How Many Times Can The Marchman Act Be Implemented?

The Marchman Act can be filed as many times as necessary. However, it is required by law to begin an entirely new process for each filing. A refiling may be necessary due to the original case being closed and the respondent once again be in need of substance abuse treatment.

Marchman Act

Right To Individual Dignity

The dignity of the individual served must be respected at all times and upon all occasions, including any occasion when the individual is admitted, retained, or transported. Individuals served who are not accused of a crime or delinquent act may not be detained or incarcerated in jails, detention centers, or training schools of the state, except for purposes of protective custody in strict accordance with this chapter. An individual may not be deprived of any constitutional right.

Right To Nondiscriminatory Services

  • Service providers may not deny an individual access to substance abuse services solely on the basis of race, gender, ethnicity, age, sexual preference, human immunodeficiency virus status, prior service departures against medical advice, disability, or number of relapse episodes. Service providers may not deny an individual who takes medication prescribed by a physician access to substance abuse services solely on that basis. Service providers who receive state funds to provide substance abuse services may not, if space and sufficient state resources are available, deny access to services based solely on inability to pay.
  • Each individual in treatment must be afforded the opportunity to participate in the formulation and periodic review of his or her individualized treatment or service plan to the extent of his or her ability to so participate.
  • It is the policy of the state to use the least restrictive and most appropriate services available, based on the needs and the best interests of the individual and consistent with optimum care of the individual.
  • Each individual must be afforded the opportunity to participate in activities designed to enhance self-image.

Right To Quality Services

  • 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.
  • 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.

Right To Care And Custody Of Personal Effects

An individual has the right to possess clothing and other personal effects. The service provider may take temporary custody of the individual’s personal effects only when required for medical or safety reasons, with the reason for taking custody and a list of the personal effects recorded in the individual’s clinical record.

Right To Education Of Minors

Each minor in a residential service component is guaranteed education and training appropriate to his or her needs. The service provider shall coordinate with local education agencies to ensure that education and training is provided to each minor in accordance with other applicable laws and regulations and that parental responsibilities related to such education and training are established within the provisions of such applicable laws and regulations. This chapter does not relieve any local education authority of its obligation under law to provide a free and appropriate education to every child.

Right To Confidentiality Of Individual Records

  • 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 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.
  • 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.
  • 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.
  • 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.
  • 1. Since a minor acting alone has the legal capacity to voluntarily apply for and obtain substance abuse treatment, any written consent for disclosure may be given only by the minor. This restriction includes, but is not limited to, any disclosure of identifying information to the parent, legal guardian, or custodian of a minor for the purpose of obtaining financial reimbursement. 2. When the consent of a parent, legal guardian, or custodian is required under this chapter in order for a minor to obtain substance abuse treatment, any written consent for disclosure must be given by both the minor and the parent, legal guardian, or custodian.
  • 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.
  • 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.
  • 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 providing evidence on the statutory and regulatory criteria for the issuance of the court order.
  • 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.
  • 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.

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.

Right To Habeas Corpus

At any time, and without notice, an individual involuntarily retained by a provider, or the individual’s parent, guardian, custodian, or attorney on behalf of the individual, may petition for a writ of habeas corpus to question the cause and legality of such retention and request that the court issue a writ for the individual’s release.

Liability And Immunity

  • Service provider personnel who violate or abuse any right or privilege of an individual under this chapter are liable for damages as determined by law.
  • All persons acting in good faith, reasonably, and without negligence in connection with the preparation or execution of petitions, applications, certificates, or other documents or the apprehension, detention, discharge, examination, transportation, or treatment of a person under the provisions of this chapter shall be free from all liability, civil or criminal, by reason of such acts.

Involuntary Services

Where Do I Need To File My Services Petition?

The Petition must be filed in the County where the respondent is physically located. Residency is NOT a requirement. If the person upon whose behalf the petition is being filed is an adult, a petition for involuntary assessment and stabilization may be filed by the respondent’s spouse or legal guardian, any relative, a service provider, or any adult who has direct personal knowledge of the respondent’s substance abuse impairment and his or her prior course of assessment and treatment. If the person upon whose behalf the petition is being filed is a minor, a petition for involuntary services may be filed by a parent, legal guardian, or service provider.

What Information Do I Need For The Services Petition?

A petition for involuntary services 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, 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:

  • The reason for the petitioner’s belief that the respondent is substance abuse impaired;
  • 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
  • The reason the petitioner believes that the respondent has inflicted or is likely to inflict physical harm on himself or herself or others unless the court orders the involuntary services; or
  • 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.

What Happens At The Hearing?

Upon the filing of a petition for the involuntary services 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 5 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. If the respondent is not served with the pleadings by the time of hearing the court cannot move forward. Unlike an ex parte petition for assessment and stabilization, a petition for services cannot be heard unless the respondent has been served.

What Does It Mean When The Court Orders Services?

If the court orders treatment, the order will be in place for a minimum period of up to ninety (90) days. If the respondent voluntarily enters treatment prior to the treatment petition being granted the court will often dismiss the Petition. An experienced attorney will know who to avoid this pitfall and still seek the entry of the court order. A petitioner should still try to get the order for services even if the respondent has entered treatment before the hearing as the order will help to ensure that the respondent will stay and be compliant. If the respondent is willfully non-compliant in any way with treatment, a petitioner can file a motion with the court and bring the respondent before the Judge for violating the court ordered treatment and seek sanctions. Generally, if this occurs, the judge will have a hearing, and if proven, give the respondent one more opportunity to return to treatment and comply with the court order to avoid their incarceration. If the respondent has yet to completely comply with the court order, and has failed to appear at the hearing, they can be found in civil contempt and possibly incarcerated until they are ready to return to treatment. It is important to note, serving time for contempt does not invalidate the existence or duration of the original order for treatment. The respondent must continue treatment pursuant to the original order subsequent to being released from custody.

Assessment And Stabilization

Who Can File The Petition

The Petition must be filed in the County where the respondent is physically located. Residency is NOT a requirement. If the person upon whose behalf the petition is being filed is an adult, a petition for involuntary assessment and stabilization may be filed by the respondent’s spouse or guardian, any relative, a private practitioner, the director of a licensed service provider or the director’s designee, or any adult who has direct personal knowledge of the respondent’s substance abuse impairment. If the person upon whose behalf the petition is being filed is a minor, a petition for involuntary assessment and stabilization may be filed by a parent, legal guardian, legal custodian, or licensed service provider.

What Is The Criteria For Involuntary Admission?

A person meets the criteria for involuntary admission if there is good faith reason to believe that the person is substance abuse impaired or has a co-occurring mental health disorder and, because of such impairment or disorder:

  • Has lost the power of self-control with respect to substance abuse; and
  • Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that he or she is incapable of appreciating his or her need for such services and of making a rational decision in that regard, although mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services; or
  • Without care or treatment, is likely to suffer from neglect or refuse to care for himself or herself; that such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and that it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services, or there is substantial likelihood that the person has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another.

How Does The Court Review My Petition?

The court reviews this petition in one of two ways; the first being through an actual hearing before the court. The other option allows the court to review the petition through an Ex Parte process in which the respondent is unaware of the Petition and Request for Assessment and Stabilization. This process, most successfully implemented through an attorney, is an important and strategic aspect because most substance abusers choose not to voluntarily go to court and detox. However, there are other strategic benefits to have the respondent appear in court for the first hearing if there is a high probability that they will appear. Either way the court must hold a hearing or make the ex parte decision within ten days of the petition being filed. Most Courts will execute the ex parte petition in a much more-timely manner; typically, within 24hours. Also, presently the majority of counties in Florida handle almost all assessment and stabilization hearings on an exparte basis. An attorney can specifically request otherwise if necessary.

How Does My Loved One Get To Detox?

Once the court has reviewed the petition, the respondent, after an in-person court hearing, may be court ordered to immediately go to a facility that has been pre-determined for completion of the assessment and stabilization (detox). If the court decides based on the pleadings alone (Ex-parte), the order will direct that the respondent be picked up and delivered by law enforcement to the nearest facility as ordered by the court. In some counties, the petitioner can request the respondent’s delivery after pickup to a private detox if payment arrangements have been made. The choice of which method will be employed by a petitioner representing themselves is typically not in their hands and is left to the court. The process differs from county to county. However, an experienced Marchman Act attorney can choose either method regardless of the county where the petition is filed and based on the strategy decided to be employed. Once the respondent is in the detox facility, the treatment providers will render their assessment as ordered by the court. A respondent will be admitted for a period of five days. Should the provider be unable to complete the assessment or stabilization within the five-day period an extension for more time may be filed and requested with the court. Also, the five day period can be extended by the filing of a Services Petition and a respondent can be held until further order of the court. The provider will then have a recommendation for treatment ready to be tendered to the court. It should be noted, not all private detox facilities will render an assessment and recommendation for the court. The petitioner should inquire from the private detox provider as to whether they will render the assessment and come to court to testify if need be. Under the Marchman Act a respondent can be ordered to either a private or public detox facility. Unless the facility has been designated as a “secure” facility as defined in the statute and licensed by the Department of Children and Family Services a respondent does have the ability to simply leave prior to the completion of the assessment and stabilization. There are only several “secure” licensed receiving facilities in Florida. Should the respondent leave and not comply with the court order they will then be exposing themselves to the consequence of incarceration via the court’s contempt power. Again, it should be noted that neither a petitioner, an attorney, the respondent, nor court officials can dictate the level of care and treatment or type of treatment the loved one in question will receive. The trained medical professionals provide their treatment recommendation and decide the level of care based on the individual aspects of your loved one’s needs. Typically, treatment can be ordered through any of the following types: Outpatient Treatment, Day-treatment, Intensive Outpatient Treatment and/or Residential Treatment. It is the obligation of the petitioner, or their attorney, to enforce the order of the court upon the respondent. If the respondent does not comply with the court’s order, a Motion seeking for the respondent to be held in contempt of court must be filed and served upon the respondent.