Senate Bill sb0700c1
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Florida Senate - 2004 CS for SB 700
By the Committee on Children and Families; and Senators
Peaden, Fasano, Campbell, Smith and Lynn
300-1988-04
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 changes made by the act; amending s.
8 394.4615, F.S., relating to confidentiality of
9 clinical records; providing additional
10 circumstances in which information from a
11 clinical record may be released; amending s.
12 394.463, F.S.; revising criteria for an
13 involuntary examination; revising requirements
14 for filing a petition for involuntary
15 placement; creating s. 394.4655, F.S.;
16 providing for involuntary outpatient placement;
17 providing criteria; providing procedures;
18 providing for a voluntary examination for
19 outpatient placement; providing for a petition
20 for involuntary outpatient placement; requiring
21 the appointment of counsel; providing for a
22 continuance of hearing; providing procedures
23 for the hearing on involuntary outpatient
24 placement; providing a procedure for continued
25 involuntary outpatient placement; amending s.
26 394.467, F.S., relating to involuntary
27 placement; conforming terminology to changes
28 made by the act; providing for rulemaking
29 authority; providing for severability;
30 providing an effective date.
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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 nurse providing psychiatric services
18 consistent with chapter 464, or a community mental health
19 center or clinic as defined in this part.
20 (32) "Involuntary examination" means an examination
21 performed under s. 394.463 to determine if an individual
22 qualifies for involuntary inpatient treatment under s.
23 394.467(1) or involuntary outpatient treatment under s.
24 394.4655(1).
25 (33) "Involuntary placement" means either involuntary
26 outpatient treatment pursuant to s. 394.4655 or involuntary
27 inpatient treatment pursuant to s. 394.467.
28 Section 2. Subsections (1) and (7) of section
29 394.4598, Florida Statutes, are amended to read:
30 394.4598 Guardian advocate.--
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1 (1) The administrator may petition the court for the
2 appointment of a guardian advocate based upon the opinion of a
3 psychiatrist that the patient is incompetent to consent to
4 treatment. If the court finds that a patient is incompetent to
5 consent to treatment and has not been adjudicated
6 incapacitated and a guardian with the authority to consent to
7 mental health treatment appointed, it shall appoint a guardian
8 advocate. The patient has the right to have an attorney
9 represent him or her at the hearing. If the person is
10 indigent, the court shall appoint the office of the public
11 defender to represent him or her at the hearing. The patient
12 has the right to testify, cross-examine witnesses, and present
13 witnesses. The proceeding shall be recorded either
14 electronically or stenographically, and testimony shall be
15 provided under oath. One of the professionals authorized to
16 give an opinion in support of a petition for involuntary
17 placement, as described in s. 394.4655 or s. 394.467(2), must
18 testify. A guardian advocate must meet the qualifications of a
19 guardian contained in part IV of chapter 744, except that a
20 professional referred to in this part, an employee of the
21 facility providing direct services to the patient under this
22 part, a departmental employee, a facility administrator, or
23 member of the Florida local advocacy council shall not be
24 appointed. A person who is appointed as a guardian advocate
25 must agree to the appointment.
26 (7) The guardian advocate shall be discharged when the
27 patient is discharged from an order for involuntary outpatient
28 placement or involuntary inpatient placement a receiving or
29 treatment facility to the community or when the patient is
30 transferred from involuntary to voluntary status. The court or
31 a hearing officer shall consider the competence of the patient
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1 pursuant to subsection (1) and may consider an involuntarily
2 placed patient's competence to consent to treatment at any
3 hearing. Upon sufficient evidence, the court may restore, or
4 the hearing officer may recommend that the court restore, the
5 patient's competence. A copy of the order restoring competence
6 or the certificate of discharge containing the restoration of
7 competence shall be provided to the patient and the guardian
8 advocate.
9 Section 3. Subsection (3) of section 394.4615, Florida
10 Statutes, is amended to read:
11 394.4615 Clinical records; confidentiality.--
12 (3) Information from the clinical record may be
13 released in the following circumstances when:
14 (a) When a patient has declared an intention to harm
15 other persons. When such declaration has been made, the
16 administrator may authorize the release of sufficient
17 information to provide adequate warning to the person
18 threatened with harm by the patient.
19 (b) When the administrator of the facility or
20 secretary of the department deems release to a qualified
21 researcher as defined in administrative rule, an aftercare
22 treatment provider, or an employee or agent of the department
23 is necessary for treatment of the patient, maintenance of
24 adequate records, compilation of treatment data, aftercare
25 planning, or evaluation of programs.
26
27 The release of a patient's clinical record must be consented
28 to by the patient or, if a guardian advocate has been
29 appointed, the patient's guardian advocate and must be handled
30 in a manner consistent with applicable state and federal law.
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1 Section 4. Subsection (1) and paragraphs (e), (g), and
2 (i) of subsection (2) of section 394.463, Florida Statutes,
3 are amended to read:
4 394.463 Involuntary examination.--
5 (1) CRITERIA.--A person may be taken to a receiving
6 facility for involuntary examination if there is reason to
7 believe that the person has a mental illness he or she is
8 mentally ill and because of his or her mental illness:
9 (a)1. The person has refused voluntary examination
10 after conscientious explanation and disclosure of the purpose
11 of the examination; or
12 (b)2. The person is unable to determine for himself or
13 herself whether examination is necessary; and
14 (c)(b) Based on the person's current reported or
15 observed behavior, considering any mental health history,
16 there is a substantial likelihood that without care or
17 treatment:
18 1. Without care or treatment, The person will is
19 likely to suffer from neglect or refuse to care for himself or
20 herself; such neglect or refusal will pose poses a real and
21 present threat of substantial harm to his or her well-being;
22 and it is not apparent that such harm may be avoided through
23 the help of willing family members or friends or the provision
24 of other services; or
25 2. There is a substantial likelihood that without care
26 or treatment The person will cause serious bodily harm to
27 himself or herself or others in the near future, as evidenced
28 by recent behavior.
29 (2) INVOLUNTARY EXAMINATION.--
30 (e) The Agency for Health Care Administration shall
31 receive and maintain the copies of ex parte orders,
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1 involuntary outpatient placement orders issued pursuant to s.
2 394.4655, involuntary inpatient placement orders issued
3 pursuant to s. 394.467, professional certificates, and law
4 enforcement officers' reports. These documents shall be
5 considered part of the clinical record, governed by the
6 provisions of s. 394.4615. The agency shall prepare annual
7 reports analyzing the data obtained from these documents,
8 without information identifying patients, and shall provide
9 copies of reports to the department, the President of the
10 Senate, the Speaker of the House of Representatives, and the
11 minority leaders of the Senate and the House of
12 Representatives.
13 (g) A person for whom an involuntary examination has
14 been initiated who is being evaluated or treated at a hospital
15 for an emergency medical condition specified in s. 395.002
16 must be examined by a receiving facility within 72 hours. The
17 72-hour period begins when the patient arrives at the hospital
18 and ceases when the attending physician documents that the
19 patient has an emergency medical condition. If the patient is
20 examined at a hospital providing emergency medical services by
21 a professional qualified to perform an involuntary examination
22 and is found as a result of that examination not to meet the
23 criteria for involuntary outpatient placement pursuant to s.
24 394.4655(1) or involuntary inpatient placement pursuant to s.
25 394.467(1), the patient may be offered voluntary placement, if
26 appropriate, or released directly from the hospital providing
27 emergency medical services. The finding by the professional
28 that the patient has been examined and does not meet the
29 criteria for involuntary inpatient placement or involuntary
30 outpatient placement must be entered into the patient's
31 clinical record. Nothing in this paragraph is intended to
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1 prevent a hospital providing emergency medical services from
2 appropriately transferring a patient to another hospital prior
3 to stabilization, provided the requirements of s.
4 395.1041(3)(c) have been met.
5 (i) Within the 72-hour examination period or, if the
6 72 hours ends on a weekend or holiday, no later than the next
7 working day thereafter, one of the following actions must be
8 taken, based on the individual needs of the patient:
9 1. The patient shall be released, unless he or she is
10 charged with a crime, in which case the patient shall be
11 returned to the custody of a law enforcement officer;
12 2. The patient shall be released, subject to the
13 provisions of subparagraph 1., for voluntary outpatient
14 treatment;
15 3. The patient, unless he or she is charged with a
16 crime, shall be asked to give express and informed consent to
17 placement as a voluntary patient, and, if such consent is
18 given, the patient shall be admitted as a voluntary patient;
19 or
20 4. If treatment is deemed necessary and the patient
21 has failed to consent to voluntary inpatient or outpatient
22 treatment, a petition for involuntary placement must be filed
23 in the circuit court. The petition must seek involuntary
24 placement of the patient in the least restrictive treatment
25 consistent with the optimum improvement of the patient's
26 condition. A petition for involuntary outpatient placement
27 shall be filed by one of the petitioners specified in s.
28 394.4655(3)(a). A petition for involuntary inpatient placement
29 shall be filed by the facility administrator. A petition for
30 involuntary placement shall be filed in the appropriate court
31 by the facility administrator when treatment is deemed
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1 necessary; in which case, the least restrictive treatment
2 consistent with the optimum improvement of the patient's
3 condition shall be made available.
4 Section 5. Section 394.4655, Florida Statutes, is
5 created to read:
6 394.4655 Involuntary outpatient placement.--
7 (1) CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--A
8 person may be ordered to involuntary outpatient placement upon
9 a finding of the court that by clear and convincing evidence:
10 (a) The person is 18 years of age or older;
11 (b) The person has a mental illness;
12 (c) The person is unlikely to survive safely in the
13 community without supervision, based on a clinical
14 determination;
15 (d) The person has a history of lack of compliance
16 with treatment for mental illness;
17 (e) The person has:
18 1. At least twice within the immediately preceding 36
19 months been involuntarily admitted to a receiving or treatment
20 facility as defined in s. 394.455, or has received mental
21 health services in a forensic or correctional facility. The
22 36-month period does not include any period during which the
23 person was admitted or incarcerated; or
24 2. Engaged in one or more acts of serious violent
25 behavior toward self or others, or attempts at serious bodily
26 harm to himself or herself or others, within the preceding 36
27 months;
28 (f) The person is, as a result of his or her mental
29 illness, unlikely to voluntarily participate in the
30 recommended treatment pursuant to the treatment plan;
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1 (g) In view of the person's treatment history and
2 current behavior, the person is in need of involuntary
3 outpatient placement in order to prevent a relapse or
4 deterioration that would be likely to result in serious bodily
5 harm to himself or herself or others, or a substantial harm to
6 his or her well-being as set forth in s. 394.463(1);
7 (h) It is likely that the person will benefit from
8 involuntary outpatient placement; and
9 (i) All available less restrictive alternatives that
10 would offer an opportunity for improvement of his or her
11 condition have been judged to be inappropriate or unavailable.
12 (2) INVOLUNTARY OUTPATIENT PLACEMENT.--
13 (a) From a receiving facility.--A patient may be
14 retained by a receiving facility upon the recommendation of
15 the administrator of a receiving facility where the patient
16 has been examined and after adherence to the notice of hearing
17 procedures provided in s. 394.4599. The recommendation must be
18 supported by the opinion of a psychiatrist and the second
19 opinion of a clinical psychologist or another psychiatrist,
20 both of whom have personally examined the patient within the
21 preceding 72 hours, that the criteria for involuntary
22 outpatient placement are met. However, in a county having a
23 population of fewer than 50,000, if the administrator
24 certifies that no psychiatrist or clinical psychologist is
25 available to provide the second opinion, the second opinion
26 may be provided by a licensed physician who has postgraduate
27 training and experience in diagnosis and treatment of mental
28 and nervous disorders or by a nurse providing psychiatric
29 services consistent with chapter 464. Such a recommendation
30 must be entered on an involuntary outpatient placement
31 certificate, which certificate must authorize the receiving
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1 facility to retain the patient pending completion of a
2 hearing. If the patient has been stabilized and no longer
3 meets the criteria for involuntary examination pursuant to s.
4 394.463(1), the patient must be released from the receiving
5 facility while awaiting the hearing for involuntary outpatient
6 placement.
7 (b) Voluntary examination for outpatient
8 placement.--If such an arrangement can be made, a patient may
9 choose to be examined on an outpatient basis for an
10 involuntary outpatient placement certificate. The certificate
11 must be supported by the opinion of a psychiatrist and the
12 second opinion of a clinical psychologist or another
13 psychiatrist, both of whom have personally examined the
14 patient within the preceding 14 calendar days, that the
15 criteria for involuntary outpatient placement are met.
16 However, in a county having a population of fewer than 50,000,
17 if the psychiatrist certifies that no psychiatrist or clinical
18 psychologist is available to provide the second opinion, the
19 second opinion may be provided by a licensed physician who has
20 postgraduate training and experience in diagnosis and
21 treatment of mental and nervous disorders or by a nurse
22 providing psychiatric services consistent with chapter 464.
23 (c) From a treatment facility.--If a patient in
24 involuntary inpatient placement meets the criteria for
25 involuntary outpatient placement, the administrator of the
26 treatment facility may, before the expiration of the period
27 during which the treatment facility is authorized to retain
28 the patient, recommend involuntary outpatient placement. The
29 recommendation must be supported by the opinion of a
30 psychiatrist and the second opinion of a clinical psychologist
31 or another psychiatrist, both of whom have personally examined
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1 the patient within the preceding 72 hours, that the criteria
2 for involuntary outpatient placement are met. However, in a
3 county having a population of fewer than 50,000, if the
4 administrator certifies that no psychiatrist or clinical
5 psychologist is available to provide the second opinion, the
6 second opinion may be provided by a licensed physician who has
7 postgraduate training and experience in diagnosis and
8 treatment of mental and nervous disorders or by a nurse
9 providing psychiatric services consistent with chapter 464.
10 Such a recommendation must be entered on an involuntary
11 outpatient placement certificate.
12 (3) PETITION FOR INVOLUNTARY OUTPATIENT PLACEMENT.--
13 (a) A petition for involuntary outpatient placement
14 may be filed by:
15 1. The administrator of a receiving facility pursuant
16 to paragraph (2)(a);
17 2. One of the examining professionals for persons
18 examined on a voluntary outpatient basis pursuant to paragraph
19 (2)(b). Upon filing the petition, the examining professional
20 shall provide a copy of the petition to the administrator of
21 the receiving facility or designated department representative
22 that will identify the service provider for the involuntary
23 outpatient placement unless the person is otherwise
24 participating in outpatient psychiatric treatment and is not
25 in need of public financing for that treatment, in which case
26 the individual, if eligible, may be involuntarily committed to
27 the existing psychiatric treatment relationship; or
28 3. The administrator of a treatment facility pursuant
29 to paragraph (2)(c). Upon filing the petition, the
30 administrator shall provide a copy of the petition to the
31 administrator of the receiving facility or designated
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1 department representative that will identify the service
2 provider for the involuntary outpatient placement unless the
3 person is otherwise participating in outpatient psychiatric
4 treatment and is not in need of public financing for that
5 treatment, in which case the individual, if eligible, may be
6 involuntarily committed to the existing psychiatric treatment
7 relationship.
8 (b) Each required criterion for involuntary outpatient
9 placement must be alleged and substantiated in the petition
10 for involuntary outpatient placement. A copy of the
11 certificate recommending involuntary outpatient placement
12 completed by a qualified professional specified in subsection
13 (2) must be attached to the petition. A copy of the treatment
14 plan specified in subparagraph (6)(b)2. must be attached to
15 the petition. At the time the petition is filed, the service
16 provider shall certify that the services in the proposed
17 treatment plan are available. If the necessary services are
18 not available in the patient's local community to respond to
19 the person's individual needs, the petition may not be filed.
20 (c) The petition for involuntary outpatient placement
21 must be filed in the county where the patient is located. When
22 the petition has been filed, the clerk of the court shall
23 provide copies to the department, the patient, the patient's
24 guardian or representative, and the state attorney and public
25 defender of the judicial circuit in which the patient is
26 located. A fee may not be charged for filing a petition under
27 this subsection.
28 (4) APPOINTMENT OF COUNSEL.--Within 1 court working
29 day after the filing of a petition for involuntary outpatient
30 placement, the court shall appoint the public defender to
31 represent the person who is the subject of the petition,
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1 unless the person is otherwise represented by counsel. The
2 clerk of the court shall immediately notify the public
3 defender of the appointment. The public defender shall
4 represent the person until the petition is dismissed, the
5 court order expires, or the patient is discharged from
6 involuntary outpatient placement. An attorney who represents
7 the patient shall have access to the patient, witnesses, and
8 records relevant to the presentation of the patient's case and
9 shall represent the interests of the patient, regardless of
10 the source of payment to the attorney.
11 (5) CONTINUANCE OF HEARING.--The patient is entitled,
12 with the concurrence of the patient's counsel, to at least one
13 continuance of the hearing. The continuance shall be for a
14 period of up to 4 weeks.
15 (6) HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.--
16 (a)1. The court shall hold the hearing on involuntary
17 outpatient placement within 5 days, unless a continuance is
18 granted. The hearing shall be held in the county where the
19 patient is located, shall be as convenient to the patient as
20 is consistent with orderly procedure, and shall be conducted
21 in physical settings not likely to be injurious to the
22 patient's condition. If the court finds that the patient's
23 attendance at the hearing is not consistent with the best
24 interests of the patient and if the patient's counsel does not
25 object, the court may waive the presence of the patient from
26 all or any portion of the hearing. The state attorney for the
27 circuit in which the patient is located shall represent the
28 state, rather than the petitioner, as the real party in
29 interest in the proceeding.
30 2. The court may appoint a master to preside at the
31 hearing. One of the professionals who executed the involuntary
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1 outpatient placement certificate shall be a witness. The
2 patient and the patient's guardian or representative shall be
3 informed by the court of the right to an independent expert
4 examination. If the patient cannot afford such an examination,
5 the court shall provide for one. The independent expert's
6 report shall be confidential and not discoverable, unless the
7 expert is to be called as a witness for the patient at the
8 hearing. The court shall allow testimony from individuals,
9 including family members, deemed by the court to be relevant
10 under state law, regarding the person's prior history and how
11 that prior history relates to the person's current condition.
12 The testimony in the hearing must be given under oath, and the
13 proceedings must be recorded. The patient may refuse to
14 testify at the hearing.
15 (b)1. If the court concludes that the patient meets
16 the criteria for involuntary outpatient placement pursuant to
17 subsection (1), the court shall issue an order for involuntary
18 outpatient placement. The court order shall be for a period of
19 up to 6 months. The service provider shall discharge a patient
20 from involuntary outpatient treatment any time the patient no
21 longer meets the criteria for involuntary placement.
22 2. The administrator of a receiving facility or a
23 designated department representative shall identify the
24 service provider that will have primary responsibility for
25 service provision under the order. The service provider shall
26 prepare a written proposed treatment plan and submit it before
27 the hearing for the court's consideration for inclusion in the
28 involuntary outpatient placement order. The service provider
29 shall also provide a copy of the proposed treatment plan to
30 the petitioner. The treatment plan must specify the nature and
31 extent of the patient's mental illness. The treatment plan may
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1 include provisions for case management, intensive case
2 management, or assertive community treatment. The treatment
3 plan may also require that the patient make use of a service
4 provider to supply any or all of the following categories of
5 services to the individual: medication; periodic urinalysis to
6 determine compliance with treatment; individual or group
7 therapy; day or partial-day programming activities;
8 educational and vocational training or activities; alcohol or
9 substance abuse treatment and counseling and periodic tests
10 for the presence of alcohol or illegal drugs for persons with
11 a history of alcohol or substance abuse; supervision of living
12 arrangements; and any other services prescribed to treat the
13 person's mental illness and to assist the person in living and
14 functioning in the community or to attempt to prevent a
15 relapse or deterioration. Service providers may select and
16 provide supervision to other individuals, not enumerated in
17 this sub-subparagraph, to implement specific aspects of the
18 treatment plan, such as medication monitoring. The services in
19 the treatment plan must be deemed to be clinically appropriate
20 by a physician, clinical psychologist, nurse providing
21 psychiatric services consistent with chapter 464, or clinical
22 social worker who consults with, or is employed or contracted
23 by, the service provider. The service provider must certify to
24 the court in the proposed treatment plan whether sufficient
25 services for improvement and stabilization are currently
26 available and whether the service provider agrees to provide
27 those services. If the service provider certifies that the
28 services in the proposed treatment plan are not available, the
29 petitioner shall withdraw the petition. The court may not
30 order the department or the service provider to provide
31 services if the program or service is not available in the
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1 patient's local community, if there is no space available in
2 the program or service for the patient, or if funding is not
3 available for the program or service. A copy of the order must
4 be sent to the Agency for Health Care Administration by the
5 service provider within 1 working day after it is received
6 from the court. After the placement order is issued, the
7 service provider and the patient may modify provisions of the
8 treatment plan. For any material modification of the treatment
9 plan to which the patient or the patient's guardian advocate,
10 if appointed, does agree, the service provider shall send
11 notice of the modification to the court. Any material
12 modifications of the treatment plan which are contested by the
13 patient or the patient's guardian advocate, if appointed,
14 shall be in writing and prepared by the service provider or
15 administrator for approval by the court.
16 3. If, in the clinical judgment of a physician, the
17 patient has failed or has refused to comply with the treatment
18 ordered by the court, and, in the clinical judgment of the
19 physician, efforts were made to solicit compliance and the
20 patient may meet the criteria for involuntary examination, a
21 person may be brought to a receiving facility pursuant to s.
22 394.463. If, after examination, the patient does not meet the
23 criteria for involuntary inpatient placement pursuant to s.
24 394.467, the patient must be discharged from the receiving
25 facility. The service provider must determine whether
26 modifications should be made to the existing treatment plan
27 and must attempt to continue to engage the patient in
28 treatment. For any material modification of the treatment plan
29 to which the patient or the patient's guardian advocate, if
30 appointed, does agree, the service provider shall send notice
31 of the modification to the court. Any material modifications
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1 of the treatment plan which are contested by the patient or
2 the patient's guardian advocate, if appointed, must be
3 approved by the court.
4 (c) If, at any time before the conclusion of the
5 initial hearing on involuntary outpatient placement, it
6 appears to the court that the person does not meet the
7 criteria for involuntary outpatient placement under this
8 section but, instead, meets the criteria for involuntary
9 inpatient placement, the court may order the person admitted
10 for involuntary inpatient placement pursuant to s. 394.467. If
11 the person instead meets the criteria for involuntary
12 assessment, protective custody, or involuntary admission
13 pursuant to s. 397.675, the court may order the person to be
14 admitted for involuntary assessment for a period of 5 days
15 pursuant to s. 397.6811. Thereafter, all proceedings shall be
16 governed by chapter 397.
17 (d) At the hearing on involuntary outpatient
18 placement, the court shall consider testimony and evidence
19 regarding the patient's competence to consent to treatment. If
20 the court finds that the patient is incompetent to consent to
21 treatment, it shall appoint a guardian advocate as provided in
22 s. 394.4598. The guardian advocate shall be appointed or
23 discharged in accordance with s. 394.4598.
24 (e) The administrator of the receiving facility or the
25 designated department representative shall provide a copy of
26 the court order and adequate documentation of a patient's
27 mental illness to the service provider for involuntary
28 outpatient placement. Such documentation must include any
29 advance directives made by the patient, a psychiatric
30 evaluation of the patient, and any evaluations of the patient
31
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1 performed by a clinical psychologist or a clinical social
2 worker.
3 (7) PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT
4 PLACEMENT.--
5 (a) If the person continues to meet the criteria for
6 involuntary outpatient placement, the service provider shall,
7 before the expiration of the period during which the treatment
8 is ordered for the person, file in the circuit court a
9 continued involuntary outpatient placement certificate which
10 shall be accompanied by a statement from the person's
11 physician or clinical psychologist justifying the request, a
12 brief description of the patient's treatment during the time
13 he or she was involuntarily placed, and an individualized plan
14 of continued treatment.
15 (b) Within 1 court working day after the filing of a
16 petition for continued involuntary outpatient placement, the
17 court shall appoint the public defender to represent the
18 person who is the subject of the petition, unless the person
19 is otherwise represented by counsel. The clerk of the court
20 shall immediately notify the public defender of such
21 appointment. The public defender shall represent the person
22 until the petition is dismissed or the court order expires or
23 the patient is discharged from involuntary outpatient
24 placement. Any attorney representing the patient shall have
25 access to the patient, witnesses, and records relevant to the
26 presentation of the patient's case and shall represent the
27 interests of the patient, regardless of the source of payment
28 to the attorney.
29 (c) Hearings on petitions for continued involuntary
30 outpatient placement shall be before the circuit court. The
31 court may appoint a master to preside at the hearing. The
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1 procedures for obtaining an order pursuant to this paragraph
2 shall be in accordance with subsection (6), except that the
3 time period included in paragraph (1)(e) is not applicable in
4 determining the appropriateness of additional periods of
5 involuntary outpatient placement.
6 (d) Notice of the hearing shall be provided as set
7 forth in s. 394.4599.
8 (e) The same procedure shall be repeated before the
9 expiration of each additional period the patient is placed in
10 treatment.
11 (f) If the patient has previously been found
12 incompetent to consent to treatment, the court shall consider
13 testimony and evidence regarding the patient's competence.
14 Section 394.4598 governs the discharge of the guardian
15 advocate if the patient's competency to consent to treatment
16 has been restored.
17 Section 6. Section 394.467, Florida Statutes, is
18 amended to read:
19 394.467 Involuntary inpatient placement.--
20 (1) CRITERIA.--A person may be involuntarily placed in
21 involuntary inpatient placement for treatment upon a finding
22 of the court by clear and convincing evidence that:
23 (a) He or she is mentally ill and because of his or
24 her mental illness:
25 1.a. He or she has refused voluntary placement for
26 treatment after sufficient and conscientious explanation and
27 disclosure of the purpose of placement for treatment; or
28 b. He or she is unable to determine for himself or
29 herself whether placement is necessary; and
30 2.a. He or she is manifestly incapable of surviving
31 alone or with the help of willing and responsible family or
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1 friends, including available alternative services, and,
2 without treatment, is likely to suffer from neglect or refuse
3 to care for himself or herself, and such neglect or refusal
4 poses a real and present threat of substantial harm to his or
5 her well-being; or
6 b. There is substantial likelihood that in the near
7 future he or she will inflict serious bodily harm on himself
8 or herself or another person, as evidenced by recent behavior
9 causing, attempting, or threatening such harm; and
10 (b) All available less restrictive treatment
11 alternatives which would offer an opportunity for improvement
12 of his or her condition have been judged to be inappropriate.
13 (2) ADMISSION TO A TREATMENT FACILITY.--A patient may
14 be retained by a receiving facility or involuntarily placed in
15 a treatment facility upon the recommendation of the
16 administrator of a receiving facility where the patient has
17 been examined and after adherence to the notice and hearing
18 procedures provided in s. 394.4599. The recommendation must be
19 supported by the opinion of a psychiatrist and the second
20 opinion of a clinical psychologist or another psychiatrist,
21 both of whom have personally examined the patient within the
22 preceding 72 hours, that the criteria for involuntary
23 inpatient placement are met. However, in counties of less
24 than 50,000 population, if the administrator certifies that no
25 psychiatrist or clinical psychologist is available to provide
26 the second opinion, such second opinion may be provided by a
27 licensed physician with postgraduate training and experience
28 in diagnosis and treatment of mental and nervous disorders or
29 by a psychiatric nurse providing psychiatric services
30 consistent with chapter 464. Such recommendation shall be
31 entered on an involuntary inpatient placement certificate,
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1 which certificate shall authorize the receiving facility to
2 retain the patient pending transfer to a treatment facility or
3 completion of a hearing.
4 (3) PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.--The
5 administrator of the facility shall file a petition for
6 involuntary inpatient placement in the court in the county
7 where the patient is located. Upon filing, the clerk of the
8 court shall provide copies to the department, the patient, the
9 patient's guardian or representative, and the state attorney
10 and public defender of the judicial circuit in which the
11 patient is located. No fee shall be charged for the filing of
12 a petition under this subsection.
13 (4) APPOINTMENT OF COUNSEL.--Within 1 court working
14 day after the filing of a petition for involuntary inpatient
15 placement, the court shall appoint the public defender to
16 represent the person who is the subject of the petition,
17 unless the person is otherwise represented by counsel. The
18 clerk of the court shall immediately notify the public
19 defender of such appointment. Any attorney representing the
20 patient shall have access to the patient, witnesses, and
21 records relevant to the presentation of the patient's case and
22 shall represent the interests of the patient, regardless of
23 the source of payment to the attorney.
24 (5) CONTINUANCE OF HEARING.--The patient is entitled,
25 with the concurrence of the patient's counsel, to at least one
26 continuance of the hearing. The continuance shall be for a
27 period of up to 4 weeks.
28 (6) HEARING ON INVOLUNTARY INPATIENT PLACEMENT.--
29 (a)1. The court shall hold the hearing on involuntary
30 inpatient placement within 5 days, unless a continuance is
31 granted. The hearing shall be held in the county where the
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1 patient is located and shall be as convenient to the patient
2 as may be consistent with orderly procedure and shall be
3 conducted in physical settings not likely to be injurious to
4 the patient's condition. If the court finds that the
5 patient's attendance at the hearing is not consistent with the
6 best interests of the patient, and the patient's counsel does
7 not object, the court may waive the presence of the patient
8 from all or any portion of the hearing. The state attorney
9 for the circuit in which the patient is located shall
10 represent the state, rather than the petitioning facility
11 administrator, as the real party in interest in the
12 proceeding.
13 2. The court may appoint a master to preside at the
14 hearing. One of the professionals who executed the involuntary
15 inpatient placement certificate shall be a witness. The
16 patient and the patient's guardian or representative shall be
17 informed by the court of the right to an independent expert
18 examination. If the patient cannot afford such an
19 examination, the court shall provide for one. The independent
20 expert's report shall be confidential and not discoverable,
21 unless the expert is to be called as a witness for the patient
22 at the hearing. The testimony in the hearing must be given
23 under oath, and the proceedings must be recorded. The patient
24 may refuse to testify at the hearing.
25 (b) If the court concludes that the patient meets the
26 criteria for involuntary inpatient placement, it shall order
27 that the patient be transferred to a treatment facility or, if
28 the patient is at a treatment facility, that the patient be
29 retained there or be treated at any other appropriate
30 receiving or treatment facility, or that the patient receive
31 services from a receiving or treatment facility, on an
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1 involuntary basis, for a period of up to 6 months. The order
2 shall specify the nature and extent of the patient's mental
3 illness. The facility shall discharge a patient any time the
4 patient no longer meets the criteria for involuntary inpatient
5 placement, unless the patient has transferred to voluntary
6 status.
7 (c) If at any time prior to the conclusion of the
8 hearing on involuntary inpatient placement it appears to the
9 court that the person does not meet the criteria for
10 involuntary inpatient placement under this section, but
11 instead meets the criteria for involuntary outpatient
12 placement, the court may order the person evaluated for
13 involuntary outpatient placement pursuant to s. 394.4655. The
14 petition and hearing procedures set forth in s. 394.4655 shall
15 apply. If the person placement under this chapter, but instead
16 meets the criteria for involuntary assessment, protective
17 custody, or involuntary admission pursuant to s. 397.675, then
18 the court may order the person to be admitted for involuntary
19 assessment for a period of 5 days pursuant to s. 397.6811.
20 Thereafter, all proceedings shall be governed by chapter 397.
21 (d) At the hearing on involuntary inpatient placement,
22 the court shall consider testimony and evidence regarding the
23 patient's competence to consent to treatment. If the court
24 finds that the patient is incompetent to consent to treatment,
25 it shall appoint a guardian advocate as provided in s.
26 394.4598.
27 (e) The administrator of the receiving facility shall
28 provide a copy of the court order and adequate documentation
29 of a patient's mental illness to the administrator of a
30 treatment facility whenever a patient is ordered for
31 involuntary inpatient placement, whether by civil or criminal
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1 court. Such documentation shall include any advance
2 directives made by the patient, a psychiatric evaluation of
3 the patient, and any evaluations of the patient performed by a
4 clinical psychologist or a clinical social worker. The
5 administrator of a treatment facility may refuse admission to
6 any patient directed to its facilities on an involuntary
7 basis, whether by civil or criminal court order, who is not
8 accompanied at the same time by adequate orders and
9 documentation.
10 (7) PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT
11 PLACEMENT.--
12 (a) Hearings on petitions for continued involuntary
13 inpatient placement shall be administrative hearings and shall
14 be conducted in accordance with the provisions of s.
15 120.57(1), except that any order entered by the hearing
16 officer shall be final and subject to judicial review in
17 accordance with s. 120.68. Orders concerning patients
18 committed after successfully pleading not guilty by reason of
19 insanity shall be governed by the provisions of s. 916.15.
20 (b) If the patient continues to meet the criteria for
21 involuntary inpatient placement, the administrator shall,
22 prior to the expiration of the period during which the
23 treatment facility is authorized to retain the patient, file a
24 petition requesting authorization for continued involuntary
25 inpatient placement. The request shall be accompanied by a
26 statement from the patient's physician or clinical
27 psychologist justifying the request, a brief description of
28 the patient's treatment during the time he or she was
29 involuntarily placed, and an individualized plan of continued
30 treatment. Notice of the hearing shall be provided as set
31 forth in s. 394.4599. If at the hearing the hearing officer
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1 finds that attendance at the hearing is not consistent with
2 the best interests of the patient, the hearing officer may
3 waive the presence of the patient from all or any portion of
4 the hearing, unless the patient, through counsel, objects to
5 the waiver of presence. The testimony in the hearing must be
6 under oath, and the proceedings must be recorded.
7 (c) Unless the patient is otherwise represented or is
8 ineligible, he or she shall be represented at the hearing on
9 the petition for continued involuntary inpatient placement by
10 the public defender of the circuit in which the facility is
11 located.
12 (d) If at a hearing it is shown that the patient
13 continues to meet the criteria for involuntary inpatient
14 placement, the administrative law judge shall sign the order
15 for continued involuntary inpatient placement for a period not
16 to exceed 6 months. The same procedure shall be repeated
17 prior to the expiration of each additional period the patient
18 is retained.
19 (e) If continued involuntary inpatient placement is
20 necessary for a patient admitted while serving a criminal
21 sentence, but whose sentence is about to expire, or for a
22 patient involuntarily placed while a minor but who is about to
23 reach the age of 18, the administrator shall petition the
24 administrative law judge for an order authorizing continued
25 involuntary inpatient placement.
26 (f) If the patient has been previously found
27 incompetent to consent to treatment, the hearing officer shall
28 consider testimony and evidence regarding the patient's
29 competence. If the hearing officer finds evidence that the
30 patient is now competent to consent to treatment, the hearing
31 officer may issue a recommended order to the court that found
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1 the patient incompetent to consent to treatment that the
2 patient's competence be restored and that any guardian
3 advocate previously appointed be discharged.
4 (8) RETURN OF PATIENTS.--When a patient at a treatment
5 facility leaves the facility without authorization, the
6 administrator may authorize a search for the patient and the
7 return of the patient to the facility. The administrator may
8 request the assistance of a law enforcement agency in the
9 search for and return of the patient.
10 Section 7. The Department of Children and Family
11 Services shall have rulemaking authority to implement the
12 provisions of ss. 394.455, 394.4598, 394.4615, 394.463, and
13 394.467, as amended or created by this act. These rules shall
14 be for the purpose of protecting the health, safety, and
15 well-being of persons examined, treated, or placed under this
16 act.
17 Section 8. If any provision of this act or the
18 application thereof to any person or circumstance is held
19 invalid, the invalidity does not affect other provisions or
20 applications of this act which can be given effect without the
21 invalid provision or application, and to this end the
22 provisions of this act are declared severable.
23 Section 9. This act shall take effect January 1, 2005.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 700
3
4
* Provides a definition for the term "involuntary
5 examination".
6 * Specifies that the release of a patient's confidential
record must be consented to by the patient or the
7 patient's guardian advocate and handled in a manner
consistent with applicable state and federal laws.
8
* Requires that involuntary placement of the patient be
9 made in the least restrictive placement available
whenever treatment is deemed necessary and the patient
10 will not consent for treatment.
11 * Allows a patient to be involuntarily committed to a
physiatric treatment provider, who had been providing
12 services prior to the commitment court order, when public
funding is not needed.
13
* Specifies that a copy of the treatment plan as well as
14 the certification that services are available in the
local community be attached to the filed petition.
15 Directs that a petition may not be filed if the necessary
services are not available.
16
* Directs the service provider to send a copy of the court
17 order to the Agency for Health Care Administration within
one working day after it is received from the court.
18
* Requires that material modifications to the treatment
19 plan that are contested by the patient or the guardian
advocate be prepared by the service provider and
20 presented in writing for approval by the court.
21 * Specifies the sections of statute for which the
department has rulemaking authority. Directs that the
22 purpose for these rules is the protection of the health,
safety, and well-being of persons examined, treated, or
23 placed under the act.
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