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