Florida Senate - 2015                        COMMITTEE AMENDMENT
       Bill No. CS for SB 7070
       
       
       
       
       
       
                                Ì861910|Î861910                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  04/16/2015           .                                
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       The Committee on Appropriations (Garcia) recommended the
       following:
       
    1         Senate Amendment 
    2  
    3         Delete lines 2579 - 2891
    4  and insert:
    5  participate in all hearings on involuntary placement.
    6         (5) CONTINUANCE OF HEARING.—The individual patient is
    7  entitled, with the concurrence of the individual’s patient’s
    8  counsel, to at least one continuance of the hearing. The
    9  continuance shall be for a period of up to 4 weeks.
   10         (6) HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT.—
   11         (a)1. The court shall hold the hearing on involuntary
   12  outpatient placement within 5 court working days after the
   13  filing of the petition, unless a continuance is granted. The
   14  hearing shall be held in the county where the petition is filed,
   15  shall be as convenient to the individual who is the subject of
   16  the petition patient as is consistent with orderly procedure,
   17  and shall be conducted in physical settings not likely to be
   18  injurious to the individual’s patient’s condition. If the court
   19  finds that the individual’s patient’s attendance at the hearing
   20  is not consistent with the best interests of the individual
   21  patient and if the individual’s patient’s counsel does not
   22  object, the court may waive the presence of the individual
   23  patient from all or any portion of the hearing. The state
   24  attorney for the circuit in which the individual patient is
   25  located shall represent the state, rather than the petitioner,
   26  as the real party in interest in the proceeding. The state
   27  attorney shall have access to the individual’s clinical record
   28  and witnesses and shall independently evaluate the allegations
   29  set forth in the petition for involuntary placement. If the
   30  allegations are substantiated, the state attorney shall
   31  prosecute the petition. If the allegations are not
   32  substantiated, the state attorney shall withdraw the petition.
   33         (b)2. The court may appoint a magistrate master to preside
   34  at the hearing. One of the professionals who executed the
   35  involuntary outpatient placement certificate shall be a witness.
   36  The individual who is the subject of the petition patient and
   37  his or her the patient’s guardian, guardian advocate, health
   38  care surrogate or proxy, or representative shall be informed by
   39  the court of the right to an independent expert examination. If
   40  the individual patient cannot afford such an examination, the
   41  court shall provide for one. The independent expert’s report is
   42  shall be confidential and not discoverable, unless the expert is
   43  to be called as a witness for the individual patient at the
   44  hearing. The court shall allow testimony from persons
   45  individuals, including family members, deemed by the court to be
   46  relevant under state law, regarding the individual’s person’s
   47  prior history and how that prior history relates to the
   48  individual’s person’s current condition. The testimony in the
   49  hearing must be given under oath, and the proceedings must be
   50  recorded. The individual patient may refuse to testify at the
   51  hearing.
   52         (c) The court shall consider testimony and evidence
   53  regarding the competence of the individual being held to consent
   54  to treatment. If the court finds that the individual is
   55  incompetent to consent, it shall appoint a guardian advocate as
   56  provided in s. 394.4598.
   57         (7) COURT ORDER.—
   58         (a)(b)1. If the court concludes that the individual who is
   59  the subject of the petition patient meets the criteria for
   60  involuntary outpatient placement under pursuant to subsection
   61  (1), the court shall issue an order for involuntary outpatient
   62  placement. The court order may shall be for a period of up to 6
   63  months. The order must specify the nature and extent of the
   64  individual’s patient’s mental illness or substance abuse
   65  impairment. The court order of the court and the treatment plan
   66  must shall be made part of the individual’s patient’s clinical
   67  record. The service provider shall discharge an individual a
   68  patient from involuntary outpatient placement when the order
   69  expires or any time the individual patient no longer meets the
   70  criteria for involuntary placement. Upon discharge, the service
   71  provider shall send a certificate of discharge to the court.
   72         (b)2. The court may not order the department or the service
   73  provider to provide services if the program or service is not
   74  available in the patient’s local community of the individual
   75  being served, if there is no space available in the program or
   76  service for the individual patient, or if funding is not
   77  available for the program or service. A copy of the order must
   78  be sent to the Agency for Health Care Administration by the
   79  service provider within 1 working day after it is received from
   80  the court. After the placement order is issued, the service
   81  provider and the individual patient may modify provisions of the
   82  treatment plan. For any material modification of the treatment
   83  plan to which the individual patient or the individual’s
   84  patient’s guardian advocate, if appointed, does agree, the
   85  service provider shall send notice of the modification to the
   86  court. Any material modifications of the treatment plan which
   87  are contested by the individual patient or the individual’s
   88  patient’s guardian advocate, if appointed, must be approved or
   89  disapproved by the court consistent with the requirements of
   90  subsection (2).
   91         (c)3. If, in the clinical judgment of a physician, the
   92  individual being served patient has failed or has refused to
   93  comply with the treatment ordered by the court, and, in the
   94  clinical judgment of the physician, efforts were made to solicit
   95  compliance and the individual patient may meet the criteria for
   96  involuntary examination, the individual a person may be brought
   97  to a receiving facility pursuant to s. 394.463 for involuntary
   98  examination. If, after examination, the individual patient does
   99  not meet the criteria for involuntary inpatient placement
  100  pursuant to s. 394.467, the individual patient must be
  101  discharged from the receiving facility. The involuntary
  102  outpatient placement order remains shall remain in effect unless
  103  the service provider determines that the individual patient no
  104  longer meets the criteria for involuntary outpatient placement
  105  or until the order expires. The service provider must determine
  106  whether modifications should be made to the existing treatment
  107  plan and must attempt to continue to engage the individual
  108  patient in treatment. For any material modification of the
  109  treatment plan to which the individual patient or the
  110  individual’s patient’s guardian advocate, if appointed, agrees
  111  does agree, the service provider shall send notice of the
  112  modification to the court. Any material modifications of the
  113  treatment plan which are contested by the individual patient or
  114  the individual’s patient’s guardian advocate, if appointed, must
  115  be approved or disapproved by the court consistent with the
  116  requirements of subsection (2).
  117         (d)(c) If, at any time before the conclusion of the initial
  118  hearing on involuntary outpatient placement, it appears to the
  119  court that the individual person does not meet the criteria for
  120  involuntary outpatient placement under this section but,
  121  instead, meets the criteria for involuntary inpatient placement,
  122  the court may order the individual person admitted for
  123  involuntary inpatient examination under s. 394.463. If the
  124  person instead meets the criteria for involuntary assessment,
  125  protective custody, or involuntary admission pursuant to s.
  126  397.675, the court may order the person to be admitted for
  127  involuntary assessment for a period of 5 days pursuant to s.
  128  397.6811. Thereafter, all proceedings shall be governed by
  129  chapter 397.
  130         (d) At the hearing on involuntary outpatient placement, the
  131  court shall consider testimony and evidence regarding the
  132  patient’s competence to consent to treatment. If the court finds
  133  that the patient is incompetent to consent to treatment, it
  134  shall appoint a guardian advocate as provided in s. 394.4598.
  135  The guardian advocate shall be appointed or discharged in
  136  accordance with s. 394.4598.
  137         (e) The administrator of the receiving facility, the
  138  detoxification facility, or the designated department
  139  representative shall provide a copy of the court order and
  140  adequate documentation of an individual’s a patient’s mental
  141  illness or substance abuse impairment to the service provider
  142  for involuntary outpatient placement. Such documentation must
  143  include any advance directives made by the individual patient, a
  144  psychiatric evaluation of the individual patient, and any
  145  evaluations of the individual patient performed by a clinical
  146  psychologist or a clinical social worker.
  147         (8)(7)PROCEDURE FOR CONTINUED INVOLUNTARY OUTPATIENT
  148  PLACEMENT.—
  149         (a)1. If the individual person continues to meet the
  150  criteria for involuntary outpatient placement, the service
  151  provider shall, before the expiration of the period during which
  152  the placement treatment is ordered for the person, file in the
  153  circuit court a petition for continued involuntary outpatient
  154  placement.
  155         1.2. The existing involuntary outpatient placement order
  156  remains in effect until disposition of on the petition for
  157  continued involuntary outpatient placement.
  158         2.3. A certificate must shall be attached to the petition
  159  which includes a statement from the individual’s person’s
  160  physician or clinical psychologist justifying the request, a
  161  brief description of the individual’s patient’s treatment during
  162  the time he or she was involuntarily placed, and a personalized
  163  an individualized plan of continued treatment.
  164         3.4. The service provider shall develop the individualized
  165  plan of continued treatment in consultation with the individual
  166  patient or his or her the patient’s guardian advocate, if
  167  appointed. When the petition has been filed, the clerk of the
  168  court shall provide copies of the certificate and the
  169  individualized plan of continued treatment to the department,
  170  the individual patient, the individual’s patient’s guardian
  171  advocate, the state attorney, and the individual’s patient’s
  172  private counsel or the public defender.
  173         (b) Within 1 court working day after the filing of a
  174  petition for continued involuntary outpatient placement, the
  175  court shall appoint the public defender to represent the
  176  individual person who is the subject of the petition, unless the
  177  individual person is otherwise represented by counsel. The clerk
  178  of the court shall immediately notify the public defender of
  179  such appointment. The public defender shall represent the
  180  individual person until the petition is dismissed, or the court
  181  order expires, or the individual patient is discharged from
  182  involuntary outpatient placement. Any attorney representing the
  183  individual patient shall have access to the individual patient,
  184  witnesses, and records relevant to the presentation of the
  185  individual’s patient’s case and shall represent the interests of
  186  the individual patient, regardless of the source of payment to
  187  the attorney.
  188         (c) The court shall inform the individual who is the
  189  subject of the petition and his or her guardian, guardian
  190  advocate, health care surrogate or proxy, or representative of
  191  the individual’s right to an independent expert examination. If
  192  the individual cannot afford such an examination, the court
  193  shall provide one.
  194         (d)(c) Hearings on petitions for continued involuntary
  195  outpatient placement are shall be before the circuit court. The
  196  court may appoint a magistrate master to preside at the hearing.
  197  The procedures for obtaining an order pursuant to this paragraph
  198  must shall be in accordance with subsection (6), except that the
  199  time period included in paragraph (1)(e) is not applicable in
  200  determining the appropriateness of additional periods of
  201  involuntary outpatient placement.
  202         (e)(d) Notice of the hearing shall be provided in
  203  accordance with as set forth in s. 394.4599. The individual
  204  being served patient and the individual’s patient’s attorney may
  205  agree to a period of continued outpatient placement without a
  206  court hearing.
  207         (f)(e) The same procedure shall be repeated before the
  208  expiration of each additional period the individual being served
  209  patient is placed in treatment.
  210         (g)(f) If the individual in involuntary outpatient
  211  placement patient has previously been found incompetent to
  212  consent to treatment, the court shall consider testimony and
  213  evidence regarding the individual’s patient’s competence.
  214  Section 394.4598 governs the discharge of the guardian advocate
  215  if the individual’s patient’s competency to consent to treatment
  216  has been restored.
  217         Section 15. Effective on July 1, 2016, section 394.467,
  218  Florida Statutes, is amended to read:
  219         394.467 Involuntary inpatient placement.—
  220         (1) CRITERIA.—An individual A person may be placed in
  221  involuntary inpatient placement for treatment upon a finding of
  222  the court by clear and convincing evidence that:
  223         (a) He or she has a mental illness or substance abuse
  224  impairment is mentally ill and because of his or her mental
  225  illness or substance abuse impairment:
  226         1.a. He or she has refused voluntary placement for
  227  treatment after sufficient and conscientious explanation and
  228  disclosure of the purpose of placement for treatment; or
  229         b. He or she is unable to determine for himself or herself
  230  whether placement is necessary; and
  231         2.a. He or she is manifestly incapable of surviving alone
  232  or with the help of willing and responsible family or friends,
  233  including available alternative services, and, without
  234  treatment, is likely to suffer from neglect or refuse to care
  235  for himself or herself, and such neglect or refusal poses a real
  236  and present threat of substantial harm to his or her well-being;
  237  or
  238         b. There is substantial likelihood that in the near future
  239  he or she will inflict serious bodily harm on self or others
  240  himself or herself or another person, as evidenced by recent
  241  behavior causing, attempting, or threatening such harm; and
  242         (b) All available less restrictive treatment alternatives
  243  that which would offer an opportunity for improvement of his or
  244  her condition have been judged to be inappropriate.
  245         (2) ADMISSION TO A TREATMENT FACILITY.—An individual A
  246  patient may be retained by a mental health receiving facility,
  247  an addictions receiving facility, or a detoxification facility,
  248  or involuntarily placed in a treatment facility upon the
  249  recommendation of the administrator of the receiving facility
  250  where the individual patient has been examined and after
  251  adherence to the notice and hearing procedures provided in s.
  252  394.4599. The recommendation must be supported by the opinion of
  253  a psychiatrist and the second opinion of a clinical psychologist
  254  or another psychiatrist, both of whom have personally examined
  255  the individual patient within the preceding 72 hours, that the
  256  criteria for involuntary inpatient placement are met. However,
  257  in a county that has a population of fewer than 50,000, if the
  258  administrator certifies that a psychiatrist or clinical
  259  psychologist is not available to provide the second opinion, the
  260  second opinion may be provided by a licensed physician who has
  261  postgraduate training and experience in diagnosis and treatment
  262  of mental and nervous disorders or by a psychiatric nurse. If
  263  the petition seeks placement for treatment of substance abuse
  264  impairment only and the individual is examined by an addictions
  265  receiving facility or detoxification facility, the first opinion
  266  may be provided by a physician, and the second opinion may be
  267  provided by a qualified professional with respect to substance
  268  abuse treatment. Any second opinion authorized in this
  269  subsection may be conducted through a face-to-face examination,
  270  in person or by electronic means. Such recommendation must shall
  271  be entered on an involuntary inpatient placement certificate
  272  that authorizes the receiving facility to retain the individual
  273  being held patient pending transfer to a treatment facility or
  274  completion of a hearing.
  275         (3) PETITION FOR INVOLUNTARY INPATIENT PLACEMENT.—The
  276  administrator of the mental health facility, addictions
  277  receiving facility, or detoxification facility shall file a
  278  petition for involuntary inpatient placement in the court in the
  279  county where the individual patient is located. Upon filing, the
  280  clerk of the court shall provide copies to the department, the
  281  individual patient, the individual’s patient’s guardian,
  282  guardian advocate, health care surrogate or proxy, or
  283  representative, and the state attorney and public defender of
  284  the judicial circuit in which the individual patient is located.
  285  A No fee may not shall be charged for the filing of a petition
  286  under this subsection.
  287         (4) APPOINTMENT OF COUNSEL.—Within 1 court working day
  288  after the filing of a petition for involuntary inpatient
  289  placement, the court shall appoint the public defender to
  290  represent the individual person who is the subject of the
  291  petition, unless the individual person is otherwise represented
  292  by counsel. The clerk of the court shall immediately notify the
  293  public defender of such appointment. Any attorney representing
  294  the individual patient shall have access to the individual
  295  patient, witnesses, and records relevant to the presentation of
  296  the individual’s patient’s case and shall represent the
  297  interests of the individual patient, regardless of the source of
  298  payment to the attorney.
  299         (a) An attorney representing an individual in proceedings
  300  under this part shall advocate the individual’s expressed
  301  desires and must be present and actively participate in all
  302  hearings on involuntary placement.
  303         (b) The state attorney for the judicial circuit in which
  304  the individual is located shall represent the state rather than
  305  the petitioning facility administrator as the real party in
  306  interest in the proceeding. The state attorney shall have access
  307  to the individual’s clinical record and witnesses and shall
  308  independently evaluate the allegations set forth in