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Senate Bill 0700

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.

31  

                                  1

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    Florida Senate - 2004                            CS for 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 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.--

31  

                                  2

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    Florida Senate - 2004                            CS for SB 700
    300-1988-04




 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

                                  3

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    Florida Senate - 2004                            CS for SB 700
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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.

31  

                                  4

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    Florida Senate - 2004                            CS for SB 700
    300-1988-04




 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,

                                  5

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    Florida Senate - 2004                            CS for SB 700
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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

                                  6

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    Florida Senate - 2004                            CS for SB 700
    300-1988-04




 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

                                  7

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    Florida Senate - 2004                            CS for SB 700
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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;

31  

                                  8

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    Florida Senate - 2004                            CS for SB 700
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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

                                  9

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    Florida Senate - 2004                            CS for SB 700
    300-1988-04




 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

                                  10

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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

                                  11

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    Florida Senate - 2004                            CS for SB 700
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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

                                  13

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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

                                  14

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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

                                  16

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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  

                                  17

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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

                                  18

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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

                                  19

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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,

                                  20

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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

                                  22

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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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    Florida Senate - 2004                            CS for SB 700
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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.

24  

25  

26  

27  

28  

29  

30  

31  

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

24  

25  

26  

27  

28  

29  

30  

31  

                                  27

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