HB 1197 2003
1	CHAMBER ACTION
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6	The Committee on Future of Florida's Families recommends the
7	following:
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9	Committee Substitute
10	Remove the entire bill and insert:
11	A bill to be entitled
12	An act relating to The Baker Act; amending s. 394.455,
13	F.S.; revising a definition; providing additional
14	definitions; amending s. 394.4598, F.S.; revising language
15	with respect to the guardian advocate; authorizing the
16	guardian advocate to consent to administration of
17	medication over objection under certain circumstances;
18	amending s. 394.4615, F.S.; providing for release of
19	certain clinical records to certain persons for certain
20	purposes; amending s. 394.463, F.S.; revising criteria and
21	procedures for involuntary examination; creating s.
22	394.466, F.S.; setting forth criteria for involuntary
23	outpatient placement; providing contents of a petition for
24	involuntary outpatient placement; specifying procedures
25	for involuntary outpatient placement; providing for
26	persons who may file a petition for involuntary outpatient
27	placement; providing for appointment of counsel; providing
28	for continuance of hearings; providing for a hearing on
29	involuntary outpatient placement; setting forth procedures
30	for the hearing; providing for appointment of a master to
31	preside; providing for an independent examination;
32	requiring a court to order involuntary outpatient
33	placement under certain circumstances; requiring a
34	treatment plan; providing for plan modification; providing
35	for a patient to be brought to a receiving facility upon
36	failure or refusal to comply with the treatment plan;
37	providing for involuntary inpatient placement or
38	involuntary assessment; requiring consideration of a
39	patient’s competence to proceed; requiring a list of
40	guardian advocates to be submitted to the court; defining
41	the role of a guardian advocate; providing for discharge
42	of the guardian advocate; requiring certain documentation;
43	allowing a person for whom an involuntary outpatient
44	placement petition has been filed to agree to a voluntary
45	treatment agreement; specifying requirements for
46	agreements; providing for modifications; providing for
47	filing of an affidavit of noncompliance with a voluntary
48	treatment plan; requiring a hearing; requiring dismissal
49	of petitions in certain circumstances; providing
50	procedures for continued involuntary outpatient placement;
51	providing for a continued involuntary outpatient placement
52	certificate; requiring a hearing; requiring appointment of
53	a public defender; requiring hearings; providing for
54	appointment of a special master; amending s. 394.467,
55	F.S.; revising language with respect to involuntary
56	inpatient placement; providing a reference to inpatient
57	and outpatient involuntary placement; providing
58	requirements for placement orders; providing for voluntary
59	treatment agreements; providing a procedure for continued
60	involuntary outpatient placement; establishing the
61	Involuntary Outpatient Placement Implementation Task
62	Force; providing purposes; providing for membership;
63	providing for meetings; requiring the task force to
64	prepare an implementation plan relating to court-ordered
65	mental health outpatient treatment; requiring a report to
66	the Governor, Legislature, and Florida Supreme Court;
67	providing for severability; providing an effective date.
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69	WHEREAS, untreated mental illness is a difficult issue
70	confronting every Florida community, and
71	WHEREAS, there are Floridians with severe mental illnesses
72	who are prone to relapse, often fail to comply with their
73	treatment plans, and have repeated hospitalizations and criminal
74	justice contacts, who are sometimes referred to as “Baker Act
75	recidivists,” and
76	WHEREAS, many states use some form of civil commitment to
77	compel Baker Act recidivists to undergo treatment on an
78	involuntary outpatient basis, and
79	WHEREAS, it is the intent of the Legislature to protect
80	public safety and ensure that Baker Act recidivists receive
81	needed mental health services, while preserving the due process
82	rights of individuals with mental illness, and
83	WHEREAS, implementation and oversight of the involuntary
84	outpatient placement system involves the cooperative efforts and
85	combined resources of the Department of Children and Family
86	Services, the offices of the state attorneys, the offices of the
87	public defenders, the state courts, the clerks of court, and law
88	enforcement, among others, and
89	WHEREAS, the State of Florida is facing numerous
90	unprecedented fiscal challenges, some of which have a direct
91	bearing on involuntary outpatient placement, including revenue
92	shortfalls, the transition to state funding of the judicial
93	branch pursuant to Article V Revision 7, consideration of the
94	proper placement of the Mental Health Program Office, and
95	development of strategies to address the staggering growth in
96	Medicaid spending, and
97	WHEREAS, it is the intent of the Legislature to address
98	this issue in a deliberative, thoughtful process which allows
99	consideration of the difficult fiscal issues presented by a
100	statutory process for involuntary outpatient placement and to
101	appoint a task force to make recommendations on the effectuation
102	of court-ordered outpatient mental health treatment in
103	sufficient time to allow the stakeholders and funding entities
104	to adequately prepare for implementation in fiscal year 2004-
105	2005, NOW, THEREFORE,
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107	Be It Enacted by the Legislature of the State of Florida:
108
109	Section 1. Subsection (3) of section 394.455, Florida
110	Statutes, is amended, and subsections (31) and (32) are added to
111	said section, to read:
112	394.455 Definitions.--As used in this part, unless the
113	context clearly requires otherwise, the term:
114	(3) "Clinical record" means all parts of the record
115	required to be maintained and includes all medical records,
116	progress notes, charts, and admission and discharge data, and
117	all other information recorded by a facility which pertains to
118	the patient's hospitalization orandtreatment.
119	(31) "Service provider” means any public or private
120	receiving facility, entity under contract with the Department of
121	Children and Family Services to provide mental health services,
122	or a clinical psychologist, clinical social worker, physician,
123	psychiatric nurse, community mental health center, or clinic as
124	defined in this part.
125	(32) “Involuntary placement” means involuntary outpatient
126	treatment pursuant to s. 394.466 or involuntary inpatient
127	treatment pursuant to s. 394.467.
128	Section 2. Subsections (1) and (7) of section 394.4598,
129	Florida Statutes, are amended to read:
130	394.4598 Guardian advocate.--
131	(1) The administrator may petition the court for the
132	appointment of a guardian advocate based upon the opinion of a
133	psychiatrist that the patient is incompetent to consent to
134	treatment. If the court finds that a patient is incompetent to
135	consent to treatment and has not been adjudicated incapacitated
136	and a guardian with the authority to consent to mental health
137	treatment appointed, it shall appoint a guardian advocate. The
138	patient has the right to have an attorney represent him or her
139	at the hearing. If the person is indigent, the court shall
140	appoint the office of the public defender to represent him or
141	her at the hearing. The patient has the right to testify, cross-
142	examine witnesses, and present witnesses. The proceeding shall
143	be recorded either electronically or stenographically, and
144	testimony shall be provided under oath. One of the professionals
145	authorized to give an opinion in support of a petition for
146	involuntary placement, as described in s. 394.466 ors.
147	394.467(2), must testify. A guardian advocate must meet the
148	qualifications of a guardian contained in part IV of chapter
149	744, except that a professional referred to in this part, an
150	employee of the facility providing direct services to the
151	patient under this part, a departmental employee, a facility
152	administrator, or member of the Florida local advocacy council
153	shall not be appointed. A person who is appointed as a guardian
154	advocate must agree to the appointment.
155	(7) The guardian advocate shall be discharged when the
156	patient is discharged from an order for involuntary inpatient or
157	outpatient placement or as provided in s. 394.466(6)(d)a
158	receiving or treatment facility to the communityor when the
159	patient is transferred from involuntary to voluntary status. The
160	court or a hearing officer shall consider the competence of the
161	patient pursuant to subsection (1) and may consider an
162	involuntarily placed patient's competence to consent to
163	treatment at any hearing. Upon sufficient evidence, the court
164	may restore, or the hearing officer may recommend that the court
165	restore, the patient's competence. A copy of the order restoring
166	competence or the certificate of discharge containing the
167	restoration of competence shall be provided to the patient and
168	the guardian advocate.
169	Section 3. Paragraph (c) is added to subsection (3) of
170	section 394.4615, Florida Statutes, to read:
171	394.4615 Clinical records; confidentiality.--
172	(3) Information from the clinical record may be released
173	when:
174	(c) It is necessary to determine whether a person meets
175	the criteria for involuntary outpatient placement pursuant to s.
176	394.466. In such circumstance, the clinical record may be
177	released to the state attorney, public defender or the patient’s
178	private legal counsel, the court, and the appropriate mental
179	health professionals.
180	Section 4. Subsection (1) and paragraphs (e), (g), and (i)
181	of subsection (2) of section 394.463, Florida Statutes, are
182	amended to read:
183	394.463 Involuntary examination.--
184	(1) CRITERIA.--A person may be taken to a receiving
185	facility for involuntary examination if there is reason to
186	believe that the person has a mental illnesshe or she is
187	mentally illand because of his or her mental illness:
188	(a)1. The person has refused voluntary examination after
189	conscientious explanation and disclosure of the purpose of the
190	examination; or
191	2. The person is unable to determine for himself or
192	herself whether examination is necessary; and
193	(b) Based on the person’s current reported or observed
194	behavior, considering any mental health history, there is a
195	substantial likelihood that, without care or treatment:
196	1. Without care or treatment, The person willis likely to
197	suffer from neglect or refuse to care for himself or herself;
198	such neglect or refusal will poseposesa real and present
199	threat of substantial harm to his or her well-being; and it is
200	not apparent that such harm may be avoided through the help of
201	willing family members or friends or the provision of other
202	services; or
203	2. There is a substantial likelihood that without care or
204	treatmentThe person will cause serious bodily harm to himself
205	or herself or others in the near future, as evidenced by recent
206	behavior.
207	(2) INVOLUNTARY EXAMINATION.--
208	(e) The Agency for Health Care Administration shall
209	receive and maintain the copies of ex parte orders, involuntary
210	outpatient placement orders issued pursuant to s. 394.466, or
211	involuntary inpatient placement orders issued pursuant to s.
212	394.467,professional certificates, and law enforcement
213	officers' reports. These documents shall be considered part of
214	the clinical record, governed by the provisions of s. 394.4615.
215	The agency shall prepare annual reports analyzing the data
216	obtained from these documents, without information identifying
217	patients, and shall provide copies of reports to the department,
218	the President of the Senate, the Speaker of the House of
219	Representatives, and the minority leaders of the Senate and the
220	House of Representatives.
221	(g) A person for whom an involuntary examination has been
222	initiated who is being evaluated or treated at a hospital for an
223	emergency medical condition specified in s. 395.002 must be
224	examined by a receiving facility within 72 hours. The 72-hour
225	period begins when the patient arrives at the hospital and
226	ceases when the attending physician documents that the patient
227	has an emergency medical condition. If the patient is examined
228	at a hospital providing emergency medical services by a
229	professional qualified to perform an involuntary examination and
230	is found as a result of that examination not to meet the
231	criteria for involuntary outpatient placement pursuant to s.
232	394.466(1) or involuntary inpatient placement pursuant to s.
233	394.467(1), the patient may be offered voluntary placement, if
234	appropriate, or released directly from the hospital providing
235	emergency medical services. The finding by the professional that
236	the patient has been examined and does not meet the criteria for
237	involuntary inpatient placement or involuntary outpatient
238	placement must be entered into the patient's clinical record.
239	Nothing in this paragraph is intended to prevent a hospital
240	providing emergency medical services from appropriately
241	transferring a patient to another hospital prior to
242	stabilization, provided the requirements of s. 395.1041(3)(c)
243	have been met.
244	(i) Within the 72-hour examination period or, if the 72
245	hours ends on a weekend or holiday, no later than the next
246	working day thereafter, one of the following actions must be
247	taken, based on the individual needs of the patient:
248	1. The patient shall be released, unless he or she is
249	charged with a crime, in which case the patient shall be
250	returned to the custody of a law enforcement officer;
251	2. The patient shall be released, subject to the
252	provisions of subparagraph 1., for voluntaryoutpatient
253	treatment;
254	3. The patient, unless he or she is charged with a crime,
255	shall be asked to give express and informed consent to placement
256	as a voluntary patient, and, if such consent is given, the
257	patient shall be admitted as a voluntary patient; or
258	4. A petition for involuntary inpatient placement or a
259	petition for involuntary outpatientplacement shall be filed in
260	the appropriate court by the petitioner delineated in s.
261	394.466(3)(a)facility administratorwhen treatment is deemed
262	necessary; in which case, the least restrictive treatment
263	consistent with the optimum improvement of the patient's
264	condition shall be made available.
265	Section 5. Section 394.466, Florida Statutes, is created
266	to read:
267	394.466 Involuntary outpatient placement.--
268	(1) CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--
269	(a) A person may be ordered to involuntary outpatient
270	placement upon a finding of the court that, by clear and
271	convincing evidence:
272	1. The person is 18 years of age or older.
273	2. The person has a mental illness.
274	3. The person is unlikely to survive safely in the
275	community without supervision, based on a clinical
276	determination.
277	4. The person has a history of lack of compliance with
278	treatment for mental illness.
279	5. The person has:
280	a. At least twice within the last 36 months, been admitted
281	for examination or placement in a receiving or treatment
282	facility as defined in s. 394.455 or received mental health
283	services in a forensic or correctional facility. The 36-month
284	period does not include any period during which the person was
285	admitted or incarcerated immediately preceding the filing of the
286	petition and does include acts of noncompliance with the
287	treatment and the current admission for consideration; or
288	b. Engaged in one or more acts of serious violent behavior
289	toward himself or herself or others or engaged in attempts at
290	serious bodily harm to himself or herself or others within the
291	last 36 months. The 36-month period does not include any period
292	in which the person was admitted or incarcerated immediately
293	preceding the filing of the petition and does include acts of
294	violence occurring during the admission or incarceration.
295	6. The person is, as a result of his or her mental
296	illness, unlikely to voluntarily participate in the recommended
297	treatment pursuant to the treatment plan.
298	7. In view of the person’s treatment history and current
299	behavior, the person is in need of involuntary outpatient
300	placement in order to prevent a relapse or deterioration which
301	would be likely to result in serious bodily harm to himself or
302	herself or others, or a substantial harm to his or her well-
303	being as defined in s. 394.463(1).
304	8. It is likely that the person will benefit from
305	involuntary outpatient placement.
306	9. All available less restrictive alternatives which would
307	offer an opportunity for improvement of his or her condition
308	have been judged to be inappropriate.
309	(b) Each required criteria for involuntary outpatient
310	placement must be alleged in the petition and substantiated by
311	hospitalization or arrest records that shall be attached to the
312	petition or a sworn affidavit that shall be attached to the
313	petition. The petition shall consist of a clinical determination
314	by a qualified professional who shall be required to attend the
315	hearing pursuant to subsection (6). The patient shall be allowed
316	an opportunity to present evidence and testimony at the hearing
317	to refute or rebut said allegations.
318	(2) INVOLUNTARY OUTPATIENT PLACEMENT.--
319	(a) A patient may be retained by a receiving facility
320	unless the patient has been stabilized and no longer meets the
321	involuntary examination criteria pursuant to s. 394.463(1), in
322	which case the patient must be placed in outpatient treatment
323	while awaiting the hearing for involuntary outpatient placement
324	upon the recommendation of the administrator of a receiving
325	facility where the patient has been examined and after adherence
326	to the notice and hearing procedures provided in s. 394.4599.
327	The recommendation must be supported by the opinion of a
328	psychiatrist and the second opinion of a clinical psychologist
329	or another psychiatrist, both of whom have personally examined
330	the patient within the preceding 72 hours, that the criteria for
331	involuntary outpatient placement are met. However, in counties
332	of less than 50,000 population, if the administrator certifies
333	that no psychiatrist or clinical psychologist is available to
334	provide the second opinion, such second opinion may be provided
335	by a licensed physician with postgraduate training and
336	experience in diagnosis and treatment of mental and nervous
337	disorders or by a psychiatric nurse. Such recommendation shall
338	be entered on an involuntary outpatient placement certificate,
339	which certificate shall authorize the receiving facility to
340	retain the patient pending transfer to involuntary outpatient
341	placement or completion of a hearing.
342	(b) In cases in which arrangements can be made, a patient
343	may agree to be examined on an outpatient basis for an
344	involuntary outpatient placement certificate. The certificate
345	must be supported by the opinion of a psychiatrist and the
346	second opinion of a clinical psychologist or another
347	psychiatrist, both of whom have personally examined the patient
348	within the preceding 14 calendar days, that the criteria for
349	involuntary outpatient placement are met. However, in counties
350	of less than 50,000 population, if the psychiatrist certifies
351	that no psychiatrist or clinical psychologist is available to
352	provide the second opinion, such second opinion may be provided
353	by a licensed physician with postgraduate training and
354	experience in diagnosis and treatment of mental and nervous
355	disorders or by a psychiatric nurse.
356	(c) If a patient in involuntary inpatient placement meets
357	the criteria for involuntary outpatient placement, the
358	administrator of the treatment facility may, prior to expiration
359	of the period during which the treatment facility is authorized
360	to retain the patient, recommend involuntary outpatient
361	placement. The recommendation must be supported by the opinion
362	of a psychiatrist and the second opinion of a clinical
363	psychologist or another psychiatrist, both of whom have
364	personally examined the patient within the preceding 72 hours,
365	that the criteria for involuntary outpatient placement are met.
366	However, in counties of less than 50,000 population, if the
367	administrator certifies that no psychiatrist or clinical
368	psychologist is available to provide the second opinion, such
369	second opinion may be provided by a licensed physician with
370	postgraduate training and experience in diagnosis and treatment
371	of mental and nervous disorders or by a psychiatric nurse. Such
372	recommendation shall be entered on an involuntary outpatient
373	placement certificate.
374	(3) PETITION FOR INVOLUNTARY OUTPATIENT PLACEMENT.--
375	(a) A petition for involuntary outpatient placement may be
376	filed only when the full range of services that the person needs
377	for mental health treatment and to live and function
378	successfully are available in the patient’s local community. The
379	petitioner must certify in a sworn affidavit attached to the
380	petition the comprehensive array of necessary services, the
381	individual patient’s needs, and the services that are available
382	in the community. A petition may be filed by:
383	1. The administrator of the facility pursuant to paragraph
384	(2)(a);
385	2. One of the examining professionals for persons examined
386	on a voluntary outpatient basis pursuant to paragraph (2)(b).
387	Upon filing, the examining professional shall provide a copy of
388	the petition to the administrator of the receiving facility or
389	designated department representative that will identify the
390	service provider for the involuntary outpatient placement; or
391	3. The administrator of a treatment facility pursuant to
392	paragraph (2)(c). Upon filing, the administrator shall provide a
393	copy of the petition to the administrator of the receiving
394	facility or designated department representative that will
395	identify the service provider for the involuntary outpatient
396	placement.
397	(b) The petition for involuntary outpatient placement
398	shall be filed in the county where the patient is located. Upon
399	filing, the clerk of the court shall provide copies to the
400	department, the patient, the patient's guardian or
401	representative, and the state attorney and public defender of
402	the judicial circuit in which the patient is located. No fee
403	shall be charged for the filing of a petition under this
404	paragraph.
405	(4) APPOINTMENT OF COUNSEL.--Within 1 court working day
406	after the filing of a petition for involuntary outpatient
407	placement, the court shall appoint the public defender to
408	represent the person who is the subject of the petition, unless
409	the person is otherwise represented by counsel. The clerk of the
410	court shall immediately notify the public defender of such
411	appointment. The public defender shall represent the person
412	until the petition is dismissed or the court order expires or
413	the patient is discharged from involuntary outpatient placement.
414	Any attorney representing the patient shall have access to the
415	patient, witnesses, and records relevant to the presentation of
416	the patient's case and shall represent the interests of the
417	patient, regardless of the source of payment to the attorney.
418	(5) CONTINUANCE OF HEARING.--The patient is entitled, with
419	the concurrence of the patient's counsel, to at least one
420	continuance of the hearing. The continuance shall be for a
421	period of up to 4 weeks.
422	(6) HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.--
423	(a)1. The court shall hold the hearing on involuntary
424	outpatient placement within 5 days after the petition is filed,
425	unless a continuance is granted. The hearing shall be held in
426	the county where the patient is located and shall be as
427	convenient to the patient as may be consistent with orderly
428	procedure and shall be conducted in physical settings not likely
429	to be injurious to the patient's condition. The state attorney
430	for the circuit in which the patient is located shall represent
431	the state, rather than the petitioner, as the real party in
432	interest in the proceeding.
433	2. The court may appoint a master to preside at the
434	hearing. One of the professionals who executed the involuntary
435	outpatient placement certificate shall be a witness. The patient
436	and the patient's guardian or representative shall be informed
437	by the court of the right to an independent expert examination.
438	If the patient cannot afford such an examination, the court
439	shall provide for one. The independent expert's report shall be
440	confidential and not discoverable, unless the expert is to be
441	called as a witness for the patient at the hearing. The court
442	shall allow testimony from individuals, including family
443	members, deemed by the court to be relevant under the law of
444	this state, regarding the person’s prior history, and how that
445	prior history relates to the person’s current condition. The
446	testimony in the hearing must be given under oath and the
447	proceedings must be recorded. The patient may refuse to testify
448	at the hearing.
449	(b)1. If the court concludes that the patient meets the
450	criteria for involuntary outpatient placement pursuant to
451	subsection (1), the court shall issue an order for involuntary
452	outpatient placement. The court order shall be for a period of
453	up to 6 months. The service provider shall discharge a patient
454	any time the patient no longer meets the criteria for
455	involuntary placement.
456	2. The administrator of a receiving facility or designated
457	department representative shall identify the service provider
458	that will have primary responsibility for service provision
459	under the order. The service provider shall prepare a written
460	proposed treatment plan and submit the plan to the court prior
461	to the hearing for the court’s consideration for inclusion in
462	the involuntary outpatient placement order. The treatment plan
463	shall specify the nature and extent of the patient's mental
464	illness. The treatment plan may include provisions for case
465	management, intensive case management, assertive community
466	treatment, or a program for assertive community treatment. The
467	treatment plan may also require that the patient make use of a
468	service provider to supply any of the following categories of
469	services to the individual: medication, periodic urinalysis to
470	determine compliance with treatment, individual or group
471	therapy, day or partial day programming activities, educational
472	and vocational training or activities, alcohol or substance
473	abuse treatment and counseling and periodic tests for the
474	presence of alcohol or illegal drugs for persons with a history
475	of alcohol or substance abuse, supervision of living
476	arrangements, and any other services prescribed to treat the
477	person’s mental illness and to assist the person in living and
478	functioning in the community or to attempt to prevent a relapse
479	or deterioration. The service provider shall certify to the
480	court in the treatment plan that the proposed services are
481	currently available and that the service provider agrees to
482	provide those services. Service providers may select and provide
483	supervision to other individuals not enumerated in this
484	subparagraph to implement specific aspects of the treatment
485	plan, such as medication monitoring. The services in the
486	treatment plan shall be deemed to be clinically appropriate by a
487	physician, clinical psychologist, psychiatric nurse, or clinical
488	social worker who consults with, or is employed or contracted
489	by, the service provider. The court shall not order the
490	department or the service provider to provide services if the
491	program or service is not available in the patient’s local
492	community or there is no space available in the program or
493	service for the patient or if funding is not available for the
494	program or service. A copy of the order shall be sent to the
495	Agency for Health Care Administration. After the placement order
496	is issued, the service provider and the patient can modify
497	provisions of the treatment plan. For any material modification
498	of the provisions of the treatment plan, the service provider
499	shall send notice of the modification to the court. Any material
500	modification of the provisions of the treatment plan that are
501	contested by the patient must be approved by the court.
502	3. When, in the clinical judgment of a physician, the
503	patient has failed or refused to comply with the treatment
504	ordered by the court, efforts were made to solicit compliance,
505	and such patient may meet the criteria for involuntary
506	examination, a person may be brought to a receiving facility
507	pursuant to s. 394.463. If, after examination, the patient does
508	not meet the criteria for involuntary inpatient placement
509	pursuant to s. 394.467, the patient must be discharged from the
510	receiving facility. The service provider must determine whether
511	modifications should be made to the existing treatment plan and
512	attempt to continue to engage the patient in treatment. For any
513	material modification of the provisions of the treatment plan to
514	which the patient or, if appointed, the patient’s guardian
515	advocate does agree, the service provider shall send notice of
516	the modification to the court. Any material modification of the
517	provisions of the treatment plan that are contested by the
518	patient or, if appointed, the patient’s guardian advocate must
519	be approved by the court.
520	(c) If, at any time prior to the conclusion of the initial
521	hearing on involuntary outpatient placement, it appears to the
522	court that the person does not meet the criteria for involuntary
523	outpatient placement under this section but instead meets the
524	criteria for involuntary inpatient placement, the court may
525	order the person admitted for involuntary inpatient placement
526	pursuant to s. 394.467. If the person instead meets the criteria
527	for involuntary assessment, protective custody, or involuntary
528	admission pursuant to s. 397.675, the court may order the person
529	to be admitted for involuntary assessment for a period of 5 days
530	pursuant to s. 397.6811. Thereafter, all proceedings shall be
531	governed by chapter 397.
532	(d) At the hearing on involuntary outpatient placement,
533	the court shall consider testimony and evidence regarding the
534	patient's competence to consent to treatment. If the court finds
535	that the patient is incompetent to consent to treatment, the
536	court shall appoint a guardian advocate as provided in s.
537	394.4598 from a list of qualified and available guardian
538	advocates submitted to the court with the petition. The guardian
539	advocate’s role shall be to monitor the patient’s care to ensure
540	that the patient’s rights are protected. The guardian advocate
541	is immune from liability under this provision. If the patient,
542	the patient’s guardian advocate, and the service provider agree
543	that the guardian advocate is no longer needed because the
544	person is competent, the guardian advocate may be discharged.
545	(e) The administrator of the receiving facility or
546	designated department representative shall provide a copy of the
547	court order and adequate documentation of a patient's mental
548	illness to the service provider for involuntary outpatient
549	placement. Such documentation shall include any advance
550	directives made by the patient, a psychiatric evaluation of the
551	patient, and any evaluations of the patient performed by a
552	clinical psychologist or a clinical social worker.
553	(7) PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT
554	PLACEMENT.--
555	(a) If the person continues to meet the criteria for
556	involuntary outpatient placement, the service provider shall,
557	prior to the expiration of the period during which the treatment
558	is ordered for the person, file in the circuit court a continued
559	involuntary outpatient placement certificate which shall be
560	accompanied by a statement from the person’s physician or
561	clinical psychologist justifying the request, a brief
562	description of the patient's treatment during the time he or she
563	was involuntarily placed, and an individualized plan of
564	continued treatment.
565	(b) Within 1 court working day after the filing of a
566	petition for continued involuntary outpatient placement, the
567	court shall appoint the public defender to represent the person
568	who is the subject of the petition, unless the person is
569	otherwise represented by counsel. The clerk of the court shall
570	immediately notify the public defender of such appointment. The
571	public defender shall represent the person until the petition is
572	dismissed, the court order expires, or the patient is discharged
573	from involuntary outpatient placement. Any attorney representing
574	the patient shall have access to the patient, witnesses, and
575	records relevant to the presentation of the patient's case and
576	shall represent the interests of the patient, regardless of the
577	source of payment to the attorney.
578	(c) Hearings on petitions for continued involuntary
579	outpatient placement shall be before the circuit court. The
580	court may appoint a master to preside at the hearing. The
581	procedures for obtaining an order pursuant to this paragraph
582	shall be in accordance with the provisions of subsection (6),
583	except that the time period included in subparagraph (1)(a)5.
584	shall not apply in determining the appropriateness of additional
585	periods of involuntary outpatient placement.
586	(d) Notice of the hearing shall be provided as set forth
587	in s. 394.4599.
588	(e) The same procedure shall be repeated prior to the
589	expiration of each additional period the patient is placed in
590	treatment.
591	(f) If the patient has been previously found incompetent
592	to consent to treatment, the court shall consider testimony and
593	evidence regarding the patient's competence. If the court finds
594	evidence that the patient has become competent to consent to
595	treatment, the court may order that any guardian advocate
596	previously appointed be discharged.
597	Section 6. Section 394.467, Florida Statutes, is amended
598	to read:
599	394.467 Involuntary inpatientplacement.--
600	(1) CRITERIA.--A person may be involuntarily placed in
601	involuntary inpatient placementfor treatment upon a finding of
602	the court by clear and convincing evidence that:
603	(a) He or she is mentally ill and because of his or her
604	mental illness:
605	1.a. He or she has refused voluntary placement for
606	treatment after sufficient and conscientious explanation and
607	disclosure of the purpose of placement for treatment; or
608	b. He or she is unable to determine for himself or herself
609	whether placement is necessary; and
610	2.a. He or she is manifestly incapable of surviving alone
611	or with the help of willing and responsible family or friends,
612	including available alternative services, and, without
613	treatment, is likely to suffer from neglect or refuse to care
614	for himself or herself, and such neglect or refusal poses a real
615	and present threat of substantial harm to his or her well-being;
616	or
617	b. There is substantial likelihood that in the near future
618	he or she will inflict serious bodily harm on himself or herself
619	or another person, as evidenced by recent behavior causing,
620	attempting, or threatening such harm; and
621	(b) All available less restrictive treatment alternatives
622	which would offer an opportunity for improvement of his or her
623	condition have been judged to be inappropriate.
624	(2) ADMISSION TO A TREATMENT FACILITY.--A patient may be
625	retained by a receiving facility or involuntarily placed in a
626	treatment facility upon the recommendation of the administrator
627	of a receiving facility where the patient has been examined and
628	after adherence to the notice and hearing procedures provided in
629	s. 394.4599. The recommendation must be supported by the opinion
630	of a psychiatrist and the second opinion of a clinical
631	psychologist or another psychiatrist, both of whom have
632	personally examined the patient within the preceding 72 hours,
633	that the criteria for involuntary inpatientplacement are met.
634	However, in counties of less than 50,000 population, if the
635	administrator certifies that no psychiatrist or clinical
636	psychologist is available to provide the second opinion, such
637	second opinion may be provided by a licensed physician with
638	postgraduate training and experience in diagnosis and treatment
639	of mental and nervous disorders or by a psychiatric nurse. Such
640	recommendation shall be entered on an involuntary inpatient
641	placement certificate, which certificate shall authorize the
642	receiving facility to retain the patient pending transfer to a
643	treatment facility or completion of a hearing.
644	(3) PETITION FOR INVOLUNTARY INPATIENTPLACEMENT.--The
645	administrator of the facility shall file a petition for
646	involuntary inpatientplacement in the court in the county where
647	the patient is located. Upon filing, the clerk of the court
648	shall provide copies to the department, the patient, the
649	patient's guardian or representative, and the state attorney and
650	public defender of the judicial circuit in which the patient is
651	located. No fee shall be charged for the filing of a petition
652	under this subsection.
653	(4) APPOINTMENT OF COUNSEL.--Within 1 court working day
654	after the filing of a petition for involuntary inpatient
655	placement, the court shall appoint the public defender to
656	represent the person who is the subject of the petition, unless
657	the person is otherwise represented by counsel. The clerk of the
658	court shall immediately notify the public defender of such
659	appointment. Any attorney representing the patient shall have
660	access to the patient, witnesses, and records relevant to the
661	presentation of the patient's case and shall represent the
662	interests of the patient, regardless of the source of payment to
663	the attorney.
664	(5) CONTINUANCE OF HEARING.--The patient is entitled, with
665	the concurrence of the patient's counsel, to at least one
666	continuance of the hearing. The continuance shall be for a
667	period of up to 4 weeks.
668	(6) HEARING ON INVOLUNTARY INPATIENTPLACEMENT.--
669	(a)1. The court shall hold the hearing on involuntary
670	inpatientplacement within 5 days, unless a continuance is
671	granted. The hearing shall be held in the county where the
672	patient is located and shall be as convenient to the patient as
673	may be consistent with orderly procedure and shall be conducted
674	in physical settings not likely to be injurious to the patient's
675	condition. If the court finds that the patient's attendance at
676	the hearing is not consistent with the best interests of the
677	patient, and the patient's counsel does not object, the court
678	may waive the presence of the patient from all or any portion of
679	the hearing. The state attorney for the circuit in which the
680	patient is located shall represent the state, rather than the
681	petitioning facility administrator, as the real party in
682	interest in the proceeding.
683	2. The court may appoint a master to preside at the
684	hearing. One of the professionals who executed the involuntary
685	inpatientplacement certificate shall be a witness. The patient
686	and the patient's guardian or representative shall be informed
687	by the court of the right to an independent expert examination.
688	If the patient cannot afford such an examination, the court
689	shall provide for one. The independent expert's report shall be
690	confidential and not discoverable, unless the expert is to be
691	called as a witness for the patient at the hearing. The
692	testimony in the hearing must be given under oath, and the
693	proceedings must be recorded. The patient may refuse to testify
694	at the hearing.
695	(b) If the court concludes that the patient meets the
696	criteria for involuntary inpatientplacement, it shall order
697	that the patient be transferred to a treatment facility or, if
698	the patient is at a treatment facility, that the patient be
699	retained there or be treated at any other appropriate receiving
700	or treatment facility, or that the patient receive services from
701	a receiving or treatment facility, on an involuntary basis, for
702	a period of up to 6 months. The order shall specify the nature
703	and extent of the patient's mental illness. The facility shall
704	discharge a patient any time the patient no longer meets the
705	criteria for involuntary inpatientplacement, unless the patient
706	has transferred to voluntary status.
707	(c) If at any time prior to the conclusion of the hearing
708	on involuntary inpatientplacement it appears to the court that
709	the person does not meet the criteria for involuntary inpatient
710	placement under this sectionchapter, but instead meets the
711	criteria for involuntary outpatient placement, the court may
712	order the person evaluated for involuntary outpatient placement
713	pursuant to s. 394.466. The petition and hearing procedures set
714	forth in s. 394.466 shall apply. If the personinstead meets the
715	criteria for involuntary assessment, protective custody, or
716	involuntary admission pursuant to s. 397.675, then the court may
717	order the person to be admitted for involuntary assessment for a
718	period of 5 days pursuant to s. 397.6811. Thereafter, all
719	proceedings shall be governed by chapter 397.
720	(d) At the hearing on involuntary inpatientplacement, the
721	court shall consider testimony and evidence regarding the
722	patient's competence to consent to treatment. If the court finds
723	that the patient is incompetent to consent to treatment, it
724	shall appoint a guardian advocate as provided in s. 394.4598.
725	(e) The administrator of the receiving facility shall
726	provide a copy of the court order and adequate documentation of
727	a patient's mental illness to the administrator of a treatment
728	facility whenever a patient is ordered for involuntary inpatient
729	placement, whether by civil or criminal court. Such
730	documentation shall include any advance directives made by the
731	patient, a psychiatric evaluation of the patient, and any
732	evaluations of the patient performed by a clinical psychologist
733	or a clinical social worker. The administrator of a treatment
734	facility may refuse admission to any patient directed to its
735	facilities on an involuntary basis, whether by civil or criminal
736	court order, who is not accompanied at the same time by adequate
737	orders and documentation.
738	(7) PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT
739	PLACEMENT.--
740	(a) Hearings on petitions for continued involuntary
741	inpatientplacement shall be administrative hearings and shall
742	be conducted in accordance with the provisions of s. 120.57(1),
743	except that any order entered by the hearing officer shall be
744	final and subject to judicial review in accordance with s.
745	120.68. Orders concerning patients committed after successfully
746	pleading not guilty by reason of insanity shall be governed by
747	the provisions of s. 916.15.
748	(b) If the patient continues to meet the criteria for
749	involuntary inpatientplacement, the administrator shall, prior
750	to the expiration of the period during which the treatment
751	facility is authorized to retain the patient, file a petition
752	requesting authorization for continued involuntary inpatient
753	placement. The request shall be accompanied by a statement from
754	the patient's physician or clinical psychologist justifying the
755	request, a brief description of the patient's treatment during
756	the time he or she was involuntarily placed, and an
757	individualized plan of continued treatment. Notice of the
758	hearing shall be provided as set forth in s. 394.4599. If at the
759	hearing the hearing officer finds that attendance at the hearing
760	is not consistent with the best interests of the patient, the
761	hearing officer may waive the presence of the patient from all
762	or any portion of the hearing, unless the patient, through
763	counsel, objects to the waiver of presence. The testimony in the
764	hearing must be under oath, and the proceedings must be
765	recorded.
766	(c) Unless the patient is otherwise represented or is
767	ineligible, he or she shall be represented at the hearing on the
768	petition for continued involuntary inpatientplacement by the
769	public defender of the circuit in which the facility is located.
770	(d) If at a hearing it is shown that the patient continues
771	to meet the criteria for involuntary inpatientplacement, the
772	administrative law judge shall sign the order for continued
773	involuntary inpatientplacement for a period not to exceed 6
774	months. The same procedure shall be repeated prior to the
775	expiration of each additional period the patient is retained.
776	(e) If continued involuntary inpatientplacement is
777	necessary for a patient admitted while serving a criminal
778	sentence, but whose sentence is about to expire, or for a
779	patient involuntarily placed while a minor but who is about to
780	reach the age of 18, the administrator shall petition the
781	administrative law judge for an order authorizing continued
782	involuntary inpatientplacement.
783	(f) If the patient has been previously found incompetent
784	to consent to treatment, the hearing officer shall consider
785	testimony and evidence regarding the patient's competence. If
786	the hearing officer finds evidence that the patient is now
787	competent to consent to treatment, the hearing officer may issue
788	a recommended order to the court that found the patient
789	incompetent to consent to treatment that the patient's
790	competence be restored and that any guardian advocate previously
791	appointed be discharged.
792	(8) RETURN OF PATIENTS.--When a patient at a treatment
793	facility leaves the facility without authorization, the
794	administrator may authorize a search for the patient and the
795	return of the patient to the facility. The administrator may
796	request the assistance of a law enforcement agency in the search
797	for and return of the patient.
798	Section 7. Involuntary Outpatient Placement Implementation
799	Task Force.--
800	(1) The Involuntary Outpatient Placement Implementation
801	Task Force is established to develop a plan for implementation
802	of the involuntary outpatient placement procedures established
803	in this act. The task force shall include a representative from
804	each of the following entities, to be designated by their
805	respective organizations no later than July 1, 2003: the Florida
806	Sheriffs Association, the Florida Police Chiefs Association, the
807	Florida Public Defender Association, Inc., the Florida
808	Prosecuting Attorneys Association, the Florida Association of
809	Court Clerks, the Florida Association of Counties, the
810	Department of Children and Family Services, the Florida Council
811	for Community Mental Health, and the Agency for Health Care
812	Administration. Additionally, a member of the Senate shall be
813	designated by the President of the Senate, a member of the House
814	of Representatives shall be designated by the Speaker of the
815	House of Representatives, a representative of the Executive
816	Office of the Governor shall be designated by the Governor, and
817	a circuit judge shall be designated by the Chief Justice of the
818	Supreme Court to serve on the task force. The representative for
819	the Florida Sheriffs Association and the circuit judge shall be
820	designated by the Chief Justice of the Florida Supreme Court and
821	shall serve as co-chairs of the task force. The task force
822	should solicit and receive input from interested parties.
823	(2) The task force shall be convened no later than August
824	1, 2003. Staff support for the initial meeting shall be provided
825	by staff of the House Committee on the Future of Florida’s
826	Families and the Senate Committee on Children and Families. The
827	co-chairs shall facilitate the meetings and make appropriate
828	arrangements for staff support of subsequent meetings and
829	preparation of an implementation plan and report. Expenses
830	associated with task force meetings and work products shall be
831	the responsibility of each member’s organization.
832	(3) The task force shall prepare an implementation plan
833	and report that identifies issues and proposed strategies for
834	implementation of court-ordered mental health treatment on an
835	outpatient basis. The task force shall also address issues,
836	including, but not limited to, recommendations for an evaluation
837	process to determine the effectiveness of involuntary outpatient
838	placement and proposed technical amendments to the Florida
839	Statutes to improve implementation, if necessary and
840	appropriate. The implementation plan and report must recommend a
841	process to collect data that reflects the impact of involuntary
842	outpatient placement on the courts, state attorneys, public
843	defenders, clerks of court, law enforcement, jails, and the
844	mental health treatment system. The report must be submitted by
845	December 1, 2003, to the Governor, the President of the Senate,
846	the Speaker of the House of Representatives, and the Chief
847	Justice of the Florida Supreme Court.
848	Section 8. If any provision of this act or its application
849	to any person or circumstance is held invalid, the invalidity
850	does not affect other provisions or applications of the act
851	which can be given effect without the invalid provision or
852	application, and to this end the provisions of this act are
853	severable.
854	Section 9. Except as otherwise provided herein, this act
855	shall take effect October 1, 2004.