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Senate Bill 0700

Senate Bill sb0700

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    Florida Senate - 2004                                   SB 700

    By Senator Peaden





    2-631-04

  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.

31  

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    Florida Senate - 2004                                   SB 700
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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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    Florida Senate - 2004                                   SB 700
    2-631-04




 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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    Florida Senate - 2004                                   SB 700
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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 or for

22  the preparation of a proposed treatment plan pursuant to s.

23  394.4655, the clinical record may be released to the state

24  attorney, the public defender, or the patient's private legal

25  counsel; to the court; and to the appropriate mental health

26  professionals, including the service provider specified in s.

27  394.4655(6)(b)2.

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

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

30  are amended to read:

31         394.463  Involuntary examination.--

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    Florida Senate - 2004                                   SB 700
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 1         (1)  CRITERIA.--A person may be taken to a receiving

 2  facility for involuntary examination if there is reason to

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

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

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

 6  after conscientious explanation and disclosure of the purpose

 7  of the examination; or

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

 9  herself whether examination is necessary; and

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

11  observed behavior, considering any mental health history,

12  there is a substantial likelihood that without care or

13  treatment:

14         1.  Without care or treatment, The person will is

15  likely to suffer from neglect or refuse to care for himself or

16  herself; such neglect or refusal will pose poses a real and

17  present threat of substantial harm to his or her well-being;

18  and it is not apparent that such harm may be avoided through

19  the help of willing family members or friends or the provision

20  of other services; or

21         2.  There is a substantial likelihood that without care

22  or treatment The person will cause serious bodily harm to

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

24  by recent behavior.

25         (2)  INVOLUNTARY EXAMINATION.--

26         (e)  The Agency for Health Care Administration shall

27  receive and maintain the copies of ex parte orders,

28  involuntary outpatient placement orders issued pursuant to s.

29  394.4655, involuntary inpatient orders issued pursuant to s.

30  394.467, professional certificates, and law enforcement

31  officers' reports.  These documents shall be considered part

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    Florida Senate - 2004                                   SB 700
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 1  of the clinical record, governed by the provisions of s.

 2  394.4615.  The agency shall prepare annual reports analyzing

 3  the data obtained from these documents, without information

 4  identifying patients, and shall provide copies of reports to

 5  the department, the President of the Senate, the Speaker of

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

 7  Senate and the House of Representatives.

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

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

10  for an emergency medical condition specified in s. 395.002

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

12  72-hour period begins when the patient arrives at the hospital

13  and ceases when the attending physician documents that the

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

15  examined at a hospital providing emergency medical services by

16  a professional qualified to perform an involuntary examination

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

18  criteria for involuntary outpatient placement pursuant to s.

19  394.4655(1) or involuntary inpatient placement pursuant to s.

20  394.467(1), the patient may be offered voluntary placement, if

21  appropriate, or released directly from the hospital providing

22  emergency medical services.  The finding by the professional

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

24  criteria for involuntary inpatient placement or involuntary

25  outpatient placement must be entered into the patient's

26  clinical record. Nothing in this paragraph is intended to

27  prevent a hospital providing emergency medical services from

28  appropriately transferring a patient to another hospital prior

29  to stabilization, provided the requirements of s.

30  395.1041(3)(c) have been met.

31  

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    Florida Senate - 2004                                   SB 700
    2-631-04




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

 2  72 hours ends on a weekend or holiday, no later than the next

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

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

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

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

 7  returned to the custody of a law enforcement officer;

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

 9  provisions of subparagraph 1., for voluntary outpatient

10  treatment;

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

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

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

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

15  or

16         4.  A petition for involuntary placement shall be filed

17  in the circuit appropriate court by the facility administrator

18  when treatment is deemed necessary,; in which case, the least

19  restrictive treatment consistent with the optimum improvement

20  of the patient's condition shall be made available. A petition

21  for involuntary outpatient placement shall be filed by one of

22  the petitioners specified in s. 394.4655(3)(a). A petition for

23  involuntary inpatient placement shall be filed by the facility

24  administrator.

25         Section 5.  Section 394.4655, Florida Statutes, is

26  created to read:

27         394.4655  Involuntary outpatient placement.--

28         (1)  CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--A

29  person may be ordered to involuntary outpatient placement upon

30  a finding of the court that by clear and convincing evidence:

31         (a)  The person is 18 years of age or older;

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    Florida Senate - 2004                                   SB 700
    2-631-04




 1         (b)  The person has a mental illness;

 2         (c)  The person is unlikely to survive safely in the

 3  community without supervision, based on a clinical

 4  determination;

 5         (d)  The person has a history of lack of compliance

 6  with treatment for mental illness;

 7         (e)  The person has:

 8         1.  At least twice within the immediately preceding 36

 9  months been admitted for examination or placement in a

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

11  has received mental health services in a forensic or

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

13  any period during which the person was admitted or

14  incarcerated; or

15         2.  Engaged in one or more acts of serious violent

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

17  harm to himself or herself or others, within the preceding 36

18  months;

19         (f)  The person is, as a result of his or her mental

20  illness, unlikely to voluntarily participate in the

21  recommended treatment pursuant to the treatment plan;

22         (g)  In view of the person's treatment history and

23  current behavior, the person is in need of involuntary

24  outpatient placement in order to prevent a relapse or

25  deterioration that would be likely to result in serious bodily

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

27  his or her well-being as set forth in s. 394.463(1);

28         (h)  It is likely that the person will benefit from

29  involuntary outpatient placement; and

30  

31  

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    Florida Senate - 2004                                   SB 700
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 1         (i)  All available less restrictive alternatives that

 2  would offer an opportunity for improvement of his or her

 3  condition have been judged to be inappropriate.

 4         (2)  INVOLUNTARY OUTPATIENT PLACEMENT.--

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

 6  retained by a receiving facility upon the recommendation of

 7  the administrator of a receiving facility where the patient

 8  has been examined and after adherence to the notice and

 9  hearing procedures provided in s. 394.4599. The recommendation

10  must be supported by the opinion of a psychiatrist and the

11  second opinion of a clinical psychologist or another

12  psychiatrist, both of whom have personally examined the

13  patient within the preceding 72 hours, that the criteria for

14  involuntary outpatient placement are met. However, in a county

15  having a population of fewer than 50,000, if the administrator

16  certifies that no psychiatrist or clinical psychologist is

17  available to provide the second opinion, the second opinion

18  may be provided by a licensed physician who has postgraduate

19  training and experience in diagnosis and treatment of mental

20  and nervous disorders or by a psychiatric nurse. Such a

21  recommendation must be entered on an involuntary outpatient

22  placement certificate, which certificate must authorize the

23  receiving facility to retain the patient pending transfer to

24  involuntary outpatient placement or completion of a hearing.

25  If the patient has been stabilized and no longer meets the

26  criteria for involuntary examination pursuant to s.

27  394.463(1), the patient must be released from the receiving

28  facility while awaiting the hearing for involuntary outpatient

29  placement.

30         (b)  Voluntary examination for outpatient

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

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    Florida Senate - 2004                                   SB 700
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 1  choose to be examined on an outpatient basis for an

 2  involuntary outpatient placement certificate. The certificate

 3  must be supported by the opinion of a psychiatrist and the

 4  second opinion of a clinical psychologist or another

 5  psychiatrist, both of whom have personally examined the

 6  patient within the preceding 14 calendar days, that the

 7  criteria for involuntary outpatient placement are met.

 8  However, in a county having a population of fewer than 50,000,

 9  if the psychiatrist 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.

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

16  involuntary inpatient placement meets the criteria for

17  involuntary outpatient placement, the administrator of the

18  treatment facility may, before the expiration of the period

19  during which the treatment facility is authorized to retain

20  the patient, recommend involuntary outpatient placement. The

21  recommendation must be supported by the opinion of a

22  psychiatrist and the second opinion of a clinical psychologist

23  or another psychiatrist, both of whom have personally examined

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

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

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

27  administrator certifies that no psychiatrist or clinical

28  psychologist is available to provide the second opinion, the

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

30  postgraduate training and experience in diagnosis and

31  treatment of mental and nervous disorders or by a psychiatric

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    Florida Senate - 2004                                   SB 700
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 1  nurse. Such a recommendation must be entered on an involuntary

 2  outpatient placement certificate.

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

 4         (a)  A petition for involuntary outpatient placement

 5  may be filed by:

 6         1.  The administrator of the facility pursuant to

 7  paragraph (2)(a);

 8         2.  One of the examining professionals for persons

 9  examined on a voluntary outpatient basis pursuant to paragraph

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

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

12  the receiving facility or designated department representative

13  that will identify the service provider for the involuntary

14  outpatient placement; or

15         3.  The administrator of a treatment facility pursuant

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

17  administrator shall provide a copy of the petition to the

18  administrator of the receiving facility or designated

19  department representative that will identify the service

20  provider for the involuntary outpatient placement.

21         (b)  Each required criterion for involuntary outpatient

22  placement must be alleged and substantiated in the petition

23  for involuntary outpatient placement. A copy of the

24  certificate recommending involuntary outpatient placement

25  completed by a qualified professional specified in subsection

26  (2) must be attached to the petition.

27         (c)  The petition for involuntary outpatient placement

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

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

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

31  guardian or representative, and the state attorney and public

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    Florida Senate - 2004                                   SB 700
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 1  defender of the judicial circuit in which the patient is

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

 3  this subsection.

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

 5  day after the filing of a petition for involuntary outpatient

 6  placement, the court shall appoint the public defender to

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

 8  unless the person is otherwise represented by counsel. The

 9  clerk of the court shall immediately notify the public

10  defender of the appointment. The public defender shall

11  represent the person until the petition is dismissed, the

12  court order expires, or the patient is discharged from

13  involuntary outpatient placement. An attorney who represents

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

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

16  shall represent the interests of the patient, regardless of

17  the source of payment to the attorney.

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

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

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

21  period of up to 4 weeks.

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

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

24  outpatient placement within 5 days, unless a continuance is

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

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

27  is consistent with orderly procedure, and shall be conducted

28  in physical settings not likely to be injurious to the

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

30  attendance at the hearing is not consistent with the best

31  interests of the patient and if the patient's counsel does not

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 1  object, the court may waive the presence of the patient from

 2  all or any portion of the hearing. The state attorney for the

 3  circuit in which the patient is located shall represent the

 4  state, rather than the petitioner, as the real party in

 5  interest in the proceeding.

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

 7  hearing. One of the professionals who executed the involuntary

 8  outpatient placement certificate shall be a witness. The

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

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

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

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

13  report shall be confidential and not discoverable, unless the

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

15  hearing. The court shall allow testimony from individuals,

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

17  under state law, regarding the person's prior history and how

18  that prior history relates to the person's current condition.

19  The testimony in the hearing must be given under oath, and the

20  proceedings must be recorded. The patient may refuse to

21  testify at the hearing.

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

23  the criteria for involuntary outpatient placement pursuant to

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

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

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

27  any time the patient no longer meets the criteria for

28  involuntary placement.

29         2.  The administrator of a receiving facility or a

30  designated department representative shall identify the

31  service provider that will have primary responsibility for

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 1  service provision under the order. The service provider shall

 2  prepare a written proposed treatment plan and submit it before

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

 4  involuntary outpatient placement order. The service provider

 5  shall also provide a copy of the proposed treatment plan to

 6  the petitioner. The treatment plan must specify the nature and

 7  extent of the patient's mental illness. The treatment plan may

 8  include provisions for case management, intensive case

 9  management, or assertive community treatment or a program for

10  assertive community treatment. The treatment plan may also

11  require that the patient make use of a service provider to

12  supply any or all of the following categories of services to

13  the individual: medication; periodic urinalysis to determine

14  compliance with treatment; individual or group therapy; day or

15  partial-day programming activities; educational and vocational

16  training or activities; alcohol or substance abuse treatment

17  and counseling and periodic tests for the presence of alcohol

18  or illegal drugs for persons with a history of alcohol or

19  substance abuse; supervision of living arrangements; and any

20  other services prescribed to treat the person's mental illness

21  and to assist the person in living and functioning in the

22  community or to attempt to prevent a relapse or deterioration.

23  Service providers may select and provide supervision to other

24  individuals, not enumerated in this sub-subparagraph, to

25  implement specific aspects of the treatment plan, such as

26  medication monitoring. The services in the treatment plan must

27  be deemed to be clinically appropriate by a physician,

28  clinical psychologist, psychiatric nurse, or clinical social

29  worker who consults with, or is employed or contracted by, the

30  service provider. The service provider must certify to the

31  court in the proposed treatment plan whether sufficient

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 1  services for improvement and stabilization are currently

 2  available and whether the service provider agrees to provide

 3  those services. If the service provider certifies that the

 4  services in the proposed treatment plan are not available, the

 5  petitioner shall withdraw the petition. The court may not

 6  order the department or the service provider to provide

 7  services if the program or service is not available in the

 8  patient's local community, if there is no space available in

 9  the program or service for the patient, or if funding is not

10  available for the program or service. A copy of the order must

11  be sent to the Agency for Health Care Administration. After

12  the placement order is issued, the service provider and the

13  patient may modify provisions of the treatment plan. For any

14  material modification of the treatment plan to which the

15  patient or the patient's guardian advocate, if appointed, does

16  agree, the service provider shall send notice of the

17  modification to the court. Any material modifications of the

18  treatment plan which are contested by the patient or the

19  patient's guardian advocate, if appointed, must be approved by

20  the court.

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

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

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

24  physician, efforts were made to solicit compliance and the

25  patient may meet the criteria for involuntary examination, a

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

27  394.463. If, after examination, the patient does not meet the

28  criteria for involuntary inpatient placement pursuant to s.

29  394.467, the patient must be discharged from the receiving

30  facility. The service provider must determine whether

31  modifications should be made to the existing treatment plan

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 1  and must attempt to continue to engage the patient in

 2  treatment. For any material modification of the treatment plan

 3  to which the patient or the patient's guardian advocate, if

 4  appointed, does agree, the service provider shall send notice

 5  of the modification to the court. Any material modifications

 6  of the treatment plan which are contested by the patient or

 7  the patient's guardian advocate, if appointed, must be

 8  approved by the court.

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

10  initial hearing on involuntary outpatient placement, it

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

12  criteria for involuntary outpatient placement under this

13  section but, instead, meets the criteria for involuntary

14  inpatient placement, the court may order the person admitted

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

16  the person instead meets the criteria for involuntary

17  assessment, protective custody, or involuntary admission

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

19  admitted for involuntary assessment for a period of 5 days

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

21  governed by chapter 397.

22         (d)  At the hearing on involuntary outpatient

23  placement, the court shall consider testimony and evidence

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

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

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

27  s. 394.4598. The guardian advocate shall be appointed or

28  discharged in accordance with s. 394.4598.

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

30  designated department representative shall provide a copy of

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

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 1  mental illness to the service provider for involuntary

 2  outpatient placement. Such documentation must include any

 3  advance directives made by the patient, a psychiatric

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

 5  performed by a clinical psychologist or a clinical social

 6  worker.

 7         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT

 8  PLACEMENT.--

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

10  involuntary outpatient placement, the service provider shall,

11  before the expiration of the period during which the treatment

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

13  continued involuntary outpatient placement certificate which

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

15  physician or clinical psychologist justifying the request, a

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

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

18  of continued treatment.

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

20  petition for continued involuntary outpatient placement, the

21  court shall appoint the public defender to represent the

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

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

24  shall immediately notify the public defender of such

25  appointment. The public defender shall represent the person

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

27  the patient is discharged from involuntary outpatient

28  placement. Any attorney representing the patient shall have

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

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

31  

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    Florida Senate - 2004                                   SB 700
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 1  interests of the patient, regardless of the source of payment

 2  to the attorney.

 3         (c)  Hearings on petitions for continued involuntary

 4  outpatient placement shall be before the circuit court. The

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

 6  procedures for obtaining an order pursuant to this paragraph

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

 8  time period included in paragraph (1)(e) is not applicable in

 9  determining the appropriateness of additional periods of

10  involuntary outpatient placement.

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

12  forth in s. 394.4599.

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

14  expiration of each additional period the patient is placed in

15  treatment.

16         (f)  If the patient has previously been found

17  incompetent to consent to treatment, the court shall consider

18  testimony and evidence regarding the patient's competence.

19  Section 394.4598 governs the discharge of the guardian

20  advocate if the patient's competency to consent to treatment

21  has been restored.

22         Section 6.  Section 394.467, Florida Statutes, is

23  amended to read:

24         394.467  Involuntary inpatient placement.--

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

26  involuntary inpatient placement for treatment upon a finding

27  of the court by clear and convincing evidence that:

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

29  her mental illness:

30  

31  

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    Florida Senate - 2004                                   SB 700
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 1         1.a.  He or she has refused voluntary placement for

 2  treatment after sufficient and conscientious explanation and

 3  disclosure of the purpose of placement for treatment; or

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

 5  herself whether placement is necessary; and

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

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

 8  friends, including available alternative services, and,

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

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

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

12  her well-being; or

13         b.  There is substantial likelihood that in the near

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

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

16  causing, attempting, or threatening such harm; and

17         (b)  All available less restrictive treatment

18  alternatives which would offer an opportunity for improvement

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

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

21  be retained by a receiving facility or involuntarily placed in

22  a treatment facility upon the recommendation of the

23  administrator of a receiving facility where the patient has

24  been examined and after adherence to the notice and hearing

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

26  supported by the opinion of a psychiatrist and the second

27  opinion of a clinical psychologist or another psychiatrist,

28  both of whom have personally examined the patient within the

29  preceding 72 hours, that the criteria for involuntary

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

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

                                  19

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    Florida Senate - 2004                                   SB 700
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 1  psychiatrist or clinical psychologist is available to provide

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

 3  licensed physician with postgraduate training and experience

 4  in diagnosis and treatment of mental and nervous disorders or

 5  by a psychiatric nurse.  Such recommendation shall be entered

 6  on an involuntary inpatient placement certificate, which

 7  certificate shall authorize the receiving facility to retain

 8  the patient pending transfer to a treatment facility or

 9  completion of a hearing.

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

11  administrator of the facility shall file a petition for

12  involuntary inpatient placement in the court in the county

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

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

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

16  and public defender of the judicial circuit in which the

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

18  a petition under this subsection.

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

20  day after the filing of a petition for involuntary inpatient

21  placement, the court shall appoint the public defender to

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

23  unless the person is otherwise represented by counsel.  The

24  clerk of the court shall immediately notify the public

25  defender of such appointment. Any attorney representing the

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

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

28  shall represent the interests of the patient, regardless of

29  the source of payment to the attorney.

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

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

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

 2  period of up to 4 weeks.

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

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

 5  inpatient placement within 5 days, unless a continuance is

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

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

 8  as may be consistent with orderly procedure and shall be

 9  conducted in physical settings not likely to be injurious to

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

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

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

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

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

15  for the circuit in which the patient is located shall

16  represent the state, rather than the petitioning facility

17  administrator, as the real party in interest in the

18  proceeding.

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

20  hearing. One of the professionals who executed the involuntary

21  inpatient placement certificate shall be a witness.  The

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

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

24  examination.  If the patient cannot afford such an

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

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

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

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

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

30  may refuse to testify at the hearing.

31  

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

 2  criteria for involuntary inpatient placement, it shall order

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

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

 5  retained there or be treated at any other appropriate

 6  receiving or treatment facility, or that the patient receive

 7  services from a receiving or treatment facility, on an

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

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

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

11  patient no longer meets the criteria for involuntary inpatient

12  placement, unless the patient has transferred to voluntary

13  status.

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

15  hearing on involuntary inpatient placement it appears to the

16  court that the person does not meet the criteria for

17  involuntary inpatient placement under this section, but

18  instead meets the criteria for involuntary outpatient

19  placement, the court may order the person evaluated for

20  involuntary outpatient placement pursuant to s. 394.4655. The

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

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

23  meets the criteria for involuntary assessment, protective

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

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

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

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

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

29  the court shall consider testimony and evidence regarding the

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

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

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    Florida Senate - 2004                                   SB 700
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 1  it shall appoint a guardian advocate as provided in s.

 2  394.4598.

 3         (e)  The administrator of the receiving facility shall

 4  provide a copy of the court order and adequate documentation

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

 6  treatment facility whenever a patient is ordered for

 7  involuntary inpatient placement, whether by civil or criminal

 8  court.  Such documentation shall include any advance

 9  directives made by the patient, a psychiatric evaluation of

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

11  clinical psychologist or a clinical social worker. The

12  administrator of a treatment facility may refuse admission to

13  any patient directed to its facilities on an involuntary

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

15  accompanied at the same time by adequate orders and

16  documentation.

17         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT

18  PLACEMENT.--

19         (a)  Hearings on petitions for continued involuntary

20  inpatient placement shall be administrative hearings and shall

21  be conducted in accordance with the provisions of s.

22  120.57(1), except that any order entered by the hearing

23  officer shall be final and subject to judicial review in

24  accordance with s. 120.68.  Orders concerning patients

25  committed after successfully pleading not guilty by reason of

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

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

28  involuntary inpatient placement, the administrator shall,

29  prior to the expiration of the period during which the

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

31  petition requesting authorization for continued involuntary

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    Florida Senate - 2004                                   SB 700
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 1  inpatient placement.  The request shall be accompanied by a

 2  statement from the patient's physician or clinical

 3  psychologist justifying the request, a brief description of

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

 5  involuntarily placed, and an individualized plan of continued

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

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

 8  finds that attendance at the hearing is not consistent with

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

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

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

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

13  under oath, and the proceedings must be recorded.

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

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

16  the petition for continued involuntary inpatient placement by

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

18  located.

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

20  continues to meet the criteria for involuntary inpatient

21  placement, the administrative law judge shall sign the order

22  for continued involuntary inpatient placement for a period not

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

24  prior to the expiration of each additional period the patient

25  is retained.

26         (e)  If continued involuntary inpatient placement is

27  necessary for a patient admitted while serving a criminal

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

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

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

31  

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    Florida Senate - 2004                                   SB 700
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 1  administrative law judge for an order authorizing continued

 2  involuntary inpatient placement.

 3         (f)  If the patient has been previously found

 4  incompetent to consent to treatment, the hearing officer shall

 5  consider testimony and evidence regarding the patient's

 6  competence.  If the hearing officer finds evidence that the

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

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

 9  the patient incompetent to consent to treatment that the

10  patient's competence be restored and that any guardian

11  advocate previously appointed be discharged.

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

13  facility leaves the facility without authorization, the

14  administrator may authorize a search for the patient and the

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

16  request the assistance of a law enforcement agency in the

17  search for and return of the patient.

18         Section 7.  The Department of Children and Family

19  Services shall have rulemaking authority to implement sections

20  1-6 of this act.

21         Section 8.  If any provision of this act or the

22  application thereof to any person or circumstance is held

23  invalid, the invalidity does not affect other provisions or

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

25  invalid provision or application, and to this end the

26  provisions of this act are declared severable.

27         Section 9.  This act shall take effect October 1, 2004.

28  

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    Florida Senate - 2004                                   SB 700
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises the Baker Act, which provides for the involuntary
      treatment of a person who has a mental illness.
 4    Authorizes the release of confidential information
      contained in a person's clinical records for purposes of
 5    proceedings relating to involuntary outpatient placement.
      Revises the criteria for involuntary examination. Revises
 6    provisions governing involuntary outpatient placement,
      including the criteria and process for the petition and
 7    hearing. Revises the process for continued involuntary
      outpatient placement. (See bill for details.)
 8  

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