The Florida Senate

394.467  Involuntary placement.--

(1)  CRITERIA.--A person may be involuntarily placed for treatment upon a finding of the court by clear and convincing evidence that:

(a)  He or she is mentally ill and because of his or her mental illness:

1.

a.  He or she has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment; or

b.  He or she is unable to determine for himself or herself whether placement is necessary; and

2.

a.  He or she is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or

b.  There is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; and

(b)  All available less restrictive treatment alternatives which would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.

(2)  ADMISSION TO A TREATMENT FACILITY.--A patient may be retained by a receiving facility or involuntarily placed in a treatment facility upon the recommendation of the administrator of a receiving facility where the patient has been examined and after adherence to the notice and hearing procedures provided in s. 394.4599. The recommendation must be supported by the opinion of a psychiatrist and the second opinion of a clinical psychologist or another psychiatrist, both of whom have personally examined the patient within the preceding 72 hours, that the criteria for involuntary placement are met. However, in counties of less than 50,000 population, if the administrator certifies that no psychiatrist or clinical psychologist is available to provide the second opinion, such second opinion may be provided by a licensed physician with postgraduate training and experience in diagnosis and treatment of mental and nervous disorders or by a psychiatric nurse. Such recommendation shall be entered on an involuntary placement certificate, which certificate shall authorize the receiving facility to retain the patient pending transfer to a treatment facility or completion of a hearing.

(3)  PETITION FOR INVOLUNTARY PLACEMENT.--The administrator of the facility shall file a petition for involuntary placement in the court in the county where the patient is located. Upon filing, the clerk of the court shall provide copies to the department, the patient, the patient's guardian or representative, and the state attorney and public defender of the judicial circuit in which the patient is located. No fee shall be charged for the filing of a petition under this subsection.

(4)  APPOINTMENT OF COUNSEL.--Within 1 court working day after the filing of a petition for involuntary placement, the court shall appoint the public defender to represent the person who is the subject of the petition, unless the person is otherwise represented by counsel. The clerk of the court shall immediately notify the public defender of such appointment. Any attorney representing the patient shall have access to the patient, witnesses, and records relevant to the presentation of the patient's case and shall represent the interests of the patient, regardless of the source of payment to the attorney.

(5)  CONTINUANCE OF HEARING.--The patient is entitled, with the concurrence of the patient's counsel, to at least one continuance of the hearing. The continuance shall be for a period of up to 4 weeks.

(6)  HEARING ON INVOLUNTARY PLACEMENT.--

(a)

1.  The court shall hold the hearing on involuntary placement within 5 days, unless a continuance is granted. The hearing shall be held in the county where the patient is located and shall be as convenient to the patient as may be consistent with orderly procedure and shall be conducted in physical settings not likely to be injurious to the patient's condition. If the court finds that the patient's attendance at the hearing is not consistent with the best interests of the patient, and the patient's counsel does not object, the court may waive the presence of the patient from all or any portion of the hearing. The state attorney for the circuit in which the patient is located shall represent the state, rather than the petitioning facility administrator, as the real party in interest in the proceeding.

2.  The court may appoint a master to preside at the hearing. One of the professionals who executed the involuntary placement certificate shall be a witness. The patient and the patient's guardian or representative shall be informed by the court of the right to an independent expert examination. If the patient cannot afford such an examination, the court shall provide for one. The independent expert's report shall be confidential and not discoverable, unless the expert is to be called as a witness for the patient at the hearing. The testimony in the hearing must be given under oath, and the proceedings must be recorded. The patient may refuse to testify at the hearing.

(b)  If the court concludes that the patient meets the criteria for involuntary placement, it shall order that the patient be transferred to a treatment facility or, if the patient is at a treatment facility, that the patient be retained there or be treated at any other appropriate receiving or treatment facility, or that the patient receive services from a receiving or treatment facility, on an involuntary basis, for a period of up to 6 months. The order shall specify the nature and extent of the patient's mental illness. The facility shall discharge a patient any time the patient no longer meets the criteria for involuntary placement, unless the patient has transferred to voluntary status.

(c)  If at any time prior to the conclusion of the hearing on involuntary placement it appears to the court that the person does not meet the criteria for involuntary placement under this chapter, but instead meets the criteria for involuntary assessment, protective custody, or involuntary admission pursuant to s. 397.675, then the court may order the person to be admitted for involuntary assessment for a period of 5 days pursuant to s. 397.6811. Thereafter, all proceedings shall be governed by chapter 397.

(d)  At the hearing on involuntary placement, the court shall consider testimony and evidence regarding the patient's competence to consent to treatment. If the court finds that the patient is incompetent to consent to treatment, it shall appoint a guardian advocate as provided in s. 394.4598.

(e)  The administrator of the receiving facility shall provide a copy of the court order and adequate documentation of a patient's mental illness to the administrator of a treatment facility whenever a patient is ordered for involuntary placement, whether by civil or criminal court. Such documentation shall include any advance directives made by the patient, a psychiatric evaluation of the patient, and any evaluations of the patient performed by a clinical psychologist or a clinical social worker. The administrator of a treatment facility may refuse admission to any patient directed to its facilities on an involuntary basis, whether by civil or criminal court order, who is not accompanied at the same time by adequate orders and documentation.

(7)  PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.--

(a)  Hearings on petitions for continued involuntary placement shall be administrative hearings and shall be conducted in accordance with the provisions of s. 120.57(1), except that any order entered by the hearing officer shall be final and subject to judicial review in accordance with s. 120.68. Orders concerning patients committed after successfully pleading not guilty by reason of insanity shall be governed by the provisions of s. 916.15.

¹(b)  If the patient continues to meet the criteria for involuntary placement, the administrator shall, prior to the expiration of the period during which the treatment facility is authorized to retain the patient, file a petition requesting authorization for continued involuntary placement. The request shall be accompanied by a statement from the patient's physician or clinical psychologist justifying the request, a brief description of the patient's treatment during the time he or she was involuntarily placed, and an individualized plan of continued treatment. Notice of the hearing shall be provided as set forth in s. 394.4599. If at the hearing the hearing officer finds that attendance at the hearing is not consistent with the best interests of the patient, the hearing officer may waive the presence of the patient from all or any portion of the hearing, unless the patient, through counsel, objects to the waiver of presence. The testimony in the hearing must be under oath, and the proceedings must be recorded.

(c)  Unless the patient is otherwise represented or is ineligible, he or she shall be represented at the hearing on the petition for continued involuntary placement by the public defender of the circuit in which the facility is located.

(d)  If at a hearing it is shown that the patient continues to meet the criteria for involuntary placement, the administrative law judge shall sign the order for continued involuntary placement for a period not to exceed 6 months. The same procedure shall be repeated prior to the expiration of each additional period the patient is retained.

(e)  If continued involuntary placement is necessary for a patient admitted while serving a criminal sentence, but whose sentence is about to expire, or for a patient involuntarily placed while a minor but who is about to reach the age of 18, the administrator shall petition the administrative law judge for an order authorizing continued involuntary placement.

²(f)  If the patient has been previously found incompetent to consent to treatment, the hearing officer shall consider testimony and evidence regarding the patient's competence. If the hearing officer finds evidence that the patient is now competent to consent to treatment, the hearing officer may issue a recommended order to the court that found the patient incompetent to consent to treatment that the patient's competence be restored and that any guardian advocate previously appointed be discharged.

(8)  RETURN OF PATIENTS.--When a patient at a treatment facility leaves the facility without authorization, the administrator may authorize a search for the patient and the return of the patient to the facility. The administrator may request the assistance of a law enforcement agency in the search for and return of the patient.

History.--s. 9, ch. 71-131; s. 8, ch. 73-133; ss. 3, 4, ch. 74-233; s. 1, ch. 75-305; s. 17, ch. 77-121; s. 205, ch. 77-147; s. 1, ch. 77-174; ss. 2, 8, ch. 77-312; s. 19, ch. 78-95; s. 1, ch. 78-197; s. 9, ch. 79-298; s. 2, ch. 79-336; ss. 2, 4, ch. 80-75; s. 12, ch. 82-212; s. 9, ch. 84-285; s. 28, ch. 85-167; s. 105, ch. 89-96; s. 70, ch. 90-271; s. 710, ch. 95-148; s. 18, ch. 96-169; s. 124, ch. 96-410.

¹Note.--Redesignated as paragraph (7)(b) and amended by s. 18, ch. 96-169. This version is published as the last expression of legislative will (see Journal of the House of Representatives 1996, pp. 2168 and 2374). Paragraph (4)(a) was also amended by s. 124, ch. 96-410, and that version of paragraph (4)(a), redesignated as paragraph (7)(b), reads:

(7)  PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.--

(b)  If continued placement of an involuntary patient is necessary, the administrator shall, prior to the expiration of the period during which the treatment facility is authorized to retain the patient, request an order authorizing continued involuntary placement. This request shall be accompanied by a statement from the patient's physician or clinical psychologist justifying the request and a brief summary of the patient's treatment during the time he or she was involuntarily placed. In addition, the administrator shall submit an individualized plan for the patient for whom he or she is requesting continued involuntary placement. Notification of this request for retention shall be mailed to the patient and his or her guardian or representative along with a completed petition, requiring only a signature, for a hearing regarding the continued hospitalization and a waiver-of-hearing form. The waiver-of-hearing form shall require express and informed consent and shall state that the patient is entitled to a hearing under the law; that he or she is entitled to be represented by an attorney at the hearing and, if he or she cannot afford an attorney, that one will be appointed; and that, if it is shown at the hearing that the patient does not meet the criteria for involuntary placement, he or she is entitled to be released. In a proceeding involving a person 18 years of age or older, the hearing may be waived by express and informed consent in writing by the patient after the advice of counsel. If the patient or his or her guardian or representative does not sign the petition, or if the patient does not sign a waiver within 15 days, the administrative law judge shall notice a hearing with regard to the patient involved in accordance with ss. 120.569 and 120.57(1). In a proceeding involving a person under the age of 18, the hearing shall not be waived; however, if, at the hearing, the administrative law judge finds that attendance at the hearing is not consistent with the best interests of the patient, he or she may waive the presence of the patient from all or any portion of the hearing.

²Note.--Redesignated as paragraph (7)(f) and amended by s. 18, ch. 96-169. This version is published as the last expression of legislative will (see Journal of the House of Representatives 1996, pp. 2168 and 2374). Paragraph (4)(h) was also amended by s. 124, ch. 96-410, and that version of paragraph (4)(h), redesignated as paragraph (7)(f), reads:

(f)  At any hearing hereunder for a patient who has been previously adjudicated incompetent to consent to treatment, the administrative law judge shall consider testimony and evidence regarding the patient's competence. If the administrative law judge finds evidence that the patient is competent to consent to treatment, he or she may issue to the court in which the patient was adjudicated incompetent to consent to treatment a recommended order that the patient's competence be restored and that any guardian advocate previously appointed be discharged.