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