| 1 | Representative Simmons offered the following: | 
| 2 | 
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| 3 | Amendment (with title amendment) | 
| 4 | Remove the entire body and insert: | 
| 5 | Section 1.  Subsection (3) of section 394.455, Florida | 
| 6 | Statutes, is amended, and subsections (31) and (32) are added to | 
| 7 | that section, to read: | 
| 8 | 394.455  Definitions.--As used in this part, unless the | 
| 9 | context clearly requires otherwise, the term: | 
| 10 | (3)  "Clinical record" means all parts of the record | 
| 11 | required to be maintained and includes all medical records, | 
| 12 | progress notes, charts, and admission and discharge data, and | 
| 13 | all other information recorded by a facility which pertains to | 
| 14 | the patient's hospitalization or andtreatment. | 
| 15 | (31)  "Service provider" means any public or private | 
| 16 | receiving facility, an entity under contract with the Department | 
| 17 | of Children and Family Services to provide mental health | 
| 18 | services, a clinical psychologist, a clinical social worker, a | 
| 19 | physician, psychiatric nurse as defined in subsection (23), or a | 
| 20 | community mental health center or clinic as defined in this | 
| 21 | part. | 
| 22 | (32)  "Involuntary examination" means an examination | 
| 23 | performed under s. 394.463 to determine if an individual | 
| 24 | qualifies for involuntary inpatient treatment under s. | 
| 25 | 394.467(1) or involuntary outpatient treatment under s. | 
| 26 | 394.4655(1). | 
| 27 | (33)  "Involuntary placement" means either involuntary | 
| 28 | outpatient treatment pursuant to s. 394.4655 or involuntary | 
| 29 | inpatient treatment pursuant to s. 394.467. | 
| 30 | Section 2.  Subsections (1) and (7) of section 394.4598, | 
| 31 | Florida Statutes, are amended to read: | 
| 32 | 394.4598  Guardian advocate.-- | 
| 33 | (1)  The administrator may petition the court for the | 
| 34 | appointment of a guardian advocate based upon the opinion of a | 
| 35 | psychiatrist that the patient is incompetent to consent to | 
| 36 | treatment. If the court finds that a patient is incompetent to | 
| 37 | consent to treatment and has not been adjudicated incapacitated | 
| 38 | and a guardian with the authority to consent to mental health | 
| 39 | treatment appointed, it shall appoint a guardian advocate. The | 
| 40 | patient has the right to have an attorney represent him or her | 
| 41 | at the hearing. If the person is indigent, the court shall | 
| 42 | appoint the office of the public defender to represent him or | 
| 43 | her at the hearing. The patient has the right to testify, cross- | 
| 44 | examine witnesses, and present witnesses. The proceeding shall | 
| 45 | be recorded either electronically or stenographically, and | 
| 46 | testimony shall be provided under oath. One of the professionals | 
| 47 | authorized to give an opinion in support of a petition for | 
| 48 | involuntary placement, as described in s. 394.4655 or s. | 
| 49 | 394.467 (2), must testify. A guardian advocate must meet the | 
| 50 | qualifications of a guardian contained in part IV of chapter | 
| 51 | 744, except that a professional referred to in this part, an | 
| 52 | employee of the facility providing direct services to the | 
| 53 | patient under this part, a departmental employee, a  facility | 
| 54 | administrator, or member of the Florida local advocacy council | 
| 55 | shall not be appointed. A person who is appointed as a guardian | 
| 56 | advocate must agree to the appointment. | 
| 57 | (7)  The guardian advocate shall be discharged when the | 
| 58 | patient is discharged from an order for involuntary outpatient | 
| 59 | placement or involuntary inpatient placement a receiving or | 
| 60 | treatment facility to the communityor when the patient is | 
| 61 | transferred from involuntary to voluntary status. The court or a | 
| 62 | hearing officer shall consider the competence of the patient | 
| 63 | pursuant to subsection (1) and may consider an involuntarily | 
| 64 | placed patient's competence to consent to treatment at any | 
| 65 | hearing. Upon sufficient evidence, the court may restore, or the | 
| 66 | hearing officer may recommend that the court restore, the | 
| 67 | patient's competence. A copy of the order restoring competence | 
| 68 | or the certificate of discharge containing the restoration of | 
| 69 | competence shall be provided to the patient and the guardian | 
| 70 | advocate. | 
| 71 | Section 3.  Subsection (3) of section 394.4615, Florida | 
| 72 | Statutes, is amended to read: | 
| 73 | 394.4615  Clinical records; confidentiality.-- | 
| 74 | (3)  Information from the clinical record may be released | 
| 75 | in the following circumstances when: | 
| 76 | (a)  When a patient has declared an intention to harm other | 
| 77 | persons.  When such declaration has been made, the administrator | 
| 78 | may authorize the release of sufficient information to provide | 
| 79 | adequate warning to the person threatened with harm by the | 
| 80 | patient. | 
| 81 | (b)  When the administrator of the facility or secretary of | 
| 82 | the department deems release to a qualified researcher as | 
| 83 | defined in administrative rule, an aftercare treatment provider, | 
| 84 | or an employee or agent of the department is necessary for | 
| 85 | treatment of the patient, maintenance of adequate records, | 
| 86 | compilation of treatment data, aftercare planning, or evaluation | 
| 87 | of programs. | 
| 88 | 
 | 
| 89 | For the purpose of determining whether a person meets the | 
| 90 | criteria for involuntary outpatient placement or for preparing | 
| 91 | the proposed treatment plan pursuant to s. 394.4655, the | 
| 92 | clinical record may be released to the state attorney, the | 
| 93 | public defender or the patient's private legal counsel, the | 
| 94 | court, and to the appropriate mental health professionals, | 
| 95 | including the service provider identified in s. | 
| 96 | 394.4655(6)(b)2., in accordance with state and federal law. | 
| 97 | Section 4.  Subsection (1) and paragraphs (e), (g), and (i) | 
| 98 | of subsection (2) of section 394.463, Florida Statutes, are | 
| 99 | amended to read: | 
| 100 | 394.463  Involuntary examination.-- | 
| 101 | (1)  CRITERIA.--A person may be taken to a receiving | 
| 102 | facility for involuntary examination if there is reason to | 
| 103 | believe that the person has a mental illness he or she is | 
| 104 | mentally illand because of his or her mental illness: | 
| 105 | (a) 1.The person has refused voluntary examination after | 
| 106 | conscientious explanation and disclosure of the purpose of the | 
| 107 | examination; or | 
| 108 | (b) 2.The person is unable to determine for himself or | 
| 109 | herself whether examination is necessary; and | 
| 110 | (c) (b)Based on the person's current reported or observed | 
| 111 | behavior, considering any mental health history, there is a | 
| 112 | substantial likelihood that without care or treatment: | 
| 113 | 1. Without care or treatment,The person willis likely to | 
| 114 | suffer from neglect or refuse to care for himself or herself; | 
| 115 | such neglect or refusal will pose posesa real and present | 
| 116 | threat of substantial harm to his or her well-being; and it is | 
| 117 | not apparent that such harm may be avoided through the help of | 
| 118 | willing family members or friends or the provision of other | 
| 119 | services; or | 
| 120 | 2. There is a substantial likelihood that without care or | 
| 121 | treatmentThe person will cause serious bodily harm to himself | 
| 122 | or herself or others in the near future , as evidenced by recent | 
| 123 | behavior. | 
| 124 | (2)  INVOLUNTARY EXAMINATION.-- | 
| 125 | (e)  The Agency for Health Care Administration shall | 
| 126 | receive and maintain the copies of ex parte orders, involuntary | 
| 127 | outpatient placement orders issued pursuant to s. 394.4655, | 
| 128 | involuntary inpatient placement orders issued pursuant to s. | 
| 129 | 394.467, professional certificates, and law enforcement | 
| 130 | officers' reports.  These documents shall be considered part of | 
| 131 | the clinical record, governed by the provisions of s. 394.4615. | 
| 132 | The agency shall prepare annual reports analyzing the data | 
| 133 | obtained from these documents, without information identifying | 
| 134 | patients, and shall provide copies of reports to the department, | 
| 135 | the President of the Senate, the Speaker of the House of | 
| 136 | Representatives, and the minority leaders of the Senate and the | 
| 137 | House of Representatives. | 
| 138 | (g)  A person for whom an involuntary examination has been | 
| 139 | initiated who is being evaluated or treated at a hospital for an | 
| 140 | emergency medical condition specified in s. 395.002 must be | 
| 141 | examined by a receiving facility within 72 hours.  The 72-hour | 
| 142 | period begins when the patient arrives at the hospital and | 
| 143 | ceases when the attending physician documents that the patient | 
| 144 | has an emergency medical condition. If the patient is examined | 
| 145 | at a hospital providing emergency medical services by a | 
| 146 | professional qualified to perform an involuntary examination and | 
| 147 | is found as a result of that examination not to meet the | 
| 148 | criteria for involuntary outpatient placement pursuant to s. | 
| 149 | 394.4655(1) or involuntary inpatient placement pursuant to s. | 
| 150 | 394.467(1), the patient may be offered voluntary placement, if | 
| 151 | appropriate, or released directly from the hospital providing | 
| 152 | emergency medical services.  The finding by the professional | 
| 153 | that the patient has been examined and does not meet the | 
| 154 | criteria for involuntary inpatient placement or involuntary | 
| 155 | outpatient placement must be entered into the patient's clinical | 
| 156 | record. Nothing in this paragraph is intended to prevent a | 
| 157 | hospital providing emergency medical services from appropriately | 
| 158 | transferring a patient to another hospital prior to | 
| 159 | stabilization, provided the requirements of s. 395.1041(3)(c) | 
| 160 | have been met. | 
| 161 | (i)  Within the 72-hour examination period or, if the 72 | 
| 162 | hours ends on a weekend or holiday, no later than the next | 
| 163 | working day thereafter, one of the following actions must be | 
| 164 | taken, based on the individual needs of the patient: | 
| 165 | 1.  The patient shall be released, unless he or she is | 
| 166 | charged with a crime, in which case the patient shall be | 
| 167 | returned to the custody of a law enforcement officer; | 
| 168 | 2.  The patient shall be released, subject to the | 
| 169 | provisions of subparagraph 1., for voluntary outpatient | 
| 170 | treatment; | 
| 171 | 3.  The patient, unless he or she is charged with a crime, | 
| 172 | shall be asked to give express and informed consent to placement | 
| 173 | as a voluntary patient, and, if such consent is given, the | 
| 174 | patient shall be admitted as a voluntary patient; or | 
| 175 | 4.  If treatment is deemed necessary and the patient has | 
| 176 | failed to consent to voluntary inpatient or outpatient | 
| 177 | treatment, a petition for involuntary placement must be filed in | 
| 178 | the circuit court. The petition must seek involuntary placement | 
| 179 | of the patient in the least restrictive treatment consistent | 
| 180 | with the optimum improvement of the patient's condition. A | 
| 181 | petition for involuntary outpatient placement shall be filed by | 
| 182 | one of the petitioners specified in s. 394.4655(3)(a). A | 
| 183 | petition for involuntary inpatient placement shall be filed by | 
| 184 | the facility administrator. A petition for involuntary placement | 
| 185 | shall be filed in the appropriate court by the facility | 
| 186 | administrator when treatment is deemed necessary; in which case, | 
| 187 | the least restrictive treatment consistent with the optimum | 
| 188 | improvement of the patient's condition shall be made available. | 
| 189 | Section 5.  Section 394.4655, Florida Statutes, is created | 
| 190 | to read: | 
| 191 | 394.4655  Involuntary outpatient placement.-- | 
| 192 | (1)  CRITERIA FOR INVOLUNTARY OUTPATIENT PLACEMENT.--A | 
| 193 | person may be ordered to involuntary outpatient placement upon a | 
| 194 | finding of the court that by clear and convincing evidence: | 
| 195 | (a)  The person is 18 years of age or older; | 
| 196 | (b)  The person has a mental illness; | 
| 197 | (c)  The person is unlikely to survive safely in the | 
| 198 | community without supervision, based on a clinical | 
| 199 | determination; | 
| 200 | (d)  The person has a history of lack of compliance with | 
| 201 | treatment for mental illness; | 
| 202 | (e)  The person has: | 
| 203 | 1.  At least twice within the immediately preceding 36 | 
| 204 | months been involuntarily admitted to a receiving or treatment | 
| 205 | facility as defined in s. 394.455, or has received mental health | 
| 206 | services in a forensic or correctional facility. The 36-month | 
| 207 | period does not include any period during which the person was | 
| 208 | admitted or incarcerated; or | 
| 209 | 2.  Engaged in one or more acts of serious violent behavior | 
| 210 | toward self or others, or attempts at serious bodily harm to | 
| 211 | himself or herself or others, within the preceding 36 months; | 
| 212 | (f)  The person is, as a result of his or her mental | 
| 213 | illness, unlikely to voluntarily participate in the recommended | 
| 214 | treatment pursuant to the treatment plan; | 
| 215 | (g)  In view of the person's treatment history and current | 
| 216 | behavior, the person is in need of involuntary outpatient | 
| 217 | placement in order to prevent a relapse or deterioration that | 
| 218 | would be likely to result in serious bodily harm to himself or | 
| 219 | herself or others, or a substantial harm to his or her well- | 
| 220 | being as set forth in s. 394.463(1); | 
| 221 | (h)  It is likely that the person will benefit from | 
| 222 | involuntary outpatient placement; and | 
| 223 | (i)  All available less restrictive alternatives that would | 
| 224 | offer an opportunity for improvement of his or her condition | 
| 225 | have been judged to be inappropriate or unavailable. | 
| 226 | (2)  INVOLUNTARY OUTPATIENT PLACEMENT.-- | 
| 227 | (a)  From a receiving facility.--A patient may be retained | 
| 228 | by a receiving facility upon the recommendation of the | 
| 229 | administrator of a receiving facility where the patient has been | 
| 230 | examined and after adherence to the notice of hearing procedures | 
| 231 | provided in s. 394.4599. The recommendation must be supported by | 
| 232 | the opinion of a psychiatrist and the second opinion of a | 
| 233 | clinical psychologist or another psychiatrist, both of whom have | 
| 234 | personally examined the patient within the preceding 72 hours, | 
| 235 | that the criteria for involuntary outpatient placement are met. | 
| 236 | However, in a county having a population of fewer than 50,000, | 
| 237 | if the administrator certifies that no psychiatrist or clinical | 
| 238 | psychologist is available to provide the second opinion, the | 
| 239 | second opinion may be provided by a licensed physician who has | 
| 240 | postgraduate training and experience in diagnosis and treatment | 
| 241 | of mental and nervous disorders or by a nurse providing | 
| 242 | psychiatric services consistent with s. 394.455(23). Such a | 
| 243 | recommendation must be entered on an involuntary outpatient | 
| 244 | placement certificate, which certificate must authorize the | 
| 245 | receiving facility to retain the patient pending completion of a | 
| 246 | hearing. If the patient has been stabilized and no longer meets | 
| 247 | the criteria for involuntary examination pursuant to s. | 
| 248 | 394.463(1), the patient must be released from the receiving | 
| 249 | facility while awaiting the hearing for involuntary outpatient | 
| 250 | placement. | 
| 251 | (b)  Voluntary examination for outpatient placement.--If | 
| 252 | such an arrangement can be made, a patient may choose to be | 
| 253 | examined on an outpatient basis for an involuntary outpatient | 
| 254 | placement certificate. The certificate must be supported by the | 
| 255 | opinion of a psychiatrist and the second opinion of a clinical | 
| 256 | psychologist or another psychiatrist, both of whom have | 
| 257 | personally examined the patient within the preceding 7 calendar | 
| 258 | days, that the criteria for involuntary outpatient placement are | 
| 259 | met. However, in a county having a population of fewer than | 
| 260 | 50,000, if the psychiatrist certifies that no psychiatrist or | 
| 261 | clinical psychologist is available to provide the second | 
| 262 | opinion, the second opinion may be provided by a licensed | 
| 263 | physician who has postgraduate training and experience in | 
| 264 | diagnosis and treatment of mental and nervous disorders or by a | 
| 265 | psychiatric nurse as defined s. 394.455(23). | 
| 266 | (c)  From a treatment facility.--If a patient in | 
| 267 | involuntary inpatient placement meets the criteria for | 
| 268 | involuntary outpatient placement, the administrator of the | 
| 269 | treatment facility may, before the expiration of the period | 
| 270 | during which the treatment facility is authorized to retain the | 
| 271 | patient, recommend involuntary outpatient placement. The | 
| 272 | recommendation must be supported by the opinion of a | 
| 273 | psychiatrist and the second opinion of a clinical psychologist | 
| 274 | or another psychiatrist, both of whom have personally examined | 
| 275 | the patient within the preceding 72 hours, that the criteria for | 
| 276 | involuntary outpatient placement are met. However, in a county | 
| 277 | having a population of fewer than 50,000, if the administrator | 
| 278 | certifies that no psychiatrist or clinical psychologist is | 
| 279 | available to provide the second opinion, the second opinion may | 
| 280 | be provided by a licensed physician who has postgraduate | 
| 281 | training and experience in diagnosis and treatment of mental and | 
| 282 | nervous disorders or by a psychiatric nurse as defined in s. | 
| 283 | 394.455(23). Such a recommendation must be entered on an | 
| 284 | involuntary outpatient placement certificate. | 
| 285 | (3)  PETITION FOR INVOLUNTARY OUTPATIENT PLACEMENT.-- | 
| 286 | (a)  A petition for involuntary outpatient placement may be | 
| 287 | filed by: | 
| 288 | 1.  The administrator of a receiving facility pursuant to | 
| 289 | paragraph(2)(a); | 
| 290 | 2.  One of the examining professionals for persons examined | 
| 291 | on a voluntary outpatient basis pursuant to paragraph (2)(b). | 
| 292 | Upon filing the petition, the examining professional shall | 
| 293 | provide a copy of the petition to the administrator of the | 
| 294 | receiving facility or designated department representative that | 
| 295 | will identify the service provider for the involuntary | 
| 296 | outpatient placement unless the person is otherwise | 
| 297 | participating in outpatient psychiatric treatment and is not in | 
| 298 | need of public financing for that treatment, in which case the | 
| 299 | individual, if eligible, may be involuntarily committed to the | 
| 300 | existing psychiatric treatment relationship; or | 
| 301 | 3.  The administrator of a treatment facility pursuant to | 
| 302 | paragraph(2)(c). Upon filing the petition, the administrator | 
| 303 | shall provide a copy of the petition to the administrator of the | 
| 304 | receiving facility or designated department representative that | 
| 305 | will identify the service provider for the involuntary | 
| 306 | outpatient placement unless the person is otherwise | 
| 307 | participating in outpatient psychiatric treatment and is not in | 
| 308 | need of public financing for that treatment, in which case the | 
| 309 | individual, if eligible, may be involuntarily committed to the | 
| 310 | existing psychiatric treatment relationship. | 
| 311 | (b)  Each required criterion for involuntary outpatient | 
| 312 | placement must be alleged and substantiated in the petition for | 
| 313 | involuntary outpatient placement. A copy of the certificate | 
| 314 | recommending involuntary outpatient placement completed by a | 
| 315 | qualified professional specified in subsection (2) must be | 
| 316 | attached to the petition. A copy of the treatment plan specified | 
| 317 | in subparagraph (6)(b)2. must be attached to the petition. At | 
| 318 | the time the petition is filed, the service provider shall | 
| 319 | certify that the services in the proposed treatment plan are | 
| 320 | available. If the necessary services are not available in the | 
| 321 | patient's local community to respond to the person's individual | 
| 322 | needs, the petition may not be filed. | 
| 323 | (c)  The petition for involuntary outpatient placement must | 
| 324 | be filed in the county where the patient is located. When the | 
| 325 | petition has been filed, the clerk of the court shall provide | 
| 326 | copies of the petition and the proposed treatment plan to the | 
| 327 | department, the patient, the patient's guardian or | 
| 328 | representative, and the state attorney and public defender of | 
| 329 | the judicial circuit in which the patient is located. A fee may | 
| 330 | not be charged for filing a petition under this subsection. | 
| 331 | (4)  APPOINTMENT OF COUNSEL.--Within 1 court working day | 
| 332 | after the filing of a petition for involuntary outpatient | 
| 333 | placement, the court shall appoint the public defender to | 
| 334 | represent the person who is the subject of the petition, unless | 
| 335 | the person is otherwise represented by counsel. The clerk of the | 
| 336 | court shall immediately notify the public defender of the | 
| 337 | appointment. The public defender shall represent the person | 
| 338 | until the petition is dismissed, the court order expires, or the | 
| 339 | patient is discharged from involuntary outpatient placement. An | 
| 340 | attorney who represents the patient shall have access to the | 
| 341 | patient, witnesses, and records relevant to the presentation of | 
| 342 | the patient's case and shall represent the interests of the | 
| 343 | patient, regardless of the source of payment to the attorney. | 
| 344 | (5)  CONTINUANCE OF HEARING.--The patient is entitled, with | 
| 345 | the concurrence of the patient's counsel, to at least one | 
| 346 | continuance of the hearing. The continuance shall be for a | 
| 347 | period of up to 4 weeks. | 
| 348 | (6)  HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.-- | 
| 349 | (a)1.  The court shall hold the hearing on involuntary | 
| 350 | outpatient placement within 5 days, unless a continuance is | 
| 351 | granted. The hearing shall be held in the county where the | 
| 352 | patient is located, shall be as convenient to the patient as is | 
| 353 | consistent with orderly procedure, and shall be conducted in | 
| 354 | physical settings not likely to be injurious to the patient's | 
| 355 | condition. If the court finds that the patient's attendance at | 
| 356 | the hearing is not consistent with the best interests of the | 
| 357 | patient and if the patient's counsel does not object, the court | 
| 358 | may waive the presence of the patient from all or any portion of | 
| 359 | the hearing. The state attorney for the circuit in which the | 
| 360 | patient is located shall represent the state, rather than the | 
| 361 | petitioner, as the real party in interest in the proceeding. | 
| 362 | 2.  The court may appoint a master to preside at the | 
| 363 | hearing. One of the professionals who executed the involuntary | 
| 364 | outpatient placement certificate shall be a witness. The patient | 
| 365 | and the patient's guardian or representative shall be informed | 
| 366 | by the court of the right to an independent expert examination. | 
| 367 | If the patient cannot afford such an examination, the court | 
| 368 | shall provide for one. The independent expert's report shall be | 
| 369 | confidential and not discoverable, unless the expert is to be | 
| 370 | called as a witness for the patient at the hearing. The court | 
| 371 | shall allow testimony from individuals, including family | 
| 372 | members, deemed by the court to be relevant under state law, | 
| 373 | regarding the person's prior history and how that prior history | 
| 374 | relates to the person's current condition. The testimony in the | 
| 375 | hearing must be given under oath, and the proceedings must be | 
| 376 | recorded. The patient may refuse to testify at the hearing. | 
| 377 | (b)1.  If the court concludes that the patient meets the | 
| 378 | criteria for involuntary outpatient placement pursuant to | 
| 379 | subsection (1), the court shall issue an order for involuntary | 
| 380 | outpatient placement. The court order shall be for a period of | 
| 381 | up to 6 months. The service provider shall discharge a patient | 
| 382 | from involuntary outpatient treatment any time the patient no | 
| 383 | longer meets the criteria for involuntary placement. | 
| 384 | 2.  The administrator of a receiving facility or a | 
| 385 | designated department representative shall identify the service | 
| 386 | provider that will have primary responsibility for service | 
| 387 | provision under the order. The service provider shall prepare a | 
| 388 | written proposed treatment plan and submit it before the hearing | 
| 389 | for the court's consideration for inclusion in the involuntary | 
| 390 | outpatient placement order. The service provider shall also | 
| 391 | provide a copy of the proposed treatment plan to the petitioner. | 
| 392 | The treatment plan must specify the nature and extent of the | 
| 393 | patient's mental illness. The treatment plan may include | 
| 394 | provisions for case management, intensive case management, or | 
| 395 | assertive community treatment. The treatment plan may also | 
| 396 | require that the patient make use of a service provider to | 
| 397 | supply any or all of the following categories of services to the | 
| 398 | individual: medication; periodic urinalysis to determine | 
| 399 | compliance with treatment; individual or group therapy; day or | 
| 400 | partial-day programming activities; educational and vocational | 
| 401 | training or activities; alcohol or substance abuse treatment and | 
| 402 | counseling and periodic tests for the presence of alcohol or | 
| 403 | illegal drugs for persons with a history of alcohol or substance | 
| 404 | abuse; supervision of living arrangements; and any other | 
| 405 | services prescribed to treat the person's mental illness and to | 
| 406 | assist the person in living and functioning in the community or | 
| 407 | to attempt to prevent a relapse or deterioration. Service | 
| 408 | providers may select and provide supervision to other | 
| 409 | individuals, not enumerated in this sub-subparagraph, to | 
| 410 | implement specific aspects of the treatment plan, such as | 
| 411 | medication monitoring. The services in the treatment plan must | 
| 412 | be deemed to be clinically appropriate by a physician, clinical | 
| 413 | psychologist, psychiatric nurse as defined in s. 394.455(23), or | 
| 414 | clinical social worker who consults with, or is employed or | 
| 415 | contracted by, the service provider. The service provider must | 
| 416 | certify to the court in the proposed treatment plan whether | 
| 417 | sufficient services for improvement and stabilization are | 
| 418 | currently available and whether the service provider agrees to | 
| 419 | provide those services. If the service provider certifies that | 
| 420 | the services in the proposed treatment plan are not available, | 
| 421 | the petitioner shall withdraw the petition. The court may not | 
| 422 | order the department or the service provider to provide services | 
| 423 | if the program or service is not available in the patient's | 
| 424 | local community, if there is no space available in the program | 
| 425 | or service for the patient, or if funding is not available for | 
| 426 | the program or service. A copy of the order must be sent to the | 
| 427 | Agency for Health Care Administration by the service provider | 
| 428 | within 1 working day after it is received from the court. After | 
| 429 | the placement order is issued, the service provider and the | 
| 430 | patient may modify provisions of the treatment plan. For any | 
| 431 | material modification of the treatment plan to which the patient | 
| 432 | or the patient's guardian advocate, if appointed, does agree, | 
| 433 | the service provider shall send notice of the modification to | 
| 434 | the court. Any material modifications of the treatment plan | 
| 435 | which are contested by the patient or the patient's guardian | 
| 436 | advocate, if appointed, shall be in writing and prepared by the | 
| 437 | service provider or administrator for approval by the court. | 
| 438 | 3.  If, in the clinical judgment of a physician, the | 
| 439 | patient has failed or has refused to comply with the treatment | 
| 440 | ordered by the court, and, in the clinical judgment of the | 
| 441 | physician or clinical psychologist with a Ph.D., Psy.D., or | 
| 442 | Ed.D., efforts were made to solicit compliance and the patient | 
| 443 | may meet the criteria for involuntary examination, a person may | 
| 444 | be brought to a receiving facility pursuant to s. 394.463. If, | 
| 445 | after examination, the patient does not meet the criteria for | 
| 446 | involuntary inpatient placement pursuant to s. 394.467, the | 
| 447 | patient must be discharged from the receiving facility. The | 
| 448 | service provider must determine whether modifications should be | 
| 449 | made to the existing treatment plan and must attempt to continue | 
| 450 | to engage the patient in treatment. For any material | 
| 451 | modification of the treatment plan to which the patient or the | 
| 452 | patient's guardian advocate, if appointed, does agree, the | 
| 453 | service provider shall send notice of the modification to the | 
| 454 | court. Any material modifications of the treatment plan which | 
| 455 | are contested by the patient or the patient's guardian advocate, | 
| 456 | if appointed, must be approved by the court. | 
| 457 | (c)  If, at any time before the conclusion of the initial | 
| 458 | hearing on involuntary outpatient placement, it appears to the | 
| 459 | court that the person does not meet the criteria for involuntary | 
| 460 | outpatient placement under this section but, instead, meets the | 
| 461 | criteria for involuntary inpatient placement, the court may | 
| 462 | order the person admitted for involuntary inpatient examination | 
| 463 | under s. 394.463. If the person instead meets the criteria for | 
| 464 | involuntary assessment, protective custody, or involuntary | 
| 465 | admission pursuant to s. 397.675, the court may order the person | 
| 466 | to be admitted for involuntary assessment for a period of 5 days | 
| 467 | pursuant to s. 397.6811. Thereafter, all proceedings shall be | 
| 468 | governed by chapter 397. | 
| 469 | (d)  At the hearing on involuntary outpatient placement, | 
| 470 | the court shall consider testimony and evidence regarding the | 
| 471 | patient's competence to consent to treatment. If the court finds | 
| 472 | that the patient is incompetent to consent to treatment, it | 
| 473 | shall appoint a guardian advocate as provided in s. 394.4598. | 
| 474 | The guardian advocate shall be appointed or discharged in | 
| 475 | accordance with s. 394.4598. | 
| 476 | (e)  The administrator of the receiving facility or the | 
| 477 | designated department representative shall provide a copy of the | 
| 478 | court order and adequate documentation of a patient's mental | 
| 479 | illness to the service provider for involuntary outpatient | 
| 480 | placement. Such documentation must include any advance | 
| 481 | directives made by the patient, a psychiatric evaluation of the | 
| 482 | patient, and any evaluations of the patient performed by a | 
| 483 | clinical psychologist or a clinical social worker. | 
| 484 | (7)  PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT | 
| 485 | PLACEMENT.-- | 
| 486 | (a)  If the person continues to meet the criteria for | 
| 487 | involuntary outpatient placement, the service provider shall, | 
| 488 | before the expiration of the period during which the treatment | 
| 489 | is ordered for the person, file in the circuit court a continued | 
| 490 | involuntary outpatient placement certificate which shall be | 
| 491 | accompanied by a statement from the person's physician or | 
| 492 | clinical psychologist justifying the request, a brief | 
| 493 | description of the patient's treatment during the time he or she | 
| 494 | was involuntarily placed, and an individualized plan of | 
| 495 | continued treatment. | 
| 496 | (b)  Within 1 court working day after the filing of a | 
| 497 | petition for continued involuntary outpatient placement, the | 
| 498 | court shall appoint the public defender to represent the person | 
| 499 | who is the subject of the petition, unless the person is | 
| 500 | otherwise represented by counsel. The clerk of the court shall | 
| 501 | immediately notify the public defender of such appointment. The | 
| 502 | public defender shall represent the person until the petition is | 
| 503 | dismissed or the court order expires or the patient is | 
| 504 | discharged from involuntary outpatient placement. Any attorney | 
| 505 | representing the patient shall have access to the patient, | 
| 506 | witnesses, and records relevant to the presentation of the | 
| 507 | patient's case and shall represent the interests of the patient, | 
| 508 | regardless of the source of payment to the attorney. | 
| 509 | (c)  Hearings on petitions for continued involuntary | 
| 510 | outpatient placement shall be before the circuit court. The | 
| 511 | court may appoint a master to preside at the hearing. The | 
| 512 | procedures for obtaining an order pursuant to this paragraph | 
| 513 | shall be in accordance with subsection (6), except that the time | 
| 514 | period included in paragraph (1)(e) is not applicable in | 
| 515 | determining the appropriateness of additional periods of | 
| 516 | involuntary outpatient placement. | 
| 517 | (d)  Notice of the hearing shall be provided as set forth | 
| 518 | in s. 394.4599. The patient and the patient's attorney may agree | 
| 519 | to a period of continued outpatient placement without a court | 
| 520 | hearing. | 
| 521 | (e)  The same procedure shall be repeated before the | 
| 522 | expiration of each additional period the patient is placed in | 
| 523 | treatment. | 
| 524 | (f)  If the patient has previously been found incompetent | 
| 525 | to consent to treatment, the court shall consider testimony and | 
| 526 | evidence regarding the patient's competence. Section 394.4598 | 
| 527 | governs the discharge of the guardian advocate if the patient's | 
| 528 | competency to consent to treatment has been restored. | 
| 529 | Section 6.  Section 394.467, Florida Statutes, is amended | 
| 530 | to read: | 
| 531 | 394.467  Involuntary inpatient placement.-- | 
| 532 | (1)  CRITERIA.--A person may be involuntarilyplaced in | 
| 533 | involuntary inpatient placement for treatment upon a finding of | 
| 534 | the court by clear and convincing evidence that: | 
| 535 | (a)  He or she is mentally ill and because of his or her | 
| 536 | mental illness: | 
| 537 | 1.a.  He or she has refused voluntary placement for | 
| 538 | treatment after sufficient and conscientious explanation and | 
| 539 | disclosure of the purpose of placement for treatment; or | 
| 540 | b.  He or she is unable to determine for himself or herself | 
| 541 | whether placement is necessary; and | 
| 542 | 2.a.  He or she is manifestly incapable of surviving alone | 
| 543 | or with the help of willing and responsible family or friends, | 
| 544 | including available alternative services, and, without | 
| 545 | treatment, is likely to suffer from neglect or refuse to care | 
| 546 | for himself or herself, and such neglect or refusal poses a real | 
| 547 | and present threat of substantial harm to his or her well-being; | 
| 548 | or | 
| 549 | b.  There is substantial likelihood that in the near future | 
| 550 | he or she will inflict serious bodily harm on himself or herself | 
| 551 | or another person, as evidenced by recent behavior causing, | 
| 552 | attempting, or threatening such harm; and | 
| 553 | (b)  All available less restrictive treatment alternatives | 
| 554 | which would offer an opportunity for improvement of his or her | 
| 555 | condition have been judged to be inappropriate. | 
| 556 | (2)  ADMISSION TO A TREATMENT FACILITY.--A patient may be | 
| 557 | retained by a receiving facility or involuntarily placed in a | 
| 558 | treatment facility upon the recommendation of the administrator | 
| 559 | of a receiving facility where the patient has been examined and | 
| 560 | after adherence to the notice and hearing procedures provided in | 
| 561 | s. 394.4599. The recommendation must be supported by the opinion | 
| 562 | of a psychiatrist or a clinical psychologist with a Ph.D., | 
| 563 | Psy.D., or Ed.D. and the second opinion of a clinical | 
| 564 | psychologist or another psychiatrist, both of whom have | 
| 565 | personally examined the patient within the preceding 72 hours, | 
| 566 | that the criteria for involuntary inpatient placement are met. | 
| 567 | However, in counties of less than 50,000 population, if the | 
| 568 | administrator certifies that no psychiatrist or clinical | 
| 569 | psychologist is available to provide the second opinion, such | 
| 570 | second opinion may be provided by a licensed physician with | 
| 571 | postgraduate training and experience in diagnosis and treatment | 
| 572 | of mental and nervous disorders or by a psychiatric nurse as | 
| 573 | defined in s. 394.455(23).  Such recommendation shall be entered | 
| 574 | on an involuntary inpatient placement certificate, which | 
| 575 | certificate shall authorize the receiving facility to retain the | 
| 576 | patient pending transfer to a treatment facility or completion | 
| 577 | of a hearing. | 
| 578 | (3)  PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.--The | 
| 579 | administrator of the facility shall file a petition for | 
| 580 | involuntary inpatient placement in the court in the county where | 
| 581 | the patient is located.  Upon filing, the clerk of the court | 
| 582 | shall provide copies to the department, the patient, the | 
| 583 | patient's guardian or representative, and the state attorney and | 
| 584 | public defender of the judicial circuit in which the patient is | 
| 585 | located.  No fee shall be charged for the filing of a petition | 
| 586 | under this subsection. | 
| 587 | (4)  APPOINTMENT OF COUNSEL.--Within 1 court working day | 
| 588 | after the filing of a petition for involuntary inpatient | 
| 589 | placement, the court shall appoint the public defender to | 
| 590 | represent the person who is the subject of the petition, unless | 
| 591 | the person is otherwise represented by counsel.  The clerk of | 
| 592 | the court shall immediately notify the public defender of such | 
| 593 | appointment. Any attorney representing the patient shall have | 
| 594 | access to the patient, witnesses, and records relevant to the | 
| 595 | presentation of the patient's case and shall represent the | 
| 596 | interests of the patient, regardless of the source of payment to | 
| 597 | the attorney. | 
| 598 | (5)  CONTINUANCE OF HEARING.--The patient is entitled, with | 
| 599 | the concurrence of the patient's counsel, to at least one | 
| 600 | continuance of the hearing.  The continuance shall be for a | 
| 601 | period of up to 4 weeks. | 
| 602 | (6)  HEARING ON INVOLUNTARY INPATIENT PLACEMENT.-- | 
| 603 | (a)1.  The court shall hold the hearing on involuntary | 
| 604 | inpatient placement within 5 days, unless a continuance is | 
| 605 | granted.  The hearing shall be held in the county where the | 
| 606 | patient is located and shall be as convenient to the patient as | 
| 607 | may be consistent with orderly procedure and shall be conducted | 
| 608 | in physical settings not likely to be injurious to the patient's | 
| 609 | condition.  If the court finds that the patient's attendance at | 
| 610 | the hearing is not consistent with the best interests of the | 
| 611 | patient, and the patient's counsel does not object, the court | 
| 612 | may waive the presence of the patient from all or any portion of | 
| 613 | the hearing.  The state attorney for the circuit in which the | 
| 614 | patient is located shall represent the state, rather than the | 
| 615 | petitioning facility administrator, as the real party in | 
| 616 | interest in the proceeding. | 
| 617 | 2.  The court may appoint a master to preside at the | 
| 618 | hearing. One of the professionals who executed the involuntary | 
| 619 | inpatient placement certificate shall be a witness.  The patient | 
| 620 | and the patient's guardian or representative shall be informed | 
| 621 | by the court of the right to an independent expert examination. | 
| 622 | If the patient cannot afford such an examination, the court | 
| 623 | shall provide for one. The independent expert's report shall be | 
| 624 | confidential and not discoverable, unless the expert is to be | 
| 625 | called as a witness for the patient at the hearing. The | 
| 626 | testimony in the hearing must be given under oath, and the | 
| 627 | proceedings must be recorded. The patient may refuse to testify | 
| 628 | at the hearing. | 
| 629 | (b)  If the court concludes that the patient meets the | 
| 630 | criteria for involuntary inpatient placement, it shall order | 
| 631 | that the patient be transferred to a treatment facility or, if | 
| 632 | the patient is at a treatment facility, that the patient be | 
| 633 | retained there or be treated at any other appropriate receiving | 
| 634 | or treatment facility, or that the patient receive services from | 
| 635 | a receiving or treatment facility, on an involuntary basis, for | 
| 636 | a period of up to 6 months. The order shall specify the nature | 
| 637 | and extent of the patient's mental illness. The facility shall | 
| 638 | discharge a patient any time the patient no longer meets the | 
| 639 | criteria for involuntary inpatient placement, unless the patient | 
| 640 | has transferred to voluntary status. | 
| 641 | (c)  If at any time prior to the conclusion of the hearing | 
| 642 | on involuntary inpatient placement it appears to the court that | 
| 643 | the person does not meet the criteria for involuntary inpatient | 
| 644 | placement under this section, but instead meets the criteria for | 
| 645 | involuntary outpatient placement, the court may order the person | 
| 646 | evaluated for involuntary outpatient placement pursuant to s. | 
| 647 | 394.4655. The petition and hearing procedures set forth in s. | 
| 648 | 394.4655 shall apply. If the person placement under this | 
| 649 | chapter, butinstead meets the criteria for involuntary | 
| 650 | assessment, protective custody, or involuntary admission | 
| 651 | pursuant to s. 397.675, then the court may order the person to | 
| 652 | be admitted for involuntary assessment for a period of 5 days | 
| 653 | pursuant to s. 397.6811.  Thereafter, all proceedings shall be | 
| 654 | governed by chapter 397. | 
| 655 | (d)  At the hearing on involuntary inpatient placement, the | 
| 656 | court shall consider testimony and evidence regarding the | 
| 657 | patient's competence to consent to treatment.  If the court | 
| 658 | finds that the patient is incompetent to consent to treatment, | 
| 659 | it shall appoint a guardian advocate as provided in s. 394.4598. | 
| 660 | (e)  The administrator of the receiving facility shall | 
| 661 | provide a copy of the court order and adequate documentation of | 
| 662 | a patient's mental illness to the administrator of a treatment | 
| 663 | facility whenever a patient is ordered for involuntary inpatient | 
| 664 | placement, whether by civil or criminal court.  Such | 
| 665 | documentation shall include any advance directives made by the | 
| 666 | patient, a psychiatric evaluation of the patient, and any | 
| 667 | evaluations of the patient performed by a clinical psychologist | 
| 668 | or a clinical social worker. The administrator of a treatment | 
| 669 | facility may refuse admission to any patient directed to its | 
| 670 | facilities on an involuntary basis, whether by civil or criminal | 
| 671 | court order, who is not accompanied at the same time by adequate | 
| 672 | orders and documentation. | 
| 673 | (7)  PROCEDURE FOR CONTINUED INVOLUNTARY INPATIENT | 
| 674 | PLACEMENT.-- | 
| 675 | (a)  Hearings on petitions for continued involuntary | 
| 676 | inpatient placement shall be administrative hearings and shall | 
| 677 | be conducted in accordance with the provisions of s. 120.57(1), | 
| 678 | except that any order entered by the hearing officer shall be | 
| 679 | final and subject to judicial review in accordance with s. | 
| 680 | 120.68.  Orders concerning patients committed after successfully | 
| 681 | pleading not guilty by reason of insanity shall be governed by | 
| 682 | the provisions of s. 916.15. | 
| 683 | (b)  If the patient continues to meet the criteria for | 
| 684 | involuntary inpatient placement, the administrator shall, prior | 
| 685 | to the expiration of the period during which the treatment | 
| 686 | facility is authorized to retain the patient, file a petition | 
| 687 | requesting authorization for continued involuntary inpatient | 
| 688 | placement.  The request shall be accompanied by a statement from | 
| 689 | the patient's physician or clinical psychologist justifying the | 
| 690 | request, a brief description of the patient's treatment during | 
| 691 | the time he or she was involuntarily placed, and an | 
| 692 | individualized plan of continued treatment.  Notice of the | 
| 693 | hearing shall be provided as set forth in s. 394.4599. If at the | 
| 694 | hearing the hearing officer finds that attendance at the hearing | 
| 695 | is not consistent with the best interests of the patient, the | 
| 696 | hearing officer may waive the presence of the patient from all | 
| 697 | or any portion of the hearing, unless the patient, through | 
| 698 | counsel, objects to the waiver of presence.  The testimony in | 
| 699 | the hearing must be under oath, and the proceedings must be | 
| 700 | recorded. | 
| 701 | (c)  Unless the patient is otherwise represented or is | 
| 702 | ineligible, he or she shall be represented at the hearing on the | 
| 703 | petition for continued involuntary inpatient placement by the | 
| 704 | public defender of the circuit in which the facility is located. | 
| 705 | (d)  If at a hearing it is shown that the patient continues | 
| 706 | to meet the criteria for involuntary inpatient placement, the | 
| 707 | administrative law judge shall sign the order for continued | 
| 708 | involuntary inpatient placement for a period not to exceed 6 | 
| 709 | months.  The same procedure shall be repeated prior to the | 
| 710 | expiration of each additional period the patient is retained. | 
| 711 | (e)  If continued involuntary inpatient placement is | 
| 712 | necessary for a patient admitted while serving a criminal | 
| 713 | sentence, but whose sentence is about to expire, or for a | 
| 714 | patient involuntarily placed while a minor but who is about to | 
| 715 | reach the age of 18, the administrator shall petition the | 
| 716 | administrative law judge for an order authorizing continued | 
| 717 | involuntary inpatient placement. | 
| 718 | (f)  If the patient has been previously found incompetent | 
| 719 | to consent to treatment, the hearing officer shall consider | 
| 720 | testimony and evidence regarding the patient's competence.  If | 
| 721 | the hearing officer finds evidence that the patient is now | 
| 722 | competent to consent to treatment, the hearing officer may issue | 
| 723 | a recommended order to the court that found the patient | 
| 724 | incompetent to consent to treatment that the patient's | 
| 725 | competence be restored and that any guardian advocate previously | 
| 726 | appointed be discharged. | 
| 727 | (8)  RETURN OF PATIENTS.--When a patient at a treatment | 
| 728 | facility leaves the facility without authorization, the | 
| 729 | administrator may authorize a search for the patient and the | 
| 730 | return of the patient to the facility.  The administrator may | 
| 731 | request the assistance of a law enforcement agency in the search | 
| 732 | for and return of the patient. | 
| 733 | Section 7.  The Department of Children and Family Services | 
| 734 | shall have rulemaking authority to implement the provisions of | 
| 735 | sections 394.455, 394.4598, 394.4615, 394.463, 394.4655, and | 
| 736 | 394.467, Florida Statutes, as amended or created by this act. | 
| 737 | These rules shall be for the purpose of protecting the health, | 
| 738 | safety, and well-being of persons examined, treated, or placed | 
| 739 | under this act. | 
| 740 | Section 8.  If any provision of this act or the application | 
| 741 | thereof to any person or circumstance is held invalid, the | 
| 742 | invalidity does not affect other provisions or applications of | 
| 743 | this act which can be given effect without the invalid provision | 
| 744 | or application, and to this end the provisions of this act are | 
| 745 | declared severable. | 
| 746 | Section 9.  This act shall take effect January 1, 2005. | 
| 747 | 
 | 
| 748 | 
 | 
| 749 | ================= T I T L E  A M E N D M E N T ================= | 
| 750 | Remove the entire title and insert: | 
| 751 | A bill to be entitled | 
| 752 | An act relating to mental health; amending s. 394.455, | 
| 753 | F.S.; defining and redefining terms used in part I of ch. | 
| 754 | 394, F.S., "the Baker Act"; amending s. 394.4598, F.S., | 
| 755 | relating to guardian advocates; amending provisions to | 
| 756 | conform to changes made by the act; amending s. 394.4615, | 
| 757 | F.S., relating to confidentiality of clinical records; | 
| 758 | providing additional circumstances in which information | 
| 759 | from a clinical record may be released; amending s. | 
| 760 | 394.463, F.S.; revising criteria for an involuntary | 
| 761 | examination; revising requirements for filing a petition | 
| 762 | for involuntary placement; creating s. 394.4655, F.S.; | 
| 763 | providing for involuntary outpatient placement; providing | 
| 764 | criteria; providing procedures; providing for a voluntary | 
| 765 | examination for outpatient placement; providing for a | 
| 766 | petition for involuntary outpatient placement; requiring | 
| 767 | the appointment of counsel; providing for a continuance of | 
| 768 | hearing; providing procedures for the hearing on | 
| 769 | involuntary outpatient placement; providing a procedure | 
| 770 | for continued involuntary outpatient placement; amending | 
| 771 | s. 394.467, F.S., relating to involuntary placement; | 
| 772 | conforming terminology to changes made by the act; | 
| 773 | providing for rulemaking authority; providing for | 
| 774 | severability; providing an effective date. |