Fla. Stat. § 394.467

Current through the 2024 Legislative Session

Section 394.467 - Involuntary inpatient placement and involuntary outpatient services

-394.467-1 Section 11, ch. 2024-245, purported to amend s. 394.467 but failed to publish paragraphs (7)(f) and (g), which were intended to be stricken. Similar material now appears in paragraph (11)(k).

(1) DEFINITIONS.-As used in this section, the term:

(a) "Court" means a circuit court or, for commitments only to involuntary outpatient services as defined in s. 394.4655, a county court.

(b) "Involuntary inpatient placement" means placement in a secure receiving or treatment facility providing stabilization and treatment services to a person 18 years of age or older who does not voluntarily consent to services under this chapter, or a minor who does not voluntarily assent to services under this chapter.

(c) "Involuntary outpatient services" means services provided in the community to a person who does not voluntarily consent to or participate in services under this chapter.

(d) "Services plan" means an individualized plan detailing the recommended behavioral health services and supports based on a thorough assessment of the needs of the patient, to safeguard and enhance the patient's health and well-being in the community.

(2) CRITERIA FOR INVOLUNTARY SERVICES.-A person may be ordered by a court to be provided involuntary services upon a finding of the court, by clear and convincing evidence, that the person meets the following criteria:

(a)Involuntary outpatient services.-A person ordered to involuntary outpatient services must meet the following criteria:

1. The person has a mental illness and, because of his or her mental illness:

a. He or she is unlikely to voluntarily participate in a recommended services plan and has refused voluntary services for treatment after sufficient and conscientious explanation and disclosure of why the services are necessary; or

b. Is unable to determine for himself or herself whether services are necessary.

2. The person is unlikely to survive safely in the community without supervision, based on a clinical determination.

3. The person has a history of lack of compliance with treatment for mental illness.

4. In view of the person's treatment history and current behavior, the person is in need of involuntary outpatient services 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).

5. It is likely that the person will benefit from involuntary outpatient services.

6. All available less restrictive alternatives that would offer an opportunity for improvement of the person's condition have been deemed to be inappropriate or unavailable.

(b)Involuntary inpatient placement.-A person ordered to involuntary inpatient placement must meet the following criteria:

1. The person has a mental illness and, because of his or her mental illness:

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

b. Is unable to determine for himself or herself whether inpatient placement is necessary; and

2.

a. He or she is incapable of surviving alone or with the help of willing, able, and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or 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

b. Without treatment, there is a substantial likelihood that in the near future the person will inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting to cause, or threatening to cause such harm; and

3. All available less restrictive treatment alternatives that would offer an opportunity for improvement of the person's condition have been deemed to be inappropriate or unavailable.

(3) RECOMMENDATION FOR INVOLUNTARY SERVICES AND TREATMENT.-A patient may be recommended for involuntary inpatient placement, involuntary outpatient services, or a combination of both.

(a) A patient may be retained by the facility that examined the patient for involuntary services until the completion of the patient's court hearing upon the recommendation of the administrator of the facility where the patient has been examined and after adherence to the notice and hearing procedures provided in s. 394.4599. However, if a patient who is being recommended for only involuntary outpatient services has been stabilized and no longer meets the criteria for involuntary examination pursuant to s. 394.463(1), the patient must be released from the facility while awaiting the hearing for involuntary outpatient services.

(b) The recommendation that the involuntary services criteria reasonably appear to have been met must be supported by the opinion of a psychiatrist and the second opinion of a clinical psychologist with at least 3 years of clinical experience, another psychiatrist, or a psychiatric nurse practicing within the framework of an established protocol with a psychiatrist, who personally examined the patient. For involuntary inpatient placement, the patient must have been examined within the preceding 72 hours. For involuntary outpatient services, the patient must have been examined within the preceding 30 days.

(c) If a psychiatrist, a clinical psychologist with at least 3 years of clinical experience, or a psychiatric nurse practicing within the framework of an established protocol with a psychiatrist is not available to provide a second opinion, the petitioner must certify as such and the second opinion may be provided by a licensed physician who has postgraduate training and experience in diagnosis and treatment of mental illness, a clinical psychologist with less than 3 years of clinical experience, or a psychiatric nurse.

(d) Any opinion authorized in this subsection may be conducted through a face-to-face or in-person examination, or by electronic means. Recommendations for involuntary services must be entered on a petition for involuntary services, which shall be made a part of the patient's clinical record. The filing of the petition authorizes the facility to retain the patient pending transfer to a treatment facility or completion of a hearing.

(4) PETITION FOR INVOLUNTARY SERVICES.-

(a) A petition for involuntary services may be filed by:

1. The administrator of a receiving facility;

2. The administrator of a treatment facility; or

3. A service provider who is treating the person being petitioned.

(b) A petition for involuntary inpatient placement, or inpatient placement followed by outpatient services, must be filed in the court in the county where the patient is located.

(c) A petition for involuntary outpatient services must be filed in the county where the patient is located, unless the patient is being placed from a state treatment facility, in which case the petition must be filed in the county where the patient will reside.

(d)

1. The petitioner must state in the petition:

a. Whether the petitioner is recommending inpatient placement, outpatient services, or both.

b. The length of time recommended for each type of involuntary services.

c. The reasons for the recommendation.

2. If recommending involuntary outpatient services, or a combination of involuntary inpatient placement and outpatient services, the petitioner must identify the service provider that has agreed to provide services for the person under an order for involuntary outpatient services, unless he or she is otherwise participating in outpatient psychiatric treatment and is not in need of public financing for that treatment, in which case the individual, if eligible, may be ordered to involuntary treatment pursuant to the existing psychiatric treatment relationship.

3. When recommending an order to involuntary outpatient services, the petitioner shall prepare a written proposed services plan in consultation with the patient or the patient's guardian advocate, if appointed, for the court's consideration for inclusion in the involuntary outpatient services order that addresses the nature and extent of the mental illness and any co-occurring substance use disorder that necessitate involuntary outpatient services. The services plan must specify the likely needed level of care, including the use of medication, and anticipated discharge criteria for terminating involuntary outpatient services. The services in the plan must be deemed clinically appropriate by a physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker who consults with, or is employed or contracted by, the service provider. If the services in the proposed services plan are not available, the petitioner may not file the petition. The petitioner must notify the managing entity if the requested services are not available. The managing entity must document such efforts to obtain the requested service. The service provider who accepts the patient for involuntary outpatient services is responsible for the development of a comprehensive treatment plan.

(e) Each required criterion for the recommended involuntary services must be alleged and substantiated in the petition. A copy of the recommended services plan, if applicable, must be attached to the petition. The court must accept petitions and other documentation with electronic signatures.

(f) When the petition has been filed, the clerk of the court shall provide copies of the petition and the recommended services plan, if applicable, to the department, the managing entity, the patient, the patient's guardian or representative, the state attorney, and the public defender or the patient's private counsel. A fee may not be charged for the filing of a petition under this subsection.

(5) APPOINTMENT OF COUNSEL.-Within 1 court working day after the filing of a petition for involuntary services, the court shall appoint the public defender to represent the person who is the subject of the petition, unless the person is otherwise represented by counsel or ineligible. The clerk of the court shall immediately notify the public defender of such appointment. The public defender shall represent the person until the petition is dismissed, the court order expires, the patient is discharged from involuntary services, or the public defender is otherwise discharged by the court. Any attorney who represents the patient shall be provided access to the patient, witnesses, and records relevant to the presentation of the patient's case and shall represent the interests of the patient, regardless of the source of payment to the attorney.

(6) CONTINUANCE OF HEARING.-The patient and the state are independently entitled to seek a continuance of the hearing. The patient shall be granted a request for an initial continuance for up to 7 calendar days. The patient may request additional continuances for up to 21 calendar days in total, which shall only be granted by a showing of good cause and due diligence by the patient and the patient's counsel before requesting the continuance. The state may request one continuance of up to 7 calendar days, which shall only be granted by a showing of good cause and due diligence by the state before requesting the continuance. The state's failure to timely review any readily available document or failure to attempt to contact a known witness does not warrant a continuance.

(7) HEARING ON INVOLUNTARY SERVICES.-

(a)

1. The court shall hold a hearing on the involuntary services petition within 5 court working days after the filing of the petition, unless a continuance is granted.

2. The court must hold any hearing on involuntary outpatient services in the county where the petition is filed. A hearing on involuntary inpatient placement, or a combination of involuntary inpatient placement and involuntary outpatient services, must be held in the county or the facility, as appropriate, where the patient is located, except for good cause documented in the court file.

3. A hearing on involuntary services must be as convenient to the patient as is consistent with orderly procedure, and shall be conducted in physical settings not likely to be injurious to the patient's condition. If the court finds that the patient's attendance at the hearing is not consistent with the best interests of the patient, or the patient knowingly, intelligently, and voluntarily waives his or her right to be present, and if the patient's counsel does not object, the court may waive the attendance of the patient from all or any portion of the hearing. The state attorney for the circuit in which the patient is located shall represent the state, rather than the petitioner, as the real party in interest in the proceeding. The facility or service provider shall make the patient's clinical records available to the state attorney and the patient's attorney so that the state can evaluate and prepare its case. However, these records shall remain confidential, and the state attorney may not use any record obtained under this part for criminal investigation or prosecution purposes, or for any purpose other than the patient's civil commitment under this chapter.

(b) The court may appoint a magistrate to preside at the hearing. The state attorney and witnesses may remotely attend and, as appropriate, testify at the hearing under oath via audio-video teleconference. A witness intending to attend remotely and testify must provide the parties with all relevant documents by the close of business on the day before the hearing. One of the professionals who executed the involuntary services certificate shall be a witness. The patient and the patient's guardian or representative shall be informed by the court of the right to an independent expert examination. If the patient cannot afford such an examination, the court shall ensure that one is provided, as otherwise provided for by law. The independent expert's report is confidential and not discoverable, unless the expert is to be called as a witness for the patient at the hearing. The court shall allow testimony from persons, 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. The testimony in the hearing must be given under oath, and the proceedings must be recorded. The patient may refuse to testify at the hearing.

(c) At the hearing, the court shall consider testimony and evidence regarding the patient's competence to consent to services and treatment. If the court finds that the patient is incompetent to consent to treatment, it must appoint a guardian advocate as provided in s. 394.4598.

(8) ORDERS OF THE COURT.-

(a)

1. If the court concludes that the patient meets the criteria for involuntary services, the court may order a patient to involuntary inpatient placement, involuntary outpatient services, or a combination of involuntary services depending on the criteria met and which type of involuntary services best meet the needs of the patient. However, if the court orders the patient to involuntary outpatient services, the court may not order the department or the service provider to provide services if the program or service is not available in the patient's local community, if there is no space available in the program or service for the patient, or if funding is not available for the program or service. The petitioner must notify the managing entity if the requested services are not available. The managing entity must document such efforts to obtain the requested services. A copy of the order must be sent to the managing entity by the service provider within 1 working day after it is received from the court.

2. The order must specify the nature and extent of the patient's mental illness and the reasons the appropriate involuntary services criteria are satisfied.

3. An order for only involuntary outpatient services, involuntary inpatient placement, or of a combination of involuntary services may be for a period of up to 6 months.

4. An order for a combination of involuntary services must specify the length of time the patient shall be ordered for involuntary inpatient placement and involuntary outpatient services.

5. The order of the court and the patient's services plan, if applicable, must be made part of the patient's clinical record.

(b) If the court orders a patient into involuntary inpatient placement, the court may order that the patient be retained at a receiving facility while awaiting transfer to a treatment facility; or, if the patient is at a treatment facility, that the patient be retained there or be treated at any other appropriate facility; or that the patient receive services on an involuntary basis for up to 6 months. The court may not order an individual with a developmental disability as defined in s. 393.063 or a traumatic brain injury or dementia who lacks a co-occurring mental illness to be involuntarily placed in a state treatment facility.

(c) If at any time before the conclusion of a hearing on involuntary services, it appears to the court that the patient instead meets the criteria for involuntary admission or treatment pursuant to s. 397.675, then the court may order the person to be admitted for involuntary assessment pursuant to s. 397.6757. Thereafter, all proceedings are governed by chapter 397.

(d) The administrator of the petitioning facility or the designated department representative shall provide a copy of the court order and adequate documentation of a patient's mental illness to the service provider for involuntary outpatient services or the administrator of a treatment facility if the patient is ordered for involuntary inpatient placement. The documentation must include any advance directives made by the patient, a psychiatric evaluation of the patient, and any evaluations of the patient performed by a psychiatric nurse, a clinical psychologist, a marriage and family therapist, a mental health counselor, or a clinical social worker. The administrator of a treatment facility may refuse admission to any patient directed to its facilities on an involuntary basis, whether by civil or criminal court order, who is not accompanied by adequate orders and documentation.

(e) In cases resulting in an order for involuntary outpatient services, the court shall retain jurisdiction over the case and the parties for entry of further orders as circumstances may require, including, but not limited to, monitoring compliance with treatment or ordering inpatient treatment to stabilize a person who decompensates while under court-ordered outpatient treatment and meets the commitment criteria of this section.

(9) SERVICES PLAN MODIFICATION.-After the order for involuntary outpatient services is issued, the service provider and the patient may modify the services plan as provided by department rule.

(10) NONCOMPLIANCE WITH INVOLUNTARY OUTPATIENT SERVICES.-

(a) If, in the clinical judgment of a physician, a psychiatrist, a clinical psychologist with at least 3 years of clinical experience, or a psychiatric nurse practicing within the framework of an established protocol with a psychiatrist, a patient receiving involuntary outpatient services has failed or has refused to comply with the services plan ordered by the court, and efforts were made to solicit compliance, the service provider must report such noncompliance to the court. The involuntary outpatient services order shall remain in effect unless the service provider determines that the patient no longer meets the criteria for involuntary outpatient services or until the order expires. The service provider must determine whether modifications should be made to the existing services plan and must attempt to continue to engage the patient in treatment. For any material modification of the services plan to which the patient or the patient's guardian advocate, if applicable, agrees, the service provider shall send notice of the modification to the court. Any material modifications of the services plan which are contested by the patient or the patient's guardian advocate, if applicable, must be approved or disapproved by the court.

(b) A county court may not use incarceration as a sanction for noncompliance with the services plan, but it may order an individual evaluated for possible inpatient placement if there is significant, or are multiple instances of, noncompliance.

(11) PROCEDURE FOR CONTINUED INVOLUNTARY SERVICES.-

(a) A petition for continued involuntary services must be filed if the patient continues to meets the criteria for involuntary services.

(b)

1. If a patient receiving involuntary outpatient services continues to meet the criteria for involuntary outpatient services, the service provider must file in the court that issued the initial order for involuntary outpatient services a petition for continued involuntary outpatient services.

2. If a patient in involuntary inpatient placement continues to meet the criteria for involuntary services and is being treated at a receiving facility, the administrator must, before the expiration of the period the receiving facility is authorized to retain the patient, file in the court that issued the initial order for involuntary inpatient placement, a petition requesting authorization for continued involuntary services. The administrator may petition for inpatient or outpatient services.

3. If a patient in inpatient placement continues to meet the criteria for involuntary services and is being treated at a treatment facility, the administrator must, before expiration of the period the treatment facility is authorized to retain the patient, file a petition requesting authorization for continued involuntary services. The administrator may petition for inpatient or outpatient services. Hearings on petitions for continued involuntary services of an individual placed at any treatment facility are administrative hearings and must be conducted in accordance with s. 120.57(1), except that any order entered by the judge is final and subject to judicial review in accordance with s. 120.68. Orders concerning patients committed after successfully pleading not guilty by reason of insanity are governed by s. 916.15.

4. The court shall immediately schedule a hearing on the petition to be held within 15 days after the petition is filed.

5. The existing involuntary services order shall remain in effect until disposition on the petition for continued involuntary services.

(c) The petition must be accompanied by a statement from the patient's physician, psychiatrist, psychiatric nurse, or clinical psychologist justifying the request, a brief description of the patient's treatment during the time he or she was receiving involuntary services, and an individualized plan of continued treatment developed in consultation with the patient or the patient's guardian advocate, if applicable. If the petition is for involuntary outpatient services, it must comply with the requirements of subparagraph (4)(d)3. When the petition has been filed, the clerk of the court shall provide copies of the petition and the individualized plan of continued services to the department, the patient, the patient's guardian advocate, the state attorney, and the patient's private counsel or the public defender.

(d) The court shall appoint counsel to represent the person who is the subject of the petition for continued involuntary services in accordance with the provisions set forth in subsection (5), unless the person is otherwise represented by counsel or ineligible.

(e) Hearings on petitions for continued involuntary outpatient services must be before the court that issued the order for involuntary outpatient services. However, the patient and the patient's attorney may agree to a period of continued outpatient services without a court hearing.

(f) Hearings on petitions for continued involuntary inpatient placement in receiving facilities, or involuntary outpatient services following involuntary inpatient services, must be held in the county or the facility, as appropriate, where the patient is located.

(g) The court may appoint a magistrate to preside at the hearing. The procedures for obtaining an order pursuant to this paragraph must meet the requirements of subsection (7).

(h) Notice of the hearing must be provided as set forth in s. 394.4599.

(i) If a patient's attendance at the hearing is voluntarily waived, the judge must determine that the patient knowingly, intelligently, and voluntarily waived his or her right to be present, before waiving the presence of the patient from all or a portion of the hearing. Alternatively, if at the hearing the judge finds that attendance at the hearing is not consistent with the best interests of the patient, the judge may waive the presence of the patient from all or any portion of the hearing, unless the patient, through counsel, objects to the waiver of presence. The testimony in the hearing must be under oath, and the proceedings must be recorded.

(j) If at a hearing it is shown that the patient continues to meet the criteria for involuntary services, the court shall issue an order for continued involuntary outpatient services, involuntary inpatient placement, or a combination of involuntary services for up to 6 months. The same procedure shall be repeated before the expiration of each additional period the patient is retained.

(k) If the patient has been ordered to undergo involuntary services and has previously been found incompetent to consent to treatment, the court shall consider testimony and evidence regarding the patient's competence. If the patient's competency to consent to treatment is restored, the discharge of the guardian advocate is governed by s. 394.4598. If the patient has been ordered to undergo involuntary inpatient placement only and the patient's competency to consent to treatment is restored, the administrative law judge may issue a recommended order, to the court that found the patient incompetent to consent to treatment, that the patient's competence be restored and that any guardian advocate previously appointed be discharged.

(l) If continued involuntary inpatient placement is necessary for a patient in involuntary inpatient placement who was admitted while serving a criminal sentence, but his or her sentence is about to expire, or for a minor involuntarily placed, but who is about to reach the age of 18, the administrator shall petition the administrative law judge for an order authorizing continued involuntary inpatient placement.

The procedure required in this subsection must be followed before the expiration of each additional period the patient is involuntarily receiving services.

(12) RETURN TO FACILITY.-If a patient has been ordered to undergo involuntary inpatient placement at a receiving or treatment facility under this part and leaves the facility without the administrator's authorization, the administrator may authorize a search for the patient and his or her return to the facility. The administrator may request the assistance of a law enforcement agency in this regard.

(13) DISCHARGE.-The patient shall be discharged upon expiration of the court order or at any time the patient no longer meets the criteria for involuntary services, unless the patient has transferred to voluntary status. Upon discharge, the service provider or facility shall send a certificate of discharge to the court.

Fla. Stat. § 394.467

s. 9, ch. 71-131; s. 8, ch. 73-133; ss. 3, 4, ch. 74-233; s. 1, ch. 75-305; s. 17, ch. 77-121; s. 205, ch. 77-147; s. 1, ch. 77-174; ss. 2, 8, ch. 77-312; s. 19, ch. 78-95; s. 1, ch. 78-197; s. 9, ch. 79-298; s. 2, ch. 79-336; ss. 2, 4, ch. 80-75; s. 12, ch. 82-212; s. 9, ch. 84-285; s. 28, ch. 85-167; s. 105, ch. 89-96; s. 70, ch. 90-271; s. 710, ch. 95-148; s. 18, ch. 96-169; s. 124, ch. 96-410; s.3, ch. 98-92; s.77, ch. 2004-11; s. 9, ch. 2004-385; s. 4, ch. 2006-171; s. 5, ch. 2009-38; s.2, ch. 2016-231; s.13, ch. 2016-241; s.21, ch. 2024-15; s.11, ch. 2024-245.

Amended by 2024 Fla. Laws, ch. 245,s 11, eff. 7/1/2024.

Amended by 2024 Fla. Laws, ch. 15,s 21, eff. 3/21/2024.

Amended by 2016 Fla. Laws, ch. 241, s 13, eff. 7/1/2016.

Amended by 2016 Fla. Laws, ch. 231, s 2, eff. 4/14/2016.