vs. ) CASE NO. 81-112
Respondent. )
Pursuant to notice, a formal hearing was conducted on April 2, 1981, at Florida State Hospital, Chattahoochee, Florida.
For Respondent: Gerry L. Clark, Esquire
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, James Guinn, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
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 January 15, 1981. A final hearing in this cause was scheduled for March 3, 1981, but was not conducted until April 2, 1981, to allow Petitioner to secure representation.
In the course of the final hearing the Petitioner testified in his own behalf and called Michael Pomeroy, Staff Psychologist in the forensic service at the Florida State Hospital as his witness. The Respondent called as witnesses Michael Denny, 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.
At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Bradford County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning May 22, 1978, through the present, 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.
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 sexual deviation, pedophilia. This condition involves the use of young children as a sexual object to reach sexual gratification. In this instance, the Petitioner has been placed in the hospital unit for his involvement with a young child.
During the Petitioner's stay, his most remarkable progress has been made in the area of adjunctive therapy, namely vocational education and rehabilitation and occupational therapy. He has learned the "trade" of small engine repair mechanic and has made sufficient progress to be marketable as a small engine repairman. In addition, he has worked as a voluntary laborer and has made progress in leather occupational therapy.
As stated before, the primary treatment modality is group therapy, which involves group discussion between six to ten participants in the program and their primary therapist. These sessions meet two times a week for an hour. The members of the groups are persons who are experiencing similar problems, and the idea is to have those group members confront each other to divulge their problems and begin to correct those difficulties.
By July, 1980, the treatment team, in conjunction with the Petitioner had overcome the Petitioner's difficulty with impulse control to a sufficient extent that the Petitioner was willing to discuss his past problems with his family and perhaps was ready to create an atmosphere of trust necessary to consider his underlying problem with sexual deviation. At that juncture, he was moved from his group conducted by a female therapist to a group with a male therapist. From that point forward, notwithstanding attempts to have the Petitioner deal with his problem in some detail, the Petitioner has remained superficial about his condition. The Petitioner is guarded and closed about his past and, to some extent, about his future desires. The Petitioner has been unwilling to examine his inner feelings to gain the necessary insight about his
problems to develop an alternative coping mechanism for those times when he is confronted with the tendency to be sexually deviant. Without that insight, his progress has been minimal.
In the group sessions, the Petitioner has found it easier to help others than to help himself. In the view of his silence, the therapist has been required to treat the outward manifestation of symptoms as opposed to treating the Petitioner's restatement of those symptoms. There has been some success in teaching the Petitioner assertion skills, that is to be assertive in exchanges as opposed to aggressive. The Petitioner intellectually understands the difference between expressing thought as opposed to expressing feelings, but he has had difficulty perceiving this emotionally.
Guinn is at the place in the program which is described as a latter phase and in that phase, self motivation is essential. At the November 5, 1980, staffing to consider the question of whether the treatment has been exhausted, when confronted with questions about his sexual problem, the Petitioner was guarded, vague and evasive. When he received a negative report and an indication that it was the intention of the staff to recommend his return to court for reason of exhaustion of treatment, the Petitioner refused to attend the group therapy sessions until December 8, 1980. His return to the sessions was promoted by conversation with a staff psychologist.
In January, 1981, he was moved to a new group with a different group therapist and has appeared at ease in the group therapy sessions recently held, but has failed to take the initiative and still appears superficial in his efforts to address his problem.
At the November 5, 1980, staff conference there was one positive sign in that the Petitioner indicated that he no longer fantasizes about young boys in a sexual way but now fantasizes about women; however, he was unable to say when this change of attitude had occurred and it is, therefore, difficult to know how significant this statement would be, especially in view of the fact that his participation in the group therapy sessions is shallow.
In addition to his improverent in impulse control, he has improved in his ability to relate to other persons on a superficial level. Guinn still has problems relating to persons on an interpersonal level. An example is his ability to relate facts about the crimes for which he has been placed in the program, as contrasted with his inability to state why he did those crimes.
The Florida State Hospital has nothing further that they can offer the Petitioner in dealing with his sexual deviation and on December 11, 1980, the program administrators of the various sex offender programs within the State of Florida discussed the Petitioner's case and concluded that treatment had been exhausted in the entire system administered by the Respondent.
The Petitioner wishes to stay in the program and feels that the program has a lot to offer and that he can learn more from the program. He feels that his problem of opening up in the group therapy sessions is associated with his fear of what people will think of what he has done. Nonetheless, he states that he would discuss his situation now, although he has not done so in the past. He feels that he has his problem under control and can go out and not commit crimes, although he still needs help for his condition because he is not completely under control. He states that he is willing to cooperate in further treatment. According to the Petitioner, he has not talked in the group sessions
lately in view of the negative report in the staff conference of November 5, 1980.
CONCLUSIONS OF LAW
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).
Ultimately, question 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).
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.
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).
That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for James Guinn, and that said James Guinn be returned to the committing courts for farther 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
Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1981.
