Senate Bill sb2748c1

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    Florida Senate - 2003                           CS for SB 2748

    By the Committee on Judiciary; and Senator Peaden





    308-2468-03

  1                      A bill to be entitled

  2         An act relating to mental health; amending s.

  3         394.455, F.S.; defining and redefining terms

  4         used in part I of ch. 394, F.S., "the Baker

  5         Act"; amending s. 394.4598, F.S., relating to

  6         guardian advocates; amending provisions to

  7         conform to this act; amending s. 394.4615,

  8         F.S., relating to confidentiality of clinical

  9         records; providing additional circumstances in

10         which information from a clinical record may be

11         released; amending s. 394.463, F.S.; amending

12         provisions relating to involuntary examination;

13         creating s. 394.4655, F.S.; providing for

14         involuntary outpatient placement; providing

15         criteria; providing procedures; providing for a

16         voluntary examination for outpatient placement;

17         providing for a petition for involuntary

18         outpatient placement; providing for a

19         continuance of hearing; providing procedures

20         for the hearing on involuntary outpatient

21         placement; providing a procedure for continued

22         involuntary outpatient placement; amending s.

23         394.467, F.S., relating to involuntary

24         placement; conforming terminology to changes

25         made by this act; creating the Involuntary

26         Outpatient Placement Implementation Task Force;

27         providing for membership, meetings, and duties

28         of the task force; requiring a report;

29         providing for rulemaking authority; providing

30         severability; providing an effective date.

31  

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 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Subsection (3) of section 394.455, Florida

 4  Statutes, is amended, and subsections (31) and (32) are added

 5  to that section, to read:

 6         394.455  Definitions.--As used in this part, unless the

 7  context clearly requires otherwise, the term:

 8         (3)  "Clinical record" means all parts of the record

 9  required to be maintained and includes all medical records,

10  progress notes, charts, and admission and discharge data, and

11  all other information recorded by a facility which pertains to

12  the patient's hospitalization or and treatment.

13         (31)  "Service provider" means any public or private

14  receiving facility, an entity under contract with the

15  Department of Children and Family Services to provide mental

16  health services, a clinical psychologist, a clinical social

17  worker, a physician, a psychiatric nurse, or a community

18  mental health center or clinic as defined in this part.

19         (32)  "Involuntary placement" means either involuntary

20  outpatient treatment pursuant to s. 394.4655 or involuntary

21  inpatient treatment pursuant to s. 394.467.

22         Section 2.  Subsections (1) and (7) of section

23  394.4598, Florida Statutes, are amended to read:

24         394.4598  Guardian advocate.--

25         (1)  The administrator may petition the court for the

26  appointment of a guardian advocate based upon the opinion of a

27  psychiatrist that the patient is incompetent to consent to

28  treatment. If the court finds that a patient is incompetent to

29  consent to treatment and has not been adjudicated

30  incapacitated and a guardian with the authority to consent to

31  mental health treatment appointed, it shall appoint a guardian

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 1  advocate. The patient has the right to have an attorney

 2  represent him or her at the hearing. If the person is

 3  indigent, the court shall appoint the office of the public

 4  defender to represent him or her at the hearing. The patient

 5  has the right to testify, cross-examine witnesses, and present

 6  witnesses. The proceeding shall be recorded either

 7  electronically or stenographically, and testimony shall be

 8  provided under oath. One of the professionals authorized to

 9  give an opinion in support of a petition for involuntary

10  placement, as described in s. 394.4655 or s. 394.467(2), must

11  testify. A guardian advocate must meet the qualifications of a

12  guardian contained in part IV of chapter 744, except that a

13  professional referred to in this part, an employee of the

14  facility providing direct services to the patient under this

15  part, a departmental employee, a  facility administrator, or

16  member of the Florida local advocacy council shall not be

17  appointed. A person who is appointed as a guardian advocate

18  must agree to the appointment.

19         (7)  The guardian advocate shall be discharged when the

20  patient is discharged from an order for involuntary outpatient

21  placement or involuntary inpatient placement a receiving or

22  treatment facility to the community or when the patient is

23  transferred from involuntary to voluntary status. The court or

24  a hearing officer shall consider the competence of the patient

25  pursuant to subsection (1) and may consider an involuntarily

26  placed patient's competence to consent to treatment at any

27  hearing. Upon sufficient evidence, the court may restore, or

28  the hearing officer may recommend that the court restore, the

29  patient's competence. A copy of the order restoring competence

30  or the certificate of discharge containing the restoration of

31  

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 1  competence shall be provided to the patient and the guardian

 2  advocate.

 3         Section 3.  Subsection (3) of section 394.4615, Florida

 4  Statutes, is amended to read:

 5         394.4615  Clinical records; confidentiality.--

 6         (3)  Information from the clinical record may be

 7  released in the following circumstances when:

 8         (a)  When a patient has declared an intention to harm

 9  other persons.  When such declaration has been made, the

10  administrator may authorize the release of sufficient

11  information to provide adequate warning to the person

12  threatened with harm by the patient.

13         (b)  When the administrator of the facility or

14  secretary of the department deems release to a qualified

15  researcher as defined in administrative rule, an aftercare

16  treatment provider, or an employee or agent of the department

17  is necessary for treatment of the patient, maintenance of

18  adequate records, compilation of treatment data, aftercare

19  planning, or evaluation of programs.

20         (c)  For the purpose of determining whether a person

21  meets the criteria for involuntary outpatient placement

22  pursuant to s. 394.4655, the clinical record may be released

23  to the state attorney, the public defender, or the patient's

24  private legal counsel; to the court; and to the appropriate

25  mental health professionals.

26         Section 4.  Subsection (1) and paragraphs (e), (g), and

27  (i) of subsection (2) of section 394.463, Florida Statutes,

28  are amended to read:

29         394.463  Involuntary examination.--

30         (1)  CRITERIA.--A person may be taken to a receiving

31  facility for involuntary examination if there is reason to

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 1  believe that the person has a mental illness he or she is

 2  mentally ill and because of his or her mental illness:

 3         (a)1.  The person has refused voluntary examination

 4  after conscientious explanation and disclosure of the purpose

 5  of the examination; or

 6         (b)2.  The person is unable to determine for himself or

 7  herself whether examination is necessary; and

 8         (c)(b)  Based on the person's current reported or

 9  observed behavior, considering any mental health history,

10  there is a substantial likelihood that without care or

11  treatment:

12         1.  Without care or treatment, The person is likely to

13  suffer from neglect or refuse to care for himself or herself;

14  such neglect or refusal will pose poses a real and present

15  threat of substantial harm to his or her well-being; and it is

16  not apparent that such harm may be avoided through the help of

17  willing family members or friends or the provision of other

18  services; or

19         2.  There is a substantial likelihood that without care

20  or treatment The person will cause serious bodily harm to

21  himself or herself or others in the near future, as evidenced

22  by recent behavior.

23         (2)  INVOLUNTARY EXAMINATION.--

24         (e)  The Agency for Health Care Administration shall

25  receive and maintain the copies of ex parte orders,

26  involuntary outpatient placement orders issued pursuant to s.

27  394.4655, involuntary inpatient orders issued pursuant to s.

28  394.467, professional certificates, and law enforcement

29  officers' reports.  These documents shall be considered part

30  of the clinical record, governed by the provisions of s.

31  394.4615.  The agency shall prepare annual reports analyzing

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 1  the data obtained from these documents, without information

 2  identifying patients, and shall provide copies of reports to

 3  the department, the President of the Senate, the Speaker of

 4  the House of Representatives, and the minority leaders of the

 5  Senate and the House of Representatives.

 6         (g)  A person for whom an involuntary examination has

 7  been initiated who is being evaluated or treated at a hospital

 8  for an emergency medical condition specified in s. 395.002

 9  must be examined by a receiving facility within 72 hours.  The

10  72-hour period begins when the patient arrives at the hospital

11  and ceases when the attending physician documents that the

12  patient has an emergency medical condition. If the patient is

13  examined at a hospital providing emergency medical services by

14  a professional qualified to perform an involuntary examination

15  and is found as a result of that examination not to meet the

16  criteria for involuntary outpatient placement pursuant to s.

17  394.4655(1) or involuntary inpatient placement pursuant to s.

18  394.467(1), the patient may be offered voluntary placement, if

19  appropriate, or released directly from the hospital providing

20  emergency medical services.  The finding by the professional

21  that the patient has been examined and does not meet the

22  criteria for involuntary inpatient placement or involuntary

23  outpatient placement must be entered into the patient's

24  clinical record. Nothing in this paragraph is intended to

25  prevent a hospital providing emergency medical services from

26  appropriately transferring a patient to another hospital prior

27  to stabilization, provided the requirements of s.

28  395.1041(3)(c) have been met.

29         (i)  Within the 72-hour examination period or, if the

30  72 hours ends on a weekend or holiday, no later than the next

31  

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 1  working day thereafter, one of the following actions must be

 2  taken, based on the individual needs of the patient:

 3         1.  The patient shall be released, unless he or she is

 4  charged with a crime, in which case the patient shall be

 5  returned to the custody of a law enforcement officer;

 6         2.  The patient shall be released, subject to the

 7  provisions of subparagraph 1., for voluntary outpatient

 8  treatment;

 9         3.  The patient, unless he or she is charged with a

10  crime, shall be asked to give express and informed consent to

11  placement as a voluntary patient, and, if such consent is

12  given, the patient shall be admitted as a voluntary patient;

13  or

14         4.  A petition for involuntary outpatient placement or

15  a petition for involuntary inpatient placement shall be filed

16  in the appropriate court by the petitioner delineated in s.

17  394.4655(3)(a) facility administrator when treatment is deemed

18  necessary; in which case, the least restrictive treatment

19  consistent with the optimum improvement of the patient's

20  condition shall be made available.

21         Section 5.  Section 394.4655, Florida Statutes, is

22  created to read:

23         394.4655  Involuntary outpatient placement.--

24         (1)  CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--

25         (a)  A person may be ordered to involuntary outpatient

26  placement upon a finding of the court that by clear and

27  convincing evidence:

28         1.  The person is 18 years of age or older;

29         2.  The person has a mental illness;

30  

31  

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 1         3.  The person is unlikely to survive safely in the

 2  community without supervision, based on a clinical

 3  determination;

 4         4.  The person has a history of lack of compliance with

 5  treatment for mental illness;

 6         5.  The person has:

 7         a.  At least twice within the immediately preceding 36

 8  months been admitted for examination or placement in a

 9  receiving or treatment facility as defined in s. 394.455, or

10  has received mental health services in a forensic or

11  correctional facility. The 36-month period does not include

12  any period during which the person was admitted or

13  incarcerated immediately preceding the filing of the petition

14  and does include acts of noncompliance with the treatment and

15  the current admission for consideration; or

16         b.  Engaged in one or more acts of serious violent

17  behavior toward self or others, or attempts at serious bodily

18  harm to himself or herself or others, within the immediately

19  preceding 36 months. The 36-month period does not include any

20  period in which the person was admitted or incarcerated

21  immediately preceding the filing of the petition and does

22  include acts of violence occurring during the admission or

23  incarceration;

24         6.  The person is, as a result of his or her mental

25  illness, unlikely to voluntarily participate in the

26  recommended treatment pursuant to the treatment plan;

27         7.  In view of the person's treatment history and

28  current behavior, the person is in need of involuntary

29  outpatient placement in order to prevent a relapse or

30  deterioration that would be likely to result in serious bodily

31  

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 1  harm to himself or herself or others, or a substantial harm to

 2  his or her well-being as defined in s. 394.463(1);

 3         8.  It is likely that the person will benefit from

 4  involuntary outpatient placement; and

 5         9.  All available less restrictive alternatives that

 6  would offer an opportunity for improvement of his or her

 7  condition have been judged to be inappropriate.

 8         (b)  Each required criterion for involuntary outpatient

 9  placement must be alleged in the petition and substantiated by

10  either hospitalization records or arrest records that shall be

11  attached to the petition or a sworn affidavit that shall be

12  attached to the petition. The petition must consist of a

13  clinical determination by a qualified professional who shall

14  be required to attend the hearing pursuant to subsection (6).

15  The patient shall be allowed an opportunity to present

16  evidence and testimony at the hearing to refute or rebut the

17  allegations.

18         (2)  INVOLUNTARY OUTPATIENT PLACEMENT.--

19         (a)  From a receiving facility.--A patient may be

20  retained by a receiving facility unless he or she has been

21  stabilized and no longer meets the criteria for involuntary

22  examination pursuant to s. 394.463(1), in which case the

23  patient must be placed in outpatient treatment while awaiting

24  the hearing for involuntary outpatient placement upon the

25  recommendation of the administrator of a receiving facility

26  where the patient has been examined and after adherence to the

27  notice and hearing procedures provided in s. 394.4599. The

28  recommendation must be supported by the opinion of a

29  psychiatrist and the second opinion of a clinical psychologist

30  or another psychiatrist, both of whom have personally examined

31  the patient within the preceding 72 hours, that the criteria

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 1  for involuntary outpatient placement are met. However, in a

 2  county having a population of fewer than 50,000, if the

 3  administrator certifies that no psychiatrist or clinical

 4  psychologist is available to provide the second opinion, the

 5  second opinion may be provided by a licensed physician who has

 6  postgraduate training and experience in diagnosis and

 7  treatment of mental and nervous disorders or by a psychiatric

 8  nurse. Such a recommendation must be entered on an involuntary

 9  outpatient placement certificate, which certificate must

10  authorize the receiving facility to retain the patient pending

11  transfer to involuntary outpatient placement or completion of

12  a hearing.

13         (b)  Voluntary examination for outpatient

14  placement.--If such an arrangement can be made, a patient may

15  agree to be examined on an outpatient basis for an involuntary

16  outpatient placement certificate. The certificate must be

17  supported by the opinion of a psychiatrist and the second

18  opinion of a clinical psychologist or another psychiatrist,

19  both of whom have personally examined the patient within the

20  preceding 14 calendar days, that the criteria for involuntary

21  outpatient placement are met. However, in a county having a

22  population of fewer than 50,000, if the psychiatrist certifies

23  that no psychiatrist or clinical psychologist is available to

24  provide the second opinion, the second opinion may be provided

25  by a licensed physician who has postgraduate training and

26  experience in diagnosis and treatment of mental and nervous

27  disorders or by a psychiatric nurse.

28         (c)  From a treatment facility.--If a patient in

29  involuntary inpatient placement meets the criteria for

30  involuntary outpatient placement, the administrator of the

31  treatment facility may, before the expiration of the period

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 1  during which the treatment facility is authorized to retain

 2  the patient, recommend involuntary outpatient placement. The

 3  recommendation must be supported by the opinion of a

 4  psychiatrist and the second opinion of a clinical psychologist

 5  or another psychiatrist, both of whom have personally examined

 6  the patient within the preceding 72 hours, that the criteria

 7  for involuntary outpatient placement are met. However, in a

 8  county having a population of fewer than 50,000, if the

 9  administrator certifies that no psychiatrist or clinical

10  psychologist is available to provide the second opinion, the

11  second opinion may be provided by a licensed physician who has

12  postgraduate training and experience in diagnosis and

13  treatment of mental and nervous disorders or by a psychiatric

14  nurse. Such a recommendation must be entered on an involuntary

15  outpatient placement certificate.

16         (3)  PETITION FOR INVOLUNTARY OUTPATIENT PLACEMENT.--

17         (a)  A petition for involuntary outpatient placement

18  may be filed only when the full range of services that the

19  person needs for mental health treatment and to live and

20  function successfully are available in the patient's local

21  community. The petitioner must certify, in a sworn affidavit

22  attached to the petition, the comprehensive array of services

23  that the individual person needs and the services that are

24  available in the community. A petition may be filed by:

25         1.  The administrator of the facility pursuant to

26  paragraph (2)(a);

27         2.  One of the examining professionals for persons

28  examined on a voluntary outpatient basis pursuant to paragraph

29  (2)(b). Upon filing the petition, the examining professional

30  shall provide a copy of the petition to the administrator of

31  the receiving facility or designated department representative

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 1  that will identify the service provider for the involuntary

 2  outpatient placement; or

 3         3.  The administrator of a treatment facility pursuant

 4  to paragraph (2)(c). Upon filing the petition, the

 5  administrator shall provide a copy of the petition to the

 6  administrator of the receiving facility or designated

 7  department representative that will identify the service

 8  provider for the involuntary outpatient placement.

 9         (b)  The petition for involuntary outpatient placement

10  must be filed in the county where the patient is located. When

11  the petition has been filed, the clerk of the court shall

12  provide copies to the department, the patient, the patient's

13  guardian or representative, and the state attorney and public

14  defender of the judicial circuit in which the patient is

15  located. A fee may not be charged for filing a petition under

16  this subsection.

17         (4)  APPOINTMENT OF COUNSEL.--Within 1 court working

18  day after the filing of a petition for involuntary outpatient

19  placement, the court shall appoint the public defender to

20  represent the person who is the subject of the petition,

21  unless the person is otherwise represented by counsel. The

22  clerk of the court shall immediately notify the public

23  defender of the appointment. The public defender shall

24  represent the person until the petition is dismissed, the

25  court order expires, or the patient is discharged from

26  involuntary outpatient placement. An attorney who represents

27  the patient shall have access to the patient, witnesses, and

28  records relevant to the presentation of the patient's case and

29  shall represent the interests of the patient, regardless of

30  the source of payment to the attorney.

31  

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 1         (5)  CONTINUANCE OF HEARING.--The patient is entitled,

 2  with the concurrence of the patient's counsel, to at least one

 3  continuance of the hearing. The continuance shall be for a

 4  period of up to 4 weeks.

 5         (6)  HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.--

 6         (a)1.  The court shall hold the hearing on involuntary

 7  outpatient placement within 5 days, unless a continuance is

 8  granted. The hearing shall be held in the county where the

 9  patient is located, shall be as convenient to the patient as

10  is consistent with orderly procedure, and shall be conducted

11  in physical settings not likely to be injurious to the

12  patient's condition. The state attorney for the circuit in

13  which the patient is located shall represent the state, rather

14  than the petitioner, as the real party in interest in the

15  proceeding.

16         2.  The court may appoint a master to preside at the

17  hearing. One of the professionals who executed the involuntary

18  outpatient placement certificate shall be a witness. The

19  patient and the patient's guardian or representative shall be

20  informed by the court of the right to an independent expert

21  examination. If the patient cannot afford such an examination,

22  the court shall provide for one. The independent expert's

23  report shall be confidential and not discoverable, unless the

24  expert is to be called as a witness for the patient at the

25  hearing. The court shall allow testimony from individuals,

26  including family members, deemed by the court to be relevant

27  under Florida law, regarding the person's prior history and

28  how that prior history relates to the person's current

29  condition. The testimony in the hearing must be given under

30  oath, and the proceedings must be recorded. The patient may

31  refuse to testify at the hearing.

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 1         (b)1.  If the court concludes that the patient meets

 2  the criteria for involuntary outpatient placement pursuant to

 3  subsection (1), the court shall issue an order for involuntary

 4  outpatient placement. The court order shall be for a period of

 5  up to 6 months. The service provider shall discharge a patient

 6  any time the patient no longer meets the criteria for

 7  involuntary placement.

 8         2.  The administrator of a receiving facility or a

 9  designated department representative shall identify the

10  service provider that will have primary responsibility for

11  service provision under the order. The service provider shall

12  prepare a written proposed treatment plan and submit it before

13  the hearing for the court's consideration for inclusion in the

14  involuntary outpatient placement order. The treatment plan

15  must specify the nature and extent of the patient's mental

16  illness. The treatment plan may include provisions for case

17  management, intensive case management, or assertive community

18  treatment or a program for assertive community treatment. The

19  treatment plan may also require that the patient make use of a

20  service provider to supply any or all of the following

21  categories of services to the individual: medication; periodic

22  urinalysis to determine compliance with treatment; individual

23  or group therapy; day or partial-day programming activities;

24  educational and vocational training or activities; alcohol or

25  substance abuse treatment and counseling and periodic tests

26  for the presence of alcohol or illegal drugs for persons with

27  a history of alcohol or substance abuse; supervision of living

28  arrangements; and any other services prescribed to treat the

29  person's mental illness and to assist the person in living and

30  functioning in the community or to attempt to prevent a

31  relapse or deterioration. The service provider must certify to

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 1  the court in the treatment plan that the proposed services are

 2  currently available and that the service provider agrees to

 3  provide those services. Service providers may select and

 4  provide supervision to other individuals, not enumerated in

 5  this sub-subparagraph, to implement specific aspects of the

 6  treatment plan, such as medication monitoring. The services in

 7  the treatment plan must be deemed to be clinically appropriate

 8  by a physician, clinical psychologist, psychiatric nurse, or

 9  clinical social worker who consults with, or is employed or

10  contracted by, the service provider. The court shall not order

11  the department or the service provider to provide services if

12  the program or service is not available in the patient's local

13  community, if there is no space available in the program or

14  service for the patient, or if funding is not available for

15  the program or service. A copy of the order must be sent to

16  the Agency for Health Care Administration. After the placement

17  order is issued, the service provider and the patient may

18  modify provisions of the treatment plan. For any material

19  modification of the treatment plan, the service provider shall

20  send notice of the modification to the court. Any material

21  modifications of the treatment plan which are contested by the

22  patient must be approved by the court.

23         3.  If, in the clinical judgment of a physician, the

24  patient has failed or has refused to comply with the treatment

25  ordered by the court, and, in the clinical judgment of the

26  physician, efforts were made to solicit compliance and the

27  patient may meet the criteria for involuntary examination, a

28  person may be brought to a receiving facility pursuant to s.

29  394.463. If, after examination, the patient does not meet the

30  criteria for involuntary inpatient placement pursuant to s.

31  394.467, the patient must be discharged from the receiving

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 1  facility. The service provider must determine whether

 2  modifications should be made to the existing treatment plan

 3  and must attempt to continue to engage the patient in

 4  treatment. For any material modification of the treatment plan

 5  to which the patient or, if appointed, the patient's guardian

 6  advocate does not agree, the service provider shall send

 7  notice of the modification to the court. Any material

 8  modifications of the treatment plan which are contested by the

 9  patient or, if appointed, the patient's guardian advocate must

10  be approved by the court.

11         (c)  If, at any time before the conclusion of the

12  initial hearing on involuntary outpatient placement, it

13  appears to the court that the person does not meet the

14  criteria for involuntary outpatient placement under this

15  section but, instead, meets the criteria for involuntary

16  inpatient placement, the court may order the person admitted

17  for involuntary inpatient placement pursuant to s. 394.467. If

18  the person instead meets the criteria for involuntary

19  assessment, protective custody, or involuntary admission

20  pursuant to s. 397.675, the court may order the person to be

21  admitted for involuntary assessment for a period of 5 days

22  pursuant to s. 397.6811. Thereafter, all proceedings shall be

23  governed by chapter 397.

24         (d)  At the hearing on involuntary outpatient

25  placement, the court shall consider testimony and evidence

26  regarding the patient's competence to consent to treatment. If

27  the court finds that the patient is incompetent to consent to

28  treatment, it shall appoint a guardian advocate as provided in

29  s. 394.4598 from a list of qualified and available guardian

30  advocates submitted to the court with the petition. The

31  guardian advocate is immune from civil liability under this

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 1  provision. Section 394.4598 governs the discharge of the

 2  guardian advocate if the patient's competency to consent to

 3  treatment is restored.

 4         (e)  The administrator of the receiving facility or the

 5  designated department representative shall provide a copy of

 6  the court order and adequate documentation of a patient's

 7  mental illness to the service provider for involuntary

 8  outpatient placement. Such documentation must include any

 9  advance directives made by the patient, a psychiatric

10  evaluation of the patient, and any evaluations of the patient

11  performed by a clinical psychologist or a clinical social

12  worker.

13         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT

14  PLACEMENT.--

15         (a)  If the person continues to meet the criteria for

16  involuntary outpatient placement, the service provider shall,

17  before the expiration of the period during which the treatment

18  is ordered for the person, file in the circuit court a

19  continued involuntary outpatient placement certificate which

20  shall be accompanied by a statement from the person's

21  physician or clinical psychologist justifying the request, a

22  brief description of the patient's treatment during the time

23  he or she was involuntarily placed, and an individualized plan

24  of continued treatment.

25         (b)  Within 1 court working day after the filing of a

26  petition for continued involuntary outpatient placement, the

27  court shall appoint the public defender to represent the

28  person who is the subject of the petition, unless the person

29  is otherwise represented by counsel. The clerk of the court

30  shall immediately notify the public defender of such

31  appointment. The public defender shall represent the person

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 1  until the petition is dismissed or the court order expires or

 2  the patient is discharged from involuntary outpatient

 3  placement. Any attorney representing the patient shall have

 4  access to the patient, witnesses, and records relevant to the

 5  presentation of the patient's case and shall represent the

 6  interests of the patient, regardless of the source of payment

 7  to the attorney.

 8         (c)  Hearings on petitions for continued involuntary

 9  outpatient placement shall be before the circuit court. The

10  court may appoint a master to preside at the hearing. The

11  procedures for obtaining an order pursuant to this paragraph

12  shall be in accordance with subsection (6), except that the

13  time period included in sub-subparagraph 4. is not applicable

14  in determining the appropriateness of additional periods of

15  involuntary outpatient placement.

16         (d)  Notice of the hearing shall be provided as set

17  forth in s. 394.4599.

18         (e)  The same procedure shall be repeated before the

19  expiration of each additional period the patient is placed in

20  treatment.

21         (f)  If the patient has previously been found

22  incompetent to consent to treatment, the court shall consider

23  testimony and evidence regarding the patient's competence. If

24  the court finds evidence that the patient is now competent to

25  consent to treatment, the court may order that any previously

26  appointed guardian advocate be discharged.

27         Section 6.  Section 394.467, Florida Statutes, is

28  amended to read:

29         394.467  Involuntary inpatient placement.--

30  

31  

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 1         (1)  CRITERIA.--A person may be involuntarily placed in

 2  involuntary inpatient placement for treatment upon a finding

 3  of the court by clear and convincing evidence that:

 4         (a)  He or she is mentally ill and because of his or

 5  her mental illness:

 6         1.a.  He or she has refused voluntary placement for

 7  treatment after sufficient and conscientious explanation and

 8  disclosure of the purpose of placement for treatment; or

 9         b.  He or she is unable to determine for himself or

10  herself whether placement is necessary; and

11         2.a.  He or she is manifestly incapable of surviving

12  alone or with the help of willing and responsible family or

13  friends, including available alternative services, and,

14  without treatment, is likely to suffer from neglect or refuse

15  to care for himself or herself, and such neglect or refusal

16  poses a real and present threat of substantial harm to his or

17  her well-being; or

18         b.  There is substantial likelihood that in the near

19  future he or she will inflict serious bodily harm on himself

20  or herself or another person, as evidenced by recent behavior

21  causing, attempting, or threatening such harm; and

22         (b)  All available less restrictive treatment

23  alternatives which would offer an opportunity for improvement

24  of his or her condition have been judged to be inappropriate.

25         (2)  ADMISSION TO A TREATMENT FACILITY.--A patient may

26  be retained by a receiving facility or involuntarily placed in

27  a treatment facility upon the recommendation of the

28  administrator of a receiving facility where the patient has

29  been examined and after adherence to the notice and hearing

30  procedures provided in s. 394.4599. The recommendation must be

31  supported by the opinion of a psychiatrist and the second

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 1  opinion of a clinical psychologist or another psychiatrist,

 2  both of whom have personally examined the patient within the

 3  preceding 72 hours, that the criteria for involuntary

 4  inpatient placement are met.  However, in counties of less

 5  than 50,000 population, if the administrator certifies that no

 6  psychiatrist or clinical psychologist is available to provide

 7  the second opinion, such second opinion may be provided by a

 8  licensed physician with postgraduate training and experience

 9  in diagnosis and treatment of mental and nervous disorders or

10  by a psychiatric nurse.  Such recommendation shall be entered

11  on an involuntary inpatient placement certificate, which

12  certificate shall authorize the receiving facility to retain

13  the patient pending transfer to a treatment facility or

14  completion of a hearing.

15         (3)  PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.--The

16  administrator of the facility shall file a petition for

17  involuntary inpatient placement in the court in the county

18  where the patient is located.  Upon filing, the clerk of the

19  court shall provide copies to the department, the patient, the

20  patient's guardian or representative, and the state attorney

21  and public defender of the judicial circuit in which the

22  patient is located.  No fee shall be charged for the filing of

23  a petition under this subsection.

24         (4)  APPOINTMENT OF COUNSEL.--Within 1 court working

25  day after the filing of a petition for involuntary inpatient

26  placement, the court shall appoint the public defender to

27  represent the person who is the subject of the petition,

28  unless the person is otherwise represented by counsel.  The

29  clerk of the court shall immediately notify the public

30  defender of such appointment. Any attorney representing the

31  patient shall have access to the patient, witnesses, and

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 1  records relevant to the presentation of the patient's case and

 2  shall represent the interests of the patient, regardless of

 3  the source of payment to the attorney.

 4         (5)  CONTINUANCE OF HEARING.--The patient is entitled,

 5  with the concurrence of the patient's counsel, to at least one

 6  continuance of the hearing.  The continuance shall be for a

 7  period of up to 4 weeks.

 8         (6)  HEARING ON INVOLUNTARY INPATIENT PLACEMENT.--

 9         (a)1.  The court shall hold the hearing on involuntary

10  inpatient placement within 5 days, unless a continuance is

11  granted.  The hearing shall be held in the county where the

12  patient is located and shall be as convenient to the patient

13  as may be consistent with orderly procedure and shall be

14  conducted in physical settings not likely to be injurious to

15  the patient's condition.  If the court finds that the

16  patient's attendance at the hearing is not consistent with the

17  best interests of the patient, and the patient's counsel does

18  not object, the court may waive the presence of the patient

19  from all or any portion of the hearing.  The state attorney

20  for the circuit in which the patient is located shall

21  represent the state, rather than the petitioning facility

22  administrator, as the real party in interest in the

23  proceeding.

24         2.  The court may appoint a master to preside at the

25  hearing. One of the professionals who executed the involuntary

26  inpatient placement certificate shall be a witness.  The

27  patient and the patient's guardian or representative shall be

28  informed by the court of the right to an independent expert

29  examination.  If the patient cannot afford such an

30  examination, the court shall provide for one. The independent

31  expert's report shall be confidential and not discoverable,

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 1  unless the expert is to be called as a witness for the patient

 2  at the hearing. The testimony in the hearing must be given

 3  under oath, and the proceedings must be recorded. The patient

 4  may refuse to testify at the hearing.

 5         (b)  If the court concludes that the patient meets the

 6  criteria for involuntary inpatient placement, it shall order

 7  that the patient be transferred to a treatment facility or, if

 8  the patient is at a treatment facility, that the patient be

 9  retained there or be treated at any other appropriate

10  receiving or treatment facility, or that the patient receive

11  services from a receiving or treatment facility, on an

12  involuntary basis, for a period of up to 6 months. The order

13  shall specify the nature and extent of the patient's mental

14  illness. The facility shall discharge a patient any time the

15  patient no longer meets the criteria for involuntary inpatient

16  placement, unless the patient has transferred to voluntary

17  status.

18         (c)  If at any time prior to the conclusion of the

19  hearing on involuntary inpatient placement it appears to the

20  court that the person does not meet the criteria for

21  involuntary inpatient placement under this section, but

22  instead meets the criteria for involuntary outpatient

23  placement, the court may order the person evaluated for

24  involuntary outpatient placement pursuant to s. 394.4655. The

25  petition and hearing procedures set forth in s. 394.4655 shall

26  apply. If the person placement under this chapter, but instead

27  meets the criteria for involuntary assessment, protective

28  custody, or involuntary admission pursuant to s. 397.675, then

29  the court may order the person to be admitted for involuntary

30  assessment for a period of 5 days pursuant to s. 397.6811.

31  Thereafter, all proceedings shall be governed by chapter 397.

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 1         (d)  At the hearing on involuntary inpatient placement,

 2  the court shall consider testimony and evidence regarding the

 3  patient's competence to consent to treatment.  If the court

 4  finds that the patient is incompetent to consent to treatment,

 5  it shall appoint a guardian advocate as provided in s.

 6  394.4598.

 7         (e)  The administrator of the receiving facility shall

 8  provide a copy of the court order and adequate documentation

 9  of a patient's mental illness to the administrator of a

10  treatment facility whenever a patient is ordered for

11  involuntary inpatient placement, whether by civil or criminal

12  court.  Such documentation shall include any advance

13  directives made by the patient, a psychiatric evaluation of

14  the patient, and any evaluations of the patient performed by a

15  clinical psychologist or a clinical social worker. The

16  administrator of a treatment facility may refuse admission to

17  any patient directed to its facilities on an involuntary

18  basis, whether by civil or criminal court order, who is not

19  accompanied at the same time by adequate orders and

20  documentation.

21         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT

22  PLACEMENT.--

23         (a)  Hearings on petitions for continued involuntary

24  inpatient placement shall be administrative hearings and shall

25  be conducted in accordance with the provisions of s.

26  120.57(1), except that any order entered by the hearing

27  officer shall be final and subject to judicial review in

28  accordance with s. 120.68.  Orders concerning patients

29  committed after successfully pleading not guilty by reason of

30  insanity shall be governed by the provisions of s. 916.15.

31  

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 1         (b)  If the patient continues to meet the criteria for

 2  involuntary inpatient placement, the administrator shall,

 3  prior to the expiration of the period during which the

 4  treatment facility is authorized to retain the patient, file a

 5  petition requesting authorization for continued involuntary

 6  inpatient placement.  The request shall be accompanied by a

 7  statement from the patient's physician or clinical

 8  psychologist justifying the request, a brief description of

 9  the patient's treatment during the time he or she was

10  involuntarily placed, and an individualized plan of continued

11  treatment.  Notice of the hearing shall be provided as set

12  forth in s. 394.4599. If at the hearing the hearing officer

13  finds that attendance at the hearing is not consistent with

14  the best interests of the patient, the hearing officer may

15  waive the presence of the patient from all or any portion of

16  the hearing, unless the patient, through counsel, objects to

17  the waiver of presence.  The testimony in the hearing must be

18  under oath, and the proceedings must be recorded.

19         (c)  Unless the patient is otherwise represented or is

20  ineligible, he or she shall be represented at the hearing on

21  the petition for continued involuntary inpatient placement by

22  the public defender of the circuit in which the facility is

23  located.

24         (d)  If at a hearing it is shown that the patient

25  continues to meet the criteria for involuntary inpatient

26  placement, the administrative law judge shall sign the order

27  for continued involuntary inpatient placement for a period not

28  to exceed 6 months.  The same procedure shall be repeated

29  prior to the expiration of each additional period the patient

30  is retained.

31  

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 1         (e)  If continued involuntary inpatient placement is

 2  necessary for a patient admitted while serving a criminal

 3  sentence, but whose sentence is about to expire, or for a

 4  patient involuntarily placed while a minor but who is about to

 5  reach the age of 18, the administrator shall petition the

 6  administrative law judge for an order authorizing continued

 7  involuntary inpatient placement.

 8         (f)  If the patient has been previously found

 9  incompetent to consent to treatment, the hearing officer shall

10  consider testimony and evidence regarding the patient's

11  competence.  If the hearing officer finds evidence that the

12  patient is now competent to consent to treatment, the hearing

13  officer may issue a recommended order to the court that found

14  the patient incompetent to consent to treatment that the

15  patient's competence be restored and that any guardian

16  advocate previously appointed be discharged.

17         (8)  RETURN OF PATIENTS.--When a patient at a treatment

18  facility leaves the facility without authorization, the

19  administrator may authorize a search for the patient and the

20  return of the patient to the facility.  The administrator may

21  request the assistance of a law enforcement agency in the

22  search for and return of the patient.

23         Section 7.  Involuntary Outpatient Placement

24  Implementation Task Force.--

25         (1)  An Involuntary Outpatient Placement Implementation

26  Task Force is established to develop a plan for implementation

27  of the involuntary outpatient placement procedures established

28  in this act. The task force shall include a representative

29  from each of the following entities, to be designated by their

30  respective organizations no later than July 1, 2003: the

31  Florida Sheriffs' Association, the Florida Police Chiefs'

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 1  Association, the Florida Public Defenders Association, the

 2  Florida Prosecuting Attorneys Association, the Florida

 3  Association of Court Clerks, the Florida Association of

 4  Counties, the Department of Children and Family Services, the

 5  Florida Council for Community Mental Health, and the Agency

 6  for Health Care Administration. In addition, a member of the

 7  Florida Senate shall be designated by the Senate President, a

 8  member of the Florida House of Representatives shall be

 9  designated by the Speaker of the House of Representatives, a

10  representative of the Executive Office of the Governor shall

11  be designated by the Governor, and a circuit judge shall be

12  designated by the Chief Justice of the Florida Supreme Court

13  to serve on the task force. The representative for the Florida

14  Sheriffs' Association and the circuit judge designated by the

15  Chief Justice shall serve as co-chairs of the task force. The

16  task force should solicit and receive input from interested

17  parties.

18         (2)  The task force shall be convened no later than

19  August 1, 2003. Staff support for the initial meeting shall be

20  provided by staff of the House Committee on the Future of

21  Florida's Families and the Senate Committee on Children and

22  Families. The co-chairs shall facilitate the meetings and make

23  appropriate arrangements for staff support of subsequent

24  meetings and preparation of an implementation plan and report.

25  Expenses associated with task force meetings and work products

26  shall be the responsibility of each member's organization.

27         (3)  The task force shall prepare an implementation

28  plan and report that identifies issues and proposed strategies

29  for implementation of court-ordered mental health treatment on

30  an outpatient basis. The task force should also address issues

31  including, but not limited to, recommendations for an

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 1  evaluation process to determine the effectiveness of

 2  involuntary outpatient placement and proposed technical

 3  amendments to the statute to improve implementation if

 4  necessary and appropriate. The implementation plan and report

 5  must recommend a process to collect data that reflects the

 6  impact of involuntary outpatient placement on the courts,

 7  state attorneys, public defenders, clerks of court, law

 8  enforcement, jails, and the mental health treatment system.

 9  The report must be submitted by December 1, 2003, to the

10  Governor, the President of the Senate, the Speaker of the

11  House of Representatives, and the Chief Justice of the Florida

12  Supreme Court.

13         Section 8.  The Department of Children and Family

14  Services shall have rulemaking authority to implement sections

15  1-7 of this act.

16         Section 9.  If any provision of this act or the

17  application thereof to any person or circumstance is held

18  invalid, the invalidity does not affect other provisions or

19  applications of this act which can be given effect without the

20  invalid provision or application, and to this end the

21  provisions of this act are declared severable.

22         Section 10.  Except as otherwise expressly provided in

23  this act, this act shall take effect October 1, 2004.

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2748

 3                                 

 4  Adds definition for the term "involuntary placement" to
    reflect that involuntary placement may be for outpatient or
 5  inpatient treatment or services.

 6  Deletes provisions relating to ex parte orders for the
    administration of medication, failure to comply with
 7  involuntary outpatient placement orders, and consent to
    medication by a guardian advocate over a patient's objection.
 8  
    Authorizes the release of confidential information in a
 9  person's clinical records for purposes of proceedings relating
    to involuntary outpatient placement.
10  
    Revises the criteria for involuntary examination.
11  
    Places the new provisions governing involuntary outpatient
12  placement in a new section including revised criteria and the
    process for petition and hearing.
13  
    Revises the process for continued involuntary outpatient
14  placement.

15   Creates a 13-member Involuntary Outpatient Placement
    Implementation Task Force.
16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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