(1) CRITERIA. A person may be involuntarily placed for treatment upon a finding of the court by clear and convincing evidence that:

(a) He or she is mentally ill and because of his or her mental illness: 1. a. He or she has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment; or b. He or she is unable to determine for himself or herself whether placement is necessary; and 2. a. He or she is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or b. There is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; and

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

(2) ADMISSION TO A TREATMENT FACILITY.

(a) A patient may be involuntarily placed in a treatment facility, after notice and hearing, upon recommendation of the administrator of a receiving facility where the patient has been examined. When a patient is not an inpatient in a receiving facility, the administrator of a designated receiving facility may make a recommendation for involuntary placement of a patient who has been given an examination, evaluation, or treatment by staff of the receiving facility or a private mental health professional upon receipt of the opinions referred to in paragraph (b). In a proceeding involving a person 18 years of age or older, the hearing may be waived by express and informed consent in writing by the patient after the advice of counsel. In a proceeding involving a person under the age of 18, the hearing shall not be waived; however, if, at the hearing, the court finds that attendance at the hearing is not consistent with the best interests of the patient, the court may waive the presence of the patient from all or any portion of the hearing.

(b) The recommendation must be supported by the opinion of a psychiatrist and the second opinion of a clinical psychologist or another psychiatrist, both of whom have personally examined the patient within the preceding 5 days, that the criteria for involuntary placement are met; however, in counties of less than 50,000 population, if the administrator certifies that no psychiatrist or clinical psychologist is available to provide the second opinion, such second opinion may be provided by a licensed physician with postgraduate training and experience in diagnosis and treatment of mental and nervous disorders or by a psychiatric nurse. Such recommendation shall be entered on an involuntary placement certificate, which certificate shall authorize the receiving facility to retain the patient pending transfer to a treatment facility or completion of a hearing. The certificate shall be filed with the court in the county where the patient is located and shall serve as a petition for a hearing on involuntary placement. A copy of the certificate shall also be filed with the department; and copies shall be served on the patient and his or her guardian or representatives, accompanied by: 1. A written notice, in plain and simple language, that the patient or his or her guardian or representative may apply at any time for a hearing on the issue of the patient's need for involuntary placement if he or she has previously waived such a hearing. 2. A petition for such hearing, which requires only the signature of the patient or his or her guardian or representative for completion. 3. A written notice that the petition may be filed with a court in the county in which the patient is hospitalized and the name and address of the judge of such court. 4. A written notice that the patient has the right to be represented by counsel in the proceeding and that the patient or his or her guardian or representative may apply immediately to the court to have an attorney appointed if the patient cannot afford one. The petition may be filed in the county in which the patient is involuntarily placed at any time within 6 months of the date of the certificate. The hearing shall be held in the same county, and one of the patient's physicians at the facility shall appear as a witness at the hearing.

(c) If the hearing is waived, the court shall order that the patient be transferred to the least restrictive type of treatment facility based on the individual needs of the patient or, if he or she is at a treatment facility, that the patient be retained there. The patient may be immediately transferred to the treatment facility by waiving his or her hearing without awaiting the court order. If the patient waives his or her hearing, the involuntary placement certificate shall serve as authorization for the patient to be transferred to a treatment facility and as authorization for the treatment facility to admit the patient.

(d) The treatment facility may retain a patient for a period not to exceed 6 months from the date of the order for involuntary placement. If continued involuntary placement is necessary at the end of that period, the administrator shall apply to the hearing examiner for an order authorizing continued involuntary placement.

(3) PROCEDURE FOR HEARING ON INVOLUNTARY PLACEMENT.

(a) If the patient does not waive his or her right to a hearing on involuntary placement, or if the patient, his or her guardian, or a representative files a petition for such a hearing after having waived it as provided in paragraph (2)(c), the court shall serve notice on the administrator of the facility in which the patient is placed and on the patient. The notice of hearing shall specify the date, time, and place of hearing; the basis for detention; and the name of each examining expert and of every other person testifying in support of continued detention and the substance of their proposed testimony. The court shall serve notice on the state attorney of the judicial circuit of the county in which the patient is placed, who shall represent the state. The court shall hold the hearing within 5 days unless a continuance is granted. The hearing shall be as convenient to the patient as may be consistent with orderly procedure and should be conducted in physical settings not likely to be injurious to the patient's condition. The court may appoint a master to preside. The patient, his or her guardian or representative, or the administrator may apply for a change of venue for the convenience of parties or witnesses or because of the condition of the patient. Venue may be ordered changed within the discretion of the court. The patient and his or her guardian or representative shall be informed of the right to counsel by the court. If the patient cannot afford an attorney, the court shall appoint one. The patient's counsel shall have access to facility records and to facility personnel in defending the patient. One of the professionals who executed the involuntary placement certificate shall be a witness. The patient and his or her guardian or representative shall be informed by the court of the right to an independent expert examination. If the patient cannot afford such an examination, the court shall provide for one.

(b) If the court concludes that the patient meets the criteria for involuntary placement, it shall order that the patient be transferred to a treatment facility or, if the patient is at a treatment facility, that he or she be retained there or that he or she be treated at any other appropriate facility or service on an involuntary basis. The order shall adequately document the nature and extent of the patient's mental illness.

(c) At the hearing on involuntary placement, the court shall consider testimony and evidence regarding the patient's competence to consent to treatment. If the court finds that the patient is incompetent to consent to treatment, it shall appoint a guardian advocate who shall act on the patient's behalf relating to the provision of express and informed consent to treatment. A member of the Human Rights Advocacy Committee who is serving as the patient's representative pursuant to s. 394.459(12), may not be appointed as a guardian advocate.

(d) The court may adjudicate a person incompetent pursuant to the provisions of chapter 744 at the hearing on involuntary placement.

(e) The treatment facility may accept and retain a patient admitted involuntarily for a period not to exceed 6 months whenever the patient is accompanied by a court order and adequate documentation of the patient's mental illness. Such documentation shall include a psychiatric evaluation and any psychological and social work evaluations of the patient. If further involuntary placement is necessary at the end of that period, the administrator shall apply to the hearing examiner for an order authorizing continued involuntary placement.

(f) The court shall provide a court order, a psychiatric evaluation, and other adequate documentation of each patient's mental illness to the administrator of a treatment facility whenever a patient is ordered for involuntary placement, whether by civil or criminal court. The administrator of a treatment facility may refuse admission to any patient directed to its facilities on an involuntary basis, whether by civil or by criminal court order, who is not accompanied at the same time by adequate orders and documentation.

(4) PROCEDURE FOR CONTINUED INVOLUNTARY PLACEMENT.

(a) If continued placement of an involuntary patient is necessary, the administrator shall, prior to the expiration of the period during which the treatment facility is authorized to retain the patient, request an order authorizing continued involuntary placement. This request shall be accompanied by a statement from the patient's physician or clinical psychologist justifying the request and a brief summary of the patient's treatment during the time he or she was involuntarily placed. In addition, the administrator shall submit an individualized plan for the patient for whom he or she is requesting continued involuntary placement. Notification of this request for retention shall be mailed to the patient and his or her guardian or representative along with a completed petition, requiring only a signature, for a hearing regarding the continued hospitalization and a waiver-of-hearing form. The waiver-of-hearing form shall require express and informed consent and shall state that the patient is entitled to a hearing under the law; that he or she is entitled to be represented by an attorney at the hearing and, if he or she cannot afford an attorney, that one will be appointed; and that, if it is shown at the hearing that the patient does not meet the criteria for involuntary placement, he or she is entitled to be released. In a proceeding involving a person 18 years of age or older, the hearing may be waived by express and informed consent in writing by the patient after the advice of counsel. If the patient or his or her guardian or representative does not sign the petition, or if the patient does not sign a waiver within 15 days, the hearing officer shall notice a hearing with regard to the patient involved in accordance with s. 120.57(1). In a proceeding involving a person under the age of 18, the hearing shall not be waived; however, if, at the hearing, the hearing examiner finds that attendance at the hearing is not consistent with the best interests of the patient, he or she may waive the presence of the patient from all or any portion of the hearing.

(b) Any time continued involuntary placement is requested, the hearing officer may, on his or her own motion, notice a hearing.

(c) Any time continued involuntary placement is requested by the administrator, the administrator may request a hearing; and the hearing officer shall hold a hearing within 30 days of such request.

(d) The administrator shall not transfer any patient to voluntary status when he or she has reasonable cause to believe that the patient is dangerous to himself or herself or others. In any case in which the administrator has reasonable cause to believe that an involuntary patient is dangerous to himself or herself or others, the administrator shall request continued involuntary placement. In any case in which a request for continued involuntary placement is necessary, but the administrator after reviewing the case believes there is not reasonable cause to believe that the patient meets the criteria for involuntary placement at the time of application for transfer to voluntary status and the patient needs continued placement, the patient shall be transferred to a voluntary status.

(e) If the patient or his or her guardian or representative returns the signed petition noted in paragraph (a), the hearing officer shall notice a hearing in accordance with s. 120.57(1). The patient and his or her guardian or representative shall be informed of the right to counsel by the hearing officer. In the event a patient cannot afford counsel in a hearing before a hearing officer, the public defender in the county where the hearing is to be held shall act as attorney for the patient. The hearing shall be conducted in accordance with chapter 120.

(f) If the patient by express and informed consent waives his or her hearing after the advice of counsel or if at a hearing it is shown that the patient continues to meet the criteria for involuntary placement, the hearing officer shall sign the order for continued involuntary placement. The treatment facility shall be authorized to retain the patient for a period not to exceed 6 months. The same procedure shall be repeated prior to the expiration of each additional 6-month period the patient is retained.

(g) If continued involuntary placement is necessary for an individual admitted while serving a criminal sentence, but whose sentence is about to expire, or for an individual involuntarily placed while a minor, but who is about to reach the age of 18, the administrator shall petition the hearing officer for an order authorizing continued involuntary placement.

(h) At any hearing hereunder for a patient who has been previously adjudicated incompetent to consent to treatment, the hearing examiner shall consider testimony and evidence regarding the patient's competence. If the hearing examiner finds evidence that the patient is competent to consent to treatment, he or she may issue to the court in which the patient was adjudicated incompetent to consent to treatment a recommended order that the patient's competence be restored and that any guardian advocate previously appointed be discharged. History: s. 9, ch. 71-131; s. 8, ch. 73-133; ss. 3, 4, ch. 74-233; s. 1, ch. 75-305; s. 17, ch. 77-121; s. 205, ch. 77-147; s. 1, ch. 77-174; ss. 2, 8, ch. 77-312; s. 19, ch. 78-95; s. 1, ch. 78-197; s. 9, ch. 79-298; s. 2, ch. 79-336; ss. 2, 4, ch. 80-75; s. 12, ch. 82-212; s. 9, ch. 84-285; s. 28, ch. 85-167; s. 105, ch. 89-96; s. 70, ch. 90-271; s. 710, ch. 95-148.