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Senate Bill 0700

Senate Bill sb0700c4

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2004       CS for CS for CS for CS for SB 700

    By the Committees on Appropriations; Criminal Justice;
    Judiciary; Children and Families; and Senators Peaden, Fasano,
    Campbell, Smith and Lynn



    309-2681-04

  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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 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, psychiatric nurse as defined in

18  subsection (23), or a community mental health center or clinic

19  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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 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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 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  For the purpose of determining whether a person meets the

28  criteria for involuntary outpatient placement or for preparing

29  the proposed treatment plan pursuant to s. 394.4655, the

30  clinical record may be released to the state attorney, the

31  public defender or the patient's private legal counsel, the

                                  4

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 1  court, and to the appropriate mental health professionals,

 2  including the service provider identified in s.

 3  394.4655(6)(b)2., in accordance with state and federal law.

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

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

 6  are amended to read:

 7         394.463  Involuntary examination.--

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

 9  facility for involuntary examination if there is reason to

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

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

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

13  after conscientious explanation and disclosure of the purpose

14  of the examination; or

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

16  herself whether examination is necessary; and

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

18  observed behavior, considering any mental health history,

19  there is a substantial likelihood that without care or

20  treatment:

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

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

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

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

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

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

27  of other services; or

28         2.  There is a substantial likelihood that without care

29  or treatment The person will cause serious bodily harm to

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

31  by recent behavior.

                                  5

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 1         (2)  INVOLUNTARY EXAMINATION.--

 2         (e)  The Agency for Health Care Administration shall

 3  receive and maintain the copies of ex parte orders,

 4  involuntary outpatient placement orders issued pursuant to s.

 5  394.4655, involuntary inpatient placement orders issued

 6  pursuant to s. 394.467, professional certificates, and law

 7  enforcement officers' reports.  These documents shall be

 8  considered part of the clinical record, governed by the

 9  provisions of s. 394.4615.  The agency shall prepare annual

10  reports analyzing the data obtained from these documents,

11  without information identifying patients, and shall provide

12  copies of reports to the department, the President of the

13  Senate, the Speaker of the House of Representatives, and the

14  minority leaders of the Senate and the House of

15  Representatives.

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

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

18  for an emergency medical condition specified in s. 395.002

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

20  72-hour period begins when the patient arrives at the hospital

21  and ceases when the attending physician documents that the

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

23  examined at a hospital providing emergency medical services by

24  a professional qualified to perform an involuntary examination

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

26  criteria for involuntary outpatient placement pursuant to s.

27  394.4655(1) or involuntary inpatient placement pursuant to s.

28  394.467(1), the patient may be offered voluntary placement, if

29  appropriate, or released directly from the hospital providing

30  emergency medical services.  The finding by the professional

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

                                  6

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 1  criteria for involuntary inpatient placement or involuntary

 2  outpatient placement must be entered into the patient's

 3  clinical record. Nothing in this paragraph is intended to

 4  prevent a hospital providing emergency medical services from

 5  appropriately transferring a patient to another hospital prior

 6  to stabilization, provided the requirements of s.

 7  395.1041(3)(c) have been met.

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

 9  72 hours ends on a weekend or holiday, no later than the next

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

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

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

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

14  returned to the custody of a law enforcement officer;

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

16  provisions of subparagraph 1., for voluntary outpatient

17  treatment;

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

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

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

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

22  or

23         4.  If treatment is deemed necessary and the patient

24  has failed to consent to voluntary inpatient or outpatient

25  treatment, a petition for involuntary placement must be filed

26  in the circuit court. The petition must seek involuntary

27  placement of the patient in the least restrictive treatment

28  consistent with the optimum improvement of the patient's

29  condition. A petition for involuntary outpatient placement

30  shall be filed by one of the petitioners specified in s.

31  394.4655(3)(a). A petition for involuntary inpatient placement

                                  7

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 1  shall be filed by the facility administrator. A petition for

 2  involuntary placement shall be filed in the appropriate court

 3  by the facility administrator when treatment is deemed

 4  necessary; in which case, the least restrictive treatment

 5  consistent with the optimum improvement of the patient's

 6  condition shall be made available.

 7         Section 5.  Section 394.4655, Florida Statutes, is

 8  created to read:

 9         394.4655  Involuntary outpatient placement.--

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

11  person may be ordered to involuntary outpatient placement upon

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

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

14         (b)  The person has a mental illness;

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

16  community without supervision, based on a clinical

17  determination;

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

19  with treatment for mental illness;

20         (e)  The person has:

21         1.  At least twice within the immediately preceding 36

22  months been involuntarily admitted to a receiving or treatment

23  facility as defined in s. 394.455, or has received mental

24  health services in a forensic or correctional facility. The

25  36-month period does not include any period during which the

26  person was admitted or incarcerated; or

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

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

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

30  months;

31  

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

 2  illness, unlikely to voluntarily participate in the

 3  recommended treatment pursuant to the treatment plan;

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

 5  current behavior, the person is in need of involuntary

 6  outpatient placement in order to prevent a relapse or

 7  deterioration that would be likely to result in serious bodily

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

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

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

11  involuntary outpatient placement; and

12         (i)  All available less restrictive alternatives that

13  would offer an opportunity for improvement of his or her

14  condition have been judged to be inappropriate or unavailable.

15         (2)  INVOLUNTARY OUTPATIENT PLACEMENT.--

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

17  retained by a receiving facility upon the recommendation of

18  the administrator of a receiving facility where the patient

19  has been examined and after adherence to the notice of hearing

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

21  supported by the opinion of a psychiatrist and the second

22  opinion of a clinical psychologist or another psychiatrist,

23  both of whom have personally examined the patient within the

24  preceding 72 hours, that the criteria for involuntary

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

26  population of fewer than 50,000, if the administrator

27  certifies that no psychiatrist or clinical psychologist is

28  available to provide the second opinion, the second opinion

29  may be provided by a licensed physician who has postgraduate

30  training and experience in diagnosis and treatment of mental

31  and nervous disorders or by a nurse providing psychiatric

                                  9

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 1  services consistent with s. 394.455(23). Such a recommendation

 2  must be entered on an involuntary outpatient placement

 3  certificate, which certificate must authorize the receiving

 4  facility to retain the patient pending completion of a

 5  hearing. If the patient has been stabilized and no longer

 6  meets the criteria for involuntary examination pursuant to s.

 7  394.463(1), the patient must be released from the receiving

 8  facility while awaiting the hearing for involuntary outpatient

 9  placement.

10         (b)  Voluntary examination for outpatient

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

12  choose to be examined on an outpatient basis for an

13  involuntary outpatient placement certificate. The certificate

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

15  second opinion of a clinical psychologist or another

16  psychiatrist, both of whom have personally examined the

17  patient within the preceding 7 calendar days, that the

18  criteria for involuntary outpatient placement are met.

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

20  if the psychiatrist certifies that no psychiatrist or clinical

21  psychologist is available to provide the second opinion, the

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

23  postgraduate training and experience in diagnosis and

24  treatment of mental and nervous disorders or by a psychiatric

25  nurse as defined s. 394.455(23).

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

27  involuntary inpatient placement meets the criteria for

28  involuntary outpatient placement, the administrator of the

29  treatment facility may, before the expiration of the period

30  during which the treatment facility is authorized to retain

31  the patient, recommend involuntary outpatient placement. The

                                  10

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 1  recommendation must be supported by the opinion of a

 2  psychiatrist and the second opinion of a clinical psychologist

 3  or another psychiatrist, both of whom have personally examined

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

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

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

 7  administrator certifies that no psychiatrist or clinical

 8  psychologist is available to provide the second opinion, the

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

10  postgraduate training and experience in diagnosis and

11  treatment of mental and nervous disorders or by a psychiatric

12  nurse as defined in s. 394.455(23). Such a recommendation must

13  be entered on an involuntary outpatient placement certificate.

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

15         (a)  A petition for involuntary outpatient placement

16  may be filed by:

17         1.  The administrator of a receiving facility pursuant

18  to paragraph (2)(a);

19         2.  One of the examining professionals for persons

20  examined on a voluntary outpatient basis pursuant to paragraph

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

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

23  the receiving facility or designated department representative

24  that will identify the service provider for the involuntary

25  outpatient placement unless the person is otherwise

26  participating in outpatient psychiatric treatment and is not

27  in need of public financing for that treatment, in which case

28  the individual, if eligible, may be involuntarily committed to

29  the existing psychiatric treatment relationship; or

30         3.  The administrator of a treatment facility pursuant

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

                                  11

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 1  administrator shall provide a copy of the petition to the

 2  administrator of the receiving facility or designated

 3  department representative that will identify the service

 4  provider for the involuntary outpatient placement unless the

 5  person is otherwise participating in outpatient psychiatric

 6  treatment and is not in need of public financing for that

 7  treatment, in which case the individual, if eligible, may be

 8  involuntarily committed to the existing psychiatric treatment

 9  relationship.

10         (b)  Each required criterion for involuntary outpatient

11  placement must be alleged and substantiated in the petition

12  for involuntary outpatient placement. A copy of the

13  certificate recommending involuntary outpatient placement

14  completed by a qualified professional specified in subsection

15  (2) must be attached to the petition. A copy of the treatment

16  plan specified in subparagraph (6)(b)2. must be attached to

17  the petition. At the time the petition is filed, the service

18  provider shall certify that the services in the proposed

19  treatment plan are available. If the necessary services are

20  not available in the patient's local community to respond to

21  the person's individual needs, the petition may not be filed.

22         (c)  The petition for involuntary outpatient placement

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

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

25  provide copies of the petition and the proposed treatment plan

26  to the department, the patient, the patient's guardian or

27  representative, and the state attorney and public defender of

28  the judicial circuit in which the patient is located. A fee

29  may not be charged for filing a petition under this

30  subsection.

31  

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

 2  day after the filing of a petition for involuntary outpatient

 3  placement, the court shall appoint the public defender to

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

 5  unless the person is otherwise represented by counsel. The

 6  clerk of the court shall immediately notify the public

 7  defender of the appointment. The public defender shall

 8  represent the person until the petition is dismissed, the

 9  court order expires, or the patient is discharged from

10  involuntary outpatient placement. An attorney who represents

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

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

13  shall represent the interests of the patient, regardless of

14  the source of payment to the attorney.

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

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

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

18  period of up to 4 weeks.

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

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

21  outpatient placement within 5 days, unless a continuance is

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

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

24  is consistent with orderly procedure, and shall be conducted

25  in physical settings not likely to be injurious to the

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

27  attendance at the hearing is not consistent with the best

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

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

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

31  circuit in which the patient is located shall represent the

                                  13

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

 2  interest in the proceeding.

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

 4  hearing. One of the professionals who executed the involuntary

 5  outpatient placement certificate shall be a witness. The

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

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

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

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

10  report shall be confidential and not discoverable, unless the

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

12  hearing. The court shall allow testimony from individuals,

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

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

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

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

17  proceedings must be recorded. The patient may refuse to

18  testify at the hearing.

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

20  the criteria for involuntary outpatient placement pursuant to

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

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

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

24  from involuntary outpatient treatment any time the patient no

25  longer meets the criteria for involuntary placement.

26         2.  The administrator of a receiving facility or a

27  designated department representative shall identify the

28  service provider that will have primary responsibility for

29  service provision under the order. The service provider shall

30  prepare a written proposed treatment plan and submit it before

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

                                  14

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 1  involuntary outpatient placement order. The service provider

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

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

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

 5  include provisions for case management, intensive case

 6  management, or assertive community treatment. The treatment

 7  plan may also require that the patient make use of a service

 8  provider to supply any or all of the following categories of

 9  services to the individual: medication; periodic urinalysis to

10  determine compliance with treatment; individual or group

11  therapy; day or partial-day programming activities;

12  educational and vocational training or activities; alcohol or

13  substance abuse treatment and counseling and periodic tests

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

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

16  arrangements; and any other services prescribed to treat the

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

18  functioning in the community or to attempt to prevent a

19  relapse or deterioration. Service providers may select and

20  provide supervision to other individuals, not enumerated in

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

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

23  the treatment plan must be deemed to be clinically appropriate

24  by a physician, clinical psychologist, psychiatric nurse as

25  defined in s. 394.455(23), or clinical social worker who

26  consults with, or is employed or contracted by, the service

27  provider. The service provider must certify to the court in

28  the proposed treatment plan whether sufficient services for

29  improvement and stabilization are currently available and

30  whether the service provider agrees to provide those services.

31  If the service provider certifies that the services in the

                                  15

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 1  proposed treatment plan are not available, the petitioner

 2  shall withdraw the petition. The court may not order the

 3  department or the service provider to provide services if the

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

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

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

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

 8  the Agency for Health Care Administration by the service

 9  provider within 1 working day after it is received from the

10  court. After the placement order is issued, the service

11  provider and the patient may modify provisions of the

12  treatment plan. For any material modification of the treatment

13  plan to which the patient or the patient's guardian advocate,

14  if appointed, does agree, the service provider shall send

15  notice of the modification to the court. Any material

16  modifications of the treatment plan which are contested by the

17  patient or the patient's guardian advocate, if appointed,

18  shall be in writing and prepared by the service provider or

19  administrator for approval by the court.

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

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

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

23  physician or clinical psychologist with a Ph.D., Psy.D., or

24  Ed.D., efforts were made to solicit compliance and the patient

25  may meet the criteria for involuntary examination, a person

26  may be brought to a receiving facility pursuant to s. 394.463.

27  If, after examination, the patient does not meet the criteria

28  for involuntary inpatient placement pursuant to s. 394.467,

29  the patient must be discharged from the receiving facility.

30  The service provider must determine whether modifications

31  should be made to the existing treatment plan and must attempt

                                  16

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 1  to continue to engage the patient in treatment. For any

 2  material modification of the treatment plan to which the

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

 4  agree, the service provider shall send notice of the

 5  modification to the court. Any material modifications of the

 6  treatment plan which are contested by the patient or the

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

 8  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 examination under s. 394.463. If the

16  person instead meets the criteria for involuntary assessment,

17  protective custody, or involuntary admission pursuant to s.

18  397.675, the court may order the person to be admitted for

19  involuntary assessment for a period of 5 days pursuant to s.

20  397.6811. Thereafter, all proceedings shall be governed by

21  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

                                  17

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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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 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. The patient and the patient's attorney

13  may agree to a period of continued outpatient placement

14  without a court hearing.

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

16  expiration of each additional period the patient is placed in

17  treatment.

18         (f)  If the patient has previously been found

19  incompetent to consent to treatment, the court shall consider

20  testimony and evidence regarding the patient's competence.

21  Section 394.4598 governs the discharge of the guardian

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

23  has been restored.

24         Section 6.  Section 394.467, Florida Statutes, is

25  amended to read:

26         394.467  Involuntary inpatient placement.--

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

28  involuntary inpatient placement for treatment upon a finding

29  of the court by clear and convincing evidence that:

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

31  her mental illness:

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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 or a clinical

27  psychologist with a Ph.D., Psy.D., or Ed.D. and the second

28  opinion of a clinical psychologist or another psychiatrist,

29  both of whom have personally examined the patient within the

30  preceding 72 hours, that the criteria for involuntary

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

                                  20

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

 2  psychiatrist or clinical psychologist is available to provide

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

 4  licensed physician with postgraduate training and experience

 5  in diagnosis and treatment of mental and nervous disorders or

 6  by a psychiatric nurse as defined in s. 394.455(23).  Such

 7  recommendation shall be entered on an involuntary inpatient

 8  placement certificate, which certificate shall authorize the

 9  receiving facility to retain the patient pending transfer to a

10  treatment facility or completion of a hearing.

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

12  administrator of the facility shall file a petition for

13  involuntary inpatient placement in the court in the county

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

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

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

17  and public defender of the judicial circuit in which the

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

19  a petition under this subsection.

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

21  day after the filing of a petition for involuntary inpatient

22  placement, the court shall appoint the public defender to

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

24  unless the person is otherwise represented by counsel.  The

25  clerk of the court shall immediately notify the public

26  defender of such appointment. Any attorney representing the

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

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

29  shall represent the interests of the patient, regardless of

30  the source of payment to the attorney.

31  

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

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

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

 4  period of up to 4 weeks.

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

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

 7  inpatient placement within 5 days, unless a continuance is

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

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

10  as may be consistent with orderly procedure and shall be

11  conducted in physical settings not likely to be injurious to

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

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

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

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

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

17  for the circuit in which the patient is located shall

18  represent the state, rather than the petitioning facility

19  administrator, as the real party in interest in the

20  proceeding.

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

22  hearing. One of the professionals who executed the involuntary

23  inpatient placement certificate shall be a witness.  The

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

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

26  examination.  If the patient cannot afford such an

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

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

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

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

31  

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

 2  may refuse to testify at the hearing.

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

 4  criteria for involuntary inpatient placement, it shall order

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

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

 7  retained there or be treated at any other appropriate

 8  receiving or treatment facility, or that the patient receive

 9  services from a receiving or treatment facility, on an

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

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

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

13  patient no longer meets the criteria for involuntary inpatient

14  placement, unless the patient has transferred to voluntary

15  status.

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

17  hearing on involuntary inpatient placement it appears to the

18  court that the person does not meet the criteria for

19  involuntary inpatient placement under this section, but

20  instead meets the criteria for involuntary outpatient

21  placement, the court may order the person evaluated for

22  involuntary outpatient placement pursuant to s. 394.4655. The

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

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

25  meets the criteria for involuntary assessment, protective

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

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

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

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

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

31  the court shall consider testimony and evidence regarding the

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

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

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

 4  394.4598.

 5         (e)  The administrator of the receiving facility shall

 6  provide a copy of the court order and adequate documentation

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

 8  treatment facility whenever a patient is ordered for

 9  involuntary inpatient placement, whether by civil or criminal

10  court.  Such documentation shall include any advance

11  directives made by the patient, a psychiatric evaluation of

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

13  clinical psychologist or a clinical social worker. The

14  administrator of a treatment facility may refuse admission to

15  any patient directed to its facilities on an involuntary

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

17  accompanied at the same time by adequate orders and

18  documentation.

19         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT

20  PLACEMENT.--

21         (a)  Hearings on petitions for continued involuntary

22  inpatient placement shall be administrative hearings and shall

23  be conducted in accordance with the provisions of s.

24  120.57(1), except that any order entered by the hearing

25  officer shall be final and subject to judicial review in

26  accordance with s. 120.68.  Orders concerning patients

27  committed after successfully pleading not guilty by reason of

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

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

30  involuntary inpatient placement, the administrator shall,

31  prior to the expiration of the period during which the

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

 2  petition requesting authorization for continued involuntary

 3  inpatient placement.  The request shall be accompanied by a

 4  statement from the patient's physician or clinical

 5  psychologist justifying the request, a brief description of

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

 7  involuntarily placed, and an individualized plan of continued

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

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

10  finds that attendance at the hearing is not consistent with

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

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

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

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

15  under oath, and the proceedings must be recorded.

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

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

18  the petition for continued involuntary inpatient placement by

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

20  located.

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

22  continues to meet the criteria for involuntary inpatient

23  placement, the administrative law judge shall sign the order

24  for continued involuntary inpatient placement for a period not

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

26  prior to the expiration of each additional period the patient

27  is retained.

28         (e)  If continued involuntary inpatient placement is

29  necessary for a patient admitted while serving a criminal

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

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

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

 2  administrative law judge for an order authorizing continued

 3  involuntary inpatient placement.

 4         (f)  If the patient has been previously found

 5  incompetent to consent to treatment, the hearing officer shall

 6  consider testimony and evidence regarding the patient's

 7  competence.  If the hearing officer finds evidence that the

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

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

10  the patient incompetent to consent to treatment that the

11  patient's competence be restored and that any guardian

12  advocate previously appointed be discharged.

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

14  facility leaves the facility without authorization, the

15  administrator may authorize a search for the patient and the

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

17  request the assistance of a law enforcement agency in the

18  search for and return of the patient.

19         Section 7.  The Department of Children and Family

20  Services shall have rulemaking authority to implement the

21  provisions of sections 394.455, 394.4598, 394.4615, 394.463,

22  394.4655, and 394.467, Florida Statutes, as amended or created

23  by this act. These rules shall be for the purpose of

24  protecting the health, safety, and well-being of persons

25  examined, treated, or placed under this act.

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

27  application thereof to any person or circumstance is held

28  invalid, the invalidity does not affect other provisions or

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

30  invalid provision or application, and to this end the

31  provisions of this act are declared severable.

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 1         Section 9.  This act shall take effect January 1, 2005.

 2  

 3          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 4                         CS/CS/CS SB 700

 5                                 

 6  The committee substitute makes no changes.

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