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Marchman Act
(Florida’s Substance Abuse Impairment Act)
General
Q. How do I obtain a copy of the Marchman Act Handbook?
The Marchman Act Handbook (2003) was never printed for distribution. Anyone can
download it from the DCF web site to a disk and keep the disk on hand for reference.
There is nothing copyrighted or proprietary about the material, so the disk can be sent to
a printer for reproduction. It is possible that someone might only want portions of the
Handbook, which is why it was prepared with each section in a separate file.
Q. Could you please provide me with the list of receiving facilities regarding the
Marchman Act?
As required by the Marchman Act [chapter 397.6744], DCF maintains a current list of
licensed facilities.
Q. Can the Marchman Act forms be changed or are the model forms mandated?
The Marchman Act forms are recommended forms – not mandatory. As long as the
user doesn’t make changes that are inconsistent with the law, addition of other
information or change in format is entirely discretionary.
Minors
Q. We had a 17 year old present to the ER for detox who said she didn’t know how
to contact her parents. She was with an adult partner. I know that for outpatient,
the age is under 16 for informed consent SA Treatment – would that also apply for
medical detox of a minor under 18?
You are correct that a person under the age of 18 can consent to voluntary substance
abuse services
397.601 Voluntary admissions.
(1)A person who wishes to enter treatment for substance abuse may apply to a
service provider for voluntary admission.
(2)Within the financial and space capabilities of the service provider, a person
must be admitted to treatment when sufficient evidence exists that the person is
impaired by substance abuse and the medical and behavioral conditions of the
person are not beyond the safe management capabilities of the service provider.
(3)The service provider must emphasize admission to the service component
that represents the least restrictive setting that is appropriate to the person’s
treatment needs.
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(4)(a)The disability of minority for persons under 18 years of age is
removed solely for the purpose of obtaining voluntary substance abuse
impairment services from a licensed service provider, and consent to such
services by a minor has the same force and effect as if executed by an
individual who has reached the age of majority. Such consent is not
subject to later disaffirmance based on minority.
(b)Except for purposes of law enforcement activities in connection with protective
custody, the disability of minority is not removed if there is an involuntary
admission for substance abuse services, in which case parental participation
may be required as the court finds appropriate.
Such services must be provided by a licensed service provider. This is defined as:
397.311 Definitions.
As used in this chapter, except part VIII, the term:
(33)“Service provider” or “provider” means a public agency, a private for-profit or
not-for-profit agency, a person who is a private practitioner, or a hospital
licensed under this chapter or exempt from licensure under this chapter.
397.405 Exemptions from licensure.
The following are exempt from the licensing provisions of this chapter:
(1) A hospital or hospital-based component licensed under chapter 395.
(5) A physician or physician assistant licensed under chapter 458 or chapter 459.
(6) A psychologist licensed under chapter 490.
(7) A social worker, marriage and family therapist, or mental health counselor
licensed under chapter 491.
(11)A facility licensed under s. 394.875 as a crisis stabilization unit.
The exemptions from licensure in this section do not apply to any service
provider that receives an appropriation, grant, or contract from the state to
operate as a service provider as defined in this chapter or to any substance
abuse program regulated pursuant to s. 397.406. Furthermore, this chapter may
not be construed to limit the practice of a physician or physician assistant
licensed under chapter 458 or chapter 459, a psychologist licensed under
chapter 490, a psychotherapist licensed under chapter 491, or an advanced
registered nurse practitioner licensed under part I of chapter 464, who provides
substance abuse treatment, so long as the physician, physician assistant,
psychologist, psychotherapist, or advanced registered nurse practitioner does not
represent to the public that he or she is a licensed service provider and does not
provide services to individuals pursuant to part V of this chapter. Failure to
comply with any requirement necessary to maintain an exempt status under this
section is a misdemeanor of the first degree, punishable as provided in s.
775.082 or s. 775.083.
Your hospital ED is an authorized service provider exempt from licensure under the
Marchman Act for substance abuse services. However, if the service is for medical
treatment and not for substance abuse treatment, a minor generally doesn’t have any
authority to provide consent for his/her own treatment, unless a court has emancipated
the minor from the parents. Other laws govern provision examination and treatment of
persons with emergency medical conditions and in circumstances in which a minor’s
legal guardian isn’t available. All of these circumstances are in covered in Appendix 1-
10 of the 2011 Baker Act Handbook.
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Involuntary Admissions – Marchman Act
Q. How is an involuntary admission under the Marchman Act initiated?
The Marchman Act offers four methods of initiating an involuntary admission. These
include:
Protective Custody by a law enforcement officer
An emergency admission with a certificate of a physician
An Alternative involuntary admission for a minor by the minor’s guardian
Court-ordered assessment
If the assessment conducted in accord with one of the above by a “Qualified
Professional” documents that the criteria is indeed met, a petition for involuntary
treatment can then be filed with the court.
Protective Custody – Law Enforcement
Q. Where can a law enforcement officer take a person under the involuntary
provisions of the Marchman Act?
Under Marchman Act Protective Custody initiated by law enforcement, the officer is only
permitted to take the person to home, hospital, or detox with the person's consent,
whichever the officer believes is the most appropriate setting for the person. If the
person doesn't give such consent, it is limited to hospital or detox, unless the person is
taken to jail. Other licensed substance abuse providers that are not licensed as detox
facilities, addiction receiving facilities (ARF), or hospitals wouldn’t be eligible to accept a
person under protective custody.
Any licensed hospital (general or specialty hospital) must accept any person brought to
its emergency department and conduct a medical screening. If found to have an
“emergency medical condition” even if only related to a psychiatric or substance abuse
emergency, the hospital ED must follow rigorous standards established by the federal
government under EMTALA before any transfer to another facility can take place.
Q. I am the Chief of Police at a VA Hospital. Can you define who is a “law
enforcement officer” under the Baker and Marchman Acts?
Florida law defines a law enforcement officer for purposes of the Baker Act and
Marchman Act as follows:
Baker Act: 394.455(16) "Law enforcement officer" means a law enforcement
officer as defined in s. 943.10.
Marchman Act: 97.311(17) "Law enforcement officer" means a law
enforcement officer as defined in s. 943.10(1).
Chapter 943.10, FS referenced in the above definitions reads as follows:
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943.10 Definitions; ss. 943.085-943.255.--The following words and phrases as
used in ss. 943.085-943.255 are defined as follows:
(1) "Law enforcement officer" means any person who is elected, appointed, or
employed full time by any municipality or the state or any political subdivision
thereof; who is vested with authority to bear arms and make arrests; and whose
primary responsibility is the prevention and detection of crime or the enforcement
of the penal, criminal, traffic, or highway laws of the state. This definition includes
all certified supervisory and command personnel whose duties include, in whole
or in part, the supervision, training, guidance, and management responsibilities of
full-time law enforcement officers, part-time law enforcement officers, or auxiliary
law enforcement officers but does not include support personnel employed by the
employing agency.
The Florida Attorney General Opinion Number: AGO 99-68, dated November 8, 1999,
regarding the Baker Act and federal law enforcement officers also applies. The AG
opinion simply said that a VA officer couldn’t initiate or provide primary transportation
of a person under the Baker Act to a receiving facility. While this AGO doesn’t
specifically mention the Marchman Act, one could assume the same opinion would apply
because state law defines a law enforcement officer the same in both the Baker Act and
the Marchman Act.
Even if a VA law enforcement officer can’t initiate an involuntary examination under the
Baker Act, either a circuit court judge or any number of mental health professionals are
also authorized to initiate instead. Just because the VA police can’t initiate doesn’t
mean all the other mental health professionals on the campus can’t initiate. The AG
Opinion also didn’t mention the secondary transfer of a person from a hospital setting
that has certain responsibilities under the federal EMTALA law.
The Marchman Act has some differing provisions governing involuntary admission.
Such involuntary admission for an adult can be initiated by a circuit court judge, an array
of folks as long as there is a certificate of a physician attached, or by a law enforcement
officer. A law enforcement officer is the only one who can initiate “protective custody”
and the officer may take the person in protective custody to home, a hospital, a detox
center or to jail – whichever the officer determines is most appropriate.
Q. As a law enforcement officer, I placed a man in "protective custody" under the
Marchman Act because he was substance impaired and otherwise meeting the
criteria under the law. He was transported to the hospital. Once the officer arrived
he was told that the person could not be accepted (he met the criteria) in under
the Marchman act without a court order. After phone calls back and forth the
individual was Baker Acted. Could you clarify?
It’s obvious that the hospital staff need training in the state’s Marchman Act as well as in
the federal EMTALA law.
With regard to the EMTALA law, a hospital must accept any person brought and conduct
a medical screening examination to determine if the person has an emergency medical
condition, which can be of a psychiatric or substance abuse nature even absent any
other medical conditions. Failure to comply has serious financial and administrative
consequences to the hospital if reported to AHCA.
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The state’s Marchman Act has a number of ways in which an involuntary admission to a
hospital can be initiated, only one of which is via a court order. The other ones are
through Protective Custody of a law enforcement officer or an Emergency Admission
with a physician’s certificate. It is unfortunate that the hospital staff failed to understand
this and as a result, put the officer through such a delay.
The Protective Custody provisions of the law are included in the following:
397, Part V, FS Involuntary Admission Procedures
A. General Provisions
B. Noncourt Involved Admissions: Protective Custody
C. Noncourt Involved Admissions; Emergency
D. Noncourt Involved Admissions; Alternative Involuntary Assessment for Minors
E. Court Involved Admissions, Civil Involuntary Proceedings; Generally
F. Court Involved Admissions; Involuntary Assessment; Stabilization
G. Court Involved Admissions; Involuntary Treatment
A. General Provisions
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary treatment,
and alternative involuntary assessment for minors, for purposes of assessment
and stabilization, and for involuntary treatment.
397.6751 Service provider responsibilities regarding involuntary admissions.
397.6752 Referral of involuntarily admitted client for voluntary treatment.
397.6758 Release of client from protective custody, emergency admission,
involuntary assessment, involuntary treatment, and alternative involuntary
assessment of a minor.
397.6759 Parental participation in treatment.
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary treatment,
and alternative involuntary assessment for minors, for purposes of assessment
and stabilization, and for involuntary treatment.--A person meets the criteria for
involuntary admission if there is good faith reason to believe the person is
substance abuse impaired and, because of such impairment:
(1) Has lost the power of self-control with respect to substance use; and either
(2)(a) Has inflicted, or threatened or attempted to inflict, or unless admitted is
likely to inflict, physical harm on himself or herself or another; or
(b) Is in need of substance abuse services and, by reason of substance abuse
impairment, his or her judgment has been so impaired that the person is
incapable of appreciating his or her need for such services and of making a
rational decision in regard thereto; however, mere refusal to receive such
services does not constitute evidence of lack of judgment with respect to his or
her need for such services.
397.677 Protective custody; circumstances justifying.--A law enforcement officer
may implement protective custody measures as specified in this part when a
minor or an adult who appears to meet the involuntary admission criteria in s.
397.675 is:
(1) Brought to the attention of law enforcement; or
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(2) In a public place.
397.6771 Protective custody with consent.--A person in circumstances which
justify protective custody, as described in s. 397.677, may consent to be assisted
by a law enforcement officer to his or her home, to a hospital, or to a licensed
detoxification or addictions receiving facility, whichever the officer determines is
most appropriate.
397.6772 Protective custody without consent.--
(1) If a person in circumstances which justify protective custody as described in
s. 397.677 fails or refuses to consent to assistance and a law enforcement officer
has determined that a hospital or a licensed detoxification or addictions receiving
facility is the most appropriate place for the person, the officer may, after giving
due consideration to the expressed wishes of the person:
(a) Take the person to a hospital or to a licensed detoxification or addictions
receiving facility against the person's will but without using unreasonable force; or
(b) In the case of an adult, detain the person for his or her own protection in any
municipal or county jail or other appropriate detention facility.
Such detention is not to be considered an arrest for any purpose, and no entry or
other record may be made to indicate that the person has been detained or
charged with any crime. The officer in charge of the detention facility must notify
the nearest appropriate licensed service provider within the first 8 hours after
detention that the person has been detained. It is the duty of the detention facility
to arrange, as necessary, for transportation of the person to an appropriate
licensed service provider with an available bed. Persons taken into protective
custody must be assessed by the attending physician within the 72-hour period
and without unnecessary delay, to determine the need for further services.
(2) The nearest relative of a minor in protective custody must be notified by the
law enforcement officer, as must the nearest relative of an adult, unless the adult
requests that there be no notification.
397.6773 Dispositional alternatives after protective custody.--
(1) A client who is in protective custody must be released by a qualified
professional when:
(a) The client no longer meets the involuntary admission criteria in s. 397.675(1);
(b) The 72-hour period has elapsed; or
(c) The client has consented to remain voluntarily at the licensed service
provider.
(2) A client may only be retained in protective custody beyond the 72-hour
period when a petition for involuntary assessment or treatment has been
initiated. The timely filing of the petition authorizes the service provider to retain
physical custody of the client pending further order of the court.
397.6774 Department to maintain lists of licensed facilities.--The department
shall provide each municipal and county public safety office with a list of licensed
hospitals, detoxification facilities, and addictions receiving facilities, including the
name, address, and phone number of, and the services offered by, the licensed
service provider.
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397.6775 Immunity from liability.--A law enforcement officer acting in good faith
pursuant to this part may not be held criminally or civilly liable for false
imprisonment.
Law enforcement officers are not expected to be diagnosticians. A person may be
severely intoxicated with or without a co-occurring serious mental illness. The officer
simply has to have reason to believe the person meets one law or the other. If the
clinical staff conducting an examination believe that a Marchman Act Protective Custody
isn’t appropriate because the person isn’t substance abuse impaired and instead believe
that a Baker Act involuntary examination is the more correct method, the hospital or
receiving facility clinical staff can remedy this – not the law enforcement officer.
The recommended Marchman Act Protective Custody form for law enforcement use is
posted on the DCF website. It is not a required form if different form has been locally
adopted. Your law enforcement agency should contact DCF to arrange training for
hospital staff to ensure they don’t expose themselves to liability while creating serious
problems for law enforcement personnel and consumers.
Q. The manual states that you can take someone to jail for detox and not arrest.
Is this correct?
Regarding placing persons on protective custody status in jail instead of a detox center,
the Marchman Act states the following:
397.677 Protective custody; circumstances justifying.--A law enforcement
officer may implement protective custody measures as specified in this part when
a minor or an adult who appears to meet the involuntary admission criteria in s.
397.675 is:
(1) Brought to the attention of law enforcement; or
(2) In a public place.
397.6771 Protective custody with consent.--A person in circumstances which
justify protective custody, as described in s. 397.677, may consent to be assisted
by a law enforcement officer to his or her home, to a hospital, or to a licensed
detoxification or addictions receiving facility, whichever the officer determines is
most appropriate.
397.6772 Protective custody without consent.--
(1) If a person in circumstances which justify protective custody as described in
s. 397.677 fails or refuses to consent to assistance and a law enforcement officer
has determined that a hospital or a licensed detoxification or addictions receiving
facility is the most appropriate place for the person, the officer may, after giving
due consideration to the expressed wishes of the person:
(a) Take the person to a hospital or to a licensed detoxification or addictions
receiving facility against the person's will but without using unreasonable force; or
(b) In the case of an adult, detain the person for his or her own protection in any
municipal or county jail or other appropriate detention facility. Such detention is
not to be considered an arrest for any purpose, and no entry or other record may
be made to indicate that the person has been detained or charged with any
crime. The officer in charge of the detention facility must notify the nearest
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appropriate licensed service provider within the first 8 hours after detention that
the person has been detained. It is the duty of the detention facility to arrange, as
necessary, for transportation of the person to an appropriate licensed service
provider with an available bed. Persons taken into protective custody must be
assessed by the attending physician within the 72-hour period and without
unnecessary delay, to determine the need for further services.
(2) The nearest relative of a minor in protective custody must be notified by the
law enforcement officer, as must the nearest relative of an adult, unless the adult
requests that there be no notification.
397.6773 Dispositional alternatives after protective custody.--
(1) A client who is in protective custody must be released by a qualified
professional when:
(a) The client no longer meets the involuntary admission criteria in s. 397.675(1);
(b) The 72-hour period has elapsed; or
(c) The client has consented to remain voluntarily at the licensed service
provider.
(2) A client may only be retained in protective custody beyond the 72-hour
period when a petition for involuntary assessment or treatment has been
initiated. The timely filing of the petition authorizes the service provider to retain
physical custody of the client pending further order of the court.
397.6774 Department to maintain lists of licensed facilities.--The department
shall provide each municipal and county public safety office with a list of licensed
hospitals, detoxification facilities, and addictions receiving facilities, including the
name, address, and phone number of, and the services offered by, the licensed
service provider.
397.6775 Immunity from liability.--A law enforcement officer acting in good
faith pursuant to this part may not be held criminally or civilly liable for false
imprisonment.
A person is taken to the jail for protective custody – not detox. They may go through
withdrawal while in the jail, but detox would require specialty licensure from DCF.
Public intoxication is not a crime and a person can’t be arrested for it. On the other
hand, there are other offenses such as disorderly intoxication, open container laws, etc
for which a person can be lawfully arrested.
Q. If an Addiction Receiving Facility (ARF) is full, is the jail is the right destination
or a hospital?
Chapter 397 (Marchman Act) permits the use of jails. While a jail is a permissible option
for a law enforcement officer under Protective Custody, preferable options such as a
detox program or hospital exist.
Q. My understanding is that people placed in jail under Marchman Act protective
custody must be assessed by a physician within 72 hours to be released. Is this
happening?
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You are correct that the Protective Custody provisions of the Marchman Act require such
a physician to perform an assessment, as follows:
397.6772 Protective custody without consent.--
(1) If a person in circumstances which justify protective custody as described in
s. 397.677 fails or refuses to consent to assistance and a law enforcement officer
has determined that a hospital or a licensed detoxification or addictions receiving
facility is the most appropriate place for the person, the officer may, after giving
due consideration to the expressed wishes of the person:
(a) Take the person to a hospital or to a licensed detoxification or addictions
receiving facility against the person's will but without using unreasonable force; or
(b) In the case of an adult, detain the person for his or her own protection in any
municipal or county jail or other appropriate detention facility.
Such detention is not to be considered an arrest for any purpose, and no entry or
other record may be made to indicate that the person has been detained or
charged with any crime. The officer in charge of the detention facility must notify
the nearest appropriate licensed service provider within the first 8 hours after
detention that the person has been detained. It is the duty of the detention facility
to arrange, as necessary, for transportation of the person to an appropriate
licensed service provider with an available bed. Persons taken into protective
custody must be assessed by the attending physician within the 72-hour period
and without unnecessary delay, to determine the need for further services.
Usually persons held under the civil Marchman Act provisions in a jail are assessed by
nurses instead of physicians. It is also possible that if the person is taken by law
enforcement to an ED for medical clearance before being taken to jail for protective
custody, would have undergone the medical screening required under the federal
EMTALA law.
Q. I received a call from our law enforcement agency in regards to getting a
useable on-line form for the Marchman Act. Presently the form is attached to
numerous other information and is not in a one page format like the Baker Act on-
line form. They were wondering if they could reproduce the form themselves
since it does not have an official form # on it. If not, do you know of a better way
they can get this form on-line in user friendly format?
The form developed in 2003 for law enforcement protective custody as part of the
Marchman Act Handbook is on the DCF website. All the Marchman Act forms are
recommended - not required. Law enforcement agencies can reproduce the form as it is
recommended or could modify it to meet local needs, as long as the information remains
consistent with statute.
Q. Law enforcement is having some Marchman Act problems in our community
regarding medical clearance prior to jail or going back to an ER to pick up a
person who has been cleared. Can you give us some guidance on how Protective
Custody should work?
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Under the Marchman Act, law enforcement officers are permitted to take a person under
Protective Custody (with consent) to his or her home, to a hospital, or to a licensed
detoxification or addictions receiving facility, whichever the officer determines is most
appropriate. It is one of the above. One of the above choices – not more than one in
sequence. See the bottom of this message for the statutory language from the
Marchman Act.
Without consent, the officer can take a person to a hospital or a licensed detoxification or
addictions receiving facility or in the case of an adult, detain the person for his or her
own protection in any municipal or county jail or other appropriate detention facility.
Again, it appears to me that the officer takes the person to the one place that appears to
the officer to be most appropriate – only one bite from the apple.
What has happened is that some jails are requiring officers to take any person to a
hospital ER for “medical clearance” prior to bringing the person to jail under the
Marchman Act. This can be a problem because once a person is presented to a hospital
ER for the medical screening examination required under the federal EMTALA law, the
responsibility for the person becomes that of the hospital. If the person is found to have
a substance abuse emergency, it is considered to be an emergency medical condition
even absent any other medical condition. The hospital has to either admit or transfer
such a person to another appropriate medical provider with the capacity and capability of
managing the condition. However, if the person has no substance abuse emergency,
the person is considered to be “stable for discharge”. At this point, what is the purpose
of sending the person to the jail other than to relieve the ER physicians of some potential
liability and transfer that liability to the Sheriff? Some hospitals have allegedly insisted
on transfer from the ER to the jail even when persons wanted to called a friend or family
member to take them home.
Law enforcement question why they should be held at the ER or called back to the ER
for purposes of transport to the jail when they had already taken the person to one of the
destinations permitted in the Marchman Act.
Marchman Act/Protective Custody
397.677 Protective custody; circumstances justifying.--A law enforcement officer
may implement protective custody measures as specified in this part when a
minor or an adult who appears to meet the involuntary admission criteria in s.
397.675 is:
(1) Brought to the attention of law enforcement; or
(2) In a public place.
397.6771 Protective custody with consent.--A person in circumstances which
justify protective custody, as described in s. 397.677, may consent to be assisted
by a law enforcement officer to his or her home, to a hospital, or to a licensed
detoxification or addictions receiving facility, whichever the officer determines is
most appropriate.
397.6772 Protective custody without consent.--
(1) If a person in circumstances which justify protective custody as described in
s. 397.677 fails or refuses to consent to assistance and a law enforcement officer
has determined that a hospital or a licensed detoxification or addictions receiving
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facility is the most appropriate place for the person, the officer may, after giving
due consideration to the expressed wishes of the person:
(a) Take the person to a hospital or to a licensed detoxification or addictions
receiving facility against the person's will but without using unreasonable force; or
(b) In the case of an adult, detain the person for his or her own protection in any
municipal or county jail or other appropriate detention facility.
Such detention is not to be considered an arrest for any purpose, and no entry or
other record may be made to indicate that the person has been detained or
charged with any crime. The officer in charge of the detention facility must notify
the nearest appropriate licensed service provider within the first 8 hours after
detention that the person has been detained. It is the duty of the detention facility
to arrange, as necessary, for transportation of the person to an appropriate
licensed service provider with an available bed. Persons taken into protective
custody must be assessed by the attending physician within the 72-hour period
and without unnecessary delay, to determine the need for further services.
(2) The nearest relative of a minor in protective custody must be notified by the
law enforcement officer, as must the nearest relative of an adult, unless the adult
requests that there be no notification.
397.6773 Dispositional alternatives after protective custody.--
(1) A client who is in protective custody must be released by a qualified
professional when:
(a) The client no longer meets the involuntary admission criteria in s. 397.675(1);
(b) The 72-hour period has elapsed; or
(c) The client has consented to remain voluntarily at the licensed service
provider.
(2) A client may only be retained in protective custody beyond the 72-hour
period when a petition for involuntary assessment or treatment has been
initiated. The timely filing of the petition authorizes the service provider to retain
physical custody of the client pending further order of the court.
397.6774 Department to maintain lists of licensed facilities.--The department
shall provide each municipal and county public safety office with a list of licensed
hospitals, detoxification facilities, and addictions receiving facilities, including the
name, address, and phone number of, and the services offered by, the licensed
service provider.
397.6775 Immunity from liability.--A law enforcement officer acting in good faith
pursuant to this part may not be held criminally or civilly liable for false
imprisonment.
Q. I am a police Lt. Obviously an officer can initiate a Marchman Act and
complete form MA-3 and take the person to the nearest receiving facility or jail
when that person meets the criteria and is brought to the attention of a law
enforcement officer or found in a public place. Often times the jail staff will
require the detaining officer to have the person medically cleared at the
emergency room and then the officer transports that individual to back to the jail
or receiving facility. However if a person finds their way to a doctor’s office or the
emergency room not via law enforcement and a physician determines this person
needs to be evaluated in accordance with the Marchman Act, it is my
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understanding that the recommending physician may initiate the Marchman Act
(Chapter 397.675) and complete form MA-5 and other related forms under the
Emergency Admission clause without involving law enforcement. Is this correct?
You are absolutely correct in your understanding of the Marchman Act. However, a
summary is below. Only a law enforcement officer can initiate “protective custody”. One
of the options the officer has is to take the individual to jail, if one of the other options
(home, detox, or hospital) isn’t available or appropriate.
If the officer opts to take the individual to the jail and is then required by jail staff
to get “medical clearance” before the person can be accepted, this results in
taking the person to the hospital instead. The officer’s responsibility is over
because he/she has taken the person to one of the other legally acceptable
options under protective custody. EMTALA applies to the hospital.
If the officer instead takes the individual directly to a hospital ED requesting
medical examination or treatment, the federal EMTALA law intervenes and
controls the options of the ED physician and hospital. The officer is not required
to stay for the purpose of providing security/stabilization or to provide secondary
transfer to any other setting. When the doctor finds that the person has no
emergency medical condition (including any psychiatric or substance abuse
emergency, absent any other medical condition), the doctor can release the
person from the ED. There is no purpose served in sending the individual from
the ED to jail under the Marchman Act unless criminal charges are pending.
However, if the doctor believes such an emergency substance abuse condition
exists and needs transfer to another hospital, the responsibility for arranging safe
and appropriate transportation lies with the sending hospital – not law
enforcement.
With regard to the scenario of when law enforcement isn’t involved at all because the
person ends up at the hospital ED on his/her own, protective custody is not even an
option. Emergency Admission provisions of the Marchman Act then prevail instead of
protective custody and there is no role for law enforcement. A person meeting
involuntary admission criteria may be admitted to a hospital or a licensed detox program
for emergency assessment and stabilization upon receipt of a physician’s certificate and
completion of an application. An application for emergency admission may be initiated:
for adults by:
Certifying physician
Spouse or guardian
Any relative
Any other responsible adult who has personal knowledge of the person’s
substance abuse impairment.
Marchman Act and Emergency Medical Conditions
Q. Our psychiatrist was on call for a voluntary patient who was in pretty severe
alcohol withdrawal and who needed & received a high dose of Ativan. On the 3
rd
day, the patient wanted to leave AMA so the doctor held him the 24 hours; he
wasn’t in active withdrawal due to the medications administered. Obviously, he
still needed tapering from this dose of Ativan but insisted on leaving anyway.
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Without a proper taper, he could face severe withdrawal, including seizures, DT's,
death. We wondered if he could have Marchman Acted him and transferred him to
a Marchman Act receiving facility. We weren’t sure this would work. Outside of
detailed documentation and counseling on the risk the patient was taking, what
would have been the doctor’s alternatives? He knew the patient was going to use
when he left, which he did and ended up in the ER after OD’ing on Listerine. Was
this someone, while already a psychiatric inpatient, that we could have signed a
Marchman Act on, and forced him to stay in the hospital, knowing the severe risk
he would be taking if he left AMA? And if so, since our facility is not a Marchman
receiving facility, then we would have to transfer him to another facility, right?
This is a complex situation dealing with Baker Act, Marchman Act and a medical
emergency concurrently. This answer won’t be as clear as you may need.. DCF/HQ
takes the position that a person without a psychiatric diagnosis can’t be admitted to a
Baker Act receiving facility. The Baker Act requires a person on voluntary and on
involuntary status to have a mental illness diagnosis – the legal definition specifically
excludes intoxication and substance abuse impairment because those issues are
governed by the Marchman Act. The Baker act definition is:
Mental illness” means an impairment of the mental or 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. For the
purposes of this part, the term does not include retardation or developmental
disability as defined in chapter 393, intoxication, or conditions manifested only by
antisocial behavior or substance abuse impairment.
Co-existing diagnoses of mental illness and substance abuse impairment would be
appropriate for a Baker Act facility.
The Marchman Act requires a person to have a “substance Abuse Impairment” as
defined in Chapter 397(14), FS as follows:
“Impaired” or “substance abuse impaired” means a condition involving the
use of alcoholic beverages or any psychoactive or mood-altering substance in
such a manner as to induce mental, emotional, or physical problems and cause
socially dysfunctional behavior.
These two definitions are mutually exclusive. However, there isn’t any reason why a
person who may be hospitalized for a psychiatric diagnosis in a Baker Act facility may be
found through expert evaluation to have a substance abuse impairment instead. The
Baker Act and the Marchman Act each have provisions in which court can transfer a
person between the Baker Act and the Marchman Act when it is determined that the
other law would be more appropriate.
The Marchman Act involuntary admission criteria can be based on impaired judgment as
well as active danger. If the request for AMA was based on impaired judgment due to
substance abuse or was he just making a decision (to leave AMA) that was medically
unadvisable? If the clinical judgment is that the individual was leaving AMA in order to
obtain alcohol, because he was addicted to alcohol, that would meet criteria. But if he
just didn't want to be in the hospital or get detox treatment, he would not meet criteria.
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Clinical judgment would generally err on the side of assuming that the individual was
leaving for substance abuse reasons.
Unless the person is actively dangerous due to the impairment -- the criteria in the
message has the word "or" between the active danger and the impaired judgment. A
"mere refusal" is tied to the impaired judgment paragraph, not the active danger
paragraph.
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary treatment,
and alternative involuntary assessment for minors, for purposes of assessment
and stabilization, and for involuntary treatment.
A person meets the criteria for involuntary admission if there is good faith reason
to believe the person is substance abuse impaired and, because of such
impairment:
(1)Has lost the power of self-control with respect to substance use; and either
(2)(a)Has inflicted, or threatened or attempted to inflict, or unless admitted is
likely to inflict, physical harm on himself or herself or another; or
(b)Is in need of substance abuse services and, by reason of substance abuse
impairment, his or her judgment has been so impaired that the person is
incapable of appreciating his or her need for such services and of making a
rational decision in regard thereto; however, mere refusal to receive such
services does not constitute evidence of lack of judgment with respect to his
or her need for such services.
In any case the person would have to meet the criteria for substance abuse impairment
and have lost the power of self-control with respect to substance abuse as well as one of
the two other criteria.
394 467(6) HEARING ON INVOLUNTARY INPATIENT PLACEMENT.—
(c) If at any time prior to the conclusion of the hearing on involuntary inpatient
placement it appears to the court that the person does not meet the criteria for
involuntary inpatient placement under this section, but instead meets the criteria
for involuntary outpatient placement, the court may order the person evaluated
for involuntary outpatient placement pursuant to s. 394.4655. The petition and
hearing procedures set forth in s. 394.4655 shall apply. If the person instead
meets the criteria for involuntary assessment, protective custody, or
involuntary admission pursuant to s. 397.675, then the court may order the
person to be admitted for involuntary assessment for a period of 5 days
pursuant to s. 397.6811. Thereafter, all proceedings shall be governed by
chapter 397.
397.6818 Court determination.
(1) Based on its determination, the court shall either dismiss the petition or
immediately enter an order authorizing the involuntary assessment and
stabilization of the respondent; or, if in the course of the hearing the court has
reason to believe that the respondent, due to mental illness other than or in
addition to substance abuse impairment, is likely to injure himself or
herself or another if allowed to remain at liberty, the court may initiate
involuntary proceedings under the provisions of part I of chapter 394.
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A hospital was sued in a civil case in which a man was brought to the hospital (a
designated receiving facility) and assessed under the involuntary examination provisions
of the Baker Act. It was determined within the 72-hour examination period that his
condition resulted from serious substance abuse impairment and an involuntary
admission under the Marchman Act was then initiated. The man sued the hospital for
battery and false imprisonment since he had been detained involuntarily beyond a 72-
hour period. It was documented that the time frames allowed in each law were not
exceeded when one was added on top of the other. The court ruled for the defense with
a summary judgment without even allowing the case to go to trial – something that is
unusual for courts to do if there is any possible question of fact for a jury to decide.
As a result of all the above, the doctor could have initiated a Marchman Act Emergency
Admission pursuant to chapter 397679, FS with the application and the physician’s
certificate completed by the psychiatrist at your facility. The criteria is as follows:
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary
treatment, and alternative involuntary assessment for minors, for purposes of
assessment and stabilization, and for involuntary treatment.
A person meets the criteria for involuntary admission if there is good faith reason
to believe the person is substance abuse impaired and, because of such
impairment:
(1)Has lost the power of self-control with respect to substance use; and either
(2)(a)Has inflicted, or threatened or attempted to inflict, or unless admitted is
likely to inflict, physical harm on himself or herself or another; or
(b)Is in need of substance abuse services and, by reason of substance abuse
impairment, his or her judgment has been so impaired that the person is
incapable of appreciating his or her need for such services and of making a
rational decision in regard thereto; however, mere refusal to receive such
services does not constitute evidence of lack of judgment with respect to his or
her need for such services.
You would have to transfer to a licensed substance abuse facility if the man didn’t have
a co-occurring psychiatric disorder. The one other complicating factor in this case is
whether the man had an emergency medical condition and lacked the capacity to
provide informed consent to medical care. In that case, other laws and court rules apply.
Q. When our CSU physicians initiate a Marchman Act, are they only required to fill
out the "physician certificate for emergency admission" or do they also have to
complete the "application for involuntary emergency admission"?
Below is the applicable provisions of the Marchman Act that specifically state there must
be an application for emergency admission in addition to a physician’s certificate. Other
people besides the physician are authorized to complete the application, including the
spouse, guardian, any relative, or any other responsible adult who has personal
knowledge of the person’s substance abuse impairment.
397.679 Emergency admission; circumstances justifying.
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A person who meets the criteria for involuntary admission in s. 397.675 may be
admitted to a hospital or to a licensed detoxification facility or addictions receiving
facility for emergency assessment and stabilization, or to a less intensive
component of a licensed service provider for assessment only, upon receipt by
the facility of the physician’s certificate and the completion of an application
for emergency admission.
397.6791 Emergency admission; persons who may initiate.
The following persons may request an emergency admission:
(1)In the case of an adult, the certifying physician, the person’s spouse or
guardian, any relative of the person, or any other responsible adult who has
personal knowledge of the person’s substance abuse impairment.
(2)In the case of a minor, the minor’s parent, legal guardian, or legal custodian.
397.6793 Physician’s certificate for emergency admission.
(1)The physician’s certificate must include the name of the person to be
admitted, the relationship between the person and the physician, the relationship
between the applicant and the physician, any relationship between the physician
and the licensed service provider, and a statement that the person has been
examined and assessed within 5 days of the application date, and must include
factual allegations with respect to the need for emergency admission, including:
(a)The reason for the physician’s belief that the person is substance abuse
impaired; and
(b)The reason for the physician’s belief that because of such impairment the
person has lost the power of self-control with respect to substance abuse; and
either
(c)1.The reason the physician believes that the person has inflicted or is likely to
inflict physical harm on himself or herself or others unless admitted; or
2.The reason the physician believes that the person’s refusal to voluntarily
receive care is based on judgment so impaired by reason of substance abuse
that the person is incapable of appreciating his or her need for care and of
making a rational decision regarding his or her need for care.
(2)The physician’s certificate must recommend the least restrictive type of
service that is appropriate for the person. The certificate must be signed by the
physician.
(3)A signed copy of the physician’s certificate shall accompany the person, and
shall be made a part of the person’s clinical record, together with a signed copy
of the application. The application and physician’s certificate authorize the
involuntary admission of the person pursuant to, and subject to the provisions of
ss. 397.679-397.6797.
(4)The physician’s certificate must indicate whether the person requires
transportation assistance for delivery for emergency admission and specify,
pursuant to s. 397.6795, the type of transportation assistance necessary.
Q. This question comes from one of our psychiatrists who is frustrated by our
revolving door of alcoholics & addicts. Our rural community hospital has a CSU &
Detox and there’s very little treatment and referral options. His question is – can
he Marchman Act a revolving door patient to long term treatment? I thought only
family members usually did this and it was a court process & since we aren’t a
17
Marchman Act receiving facility, they wouldn’t be able to stay here…etc etc. Is this
correct?
There are multiple ways of initiating an involuntary admission under the Marchman Act:
1. Protective Custody by law enforcement
2. Emergency Admission by an array of folks but it requires a physician’s certificate
3. Alternative method for parents of minors to a juvenile addiction receiving facility (you
don’t have one in the Keys)
4. Court order (ex parte or scheduled hearing)
Licensed hospitals are exempt from licensing as substance abuse providers, but are
subject to the federal EMTALA law that defines a substance abuse emergency as an
emergency medical condition. A hospital would have to accept the person and perform
the required medical screening exam. Once that emergency is over, EMTALA no longer
applies.
In the situation your physician suggested, he can apply for the person’s emergency
admission as well as being the certifying physician. This allows for the assessment to
be done and then you can file a petition with the court for involuntary treatment that
could potentially result in a court order of up to 60 days of treatment.
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary
treatment, and alternative involuntary assessment for minors, for purposes
of assessment and stabilization, and for involuntary treatment.
A person meets the criteria for involuntary admission if there is good faith reason
to believe the person is substance abuse impaired and, because of such
impairment:
(1)Has lost the power of self-control with respect to substance use; and either
(2)(a)Has inflicted, or threatened or attempted to inflict, or unless admitted is
likely to inflict, physical harm on himself or herself or another; or
(b)Is in need of substance abuse services and, by reason of substance abuse
impairment, his or her judgment has been so impaired that the person is
incapable of appreciating his or her need for such services and of making a
rational decision in regard thereto; however, mere refusal to receive such
services does not constitute evidence of lack of judgment with respect to his or
her need for such services.
397.679 Emergency admission; circumstances justifying.
A person who meets the criteria for involuntary admission in s. 397.675 may be
admitted to a hospital or to a licensed detoxification facility or addictions receiving
facility for emergency assessment and stabilization, or to a less intensive
component of a licensed service provider for assessment only, upon receipt by
the facility of the physician’s certificate and the completion of an application for
emergency admission.
397.6791 Emergency admission; persons who may initiate.
The following persons may request an emergency admission:
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(1)In the case of an adult, the certifying physician, the person’s spouse or
guardian, any relative of the person, or any other responsible adult who has
personal knowledge of the person’s substance abuse impairment.
(2)In the case of a minor, the minor’s parent, legal guardian, or legal custodian.
397.6793 Physician’s certificate for emergency admission.
(1)The physician’s certificate must include the name of the person to be
admitted, the relationship between the person and the physician, the relationship
between the applicant and the physician, any relationship between the physician
and the licensed service provider, and a statement that the person has been
examined and assessed within 5 days of the application date, and must include
factual allegations with respect to the need for emergency admission, including:
(a)The reason for the physician’s belief that the person is substance abuse
impaired; and
(b)The reason for the physician’s belief that because of such impairment the
person has lost the power of self-control with respect to substance abuse; and
either
(c)1.The reason the physician believes that the person has inflicted or is likely to
inflict physical harm on himself or herself or others unless admitted; or
2.The reason the physician believes that the person’s refusal to voluntarily
receive care is based on judgment so impaired by reason of substance abuse
that the person is incapable of appreciating his or her need for care and of
making a rational decision regarding his or her need for care.
(2)The physician’s certificate must recommend the least restrictive type of
service that is appropriate for the person. The certificate must be signed by the
physician.
(3)A signed copy of the physician’s certificate shall accompany the person, and
shall be made a part of the person’s clinical record, together with a signed copy
of the application. The application and physician’s certificate authorize the
involuntary admission of the person pursuant to, and subject to the provisions of
ss. 397.679-397.6797.
(4)The physician’s certificate must indicate whether the person requires
transportation assistance for delivery for emergency admission and specify,
pursuant to s. 397.6795, the type of transportation assistance necessary.
397.6795 Transportation-assisted delivery of persons for emergency
assessment.
An applicant for a person’s emergency admission, or the person’s spouse or
guardian, a law enforcement officer, or a health officer may deliver a person
named in the physician’s certificate for emergency admission to a hospital or a
licensed detoxification facility or addictions receiving facility for
emergency assessment and stabilization.
397.6797 Dispositional alternatives after emergency admission.
Within 72 hours after an emergency admission to a hospital or a licensed
detoxification or addictions receiving facility, the individual must be assessed by
the attending physician to determine the need for further services. Within 5 days
after an emergency admission to a nonresidential component of a licensed
service provider, the individual must be assessed by a qualified professional to
determine the need for further services. Based upon that assessment, a qualified
19
professional of the hospital, detoxification facility, or addictions receiving facility,
or a qualified professional if a less restrictive component was used, must either:
(1)Release the individual and, where appropriate, refer the individual to other
needed services; or
(2)Retain the individual when:
(a)The individual has consented to remain voluntarily at the licensed provider; or
(b)A petition for involuntary assessment or treatment has been initiated, the
timely filing of which authorizes the service provider to retain physical custody of
the individual pending further order of the court.
397.693 Involuntary treatment.
A person may be the subject of a petition for court-ordered involuntary treatment
pursuant to this part, if that person meets the criteria for involuntary admission
provided in s. 397.675 and:
(1)Has been placed under protective custody pursuant to s. 397.677 within the
previous 10 days;
(2)Has been subject to an emergency admission pursuant to s. 397.679
within the previous 10 days;
(3)Has been assessed by a qualified professional within 5 days;
(4)Has been subject to involuntary assessment and stabilization pursuant to s.
397.6818 within the previous 12 days; or
(5)Has been subject to alternative involuntary admission pursuant to s. 397.6822
within the previous 12 days.
397.695 Involuntary treatment; persons who may petition.
(1)If the respondent is an adult, a petition for involuntary treatment may be filed
by the respondent’s spouse or guardian, any relative, a service provider, or any
three adults who have personal knowledge of the respondent’s substance abuse
impairment and his or her prior course of assessment and treatment.
(2)If the respondent is a minor, a petition for involuntary treatment may be filed
by a parent, legal guardian, or service provider.
397.6951 Contents of petition for involuntary treatment.
A petition for involuntary treatment must contain the name of the respondent to
be admitted; the name of the petitioner or petitioners; the relationship between
the respondent and the petitioner; the name of the respondent’s attorney, if
known, and a statement of the petitioner’s knowledge of the respondent’s ability
to afford an attorney; the findings and recommendations of the assessment
performed by the qualified professional; and the factual allegations presented by
the petitioner establishing the need for involuntary treatment, including:
(1)The reason for the petitioner’s belief that the respondent is substance abuse
impaired; and
(2)The reason for the petitioner’s belief that because of such impairment the
respondent has lost the power of self-control with respect to substance abuse;
and either
(3)(a)The reason the petitioner believes that the respondent has inflicted or is
likely to inflict physical harm on himself or herself or others unless admitted; or
(b)The reason the petitioner believes that the respondent’s refusal to voluntarily
receive care is based on judgment so impaired by reason of substance abuse
that the respondent is incapable of appreciating his or her need for care and of
making a rational decision regarding that need for care.
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397.6955 Duties of court upon filing of petition for involuntary treatment.
Upon the filing of a petition for the involuntary treatment of a substance abuse
impaired person with the clerk of the court, the court shall immediately determine
whether the respondent is represented by an attorney or whether the
appointment of counsel for the respondent is appropriate. The court shall
schedule a hearing to be held on the petition within 10 days. A copy of the
petition and notice of the hearing must be provided to the respondent; the
respondent’s parent, guardian, or legal custodian, in the case of a minor; the
respondent’s attorney, if known; the petitioner; the respondent’s spouse or
guardian, if applicable; and such other persons as the court may direct, and have
such petition and order personally delivered to the respondent if he or she is a
minor. The court shall also issue a summons to the person whose admission is
sought.
397.6957 Hearing on petition for involuntary treatment.
(1)At a hearing on a petition for involuntary treatment, the court shall hear and
review all relevant evidence, including the review of results of the assessment
completed by the qualified professional in connection with the respondent’s
protective custody, emergency admission, involuntary assessment, or alternative
involuntary admission. The respondent must be present unless the court finds
that his or her presence is likely to be injurious to himself or herself or others, in
which event the court must appoint a guardian advocate to act in behalf of the
respondent throughout the proceedings.
(2)The petitioner has the burden of proving by clear and convincing evidence:
(a)The respondent is substance abuse impaired, and
(b)Because of such impairment the respondent has lost the power of self-control
with respect to substance abuse; and either
1.The respondent has inflicted or is likely to inflict physical harm on himself or
herself or others unless admitted; or
2.The respondent’s refusal to voluntarily receive care is based on judgment so
impaired by reason of substance abuse that the respondent is incapable of
appreciating his or her need for care and of making a rational decision regarding
that need for care.
(3)At the conclusion of the hearing the court shall either dismiss the petition or
order the respondent to undergo involuntary substance abuse treatment, with the
respondent’s chosen licensed service provider to deliver the involuntary
substance abuse treatment where possible and appropriate.
397.697 Court determination; effect of court order for involuntary
substance abuse treatment.
(1)When the court finds that the conditions for involuntary substance abuse
treatment have been proved by clear and convincing evidence, it may order the
respondent to undergo involuntary treatment by a licensed service provider for a
period not to exceed 60 days. If the court finds it necessary, it may direct the
sheriff to take the respondent into custody and deliver him or her to the licensed
service provider specified in the court order, or to the nearest appropriate
licensed service provider, for involuntary treatment. When the conditions
justifying involuntary treatment no longer exist, the individual must be released as
provided in s. 397.6971. When the conditions justifying involuntary treatment are
expected to exist after 60 days of treatment, a renewal of the involuntary
21
treatment order may be requested pursuant to s. 397.6975 prior to the end of the
60-day period.
(2)In all cases resulting in an order for involuntary substance abuse treatment,
the court shall retain jurisdiction over the case and the parties for the entry of
such further orders as the circumstances may require. The court’s requirements
for notification of proposed release must be included in the original treatment
order.
(3)An involuntary treatment order authorizes the licensed service provider to
require the individual to undergo such treatment as will benefit him or her,
including treatment at any licensable service component of a licensed service
provider.
The biggest issue here is that no drug treatment program is required to accept a person
if it doesn’t think the person meets the criteria, or that it isn’t the least restrictive and
most appropriate setting, would cause the program to go over census, that it can’t meet
the medical and behavioral needs of the person or if the person cannot pay for care. If
the provider has vacancies fully funded by state DCF appropriated dollars, it can’t
discriminate based on inability to pay. The lack of secure drug treatment facilities and
the lack of funded residential treatment programs are the biggest barriers to arranging
care.
Q. I’m an ER nurse. Can a patient be Baker Acted over a Marchman Act? If a
patient is sent from one facility to a hospital for medical clearance, is pregnant,
abusing heroin, has been medically cleared and was then Baker Acted-Certificate
of Professional was completed - is that legal? We are not a Marchman Act facility
but her medical state was the concern and thus she was sent to our ER. The
facility that sent her will not accept patients on heroin due to withdrawal concerns
and I don't think they take pregnant patients either, so now, they want to admit her
to our unit.
There is no legal prohibition against instituting a Baker Act involuntary examination after
a Marchman Act involuntary admission has been first instituted. While this is an unusual
practice, a circuit court in the Gainesville area ruled that such a practice didn't constitute
"false imprisonment" even when the time the individual was detained exceeded a total of
72 hours for sequential examinations under the two laws.
Both the Baker Act and the Marchman Act permit a judge to switch from one law to the
other if, at the time of a hearing, it appears the basis of an individual's problems are
different than had been initially thought.
It is very typical for an individual to experience co-existing diagnoses of mental illness
and substance abuse impairment and it isn't always easy to determine which is the
primary diagnosis. Once an individual is in a facility with experienced clinicians, a proper
diagnosis can more often be identified -- it may well be different than the one first noted.
Q. Our addiction director states It may be a violation to send a patient from one
ED to another ED even if a Marchman Act is in place without stabilizing the patient
first. When I asked him further if he meant a patient needing detoxification was
not stable, he answered "yes--they can die in the process." Would you comment
22
on whether a patient needing detoxification may be transferred under the
Marchman Act? We do have an inpatient unit with licensed substance abuse beds,
but what if they were full or the patient was indigent? (We do accept no-pays, but I
want to pose the question anyway.)
Your Addiction’s Director is correct. If a person is in a life-threatening medical condition
due to withdrawal from substances, this isn’t really a Marchman Act situation. It is
handled under the medical consent laws of Florida and the federal EMTALA law. This
could be anything from overdose, withdrawal, or various conditions of the liver, stomach,
esophagus, CNS, and other organs affected by the substances.
Once the imminent medical conditions are stabilized and a transfer of a person for the
purpose of substance abuse treatment is considered appropriate, the Marchman Act
should be considered. Non-hospital detoxification programs are prepared to handle
simple intoxication that aren’t exacerbated by medical complications.
With regard to hypothetical questions involving capacity and indigency, you’d be
required to go over census for an indigent patient if you have ever done so for a non-
indigent patient. You would also have to admit a person if you couldn’t locate a willing
hospital with the capability and capacity to serve the patient, even if the patient was
indigent. It would probably be to a med/surg bed in the hospital rather than to the
specific addictions unit.
Q. If law enforcement has initiated a Marchman Act (protective custody) and
persons are brought to the ER for medical attention, what is the scope of our
authority to “detain” or restrain patients if necessary to ensure that they are safe
and receive appropriate care. Our officers are Proprietary Security Officers (Non-
Sworn), employed full-time by the hospital. As such, we can detain perpetrators
of violent crimes until the arrival of law enforcement, and have as a normal
operating procedure, participated in the detention of Baker Act patients at our
facility. We do not have arrest authority. Our question goes to Marchman Act
Patients, and our right or authority to detain them for their own (or public) safety.
There are two issues here – State Marchman Act and federal EMTALA law.
Under the Marchman Act involuntary admission provisions, a law enforcement officer
can initiate protective custody or a physician can initiate emergency admission if there is
good faith reason to believe person is substance abuse impaired and because of the
impairment:
Has lost power of self-control over substance use; and either:
Has inflicted, or threatened or attempted to inflict, or unless admitted is likely to
inflict, physical harm on self or others, or
Is in need of substance abuse services and, by reason of substance abuse
impairment, his/her judgment has been so impaired the person is incapable of
appreciating the need for services and of making a rational decision in regard
thereto. (Mere refusal to receive services is not evidence of lack of judgment)
You can keep the person until:
The 72-hour period has elapsed;
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Client no longer meets the involuntary admission criteria, or
Client has consented to remain voluntarily, or
Petition for involuntary assessment or treatment has been initiated. Timely filing
of petition authorizes retention of client pending further order of the court.
As long as the person meets criteria for involuntary admission, you can keep him up to
72 hours. The person can be released by a “qualified professional”, including any
physician licensed under 458 or 459.
With regard to EMTALA, a substance abuse emergency is considered equal to any other
emergency medical condition and the hospital must perform all its duties for medical
screening and stabilization, as well as arranging for an appropriate transfer if it doesn’t
have the capability/capacity to manage the person’s condition.
There is no reason why security officers trained and authorized by your facility can’t
detain persons against their will under Marchman Act involuntary admission status –
that’s why they call it involuntary. There shouldn’t be any risk of “false imprisonment” in
following state and federal law. There should be no difference in your rights between the
managing of Marchman Act patients from the Baker Act patients under the state’s
protective laws or the federal EMTALA law.
These protective laws are based on the premise that these patients aren’t capable of
making well-reasoned decisions at the time and staff of the facilities must do what is
necessary to maintain their safety. Sometimes it comes down to a weighing of facility
liability for battery/false imprisonment in retaining a patient against the liability for a
wrongful death if the person gets away from you. The hospital staff should document
the risk the patient represents and use the least restrictive intervention as the
circumstances permit.
Your staff has a significant duty under the federal EMTALA to retain the patient until
either the required medical screening can be performed or a doctor determines that the
person is competent to refuse the screening. If found to have an emergency medical
condition, include an emergency psychiatric or substance abuse condition, the patient
can’t be released or transferred until stabilized.
Q. Can an emergency admitted Marchman Act patient leave AMA? Do we need to
call the police? This is the only thing I could find in the statute. Thanks.
The Marchman Act permits a person to be held against their will for up to 72
hours if under the Emergency admission provisions of the Marchman Act. This
means that they don’t have the right to leave AMA if your physician believes the
person still meets the involuntary admission criteria specified in the Marchman
Act.
The 72-hour period is a maximum period – the provisions of law you’ve cited in your
question clearly indicate that once the criteria no longer exist, the person could then
request an AMA discharge even if not in his/her best interest.
Use of restraints to prevent elopements can only be used by a hospital if consistent with
Conditions of Participation for behavioral restraints -- including imminent risk. However,
24
the hospital staff must always measure the risk of a wrongful death suit against the risk
of an allegation of false imprisonment or a regulatory citation. Most attorneys and risk
managers would prefer the latter to the former, especially if clinical staff had clearly
documented the danger presented by the patient and why less restrictive alternatives
had been considered but rejected.
You do need to ensure that patients aren’t able to exit your hospital until a physician has
documented that they are competent to refuse the medical screening examination
required by EMTLA and, if found to have a psychiatric or substance abuse emergency
(this is an emergency medical condition), that they not be able to leave until stabilized.
Hospitals have not always taken sufficient advantage of health care proxies for persons
determined by a physician to lack capacity to make treatment decisions. In such cases,
the proxy can consent to a treatment plan, including psychotropic medications, even in
an ED situation. Of course, not everyone will have a surrogate or proxy available in
person or by phone to make such decisions. In those cases, emergency treatment
orders for medication may be required under certain danger situation; possible
mechanical restraints might also be justified. In any case, the federal CMS conditions of
participation and JCAHO standards will probably apply to your hospital.
In a worse case scenario where a person who clearly meets the criteria for emergency
admission under the Marchman Act elopes from your facility, a call to your local law
enforcement agency would be entirely appropriate.
It is suggested that you work with your risk manager and with your hospital attorney to
weigh the risks vs. the benefits of various alternatives for ensuring the safety of your
patients. There isn’t an absolute answer on this issue because each situation is different,
requiring a different set of alternatives to ensure the safety of patients.
Q. I am researching the process for involuntary admission for patients who are a
danger to themselves due to substance abuse issues. We are investigating MD
alternatives in managing emergency room patients who are not expressing
suicidal ideation and plan, however present too acutely intoxicated to leave the
ED safely, and try to walk out. I have reviewed the Florida Statutes Title XXIX,
Chapter 397 Substance Abuse Services, C. Non-court Involved Emergency
Admissions, and found a Marchman Act Power Point and Guide online which
seem to be very informative.
http://www.dcf.state.fl.us/mentalhealth/marchman/index.shtml
Would you suggest any specific information on how we might use this information
to establish a new way of managing these patients while maintaining ethical and
legal guidelines for using the Marchman Act in our emergency room? Is there
another resource I might use that would prove more useful?
You and your hospital for attempting to intervene in the lives of persons with addiction
issues—it’s good that you’re using the DCF website for reference materials and found
the PowerPoint Presentation to be helpful.
As you’ve found, a physician can be both the applicant for a person’s emergency
admission as well as the certifying physician if the person meets the involuntary
admission criteria. These forms are found in the Marchman Act User Reference Guide
25
at the website pages 259-262 and Appendix E governs Emergency Substance Abuse
Admissions and Persons with Emergency Medical Conditions (pages 78-87).
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary treatment,
and alternative involuntary assessment for minors, for purposes of assessment
and stabilization, and for involuntary treatment.--A person meets the criteria for
involuntary admission if there is good faith reason to believe the person is
substance abuse impaired and, because of such impairment:
(1) Has lost the power of self-control with respect to substance use; and either
(2)(a) Has inflicted, or threatened or attempted to inflict, or unless admitted is
likely to inflict, physical harm on himself or herself or another; or
(b) Is in need of substance abuse services and, by reason of substance abuse
impairment, his or her judgment has been so impaired that the person is
incapable of appreciating his or her need for such services and of making a
rational decision in regard thereto; however, mere refusal to receive such
services does not constitute evidence of lack of judgment with respect to his or
her need for such services.
The Marchman Act doesn’t authorize provision of medical care – you have to look to the
medical consent statute or s.401, FS.
401.445 Emergency examination and treatment of incapacitated persons.--
(1) No recovery shall be allowed in any court in this state against any emergency
medical technician, paramedic, or physician as defined in this chapter, any
advanced registered nurse practitioner certified under s. 464.012, or any
physician assistant licensed under s. 458.347 or s. 459.022, or any person acting
under the direct medical supervision of a physician, in an action brought for
examining or treating a patient without his or her informed consent if:
(a) The patient at the time of examination or treatment is intoxicated, under the
influence of drugs, or otherwise incapable of providing informed consent as
provided in s. 766.103;
(b) The patient at the time of examination or treatment is experiencing an
emergency medical condition; and
(c) The patient would reasonably, under all the surrounding circumstances,
undergo such examination, treatment, or procedure if he or she were advised by
the emergency medical technician, paramedic, physician, advanced registered
nurse practitioner, or physician assistant in accordance with s. 766.103(3).
Examination and treatment provided under this subsection shall be limited to
reasonable examination of the patient to determine the medical condition of the
patient and treatment reasonably necessary to alleviate the emergency medical
condition or to stabilize the patient.
(2) In examining and treating a person who is apparently intoxicated, under the
influence of drugs, or otherwise incapable of providing informed consent, the
emergency medical technician, paramedic, physician, advanced registered nurse
practitioner, or physician assistant, or any person acting under the direct medical
supervision of a physician, shall proceed wherever possible with the consent of
the person. If the person reasonably appears to be incapacitated and refuses his
or her consent, the person may be examined, treated, or taken to a hospital or
other appropriate treatment resource if he or she is in need of emergency
attention, without his or her consent, but unreasonable force shall not be used.
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(3) This section does not limit medical treatment provided pursuant to court
order or treatment provided in accordance with chapter 394 or chapter 397.
401.45 Denial of emergency treatment; civil liability.--
(1)(a) Except as provided in subsection (3), a person may not be denied needed
prehospital treatment or transport from any licensee for an emergency medical
condition.
(b) A person may not be denied treatment for any emergency medical condition
that will deteriorate from a failure to provide such treatment at any general
hospital licensed under chapter 395 or at any specialty hospital that has an
emergency room.
(2) A hospital or its employees or any physician or dentist responding to an
apparent need for emergency treatment under this section is not liable in any
action arising out of a refusal to render emergency treatment or care if
reasonable care is exercised in determining the condition of the person and in
determining the appropriateness of the facilities and the qualifications and
availability of personnel to render such treatment.
The DCF website is the comprehensive site for information about the Marchman Act.
Q. Our frustration with the Marchman Act is our impression (maybe incorrect)
that the family had to go to Probate Court to sign a petition, perhaps for an ex-
parte order. I learned this week that our sister hospital, has drafted a policy for
Marchman Act in the Emergency Department. There is an associated form for the
physician to complete. The implication is that after the physician completes the
form, the patient can be sent to a substance abuse facility. That leads to questions
as to what facilities would take a patient in these circumstances. Would they have
to be a locked facility? Are we able to place a Marchman Act patient on the
strength of the ED doctor's form?
There are multiple ways for an involuntary admission to be initiated other than by court
order. A law enforcement officer can initiate protective custody (home, hospital, detox,
addiction receiving facility or jail) and a parent can initiate assessment/stabilization of a
minor child at a juvenile addiction receiving facility (locked facility). A number of folks
are eligible to apply for an emergency admission as long as a physician has executed a
certificate containing certain information. It is this option that your ER physicians would
probably want to pursue. This section of the law is as follows:
397.679 Emergency admission; circumstances justifying.--A person who meets
the criteria for involuntary admission in s. 397.675 may be admitted to a hospital
or to a licensed detoxification facility or addictions receiving facility for emergency
assessment and stabilization, or to a less intensive component of a licensed
service provider for assessment only, upon receipt by the facility of the
physician's certificate and the completion of an application for emergency
admission.
397.6791 Emergency admission; persons who may initiate.--The following
persons may request an emergency admission:
(1) In the case of an adult, the certifying physician, the person's spouse or
guardian, any relative of the person, or any other responsible adult who has
personal knowledge of the person's substance abuse impairment.
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(2) In the case of a minor, the minor's parent, legal guardian, or legal custodian.
397.6793 Physician's certificate for emergency admission.--
(1) The physician's certificate must include the name of the person to be
admitted, the relationship between the person and the physician, the relationship
between the applicant and the physician, any relationship between the physician
and the licensed service provider, and a statement that the person has been
examined and assessed within 5 days of the application date, and must include
factual allegations with respect to the need for emergency admission, including:
(a) The reason for the physician's belief that the person is substance abuse
impaired; and
(b) The reason for the physician's belief that because of such impairment the
person has lost the power of self-control with respect to substance abuse; and
either
(c)1. The reason the physician believes that the person has inflicted or is likely to
inflict physical harm on himself or herself or others unless admitted; or
2. The reason the physician believes that the person's refusal to voluntarily
receive care is based on judgment so impaired by reason of substance abuse
that the person is incapable of appreciating his or her need for care and of
making a rational decision regarding his or her need for care.
(2) The physician's certificate must recommend the least restrictive type of
service that is appropriate for the person. The certificate must be signed by the
physician.
(3) A signed copy of the physician's certificate shall accompany the person, and
shall be made a part of the person's clinical record, together with a signed copy
of the application. The application and physician's certificate authorize the
involuntary admission of the person pursuant to, and subject to the provisions of
ss. 397.679-397.6797.
(4) The physician's certificate must indicate whether the person requires
transportation assistance for delivery for emergency admission and specify,
pursuant to s. 397.6795, the type of transportation assistance necessary.
397.6795 Transportation-assisted delivery of persons for emergency
assessment.--An applicant for a person's emergency admission, or the person's
spouse or guardian, a law enforcement officer, or a health officer may deliver a
person named in the physician's certificate for emergency admission to a hospital
or a licensed detoxification facility or addictions receiving facility for emergency
assessment and stabilization.
397.6797 Dispositional alternatives after emergency admission.--Within 72 hours
after an emergency admission to a hospital or a licensed detoxification or
addictions receiving facility, the client must be assessed by the attending
physician to determine the need for further services. Within 5 days after an
emergency admission to a nonresidential component of a licensed service
provider, the client must be assessed by a qualified professional to determine the
need for further services. Based upon that assessment, a qualified professional
of the hospital, detoxification facility, or addictions receiving facility, or a qualified
professional if a less restrictive component was used, must either:
(1) Release the client and, where appropriate, refer the client to other needed
services; or
(2) Retain the client when:
28
(a) The client has consented to remain voluntarily at the licensed provider; or
(b) A petition for involuntary assessment or treatment has been initiated, the
timely filing of which authorizes the service provider to retain physical custody of
the client pending further order of the court.
An addiction receiving facility (ARF) is locked, but a detox facility is not. Either is
acceptable for involuntary admission under the Marchman Act other than when a
parent/guardian initiates the Alternative Involuntary Assessment which must be to a
Juvenile ARF.
The only problem is that a licensed substance abuse provider (other than another
hospital under EMTALA) isn’t required to accept the transfer of the patient from your
hospital if any of a number of circumstances exist, as follows:
397.6751 Service provider responsibilities regarding involuntary admissions.--
(1) It is the responsibility of the service provider to:
(a) Ensure that a person who is admitted to a licensed service component meets
the admission criteria specified in s. 397.675;
(b) Ascertain whether the medical and behavioral conditions of the person, as
presented, are beyond the safe management capabilities of the service provider;
(c) Provide for the admission of the person to the service component that
represents the least restrictive available setting that is responsive to the person's
treatment needs;
(d) Verify that the admission of the person to the service component does not
result in a census in excess of its licensed service capacity;
(e) Determine whether the cost of services is within the financial means of the
person or those who are financially responsible for the person's care; and
(f) Take all necessary measures to ensure that each client in treatment is
provided with a safe environment, and to ensure that each client whose medical
condition or behavioral problem becomes such that he or she cannot be safely
managed by the service component is discharged and referred to a more
appropriate setting for care.
(2)(a) When, in the judgment of the service provider, the person who is being
presented for involuntary admission should not be admitted because of his or her
failure to meet admission criteria, because his or her medical or behavioral
conditions are beyond the safe management capabilities of the service provider,
or because of a lack of available space, services, or financial resources to pay for
his or her care, the service provider, in accordance with federal confidentiality
regulations, must attempt to contact the referral source, which may be a law
enforcement officer, physician, parent, legal guardian if applicable, court and
petitioner, or other referring party, to discuss the circumstances and assist in
arranging for alternative interventions.
(b) When the service provider is unable to reach the referral source, the service
provider must refuse admission and attempt to assist the person in gaining
access to other appropriate services, if indicated.
(c) Upon completing these efforts, the service provider must, within one
workday, report in writing to the referral sources, in compliance with federal
confidentiality regulations:
1. The basis for the refusal to admit the person, and
29
2. Documentation of the service provider's efforts to contact the referral source
and assist the person, when indicated, in gaining access to more appropriate
services.
(3) When, in the judgment of the service provider, the medical conditions or
behavioral problems of an involuntary client become such that they cannot be
safely managed by the service component, the service provider must discharge
the client and attempt to assist him or her in securing more appropriate services
in a setting more responsive to his or her needs. Upon completing these efforts,
the service provider must, within 72 hours, report in writing to the referral source,
in compliance with federal confidentiality regulations:
(a) The basis for the client's discharge, and
(b) Documentation of the service provider's efforts to assist the person in gaining
access to appropriate services.
The model forms for the emergency admission application and physician’s certificate are
posted on the DCF website. These are recommended rather than mandatory forms so
you are free to improve on them as long as the forms you come up with comply with the
law. The DCF website has extensive information about the Marchman Act including the
2003 Marchman Act User Reference Guide (300+ pages). The website is at:
www.dcf.state.fl.us/mental health/sa
Click on Marchman Act. Contents include:
2003 Marchman Act User Reference Guide includes among other issues:
Statute & Rules
History & Overview
Marchman Act Model Forms
Law Enforcement and Protective Custody
Quick Reference Guide for Involuntary Provisions
Flow Charts for Involuntary Provisions
Admission & Treatment of Minors
Where to Go for Help
Marchman Act Pamphlet
Substance Abuse Program Standards
Common Licensing Standards
Marchman Act PowerPoint Training Presentation
Q. If we cannot place a Marchman Act patient with in 72 hours after medical
clearance, do we have to release them since our hospitals are NON Marchman
receiving facilities or do we have some strange responsibility because we are
Baker Act Receiving facilities? Or is there a process to hold them longer if we
cannot find placement? We are not sure of the process.
The hospital can initiate an emergency admission under the Marchman Act [397.679,
FS]. As you can see below, you have only 72 hours to hold the person for examination.
Within that time you either have to release the person, convert to voluntary, or file a
petition with the court. See sections highlighted in yellow below:
397.679 Emergency admission; circumstances justifying.--A person who
meets the criteria for involuntary admission in s. 397.675 may be admitted to a
hospital or to a licensed detoxification facility or addictions receiving facility for
30
emergency assessment and stabilization, or to a less intensive component of a
licensed service provider for assessment only, upon receipt by the facility of the
physician's certificate and the completion of an application for emergency
admission.
397.6791 Emergency admission; persons who may initiate.--The following
persons may request an emergency admission:
(1) In the case of an adult, the certifying physician, the person's spouse or
guardian, any relative of the person, or any other responsible adult who has
personal knowledge of the person's substance abuse impairment.
(2) In the case of a minor, the minor's parent, legal guardian, or legal custodian.
397.6793 Physician's certificate for emergency admission.--
(1) The physician's certificate must include the name of the person to be
admitted, the relationship between the person and the physician, the relationship
between the applicant and the physician, any relationship between the physician
and the licensed service provider, and a statement that the person has been
examined and assessed within 5 days of the application date, and must include
factual allegations with respect to the need for emergency admission, including:
(a) The reason for the physician's belief that the person is substance abuse
impaired; and
(b) The reason for the physician's belief that because of such impairment the
person has lost the power of self-control with respect to substance abuse; and
either
(c)1. The reason the physician believes that the person has inflicted or is likely to
inflict physical harm on himself or herself or others unless admitted; or
2. The reason the physician believes that the person's refusal to voluntarily
receive care is based on judgment so impaired by reason of substance abuse
that the person is incapable of appreciating his or her need for care and of
making a rational decision regarding his or her need for care.
(2) The physician's certificate must recommend the least restrictive type of
service that is appropriate for the person. The certificate must be signed by the
physician.
(3) A signed copy of the physician's certificate shall accompany the person, and
shall be made a part of the person's clinical record, together with a signed copy
of the application. The application and physician's certificate authorize the
involuntary admission of the person pursuant to, and subject to the provisions of
ss. 397.679-397.6797.
(4) The physician's certificate must indicate whether the person requires
transportation assistance for delivery for emergency admission and specify,
pursuant to s. 397.6795, the type of transportation assistance necessary.
397.6795 Transportation-assisted delivery of persons for emergency
assessment.--An applicant for a person's emergency admission, or the person's
spouse or guardian, a law enforcement officer, or a health officer may deliver a
person named in the physician's certificate for emergency admission to a hospital
or a licensed detoxification facility or addictions receiving facility for emergency
assessment and stabilization.
397.6797 Dispositional alternatives after emergency admission.--Within 72
hours after an emergency admission to a hospital or a licensed detoxification or
31
addictions receiving facility, the client must be assessed by the attending
physician to determine the need for further services. Within 5 days after an
emergency admission to a nonresidential component of a licensed service
provider, the client must be assessed by a qualified professional to determine the
need for further services. Based upon that assessment, a qualified professional
of the hospital, detoxification facility, or addictions receiving facility, or a qualified
professional if a less restrictive component was used, must either:
(1) Release the client and, where appropriate, refer the client to other needed
services; or
(2) Retain the client when:
(a) The client has consented to remain voluntarily at the licensed provider; or
(b) A petition for involuntary assessment or treatment has been initiated, the
timely filing of which authorizes the service provider to retain physical custody of
the client pending further order of the court.
Since you are a Baker Act receiving facility, if the person had a co-occurring psychiatric
disorder and otherwise met the criteria for involuntary inpatient treatment, you could
have filed a BA-32 petition with the court. There is no provision under the Baker or
Marchman Act to hold the person longer than 72 hours for examination without involving
the court. This time period doesn’t stop for a medical emergency. If you attempted to
refer the person to a licensed substance abuse treatment program within the 72 hour
examination period and If none of the local facilities had the capability or capacity to
manage the person’s condition and the person no longer had an emergency medical
condition, you would have had to release him.
Alternative Involuntary Admission for Minors
Q. I have a parent whose adolescent who is abusing substances; she is in
desperate need of help. How can she get the paperwork to start the process of the
Marchman Act? Where does she need to go here in our County?
You or the parent should contact the DCF Circuit Office in your county to find out what
licensed service providers are available for this family. In the meantime, the Mom can
initiate an involuntary assessment and stabilization of her minor child or can petition the
court to order the adolescent's assessment. The sections from the Marchman Act are
incorporated below:
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary treatment,
and alternative involuntary assessment for minors, for purposes of
assessment and stabilization, and for involuntary treatment.--A person meets the
criteria for involuntary admission if there is good faith reason to believe the
person is substance abuse impaired and, because of such impairment:
(1) Has lost the power of self-control with respect to substance use; and either
(2)(a) Has inflicted, or threatened or attempted to inflict, or unless admitted is
likely to inflict, physical harm on himself or herself or another; or
(b) Is in need of substance abuse services and, by reason of substance abuse
impairment, his or her judgment has been so impaired that the person is
incapable of appreciating his or her need for such services and of making a
rational decision in regard thereto; however, mere refusal to receive such
32
services does not constitute evidence of lack of judgment with respect to his or
her need for such services.
397.6759 Parental participation in treatment.--A parent, legal guardian, or
legal custodian who seeks involuntary admission of a minor pursuant to ss.
397.675-397.6977 is required to participate in all aspects of treatment as
determined appropriate by the director of the licensed service provider.
397.6798 Alternative involuntary assessment procedure for minors.--
(1) In addition to protective custody, emergency admission, and involuntary
assessment and stabilization, an addictions receiving facility may admit a
minor for involuntary assessment and stabilization upon the filing of an
application to an addictions receiving facility by the minor's parent,
guardian, or legal custodian. The application must establish the need for
involuntary assessment and stabilization based on the criteria for involuntary
admission in s. 397.675. Within 72 hours after involuntary admission of a
minor, the minor must be assessed to determine the need for further
services. Assessments must be performed by a qualified professional. If,
after the 72-hour period, it is determined by the attending physician that
further services are necessary, the minor may be kept for a period of up to
5 days, inclusive of the 72-hour period.
(2) An application for alternative involuntary assessment for a minor must
establish the need for immediate involuntary admission and contain the name of
the minor to be admitted, the name and signature of the applicant, the
relationship between the minor to be admitted and the applicant, and factual
allegations with respect to:
(a) The reason for the applicant's belief that the minor is substance abuse
impaired; and
(b) The reason for the applicant's belief that because of such impairment the
minor has lost the power of self-control with respect to substance abuse; and
either
(c)1. The reason the applicant believes that the minor has inflicted or is likely to
inflict physical harm on himself or herself or others unless admitted; or
2. The reason the applicant believes that the minor's refusal to voluntarily
receive substance abuse services is based on judgment so impaired by reason
of substance abuse that he or she is incapable of appreciating his or her need for
such services and of making a rational decision regarding his or her need for
services.
397.6799 Disposition of minor client upon completion of alternative involuntary
assessment.--A minor who has been assessed pursuant to s. 397.6798 must,
within the time specified, be released or referred for further voluntary or
involuntary treatment, whichever is most appropriate to the needs of the minor.
Two forms – one is for the parent to apply for the child’s admission to a Juvenile
Addiction Receiving Facility (a specialty secured facility if one is available) – although
the facility may have modified this form. The other is for the parent to file with the court.
If the court route is used, this form may be a guide for the parent, but a modified one
may actually be used by the court. In any case, a licensed service provider isn’t required
to accept a person for assessment or treatment if staff doesn’t believe the provider’s
admission criteria is met.
33
Court-Involved Involuntary Admission
& Involuntary Treatment
Q. My husband is an alcoholic. If the magistrate agrees he needs help, how long
is he detained? How is the treatment facility chosen? Who pays for the
treatment?
A person can be court ordered for Involuntary Assessment and Stabilization for up to 5
days at a licensed substance abuse provider. If the provider isn’t able to complete the
assessment within the 5 days, it can file a written request for an extension of time to
complete its assessment and the court may grant additional time, not to exceed 7 days
after the date of the renewal order, for the completion of the involuntary assessment and
stabilization of the client. If, depending on the outcome of the assessment, the court
finds the person meets the criteria for involuntary Treatment, he/she can be ordered to
treatment for a period of up to 60 days.
Generally, the person who files the petition for assessment or for treatment is
responsible for identifying a licensed substance abuse provider agency to which the
person can be ordered. The provider must agree that the person meets the criteria for
admission prior to the court ordering the treatment. The provider will only approve if:
The person is substance abuse impaired
It is the least restrictive and most appropriate setting. Most persons with alcoholism
receive their treatment on an outpatient basis.
There is space available in the program
The person’s medical & behavioral condition can be safely managed
It is within financial means of person to pay for the care
If the substance abuse provider is private, it is the obligation of the person or his/her
family to pay for care from health insurance or private payment. If the substance abuse
provider has a contract with the state DCF, it may also require payment for cost of care
on a sliding scale based on a family’s ability to pay. There are usually waiting lists for
admission to publicly funded providers.
Q. While a resident was at our SRT, the doctor filed a petition for involuntary
treatment under the Marchman Act and an order for up to 60 days was entered by
the circuit court. However, no bed has been available in the substance program
for him. Does the Baker Act expire when a Marchman Act is granted by the
Court?
Generally, the Baker and Marchman laws are considered mutually exclusive since
substance abuse is specifically excluded under the Baker Act definition of mental
illness. Chapter 394.467(6)(c), FS states
If at any time prior to the conclusion of the hearing on involuntary inpatient
placement it appears to the court that the person does not meet the criteria for
involuntary inpatient placement under this section, but instead meets the criteria
for involuntary outpatient placement, the court may order the person evaluated
34
for involuntary outpatient placement pursuant to s. 394.4655. The petition and
hearing procedures set forth in s. 394.4655 shall apply. If the person instead
meets the criteria for involuntary assessment, protective custody, or involuntary
admission pursuant to s. 397.675, then the court may order the person to be
admitted for involuntary assessment for a period of 5 days pursuant to s.
397.6811. Thereafter, all proceedings shall be governed by chapter 397.
Based on the appellate court case below, the Marchman Act order is still in force and will
remain so until the man actually undergoes the 60 days of involuntary substance abuse
treatment ordered by the court
S.M.F. v. Needle, 757 So. 2d 1265 (Palm Beach County 2000). The circuit court
granted a petition for involuntary substance abuse treatment for a minor in
response to a petition filed by her parent. The order was for 60 days of
involuntary treatment, the maximum period permitted under law, commencing
upon her admission to the facility. However, the minor ran away prior to
commencing treatment and was returned to the program after the initial court
order had expired. She filed a petition for a writ of habeas corpus arguing that
she was entitled to immediate release because the law provides that “at the
conclusion of the 60-day period of court-ordered involuntary treatment, the client
is automatically discharged unless a motion for renewal of the involuntary
treatment order has been filed with the court…” The Fourth District Court of
Appeals decided that the original court order for 60 days of court ordered
involuntary treatment was not merely 60-days after the entry of the order for
treatment and that the 60-day period contemplated by the Marchman Act did not
expire, because the petitioner ran away before commencing treatment. The
petition for writ of habeas corpus was denied.
Q. We currently have an adult under a Marchman Act Involuntary Court Order for
Treatment and we are petitioning for an extension. The County’s Marchman Act
Court is stating that the initial 60 days of treatment begins the date of the court
order, and not the date of admission to our hospital. The patient eluded pick up
by the Sherriff's office for several weeks, and the court is telling us that that time
still counted toward the 60 days. I can't find any language specific to when the 60
days begins (i.e., from the order or from time of admission into the program).
While the statute isn’t clear, the 4
th
District Court of Appeals determined that the 60 days
begins with the first day of treatment, as follows:
S.M.F. v. Needle, 757 So. 2d 1265 (Palm Beach County 2000). The circuit court
granted a petition for involuntary substance abuse treatment for a minor in
response to a petition filed by her parent. The order was for 60 days of
involuntary treatment, the maximum period permitted under law, commencing
upon her admission to the facility. However, the minor ran away prior to
commencing treatment and was returned to the program after the initial court
order had expired. She filed a petition for a writ of habeas corpus arguing that
she was entitled to immediate release because the law provides that “at the
conclusion of the 60-day period of court-ordered involuntary treatment, the client
is automatically discharged unless a motion for renewal of the involuntary
treatment order has been filed with the court…” The Fourth District Court of
35
Appeals decided that the original court order for 60 days of court ordered
involuntary treatment was not merely 60-days after the entry of the order for
treatment and that the 60-day period contemplated by the Marchman Act did not
expire, because the petitioner ran away before commencing treatment. The
petition for writ of habeas corpus was denied.
This case is directly on point for the situation you describe. An appellate case has
statewide applicability.
Q. Are there any Baker or Marchman Act appellate cases having to do with
elopements after an order for involuntary placement has been entered?
There isn’t any appellate case addressing elopements from facilities under the Baker
Act. However, there is a Marchman case on point that is similar:
S.M.F. v. Needle, 757 So. 2d 1265 (Palm Beach County 2000). The circuit court
granted a petition for involuntary substance abuse treatment for a minor in
response to a petition filed by her parent. The order was for 60 days of
involuntary treatment, the maximum period permitted under law, commencing
upon her admission to the facility. However, the minor ran away prior to
commencing treatment and was returned to the program after the initial court
order had expired. She filed a petition for a writ of habeas corpus arguing that
she was entitled to immediate release because the law provides that “at the
conclusion of the 60-day period of court-ordered involuntary treatment, the client
is automatically discharged unless a motion for renewal of the involuntary
treatment order has been filed with the court…” The Fourth District Court of
Appeals decided that the original court order for 60 days of court ordered
involuntary treatment was not merely 60-days after the entry of the order for
treatment and that the 60-day period contemplated by the Marchman Act did not
expire, because the petitioner ran away before commencing treatment. The
petition for writ of habeas corpus was denied.
Rights of Persons under the Marchman Act
Q. Chapter 397, FS (Marchman Act) requires that each person on involuntary
status be represented by counsel “at every stage” in the proceeding. However, it
doesn’t designate what attorney is responsible for this representation as does the
Baker Act. Who is responsible?
The Marchman Act includes the following provisions related to a person’s right to
counsel:
397.501 Rights of individuals.—
(8) RIGHT TO COUNSEL.--Each individual must be informed that he or she has
the right to be represented by counsel in any involuntary proceeding for
assessment, stabilization, or treatment and that he or she, or if the individual is a
minor his or her parent, legal guardian, or legal custodian, may apply
immediately to the court to have an attorney appointed if he or she cannot afford
one.
36
397.681 Involuntary petitions; general provisions; court jurisdiction and right to
counsel.--
(2) RIGHT TO COUNSEL.--A respondent has the right to counsel at every stage
of a proceeding relating to a petition for his or her involuntary assessment and a
petition for his or her involuntary treatment for substance abuse impairment. A
respondent who desires counsel and is unable to afford private counsel has the
right to court-appointed counsel and to the benefits of s. 57.081. If the court
believes that the respondent needs the assistance of counsel, the court shall
appoint such counsel for the respondent without regard to the respondent's
wishes. If the respondent is a minor not otherwise represented in the proceeding,
the court shall immediately appoint a guardian ad litem to act on the minor's
behalf.
397.6955 Duties of court upon filing of petition for involuntary treatment.--Upon
the filing of a petition for the involuntary treatment of a substance abuse impaired
person with the clerk of the court, the court shall immediately determine whether
the respondent is represented by an attorney or whether the appointment of
counsel for the respondent is appropriate. The court shall schedule a hearing to
be held on the petition within 10 days. A copy of the petition and notice of the
hearing must be provided to the respondent; the respondent's parent, guardian,
or legal custodian, in the case of a minor; the respondent's attorney, if known; the
petitioner; the respondent's spouse or guardian, if applicable; and such other
persons as the court may direct, and have such petition and order personally
delivered to the respondent if he or she is a minor. The court shall also issue a
summons to the person whose admission is sought.
The Office of Criminal Conflict and Civil Regional Counsel has primary responsibility for
representing persons entitled to court-appointed counsel under the Marchman Act, as
follows:
27.5304 Private court-appointed counsel; compensation.—
(7) Counsel entitled to receive compensation from the state for representation
pursuant to court appointment in a proceeding under chapter 384, chapter 390,
chapter 392, chapter 393, chapter 394, chapter 397, chapter 415, chapter 743,
chapter 744, or chapter 984 shall receive compensation not to exceed the limits
prescribed in the General Appropriations Act.
27.511 Offices of criminal conflict and civil regional counsel; legislative intent;
qualifications; appointment; duties.-- 6)(a) Effective October 1, 2007, the office of
criminal conflict and civil regional counsel has primary responsibility for
representing persons entitled to court-appointed counsel under the Federal or
State Constitution or as authorized by general law in civil proceedings, including,
but not limited to, proceedings under s. 393.12 and chapters 39, 390, 392, 397,
415, 743, 744, and 984.
There are few appellate cases regarding the Marchman Act. However, the 2
nd
DCF had
an interesting case, part of which addressed failure to advise the respondent of his right
to counsel or to have counsel appointed for him. A summary of that opinion is below:
37
Steven Cole v. State of Florida. Case No. 98-01718 2
nd
DCA 1998. Appellate
Judge Northcutt wrote the opinion with Appellate Judges Whatley and Altenbernd
concurring. The Tenth Judicial Circuit court convicted Steven Cole of indirect
criminal contempt for violating the court’s order directing him to complete a
program of treatment for substance abuse. The court sentenced Cole to serve 90
days in jail. Cole petitioned the 2
nd
DCA for a writ of habeas corpus and for other
relief. The Second District Court of Appeals ordered his release, quashed his
conviction and sentence for indirect criminal contempt, and prohibited the circuit
court to enforce Cole’s involuntary treatment order. The 2
nd
DCA based its
decision on the failure to inform Cole of his right to counsel and that if could not
afford an attorney, he could ask the court to appoint one to represent him. The
Court noted that Cole was not given meaningful prior notice of the charges
against him, the trial was not recorded as required by law, and the court order
included directives and prohibitions that were beyond the judicial authority
granted by the Marchman Act. Although the Act empowers the court to order a
respondent’s submission to involuntary substance abuse treatment and to enter
such further orders as the circumstances may require, that authority does not
extend to prescribing the specific modalities of the treatment. That authority is
placed with the licensed service provider.
Q. I am with the Clerk of Court and have a question about the appointment of
counsel for Marchman Act cases. The Court doesn't appoint counsel until a
Petition for Involuntary Treatment is filed. At the point of the Ex Parte order for
assessment/stabilization, counsel is not appointed. When does this application
process occur...when the person arrives at the facility? There has been virtually
no follow-up for these cases after the judge orders a person for examination. Our
orders (we use the DCF recommended ones) do not contain any kind of provision
for proof of compliance with the court order. The judge does not address this
issue in the hearing. Unless the petitioner brings the noncompliance to the court's
attention (via the State Attorney's office), there is no further activity on the case. It
seems that the wind goes out of the sails once the hearing is over because it is up
to the respondent to locate and pay for the treatment. Most petitioners believe that
the court arranges for enrollment in a specific treatment program AND pays for it.
Do you have an opinion in this respect?
With regard to appointment of counsel for the respondent, the Marchman Act has the
following provisions:
397.501 Rights of clients.--Clients receiving substance abuse services from any
service provider are guaranteed protection of the rights specified in this section,
unless otherwise expressly provided, and service providers must ensure the
protection of such rights.
(8) RIGHT TO COUNSEL.--Each client must be informed that he or she has the
right to be represented by counsel in any involuntary proceeding for assessment,
stabilization, or treatment and that he or she, or if the client is a minor his or her
parent, legal guardian, or legal custodian, may apply immediately to the court to
have an attorney appointed if he or she cannot afford one.
397.681 Involuntary petitions; general provisions; court jurisdiction and right to
counsel.--
38
(2) RIGHT TO COUNSEL.--A respondent has the right to counsel at every stage
of a proceeding relating to a petition for his or her involuntary assessment and a
petition for his or her involuntary treatment for substance abuse impairment. A
respondent who desires counsel and is unable to afford private counsel has the
right to court-appointed counsel and to the benefits of s. 57.081. If the court
believes that the respondent needs the assistance of counsel, the court shall
appoint such counsel for the respondent without regard to the respondent's
wishes. If the respondent is a minor not otherwise represented in the proceeding,
the court shall immediately appoint a guardian ad litem to act on the minor's
behalf.
397.6814 Involuntary assessment and stabilization; contents of petition.--A
petition for involuntary assessment and stabilization must contain the name of
the respondent; the name of the applicant or applicants; the relationship between
the respondent and the applicant; the name of the respondent's attorney, if
known, and a statement of the respondent's ability to afford an attorney; and
must state facts to support the need for involuntary assessment and stabilization,
including:
397.6815 Involuntary assessment and stabilization; procedure.--Upon receipt
and filing of the petition for the involuntary assessment and stabilization of a
substance abuse impaired person by the clerk of the court, the court shall
ascertain whether the respondent is represented by an attorney, and if not,
whether, on the basis of the petition, an attorney should be appointed; and shall:
(1) Provide a copy of the petition and notice of hearing to the respondent; the
respondent's parent, guardian, or legal custodian, in the case of a minor; the
respondent's attorney, if known; the petitioner; the respondent's spouse or
guardian, if applicable; and such other persons as the court may direct, and have
such petition and notice personally delivered to the respondent if he or she is a
minor. The court shall also issue a summons to the person whose admission is
sought and conduct a hearing within 10 days; or
(2) Without the appointment of an attorney and, relying solely on the contents of
the petition, enter an ex parte order authorizing the involuntary assessment and
stabilization of the respondent. The court may order a law enforcement officer or
other designated agent of the court to take the respondent into custody and
deliver him or her to the nearest appropriate licensed service provider.
397.6818 Court determination.—
(2) If the court enters an order authorizing involuntary assessment and
stabilization, the order shall include the court's findings with respect to the
availability and appropriateness of the least restrictive alternatives and the need
for the appointment of an attorney to represent the respondent, and may
designate the specific licensed service provider to perform the involuntary
assessment and stabilization of the respondent. The respondent may choose the
licensed service provider to deliver the involuntary assessment where possible
and appropriate.
(3) If the court finds it necessary, it may order the sheriff to take the respondent
into custody and deliver him or her to the licensed service provider specified in
the court order or, if none is specified, to the nearest appropriate licensed service
provider for involuntary assessment.
39
397.6955 Duties of court upon filing of petition for involuntary treatment.--Upon
the filing of a petition for the involuntary treatment of a substance abuse impaired
person with the clerk of the court, the court shall immediately determine whether
the respondent is represented by an attorney or whether the appointment of
counsel for the respondent is appropriate. The court shall schedule a hearing to
be held on the petition within 10 days. A copy of the petition and notice of the
hearing must be provided to the respondent; the respondent's parent, guardian,
or legal custodian, in the case of a minor; the respondent's attorney, if known; the
petitioner; the respondent's spouse or guardian, if applicable; and such other
persons as the court may direct, and have such petition and order personally
delivered to the respondent if he or she is a minor. The court shall also issue a
summons to the person whose admission is sought.
.
There is just one appellate case on this issue.
Steven Cole v. State of Florida. Case No. 98-01718 2
nd
DCA 1998. Appellate
Judge Northcutt wrote the opinion with Appellate Judges Whatley and Altenbernd
concurring. The Tenth Judicial Circuit court convicted Steven Cole of indirect
criminal contempt for violating the court’s order directing him to complete a
program of treatment for substance abuse. The court sentenced Cole to serve 90
days in jail. Cole petitioned the 2
nd
DCA for a writ of habeas corpus and for other
relief. The Second District Court of Appeals ordered his release, quashed his
conviction and sentence for indirect criminal contempt, and prohibited the circuit
court to enforce Cole’s involuntary treatment order. The 2
nd
DCA based its
decision on the failure to inform Cole of his right to counsel and that if could not
afford an attorney, he could ask the court to appoint one to represent him. The
Court noted that Cole was not given meaningful prior notice of the charges
against him, the trial was not recorded as required by law, and the court order
included directives and prohibitions that were beyond the judicial authority
granted by the Marchman Act. Although the Act empowers the court to order a
respondent’s submission to involuntary substance abuse treatment and to enter
such further orders as the circumstances may require, that authority does not
extend to prescribing the specific modalities of the treatment. That authority is
placed with the licensed service provider.
The Chief Judge of the 2
nd
DCA stated in the Cole case that:
“There appears to have been a systemic failure concerning the orderly
implementation of the March Act. These circuit court judges may be, at least to
some degree, responsible for that failure, but it doesn’t not appear to me that
they are the primary culprits. There is enough blame for Mr. Cole’s difficulties to
spread a thick coating across all branches and levels of government.”
While the rights of persons under the Marchman Act refer to having access to an
attorney at every stage of a proceeding, the Cole opinion specifically refers to the
following:
397.6815 Involuntary assessment and stabilization; procedure.--Upon receipt
and filing of the petition for the involuntary assessment and stabilization of a
substance abuse impaired person by the clerk of the court, the court shall
40
ascertain whether the respondent is represented by an attorney, and if not,
whether, on the basis of the petition, an attorney should be appointed; and shall:
(1) Provide a copy of the petition and notice of hearing to the respondent; the
respondent's parent, guardian, or legal custodian, in the case of a minor; the
respondent's attorney, if known; the petitioner; the respondent's spouse or
guardian, if applicable; and such other persons as the court may direct, and have
such petition and notice personally delivered to the respondent if he or she is a
minor. The court shall also issue a summons to the person whose admission is
sought and conduct a hearing within 10 days; or
(2) Without the appointment of an attorney and, relying solely on the contents of
the petition, enter an ex parte order authorizing the involuntary assessment and
stabilization of the respondent. The court may order a law enforcement officer or
other designated agent of the court to take the respondent into custody and
deliver him or her to the nearest appropriate licensed service provider.
The 2
nd
DCA notes that this absence of counsel for an ex parte process is in direct
conflict with the requirement to have counsel “at every stage” of an involuntary
admission proceeding. It also notes that the statute provides no authority for an ex
parte order denying the petition. The court concluded that Cole’s order to involuntary
treatment was void because it was entered in violation of Cole’s right to due process
and his right to representation by counsel. While Cole was appointed a public
defender to represent him in a criminal contempt prosecution, at no time at any stage
of either Marchman Act proceeding was Cole furnished counsel, despite the Act’s
guarantee that he was entitled to representation at every stage of the involuntary
proceedings.
Chapter 27.511(6)(a), FS states that effective October 1, 2007, the office of criminal
conflict and civil regional counsel has primary responsibility for representing persons
entitled to court-appointed counsel under the Federal of State Constitution or as
authorized by general law in civil proceedings, including, but not limited to,
proceedings under s.393.12 and chapters 39.390, 392, 397, 415, 743, 744, and
984. Therefore, Regional Counsel can be appointed to represent the respondents in
Marchman Act cases, at least when a petition for involuntary treatment is filed. Due
to the conflict between provision of the Marchman Act about provision of counsel
when an ex parte order for involuntary assessment and stabilization is sought, your
attorney may advise that appointment of counsel for ex parte purposes isn’t
necessary. However, should a hearing be scheduled, it is clear that an appointment
of counsel would be required.
This may not answer the question of who is responsible for retaining counsel for the
petitioner. Since the State Attorney isn’t responsible for Marchman Act (some
circuits do have state attorneys handle these cases) and most service providers
don’t have the resources to hire attorney’s to represent them in Marchman Act
cases, no petition is filed unless the family of the respondent hires an attorney for
this purpose.
With regard to follow-up after the entry of a Marchman Act order, there isn’t any statutory
provision for a service provider to do so. The following provisions may apply:
397.6957 Hearing on petition for involuntary treatment.--
41
(3) At the conclusion of the hearing the court shall either dismiss the petition or
order the respondent to undergo involuntary substance abuse treatment, with the
respondent's chosen licensed service provider to deliver the involuntary
substance abuse treatment where possible and appropriate.
397.697 Court determination; effect of court order for involuntary substance
abuse treatment.--
(1) When the court finds that the conditions for involuntary substance abuse
treatment have been proved by clear and convincing evidence, it may order the
respondent to undergo involuntary treatment by a licensed service provider for a
period not to exceed 60 days. If the court finds it necessary, it may direct the
sheriff to take the respondent into custody and deliver him or her to the licensed
service provider specified in the court order, or to the nearest appropriate
licensed service provider, for involuntary treatment. When the conditions
justifying involuntary treatment no longer exist, the client must be released as
provided in s. 397.6971. When the conditions justifying involuntary treatment are
expected to exist after 60 days of treatment, a renewal of the involuntary
treatment order may be requested pursuant to s. 397.6975 prior to the end of the
60-day period.
(2) In all cases resulting in an order for involuntary substance abuse treatment,
the court shall retain jurisdiction over the case and the parties for the entry of
such further orders as the circumstances may require. The court's requirements
for notification of proposed release must be included in the original treatment
order.
(3) An involuntary treatment order authorizes the licensed service provider to
require the client to undergo such treatment as will benefit him or her, including
treatment at any licensable service component of a licensed service provider.
397.6971 Early release from involuntary substance abuse treatment.--
(1) At any time prior to the end of the 60-day involuntary treatment period, or
prior to the end of any extension granted pursuant to s. 397.6975, a client
admitted for involuntary treatment may be determined eligible for discharge to the
most appropriate referral or disposition for the client when:
(a) The client no longer meets the criteria for involuntary admission and has
given his or her informed consent to be transferred to voluntary treatment status;
(b) If the client was admitted on the grounds of likelihood of infliction of physical
harm upon himself or herself or others, such likelihood no longer exists; or
(c) If the client was admitted on the grounds of need for assessment and
stabilization or treatment, accompanied by inability to make a determination
respecting such need, either:
1. Such inability no longer exists; or
2. It is evident that further treatment will not bring about further significant
improvements in the client's condition;
(d) The client is no longer in need of services; or
(e) The director of the service provider determines that the client is beyond the
safe management capabilities of the provider.
(2) Whenever a qualified professional determines that a client admitted for
involuntary treatment is ready for early release for any of the reasons listed in
subsection (1), the service provider shall immediately discharge the client, and
must notify all persons specified by the court in the original treatment order.
42
397.6977 Disposition of client upon completion of involuntary substance abuse
treatment.--At the conclusion of the 60-day period of court-ordered involuntary
treatment, the client is automatically discharged unless a motion for renewal of
the involuntary treatment order has been filed with the court pursuant to s.
397.6975.
397.6751 Service provider responsibilities regarding involuntary admissions.--
(1) It is the responsibility of the service provider to:
(a) Ensure that a person who is admitted to a licensed service component meets
the admission criteria specified in s. 397.675;
(b) Ascertain whether the medical and behavioral conditions of the person, as
presented, are beyond the safe management capabilities of the service provider;
(c) Provide for the admission of the person to the service component that
represents the least restrictive available setting that is responsive to the person's
treatment needs;
(d) Verify that the admission of the person to the service component does not
result in a census in excess of its licensed service capacity;
(e) Determine whether the cost of services is within the financial means of the
person or those who are financially responsible for the person's care; and
(f) Take all necessary measures to ensure that each client in treatment is
provided with a safe environment, and to ensure that each client whose medical
condition or behavioral problem becomes such that he or she cannot be safely
managed by the service component is discharged and referred to a more
appropriate setting for care.
(2)(a) When, in the judgment of the service provider, the person who is being
presented for involuntary admission should not be admitted because of his or her
failure to meet admission criteria, because his or her medical or behavioral
conditions are beyond the safe management capabilities of the service provider,
or because of a lack of available space, services, or financial resources to pay for
his or her care, the service provider, in accordance with federal confidentiality
regulations, must attempt to contact the referral source, which may be a law
enforcement officer, physician, parent, legal guardian if applicable, court and
petitioner, or other referring party, to discuss the circumstances and assist in
arranging for alternative interventions.
(b) When the service provider is unable to reach the referral source, the service
provider must refuse admission and attempt to assist the person in gaining
access to other appropriate services, if indicated.
(c) Upon completing these efforts, the service provider must, within one
workday, report in writing to the referral sources, in compliance with federal
confidentiality regulations:
1. The basis for the refusal to admit the person, and
2. Documentation of the service provider's efforts to contact the referral source
and assist the person, when indicated, in gaining access to more appropriate
services.
(3) When, in the judgment of the service provider, the medical conditions or
behavioral problems of an involuntary client become such that they cannot be
safely managed by the service component, the service provider must discharge
the client and attempt to assist him or her in securing more appropriate services
in a setting more responsive to his or her needs. Upon completing these efforts,
the service provider must, within 72 hours, report in writing to the referral source,
in compliance with federal confidentiality regulations:
43
(a) The basis for the client's discharge, and
(b) Documentation of the service provider's efforts to assist the person in gaining
access to appropriate services.
There are significant waiting lists for scarce publicly funded treatment beds
throughout Florida. Because the Marchman Act allows a service provider to decline
services to a person, even one under order of the court, some Clerks of Court
require an applicant for such an order to furnish documentation from a licensed
service provider of it’s willingness to admit the person if so ordered by the court.
You could modify the model order form to include a requirement that the court be
notified when the person is released – either at end of the court ordered term or prior
to that in Early Release situations
Transportation – Marchman Act
Q. Does it state anywhere in 397 about transportation for Marchman Acts as is
does in the Baker Act? (nearest receiving or exception plan)?
No, there is no corresponding requirement for transportation in the Marchman Act as
there is in the Baker Act. There is a presumption in the Protective Custody provisions
that the law enforcement officer initiating will transport the person to any licensed
detoxification center, Addiction Receiving Facility, or hospital. If the person is taken to
jail because there is no available licensed facility, the law states:
Such detention is not to be considered an arrest for any purpose, and no entry or
other record may be made to indicate that the person has been detained or
charged with any crime. The officer in charge of the detention facility must notify
the nearest appropriate licensed service provider within the first 8 hours after
detention that the person has been detained. It is the duty of the detention
facility to arrange, as necessary, for transportation of the person to an
appropriate licensed service provider with an available bed. Persons taken
into protective custody must be assessed by the attending physician within the
72-hour period and without unnecessary delay, to determine the need for further
services.
The physician’s certificate for emergency admission must include:
397.6793(4) The physician's certificate must indicate whether the person
requires transportation assistance for delivery for emergency admission and
specify, pursuant to s. 397.6795, the type of transportation assistance necessary.
397.6795 Transportation-assisted delivery of persons for emergency
assessment.--An applicant for a person's emergency admission, or the person's
spouse or guardian, a law enforcement officer, or a health officer may deliver a
person named in the physician's certificate for emergency admission to a hospital
or a licensed detoxification facility or addictions receiving facility for emergency
assessment and stabilization.
Other than these provisions, the Marchman Act is silent as to transport responsibility
44
Responsibilities of Licensed Substance Abuse Providers
Q. Can a Marchman Act Receiving Facility refuse to accept clients? I know Baker
Act receiving facilities cannot, but can they?
Yes, a Marchman Act facility, other than licensed hospitals subject to the federal
EMTALA law, is permitted to refuse admission to voluntary or involuntary persons under
the Marchman Act, as follows:
397.6751 Service provider responsibilities regarding involuntary
admissions.
(1)It is the responsibility of the service provider to:
(a)Ensure that a person who is admitted to a licensed service component meets
the admission criteria specified in s. 397.675;
(b)Ascertain whether the medical and behavioral conditions of the person, as
presented, are beyond the safe management capabilities of the service provider;
(c)Provide for the admission of the person to the service component that
represents the least restrictive available setting that is responsive to the person’s
treatment needs;
(d)Verify that the admission of the person to the service component does not
result in a census in excess of its licensed service capacity;
(e)Determine whether the cost of services is within the financial means of the
person or those who are financially responsible for the person’s care; and
(f)Take all necessary measures to ensure that each individual in treatment is
provided with a safe environment, and to ensure that each individual whose
medical condition or behavioral problem becomes such that he or she cannot be
safely managed by the service component is discharged and referred to a more
appropriate setting for care.
(2)(a)When, in the judgment of the service provider, the person who is being
presented for involuntary admission should not be admitted because of his or her
failure to meet admission criteria, because his or her medical or behavioral
conditions are beyond the safe management capabilities of the service provider,
or because of a lack of available space, services, or financial resources to pay for
his or her care, the service provider, in accordance with federal confidentiality
regulations, must attempt to contact the referral source, which may be a law
enforcement officer, physician, parent, legal guardian if applicable, court and
petitioner, or other referring party, to discuss the circumstances and assist in
arranging for alternative interventions.
(b)When the service provider is unable to reach the referral source, the service
provider must refuse admission and attempt to assist the person in gaining
access to other appropriate services, if indicated.
(c)Upon completing these efforts, the service provider must, within one workday,
report in writing to the referral sources, in compliance with federal confidentiality
regulations:
1.The basis for the refusal to admit the person, and
2.Documentation of the service provider’s efforts to contact the referral source
and assist the person, when indicated, in gaining access to more appropriate
services.
(3)When, in the judgment of the service provider, the medical conditions or
behavioral problems of an involuntary individual become such that they cannot
45
be safely managed by the service component, the service provider must
discharge the individual and attempt to assist him or her in securing more
appropriate services in a setting more responsive to his or her needs. Upon
completing these efforts, the service provider must, within 72 hours, report in
writing to the referral source, in compliance with federal confidentiality
regulations:
(a)The basis for the individual’s discharge; and
(b)Documentation of the service provider’s efforts to assist the person in gaining
access to appropriate services.
397.431 Individual responsibility for cost of substance abuse impairment
services.
(1)Before accepting an individual for admission and in accordance with
confidentiality guidelines, both the full charge for services and the fee charged to
the individual for such services under the provider’s fee system or payment policy
must be disclosed to each individual or his or her authorized personal
representative, or parent or legal guardian if the individual is a minor who did not
seek treatment voluntarily and without parental consent.
(2)An individual or his or her authorized personal representative, or parent or
legal guardian if the individual is a minor, is required to contribute toward the cost
of substance abuse services in accordance with his or her ability to pay, unless
otherwise provided by law.
(3)The parent, legal guardian, or legal custodian of a minor is not liable for
payment for any substance abuse services provided to the minor without parental
consent pursuant to s. 397.601(4), unless the parent, legal guardian, or legal
custodian participates or is ordered to participate in the services, and only for the
substance abuse services rendered. If the minor is receiving services as a
juvenile offender, the obligation to pay is governed by the law relating to juvenile
offenders.
(4)Service providers that do not contract for state funds to provide substance
abuse services as defined in this chapter may establish their own admission
policies regarding provisions for payment for services. Such policies must comply
with other statutory and regulatory requirements governing state or federal
reimbursements to a provider for services delivered to individuals. As used in this
subsection, the term “contract for state funds” does not include Medicaid funds.
(5)Service providers that contract for state funds to provide substance abuse
services as defined in this chapter must establish a fee system based upon an
individual’s ability to pay and, if space and sufficient state resources are
available, may not deny an individual access to services solely on the basis of
the individual’s inability to pay.
It is reported that licensed substance abuse facilities “just say NO” and don’t go through
the other statutorily required attempts to assist in finding alternate programs or contact
the referring agency. That’s how folks often end up in ED’s – they can’t say “no”, but
then they want folks taken by LEO’s from the ED to jail upon stabilization. This is a
problem because if the person is truly stabilized, they don’t need civil protective custody
under Marchman Act. This leaves law enforcement with significant liability.
Q. Is a Marchman Act facility required to accept a person brought by law
enforcement for involuntary admission?
46
Unlike Baker Act where a designated receiving facility must accept any person brought
by law enforcement under involuntary status, chapter 397.6751(2) of the Marchman Act
allows a detox facility or Addiction Receiving Facility (ARF) to refuse admission under
any of the following conditions:
(a) When, in the judgment of the service provider, the person who is being
presented for involuntary admission should not be admitted because of his or her
failure to meet admission criteria, because his or her medical or behavioral
conditions are beyond the safe management capabilities of the service provider,
or because of a lack of available space, services, or financial resources to pay for
his or her care, the service provider, in accordance with federal confidentiality
regulations, must attempt to contact the referral source, which may be a law
enforcement officer, physician, parent, legal guardian if applicable, court and
petitioner, or other referring party, to discuss the circumstances and assist in
arranging for alternative interventions.
(b) When the service provider is unable to reach the referral source, the service
provider must refuse admission and attempt to assist the person in gaining
access to other appropriate services, if indicated.
(c) Upon completing these efforts, the service provider must, within one
workday, report in writing to the referral sources, in compliance with federal
confidentiality regulations:
1. The basis for the refusal to admit the person, and
2. Documentation of the service provider's efforts to contact the referral source
and assist the person, when indicated, in gaining access to more appropriate
services.
(3) When, in the judgment of the service provider, the medical conditions or
behavioral problems of an involuntary client become such that they cannot be
safely managed by the service component, the service provider must discharge
the client and attempt to assist him or her in securing more appropriate services
in a setting more responsive to his or her needs. Upon completing these efforts,
the service provider must, within 72 hours, report in writing to the referral source,
in compliance with federal confidentiality regulations:
(a) The basis for the client's discharge, and
(b) Documentation of the service provider's efforts to assist the person in gaining
access to appropriate services.
Q. We now have an Addictions Receiving Facility (ARF) licensed here at our
receiving facility that we combined with our crisis stabilization unit. If we are the
only addictions receiving facility in the area and law enforcement has a Marchman
Act that they bring to an emergency room at a nearby hospital, are we (ARF)
responsible for this patient if we have no beds available? Recently, a person was
delivered to the ED of a nearby hospital with a very high BAL under Marchman Act
Protective Custody initiated by the law enforcement officer. The ED stated it had
no legal right to hold this patient against his will (even though the person was
seriously impaired) and that responsibility was ours, as the ARF in the area. While
we may have some obligation to aid in placement, I think some responsibility
would be with the ED under the medical emergency act. Can a ED actually let the
patient leave without any effort to restrain or hold them until such time as a bed is
available or the client is no longer impaired? In this case, an ARF bed was not
47
readily available and the client was eventually baker acted to get around the
dispute. Under the involuntary rules of the Marchman act, does the hospital have
the legal right to restrain if necessary, similar to the Baker Act?
As an addictions receiving facility, you are not required to admit or retain a person under
the Marchman Act. You do have an obligation if a person is brought to you for
involuntary admission, as follows:
397.6751 Service provider responsibilities regarding involuntary
admissions.
(1)It is the responsibility of the service provider to:
(a)Ensure that a person who is admitted to a licensed service component meets
the admission criteria specified in s. 397.675;
(b)Ascertain whether the medical and behavioral conditions of the person, as
presented, are beyond the safe management capabilities of the service provider;
(c)Provide for the admission of the person to the service component that
represents the least restrictive available setting that is responsive to the person’s
treatment needs;
(d)Verify that the admission of the person to the service component does not
result in a census in excess of its licensed service capacity;
(e)Determine whether the cost of services is within the financial means of the
person or those who are financially responsible for the person’s care; and
(f)Take all necessary measures to ensure that each individual in treatment is
provided with a safe environment, and to ensure that each individual whose
medical condition or behavioral problem becomes such that he or she cannot be
safely managed by the service component is discharged and referred to a more
appropriate setting for care.
(2)(a)When, in the judgment of the service provider, the person who is being
presented for involuntary admission should not be admitted because of his or her
failure to meet admission criteria, because his or her medical or behavioral
conditions are beyond the safe management capabilities of the service provider,
or because of a lack of available space, services, or financial resources to pay for
his or her care, the service provider, in accordance with federal confidentiality
regulations, must attempt to contact the referral source, which may be a law
enforcement officer, physician, parent, legal guardian if applicable, court and
petitioner, or other referring party, to discuss the circumstances and assist in
arranging for alternative interventions.
(b)When the service provider is unable to reach the referral source, the service
provider must refuse admission and attempt to assist the person in gaining
access to other appropriate services, if indicated.
(c)Upon completing these efforts, the service provider must, within one workday,
report in writing to the referral sources, in compliance with federal confidentiality
regulations:
1.The basis for the refusal to admit the person, and
2.Documentation of the service provider’s efforts to contact the referral source
and assist the person, when indicated, in gaining access to more appropriate
services.
(3)When, in the judgment of the service provider, the medical conditions or
behavioral problems of an involuntary individual become such that they cannot
be safely managed by the service component, the service provider must
discharge the individual and attempt to assist him or her in securing more
48
appropriate services in a setting more responsive to his or her needs. Upon
completing these efforts, the service provider must, within 72 hours, report in
writing to the referral source, in compliance with federal confidentiality
regulations:
(a)The basis for the individual’s discharge; and
(b)Documentation of the service provider’s efforts to assist the person in gaining
access to appropriate services.
If you document that you don’t have the capacity (space), capability (programming), or
other factors enumerated in the Marchman Act to manage the person’s condition, you
have no obligation to accept the transfer. If a law enforcement officer brings an
intoxicated person to your combined ARF/CSU under a Baker Act, you would have to
accept the individual. If that individual had an acute physical condition beyond your
facility’s ability to manage, you could then arrange medical transport to a hospital.
However, if the law enforcement officer who takes the person into protective custody
under the Marchman Act determines that a hospital is a more appropriate setting than a
detox facility or an ARF, the officer has clear legal authority to take the person to a
hospital, as follows:
397.6771 Protective custody with consent.
A person in circumstances which justify protective custody, as described in s.
397.677, may consent to be assisted by a law enforcement officer to his or her
home, to a hospital, or to a licensed detoxification or addictions receiving facility,
whichever the officer determines is most appropriate.
397.6772 Protective custody without consent.
(1)If a person in circumstances which justify protective custody as described in s.
397.677 fails or refuses to consent to assistance and a law enforcement officer
has determined that a hospital or a licensed detoxification or addictions receiving
facility is the most appropriate place for the person, the officer may, after giving
due consideration to the expressed wishes of the person:
(a)Take the person to a hospital or to a licensed detoxification or addictions
receiving facility against the person’s will but without using unreasonable force;
or
(b)In the case of an adult, detain the person for his or her own protection in any
municipal or county jail or other appropriate detention facility.
397.6773 Dispositional alternatives after protective custody.
(1)An individual who is in protective custody must be released by a qualified
professional when:
(a)The individual no longer meets the involuntary admission criteria in s.
397.675(1);
(b)The 72-hour period has elapsed; or
(c)The individual has consented to remain voluntarily at the licensed service
provider.
(2)An individual may only be retained in protective custody beyond the 72-hour
period when a petition for involuntary assessment or treatment has been
initiated. The timely filing of the petition authorizes the service provider to retain
physical custody of the individual pending further order of the court.
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A licensed hospital is required under the federal EMTALA law to accept any person for
the purpose of conducting a medical screening examination to determine if the person
has an emergency medical condition (EMC). An EMC includes a psychiatric emergency
or a substance abuse emergency, even absent any other medical condition.
If the person has an EMC, the hospital's emergency department must either admit or
transfer the person to another facility with the capability and capacity to meet the
person's needs. Such a transfer is appropriate only when all medical records are
provided in advance to the proposed destination facility and prior approval has been
provided by that facility.
There is no conflict for hospitals between the Marchman Act and the EMTALA law --
both require the hospital to accept and examine. The Marchman Act permits the
hospital to retain the person for up to 72-hours if meeting the involuntary admission
criteria. The ARF and the hospital have the same rights and responsibilities under the
law.
Until the person is documented by a qualified professional to no longer meet the legal
criteria for detention under one of the protective statutes, the liability for a hospital
releasing such a person can be enormous. There are many methods hospital EDs
routinely use to divert persons from leaving AMA. This is especially important since the
law permits any hospital to retain the person under the circumstances described above.
Use of mechanical and chemical restraints is more likely governed by the federal
Conditions of Participation. Restraints cannot be used for behavioral purposes except
as permitted under documented situations of imminent danger. The Marchman Act also
limits use of restraints “to control aggressive behavior that poses an immediate threat…”
397.501(3) RIGHT TO QUALITY SERVICES.—
(a)Each individual must be delivered services suited to his or her needs,
administered skillfully, safely, humanely, with full respect for his or her dignity and
personal integrity, and in accordance with all statutory and regulatory
requirements.
(b)These services must include the use of methods and techniques to control
aggressive behavior that poses an immediate threat to the individual or to other
persons. Such methods and techniques include the use of restraints, the use of
seclusion, the use of time-out, and other behavior management techniques.
When authorized, these methods and techniques may be applied only by
persons who are employed by service providers and trained in the application
and use of these methods and techniques. The department must specify by rule
the methods that may be used and the techniques that may be applied by service
providers to control aggressive behavior and must specify by rule the physical
facility requirements for seclusion rooms, including dimensions, safety features,
methods of observation, and contents.
Q. In the recent past this hospital has received 3 Law Enforcement Marchman Act
patients, and we are not very clear on how to handle them. The mental health unit
here is locked and patients cannot just leave when they are ready, most
Marchman Act receiving facilities are not locked and patients can leave are we
violating someone rights by making them stay?
50
On the one hand, you are required by the federal EMTALA law to accept all persons
brought to your ED and assess them for an emergency medical condition. Federal CMS
defines such an emergency medical condition to include emergency psychiatric and
substance abuse condition, even absent any other medical issues on pre-admission
status. If you confirm that the person has an emergency substance abuse condition and
you don't have the capacity or capability to provide for the person's special needs, you
would need to seek out an appropriate hospital that has such capability and capacity.
Your unit is titled “Mental Health Addiction Recovery Unit”. If your hospital has beds that
are separately licensed by AHCA for substance abuse from those that are licensed for
psychiatric purposes, you would have an obligation to provide care for person’s
emergency condition. You would be able to lawfully retain the person for up to 72 hours
for evaluation prior to release or petitioning the court for further stay.
As you may know, non-hospital substance abuse service providers aren't subject to the
EMTALA law and would not be required to accept the transfer for any variety of reasons,
including inability to pay the cost of care.
The criteria for involuntary admission under the Marchman Act is as follows:
397.675 Criteria for involuntary admissions, including protective custody,
emergency admission, and other involuntary assessment, involuntary treatment,
and alternative involuntary assessment for minors, for purposes of assessment
and stabilization, and for involuntary treatment.--A person meets the criteria for
involuntary admission if there is good faith reason to believe the person is
substance abuse impaired and, because of such impairment:
(1) Has lost the power of self-control with respect to substance use; and either
(2)(a) Has inflicted, or threatened or attempted to inflict, or unless admitted is
likely to inflict, physical harm on himself or herself or another; or
(b) Is in need of substance abuse services and, by reason of substance abuse
impairment, his or her judgment has been so impaired that the person is
incapable of appreciating his or her need for such services and of making a
rational decision in regard thereto; however, mere refusal to receive such
services does not constitute evidence of lack of judgment with respect to his or
her need for such services.
A qualified professional who can perform the examination and authorize the person’s
release is defined as follows:
397.311(25) "Qualified professional" means a physician licensed under chapter
458 or chapter 459; a professional licensed under chapter 490 or chapter 491; or
a person who is certified through a department-recognized certification process
for substance abuse treatment services and who holds, at a minimum, a
bachelor's degree. A person who is certified in substance abuse treatment
services by a state-recognized certification process in another state at the time of
employment with a licensed substance abuse provider in this state may perform
the functions of a qualified professional as defined in this chapter but must meet
certification requirements contained in this subsection no later than 1 year after
his or her date of employment.
51
Staff at DCF HQ have indicated that a person held under the Marchman Act who doesn’t
have a co-existing mental illness can’t be held in a Baker Act receiving facility. The
reason for this is that voluntary and involuntary admissions under the Baker Act require
that the person have a mental illness, but that legal definition excludes intoxication and
substance abuse impairment, among others. However, if your hospital has beds
separately licensed by AHCA for substance abuse, this may be different.
Most hospitals have the person examined by a ED physician to rule out any medical
complications associated with the substance abuse impairment. They then make efforts
to refer the person to local licensed substance abuse providers and provide persons with
information how to follow-up should there not be current availability of service. They are
then released for outpatient follow-up. Whether this is fully compliant with EMTALA
needs to be determined by your hospital’s Compliance Officer.
Q. I understand that an LCSW can Initiate a Baker Act or Marchman Act. Can an
LCSW also rescind one?
An LCSW can initiate a Baker Act involuntary examination, but only a physician or
psychologist can conduct the examination once initiated. Only a psychiatrist,
psychologist or ED physician can approve the release of a person from a receiving
facility after an involuntary examination.
Regarding the Marchman Act, requirements are quite different. A law enforcement
officer can initiate Protective Custody, a circuit court can initiate Involuntary Assessment
and Stabilization, a parent/guardian can initiate Alternative Admission for Minors to a
JARF. An Emergency Admission of an adult however can only be initiated by a
physician, spouse, guardian, relative or other responsible adult, but it requires the
certification of a physician. Without the written accompanying certification of a physician
containing the required elements, an emergency admission under the Marchman Act
wouldn’t be valid.
Once admitted under the Marchman Act, an LCSW is one of the professionals statutorily
defined as a “Qualified Professional” to approve the person’s release or to provide an
assessment to the court as part of a petition for involuntary treatment.
Provisions under the Baker Act are entirely different than those under the Marchman
Act. The only thing in common is the federal EMTALA law that recognizes psychiatric
and substance abuse emergencies as emergency medical conditions even absent any
other medical conditions.
Q. Regarding the Marchman Act and some new interpretations of the law, I am
being told that I can not use my Marchman Act Detox status to hold a person
under the Marchman Act against their will. What does that mean? Under current
practice, a person comes here under the Marchman Act for detox and we have
either 72 hrs or 5 days – depending on the type to evaluate and discharge or
change to voluntary. We know we can not use restraints and or seclusion. We
know that if their behaviors are a problem, we can change to Baker Act if they
meet the criteria or discharge. Now I am told that if they want to leave while still
under the Marchman we have to let them go even if they meet the involuntary
52
criteria. I am told that the only way we can hold is if we are a Addictions Receiving
Faculty. Is this correct?
You absolutely may use a detox facility to accept and hold a person for involuntary
admission under the Marchman Act. There are only a few adult Addiction Receiving
Facilities licensed throughout the state – other locations use inpatient hospitals and
residential or outpatient detox facilities for this purpose. The law and rules haven’t
changed on this issue to my knowledge. However, you can’t lock or otherwise physically
secure a detox facility – usually the “protective custody” by a law enforcement officer or
an order of the court for involuntary assessment and stabilization is sufficient to convince
the individual to stay for the 72 hour period allowed by law for inpatient settings.
The following provision of the Marchman Act governs your duty to release a person:
397.6758 Release of client from protective custody, emergency admission,
involuntary assessment, involuntary treatment, and alternative involuntary
assessment of a minor.--A client involuntarily admitted to a licensed service
provider may be released without further order of the court only by a qualified
professional in a hospital, a detoxification facility, an addictions receiving facility,
or any less restrictive treatment component. Notice of the release must be
provided to the applicant in the case of an emergency admission or an alternative
involuntary assessment for a minor, or to the petitioner and the court if the
involuntary assessment or treatment was court ordered. In the case of a minor
client, the release must be:
(1) To the client's parent, legal guardian, or legal custodian or the authorized
designee thereof;
(2) To the Department of Children and Family Services pursuant to s. 39.401; or
(3) To the Department of Juvenile Justice pursuant to s. 984.13.
The Marchman Act states that the timely filing of a petition for involuntary treatment
following involuntary admission authorizes the service provider to continue to retain
physical custody of the client pending further order of the court.
Q. I'm wondering if many people have insurance coverage for substance abuse.
Do you know if it is covered in the Parity Act or is that only for mental illness?
After detox, how do people get treatment immediately if they can't pay? We had
always referred them to the County Central Intake to be placed on a waiting list. Is
the Marchman Act primarily for detox or for ongoing treatment as well? A local
hospital has a well known Addiction Treatment Center.
…
Many people do have coverage for substance abuse treatment, but unfortunately, many
have lost their jobs due to the economy or to their addiction. Further, many employer
sponsored health policies only cover the employee, but not their dependents. Many
plans have a lot of exclusions, limitations, and pre-certification requirements. Finally,
some employees don’t want their employers to know of their diagnosis and need for
substance abuse treatment. All these can be barriers However, substance abuse
treatment is covered in the federal parity law, but there continue to be many exclusions
to Parity.
53
Ability to pay for care is a condition for acceptance to a licensed substance abuse
provider under the Marchman Act. This applies in any setting except for state funded
substance abuse programs that have the capacity and capability within their funded
beds. The only other exception is for hospitals that have beds licensed for substance
abuse treatment. They would have to accept any person, regardless of ability to pay, if
they have the capability / capacity to meet a person’s emergency medical condition. The
Federal Centers for Medicare and Medicaid define a substance abuse or psychiatric
emergency as an emergency medical condition under the EMTALA law. If a person has
no method of paying for care and there isn’t a hospital with available licensed substance
abuse beds, you should continue to refer to the county’s program.
Substance abuse withdrawal may be a medical issue, rather than a substance abuse
treatment issue. If a person has a potentially life-threatening condition, it would clearly fit
under one of the other medical consent laws. However, if the intervention is intended to
treat the substance abuse impairment, it would fit under the Marchman Act.
Marchman Act Records & Forms
Q. Our in-house attorney has researched issues related to having “original”
Marchman Act documents, but would like to know your thoughts and if you know
of any case law that speaks directly to the issue. Once we have determined how
best to proceed, we will instruct our staff accordingly.
You should be commended for consulting with your agency’s legal counsel. The only
references to “originals” in the Marchman Act relate to court orders and one reference to
treatment orders. The law makes no reference to the law enforcement officer’s
Protective Custody form having to be the original and the rules don’t address this issue
at all. The model state LEO Protective Custody form is recommended, but is not a
required form. Some locales use locally developed forms for this purpose.
There is no reference in the Baker Act to requiring originals of any documents. In fact,
the Florida Administrative Code governing the Baker Act was revised in 2005 to
eliminate any reference to “originals” and the Baker Act forms also were revised to omit
such references.
The Department of Children and Families strongly supports the development of
electronic medical records in which there is no hard copy available at all. Even the court
system throughout the state is rapidly phasing in electronic filings that will have no hard
copy and no original signatures.
You were correct in accepting the person to your ARF via medical transport for
Protective Custody / involuntary admission initiated by law enforcement even though the
officer had forgotten to sign the form. You were going to ask the officer to sign a copy of
the form and fax it to you for your records, but not require the officer to travel to your
program to provide an original signature. This is respectful of the valuable time of the
officer and protective of the client’s safety by expeditiously accepting him into a safe
setting.
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Unless you have suspicion that a copy of a form has been altered in some way,
insistence on an original may be an artificial barrier to acceptance of an otherwise
appropriate client.
Q. I had a call from a court clerk in our MH Division. He is asking for some
guidance about Baker Act and Marchman Act records. Apparently the office has
always considered the cases / records protected / confidential, but the clerk
wasn't able to locate anything in 394 or 397 that clearly stated this. He hadn't
reviewed the administrative rules, but I told him that I'd contact you in case you
could provide a quick answer. Apparently a newspaper reporter is asking
whether a particular person has been petitioned under the Marchman Act. There
has not been a petition on the person, but the clerk wants to be sure about what
he should/shouldn't say/release now and in the future.
Federal and state laws are very restrictive on what can be released about persons
concerning their mental health and substance abuse treatment. The Baker Act and
Marchman Act allow, after a good cause hearing, for a circuit judge to release
information about a person. This good cause hearing – usually is an in camera
inspection of the record by the judge. The Marchman Act reads as follow:
397.501 Rights of clients.
(7) Right to Confidentiality of Client Records.--
(a) The records of service providers which pertain to the identity, diagnosis, and
prognosis of and service provision to any individual client are confidential in
accordance with this chapter and with applicable federal confidentiality
regulations and are exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I
of the State Constitution. Such records may not be disclosed without the written
consent of the client to whom they pertain except that appropriate disclosure may
be made without such consent:
5. Upon court order based on application showing good cause for disclosure. In
determining whether there is good cause for disclosure, the court shall examine
whether the public interest and the need for disclosure outweigh the potential
injury to the client, to the service provider-client relationship, and to the service
provider itself.
The Florida Attorney General has several opinions related to the clerk and such records,
including the following summaries of these opinions:
AGO 91-10 Regarding the inspection and copying requirements of Baker
Act and Marchman Act records possessed by the clerk of court. 1991 WL
528139 (Fla. A.G.) Attorney General Robert A. Butterworth advised the Clerk of
the Court for Lee County, FL that Baker Act patients' clinical records produced
pursuant to section 394.459(9), Fla. Stat. are specifically made confidential and
are exempt from being inspected and copied by the public pursuant to section
119, Fla. Stat. Generally, when materials are filed with the clerk of court, such
records are open to the public. AGO 89-94 concluded that in the absence of a
specific statutory provision or court rule making a record confidential or dictating
the manner of its release and absent a court order closing a particular court
record, probate records filed with the clerk of court are subject to Ch. 119, F.S.
The records created pursuant to the Baker and Marchman Acts are confidential
55
and exempt from s. 119.07(1), F.S., when placed in the possession of the clerk of
court.
AGO 97-67 Regarding the clerk’s authority to maintain confidentiality of
confidential information contained in the official records. It is the clerk’s
responsibility to devise a method to ensure the integrity of the Official Records
while also maintaining the confidential status of information contained within.
Nothing in the Public Records Law or the statures governing the duties of the
clerk authorizes the clerk to alter or destroy Official Records. However, the
statute does impose a duty on the clerk to prevent the release of confidential
material that may be contained in the Official Records. There is nothing that
precludes the clerk from altering reproductions of the Official Records to protect
confidential information. The manner in which this is to be accomplished rests
within the sound discretion of the clerk.
The federal and state laws governing the subject as well as the Attorney General
Opinions should be very persuasive. Perhaps the county attorney that advises the Clerk
of Courts could use the above and attached information to give legal advice to the
Clerk. Open Government is a critical issue, especially to the media.
Confidentiality
Q. What information does the Marchman Act law and rules permit a facility to
share with law enforcement, including the reference to the Code of Federal
Regulations that also deal with the issue?
Assuming that the person refuses to allow the facility to acknowledge his presence in the
substance abuse facility, you may need to file a petition for a good cause hearing to get
a court order. Law enforcement general has no interest in a person’s clinical records –
they just want to serve a warrant or arrest him. Hopefully the HIPAA information you
already have will suffice.
397.501, FS Rights of individuals.
(7)RIGHT TO CONFIDENTIALITY OF INDIVIDUAL RECORDS.—
(a)The records of service providers which pertain to the identity, diagnosis, and
prognosis of and service provision to any individual are confidential in
accordance with this chapter and with applicable federal confidentiality
regulations and are exempt from s. 119.07(1) and s. 24(a), Art. I of the State
Constitution. Such records may not be disclosed without the written consent of
the individual to whom they pertain except that appropriate disclosure may be
made without such consent:
1.To medical personnel in a medical emergency.
2.To service provider personnel if such personnel need to know the information
in order to carry out duties relating to the provision of services to an individual.
3.To the secretary of the department or the secretary’s designee, for purposes of
scientific research, in accordance with federal confidentiality regulations, but only
upon agreement in writing that the individual’s name and other identifying
information will not be disclosed.
4.In the course of review of service provider records by persons who are
performing an audit or evaluation on behalf of any federal, state, or local
56
government agency, or third-party payor providing financial assistance or
reimbursement to the service provider; however, reports produced as a result of
such audit or evaluation may not disclose names or other identifying
information and must be in accordance with federal confidentiality
regulations.
5.Upon court order based on application showing good cause for disclosure.
In determining whether there is good cause for disclosure, the court shall
examine whether the public interest and the need for disclosure outweigh the
potential injury to the individual, to the service provider and the individual, and to
the service provider itself.
(b)The restrictions on disclosure and use in this section do not apply to
communications from provider personnel to law enforcement officers
which:
1.Are directly related to an individual’s commission of a crime on the premises of
the provider or against provider personnel or to a threat to commit such a crime;
and
2.Are limited to the circumstances of the incident, including the status of the
individual committing or threatening to commit the crime, that individual’s name
and address, and that individual’s last known whereabouts.
(c)The restrictions on disclosure and use in this section do not apply to the
reporting of incidents of suspected child abuse and neglect to the appropriate
state or local authorities as required by law. However, such restrictions continue
to apply to the original substance abuse records maintained by the provider,
including their disclosure and use for civil or criminal proceedings which may
arise out of the report of suspected child abuse and neglect.
(d)Any answer to a request for a disclosure of individual records which is
not permissible under this section or under the appropriate federal
regulations must be made in a way that will not affirmatively reveal that an
identified individual has been, or is being diagnosed or treated for
substance abuse. The regulations do not restrict a disclosure that an
identified individual is not and has never received services.
(f)An order of a court of competent jurisdiction authorizing disclosure and use of
confidential information is a unique kind of court order. Its only purpose is to
authorize a disclosure or use of identifying information which would otherwise be
prohibited by this section. Such an order does not compel disclosure. A
subpoena or a similar legal mandate must be issued in order to compel
disclosure. This mandate may be entered at the same time as, and accompany,
an authorizing court order entered under this section.
(g)An order authorizing the disclosure of an individual’s records may be applied
for by any person having a legally recognized interest in the disclosure which is
sought. The application may be filed separately or as part of a pending civil
action in which it appears that the individual’s records are needed to provide
evidence. An application must use a fictitious name, such as John Doe or Jane
Doe, to refer to any individual and may not contain or otherwise disclose any
identifying information unless the individual is the applicant or has given a written
consent to disclosure or the court has ordered the record of the proceeding
sealed from public scrutiny.
(h)The individual and the person holding the records from whom disclosure is
sought must be given adequate notice in a manner which will not disclose
identifying information to other persons, and an opportunity to file a written
response to the application, or to appear in person, for the limited purpose of
57
providing evidence on the statutory and regulatory criteria for the issuance of the
court order.
(i)Any oral argument, review of evidence, or hearing on the application must be
held in the judge’s chambers or in some manner which ensures that identifying
information is not disclosed to anyone other than a party to the proceeding, the
individual, or the person holding the record, unless the individual requests an
open hearing. The proceeding may include an examination by the judge of the
records referred to in the application.
(j)A court may authorize the disclosure and use of records for the purpose of
conducting a criminal investigation or prosecution of an individual only if
the court finds that all of the following criteria are met:
1.The crime involved is extremely serious, such as one which causes or directly
threatens loss of life or serious bodily injury, including but not limited to homicide,
sexual assault, sexual battery, kidnapping, armed robbery, assault with a deadly
weapon, and child abuse and neglect.
2.There is reasonable likelihood that the records will disclose information of
substantial value in the investigation or prosecution.
3.Other ways of obtaining the information are not available or would not be
effective.
4.The potential injury to the individual, to the physician-individual relationship,
and to the ability of the program to provide services to other individuals is
outweighed by the public interest and the need for the disclosure.
65D-30.004, FAC Common Licensing Standards.
(28) Confidentiality. Providers shall comply with Title 42, Code of Federal
Regulations, Part 2, titled “Confidentiality of Alcohol and Drug Abuse Patient
Records,” and with subsections 397.419(7) and 397.501(7), F.S., paragraphs
397.6751(2)(a) and (c), F.S., and Section 397.752, F.S., regarding confidential
client information.
The following information is used in the policies and procedures of a major substance
abuse treatment agency and may be helpful:
Disclosures to law enforcement officers possessing arrest warrants”
If a law enforcement officer comes to the agency with an arrest warrant and are
seeking a patient on premises, staff must not interfere with or impede the said
patient’s arrest. The law enforcement officer is allowed to enter the facility. Staff,
however, is prohibited by federal regulations from aiding or identifying the patient
unless the law enforcement officer is in possession of a court order. The officer
is allowed to stand on the premises and serve the arrest warrant on anyone
he/she believes is the person sought. The officer should be directed to serve the
subpoena on the Chief Administrative Officer rather than the staff and patients.
Disclosures related to the initiation or substantiation of a crime
Information from alcohol and drug abuse patient records shall not be disclosed
for the purpose of initiating or substantiating any criminal charges against a
patient. Patient records or other identifying information shall not be disclosed in
response to a law enforcement request that is related to the investigation of
prosecution of a crime unless such disclosure is authorized by a court order. If
the request is accompanied only by a compulsory process (e.g. court order).
Employees are prohibited from disclosing the requested information, including
58
whether the patient currently is in treatment or ever has received treatment from
the agency.
This allows law enforcement officers to do their job while preventing staff from providing
information protected by law. Assuming that the person refuses to allow the facility to
acknowledge his presence in the substance abuse facility, the only alternative you may
have is to file a petition for a good cause hearing to get a court order.
Appellate Cases
Q. We have a situation where a mother filed a Marchman Act on her adult
daughter. The daughter was ordered to treatment and walked out of the treatment
center. The mother hired an attorney to petition the court and hold the daughter
in contempt for not following the treatment order. The judge has asked if I know
of any other case similar to this one and what was the outcome so he’ll know what
options there are for this situation. I’ve never seen the court follow through
holding the patient in contempt for not following through with a treatment order,
but don’t know any other options to force someone to attend treatment since most
facilities can’t detain the patient. Have you seen or heard of a situation in any
other county similar to this or any input would be helpful.
Several summaries of cases below might have some interest to you and the judge:
Steven Cole v. State of Florida. Case No. 98-01718 2
nd
DCA 1998. Appellate
Judge Northcutt wrote the opinion with Appellate Judges Whatley and Altenbernd
concurring. The 10
th
Judicial Circuit court convicted Steven Cole of indirect
criminal contempt for violating the court’s order directing him to complete a
program of treatment for substance abuse. The court sentenced Cole to serve 90
days in jail. Cole petitioned the 2
nd
DCA for a writ of habeas corpus and for other
relief. The 2
nd
DCA ordered his release, quashed his conviction and sentence for
indirect criminal contempt, and prohibited the circuit court to enforce Cole’s
involuntary treatment order. The 2
nd
DCA based its decision on the failure to
inform Cole of his right to counsel and that if could not afford an attorney, he
could ask the court to appoint one to represent him. The Court noted that Cole
was not given meaningful prior notice of the charges against him, the trial was
not recorded as required by law, and the court order included directives and
prohibitions that were beyond the judicial authority granted by the Marchman
Act. Although the Act empowers the court to order a respondent’s submission to
involuntary substance abuse treatment and to enter such further orders as the
circumstances may require, that authority does not extend to prescribing the
specific modalities of the treatment. That authority is placed with the licensed
service provider.
S.M.F. v. Needle, 757 So. 2d 1265 (Palm Beach County 2000). The circuit court
granted a petition for involuntary substance abuse treatment for a minor in
response to a petition filed by her parent. The order was for 60 days of
involuntary treatment, the maximum period permitted under law, commencing
upon her admission to the facility. However, the minor ran away prior to
commencing treatment and was returned to the program after the initial court
order had expired. She filed a petition for a writ of habeas corpus arguing that
59
she was entitled to immediate release because the law provides that “at the
conclusion of the 60-day period of court-ordered involuntary treatment, the client
is automatically discharged unless a motion for renewal of the involuntary
treatment order has been filed with the court…” The 4
th
DCA decided that the
original court order for 60 days of court ordered involuntary treatment was not
merely 60-days after the entry of the order for treatment and that the 60-day
period contemplated by the Marchman Act did not expire, because the petitioner
ran away before commencing treatment. The petition for writ of habeas corpus
was denied.
However, there was one Baker Act related case from 1983 regarding an individual’s non-
compliance with a court order for involuntary outpatient treatment:
C.N., Appellant v. STATE of Florida, Appellee, 433 So. 2d 661 (Fla. App. 3
Dist. 1983). Contemnor appealed from a contempt judgment entered against her
by the Dade Circuit Court for contemnor’s alleged noncompliance with an earlier
order, on a petition for involuntary hospitalization, that she obtain outpatient
psychiatric treatment as the “least restrictive means of intervention.” The DCA
held that (1) exercise of court’s contempt power to compel hospitalization and
treatment was inappropriate, and (2) where court proceeding under the Mental
Health Act has, consistent with legislative intent, ordered outpatient care by
private mental health professional as alternative involuntary hospitalization, such
least restrictive intervention can be revoked and patient deprived of her liberty
only in proceedings which substantially meet requirement of the Baker Act for
involuntary hospitalization. Testimony of physicians at the contempt hearing was
essentially that contemnor had “basic personality problem” related to psychiatric
disorder which gave her “difficulty in following directions,” and thus evidence
presented did not support finding of contemptuous intent. A willful disregard of,
or disobedience to, an order of the court is the essence of contempt.
For court to order involuntary hospitalization, it is not sufficient that patient merely
failed to follow plan for outpatient treatment; there must be clear and convincing
proof that individual is dangerous to herself or others before state may deprive
her of her freedom on basis of mental illness alone.
The order provided that should appellant fail to comply with outpatient psychiatric
treatment as the “least restrictive means of intervention…” “this cause shall recur
for further proceedings”, and the court “retains jurisdiction of the subject matter of
this proceeding and the parties to enter…further orders…” The appellate court
found there is no statutory authority for court to retain jurisdiction for purpose of
modifying action taken on earlier petition for involuntary hospitalization;
imposition of more restrictive intervention, i.e., involuntary placement, requires, at
minimum, new petition for involuntary hospitalization, notice of hearing and
hearing on petition.
