HB 1197 2003
1	A bill to be entitled
2	An act relating to The Baker Act; amending s. 394.455,
3	F.S.; defining the term "service provider"; amending s.
4	394.4598, F.S.; revising language with respect to the
5	guardian advocate; authorizing the guardian advocate to
6	consent to administration of medication over objection
7	under certain circumstances; amending s. 394.463, F.S.;
8	revising language with respect to involuntary examination;
9	amending s. 394.467, F.S.; revising language with respect
10	to involuntary placement; providing reference to inpatient
11	and outpatient involuntary placement; providing
12	requirements for placement orders; providing for voluntary
13	treatment agreements; providing a procedure for continued
14	involuntary outpatient placement; providing for
15	severability; providing an effective date.
16
17	Be It Enacted by the Legislature of the State of Florida:
18
19	Section 1. Subsection (31) is added to section 394.455,
20	Florida Statutes, to read:
21	394.455 Definitions.--As used in this part, unless the
22	context clearly requires otherwise, the term:
23	(31) “Service provider” means any public or private
24	receiving facility, entity under contract with the Department of
25	Children and Family Services to provide mental health services,
26	or a clinical psychologist, clinical social worker, physician,
27	psychiatric nurse, community mental health center, or clinic as
28	defined in this part.
29	Section 2. Subsections (1),(6), and (7) of section
30	394.4598, Florida Statutes, are amended to read:
31	394.4598 Guardian advocate.--
32	(1) The administrator may petition the court for the
33	appointment of a guardian advocate based upon the opinion of a
34	psychiatrist that the patient is incompetent to consent to
35	treatment. If the court finds that a patient is incompetent to
36	consent to treatment and has not been adjudicated incapacitated
37	and a guardian with the authority to consent to mental health
38	treatment appointed, it shall appoint a guardian advocate. The
39	patient has the right to have an attorney represent him or her
40	at the hearing. If the person is indigent, the court shall
41	appoint the office of the public defender to represent him or
42	her at the hearing. The patient has the right to testify, cross-
43	examine witnesses, and present witnesses. The proceeding shall
44	be recorded either electronically or stenographically, and
45	testimony shall be provided under oath. One of the professionals
46	authorized to give an opinion in support of a petition for
47	involuntary placement, as described in s. 394.467(3)(2), must
48	testify. A guardian advocate must meet the qualifications of a
49	guardian contained in part IV of chapter 744, except that a
50	professional referred to in this part, an employee of the
51	facility providing direct services to the patient under this
52	part, a departmental employee, a facility administrator, or
53	member of the Florida local advocacy council shall not be
54	appointed. A person who is appointed as a guardian advocate must
55	agree to the appointment.
56	(6) If a guardian with the authority to consent to medical
57	treatment has not already been appointed or if the patient has
58	not already designated a health care surrogate, the court may
59	authorize the guardian advocate to consent to medical treatment,
60	as well as mental health treatment. Unless otherwise limited by
61	the court, a guardian advocate with authority to consent to
62	medical treatment shall have the same authority to make health
63	care decisions and be subject to the same restrictions as a
64	proxy appointed under part IV of chapter 765. If the patient has
65	an involuntary outpatient placement order that includes
66	medication and the patient refuses medication, the service
67	provider may seek an ex parte order pursuant to s. 394.463(2)(a)
68	and the guardian advocate may consent to administration of
69	medication over objection when the person is brought to a
70	receiving facility.Unless the guardian advocate has sought and
71	received express court approval in proceeding separate from the
72	proceeding to determine the competence of the patient to consent
73	to medical treatment, the guardian advocate may not consent to:
74	(a) Abortion.
75	(b) Sterilization.
76	(c) Electroconvulsive treatment.
77	(d) Psychosurgery.
78	(e) Experimental treatments that have not been approved by
79	a federally approved institutional review board in accordance
80	with 45 C.F.R. part 46 or 21 C.F.R. part 56.
81
82	The court must base its decision on evidence that the treatment
83	or procedure is essential to the care of the patient and that
84	the treatment does not present an unreasonable risk of serious,
85	hazardous, or irreversible side effects. The court shall follow
86	the procedures set forth in subsection (1) of this section.
87	(7) The guardian advocate shall be discharged when the
88	patient is discharged from an order for involuntary inpatient or
89	outpatient placementa receiving or treatment facility to the
90	communityor when the patient is transferred from involuntary to
91	voluntary status. The court or a hearing officer shall consider
92	the competence of the patient pursuant to subsection (1) and may
93	consider an involuntarily placed patient's competence to consent
94	to treatment at any hearing. Upon sufficient evidence, the court
95	may restore, or the hearing officer may recommend that the court
96	restore, the patient's competence. A copy of the order restoring
97	competence or the certificate of discharge containing the
98	restoration of competence shall be provided to the patient and
99	the guardian advocate.
100	Section 3. Subsection (1) and paragraphs (a), (e), and (i)
101	of subsection (2) of section 394.463, Florida Statutes, are
102	amended to read:
103	394.463 Involuntary examination.--
104	(1) CRITERIA.--A person may be taken to a receiving
105	facility for involuntary examination if there is reason to
106	believe that the person has a mental illnesshe or she is
107	mentally ill and because of his or her mental illness, including
108	consideration of evidence presented on the person’s relevant
109	medical and treatment history:
110	(a)1. The person has refused voluntary examination after
111	conscientious explanation and disclosure of the purpose of the
112	examination; or
113	2. The person is unable to determine for himself or
114	herself whether examination is necessary; and
115	(b)1. Without care or treatment, the person is likely to
116	suffer from neglect or refuse to care for himself or herself;
117	such neglect or refusal poses a real and present threat of
118	substantial harm to his or her well-being; and it is not
119	apparent that such harm may be avoided through the help of
120	willing family members or friends or the provision of other
121	services; or
122	2. There is a substantial likelihood that without care or
123	treatment the person will cause serious bodily harm to himself
124	or herself or others in the near future, as evidenced by recent
125	behavior; or.
126	3. That the person is 18 years of age or older and there
127	is a substantial likelihood that without care or treatment the
128	person’s condition will deteriorate to the point that, in the
129	reasonably foreseeable future, the person will meet the criteria
130	described in subparagraphs 1. and 2., based on the person’s
131	present condition and well-established history of:
132	a. Two or more separate episodes within the preceding 36
133	months wherein the person has been admitted for examination or
134	placement in a receiving or treatment facility as defined in s.
135	394.455, and/or arrested for criminal behavior, not including
136	any period during which the person was in a receiving or
137	treatment facility or incarcerated; or
138	b. One or more acute psychiatric episodes resulting in
139	serious physical violence.
140	(2) INVOLUNTARY EXAMINATION.--
141	(a) An involuntary examination may be initiated by any one
142	of the following means:
143	1. A court may enter an ex parte order stating that a
144	person appears to meet the criteria for involuntary examination,
145	or is not complying with an outpatient placement order issued
146	pursuant to s. 394.467(7)(b),giving the findings on which that
147	conclusion is based. The ex parte order for involuntary
148	examination must be based on sworn testimony, written or oral.
149	If other less restrictive means are not available, such as
150	voluntary appearance for outpatient evaluation, a law
151	enforcement officer, or other designated agent of the court,
152	shall take the person into custody and deliver him or her to the
153	nearest receiving facility for involuntary examination. The
154	order of the court shall be made a part of the patient's
155	clinical record. No fee shall be charged for the filing of an
156	order under this subsection. Any receiving facility accepting
157	the patient based on this order must send a copy of the order to
158	the Agency for Health Care Administration on the next working
159	day. The order shall be valid only until executed or, if not
160	executed, for the period specified in the order itself. If no
161	time limit is specified in the order, the order shall be valid
162	for 7 days after the date that the order was signed.
163	2. A law enforcement officer shall take a person who
164	appears to meet the criteria for involuntary examination into
165	custody and deliver the person or have him or her delivered to
166	the nearest receiving facility for examination. The officer
167	shall execute a written report detailing the circumstances under
168	which the person was taken into custody, and the report shall be
169	made a part of the patient's clinical record. Any receiving
170	facility accepting the patient based on this report must send a
171	copy of the report to the Agency for Health Care Administration
172	on the next working day.
173	3. A physician, clinical psychologist, psychiatric nurse,
174	or clinical social worker may execute a certificate stating that
175	he or she has examined a person within the preceding 48 hours
176	and finds that the person appears to meet the criteria for
177	involuntary examination and stating the observations upon which
178	that conclusion is based. If other less restrictive means are
179	not available, such as voluntary appearance for outpatient
180	evaluation, a law enforcement officer shall take the person
181	named in the certificate into custody and deliver him or her to
182	the nearest receiving facility for involuntary examination. The
183	law enforcement officer shall execute a written report detailing
184	the circumstances under which the person was taken into custody.
185	The report and certificate shall be made a part of the patient's
186	clinical record. Any receiving facility accepting the patient
187	based on this certificate must send a copy of the certificate to
188	the Agency for Health Care Administration on the next working
189	day.
190	(e) The Agency for Health Care Administration shall
191	receive and maintain the copies of ex parte orders, placement
192	orders issued pursuant to s. 394.467(7)(b), voluntary treatment
193	agreements issued pursuant to 394.4625, professional
194	certificates, and law enforcement officers' reports. These
195	documents shall be considered part of the clinical record,
196	governed by the provisions of s. 394.4615. The agency shall
197	prepare annual reports analyzing the data obtained from these
198	documents, without information identifying patients, and shall
199	provide copies of reports to the department, the President of
200	the Senate, the Speaker of the House of Representatives, and the
201	minority leaders of the Senate and the House of Representatives.
202	(i) Within the 72-hour examination period or, if the 72
203	hours ends on a weekend or holiday, no later than the next
204	working day thereafter, one of the following actions must be
205	taken, based on the individual needs of the patient:
206	1. The patient shall be released, unless he or she is
207	charged with a crime, in which case the patient shall be
208	returned to the custody of a law enforcement officer;
209	2. The patient shall be released, subject to the
210	provisions of subparagraph 1., for outpatient treatment;
211	3. The patient, unless he or she is charged with a crime,
212	shall be asked to give express and informed consent to placement
213	as a voluntary patient, and, if such consent is given, the
214	patient shall be admitted as a voluntary patient; or
215	4. A petition for involuntary inpatient or outpatient
216	placement shall be filed in the appropriate court by the
217	petitionerfacility administratorwhen treatment is deemed
218	necessary; in which case, the least restrictive treatment
219	consistent with the optimum improvement of the patient's
220	condition shall be made available.
221	Section 4. Section 394.467, Florida Statutes, is amended
222	to read:
223	394.467 Involuntary placement.--
224	(1) CRITERIA.--A person may be involuntarily placed in
225	inpatientfor treatment upon a finding of the court, the
226	determination of which shall include consideration of evidence
227	presented on the person’s relevant medical and treatment
228	history, that by clear and convincing evidence that:
229	(a) The person has a mental illnessHe or she is mentally
230	illand because of his or her mental illness:
231	1.a. He or she has refused voluntary placement for
232	treatment after sufficient and conscientious explanation and
233	disclosure of the purpose of placement for treatment; or
234	b. He or she is unable to determine for himself or herself
235	whether placement is necessary; and
236	2.a. He or she is manifestly incapable of surviving alone
237	or with the help of willing and responsible family or friends,
238	including available alternative services, and, without
239	treatment, is likely to suffer from neglect or refuse to care
240	for himself or herself, and such neglect or refusal poses a real
241	and present threat of substantial harm to his or her well-being;
242	or
243	b. There is substantial likelihood that in the near future
244	he or she will inflict serious bodily harm on himself or herself
245	or another person, as evidenced by recent behavior causing,
246	attempting, or threatening such harm; and
247	(b) All available less restrictive treatment alternatives
248	which would offer an opportunity for improvement of his or her
249	condition have been judged to be inappropriate.
250	(2) CRITERIA FOR OUTPATIENT PLACEMENT.—-A person 18 years
251	of age or older may be ordered to involuntary outpatient
252	placement upon a finding of the court, the determination of
253	which shall include consideration of evidence presented on the
254	person’s relevant medical and treatment history, that by clear
255	and convincing evidence:
256	(a) The person has a mental illness and because of his or
257	her mental illness:
258	1.a. He or she has refused voluntary treatment after
259	sufficient and conscientious explanation and disclosure of the
260	purpose of placement for treatment; or
261	b. He or she is unable to determine for himself or herself
262	whether treatment is necessary; and
263	2.a. He or she is manifestly incapable of surviving alone
264	or with the help of willing and responsible family or friends,
265	including available alternative services, and without treatment
266	is likely to suffer from neglect or refuse to care for himself
267	or herself, and such neglect or refusal poses a real and present
268	threat of substantial harm to his or her well-being;
269	b. There is a substantial likelihood that in the near
270	future he or she will inflict serious bodily harm on himself or
271	herself or another person, as evidenced by recent behavior
272	causing, attempting, or threatening such harm; or
273	c. There is substantial likelihood that without care or
274	treatment the person’s condition will deteriorate to the point
275	that, in the reasonably foreseeable future, the person will meet
276	the criteria described in paragraphs (1)(a) and(b) based on the
277	person’s present condition and a well-established history of:
278	(I) Two or more separate episodes within the 36 months
279	preceding the filing of the petition wherein the person has been
280	admitted for examination or placement in a receiving or
281	treatment facility as defined in s. 394.455 and/or arrested for
282	criminal behavior, not including any period during which the
283	person was in a receiving or treatment facility or incarcerated;
284	or
285	(II) One or more prior acute episodes resulting in serious
286	physical violence; and
287	(b) All available less restrictive treatment alternatives
288	which would offer an opportunity for improvement of his or her
289	condition have been judged to be inappropriate.
290	(3) INVOLUNTARY PLACEMENT.--
291	(a) Involuntary examination for inpatient or outpatient
292	placement.--(2) ADMISSION TO A TREATMENT FACILITY.--A patient
293	may be retained by a receiving facility or involuntarily placed
294	in a treatment facility or outpatient treatmentupon the
295	recommendation of the administrator of a receiving facility
296	where the patient has been examined and after adherence to the
297	notice and hearing procedures provided in s. 394.4599. The
298	recommendation must be supported by the opinion of a
299	psychiatrist and the second opinion of a clinical psychologist
300	or another psychiatrist, both of whom have personally examined
301	the patient within the preceding 72 hours, that the criteria for
302	involuntary inpatient or outpatientplacement are met. However,
303	in counties of less than 50,000 population, if the administrator
304	certifies that no psychiatrist or clinical psychologist is
305	available to provide the second opinion, such second opinion may
306	be provided by a licensed physician with postgraduate training
307	and experience in diagnosis and treatment of mental and nervous
308	disorders or by a psychiatric nurse. The opinions of the
309	examining professionals supporting an involuntary outpatient
310	placement shall include a determination as to whether the
311	patient is competent to provide express and informed consent for
312	a voluntary treatment agreement.Such recommendation shall be
313	entered on an involuntary inpatient or outpatientplacement
314	certificate, which certificate shall authorize the receiving
315	facility to retain the patient pending transfer to a treatment
316	facility, outpatient treatment,or completion of a hearing.
317	(b) Voluntary examination for outpatient placement.--In
318	cases where arrangements can be made, a patient may agree to be
319	examined on an outpatient basis for an involuntary outpatient
320	placement certificate. The certificate must be supported by the
321	opinion of a psychiatrist and the second opinion of a clinical
322	psychologist or another psychiatrist, both of whom have
323	personally examined the patient within the preceding 14 calendar
324	days, that the criteria for involuntary outpatient placement are
325	met. However, in counties of less than 50,000 population, if the
326	psychiatrist certifies that no psychiatrist or clinical
327	psychologist is available to provide the second opinion, such
328	second opinion may be provided by a licensed physician with
329	postgraduate training and experience in diagnosis and treatment
330	of mental and nervous disorders or by a psychiatric nurse. The
331	opinions of the examining professionals supporting an
332	involuntary outpatient placement shall include a determination
333	as to whether the patient is competent to provide express and
334	informed consent for a voluntary treatment agreement.
335	(4)(3)PETITION FOR INVOLUNTARY PLACEMENT.--
336	(a) A petition for involuntary placement may be filed by
337	one of the following means:
338	1.The administrator of the facility shall file a petition
339	for involuntary inpatient or outpatient placement pursuant to s.
340	394.467; or
341	2. For persons examined on a voluntary outpatient basis
342	pursuant to s. 394.4625, one of the examining professionals may
343	file a petition for involuntary outpatient placement. Upon
344	filing, the examining professional shall provide a copy of the
345	petition to the receiving facility that will identify the
346	service provider for the involuntary outpatient placement.
347	(b) The petition for involuntary inpatient or outpatient
348	placement shall be filedin the courtin the county where the
349	patient is located. Upon filing, the clerk of the court shall
350	provide copies to the department, the patient, the patient's
351	guardian or representative, and the state attorney and public
352	defender of the judicial circuit in which the patient is
353	located. No fee shall be charged for the filing of a petition
354	under this subsection.
355	(5)(4)APPOINTMENT OF COUNSEL.--Within 1 court working day
356	after the filing of a petition for involuntary inpatient or
357	outpatientplacement, the court shall appoint the public
358	defender to represent the person who is the subject of the
359	petition, unless the person is otherwise represented by counsel.
360	The clerk of the court shall immediately notify the public
361	defender of such appointment. Any attorney representing the
362	patient shall have access to the patient, witnesses, and records
363	relevant to the presentation of the patient's case and shall
364	represent the interests of the patient, regardless of the source
365	of payment to the attorney.
366	(6)(5)CONTINUANCE OF HEARING.--The patient is entitled,
367	with the concurrence of the patient's counsel, to at least one
368	continuance of the hearing. The continuance shall be for a
369	period of up to 4 weeks.
370	(7)(6)HEARING ON INVOLUNTARY PLACEMENT.--
371	(a)1. The court shall hold the hearing on involuntary
372	inpatient or outpatientplacement within 5 days, unless a
373	continuance is granted. The hearing shall be held in the county
374	where the patient is located and shall be as convenient to the
375	patient as may be consistent with orderly procedure and shall be
376	conducted in physical settings not likely to be injurious to the
377	patient's condition. If the court finds that the patient's
378	attendance at the hearing is not consistent with the best
379	interests of the patient, and the patient's counsel does not
380	object, the court may waive the presence of the patient from all
381	or any portion of the hearing. The state attorney for the
382	circuit in which the patient is located shall represent the
383	state, rather than the petitionerpetitioningfacility
384	administrator, as the real party in interest in the proceeding.
385	2. The court may appoint a master to preside at the
386	hearing. One of the professionals who executed the involuntary
387	inpatient or outpatientplacement certificate shall be a
388	witness. The patient and the patient's guardian or
389	representative shall be informed by the court of the right to an
390	independent expert examination. If the patient cannot afford
391	such an examination, the court shall provide for one. The
392	independent expert's report shall be confidential and not
393	discoverable, unless the expert is to be called as a witness for
394	the patient at the hearing. The court shall allow relevant
395	testimony from individuals, including family members, regarding
396	the person’s prior history and how that prior history relates to
397	the person’s current condition.The testimony in the hearing
398	must be given under oath, and the proceedings must be recorded.
399	The patient may refuse to testify at the hearing.
400	(b)1.If the court concludes that the patient meets the
401	criteria for involuntary placement pursuant to subsecton (1), it
402	shall order that the patient be transferred to a treatment
403	facility or, if the patient is at a treatment facility, that the
404	patient be retained there or be treated at any other appropriate
405	receiving or treatment facility, or that the patient receive
406	services from a receiving or treatment facility, on an
407	involuntary basis. If the court concludes that the patient meets
408	the criteria for involuntary outpatient placement pursuant to
409	subsection (2), the court shall issue an order for outpatient
410	placement. The court order shall be, for a period of up to 6
411	months. The order shall specify the nature and extent of the
412	patient's mental illness. The facility or service providershall
413	discharge a patient any time the patient no longer meets the
414	criteria for involuntary placement, unless the patient has
415	transferred to voluntary status.
416	2. The placement order shall specify the nature and extent
417	of the patient's mental illness and whether treatment shall be
418	on an inpatient or outpatient basis. For an outpatient placement
419	order, the administrator of a receiving facility shall identify
420	the service provider that will have primary responsibility for
421	service provision under the order. The service provider shall
422	prepare a treatment plan and submit it to the court prior to the
423	hearing for inclusion in the outpatient placement order. An
424	order for outpatient placement may include provisions for case
425	management, intensive case management, assertive community
426	treatment, or a program for assertive community treatment. The
427	order may also require that the patient make use of a service
428	provider to supply any or all of the following categories of
429	services to the individual: medication; periodic urinalysis to
430	determine compliance with treatment; individual or group
431	therapy; day or partial-day programming activities; educational
432	and vocational training or activities; alcohol or substance
433	abuse treatment and counseling and periodic tests for the
434	presence of alcohol or illegal drugs for persons with a history
435	of alcohol or substance abuse; supervision of living
436	arrangements; and any other services prescribed to treat the
437	person’s mental illness and to assist the person in living and
438	functioning in the community or to attempt to prevent a relapse
439	or deterioration. The service provider shall certify to the
440	court in the treatment plan that the proposed services are
441	currently available and that the service provider agrees to
442	provide the services. Service providers may select and provide
443	supervision to other individuals not enumerated herein to
444	implement specific aspects of the treatment plan, such as
445	medication monitoring. The services ordered shall be deemed to
446	be clinically appropriate by a physician, clinical psychologist,
447	psychiatric nurse, or clinical social worker who consults with,
448	or is employed or contracted by, the service provider. An
449	outpatient placement order may be issued only if the ordered
450	program or service is available in the patient’s local
451	community, if there is space available in the program or service
452	for the patient, and if funding is available for the program or
453	service. The court shall not order the department or the service
454	provider to provide services if the program or service is not
455	available in the patient’s local community, there is no space
456	available in the program or service for the patient, and funding
457	is not available for the program or service. The court shall
458	specify in the final order of disposition if outpatient
459	placement could not be ordered because the program or service is
460	not available in the patient’s local community, there is no
461	space available in the program or service for the patient, and
462	funding is not available for the program or service. A copy of
463	the order shall be sent to the Agency for Health Care
464	Administration. After the placement order is issued, the service
465	provider and the patient may agree to modify provisions of the
466	treatment plan. For any material modification of the provisions
467	of the treatment plan to which the patient does agree, the
468	service provider shall send notice of the modification to the
469	court. Any material modifications of the provisions of the
470	treatment plan to which the patient does not agree must be
471	approved by the court.
472	3. The placement order shall specify that if the patient
473	fails to comply with the outpatient treatment plan, the service
474	provider may seek an ex parte order for involuntary examination
475	pursuant to s. 394.463(2)(a) and upon issuance the patient shall
476	be brought to a receiving facility for involuntary examination
477	pursuant to s. 394.463(2)(c)-(i), in order to determine whether
478	the outpatient placement is still the least restrictive
479	treatment alternative which would offer an opportunity for
480	improvement of his or her condition. If after examination the
481	patient does not meet the criteria for involuntary inpatient
482	placement, the patient must be discharged from the receiving
483	facility. The service provider should determine whether
484	modifications should be made to the existing treatment plan and
485	attempt to continue to engage the patient in treatment. For any
486	material modification of the provisions of the treatment plan to
487	which the patient does agree, the service provider shall send
488	notice of the modification to the court. Any material
489	modifications of the provisions of the treatment plan to which
490	the patient does not agree must be approved by the court. In
491	cases where contempt of court is deemed appropriate for
492	noncompliance, the court shall use sanctions other than monetary
493	fines or placement in a county or regional jail or work camp.
494	(c) If at any time prior to the conclusion of the hearing
495	on involuntary placement it appears to the court that the person
496	does not meet the criteria for involuntary placement under this
497	chapter, but instead meets the criteria for involuntary
498	assessment, protective custody, or involuntary admission
499	pursuant to s. 397.675, then the court may order the person to
500	be admitted for involuntary assessment for a period of 5 days
501	pursuant to s. 397.6811. Thereafter, all proceedings shall be
502	governed by chapter 397.
503	(d) At the hearing on involuntary placement, the court
504	shall consider testimony and evidence regarding the patient's
505	competence to consent to treatment. If the court finds that the
506	patient is incompetent to consent to treatment, it shall appoint
507	a guardian advocate as provided in s. 394.4598. If a patient
508	found incompetent to consent to treatment has an involuntary
509	outpatient placement order that includes medication and the
510	patient refuses medication, the service provider may seek an ex
511	parte order pursuant to s. 394.463(2)(a) and the guardian
512	advocate may consent to administration of medication over
513	objection when the person is brought to a receiving facility.
514	(e) The administrator of the receiving facility shall
515	provide a copy of the court order and adequate documentation of
516	a patient's mental illness to the administrator of a treatment
517	facility whenever a patient is ordered for involuntary inpatient
518	placement or to the service provider for involuntary outpatient
519	placement, whether by civil or criminal court. Such
520	documentation shall include any advance directives made by the
521	patient, a psychiatric evaluation of the patient, and any
522	evaluations of the patient performed by a clinical psychologist
523	or a clinical social worker. The administrator of a treatment
524	facility may refuse admission to any patient directed to its
525	facilities on an involuntary basis, whether by civil or criminal
526	court order, who is not accompanied at the same time by adequate
527	orders and documentation.
528	(8) VOLUNTARY TREATMENT AGREEMENT.--
529	(a) A person who is 18 years of age or older and is
530	competent to provide express and informed consent for a
531	voluntary treatment agreement, or his or her legal counsel with
532	the person’s consent, may waive the time periods under s.
533	394.467 for the hearing for a period not to exceed 90 days from
534	the date of the waiver, if the person and the state attorney
535	appointed under subparagraph (7)(a)1. agree at any time after
536	the commencement of the proceedings that the person shall obtain
537	treatment under a voluntary treatment agreement. An assessment
538	of the ability of a person to give express and informed consent
539	shall be performed during the examination specified in paragraph
540	(3)(a) or paragraph (3)(b). The voluntary treatment agreement
541	shall be in writing, shall be approved by the court, and shall
542	include a treatment plan that provides for treatment in the
543	least restrictive manner consistent with the needs of the
544	person. The administrator of the appropriate receiving facility
545	shall identify the service provider that will prepare the
546	treatment plan, and monitor the person’s treatment under, and
547	compliance with, the voluntary treatment agreement. The service
548	provider shall certify to the court that the ordered services
549	are currently available and that the service provider agrees to
550	provide the services. For any material modification of the
551	provisions of the treatment plan to which the patient does
552	agree, the service provider shall send notice of the
553	modification to the court. Any material modifications of the
554	provisions of the treatment plan to which the patient does not
555	agree must be approved by the court.
556	(b)1. If, within 90 days from the date of the waiver under
557	this section, the patient fails to comply with the voluntary
558	treatment agreement approved by the court under this section,
559	the service provider shall file with the court an affidavit
560	sworn under penalty of perjury showing the basis for the belief
561	that the patient is not in compliance. The service provider
562	shall also notify and send a copy of the affidavit to the state
563	attorney appointed under subparagraph (7)(a)1. and the patient’s
564	counsel of the person’s noncompliance.
565	2. Upon receipt of the affidavit of noncompliance, the
566	court shall issue a notice of hearing as set forth in s.
567	394.4599 and proceed with the hearing on involuntary outpatient
568	placement pursuant to subsection (7). The facts alleged as the
569	basis for involuntary outpatient placement prior to the waiver
570	of the time periods for hearing may be the basis for a final
571	disposition at a hearing under this subparagraph.
572	(c) After being notified of noncompliance in paragraph
573	(b), the patient or his or her counsel may file a motion
574	requesting that the issue of noncompliance with the agreement be
575	heard at the involuntary outpatient placement hearing as
576	provided in paragraph (b). The motion must be filed at least 72
577	hours, excluding weekends and holidays, prior to the hearing.
578	The burden of proving noncompliance shall be by a preponderance
579	of the evidence.
580	(d) If the patient remains compliant for the period of the
581	voluntary treatment agreement, the petition for involuntary
582	outpatient placement shall be dismissed.
583	(9)(7) PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT
584	PLACEMENT.--
585	(a) Hearings on petitions for continued involuntary
586	inpatientplacement shall be administrative hearings and shall
587	be conducted in accordance with the provisions of s. 120.57(1),
588	except that any order entered by the hearing officer shall be
589	final and subject to judicial review in accordance with s.
590	120.68. Orders concerning patients committed after successfully
591	pleading not guilty by reason of insanity shall be governed by
592	the provisions of s. 916.15.
593	(b) If the patient continues to meet the criteria for
594	involuntary inpatientplacement, the administrator shall, prior
595	to the expiration of the period during which the treatment
596	facility is authorized to retain the patient, file a petition
597	requesting authorization for continued involuntary placement.
598	The request shall be accompanied by a statement from the
599	patient's physician or clinical psychologist justifying the
600	request, a brief description of the patient's treatment during
601	the time he or she was involuntarily placed, and an
602	individualized plan of continued treatment. Notice of the
603	hearing shall be provided as set forth in s. 394.4599. If at the
604	hearing the hearing officer finds that attendance at the hearing
605	is not consistent with the best interests of the patient, the
606	hearing officer may waive the presence of the patient from all
607	or any portion of the hearing, unless the patient, through
608	counsel, objects to the waiver of presence. The testimony in the
609	hearing must be under oath, and the proceedings must be
610	recorded.
611	(c) Unless the patient is otherwise represented or is
612	ineligible, he or she shall be represented at the hearing on the
613	petition for continued involuntary inpatientplacement by the
614	public defender of the circuit in which the facility is located.
615	(d) If at a hearing it is shown that the patient continues
616	to meet the criteria for involuntary inpatientplacement, the
617	administrative law judge shall sign the order for continued
618	involuntary inpatientplacement for a period not to exceed 6
619	months. The same procedure shall be repeated prior to the
620	expiration of each additional period the patient is retained.
621	(e) If continued involuntary placement is necessary for a
622	patient admitted while serving a criminal sentence, but whose
623	sentence is about to expire, or for a patient involuntarily
624	placed while a minor but who is about to reach the age of 18,
625	the administrator shall petition the administrative law judge
626	for an order authorizing continued involuntary placement.
627	(f) If the patient has been previously found incompetent
628	to consent to treatment, the hearing officer shall consider
629	testimony and evidence regarding the patient's competence. If
630	the hearing officer finds evidence that the patient is now
631	competent to consent to treatment, the hearing officer may issue
632	a recommended order to the court that found the patient
633	incompetent to consent to treatment that the patient's
634	competence be restored and that any guardian advocate previously
635	appointed be discharged.
636	(10) PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT
637	PLACEMENT.--
638	(a) If the person continues to meet the criteria for
639	involuntary outpatient placement, the service provider shall,
640	prior to the expiration of the period during which the treatment
641	is ordered for the person, file a continued involuntary
642	outpatient placement certificate which shall be accompanied by a
643	statement from the person’s physician or clinical psychologist
644	justifying the request, a brief description of the patient's
645	treatment during the time he or she was involuntarily placed,
646	and an individualized plan of continued treatment.
647	(b) Hearings on petitions for continued involuntary
648	outpatient placement shall be judicial hearings. The procedures
649	for obtaining an order pursuant to this paragraph shall be in
650	accordance with the provisions of subsection (7), except that
651	the time period included in sub-subparagraph (2)(a)2.c. shall
652	not be applicable in determining the appropriateness of
653	additional periods of involuntary outpatient placement.
654	(c) Notice of the hearing shall be provided as set forth
655	in s. 394.4599.
656	(d) The same procedure shall be repeated prior to the
657	expiration of each additional period the patient is placed in
658	treatment.
659	(f) If the patient has been previously found incompetent
660	to consent to treatment, the court shall consider testimony and
661	evidence regarding the patient's competence. If the court finds
662	evidence that the patient is now competent to consent to
663	treatment, the court may order that any guardian advocate
664	previously appointed be discharged.
665	(11)(8)RETURN OF PATIENTS.--When a patient at a treatment
666	facility leaves the facility without authorization, the
667	administrator may authorize a search for the patient and the
668	return of the patient to the facility. The administrator may
669	request the assistance of a law enforcement agency in the search
670	for and return of the patient.
671	Section 5. If any provision of this act or its
672	application to any person or circumstance is held invalid, the
673	invalidity does not affect other provisions or applications of
674	the act which can be given effect without the invalid provision
675	or application, and to this end the provisions of this act are
676	severable.
677	Section 6. This act shall take effect July 1, 2003.