Florida Senate - 2015 COMMITTEE AMENDMENT
Bill No. CS for SB 7070
Ì861910|Î861910
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
04/16/2015 .
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The Committee on Appropriations (Garcia) recommended the
following:
1 Senate Amendment
2
3 Delete lines 2579 - 2891
4 and insert:
5 participate in all hearings on involuntary placement.
6 (5) CONTINUANCE OF HEARING.—The individual patient is
7 entitled, with the concurrence of the individual’s patient’s
8 counsel, to at least one continuance of the hearing. The
9 continuance shall be for a period of up to 4 weeks.
10 (6) HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.—
11 (a)1. The court shall hold the hearing on involuntary
12 outpatient placement within 5 court working days after the
13 filing of the petition, unless a continuance is granted. The
14 hearing shall be held in the county where the petition is filed,
15 shall be as convenient to the individual who is the subject of
16 the petition patient as is consistent with orderly procedure,
17 and shall be conducted in physical settings not likely to be
18 injurious to the individual’s patient’s condition. If the court
19 finds that the individual’s patient’s attendance at the hearing
20 is not consistent with the best interests of the individual
21 patient and if the individual’s patient’s counsel does not
22 object, the court may waive the presence of the individual
23 patient from all or any portion of the hearing. The state
24 attorney for the circuit in which the individual patient is
25 located shall represent the state, rather than the petitioner,
26 as the real party in interest in the proceeding. The state
27 attorney shall have access to the individual’s clinical record
28 and witnesses and shall independently evaluate the allegations
29 set forth in the petition for involuntary placement. If the
30 allegations are substantiated, the state attorney shall
31 prosecute the petition. If the allegations are not
32 substantiated, the state attorney shall withdraw the petition.
33 (b)2. The court may appoint a magistrate master to preside
34 at the hearing. One of the professionals who executed the
35 involuntary outpatient placement certificate shall be a witness.
36 The individual who is the subject of the petition patient and
37 his or her the patient’s guardian, guardian advocate, health
38 care surrogate or proxy, or representative shall be informed by
39 the court of the right to an independent expert examination. If
40 the individual patient cannot afford such an examination, the
41 court shall provide for one. The independent expert’s report is
42 shall be confidential and not discoverable, unless the expert is
43 to be called as a witness for the individual patient at the
44 hearing. The court shall allow testimony from persons
45 individuals, including family members, deemed by the court to be
46 relevant under state law, regarding the individual’s person’s
47 prior history and how that prior history relates to the
48 individual’s person’s current condition. The testimony in the
49 hearing must be given under oath, and the proceedings must be
50 recorded. The individual patient may refuse to testify at the
51 hearing.
52 (c) The court shall consider testimony and evidence
53 regarding the competence of the individual being held to consent
54 to treatment. If the court finds that the individual is
55 incompetent to consent, it shall appoint a guardian advocate as
56 provided in s. 394.4598.
57 (7) COURT ORDER.—
58 (a)(b)1. If the court concludes that the individual who is
59 the subject of the petition patient meets the criteria for
60 involuntary outpatient placement under pursuant to subsection
61 (1), the court shall issue an order for involuntary outpatient
62 placement. The court order may shall be for a period of up to 6
63 months. The order must specify the nature and extent of the
64 individual’s patient’s mental illness or substance abuse
65 impairment. The court order of the court and the treatment plan
66 must shall be made part of the individual’s patient’s clinical
67 record. The service provider shall discharge an individual a
68 patient from involuntary outpatient placement when the order
69 expires or any time the individual patient no longer meets the
70 criteria for involuntary placement. Upon discharge, the service
71 provider shall send a certificate of discharge to the court.
72 (b)2. The court may not order the department or the service
73 provider to provide services if the program or service is not
74 available in the patient’s local community of the individual
75 being served, if there is no space available in the program or
76 service for the individual patient, or if funding is not
77 available for the program or service. A copy of the order must
78 be sent to the Agency for Health Care Administration by the
79 service provider within 1 working day after it is received from
80 the court. After the placement order is issued, the service
81 provider and the individual patient may modify provisions of the
82 treatment plan. For any material modification of the treatment
83 plan to which the individual patient or the individual’s
84 patient’s guardian advocate, if appointed, does agree, the
85 service provider shall send notice of the modification to the
86 court. Any material modifications of the treatment plan which
87 are contested by the individual patient or the individual’s
88 patient’s guardian advocate, if appointed, must be approved or
89 disapproved by the court consistent with the requirements of
90 subsection (2).
91 (c)3. If, in the clinical judgment of a physician, the
92 individual being served patient has failed or has refused to
93 comply with the treatment ordered by the court, and, in the
94 clinical judgment of the physician, efforts were made to solicit
95 compliance and the individual patient may meet the criteria for
96 involuntary examination, the individual a person may be brought
97 to a receiving facility pursuant to s. 394.463 for involuntary
98 examination. If, after examination, the individual patient does
99 not meet the criteria for involuntary inpatient placement
100 pursuant to s. 394.467, the individual patient must be
101 discharged from the receiving facility. The involuntary
102 outpatient placement order remains shall remain in effect unless
103 the service provider determines that the individual patient no
104 longer meets the criteria for involuntary outpatient placement
105 or until the order expires. The service provider must determine
106 whether modifications should be made to the existing treatment
107 plan and must attempt to continue to engage the individual
108 patient in treatment. For any material modification of the
109 treatment plan to which the individual patient or the
110 individual’s patient’s guardian advocate, if appointed, agrees
111 does agree, the service provider shall send notice of the
112 modification to the court. Any material modifications of the
113 treatment plan which are contested by the individual patient or
114 the individual’s patient’s guardian advocate, if appointed, must
115 be approved or disapproved by the court consistent with the
116 requirements of subsection (2).
117 (d)(c) If, at any time before the conclusion of the initial
118 hearing on involuntary outpatient placement, it appears to the
119 court that the individual person does not meet the criteria for
120 involuntary outpatient placement under this section but,
121 instead, meets the criteria for involuntary inpatient placement,
122 the court may order the individual person admitted for
123 involuntary inpatient examination under s. 394.463. If the
124 person instead meets the criteria for involuntary assessment,
125 protective custody, or involuntary admission pursuant to s.
126 397.675, the court may order the person to be admitted for
127 involuntary assessment for a period of 5 days pursuant to s.
128 397.6811. Thereafter, all proceedings shall be governed by
129 chapter 397.
130 (d) At the hearing on involuntary outpatient placement, the
131 court shall consider testimony and evidence regarding the
132 patient’s competence to consent to treatment. If the court finds
133 that the patient is incompetent to consent to treatment, it
134 shall appoint a guardian advocate as provided in s. 394.4598.
135 The guardian advocate shall be appointed or discharged in
136 accordance with s. 394.4598.
137 (e) The administrator of the receiving facility, the
138 detoxification facility, or the designated department
139 representative shall provide a copy of the court order and
140 adequate documentation of an individual’s a patient’s mental
141 illness or substance abuse impairment to the service provider
142 for involuntary outpatient placement. Such documentation must
143 include any advance directives made by the individual patient, a
144 psychiatric evaluation of the individual patient, and any
145 evaluations of the individual patient performed by a clinical
146 psychologist or a clinical social worker.
147 (8)(7) PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT
148 PLACEMENT.—
149 (a)1. If the individual person continues to meet the
150 criteria for involuntary outpatient placement, the service
151 provider shall, before the expiration of the period during which
152 the placement treatment is ordered for the person, file in the
153 circuit court a petition for continued involuntary outpatient
154 placement.
155 1.2. The existing involuntary outpatient placement order
156 remains in effect until disposition of on the petition for
157 continued involuntary outpatient placement.
158 2.3. A certificate must shall be attached to the petition
159 which includes a statement from the individual’s person’s
160 physician or clinical psychologist justifying the request, a
161 brief description of the individual’s patient’s treatment during
162 the time he or she was involuntarily placed, and a personalized
163 an individualized plan of continued treatment.
164 3.4. The service provider shall develop the individualized
165 plan of continued treatment in consultation with the individual
166 patient or his or her the patient’s guardian advocate, if
167 appointed. When the petition has been filed, the clerk of the
168 court shall provide copies of the certificate and the
169 individualized plan of continued treatment to the department,
170 the individual patient, the individual’s patient’s guardian
171 advocate, the state attorney, and the individual’s patient’s
172 private counsel or the public defender.
173 (b) Within 1 court working day after the filing of a
174 petition for continued involuntary outpatient placement, the
175 court shall appoint the public defender to represent the
176 individual person who is the subject of the petition, unless the
177 individual person is otherwise represented by counsel. The clerk
178 of the court shall immediately notify the public defender of
179 such appointment. The public defender shall represent the
180 individual person until the petition is dismissed, or the court
181 order expires, or the individual patient is discharged from
182 involuntary outpatient placement. Any attorney representing the
183 individual patient shall have access to the individual patient,
184 witnesses, and records relevant to the presentation of the
185 individual’s patient’s case and shall represent the interests of
186 the individual patient, regardless of the source of payment to
187 the attorney.
188 (c) The court shall inform the individual who is the
189 subject of the petition and his or her guardian, guardian
190 advocate, health care surrogate or proxy, or representative of
191 the individual’s right to an independent expert examination. If
192 the individual cannot afford such an examination, the court
193 shall provide one.
194 (d)(c) Hearings on petitions for continued involuntary
195 outpatient placement are shall be before the circuit court. The
196 court may appoint a magistrate master to preside at the hearing.
197 The procedures for obtaining an order pursuant to this paragraph
198 must shall be in accordance with subsection (6), except that the
199 time period included in paragraph (1)(e) is not applicable in
200 determining the appropriateness of additional periods of
201 involuntary outpatient placement.
202 (e)(d) Notice of the hearing shall be provided in
203 accordance with as set forth in s. 394.4599. The individual
204 being served patient and the individual’s patient’s attorney may
205 agree to a period of continued outpatient placement without a
206 court hearing.
207 (f)(e) The same procedure shall be repeated before the
208 expiration of each additional period the individual being served
209 patient is placed in treatment.
210 (g)(f) If the individual in involuntary outpatient
211 placement patient has previously been found incompetent to
212 consent to treatment, the court shall consider testimony and
213 evidence regarding the individual’s patient’s competence.
214 Section 394.4598 governs the discharge of the guardian advocate
215 if the individual’s patient’s competency to consent to treatment
216 has been restored.
217 Section 15. Effective on July 1, 2016, section 394.467,
218 Florida Statutes, is amended to read:
219 394.467 Involuntary inpatient placement.—
220 (1) CRITERIA.—An individual A person may be placed in
221 involuntary inpatient placement for treatment upon a finding of
222 the court by clear and convincing evidence that:
223 (a) He or she has a mental illness or substance abuse
224 impairment is mentally ill and because of his or her mental
225 illness or substance abuse impairment:
226 1.a. He or she has refused voluntary placement for
227 treatment after sufficient and conscientious explanation and
228 disclosure of the purpose of placement for treatment; or
229 b. He or she is unable to determine for himself or herself
230 whether placement is necessary; and
231 2.a. He or she is manifestly incapable of surviving alone
232 or with the help of willing and responsible family or friends,
233 including available alternative services, and, without
234 treatment, is likely to suffer from neglect or refuse to care
235 for himself or herself, and such neglect or refusal poses a real
236 and present threat of substantial harm to his or her well-being;
237 or
238 b. There is substantial likelihood that in the near future
239 he or she will inflict serious bodily harm on self or others
240 himself or herself or another person, as evidenced by recent
241 behavior causing, attempting, or threatening such harm; and
242 (b) All available less restrictive treatment alternatives
243 that which would offer an opportunity for improvement of his or
244 her condition have been judged to be inappropriate.
245 (2) ADMISSION TO A TREATMENT FACILITY.—An individual A
246 patient may be retained by a mental health receiving facility,
247 an addictions receiving facility, or a detoxification facility,
248 or involuntarily placed in a treatment facility upon the
249 recommendation of the administrator of the receiving facility
250 where the individual patient has been examined and after
251 adherence to the notice and hearing procedures provided in s.
252 394.4599. The recommendation must be supported by the opinion of
253 a psychiatrist and the second opinion of a clinical psychologist
254 or another psychiatrist, both of whom have personally examined
255 the individual patient within the preceding 72 hours, that the
256 criteria for involuntary inpatient placement are met. However,
257 in a county that has a population of fewer than 50,000, if the
258 administrator certifies that a psychiatrist or clinical
259 psychologist is not available to provide the second opinion, the
260 second opinion may be provided by a licensed physician who has
261 postgraduate training and experience in diagnosis and treatment
262 of mental and nervous disorders or by a psychiatric nurse. If
263 the petition seeks placement for treatment of substance abuse
264 impairment only and the individual is examined by an addictions
265 receiving facility or detoxification facility, the first opinion
266 may be provided by a physician, and the second opinion may be
267 provided by a qualified professional with respect to substance
268 abuse treatment. Any second opinion authorized in this
269 subsection may be conducted through a face-to-face examination,
270 in person or by electronic means. Such recommendation must shall
271 be entered on an involuntary inpatient placement certificate
272 that authorizes the receiving facility to retain the individual
273 being held patient pending transfer to a treatment facility or
274 completion of a hearing.
275 (3) PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.—The
276 administrator of the mental health facility, addictions
277 receiving facility, or detoxification facility shall file a
278 petition for involuntary inpatient placement in the court in the
279 county where the individual patient is located. Upon filing, the
280 clerk of the court shall provide copies to the department, the
281 individual patient, the individual’s patient’s guardian,
282 guardian advocate, health care surrogate or proxy, or
283 representative, and the state attorney and public defender of
284 the judicial circuit in which the individual patient is located.
285 A No fee may not shall be charged for the filing of a petition
286 under this subsection.
287 (4) APPOINTMENT OF COUNSEL.—Within 1 court working day
288 after the filing of a petition for involuntary inpatient
289 placement, the court shall appoint the public defender to
290 represent the individual person who is the subject of the
291 petition, unless the individual person is otherwise represented
292 by counsel. The clerk of the court shall immediately notify the
293 public defender of such appointment. Any attorney representing
294 the individual patient shall have access to the individual
295 patient, witnesses, and records relevant to the presentation of
296 the individual’s patient’s case and shall represent the
297 interests of the individual patient, regardless of the source of
298 payment to the attorney.
299 (a) An attorney representing an individual in proceedings
300 under this part shall advocate the individual’s expressed
301 desires and must be present and actively participate in all
302 hearings on involuntary placement.
303 (b) The state attorney for the judicial circuit in which
304 the individual is located shall represent the state rather than
305 the petitioning facility administrator as the real party in
306 interest in the proceeding. The state attorney shall have access
307 to the individual’s clinical record and witnesses and shall
308 independently evaluate the allegations set forth in