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STATUTORY COMPILATION USED: Current through the 2004 session of the legislature

Analysis Completed: 07/12/04

• When not the subject of a pending commitment action, what are the prerequisites for an individual to receive voluntarily treatment?

An adult subject must show evidence of mental illness, be competent to provide express and informed consent, and be suitable for treatment. A subject who is not yet an adult must have an application submitted by his/her guardian and there must be a hearing to verify the voluntariness of the consent (meaning the consent of the minor).

If the subject is 60 years of age or older and a transfer is sought from another program of care (i.e. nursing home, assisted living facility, adult day care center, etc.), or if the subject’s decisions are being made by a health care surrogate or proxy, there must be an assessment of the ability to give express and informed consent (meaning the consent of the patient).

A person who has been adjudicated incapacitated may not be admitted to treatment as a voluntary patient unless the adjudication is removed. A health care surrogate or proxy of a voluntary patient may not consent to the provision of mental health treatment for the patient.

The admitting physician must note on the patient’s chart within 24 hours of admission that the patient is able to give express and informed consent for admission. If the patient is not capable of such consent, the facility shall either discharge the patient or transfer the patient to involuntary status.

Sec. 394.462

• Conditions necessary for emergency treatment.

There must be reason to believe that the subject is mentally ill, and because of the mental illness: either (1) The subject has refused voluntary examination, after conscientious explanation and disclosure of the purpose of the examination, or (2) The subject is unable to determine for him(her)self whether examination is necessary; AND

• Without care or treatment, the subject is likely to suffer from neglect or refuse care for him(her)self; such care or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or
• There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to him(her)self or others in the near future, as evidenced by recent behavior.

Sec. 394.463

• Is mental illness/disorder defined?

“Mental Illness” means an impairment of the emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with a person’s ability to meet the ordinary demands of living, regardless of etiology. The term does not include retardation or developmental disability, intoxication, or conditions manifested only by antisocial behavior or substance abuse impairment. Sec. 394.455 (18)

• Maximum duration of emergency treatment before a judicial hearing must be held.

The involuntary examination is to be completed within 72 hours. After the examination the subject will either be discharged, admitted for voluntary treatment, or be subject to a petition for involuntary placement. Such a petition is to be filed within the 72 hour examination period, but the time for the filing of a petition is extended to the next working day if the examination period ends on a weekend or holiday.

Sec. 394.463

A court hearing is to be held within five (5) days of the filing of the petition. The subject of the proceedings is entitled to at least one continuance for a period of up to four (4) weeks.

Sec. 394.467(5) & (6)

• Can a potential committee avoid a hearing determination by opting to voluntarily undergo treatment and, if so, what is the minimum time he or she must then spend in treatment?

Yes, provided the subject is determined to be able to give express and informed consent. There will be no court hearing so long as the subject voluntarily remains in treatment. The subject shall be released from treatment when he/she improves to the point that treatment is no longer desirable. If the subject wants to leave voluntary treatment without such a determination, the subject shall be discharged within 24 hours of a request for release, unless a petition for involuntary placement is filed. This 24 hour period may be extended by up to 2 days (exclusive of weekends and holidays) by the treatment facility for discharge planning.

Sec. 394.4625(2) & (5)

• Are there any requirements that a potential committee be capable of deciding to voluntarily undergo treatment?

Yes. The statute requires an explicit finding by the admitting physician that the subject is able to give express and informed consent. If this finding cannot be made there can be no voluntary admission. The finding must be noted in the patient’s clinical record within 24 hours of the admission.

Sec. 394.4625(1)(a) & (b) & (f)

• Who may petition for an individual to receive mandatory inpatient care?

Only the administrator of a facility may file a petition for involuntary inpatient or outpatient placement. This assumes a predicate voluntary admission or involuntary examination.

An involuntary examination may be initiated by: (1) an ex parte court order (there is no expressed limitation of possible petitioners for the order); (2) a law enforcement officer’s delivery of a subject to a receiving facility for examination; or (3) a physician, clinical psychologist, psychiatric nurse, or clinical social worker who has examined the subject within 48 hours.

Sec’s 394.467(3), 394.463(2)

A petition for involuntary inpatient placement may be filed with the court by a receiving facility administrator.

Sec. 394.467

A petition for involuntary outpatient placement may be filed with the court by a receiving facility administrator or a treatment facility (state hospital) administrator.

Sec. 394.4655(3)(a)

• Required elements of a petition.

A petition must be supported by the opinion of a psychiatrist, and the second opinion of a clinical psychologist or another psychiatrist, both of whom have examined the subject within the last 72 hours. If the county of commitment has < 50,000 population, a licensed physician or psychiatric nurse may suffice if there are no clinical psychologists or psychiatrists available for the second opinion.

The petition must be filed in the county where the patient is located. Notice must be provided to: (1) the patient (orally and in writing), and (2) all representatives of the patient (guardian, guardian advocate, attorney, surrogate, etc.). The notice must advise the patient of the time and place of a hearing, his/her rights to counsel, venue change, and independent expert examination.

Sec’s. 394.4599(2), 394.4655, 394.467(2)

• Is there a penalty for filing an unfounded petition?

None stated in the Florida Mental Health Act. However, the recommended form for petition and affidavit seeking an ex parte order for involuntary examination states that the petitioners statement is sworn under oath subject to penalty for perjury and other penalties under the statutes of the State of Florida.

• Participation of other individuals in commitment hearing (i.e. notice, a right to be heard or standing for family members, legal guardians, doctors, etc.).

For involuntary inpatient placement: See # 8 above re: notices. There is no standing for family members in an involuntary inpatient placement hearing. The state attorney for the circuit in which the patient is located shall represent the state, rather than the petitioning facility administrator, as the real party in interest in the proceeding.

The patient does have the right to an independent expert examination. If the patient cannot afford such an examination, the court shall provide for one.

Sec. 394.467(6)

For involuntary outpatient placement: “The court shall allow testimony from individuals, including family members, deemed by the court to be relevant under state law, regarding the person’s prior history and how that prior history relates to the person’s current condition.”

Sec. 394.4655(6)

• Length of initial term of mandatory inpatient care.

Involuntary inpatient or outpatient placement is ordered for a period that shall not exceed 6 months. This placement may be renewed an unlimited number of times.

Sec. 394.4655, Sec. 394.467(6)

• Conditions necessary for judicially ordered inpatient care (exact wording of key portions of applicable statute desired).

The criteria for involuntary placement is as follows:

Criteria.- A person may be involuntarily placed for treatment upon a finding of the court by clear and convincing evidence that:

(a) He or she is mentally ill and because of his or her mental illness:

1.a. He or she has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment; or

b. He or she is unable to determine for himself or herself whether placement is necessary; AND

2. a. He or she is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect of refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or

• There is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; and

(b) All available less restrictive treatment alternatives which would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.

Sec. 394.467(1)

• Evidentiary standard under which inpatient care criteria are judged (two most common are “beyond a reasonable doubt” and “clear and convincing evidence”).

Clear and convincing evidence

• Is there a least restrictive treatment requirement?

Yes. See # 12 above.

Sec. 394.467(1)

• Is there a confidentiality exception for family members of committees and/or individuals undergoing emergency evaluations?

Each facility must permit immediate access to any patient, subject to the patient’s right to deny or withdraw consent at any time, by the patient’s family members, guardian, guardian advocate, representative, human rights advocacy committee, or attorney, unless such access would be detrimental to the patient.

At the time that a patient is admitted for involuntary examination or placement, the patient shall be asked to designate a representative if the patient does not already have a guardian. If the patient is unable or unwilling to designate a representative, the facility shall select a representative, and the facilities selection shall be from the following list in the order of listing (unless there is good cause documented in the patient’s clinical record to depart from the list): (1) present health care surrogate, (2) past health care surrogate, (3) spouse, (4) adult child, (5) parent, (6) adult next of kin, (7) an adult friend, (8) the appropriate human rights advocacy committee.

The designated representative is entitled to notice of petitions and proceedings. There is no standing for access to medical records for the representative.

The act does provide, though, that it is not intended to prohibit the parent or next of kin of a person who is held in or treated under a mental health facility or program from requesting and receiving information limited to a summary of that person’s treatment plan and the current physical and mental condition. Release of such information shall be in accordance with the code of ethics of the profession involved.

There is a right of access to any patient and the legal records of any patient by members of the Human Rights Advocacy Committee.

Sec’s. 394.459(5), 394.4595, 394.4597 & 394.4615

• Are advance directives or durable powers of attorney addressed and, if so, in what way?

Yes. A health care surrogate is a likely representative for the patient. See # 15 above.

If a patient is found by the court to be incompetent to consent to treatment and if the patient has not been adjudicated incapacitated (with the appointment of a guardian), the court shall appoint a guardian advocate to express consent to treatment on behalf of the patient. The guardian advocate must have a certain amount of training. The court is to give preference to a health care surrogate named by the patient as the guardian advocate.

As noted in #1 above, a health care surrogate or proxy of a voluntary patient may not consent to the provision of mental health treatment for the patient.

When a patient is ordered to undergo involuntary placement, the receiving facility shall provide a copy of documentation of the patient’s mental illness to the administrator of a treatment facility, and this documentation shall include any advanced directives made by the patient.

Sec’s 394.4597, 394.4598(5), 394.462, & 394.467(6)(e)

• Is there a separate proceeding necessary to abrogate a committee’s right to refuse treatment?

No. This issue is dealt with at the time of the hearing for involuntary placement.

Sec. 394.467(d)

• Does the treating hospital and/or physician have discretion to release individuals before the end of their mandatory inpatient care periods.

Yes. In fact a treating facility has a duty to discharge a patient who no longer meets the criteria for involuntary placement, unless the patient has transferred to voluntary status.

Sec. 394.467(b) & 394.469

• Individual(s) who may decide to initiate new periods of mandatory treatment.

Only the administrator of a facility may file a petition for involuntary placement. See # 7

Sec’s. 394.4655(7), 394.467(7)

• Type of forum that decides on need for extended treatment (normally either judicial or administrative).

Administrative hearings with a hearing examiner shall be the process for petitions for continued involuntary inpatient placement; judicial hearings are used to determine the need for continued involuntary outpatient placement.

Sec’s. 394.4655(7), 394.467(7)

• Participation of other individuals in the extension hearing (i.e. notice, a right to be heard and/or right to counsel for family members, legal guardians, doctors, etc.).

The patient has the same rights as at the original petition for involuntary inpatient or outpatient placement.

Sec’s. 394.4655, 394.467(7)(b)

• Maximum length of subsequent mandated inpatient care (and of any possible subsequent periods).

Each successive period of treatment may be for a period of time up to 6 months. There is no limit as to how many successive petitions there may be.

Sec’s. 394.4655, 394.467(7)(d)

• Alternative(s) to inpatient treatment (i.e. conditional release, outpatient commitment, etc.) and conditions necessary for a court to order placement in alternative(s) (if more than one form, specify for each).

The Florida statute makes a strong statement in support of the least restrictive intervention possible keeping in mind the individual needs of the patient. The Baker Act was reformed in the 2004 legislative session so that involuntary outpatient placement will be available starting January 1, 2005. A receiving facility administrator may file a petition for IOP if a person is examined at a receiving facility and is determined to meet the nine part IOP criteria.  A treatment facility administrator may initiate a petition for IOP if a person is at a treatment facility (state hospital) and no longer needs inpatient placement, but could benefit from involuntary outpatient placement, and is determined to meet the nine part IOP criteria.  The petition is filed in circuit court and must include a proposed treatment plan for the individual, along with a certification from the community service provider that the services in the individual’s proposed treatment plan are available.  If the services in the individual’s proposed treatment plan are not available, the petition cannot be filed.

A person can be considered for IOP if all nine parts of the following critieria are met:

(a) The person is 18 years of age or older;
(b) The person has a mental illness;
(c) The person is unlikely to survive safely in the community without supervision, based on a clinical determination;
(d) The person has a history of lack of compliance with treatment for mental illness;
(e) The person has:

1. At least twice within the immediately preceding 36 months been involuntarily admitted to a receiving facility or treatment facility as defined in s. 394.455, or has received mental health services in a forensic or correctional facility. The 36-month period does not include any period during which the person was admitted or incarcerated; or
2. Engaged in one or more acts of serious violent behavior toward self or others, or attempts at serious bodily harm to himself or herself or others, within the preceding 36 months;

(f) The person is, as a result of his or her mental illness, unlikely to voluntarily participate in the recommended treatment plan and either he or she has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment or he or she is unable to determine for himself or herself whether placement is necessary;
(g) In view of the person’s treatment history and current behavior, the person is in need of involuntary outpatient placement in order to prevent a relapse or deterioration that would be likely to result in serious bodily harm to himself or herself or others, or a substantial harm to his or her well-being as set forth in s. 394.463(1);
(h) It is likely that the person will benefit from involuntary outpatient placement; and
(i) All available less restrictive alternatives that would offer an opportunity for improvement of his or her condition have been judged to be inappropriate or unavailable.

• Maximum duration of alternative(s) to mandated inpatient care.

6 months.

• Procedure necessary to transfer patient from outpatient to inpatient care.

If there is an involuntary outpatient placement order which is not being followed and in the clinical judgment of a physician the person might meet the criteria for involuntary examination, the person can be brought to a receiving facility to determine whether involuntary outpatient placement is still the least restrictive treatment alternative for that person.

• Describe any procedures for conservatorship, guardianship, etc., which are applicable to the mentally ill.

See #16 above regarding guardian advocates.

• Other (may include insights into state’s mental health system, judicial interpretation of mental health code, or known movements for statutory reform).

The Florida Mental Health Law has an extensive section setting forth the rights of patients. These rights are broken down into the following subsections:

• Right to individual dignity
• Right to treatment
• Right to express and informed patient consent
• Quality of treatment
• Communication, abuse, and visits-
• Care and custody of personal effects of patients
• Voting in public elections
• Habeas Corpus
• Violations
• Liability for violations
• Right to participate in treatment and discharge planning
• Posting of notice of rights of patients

Sec. 394.459

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