relate to the group what happened, he can not relate why he did the act. Finally, the Petitioner says that the group sessions have been beneficial and although he has not "put" his "all in it" he has progressed.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Section 917.20, Florida Statutes (1977), and Section 917.011, Florida Statutes (1979).

    
    

15. Ultimately, questions of whether the Petitioner is properly classified as a mentally disordered sex offender, and the disposition to be made with respect to the Petitioner after he has received treatment as a mentally disordered sex offender are questions to be determined by the committing court; however, preliminary to that determination by the court is a question of whether the Respondent has exhausted all appropriate treatment of this patient [see statutory references set forth in paragraph (1) to these conclusions of law]. This hearing was designed to address the question of exhaustion of treatment and once the Department has made the final determination, the committing court may

    pursue the alternatives available to it as set forth in Subsection 917.011(1), Florida Statutes (1979). See also Cummings v. State, 379 So.2d 988 (Fla. 1st DCA 1980).

    
    

16. The decision of whether the Respondent has exhausted all available treatment is one affecting the substantial interest of the Petitioner, within the meaning of Subsection 120.57(1), Florida Statutes, and this administrative hearing was conducted in keeping with the terms and conditions set forth in Chapter 120, Florida Statutes, which calls for determination of the issue of exhaustion of treatment by the executive branch of government as opposed to a judicial determination.

    
    

17. After a full consideration of the facts found herein, it is concluded as a matter of law that the Respondent has exhausted all appropriate treatment for the Petitioner. Therefore, the Petitioner should be returned to court with an accompanying report as set forth in Subsection 917.011(1), Florida Statutes (1979).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusion of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Christopher S. Allsup, and that said Christopher S. Allsup be returned to the committing court for further disposition.

DONE and ENTERED this 14th day of April, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1981.

COPIES FURNISHED:

David T. Young, Esquire Post Office Box 563 Rockledge, Florida 39255

Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324

Docket for Case No: 80-002313

Orders for Case No: 80-002313