August 07, 2020
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Senate Bill 0700

Senate Bill sb0700e1

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    CS for CS for CS for CS for SB 700             First Engrossed



  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. 394.459, F.S., relating to

  6         the rights of patients; clarifying those rights

  7         that are applicable to individuals receiving

  8         treatment for mental illness; requiring express

  9         and informed consent prior to treatment;

10         amending s. 394.4598, F.S., relating to

11         guardian advocates; amending provisions to

12         conform to changes made by the act; amending s.

13         394.4615, F.S., relating to confidentiality of

14         clinical records; providing additional

15         circumstances in which information from a

16         clinical record may be released; amending s.

17         394.463, F.S.; revising criteria for an

18         involuntary examination; adding mental health

19         counselors to the persons who can initiate an

20         involuntary examination; revising requirements

21         for filing a petition for involuntary

22         placement; creating s. 394.4655, F.S.;

23         providing for involuntary outpatient placement;

24         providing criteria; providing procedures;

25         providing for a voluntary examination for

26         outpatient placement; providing for a petition

27         for involuntary outpatient placement; requiring

28         the appointment of counsel; providing for a

29         continuance of hearing; providing procedures

30         for the hearing on involuntary outpatient

31         placement; providing a procedure for continued


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    CS for CS for CS for CS for SB 700             First Engrossed



 1         involuntary outpatient placement; amending s.

 2         394.467, F.S., relating to involuntary

 3         placement; conforming terminology to changes

 4         made by the act; providing for rulemaking

 5         authority; creating the Baker Act Workgroup;

 6         providing a purpose; providing for the

 7         coordination of the workgroup through the

 8         Department of Children and Family Services;

 9         providing for members; requiring the department

10         to evaluate data from a pilot program;

11         providing research criteria by the Florida

12         Mental Health Institute; requiring the Florida

13         Mental Health Institute to submit its findings

14         to the workgroup; requiring the workgroup to

15         submit a report to the Legislature; creating

16         the District 4 Baker Act Pilot Project in the

17         department; providing legislative intent;

18         requiring the Florida Mental Health Institute

19         to study data from the pilot project for fiscal

20         impact; providing a termination date;

21         authorizing the department to use a certain

22         maximum dollar amount to implement the

23         workgroup and the pilot program; providing for

24         severability; providing effective dates.

25  

26  Be It Enacted by the Legislature of the State of Florida:

27  

28         Section 1.  Subsection (3) of section 394.455, Florida

29  Statutes, is amended, and subsections (31) and (32) are added

30  to that section, to read:

31  


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 1         394.455  Definitions.--As used in this part, unless the

 2  context clearly requires otherwise, the term:

 3         (3)  "Clinical record" means all parts of the record

 4  required to be maintained and includes all medical records,

 5  progress notes, charts, and admission and discharge data, and

 6  all other information recorded by a facility which pertains to

 7  the patient's hospitalization or and treatment.

 8         (31)  "Service provider" means any public or private

 9  receiving facility, an entity under contract with the

10  Department of Children and Family Services to provide mental

11  health services, a clinical psychologist, a clinical social

12  worker, a physician, psychiatric nurse as defined in

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

14  as defined in this part.

15         (32)  "Involuntary examination" means an examination

16  performed under s. 394.463 to determine if an individual

17  qualifies for involuntary inpatient treatment under s.

18  394.467(1) or involuntary outpatient treatment under s.

19  394.4655(1).

20         (33)  "Involuntary placement" means either involuntary

21  outpatient treatment pursuant to s. 394.4655 or involuntary

22  inpatient treatment pursuant to s. 394.467.

23         Section 2.  Section 394.459, Florida Statutes, is

24  amended to read:

25         394.459  Rights of patients.--

26         (1)  RIGHT TO INDIVIDUAL DIGNITY.--It is the policy of

27  this state that the individual dignity of the patient shall be

28  respected at all times and upon all occasions, including any

29  occasion when the patient is taken into custody, held, or

30  transported.  Procedures, facilities, vehicles, and

31  restraining devices utilized for criminals or those accused of


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 1  crime shall not be used in connection with persons who have a

 2  mental illness, except for the protection of the patient or

 3  others.  Persons who have a mental illness but who are not

 4  charged with a criminal offense shall not be detained or

 5  incarcerated in the jails of this state. A person who is

 6  receiving treatment for mental illness in a facility shall not

 7  be deprived of any constitutional rights. However, if such a

 8  person is adjudicated incapacitated, his or her rights may be

 9  limited to the same extent the rights of any incapacitated

10  person are limited by law.

11         (2)  RIGHT TO TREATMENT.--

12         (a)  A person shall not be denied treatment for mental

13  illness and services shall not be delayed at a receiving or

14  treatment facility because of inability to pay. However, every

15  reasonable effort to collect appropriate reimbursement for the

16  cost of providing mental health services to persons able to

17  pay for services, including insurance or third-party payments,

18  shall be made by facilities providing services pursuant to

19  this part.

20         (b)  It is further the policy of the state that the

21  least restrictive appropriate available treatment be utilized

22  based on the individual needs and best interests of the

23  patient and consistent with optimum improvement of the

24  patient's condition.

25         (c)  Each person who remains at a receiving or

26  treatment facility for more than 12 hours shall be given a

27  physical examination by a health practitioner authorized by

28  law to give such examinations, within 24 hours after arrival

29  at such facility.

30         (d)  Every patient in a facility shall be afforded the

31  opportunity to participate in activities designed to enhance


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 1  self-image and the beneficial effects of other treatments, as

 2  determined by the facility.

 3         (e)  Not more than 5 days after admission to a

 4  facility, each patient shall have and receive an

 5  individualized treatment plan in writing which the patient has

 6  had an opportunity to assist in preparing and to review prior

 7  to its implementation.  The plan shall include a space for the

 8  patient's comments.

 9         (3)  RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT.--

10         (a)  Each patient entering treatment a facility shall

11  be asked to give express and informed consent for admission

12  and treatment.  If the patient has been adjudicated

13  incapacitated or found to be incompetent to consent to

14  treatment, express and informed consent to treatment shall be

15  sought instead from the patient's guardian or guardian

16  advocate.  If the patient is a minor, express and informed

17  consent for admission and treatment shall also be requested

18  from the patient's guardian.  Express and informed consent for

19  admission and treatment of a patient under 18 years of age

20  shall be required from the patient's guardian, unless the

21  minor is seeking outpatient crisis intervention services under

22  s. 394.4784.  Express and informed consent for admission and

23  treatment given by a patient who is under 18 years of age

24  shall not be a condition of admission when the patient's

25  guardian gives express and informed consent for the patient's

26  admission pursuant to s. 394.463 or s. 394.467. Prior to

27  giving consent, the following information shall be disclosed

28  to the patient, or to the patient's guardian if the patient is

29  18 years of age or older and has been adjudicated

30  incapacitated, or to the patient's guardian advocate if the

31  patient has been found to be incompetent to consent to


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 1  treatment, or to both the patient and the guardian if the

 2  patient is a minor: the reason for admission, the proposed

 3  treatment, the purpose of the treatment to be provided, the

 4  common side effects thereof, alternative treatment modalities,

 5  the approximate length of care, and that any consent given by

 6  a patient may be revoked orally or in writing prior to or

 7  during the treatment period by the patient, the guardian

 8  advocate, or the guardian.

 9         (b)  In the case of medical procedures requiring the

10  use of a general anesthetic or electroconvulsive treatment,

11  and prior to performing the procedure, express and informed

12  consent shall be obtained from the patient if the patient is

13  legally competent, from the guardian of a minor patient, from

14  the guardian of a patient who has been adjudicated

15  incapacitated, or from the guardian advocate of the patient if

16  the guardian advocate has been given express court authority

17  to consent to medical procedures or electroconvulsive

18  treatment as provided under s. 394.4598.

19         (c)  When the department is the legal guardian of a

20  patient, or is the custodian of a patient whose physician is

21  unwilling to perform a medical procedure, including an

22  electroconvulsive treatment, based solely on the patient's

23  consent and whose guardian or guardian advocate is unknown or

24  unlocatable, the court shall hold a hearing to determine the

25  medical necessity of the medical procedure.  The patient shall

26  be physically present, unless the patient's medical condition

27  precludes such presence, represented by counsel, and provided

28  the right and opportunity to be confronted with, and to

29  cross-examine, all witnesses alleging the medical necessity of

30  such procedure. In such proceedings, the burden of proof by

31  


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 1  clear and convincing evidence shall be on the party alleging

 2  the medical necessity of the procedure.

 3         (d)  The administrator of a receiving or treatment

 4  facility may, upon the recommendation of the patient's

 5  attending physician, authorize emergency medical treatment,

 6  including a surgical procedure, if such treatment is deemed

 7  lifesaving, or if the situation threatens serious bodily harm

 8  to the patient, and permission of the patient or the patient's

 9  guardian or guardian advocate cannot be obtained.

10         (4)  QUALITY OF TREATMENT.--

11         (a)  Each patient in a facility shall receive services,

12  including, for a patient placed under s. 394.4655, those

13  services included in the court order which are suited to his

14  or her needs, and which shall be administered skillfully,

15  safely, and humanely with full respect for the patient's

16  dignity and personal integrity.  Each patient shall receive

17  such medical, vocational, social, educational, and

18  rehabilitative services as his or her condition requires in

19  order to live successfully in to bring about an early return

20  to the community.  In order to achieve this goal, the

21  department is directed to coordinate its mental health

22  programs with all other programs of the department and other

23  state agencies.

24         (b)  Receiving and treatment facilities shall develop

25  and maintain, in a form accessible to and readily

26  understandable by patients, the following:

27         1.  Criteria, procedures, and required staff training

28  for any use of close or elevated levels of supervision, of

29  restraint, seclusion, or isolation, or of emergency treatment

30  orders, and for the use of bodily control and physical

31  management techniques.


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 1         2.  Procedures for documenting, monitoring, and

 2  requiring clinical review of all uses of the procedures

 3  described in subparagraph 1. and for documenting and requiring

 4  review of any incidents resulting in injury to patients.

 5         3.  A system for the review of complaints by patients

 6  or their families or guardians.

 7         (c)  A facility may not use seclusion or restraint for

 8  punishment, to compensate for inadequate staffing, or for the

 9  convenience of staff. Facilities shall ensure that all staff

10  are made aware of these restrictions on the use of seclusion

11  and restraint and shall make and maintain records which

12  demonstrate that this information has been conveyed to

13  individual staff members.

14         (5)  COMMUNICATION, ABUSE REPORTING, AND VISITS.--

15         (a)  Each person receiving services in a facility

16  providing mental health services under this part has the right

17  to communicate freely and privately with persons outside the

18  facility unless it is determined that such communication is

19  likely to be harmful to the person or others.  Each facility

20  shall make available as soon as reasonably possible to persons

21  receiving services a telephone that allows for free local

22  calls and access to a long-distance service.  A facility is

23  not required to pay the costs of a patient's long-distance

24  calls.  The telephone shall be readily accessible to the

25  patient and shall be placed so that the patient may use it to

26  communicate privately and confidentially.  The facility may

27  establish reasonable rules for the use of this telephone,

28  provided that the rules do not interfere with a patient's

29  access to a telephone to report abuse pursuant to paragraph

30  (e).

31  


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 1         (b)  Each patient admitted to a facility under the

 2  provisions of this part shall be allowed to receive, send, and

 3  mail sealed, unopened correspondence; and no patient's

 4  incoming or outgoing correspondence shall be opened, delayed,

 5  held, or censored by the facility unless there is reason to

 6  believe that it contains items or substances which may be

 7  harmful to the patient or others, in which case the

 8  administrator may direct reasonable examination of such mail

 9  and may regulate the disposition of such items or substances.

10         (c)  Each facility must permit immediate access to any

11  patient, subject to the patient's right to deny or withdraw

12  consent at any time, by the patient's family members,

13  guardian, guardian advocate, representative, Florida statewide

14  or local advocacy council, or attorney, unless such access

15  would be detrimental to the patient.  If a patient's right to

16  communicate or to receive visitors is restricted by the

17  facility, written notice of such restriction and the reasons

18  for the restriction shall be served on the patient, the

19  patient's attorney, and the patient's guardian, guardian

20  advocate, or representative; and such restriction shall be

21  recorded on the patient's clinical record with the reasons

22  therefor.  The restriction of a patient's right to communicate

23  or to receive visitors shall be reviewed at least every 7

24  days.  The right to communicate or receive visitors shall not

25  be restricted as a means of punishment.  Nothing in this

26  paragraph shall be construed to limit the provisions of

27  paragraph (d).

28         (d)  Each facility shall establish reasonable rules

29  governing visitors, visiting hours, and the use of telephones

30  by patients in the least restrictive possible manner.

31  


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 1  Patients shall have the right to contact and to receive

 2  communication from their attorneys at any reasonable time.

 3         (e)  Each patient receiving mental health treatment in

 4  any facility shall have ready access to a telephone in order

 5  to report an alleged abuse. The facility staff shall orally

 6  and in writing inform each patient of the procedure for

 7  reporting abuse and shall make every reasonable effort to

 8  present the information in a language the patient understands.

 9  A written copy of that procedure, including the telephone

10  number of the central abuse hotline and reporting forms, shall

11  be posted in plain view.

12         (f)  The department shall adopt rules providing a

13  procedure for reporting abuse.  Facility staff shall be

14  required, as a condition of employment, to become familiar

15  with the requirements and procedures for the reporting of

16  abuse.

17         (6)  CARE AND CUSTODY OF PERSONAL EFFECTS OF

18  PATIENTS.--A patient's right to the possession of his or her

19  clothing and personal effects shall be respected.  The

20  facility may take temporary custody of such effects when

21  required for medical and safety reasons.  A patient's clothing

22  and personal effects shall be inventoried upon their removal

23  into temporary custody.  Copies of this inventory shall be

24  given to the patient and to the patient's guardian, guardian

25  advocate, or representative and shall be recorded in the

26  patient's clinical record.  This inventory may be amended upon

27  the request of the patient or the patient's guardian, guardian

28  advocate, or representative.  The inventory and any amendments

29  to it must be witnessed by two members of the facility staff

30  and by the patient, if able.  All of a patient's clothing and

31  personal effects held by the facility shall be returned to the


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 1  patient immediately upon the discharge or transfer of the

 2  patient from the facility, unless such return would be

 3  detrimental to the patient.  If personal effects are not

 4  returned to the patient, the reason must be documented in the

 5  clinical record along with the disposition of the clothing and

 6  personal effects, which may be given instead to the patient's

 7  guardian, guardian advocate, or representative.  As soon as

 8  practicable after an emergency transfer of a patient, the

 9  patient's clothing and personal effects shall be transferred

10  to the patient's new location, together with a copy of the

11  inventory and any amendments, unless an alternate plan is

12  approved by the patient, if able, and by the patient's

13  guardian, guardian advocate, or representative.

14         (7)  VOTING IN PUBLIC ELECTIONS.--A patient in a

15  facility who is eligible to vote according to the laws of the

16  state has the right to vote in the primary and general

17  elections.  The department shall establish rules to enable

18  patients to obtain voter registration forms, applications for

19  absentee ballots, and absentee ballots.

20         (8)  HABEAS CORPUS.--

21         (a)  At any time, and without notice, a person held in

22  a receiving or treatment facility, or a relative, friend,

23  guardian, guardian advocate, representative, or attorney, or

24  the department, on behalf of such person, may petition for a

25  writ of habeas corpus to question the cause and legality of

26  such detention and request that the court order a return to

27  the writ in accordance with chapter 79.  Each patient held in

28  a facility shall receive a written notice of the right to

29  petition for a writ of habeas corpus.

30         (b)  At any time, and without notice, a person who is a

31  patient in a receiving or treatment facility, or a relative,


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 1  friend, guardian, guardian advocate, representative, or

 2  attorney, or the department, on behalf of such person, may

 3  file a petition in the circuit court in the county where the

 4  patient is being held alleging that the patient is being

 5  unjustly denied a right or privilege granted herein or that a

 6  procedure authorized herein is being abused.  Upon the filing

 7  of such a petition, the court shall have the authority to

 8  conduct a judicial inquiry and to issue any order needed to

 9  correct an abuse of the provisions of this part.

10         (c)  The administrator of any receiving or treatment

11  facility receiving a petition under this subsection shall file

12  the petition with the clerk of the court on the next court

13  working day.

14         (d)  No fee shall be charged for the filing of a

15  petition under this subsection.

16         (9)  VIOLATIONS.--The department shall report to the

17  Agency for Health Care Administration any violation of the

18  rights or privileges of patients, or of any procedures

19  provided under this part, by any facility or professional

20  licensed or regulated by the agency.  The agency is authorized

21  to impose any sanction authorized for violation of this part,

22  based solely on the investigation and findings of the

23  department.

24         (10)  LIABILITY FOR VIOLATIONS.--Any person who

25  violates or abuses any rights or privileges of patients

26  provided by this part is liable for damages as determined by

27  law. Any person who acts in good faith in compliance with the

28  provisions of this part is immune from civil or criminal

29  liability for his or her actions in connection with the

30  admission, diagnosis, treatment, or discharge of a patient to

31  


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 1  or from a facility.  However, this section does not relieve

 2  any person from liability if such person commits negligence.

 3         (11)  RIGHT TO PARTICIPATE IN TREATMENT AND DISCHARGE

 4  PLANNING.--The patient shall have the opportunity to

 5  participate in treatment and discharge planning and shall be

 6  notified in writing of his or her right, upon discharge from

 7  the facility, to seek treatment from the professional or

 8  agency of the patient's choice.

 9         (12)  POSTING OF NOTICE OF RIGHTS OF PATIENTS.--Each

10  facility shall post a notice listing and describing, in the

11  language and terminology that the persons to whom the notice

12  is addressed can understand, the rights provided in this

13  section.  This notice shall include a statement that

14  provisions of the federal Americans with Disabilities Act

15  apply and the name and telephone number of a person to contact

16  for further information.  This notice shall be posted in a

17  place readily accessible to patients and in a format easily

18  seen by patients.  This notice shall include the telephone

19  numbers of the Florida local advocacy council and Advocacy

20  Center for Persons with Disabilities, Inc.

21         Section 3.  Subsections (1) and (7) of section

22  394.4598, Florida Statutes, are amended to read:

23         394.4598  Guardian advocate.--

24         (1)  The administrator may petition the court for the

25  appointment of a guardian advocate based upon the opinion of a

26  psychiatrist that the patient is incompetent to consent to

27  treatment. If the court finds that a patient is incompetent to

28  consent to treatment and has not been adjudicated

29  incapacitated and a guardian with the authority to consent to

30  mental health treatment appointed, it shall appoint a guardian

31  advocate. The patient has the right to have an attorney


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 1  represent him or her at the hearing. If the person is

 2  indigent, the court shall appoint the office of the public

 3  defender to represent him or her at the hearing. The patient

 4  has the right to testify, cross-examine witnesses, and present

 5  witnesses. The proceeding shall be recorded either

 6  electronically or stenographically, and testimony shall be

 7  provided under oath. One of the professionals authorized to

 8  give an opinion in support of a petition for involuntary

 9  placement, as described in s. 394.4655 or s. 394.467(2), must

10  testify. A guardian advocate must meet the qualifications of a

11  guardian contained in part IV of chapter 744, except that a

12  professional referred to in this part, an employee of the

13  facility providing direct services to the patient under this

14  part, a departmental employee, a  facility administrator, or

15  member of the Florida local advocacy council shall not be

16  appointed. A person who is appointed as a guardian advocate

17  must agree to the appointment.

18         (7)  The guardian advocate shall be discharged when the

19  patient is discharged from an order for involuntary outpatient

20  placement or involuntary inpatient placement a receiving or

21  treatment facility to the community or when the patient is

22  transferred from involuntary to voluntary status. The court or

23  a hearing officer shall consider the competence of the patient

24  pursuant to subsection (1) and may consider an involuntarily

25  placed patient's competence to consent to treatment at any

26  hearing. Upon sufficient evidence, the court may restore, or

27  the hearing officer may recommend that the court restore, the

28  patient's competence. A copy of the order restoring competence

29  or the certificate of discharge containing the restoration of

30  competence shall be provided to the patient and the guardian

31  advocate.


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 1         Section 4.  Subsection (3) of section 394.4615, Florida

 2  Statutes, is amended to read:

 3         394.4615  Clinical records; confidentiality.--

 4         (3)  Information from the clinical record may be

 5  released in the following circumstances when:

 6         (a)  When a patient has declared an intention to harm

 7  other persons.  When such declaration has been made, the

 8  administrator may authorize the release of sufficient

 9  information to provide adequate warning to the person

10  threatened with harm by the patient.

11         (b)  When the administrator of the facility or

12  secretary of the department deems release to a qualified

13  researcher as defined in administrative rule, an aftercare

14  treatment provider, or an employee or agent of the department

15  is necessary for treatment of the patient, maintenance of

16  adequate records, compilation of treatment data, aftercare

17  planning, or evaluation of programs.

18  

19  For the purpose of determining whether a person meets the

20  criteria for involuntary outpatient placement or for preparing

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

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

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

24  court, and to the appropriate mental health professionals,

25  including the service provider identified in s.

26  394.4655(6)(b)2., in accordance with state and federal law.

27         Section 5.  Subsection (1) and paragraphs (e), (g), and

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

29  are amended to read:

30         394.463  Involuntary examination.--

31  


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

 2  facility for involuntary examination if there is reason to

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

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

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

 6  after conscientious explanation and disclosure of the purpose

 7  of the examination; or

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

 9  herself whether examination is necessary; and

10         (b)1.  Without care or treatment, the person is likely

11  to suffer from neglect or refuse to care for himself or

12  herself; such neglect or refusal poses a real and present

13  threat of substantial harm to his or her well-being; and it is

14  not apparent that such harm may be avoided through the help of

15  willing family members or friends or the provision of other

16  services; or

17         2.  There is a substantial likelihood that without care

18  or treatment the person will cause serious bodily harm to

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

20  by recent behavior.

21         (2)  INVOLUNTARY EXAMINATION.--

22         (e)  The Agency for Health Care Administration shall

23  receive and maintain the copies of ex parte orders,

24  involuntary outpatient placement orders issued pursuant to s.

25  394.4655, involuntary inpatient placement orders issued

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

27  enforcement officers' reports.  These documents shall be

28  considered part of the clinical record, governed by the

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

30  reports analyzing the data obtained from these documents,

31  without information identifying patients, and shall provide


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

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

 3  minority leaders of the Senate and the House of

 4  Representatives.

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

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

 7  for an emergency medical condition specified in s. 395.002

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

 9  72-hour period begins when the patient arrives at the hospital

10  and ceases when the attending physician documents that the

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

12  examined at a hospital providing emergency medical services by

13  a professional qualified to perform an involuntary examination

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

15  criteria for involuntary outpatient placement pursuant to s.

16  394.4655(1) or involuntary inpatient placement pursuant to s.

17  394.467(1), the patient may be offered voluntary placement, if

18  appropriate, or released directly from the hospital providing

19  emergency medical services.  The finding by the professional

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

21  criteria for involuntary inpatient placement or involuntary

22  outpatient placement must be entered into the patient's

23  clinical record. Nothing in this paragraph is intended to

24  prevent a hospital providing emergency medical services from

25  appropriately transferring a patient to another hospital prior

26  to stabilization, provided the requirements of s.

27  395.1041(3)(c) have been met.

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

29  72 hours ends on a weekend or holiday, no later than the next

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

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


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

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

 3  returned to the custody of a law enforcement officer;

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

 5  provisions of subparagraph 1., for voluntary outpatient

 6  treatment;

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

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

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

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

11  or

12         4.  A petition for involuntary placement shall be filed

13  in the circuit appropriate court by the facility administrator

14  when outpatient or inpatient treatment is deemed necessary.

15  When inpatient treatment is deemed necessary; in which case,

16  the least restrictive treatment consistent with the optimum

17  improvement of the patient's condition shall be made

18  available. When a petition is to be filed for involuntary

19  outpatient placement, it shall be filed by one of the

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

21  involuntary inpatient placement shall be filed by the facility

22  administrator.

23         Section 6.  Effective July 1, 2005, paragraph (a) of

24  subsection (2) of section 394.463, Florida Statutes, is

25  amended to read:

26         394.463  Involuntary examination.--

27         (2)  INVOLUNTARY EXAMINATION.--

28         (a)  An involuntary examination may be initiated by any

29  one of the following means:

30         1.  A court may enter an ex parte order stating that a

31  person appears to meet the criteria for involuntary


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 1  examination, giving the findings on which that conclusion is

 2  based.  The ex parte order for involuntary examination must be

 3  based on sworn testimony, written or oral.  If other less

 4  restrictive means are not available, such as voluntary

 5  appearance for outpatient evaluation, a law enforcement

 6  officer, or other designated agent of the court, shall take

 7  the person into custody and deliver him or her to the nearest

 8  receiving facility for involuntary examination.  The order of

 9  the court shall be made a part of the patient's clinical

10  record.  No fee shall be charged for the filing of an order

11  under this subsection.  Any receiving facility accepting the

12  patient based on this order must send a copy of the order to

13  the Agency for Health Care Administration on the next working

14  day.  The order shall be valid only until executed or, if not

15  executed, for the period specified in the order itself. If no

16  time limit is specified in the order, the order shall be valid

17  for 7 days after the date that the order was signed.

18         2.  A law enforcement officer shall take a person who

19  appears to meet the criteria for involuntary examination into

20  custody and deliver the person or have him or her delivered to

21  the nearest receiving facility for examination.  The officer

22  shall execute a written report detailing the circumstances

23  under which the person was taken into custody, and the report

24  shall be made a part of the patient's clinical record.  Any

25  receiving facility accepting the patient based on this report

26  must send a copy of the report to the Agency for Health Care

27  Administration on the next working day.

28         3.  A physician, clinical psychologist, psychiatric

29  nurse, mental health counselor, or clinical social worker may

30  execute a certificate stating that he or she has examined a

31  person within the preceding 48 hours and finds that the person


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 1  appears to meet the criteria for involuntary examination and

 2  stating the observations upon which that conclusion is based.

 3  If other less restrictive means are not available, such as

 4  voluntary appearance for outpatient evaluation, a law

 5  enforcement officer shall take the person named in the

 6  certificate into custody and deliver him or her to the nearest

 7  receiving facility for involuntary examination. The law

 8  enforcement officer shall execute a written report detailing

 9  the circumstances under which the person was taken into

10  custody. The report and certificate shall be made a part of

11  the patient's clinical record. Any receiving facility

12  accepting the patient based on this certificate must send a

13  copy of the certificate to the Agency for Health Care

14  Administration on the next working day.

15         Section 7.  Effective January 1, 2005, subsection (1)

16  and paragraphs (e), (g), and (i) of subsection (2) of section

17  394.463, Florida Statutes, are amended to read:

18         394.463  Involuntary examination.--

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

20  facility for involuntary examination if there is reason to

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

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

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

24  after conscientious explanation and disclosure of the purpose

25  of the examination; or

26         2.  The person is unable to determine for himself or

27  herself whether examination is necessary; and

28         (b)1.  Without care or treatment, the person is likely

29  to suffer from neglect or refuse to care for himself or

30  herself; such neglect or refusal poses a real and present

31  threat of substantial harm to his or her well-being; and it is


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 1  not apparent that such harm may be avoided through the help of

 2  willing family members or friends or the provision of other

 3  services; or

 4         2.  There is a substantial likelihood that without care

 5  or treatment the person will cause serious bodily harm to

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

 7  by recent behavior.

 8         (2)  INVOLUNTARY EXAMINATION.--

 9         (e)  The Agency for Health Care Administration shall

10  receive and maintain the copies of ex parte orders,

11  involuntary outpatient placement orders issued pursuant to s.

12  394.4655, involuntary inpatient placement orders issued

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

14  enforcement officers' reports.  These documents shall be

15  considered part of the clinical record, governed by the

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

17  reports analyzing the data obtained from these documents,

18  without information identifying patients, and shall provide

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

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

21  minority leaders of the Senate and the House of

22  Representatives.

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

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

25  for an emergency medical condition specified in s. 395.002

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

27  72-hour period begins when the patient arrives at the hospital

28  and ceases when the attending physician documents that the

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

30  examined at a hospital providing emergency medical services by

31  a professional qualified to perform an involuntary examination


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

 2  criteria for involuntary outpatient placement pursuant to s.

 3  394.4655(1) or involuntary inpatient placement pursuant to s.

 4  394.467(1), the patient may be offered voluntary placement, if

 5  appropriate, or released directly from the hospital providing

 6  emergency medical services.  The finding by the professional

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

 8  criteria for involuntary inpatient placement or involuntary

 9  outpatient placement must be entered into the patient's

10  clinical record. Nothing in this paragraph is intended to

11  prevent a hospital providing emergency medical services from

12  appropriately transferring a patient to another hospital prior

13  to stabilization, provided the requirements of s.

14  395.1041(3)(c) have been met.

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

16  72 hours ends on a weekend or holiday, no later than the next

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

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

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

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

21  returned to the custody of a law enforcement officer;

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

23  provisions of subparagraph 1., for voluntary outpatient

24  treatment;

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

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

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

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

29  or

30         4.  A petition for involuntary placement shall be filed

31  in the circuit appropriate court by the facility administrator


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 1  when outpatient or inpatient treatment is deemed necessary.

 2  When inpatient treatment is deemed necessary; in which case,

 3  the least restrictive treatment consistent with the optimum

 4  improvement of the patient's condition shall be made

 5  available. When a petition is to be filed for involuntary

 6  outpatient placement, it shall be filed by one of the

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

 8  involuntary inpatient placement shall be filed by the facility

 9  administrator.

10         Section 8.  Section 394.4655, Florida Statutes, is

11  created to read:

12         394.4655  Involuntary outpatient placement.--

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

14  person may be ordered to involuntary outpatient placement upon

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

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

17         (b)  The person has a mental illness;

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

19  community without supervision, based on a clinical

20  determination;

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

22  with treatment for mental illness;

23         (e)  The person has:

24         1.  At least twice within the immediately preceding 36

25  months been involuntarily admitted to a receiving or treatment

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

27  health services in a forensic or correctional facility. The

28  36-month period does not include any period during which the

29  person was admitted or incarcerated; or

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

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


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

 2  months;

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

 4  illness, unlikely to voluntarily participate in the

 5  recommended treatment plan and either he or she has refused

 6  voluntary placement for treatment after sufficient and

 7  conscientious explanation and disclosure of the purpose of

 8  placement for treatment or he or she is unable to determine

 9  for himself or herself whether placement is necessary;

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

11  current behavior, the person is in need of involuntary

12  outpatient placement in order to prevent a relapse or

13  deterioration that would be likely to result in serious bodily

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

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

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

17  involuntary outpatient placement; and

18         (i)  All available less restrictive alternatives that

19  would offer an opportunity for improvement of his or her

20  condition have been judged to be inappropriate or unavailable.

21         (2)  INVOLUNTARY OUTPATIENT PLACEMENT.--

22         (a)1.  A patient may be retained by a receiving

23  facility upon the recommendation of the administrator of a

24  receiving facility where the patient has been examined and

25  after adherence to the notice of hearing procedures provided

26  in s. 394.4599. The recommendation must be supported by the

27  opinion of a psychiatrist and the second opinion of a clinical

28  psychologist or another psychiatrist, both of whom have

29  personally examined the patient within the preceding 72 hours,

30  that the criteria for involuntary outpatient placement are

31  met. However, in a county having a population of fewer than


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 1  50,000, if the administrator certifies that no psychiatrist or

 2  clinical psychologist is available to provide the second

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

 4  physician who has postgraduate training and experience in

 5  diagnosis and treatment of mental and nervous disorders or by

 6  a psychiatric nurse as defined in this chapter. Such a

 7  recommendation must be entered on an involuntary outpatient

 8  placement certificate, which certificate must authorize the

 9  receiving facility to retain the patient pending completion of

10  a hearing. The certificate shall be made a part of the

11  patient's clinical record.

12         2.  If the patient has been stabilized and no longer

13  meets the criteria for involuntary examination pursuant to s.

14  394.463(1), the patient must be released from the receiving

15  facility while awaiting the hearing for involuntary outpatient

16  placement. Prior to filing a petition for involuntary

17  outpatient treatment, the administrator of a receiving

18  facility or a designated department representative shall

19  identify the service provider that will have primary

20  responsibility for service provision under an order for

21  involuntary outpatient placement, unless the person is

22  otherwise participating in outpatient psychiatric treatment

23  and is not in need of public financing for that treatment, in

24  which case the individual, if eligible, may be ordered to

25  involuntary treatment pursuant to the existing psychiatric

26  treatment relationship.

27         3.  The service provider shall prepare a written

28  proposed treatment plan in consultation with the patient or

29  the patient's guardian advocate, if appointed, for the court's

30  consideration for inclusion in the involuntary outpatient

31  placement order. The service provider shall also provide a


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 1  copy of the proposed treatment plan to the patient and the

 2  administrator of the receiving facility. The treatment plan

 3  must specify the nature and extent of the patient's mental

 4  illness. The treatment plan must address the reduction of

 5  symptoms that necessitate involuntary outpatient placement and

 6  include measurable goals and objectives for the services and

 7  treatment that are provided to treat the person's mental

 8  illness and to assist the person in living and functioning in

 9  the community or to attempt to prevent a relapse or

10  deterioration. Service providers may select and provide

11  supervision to other individuals to implement specific aspects

12  of the treatment plan. The services in the treatment plan must

13  be deemed to be clinically appropriate by a physician,

14  clinical psychologist, psychiatric nurse, or clinical social

15  worker, as defined in this chapter, who consults with, or is

16  employed or contracted by, the service provider. The service

17  provider must certify to the court in the proposed treatment

18  plan whether sufficient services for improvement and

19  stabilization are currently available and whether the service

20  provider agrees to provide those services. If the service

21  provider certifies that the services in the proposed treatment

22  plan are not available, the petitioner may not file the

23  petition.

24         (b)  If a patient in involuntary inpatient placement

25  meets the criteria for involuntary outpatient placement, the

26  administrator of the treatment facility may, before the

27  expiration of the period during which the treatment facility

28  is authorized to retain the patient, recommend involuntary

29  outpatient placement. The recommendation must be supported by

30  the opinion of a psychiatrist and the second opinion of a

31  clinical psychologist or another psychiatrist, both of whom


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 1  have personally examined the patient within the preceding 72

 2  hours, that the criteria for involuntary outpatient placement

 3  are met. However, in a county having a population of fewer

 4  than 50,000, if the administrator certifies that no

 5  psychiatrist or clinical psychologist is available to provide

 6  the second opinion, the second opinion may be provided by a

 7  licensed physician who has postgraduate training and

 8  experience in diagnosis and treatment of mental and nervous

 9  disorders or by a psychiatric nurse as defined in s.

10  394.455(23). Such a recommendation must be entered on an

11  involuntary outpatient placement certificate and the

12  certificate shall be made a part of the patient's clinical

13  record.

14         (c)1.  The administrator of the treatment facility

15  shall provide a copy of the involuntary outpatient placement

16  certificate and a copy of the state mental health discharge

17  form to a department representative in the county where the

18  patient will be residing. For persons who are leaving a state

19  mental health treatment facility, the petition for involuntary

20  outpatient placement must be filed in the county where the

21  patient will be residing.

22         2.  The service provider that will have primary

23  responsibility for service provision shall be identified by

24  the designated department representative prior to the order

25  for involuntary outpatient placement and must, prior to filing

26  a petition for involuntary outpatient placement, certify to

27  the court whether the services recommended in the patient's

28  discharge plan are available in the local community and

29  whether the service provider agrees to provide those services.

30  The service provider must develop with the patient, or the

31  patient's guardian advocate, if appointed, a treatment or


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 1  service plan that addresses the needs identified in the

 2  discharge plan. The plan must be deemed to be clinically

 3  appropriate by a physician, clinical psychologist, psychiatric

 4  nurse, or clinical social worker, as defined in this chapter,

 5  who consults with, or is employed or contracted by, the

 6  service provider.

 7         3.  If the service provider certifies that the services

 8  in the proposed treatment or service plan are not available,

 9  the petitioner may not file the petition.

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

11         (a)  A petition for involuntary outpatient placement

12  may be filed by:

13         1.  The administrator of a receiving facility; or

14         2.  The administrator of a treatment facility.

15         (b)  Each required criterion for involuntary outpatient

16  placement must be alleged and substantiated in the petition

17  for involuntary outpatient placement. A copy of the

18  certificate recommending involuntary outpatient placement

19  completed by a qualified professional specified in subsection

20  (2) must be attached to the petition. A copy of the proposed

21  treatment plan must be attached to the petition. Before the

22  petition is filed, the service provider shall certify that the

23  services in the proposed treatment plan are available. If the

24  necessary services are not available in the patient's local

25  community to respond to the person's individual needs, the

26  petition may not be filed.

27         (c)  The petition for involuntary outpatient placement

28  must be filed in the county where the patient is located,

29  unless the patient is being placed from a state treatment

30  facility, in which case, the petition must be filed in the

31  county where the patient will reside. When the petition has


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 1  been filed, the clerk of the court shall provide copies of the

 2  petition and the proposed treatment plan to the department,

 3  the patient, the patient's guardian or representative, the

 4  state attorney, and the public defender or the patient's

 5  private counsel. A fee may not be charged for filing a

 6  petition under this subsection.

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

 8  day after the filing of a petition for involuntary outpatient

 9  placement, the court shall appoint the public defender to

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

11  unless the person is otherwise represented by counsel. The

12  clerk of the court shall immediately notify the public

13  defender of the appointment. The public defender shall

14  represent the person until the petition is dismissed, the

15  court order expires, or the patient is discharged from

16  involuntary outpatient placement. An attorney who represents

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

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

19  shall represent the interests of the patient, regardless of

20  the source of payment to the attorney.

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

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

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

24  period of up to 4 weeks.

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

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

27  outpatient placement within 5 working days after the filing of

28  the petition, unless a continuance is granted. The hearing

29  shall be held in the county where the petition is filed, shall

30  be as convenient to the patient as is consistent with orderly

31  procedure, and shall be conducted in physical settings not


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 1  likely to be injurious to the patient's condition. If the

 2  court finds that the patient's attendance at the hearing is

 3  not consistent with the best interests of the patient and if

 4  the patient's counsel does not object, the court may waive the

 5  presence of the patient from all or any portion of the

 6  hearing. The state attorney for the circuit in which the

 7  patient is located shall represent the state, rather than the

 8  petitioner, as the real party in interest in the proceeding.

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

10  hearing. One of the professionals who executed the involuntary

11  outpatient placement certificate shall be a witness. The

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

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

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

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

16  report shall be confidential and not discoverable, unless the

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

18  hearing. The court shall allow testimony from individuals,

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

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

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

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

23  proceedings must be recorded. The patient may refuse to

24  testify at the hearing.

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

26  the criteria for involuntary outpatient placement pursuant to

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

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

29  up to 6 months. The order must specify the nature and extent

30  of the patient's mental illness. The order of the court and

31  the treatment plan shall be made part of the patient's


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 1  clinical record. The service provider shall discharge a

 2  patient from involuntary outpatient placement when the order

 3  expires or any time the patient no longer meets the criteria

 4  for involuntary placement. Upon discharge, the service

 5  provider shall send a certificate of discharge to the court.

 6         2.  The court may not order the department or the

 7  service provider to provide services if the program or service

 8  is not available in the patient's local community, if there is

 9  no space available in the program or service for the patient,

10  or if funding is not available for the program or service. A

11  copy of the order must be sent to the Agency for Health Care

12  Administration by the service provider within 1 working day

13  after it is received from the court. After the placement order

14  is issued, the service provider and the patient may modify

15  provisions of the treatment plan. For any material

16  modification of the treatment plan to which the patient or the

17  patient's guardian advocate, if appointed, does agree, the

18  service provider shall send notice of the modification to the

19  court. Any material modifications of the treatment plan which

20  are contested by the patient or the patient's guardian

21  advocate, if appointed, must be approved or disapproved by the

22  court consistent with subsection (2).

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

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

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

26  physician, efforts were made to solicit compliance and the

27  patient may meet the criteria for involuntary examination, a

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

29  394.463. If, after examination, the patient does not meet the

30  criteria for involuntary inpatient placement pursuant to s.

31  394.467, the patient must be discharged from the receiving


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 1  facility. The involuntary outpatient placement order shall

 2  remain in effect unless the service provider determines that

 3  the patient no longer meets the criteria for involuntary

 4  outpatient placement or until the order expires. The service

 5  provider must determine whether modifications should be made

 6  to the existing treatment plan and must attempt to continue to

 7  engage the patient in treatment. For any material modification

 8  of the treatment plan to which the patient or the patient's

 9  guardian advocate, if appointed, does agree, the service

10  provider shall send notice of the modification to the court.

11  Any material modifications of the treatment plan which are

12  contested by the patient or the patient's guardian advocate,

13  if appointed, must be approved or disapproved by the court

14  consistent with subsection (2).

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

16  initial hearing on involuntary outpatient placement, it

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

18  criteria for involuntary outpatient placement under this

19  section but, instead, meets the criteria for involuntary

20  inpatient placement, the court may order the person admitted

21  for involuntary inpatient examination under s. 394.463. If the

22  person instead meets the criteria for involuntary assessment,

23  protective custody, or involuntary admission pursuant to s.

24  397.675, the court may order the person to be admitted for

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

26  397.6811. Thereafter, all proceedings shall be governed by

27  chapter 397.

28         (d)  At the hearing on involuntary outpatient

29  placement, the court shall consider testimony and evidence

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

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


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

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

 3  discharged in accordance with s. 394.4598.

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

 5  designated department representative shall provide a copy of

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

 7  mental illness to the service provider for involuntary

 8  outpatient placement. Such documentation must include any

 9  advance directives made by the patient, a psychiatric

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

11  performed by a clinical psychologist or a clinical social

12  worker.

13         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT

14  PLACEMENT.--

15         (a)1.  If the person continues to meet the criteria for

16  involuntary outpatient placement, the service provider shall,

17  before the expiration of the period during which the treatment

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

19  petition for continued involuntary outpatient placement.

20         2.  The existing involuntary outpatient placement order

21  remains in effect until disposition on the petition for

22  continued involuntary outpatient placement.

23         3.  A certificate shall be attached to the petition

24  which includes a statement from the person's physician or

25  clinical psychologist justifying the request, a brief

26  description of the patient's treatment during the time he or

27  she was involuntarily placed, and an individualized plan of

28  continued treatment.

29         4.  The service provider shall develop the

30  individualized plan of continued treatment in consultation

31  with the patient or the patient's guardian advocate, if


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 1  appointed. When the petition has been filed, the clerk of the

 2  court shall provide copies of the certificate and the

 3  individualized plan of continued treatment to the department,

 4  the patient, the patient's guardian advocate, the state

 5  attorney, and the patient's private counsel or the public

 6  defender.

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

 8  petition for continued involuntary outpatient placement, the

 9  court shall appoint the public defender to represent the

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

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

12  shall immediately notify the public defender of such

13  appointment. The public defender shall represent the person

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

15  the patient is discharged from involuntary outpatient

16  placement. Any attorney representing the patient shall have

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

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

19  interests of the patient, regardless of the source of payment

20  to the attorney.

21         (c)  Hearings on petitions for continued involuntary

22  outpatient placement shall be before the circuit court. The

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

24  procedures for obtaining an order pursuant to this paragraph

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

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

27  determining the appropriateness of additional periods of

28  involuntary outpatient placement.

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

30  forth in s. 394.4599. The patient and the patient's attorney

31  


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 1  may agree to a period of continued outpatient placement

 2  without a court hearing.

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

 4  expiration of each additional period the patient is placed in

 5  treatment.

 6         (f)  If the patient has previously been found

 7  incompetent to consent to treatment, the court shall consider

 8  testimony and evidence regarding the patient's competence.

 9  Section 394.4598 governs the discharge of the guardian

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

11  has been restored.

12         Section 9.  Section 394.467, Florida Statutes, is

13  amended to read:

14         394.467  Involuntary inpatient placement.--

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

16  involuntary inpatient placement for treatment upon a finding

17  of the court by clear and convincing evidence that:

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

19  her mental illness:

20         1.a.  He or she has refused voluntary placement for

21  treatment after sufficient and conscientious explanation and

22  disclosure of the purpose of placement for treatment; or

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

24  herself whether placement is necessary; and

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

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

27  friends, including available alternative services, and,

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

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

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

31  her well-being; or


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 1         b.  There is substantial likelihood that in the near

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

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

 4  causing, attempting, or threatening such harm; and

 5         (b)  All available less restrictive treatment

 6  alternatives which would offer an opportunity for improvement

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

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

 9  be retained by a receiving facility or involuntarily placed in

10  a treatment facility upon the recommendation of the

11  administrator of a receiving facility where the patient has

12  been examined and after adherence to the notice and hearing

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

14  supported by the opinion of a psychiatrist and the second

15  opinion of a clinical psychologist or another psychiatrist,

16  both of whom have personally examined the patient within the

17  preceding 72 hours, that the criteria for involuntary

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

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

20  psychiatrist or clinical psychologist is available to provide

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

22  licensed physician with postgraduate training and experience

23  in diagnosis and treatment of mental and nervous disorders or

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

25  recommendation shall be entered on an involuntary inpatient

26  placement certificate, which certificate shall authorize the

27  receiving facility to retain the patient pending transfer to a

28  treatment facility or completion of a hearing.

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

30  administrator of the facility shall file a petition for

31  involuntary inpatient placement in the court in the county


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

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

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

 4  and public defender of the judicial circuit in which the

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

 6  a petition under this subsection.

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

 8  day after the filing of a petition for involuntary inpatient

 9  placement, the court shall appoint the public defender to

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

11  unless the person is otherwise represented by counsel.  The

12  clerk of the court shall immediately notify the public

13  defender of such appointment. Any attorney representing the

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

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

16  shall represent the interests of the patient, regardless of

17  the source of payment to the attorney.

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

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

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

21  period of up to 4 weeks.

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

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

24  inpatient placement within 5 days, unless a continuance is

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

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

27  as may be consistent with orderly procedure and shall be

28  conducted in physical settings not likely to be injurious to

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

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

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


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

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

 3  for the circuit in which the patient is located shall

 4  represent the state, rather than the petitioning facility

 5  administrator, as the real party in interest in the

 6  proceeding.

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

 8  hearing. One of the professionals who executed the involuntary

 9  inpatient placement certificate shall be a witness.  The

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

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

12  examination.  If the patient cannot afford such an

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

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

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

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

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

18  may refuse to testify at the hearing.

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

20  criteria for involuntary inpatient placement, it shall order

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

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

23  retained there or be treated at any other appropriate

24  receiving or treatment facility, or that the patient receive

25  services from a receiving or treatment facility, on an

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

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

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

29  patient no longer meets the criteria for involuntary inpatient

30  placement, unless the patient has transferred to voluntary

31  status.


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

 2  hearing on involuntary inpatient placement it appears to the

 3  court that the person does not meet the criteria for

 4  involuntary inpatient placement under this section, but

 5  instead meets the criteria for involuntary outpatient

 6  placement, the court may order the person evaluated for

 7  involuntary outpatient placement pursuant to s. 394.4655. The

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

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

10  meets the criteria for involuntary assessment, protective

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

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

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

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

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

16  the court shall consider testimony and evidence regarding the

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

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

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

20  394.4598.

21         (e)  The administrator of the receiving facility shall

22  provide a copy of the court order and adequate documentation

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

24  treatment facility whenever a patient is ordered for

25  involuntary inpatient placement, whether by civil or criminal

26  court.  Such documentation shall include any advance

27  directives made by the patient, a psychiatric evaluation of

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

29  clinical psychologist or a clinical social worker. The

30  administrator of a treatment facility may refuse admission to

31  any patient directed to its facilities on an involuntary


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

 2  accompanied at the same time by adequate orders and

 3  documentation.

 4         (7)  PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT

 5  PLACEMENT.--

 6         (a)  Hearings on petitions for continued involuntary

 7  inpatient placement shall be administrative hearings and shall

 8  be conducted in accordance with the provisions of s.

 9  120.57(1), except that any order entered by the hearing

10  officer shall be final and subject to judicial review in

11  accordance with s. 120.68.  Orders concerning patients

12  committed after successfully pleading not guilty by reason of

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

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

15  involuntary inpatient placement, the administrator shall,

16  prior to the expiration of the period during which the

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

18  petition requesting authorization for continued involuntary

19  inpatient placement.  The request shall be accompanied by a

20  statement from the patient's physician or clinical

21  psychologist justifying the request, a brief description of

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

23  involuntarily placed, and an individualized plan of continued

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

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

26  finds that attendance at the hearing is not consistent with

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

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

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

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

31  under oath, and the proceedings must be recorded.


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

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

 3  the petition for continued involuntary inpatient placement by

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

 5  located.

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

 7  continues to meet the criteria for involuntary inpatient

 8  placement, the administrative law judge shall sign the order

 9  for continued involuntary inpatient placement for a period not

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

11  prior to the expiration of each additional period the patient

12  is retained.

13         (e)  If continued involuntary inpatient placement is

14  necessary for a patient admitted while serving a criminal

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

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

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

18  administrative law judge for an order authorizing continued

19  involuntary inpatient placement.

20         (f)  If the patient has been previously found

21  incompetent to consent to treatment, the hearing officer shall

22  consider testimony and evidence regarding the patient's

23  competence.  If the hearing officer finds evidence that the

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

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

26  the patient incompetent to consent to treatment that the

27  patient's competence be restored and that any guardian

28  advocate previously appointed be discharged.

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

30  facility leaves the facility without authorization, the

31  administrator may authorize a search for the patient and the


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

 2  request the assistance of a law enforcement agency in the

 3  search for and return of the patient.

 4         Section 10.  The Department of Children and Family

 5  Services shall have rulemaking authority to implement the

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

 7  394.4655, and 394.467, Florida Statutes, as amended or created

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

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

10  examined, treated, or placed under this act.

11         Section 11.  If any provision of this act or the

12  application thereof to any person or circumstance is held

13  invalid, the invalidity does not affect other provisions or

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

15  invalid provision or application, and to this end the

16  provisions of this act are declared severable.

17         Section 12.  Baker Act Workgroup.--

18         (1)  There shall be created a Baker Act Workgroup for

19  the purpose of determining the fiscal impact, if any, of

20  including in the involuntary examination provisions of the

21  Baker Act mental health professionals who are not presently

22  permitted by law to seek involuntary examination under the

23  Baker Act. The Baker Act Workgroup shall be coordinated

24  through the Department of Children and Family Services, and

25  shall include the following members:

26         (a)  Two members to be appointed by the Speaker of the

27  House of Representatives, at least one of whom must be a

28  member of the Duval County delegation.

29         (b)  Two members to be appointed by the President of

30  the Senate, at least one of whom must be a member of the Duval

31  County delegation.


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 1         (c)  Two members to be appointed by the Governor.

 2         (d)  Two members appointed by the Secretary of Children

 3  and Family Services, one of whom must be a member of the

 4  Florida Mental Health Counselors Association selected in

 5  consultation with the Florida Mental Health Counselors

 6  Association and one of whom must be a board-certified

 7  psychiatrist licensed under chapter 458 or chapter 459,

 8  Florida Statutes.

 9         (e)  The Duval County Sheriff or his designee.

10         (2)  The Department of Children and Family Services

11  shall contract with the Florida Mental Health Institute to

12  evaluate data provided by the District 4 Baker Act Pilot

13  Project, for the purpose of determining the fiscal impact, if

14  any, of including in the involuntary examination provisions of

15  the Baker Act mental health professionals who are not

16  presently permitted by law to seek involuntary examination

17  under the Baker Act.

18         (3)  Prior to the study, the Florida Mental Health

19  Institute must provide the proposed research criteria and

20  methodology to the Baker Act Workgroup. The Baker Act

21  Workgroup must approve of any research criteria and

22  methodology that is used as a part of the study.

23         (4)  The Florida Mental Health Institute shall submit

24  the findings of its study to the Baker Act Workgroup no later

25  than February 1, 2005.

26         (5)  The Baker Act Workgroup shall submit a final

27  report with recommendations to the Speaker of the House of

28  Representatives and to the President of the Senate by March 1,

29  2005. The Baker Act Workgroup shall terminate on March 1,

30  2005.

31  


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 1         (6)  All members of the Baker Act Workgroup shall serve

 2  without additional compensation or honorarium, and are

 3  authorized to receive only per diem and reimbursement for

 4  travel expenses as provided in section 112.061, Florida

 5  Statutes.

 6         Section 13.  District 4 Baker Act Pilot Project.--

 7         (1)  LEGISLATIVE INTENT.--It is the intent of the

 8  Legislature to ensure that the public is safeguarded through

 9  the expansion of qualified mental health professionals who may

10  assess and refer persons who are a danger to themselves or

11  others to appropriate services.

12         (2)  The Department of Children and Family Services

13  shall create a pilot project in District 4, which encompasses

14  Baker, Clay, Duval, Nassau, and St. John's counties. The pilot

15  project shall include mental health counselors in the

16  involuntary examination provisions of the Baker Act, as

17  provided in section 4 of this act.

18         (3)  Using the criteria approved by the Baker Act

19  Workgroup, the Florida Mental Health Institute shall study the

20  District 4 Baker Act Pilot Project data to determine the

21  fiscal impact, if any, of including licensed mental health

22  counselors in the involuntary examination provisions of the

23  Baker Act, as provided in section 4 of this act.

24         (4)  The pilot project shall terminate on July 1, 2005,

25  unless repealed sooner by the Legislature.

26         (5)  The Department of Children and Family Services is

27  authorized to use up to $75,000 to implement the Baker Act

28  Workgroup and the District 4 Baker Act Pilot Project as

29  provided in sections 12 and 13 of this act.

30         Section 14.  Except as otherwise expressly provided in

31  this act, and except for this section and sections 12 and 13


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 1  of this act, which shall take effect July 1, 2004, this act

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