FREQUENTLY ASKED QUESTIONSIs the Marchman Act confidential?
In many counties throughout the State of Florida, Marchman Act proceedings are deemed confidential by local administrative order. However, in some counties various legal pleadings must be filed to request that the court protect and make confidential these proceedings. In cases such as these a petitioner or their attorney can file all necessary legal pleadings to request that the information contained in the Marchman Act litigation is deemed confidential.
In regards to Marchman Act medical records and treatment records, Federal HIPAA Law and the rules of confidentiality are very strict and can be frustrating for the petitioner when the respondent refuses to sign an “Authorization for Release of Information.” The petitioner will also undoubtedly be frustrated when a treatment facility is unable to answer questions regarding the respondent’s treatment due to a consent not being signed. To ensure continued enforcement, a petitioner or their attorney can request the court to order the treatment provider to testify in support of any necessary motions or petitions pending before the court.
Although the treatment facility cannot disclose information without a release of information or court order, this does not stop a petitioner or an attorney from returning to court if the client observes that the respondent is failing to comply with treatment or has knowledge that the respondent has relapsed.
The law provides time frames that the court system needs to adhere to upon filing. Within ten (10) days of filing of a Marchman Act petition, a hearing must be held or a decision be made ex-parte. It is important for a petitioner to understand that there is no control over the clerk or court system and that every county procedure is different. An attorney would work diligently with each court specific system to ensure that the law is followed in its entirety and expedited for the petitioner and respondent’s benefit. Unfortunately, a pro se petitioner does not have the same leverage with the court system as an experienced Marchman Act Attorney.
The Marchman Act is a civil procedure (not criminal). Accordingly, a respondent has the right to be noticed of any court proceeding and a right to appear. After a Marchman Act Petition is filed and a hearing date set by the Court, the respondent WILL BE PROVIDED AN ATTORNEY. The respondent has the right to know the time, date, allegations and specific location of a hearing. The respondent can choose not to attend the hearing, but must be noticed properly regardless. A hearing may take place without the respondent being present, if proper service has been met and is demonstrated to the court. There are two manners of service: (1) service by a law enforcement officer or (2) by private process server. The petitioner can have private service of process arranged to best coordinate the time and place for the respondent to be served. A law enforcement officer may simply serve the respondent at their discretion. If the officer arrives and the respondent is not present, service will not be effectuated. This will ultimately result in delaying all legal proceedings.
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.