| 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 and treatment. |
| 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 community or 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 ill and 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 will is likely to |
| 114 | suffer from neglect or refuse to care for himself or herself; |
| 115 | such neglect or refusal will pose poses a 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 | treatment The 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 involuntarily placed 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, but instead 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. |