| 1 | Representative Simmons offered the following: |
| 2 |
|
| 3 | Amendment to Amendment (866277) |
| 4 | Remove line(s) 189-528 and insert: |
| 5 | Section 5. Section 394.4655, Florida Statutes, is created |
| 6 | to read: |
| 7 | 394.4655 Involuntary outpatient placement.-- |
| 8 | (1) CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--A |
| 9 | person may be ordered to involuntary outpatient placement upon a |
| 10 | finding of the court that by clear and convincing evidence: |
| 11 | (a) The person is 18 years of age or older; |
| 12 | (b) The person has a mental illness; |
| 13 | (c) The person is unlikely to survive safely in the |
| 14 | community without supervision, based on a clinical |
| 15 | determination; |
| 16 | (d) The person has a history of lack of compliance with |
| 17 | treatment for mental illness; |
| 18 | (e) The person has: |
| 19 | 1. At least twice within the immediately preceding 36 |
| 20 | months been involuntarily admitted to a receiving or treatment |
| 21 | facility as defined in s. 394.455, or has received mental health |
| 22 | services in a forensic or correctional facility. The 36-month |
| 23 | period does not include any period during which the person was |
| 24 | admitted or incarcerated; or |
| 25 | 2. Engaged in one or more acts of serious violent behavior |
| 26 | toward self or others, or attempts at serious bodily harm to |
| 27 | himself or herself or others, within the preceding 36 months; |
| 28 | (f) The person is, as a result of his or her mental |
| 29 | illness, unlikely to voluntarily participate in the recommended |
| 30 | treatment plan and either he or she has refused voluntary |
| 31 | placement for treatment after sufficient and conscientious |
| 32 | explanation and disclosure of the purpose of placement for |
| 33 | treatment or he or she is unable to determine for himself or |
| 34 | herself whether placement is necessary; |
| 35 | (g) In view of the person's treatment history and current |
| 36 | behavior, the person is in need of involuntary outpatient |
| 37 | placement in order to prevent a relapse or deterioration that |
| 38 | would be likely to result in serious bodily harm to himself or |
| 39 | herself or others, or a substantial harm to his or her well- |
| 40 | being as set forth in s. 394.463(1); |
| 41 | (h) It is likely that the person will benefit from |
| 42 | involuntary outpatient placement; and |
| 43 | (i) All available less restrictive alternatives that would |
| 44 | offer an opportunity for improvement of his or her condition |
| 45 | have been judged to be inappropriate or unavailable. |
| 46 | (2) INVOLUNTARY OUTPATIENT PLACEMENT.-- |
| 47 | (a)1. A patient may be retained by a receiving facility |
| 48 | upon the recommendation of the administrator of a receiving |
| 49 | facility where the patient has been examined and after adherence |
| 50 | to the notice of hearing procedures provided in s. 394.4599. The |
| 51 | recommendation must be supported by the opinion of a |
| 52 | psychiatrist and the second opinion of a clinical psychologist |
| 53 | or another psychiatrist, both of whom have personally examined |
| 54 | the patient within the preceding 72 hours, that the criteria for |
| 55 | involuntary outpatient placement are met. However, in a county |
| 56 | having a population of fewer than 50,000, if the administrator |
| 57 | certifies that no psychiatrist or clinical psychologist is |
| 58 | available to provide the second opinion, the second opinion may |
| 59 | be provided by a licensed physician who has postgraduate |
| 60 | training and experience in diagnosis and treatment of mental and |
| 61 | nervous disorders or by a psychiatric nurse as defined in this |
| 62 | chapter. Such a recommendation must be entered on an involuntary |
| 63 | outpatient placement certificate, which certificate must |
| 64 | authorize the receiving facility to retain the patient pending |
| 65 | completion of a hearing. The certificate shall be made a part of |
| 66 | the patient's clinical record. |
| 67 | 2. If the patient has been stabilized and no longer meets |
| 68 | the criteria for involuntary examination pursuant to s. |
| 69 | 394.463(1), the patient must be released from the receiving |
| 70 | facility while awaiting the hearing for involuntary outpatient |
| 71 | placement. Prior to filing a petition for involuntary outpatient |
| 72 | treatment, the administrator of a receiving facility or a |
| 73 | designated department representative shall identify the service |
| 74 | provider that will have primary responsibility for service |
| 75 | provision under an order for involuntary outpatient placement, |
| 76 | unless the person is otherwise participating in outpatient |
| 77 | psychiatric treatment and is not in need of public financing for |
| 78 | that treatment, in which case the individual, if eligible, may |
| 79 | be ordered to involuntary treatment pursuant to the existing |
| 80 | psychiatric treatment relationship. |
| 81 | 3. The service provider shall prepare a written proposed |
| 82 | treatment plan in consultation with the patient or the patient's |
| 83 | guardian advocate, if appointed, for the court's consideration |
| 84 | for inclusion in the involuntary outpatient placement order. The |
| 85 | service provider shall also provide a copy of the proposed |
| 86 | treatment plan to the patient and the administrator of the |
| 87 | receiving facility. The treatment plan must specify the nature |
| 88 | and extent of the patient's mental illness. The treatment plan |
| 89 | must address the reduction of symptoms that necessitate |
| 90 | involuntary outpatient placement and include measurable goals |
| 91 | and objectives for the services and treatment that are provided |
| 92 | to treat the person's mental illness and to assist the person in |
| 93 | living and functioning in the community or to attempt to prevent |
| 94 | a relapse or deterioration. Service providers may select and |
| 95 | provide supervision to other individuals to implement specific |
| 96 | aspects of the treatment plan. The services in the treatment |
| 97 | plan must be deemed to be clinically appropriate by a physician, |
| 98 | clinical psychologist, psychiatric nurse, or clinical social |
| 99 | worker, as defined in this chapter, who consults with, or is |
| 100 | employed or contracted by, the service provider. The service |
| 101 | provider must certify to the court in the proposed treatment |
| 102 | plan whether sufficient services for improvement and |
| 103 | stabilization are currently available and whether the service |
| 104 | provider agrees to provide those services. If the service |
| 105 | provider certifies that the services in the proposed treatment |
| 106 | plan are not available, the petitioner may not file the |
| 107 | petition. |
| 108 | (b) If a patient in involuntary inpatient placement meets |
| 109 | the criteria for involuntary outpatient placement, the |
| 110 | administrator of the treatment facility may, before the |
| 111 | expiration of the period during which the treatment facility is |
| 112 | authorized to retain the patient, recommend involuntary |
| 113 | outpatient placement. The recommendation must be supported by |
| 114 | the opinion of a psychiatrist and the second opinion of a |
| 115 | clinical psychologist or another psychiatrist, both of whom have |
| 116 | personally examined the patient within the preceding 72 hours, |
| 117 | that the criteria for involuntary outpatient placement are met. |
| 118 | However, in a county having a population of fewer than 50,000, |
| 119 | if the administrator certifies that no psychiatrist or clinical |
| 120 | psychologist is available to provide the second opinion, the |
| 121 | second opinion may be provided by a licensed physician who has |
| 122 | postgraduate training and experience in diagnosis and treatment |
| 123 | of mental and nervous disorders or by a psychiatric nurse as |
| 124 | defined in s. 394.455(23). Such a recommendation must be entered |
| 125 | on an involuntary outpatient placement certificate and the |
| 126 | certificate shall be made a part of the patient's clinical |
| 127 | record. |
| 128 | (c)1. The administrator of the treatment facility shall |
| 129 | provide a copy of the involuntary outpatient placement |
| 130 | certificate and a copy of the state mental health discharge form |
| 131 | to a department representative in the county where the patient |
| 132 | will be residing. For persons who are leaving a state mental |
| 133 | health treatment facility, the petition for involuntary |
| 134 | outpatient placement must be filed in the county where the |
| 135 | patient will be residing. |
| 136 | 2. The service provider that will have primary |
| 137 | responsibility for service provision shall be identified by the |
| 138 | designated department representative prior to the order for |
| 139 | involuntary outpatient placement and must, prior to filing a |
| 140 | petition for involuntary outpatient placement, certify to the |
| 141 | court whether the services recommended in the patient's |
| 142 | discharge plan are available in the local community and whether |
| 143 | the service provider agrees to provide those services. The |
| 144 | service provider must develop with the patient, or the patient's |
| 145 | guardian advocate, if appointed, a treatment or service plan |
| 146 | that addresses the needs identified in the discharge plan. The |
| 147 | plan must be deemed to be clinically appropriate by a physician, |
| 148 | clinical psychologist, psychiatric nurse, or clinical social |
| 149 | worker, as defined in this chapter, who consults with, or is |
| 150 | employed or contracted by, the service provider. |
| 151 | 3. If the service provider certifies that the services in |
| 152 | the proposed treatment or service plan are not available, the |
| 153 | petitioner may not file the petition. |
| 154 | (3) PETITION FOR INVOLUNTARY OUTPATIENT PLACEMENT.-- |
| 155 | (a) A petition for involuntary outpatient placement may be |
| 156 | filed by: |
| 157 | 1. The administrator of a receiving facility; or |
| 158 | 2. The administrator of a treatment facility. |
| 159 | (b) Each required criterion for involuntary outpatient |
| 160 | placement must be alleged and substantiated in the petition for |
| 161 | involuntary outpatient placement. A copy of the certificate |
| 162 | recommending involuntary outpatient placement completed by a |
| 163 | qualified professional specified in subsection (2) must be |
| 164 | attached to the petition. A copy of the proposed treatment plan |
| 165 | must be attached to the petition. Before the petition is filed, |
| 166 | the service provider shall certify that the services in the |
| 167 | proposed treatment plan are available. If the necessary services |
| 168 | are not available in the patient's local community to respond to |
| 169 | the person's individual needs, the petition may not be filed. |
| 170 | (c) The petition for involuntary outpatient placement must |
| 171 | be filed in the county where the patient is located, unless the |
| 172 | patient is being placed from a state treatment facility, in |
| 173 | which case, the petition must be filed in the county where the |
| 174 | patient will reside. When the petition has been filed, the clerk |
| 175 | of the court shall provide copies of the petition and the |
| 176 | proposed treatment plan to the department, the patient, the |
| 177 | patient's guardian or representative, the state attorney, and |
| 178 | the public defender or the patient's private counsel. A fee may |
| 179 | not be charged for filing a petition under this subsection. |
| 180 | (4) APPOINTMENT OF COUNSEL.--Within 1 court working day |
| 181 | after the filing of a petition for involuntary outpatient |
| 182 | placement, the court shall appoint the public defender to |
| 183 | represent the person who is the subject of the petition, unless |
| 184 | the person is otherwise represented by counsel. The clerk of the |
| 185 | court shall immediately notify the public defender of the |
| 186 | appointment. The public defender shall represent the person |
| 187 | until the petition is dismissed, the court order expires, or the |
| 188 | patient is discharged from involuntary outpatient placement. An |
| 189 | attorney who represents the patient shall have access to the |
| 190 | patient, witnesses, and records relevant to the presentation of |
| 191 | the patient's case and shall represent the interests of the |
| 192 | patient, regardless of the source of payment to the attorney. |
| 193 | (5) CONTINUANCE OF HEARING.--The patient is entitled, with |
| 194 | the concurrence of the patient's counsel, to at least one |
| 195 | continuance of the hearing. The continuance shall be for a |
| 196 | period of up to 4 weeks. |
| 197 | (6) HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.-- |
| 198 | (a)1. The court shall hold the hearing on involuntary |
| 199 | outpatient placement within 5 working days after the filing of |
| 200 | the petition, unless a continuance is granted. The hearing shall |
| 201 | be held in the county where the petition is filed, shall be as |
| 202 | convenient to the patient as is consistent with orderly |
| 203 | procedure, and shall be conducted in physical settings not |
| 204 | likely to be injurious to the patient's condition. If the court |
| 205 | finds that the patient's attendance at the hearing is not |
| 206 | consistent with the best interests of the patient and if the |
| 207 | patient's counsel does not object, the court may waive the |
| 208 | presence of the patient from all or any portion of the hearing. |
| 209 | The state attorney for the circuit in which the patient is |
| 210 | located shall represent the state, rather than the petitioner, |
| 211 | as the real party in interest in the proceeding. |
| 212 | 2. The court may appoint a master to preside at the |
| 213 | hearing. One of the professionals who executed the involuntary |
| 214 | outpatient placement certificate shall be a witness. The patient |
| 215 | and the patient's guardian or representative shall be informed |
| 216 | by the court of the right to an independent expert examination. |
| 217 | If the patient cannot afford such an examination, the court |
| 218 | shall provide for one. The independent expert's report shall be |
| 219 | confidential and not discoverable, unless the expert is to be |
| 220 | called as a witness for the patient at the hearing. The court |
| 221 | shall allow testimony from individuals, including family |
| 222 | members, deemed by the court to be relevant under state law, |
| 223 | regarding the person's prior history and how that prior history |
| 224 | relates to the person's current condition. The testimony in the |
| 225 | hearing must be given under oath, and the proceedings must be |
| 226 | recorded. The patient may refuse to testify at the hearing. |
| 227 | (b)1. If the court concludes that the patient meets the |
| 228 | criteria for involuntary outpatient placement pursuant to |
| 229 | subsection (1), the court shall issue an order for involuntary |
| 230 | outpatient placement. The court order shall be for a period of |
| 231 | up to 6 months. The order must specify the nature and extent of |
| 232 | the patient's mental illness. The order of the court and the |
| 233 | treatment plan shall be made part of the patient's clinical |
| 234 | record. The service provider shall discharge a patient from |
| 235 | involuntary outpatient placement when the order expires or any |
| 236 | time the patient no longer meets the criteria for involuntary |
| 237 | placement. Upon discharge, the service provider shall send a |
| 238 | certificate of discharge to the court. |
| 239 | 2. The court may not order the department or the service |
| 240 | provider to provide services if the program or service is not |
| 241 | available in the patient's local community, if there is no space |
| 242 | available in the program or service for the patient, or if |
| 243 | funding is not available for the program or service. A copy of |
| 244 | the order must be sent to the Agency for Health Care |
| 245 | Administration by the service provider within 1 working day |
| 246 | after it is received from the court. After the placement order |
| 247 | is issued, the service provider and the patient may modify |
| 248 | provisions of the treatment plan. For any material modification |
| 249 | of the treatment plan to which the patient or the patient's |
| 250 | guardian advocate, if appointed, does agree, the service |
| 251 | provider shall send notice of the modification to the court. Any |
| 252 | material modifications of the treatment plan which are contested |
| 253 | by the patient or the patient's guardian advocate, if appointed, |
| 254 | must be approved or disapproved by the court consistent with |
| 255 | subsection (2). |
| 256 | 3. If, in the clinical judgment of a physician, the |
| 257 | patient has failed or has refused to comply with the treatment |
| 258 | ordered by the court, and, in the clinical judgment of the |
| 259 | physician, efforts were made to solicit compliance and the |
| 260 | patient may meet the criteria for involuntary examination, a |
| 261 | person may be brought to a receiving facility pursuant to s. |
| 262 | 394.463. If, after examination, the patient does not meet the |
| 263 | criteria for involuntary inpatient placement pursuant to s. |
| 264 | 394.467, the patient must be discharged from the receiving |
| 265 | facility. The involuntary outpatient placement order shall |
| 266 | remain in effect unless the service provider determines that the |
| 267 | patient no longer meets the criteria for involuntary outpatient |
| 268 | placement or until the order expires. The service provider must |
| 269 | determine whether modifications should be made to the existing |
| 270 | treatment plan and must attempt to continue to engage the |
| 271 | patient in treatment. For any material modification of the |
| 272 | treatment plan to which the patient or the patient's guardian |
| 273 | advocate, if appointed, does agree, the service provider shall |
| 274 | send notice of the modification to the court. Any material |
| 275 | modifications of the treatment plan which are contested by the |
| 276 | patient or the patient's guardian advocate, if appointed, must |
| 277 | be approved or disapproved by the court consistent with |
| 278 | subsection (2). |
| 279 | (c) If, at any time before the conclusion of the initial |
| 280 | hearing on involuntary outpatient placement, it appears to the |
| 281 | court that the person does not meet the criteria for involuntary |
| 282 | outpatient placement under this section but, instead, meets the |
| 283 | criteria for involuntary inpatient placement, the court may |
| 284 | order the person admitted for involuntary inpatient examination |
| 285 | under s. 394.463. If the person instead meets the criteria for |
| 286 | involuntary assessment, protective custody, or involuntary |
| 287 | admission pursuant to s. 397.675, the court may order the person |
| 288 | to be admitted for involuntary assessment for a period of 5 days |
| 289 | pursuant to s. 397.6811. Thereafter, all proceedings shall be |
| 290 | governed by chapter 397. |
| 291 | (d) At the hearing on involuntary outpatient placement, |
| 292 | the court shall consider testimony and evidence regarding the |
| 293 | patient's competence to consent to treatment. If the court finds |
| 294 | that the patient is incompetent to consent to treatment, it |
| 295 | shall appoint a guardian advocate as provided in s. 394.4598. |
| 296 | The guardian advocate shall be appointed or discharged in |
| 297 | accordance with s. 394.4598. |
| 298 | (e) The administrator of the receiving facility or the |
| 299 | designated department representative shall provide a copy of the |
| 300 | court order and adequate documentation of a patient's mental |
| 301 | illness to the service provider for involuntary outpatient |
| 302 | placement. Such documentation must include any advance |
| 303 | directives made by the patient, a psychiatric evaluation of the |
| 304 | patient, and any evaluations of the patient performed by a |
| 305 | clinical psychologist or a clinical social worker. |
| 306 | (7) PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT |
| 307 | PLACEMENT.-- |
| 308 | (a)1. If the person continues to meet the criteria for |
| 309 | involuntary outpatient placement, the service provider shall, |
| 310 | before the expiration of the period during which the treatment |
| 311 | is ordered for the person, file in the circuit court a petition |
| 312 | for continued involuntary outpatient placement. |
| 313 | 2. The existing involuntary outpatient placement order |
| 314 | remains in effect until disposition on the petition for |
| 315 | continued involuntary outpatient placement. |
| 316 | 3. A certificate shall be attached to the petition which |
| 317 | includes a statement from the person's physician or clinical |
| 318 | psychologist justifying the request, a brief description of the |
| 319 | patient's treatment during the time he or she was involuntarily |
| 320 | placed, and an individualized plan of continued treatment. |
| 321 | 4. The service provider shall develop the individualized |
| 322 | plan of continued treatment in consultation with the patient or |
| 323 | the patient's guardian advocate, if appointed. When the petition |
| 324 | has been filed, the clerk of the court shall provide copies of |
| 325 | the certificate and the individualized plan of continued |
| 326 | treatment to the department, the patient, the patient's guardian |
| 327 | advocate, the state attorney, and the patient's private counsel |
| 328 | or the public defender. |
| 329 | (b) Within 1 court working day after the filing of a |
| 330 | petition for continued involuntary outpatient placement, the |
| 331 | court shall appoint the public defender to represent the person |
| 332 | who is the subject of the petition, unless the person is |
| 333 | otherwise represented by counsel. The clerk of the court shall |
| 334 | immediately notify the public defender of such appointment. The |
| 335 | public defender shall represent the person until the petition is |
| 336 | dismissed or the court order expires or the patient is |
| 337 | discharged from involuntary outpatient placement. Any attorney |
| 338 | representing the patient shall have access to the patient, |
| 339 | witnesses, and records relevant to the presentation of the |
| 340 | patient's case and shall represent the interests of the patient, |
| 341 | regardless of the source of payment to the attorney. |
| 342 | (c) Hearings on petitions for continued involuntary |
| 343 | outpatient placement shall be before the circuit court. The |
| 344 | court may appoint a master to preside at the hearing. The |
| 345 | procedures for obtaining an order pursuant to this paragraph |
| 346 | shall be in accordance with subsection (6), except that the time |
| 347 | period included in paragraph (1)(e) is not applicable in |
| 348 | determining the appropriateness of additional periods of |
| 349 | involuntary outpatient placement. |
| 350 | (d) Notice of the hearing shall be provided as set forth |
| 351 | in s. 394.4599. The patient and the patient's attorney may agree |
| 352 | to a period of continued outpatient placement without a court |
| 353 | hearing. |
| 354 | (e) The same procedure shall be repeated before the |
| 355 | expiration of each additional period the patient is placed in |
| 356 | treatment. |
| 357 | (f) If the patient has previously been found incompetent |
| 358 | to consent to treatment, the court shall consider testimony and |
| 359 | evidence regarding the patient's competence. Section 394.4598 |
| 360 | governs the discharge of the guardian advocate if the patient's |
| 361 | competency to consent to treatment has been restored. |