This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h7023c.HHS
DATE: 2/23/2024
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 7023 Pub. Rec. and Meetings/Mental Health and Substance Abuse
SPONSOR(S): Health & Human Services Committee, Children, Families & Seniors Subcommittee, Maney
and others
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Children, Families & Seniors
Subcommittee
16 Y, 0 N Curry Brazzell
1) Ethics, Elections & Open Government
Subcommittee
16 Y, 0 N Rando Toliver
2) Health & Human Services Committee 20 Y, 0 N, As CS Curry Calamas
SUMMARY ANALYSIS
The Baker Act provides legal procedures for voluntary and involuntary mental health examination and
treatment, while the Marchman Act addresses substance abuse through a comprehensive system of
prevention, detoxification, and treatment services.
Currently, all Baker Act petitions for voluntary and involuntary mental health treatment, court orders, and
related records filed with a court are confidential and exempt from public record requirements. Similarly, all
Marchman Act petitions for involuntary assessment and stabilization, court orders, and related records are
confidential and exempt from public record requirements. Under both Acts, the clerk of court is prohibited from
posting personal identifying information on the court docket or in publicly accessible files and may only release
confidential and exempt documents to specified individuals. Current law retroactively applies the exemption to
all documents filed under both Acts to a specified date, but does not expressly apply the exemption to pending
or filed appeals.
The bill makes hearings under the Baker Act and under Parts IV and V of the Marchman Act confidential,
absent a judicial finding of good cause or the respondent’s consent. The bill expands the exemption from
public record requirements to include a respondent’s name, at trial and on appeal, and applications for
voluntary mental health examinations or treatment and substance abuse treatment. The bill also adds service
providers to the list of individuals to whom the clerk of court may disclose confidential and exempt pleadings
and other documents. In addition to applying to documents that were previously filed with a court, these new
exemptions also apply to appeals pending or filed on or after July 1, 2024. The bill creates a narrow exception
that allows courts to use a respondent’s name in certain instances.
The bill provides that the public record and public meeting exemptions are subject to the Open Government
Sunset Review Act and will stand repealed on October 2, 2029, unless the saved from repeal through
reenactment by the Legislature. The bill also provides the constitutionally required public necessity statements.
The bill may have an indeterminate, but likely insignificant, negative fiscal impact on the State Courts System.
The bill will become effective on the same date that CS/CS/HB 7021 or similar legislation takes effect, if such
legislation is adopted in the same legislative session or an extension thereof, and becomes law.
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly-created or expanded public record or public meeting exemption.
The bill creates a public record and public meeting exemption; thus, it requires a two-thirds vote for
final passage. STORAGE NAME: h7023c.HHS PAGE: 2
DATE: 2/23/2024
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Open Government
The Florida Constitution sets forth the state’s public policy regarding access to government records and
meetings.
1
Every person is guaranteed a right to inspect or copy any public record of the legislative,
executive, and judicial branches of government.
2
All meetings of any collegial public body of the
executive branch of state government or any collegial public body of a county, municipality, school
district, or special district, at which official acts are to be taken or at which public business of such body
is to be transacted or discussed, must be open and noticed to the public.
3
The Legislature, however,
may provide by general law an exemption
4
from public record or meeting requirements provided that
the exemption passes by a two-thirds vote of each chamber, states with specificity the public necessity
justifying the exemption, and is no broader than necessary to meet its public purpose.
5
Pursuant to the Open Government Sunset Review Act,
6
a new public record or meeting exemption or
substantial amendment of an existing exemption is repealed on October 2nd of the fifth year following
enactment, unless the Legislature reenacts the exemption.
7
Public Records
Current law also addresses the public policy regarding access to government records, guaranteeing
every person a right to inspect and copy any state, county, or municipal record, unless the record is
exempt.
8
Furthermore, the Open Government Sunset Review Act provides that a public record
exemption may be created, revised, or maintained only if it serves an identifiable public purpose and
the “Legislature finds that the purpose is sufficiently compelling to override the strong public policy of
open government and cannot be accomplished without the exemption.”
9
An identifiable public purpose
is served if the exemption meets one of the following purposes:
Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption;
Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision; or
Protect trade or business secrets.
10
Public Meetings
Current law also addresses public policy regarding access to government meetings, further requiring all
meetings of any board or commission of any state agency or authority, or of any agency or authority of
any county, municipality, or political subdivision, at which official acts are to be taken to be open to the
1
Art. I, s. 24, FLA. CONST.
2
Art. I, s. 24(a), FLA. CONST.
3
Art. I, s. 24 (b), FLA. CONST.
4
A public record exemption means a provision of general law which provides that a specified record or meeting, or portion thereof, is
not subject to the access requirements of s. 119.07(1), F.S., s. 286.011, F.S., or s. 24, Art. I of the Florida Constitution. See s.
119.011(8), F.S.
5
Art. I, s. 24(c), FLA. CONST.
6
S. 119.15, F.S.
7
S. 119.15(3), F.S.
8
See s. 119.01, F.S.
9
S. 119.15(6)(b), F.S.
10
Id. STORAGE NAME: h7023c.HHS PAGE: 3
DATE: 2/23/2024
public at all times, unless the meeting is exempt.
11
The board or commission must provide reasonable
notice of all public meetings.
12
Public meetings may not be held at any location that discriminates on
the basis of sex, age, race, creed, color, origin, or economic status or that operates in a manner that
unreasonably restricts the public’s access to the facility.
13
Minutes of a public meeting must be promptly
recorded and open to public inspection.
14
Failure to abide by public meeting requirements will invalidate
any resolution, rule, or formal action adopted at a meeting.
15
A public officer or member of a
governmental entity who violates public meeting requirements is subject to civil and criminal
penalties.
16
Mental Health and Mental Illness
Mental health is a state of well-being in which the individual is able to cope with the normal stresses of
life, realize his or her abilities, can work productively and fruitfully, and is able to contribute to his or her
community.
17
The primary indicators used to evaluate an individual’s mental health are:
18
Emotional well-being- Perceived life satisfaction, happiness, cheerfulness, peacefulness;
Psychological well-being- Self-acceptance, personal growth, including openness to new
experiences, optimism, hopefulness, purpose in life, control of one’s environment, spirituality,
self-direction, and positive relationships; and
Social well-being- Social acceptance, beliefs in the potential of people and society as a whole,
personal self-worth and usefulness to society, and sense of community.
Mental illness is collectively all diagnosable mental disorders or health conditions that are characterized
by alterations in thinking, mood, or behavior (or some combination thereof) associated with distress or
impaired functioning.
19
Thus, mental health refers to an individual’s mental state of well-being, whereas
mental illness signifies an alteration of that well-being. Mental illness affects millions of people in the
United States each year. Nearly one in five adults lives with a mental illness.
20
An estimated 49.5% of
adolescents aged 13-18 have a mental illness.
21
The Baker Act
The Florida Mental Health Act, otherwise known as the Baker Act, was enacted in 1971 to revise the
state’s mental health commitment laws.
22
The Act provides legal procedures for mental health
examination and treatment, including voluntary and involuntary examinations. It additionally protects
the rights of all individuals examined or treated for mental illness in Florida.
23
Voluntary Admissions
Under current law, an adult may apply for voluntary admission to a facility for observation, diagnosis, or
treatment by giving their express and informed consent.
24
The facility may admit the adult if it finds
11
S. 286.011(1), F.S.
12
Id.
13
S. 286.011(6), F.S.
14
S. 286.011(2), F.S.
15
S. 286.011(1), F.S.
16
S. 286.011(3), F.S.
17
World Health Organization, Mental Health: Strengthening Our Response, https://www.who.int/news-room/fact-sheets/detail/mental-
health-strengthening-our-response (last visited Jan. 24 , 2024).
18
Centers for Disease Control and Prevention, Mental Health Basics, http://medbox.iiab.me/modules/en-
cdc/www.cdc.gov/mentalhealth/basics.htm (last visited Jan. 24, 2024).
19
Id.
20
National Institute of Mental Health (NIH), Mental Illness, https://www.nimh.nih.gov/health/statistics/mental-illness (last visited Jan. 24,
2024).
21
Id.
22
Ss. 394.451-394.47892, F.S.
23
S. 394.459, F.S.
24
S. 394.4625, F.S. STORAGE NAME: h7023c.HHS PAGE: 4
DATE: 2/23/2024
evidence of mental illness, the adult to be competent to provide express and informed consent, and
that the adult is suitable for treatment.
A facility may also receive a minor for observation, diagnosis, or treatment if the minor’s guardian
applies for admission.
25
If the facility finds there is evidence of mental illness, and the minor is suitable
for treatment at that facility, then they can admit the minor, but only after a clinical review to verify the
voluntariness of the minor’s assent.
26
A voluntary patient who is unwilling or unable to provide express and informed consent to mental health
treatment must either be discharged or transferred to involuntary status.
27
Additionally, facilities must
discharge a patient within 24 hours if he or she is sufficiently improved such that admission is no longer
appropriate, consent is revoked, or discharge is requested, unless the patient is qualified for and is
transferred to involuntary status.
28
Involuntary Examination
Individuals in acute mental or behavioral health crisis may require emergency treatment to stabilize
their condition. Emergency mental health examination and stabilization services may be provided on a
voluntary or involuntary basis.
29
An involuntary examination is required if there is reason to believe that
the person has a mental illness and because of his or her mental illness:
30
The person has refused voluntary examination after conscientious explanation and disclosure of
the purpose of the examination or is unable to determine for himself or herself whether
examination is necessary; and
Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself
or herself; such neglect or refusal poses a real and present threat of substantial harm to his or
her well-being; and 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 a substantial likelihood that without care or treatment the person will cause serious
bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.
The involuntary examination may be initiated in one of three ways:
31
A court may enter an ex parte order stating that a person appears to meet the criteria for
involuntary examination, based on sworn testimony. The order of the court shall be made a part
of the patient’s clinical record.
A law enforcement officer must take a person who appears to meet the criteria for involuntary
examination into custody and deliver the person or have him or her delivered to an appropriate,
or the nearest, receiving facility for examination. The officer shall execute a written report
detailing the circumstances under which the person was taken into custody, and the report shall
be made a part of the patient’s clinical record.
A physician, a physician assistant, clinical psychologist, psychiatric nurse, an advanced practice
registered nurse, mental health counselor, marriage and family therapist, or clinical social
worker may execute a certificate stating that he or she has examined a person within the
preceding 48 hours and finds that the person appears to meet the criteria for involuntary
examination and stating the observations upon which that conclusion is based. The report and
certificate shall be made a part of the patient’s clinical record.
Involuntary patients must be taken to either a public or private facility which has been designated by the
Department of Children and Families (DCF) as a Baker Act receiving facility. The purpose of receiving
25
Id.
26
Id.
27
S. 394.4625(1)(e), F.S.
28
S. 394.4625(2), F.S.
29
Ss. 394.4625 and 394.463, F.S.
30
S. 394.463(1), F.S.
31
S. 394.463(2)(a), F.S. STORAGE NAME: h7023c.HHS PAGE: 5
DATE: 2/23/2024
facilities is to receive and hold, or refer, as appropriate, involuntary patients under emergency
conditions for psychiatric evaluation and to provide short-term treatment or transportation to the
appropriate service provider.
32
The examination period must be for up to 72 hours.
33
A minor patient
must be examined by the receiving facility within 12 hours following his or her arrival at the facility.
34
Involuntary Outpatient Services
A person may be ordered to involuntary outpatient services
35
upon a finding of the court that by clear
and convincing evidence:
36
The person is 18 years of age or older;
The person has a mental illness;
The person is unlikely to survive safely in the community without supervision, based on a
clinical determination;
The person has a history of lack of compliance with treatment for mental illness;
The person has:
o At least twice within the immediately preceding 36 months been involuntarily admitted to
a receiving or treatment facility, or has received mental health services in a forensic or
correctional facility; or
o Engaged in one or more acts of serious violent behavior toward self or others, or
attempts at serious bodily harm to himself or herself or others, within the preceding 36
months;
The person is, as a result of his or her mental illness, unlikely to voluntarily participate in the
recommended treatment plan and either he or she has refused voluntary placement for
treatment or he or she is unable to determine for himself or herself whether placement is
necessary;
In view of the person’s treatment history and current behavior, the person is in need of
involuntary outpatient services in order to prevent a relapse or deterioration that would be likely
to result in serious bodily harm to himself or herself or others, or a substantial harm to his or her
well-being;
It is likely that the person will benefit from involuntary outpatient services; and
All available, less restrictive alternatives that would offer an opportunity for improvement of his
or her condition have been judged to be inappropriate or unavailable.
A petition for involuntary outpatient services may be filed by a receiving or treatment facility’s
administrator.
37
The petition must allege and sustain each of the criterion for involuntary outpatient
services and be accompanied by a certificate recommending involuntary outpatient services by a
qualified professional and a proposed treatment plan.
38
The petition for involuntary outpatient services must be filed in the county where the patient is located,
unless the patient is being placed from a state treatment facility, in which case the petition must be filed
in the county where the patient will reside.
39
When the petition has been filed, the clerk of the court
shall provide copies of the petition and the proposed treatment plan to DCF, the managing entity, the
patient, the patient’s guardian or representative, the state attorney, and the public defender or the
patient’s private counsel.
40
32
S. 394.455(39), F.S.
33
S. 394.463(2)(g), F.S.
34
Id.
35
Current statute uses both “services” and “placement”. For the purposes of the analysis, the term “services” will be used.
36
S. 394.4655(2), F.S.
37
S. 394.4655(4)(a), F.S.
38
S. 394.4655(4)(b), F.S.
39
S. 394.4655(4)(c), F.S.
40
Id. STORAGE NAME: h7023c.HHS PAGE: 6
DATE: 2/23/2024
Once a petition for involuntary outpatient services has been filed with the court, the court must hold a
hearing within five working days, unless a continuance is granted.
41
The state attorney for the circuit in
which the patient is located is required to represent the state, rather than the petitioner, as the real
party in interest in the proceeding.
42
The court must, within one court working day of the filing of the
petition appoint the public defender to represent the person who is the subject of the petition, unless
that person is otherwise represented by counsel.
43
At the hearing on involuntary outpatient services, 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.
44
If the court concludes that
the patient meets the criteria for involuntary outpatient services, it must issue an order for involuntary
outpatient services.
45
The order must specify the duration of involuntary outpatient services, up to 90
days, and the nature and extent of the patient’s mental illness.
46
The order of the court and the
treatment plan shall be made part of the patient’s clinical record.
47
If, at any time before the conclusion of the initial hearing on involuntary outpatient services, it appears
to the court that the person does not meet the criteria for involuntary outpatient services but, instead,
meets the criteria for involuntary inpatient placement, the court may order the person admitted for
involuntary inpatient examination.
48
Involuntary Inpatient Placement
A person may be placed in involuntary inpatient placement for treatment upon a finding of the court by
clear and convincing evidence that:
He or she is mentally ill and because of his or her mental illness:
o He or she has refused voluntary placement for treatment after sufficient and
conscientious explanation and disclosure of the purpose of placement for treatment; or
is unable to determine for himself or herself whether placement is necessary; and
o 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
o 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
All available less restrictive treatment alternatives which would offer an opportunity for
improvement of his or her condition have been judged to be inappropriate.
49
A receiving or treatment facility’s administrator must file a petition for involuntary inpatient placement in
the court in the county where the patient is located.
50
Upon filing, the clerk of the court must provide
copies to DCF, the patient, the patient’s guardian or representative, and the state attorney and public
defender of the judicial circuit in which the patient is located.
51
41
S. 394.4655(7)(a)1., F.S.
42
Id.
43
S. 394.4655(5), F.S.
44
S. 394.4655(7)(d), F.S.
45
S. 394.4655(7)(b)1., F.S.
46
Id.
47
Id.
48
S. 394.4655(7)(c), F.S. Additionally, if the person instead meets the criteria for involuntary assessment, protective custody, or
involuntary admission pursuant to the Marchman Act, the court may order the person to be admitted for involuntary assessment
pursuant to the statutory requirements of the Marchman Act.
49
S. 394.467(1), F.S.
50
S. 394.467(2)-(3), F.S.
51
S. 394.467(3), F.S. STORAGE NAME: h7023c.HHS PAGE: 7
DATE: 2/23/2024
The court proceedings for involuntary inpatient placement closely mirror those for involuntary outpatient
services.
52
However, unlike an order for involuntary outpatient services, which statute makes part of the
patient’s clinical record, nothing in the laws governing involuntary inpatient placement makes the
court’s order part of the patient’s clinical record.
Confidentiality of Service Provider Records in Baker Act Proceedings in Florida
In 2019, the Legislature created a public record exemption for certain information filed with a court
under the Baker Act.
53
Specifically, all petitions for voluntary and involuntary admissions for mental
health treatment, court orders, and related records that are filed with or by a court under the Baker Act
are confidential and exempt
54
from public record requirements. However, the clerk of the court may
disclose the pleadings and other documents to:
55
The petitioner;
The petitioner's attorney;
The respondent;
The respondent's attorney;
The respondent's guardian or guardian advocate, if applicable;
In the case of a minor respondent, the respondent's parent, guardian, legal custodian, or
guardian advocate;
The respondent's treating health care practitioner;
The respondent's health care surrogate or proxy;
DCF, without charge;
The Department of Corrections, without charge, if the respondent is committed or is to be
returned to the custody of the Department of Corrections from DCF; or
A person or entity authorized to view records upon a court order for good cause.
Currently, a respondent’s name, at trial and on appeal, and applications for voluntary and involuntary
admission for mental health examinations are not part of the public record exemption, meaning this
information is subject to public disclosure under current law.
However, the clerk of court is prohibited from publishing personal identifying information on a court
docket or in a publicly accessible file.
56
This means that a court may not use a respondent’s name to
schedule and adjudicate cases, which includes transmitting a copy of any court order to the parties.
The 2019 public necessity statement
57
for the exemption provides that the Legislature finds that:
58
A person’s mental health is … an intensely private matter. The public stigma
associated with a mental health condition may cause persons in need of treatment
to avoid seeking treatment and related services if the record of such condition is
accessible to the public. Without treatment, a person’s condition may worsen, the
person may harm himself or herself or others, and the person may become a
financial burden on the state. The content of such records or personal identifying
information should not be made public merely because they are filed with or by a
52
See s. 394.467(6)-(7), F.S.
53
Ch. 2019-51, Laws of Fla., codified as s. 394.464, F.S.
54
There is a difference between records the Legislature designates exempt from public record requirements and those the Legislature
designates confidential and exempt. A record classified as exempt from public disclosure may be disclosed under certain
circumstances. See WFTV, Inc. v. Sch. Bd. of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004), review denied, 892 So.2d 1015 (Fla.
2004); State v. Wooten, 260 So. 3d 1060, 1070 (Fla. 4th DCA 2018); City of Riviera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA
1994); Williams v. City of Minneola, 575 So.2d 683, 687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential and
exempt from public disclosure, such record may not be released by the custodian of public records to anyone other than the persons or
entities specifically designated in statute. See Op. Att’y Gen. Fla. 04-09 (2004).
55
S. 394.464(1), F.S.
56
S. 394.464(3), F.S.
57
Art. I, s. 24(c), FLA. CONST., requires each public record exemption to “state with specificity the public necessity justifying the
exemption.”
58
Ch. 2019-51, Laws of Fla. STORAGE NAME: h7023c.HHS PAGE: 8
DATE: 2/23/2024
court or placed on a docket. Making such petitions, orders, records, and identifying
information confidential and exempt from disclosure will protect such persons from
the release of sensitive, personal information which could damage their and their
families’ reputations. The publication of personal identifying information on a
physical or virtual docket, regardless of whether any other record is published,
defeats the purpose of protections otherwise provided. Further, the knowledge that
such sensitive, personal information is subject to disclosure could have a chilling
effect on a person’s willingness to seek out and comply with mental health
treatment services.
The exemption applies to all documents filed with a court before, on, or after July 1, 2019.
59
Current law
does not expressly apply the exemption to pending or filed appeals.
Pursuant to the Open Government Sunset Review Act, the exemption will repeal on October 2, 2024,
unless reenacted by the Legislature.
60
Substance Abuse
Substance abuse refers to the harmful or hazardous use of psychoactive substances, including alcohol
and illicit drugs.
61
Substance use disorders occur when the chronic use of alcohol or drugs causes
significant impairment, such as health problems, disability, and failure to meet major responsibilities at
work, school, or home.
62
Repeated drug use leads to changes in the brain’s structure and function that
can make a person more susceptible to developing a substance use disorder.
63
Brain imaging studies
of persons with substance use disorders show physical changes in areas of the brain that are critical to
judgment, decision making, learning and memory, and behavior control.
64
According to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, a diagnosis of
substance use disorder is based on evidence of impaired control, social impairment, risky use, and
pharmacological criteria.
65
The most common substance use disorders in the United States are from
the use of alcohol, tobacco, cannabis, stimulants, hallucinogens, and opioids.
66
The Marchman Act
In the early 1970s, the federal government furnished grants for states “to develop continuums of care
for individuals and families affected by substance abuse.”
67
The grants provided separate funding
streams and requirements for alcoholism and drug abuse.
68
In response, the Florida Legislature
enacted ch. 396, F.S., (alcohol) and ch. 397, F.S. (drug abuse).
69
In 1993, legislation combined
chapters 396 and 397, F.S., into a single law, entitled the Hal S. Marchman Alcohol and Other Drug
Services Act (Marchman Act).
70
The Marchman Act supports substance abuse prevention and
remediation through a system of prevention, detoxification, and treatment services to assist individuals
at risk for or affected by substance abuse.
59
S. 394.464(5), F.S.
60
S. 394.464(6), F.S.
61
World Health Organization, Substance Abuse, http://www.who.int/topics/substance_abuse/en/ (last visited Jan. 24, 2024).
62
Substance Abuse and Mental Health Services Administration, Substance Use Disorders,
http://www.samhsa.gov/disorders/substance-use (last visited Jan. 24, 2024).
63
National Institute on Drug Abuse, Drugs, Brains, and Behavior: The Science of Addiction,
https://www.drugabuse.gov/publications/drugs-brains-behavior-science-addiction/drug-abuse-addiction (last visited Jan. 24, 2024).
64
Id.
65
Supra, note 62.
66
Id.
67
Darran Duchene & Patrick Lane, Fundamentals of the Marchman Act, Risk RX, Vol. 6 No. 2 (Apr. – Jun. 2006) State University
System of Florida Self-Insurance Program, available at http://flbog.sip.ufl.edu/risk-rx-article/fundamentals-of-the-marchman-act/ (last
visited Jan. 24, 2024).
68
Id.
69
Id.
70
Chapter 93-39, L.O.F., codified in Chapter 397, F.S. Reverend Hal S. Marchman was an advocate for persons who suffer from
alcoholism and drug abuse. Supra note 67. STORAGE NAME: h7023c.HHS PAGE: 9
DATE: 2/23/2024
An individual may receive services under the Marchman Act through either voluntary or involuntary
admission.
Voluntary Admissions
The Marchman Act encourages individuals to seek voluntary substance abuse impairment services
within the existing financial and space capacities of a service provider. Any individual who wishes to
enter treatment may apply to a service provider for voluntary admission. Within the financial and space
capabilities of the service provider, the individual must be admitted to treatment when sufficient
evidence exists that he or she is impaired by substance abuse and his or her medical and behavioral
conditions are not beyond the safe management capabilities of the service provider.
71
Under the Marchman Act, a minor’s consent to services has the same force and effect as an adult’s.
72
Involuntary Admissions
The Marchman Act establishes a variety of methods under which substance abuse assessment,
stabilization, and treatment can be obtained on an involuntary basis.
73
There are five involuntary
admission procedures that can be broken down into two categories: non-court involved admissions and
court involved admissions. Regardless of the nature of the proceedings, an individual meets the criteria
for an involuntary admission under the Marchman Act when there is good faith reason to believe the
individual is substance abuse impaired and, because of such impairment, has lost the power of self-
control with respect to substance use; and either has inflicted, attempted or threatened to inflict, or
unless admitted, is likely to inflict physical harm on himself or herself or another; or the person’s
judgment has been so impaired because of substance abuse that he or she is incapable of appreciating
the need for substance abuse services and of making a rational decision in regard to substance abuse
services.
74
Non-Court Involved Involuntary Admissions
The three types of non-court procedures for involuntary admission for substance abuse treatment under
the Marchman Act are:
Protective Custody: This procedure is used by law enforcement officers when an individual is
substance-impaired or intoxicated in public and is brought to the attention of the officer.
75
Emergency Admission: This procedure permits an individual who appears to meet the criteria
for involuntary admission to be admitted to a hospital, an addiction receiving facility, or a
detoxification facility for emergency assessment and stabilization. Individuals admitted for
involuntary assessment and stabilization under this provision must have a physician’s certificate
for admission, demonstrating the need for this type of placement and recommending the least
restrictive type of service that is appropriate to the needs of the individual.
76
Alternative Involuntary Assessment for Minors: This procedure provides a way for a parent,
legal guardian, or legal custodian to have a minor admitted to an addiction receiving facility to
assess the minor’s need for treatment by a qualified professional.
77
71
S. 397.601, F.S.
72
S. 397.601(4)(a), F.S.
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See ss. 397.675 – 397.6978, F.S.
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S. 397.675, F.S.
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Ss. 397.6771 – 397.6772, F.S. A law enforcement officer may take the individual to his or her residence, to a hospital, a detoxification
center, or addiction receiving facility, or in certain circumstances, to jail. Minors, however, cannot be taken to jail.
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S. 397.679, F.S.
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Court Involved Involuntary Admissions
The two court-involved Marchman Act procedures are involuntary assessment and stabilization, which
provides for short-term court-ordered substance abuse services, and involuntary services,
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which
provides for long-term court-ordered substance abuse treatment.
Involuntary Assessment and Stabilization
Involuntary assessment and stabilization involves filing a petition with the clerk of court.
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Once the
petition is filed with the clerk of court, the court issues a summons to the respondent and the court must
schedule a hearing to take place within 10 days, or can issue an ex parte order immediately.
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After hearing all relevant testimony, the court determines whether the respondent meets the criteria for
involuntary assessment and stabilization and must immediately enter an order that either dismisses the
petition or authorizes the involuntary assessment and stabilization of the respondent.
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If the court determines the respondent meets the criteria, it may order him or her to be admitted for a
period of 5 days
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to a hospital, licensed detoxification facility, or addictions receiving facility, for
involuntary assessment and stabilization.
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During that time, an assessment is completed on the
individual.
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The written assessment is then sent to the court. Once the written assessment is received,
the court must either:
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Release the individual and, if appropriate, refer the individual to another treatment facility or
service provider, or to community services;
Allow the individual to remain voluntarily at the licensed provider; or
Hold the individual if a petition for involuntary services has been initiated.
Involuntary Services
If the individual has previously been subject to at least one of the four other involuntary admissions
procedures within a specified period, a court may require the individual to be admitted for treatment for
a longer period through involuntary services.
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Similar to a petition for involuntary assessment and stabilization, a petition for involuntary services must
contain identifying information for all parties and attorneys and facts necessary to support the
petitioner’s belief that the respondent is in need of involuntary services.
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A hearing on a petition for
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The term "involuntary services" means "an array of behavioral health services that may be ordered by the court for a person with
substance abuse impairment or co-occurring substance abuse impairment and mental health disorders." S. 397.311(22), F.S. SB 12
(2016), ch. 2016-241, Laws of Fla., renamed "involuntary treatment" as "involuntary services" in ss. 397.695 – 397.6987, F.S., however
some sections of the Marchman Act continue to refer to "involuntary treatment." For consistency, this analysis will use the term
“involuntary services.”
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S. 397.6811, F.S.
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S. 397.6815, F.S. Under the ex parte order, 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.
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S. 397.6818, F.S.
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If a licensed service provider is unable to complete the involuntary assessment and, if necessary, stabilization of an individual within
5 days after the court's order, it may, within the original time period, file a request for an extension of time to complete its assessment.
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 individual. The original court order authorizing the involuntary assessment and stabilization, or a
request for an extension of time to complete the assessment and stabilization that is timely filed, constitutes legal authority to
involuntarily hold the individual for a period not to exceed 10 days in the absence of a court order to the contrary. S. 397.6821, F.S.
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S. 397.6811, F.S. The individual may also be ordered to a less restrictive component of a licensed service provider for assessment
only upon entry of a court order or upon receipt by the licensed service provider of a petition.
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S. 397.6819, F.S. The licensed service provider must assess the individual without unnecessary delay using a qualified professional.
If an assessment is performed by a qualified professional who is not a physician, the assessment must be reviewed by a physician
before the end of the assessment period.
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S. 397.6822, F.S. The timely filing of a Petition for Involuntary Services authorizes the service provider to retain physical custody of
the individual pending further order of the court.
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S. 397.693, F.S.
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involuntary services must be held within five days unless the court grants a continuance.
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If the court
finds that the conditions for involuntary substance abuse treatment have been proven, it may order the
respondent to receive involuntary services for a period not to exceed 90 days.
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However, substance
abuse treatment facilities other than addictions receiving facilities are not locked; therefore, individuals
receiving treatment in such unlocked facilities under the Marchman Act may voluntarily leave treatment
at any time, and the only legal recourse is for a judge to issue a contempt of court charge and impose
brief jail time.
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Confidentiality of Service Provider Records in Marchman Act Proceedings in Florida
In 2017, the Legislature created a public record exemption for certain information filed with a court
under the Marchman Act.
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Specifically, all petitions for involuntary assessment and stabilization, court
orders, and related records that are filed with or by a court under the Marchman Act are confidential
and exempt from public record requirements. However, the clerk of the court may disclose the
pleadings and other documents to:
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The petitioner;
The petitioner's attorney;
The respondent;
The respondent's attorney;
The respondent's guardian or guardian advocate, if applicable;
In the case of a minor respondent, the respondent's parent, guardian, legal custodian, or
guardian advocate;
The respondent's treating health care practitioner;
The respondent's health care surrogate or proxy;
DCF, without charge;
The Department of Corrections, without charge, if the respondent is committed or is to be
returned to the custody of the Department of Corrections from DCF; or
A person or entity authorized to view records upon a court order for good cause.
Under current law, a respondent’s name, at trial and on appeal, and applications for voluntary and
involuntary substance abuse treatment are not part of the public record exemption. However, as in the
Baker Act, the clerk of court is prohibited from publishing personal identifying information on a court
docket or in a publicly accessible file.
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The 2017 public necessity statement for the exemption provides that the Legislature finds that:
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A person’s health and sensitive, personal information regarding his or her actual
or alleged substance abuse impairment are intensely private matters. The media
have obtained, and published information from, such records without the affected
person’s consent. The content of such records or personal identifying information
should not be made public merely because they are filed with or by a court or
placed on a docket. Making such petitions, orders, records, and identifying
information confidential and exempt from disclosure will protect such persons from
the release of sensitive, personal information which could damage their and their
families’ reputations. The publication of personal identifying information on a
physical or virtual docket, regardless of whether any other record is published,
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S. 397.6955, F.S.
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S. 397.697(1), F.S. If the need for services is longer, the court may order the respondent to receive involuntary services for a period
not to exceed an additional 90 days.
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Supra, note 67. If the respondent leaves treatment, the facility will notify the court and a status conference hearing may be set. If the
respondent does not appear at this hearing, a show cause hearing may be set. If the respondent does not appear for the show cause
hearing, the court may find the respondent in contempt of court.
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Ch. 2017-25, Laws of Fla., codified as s. 397.6760, F.S.
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S. 397.6760(1), F.S.
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S. 397.6760(3), F.S.
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DATE: 2/23/2024
defeats the purpose of protections otherwise provided. Further, the knowledge that
such sensitive, personal information is subject to disclosure could have a chilling
effect on a person’s willingness to seek out and comply with substance abuse
treatment services.
The exemption applies to all documents filed with a court before, on, or after July 1, 2017.
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Current law
does not expressly apply the exemption to pending or filed appeals.
Effect of the Bill
The bill makes hearings under the Baker Act and under Parts IV and V of the Marchman Act
confidential, absent a judicial finding of good cause or the respondent’s consent.
The bill expands the public record exemption for Baker petitions for voluntary or involuntary admissions
to include a respondent’s name, at trial and on appeal, and all applications for such admissions. The bill
also requires that admissions for mental health examinations be kept confidential and exempt from
public record requirements.
The bill expands the public record exemption for certain Marchman Act petitions for involuntary
assessments and stabilization to include voluntary assessments. The information held confidential and
exempt is expanded to include a respondent’s name, at trial and on appeal, and all applications for
substance abuse treatment or assessment and stabilizations. The bill also expands the scope of the
exemption to cover information filed with a court under Part IV of the Marchman Act.
The bill also adds service providers to the list of individuals to whom the clerk of court may disclose
confidential and exempt pleadings and other documents.
The bill maintains the current prohibition against a clerk of court publishing personal identifying
information on a court docket or in a publicly accessible file, but creates a narrow exception that allows
courts to use a respondent’s name to schedule and adjudicate cases. In addition to applying to
documents that were previously filed with a court, these new exemptions also apply to appeals pending
or filed on or after July 1, 2024.
The bill provides statements of public necessity as required by the Florida Constitution, specifying that
the exemptions protect sensitive personal information, the release of which could cause unwarranted
damage to the reputation of an individual.
The bill provides that the public record and public meeting exemptions are subject to the Open
Government Sunset Review Act and will stand repealed on October 2, 2029, unless the saved from
repeal through reenactment by the Legislature.
The effective date of the bill is the same date that CS/CS/HB 7021 or similar legislation takes effect, if
such legislation is adopted in the same legislative session or an extension thereof, and becomes law.
The effective date of CS/CS/HB 7021 is July 1, 2024.
B. SECTION DIRECTORY:
Section 1: Amends s. 394.464, F.S., relating to court records; confidentiality.
Section 2: Amends s. 397.6760, F.S., relating to records; confidentiality.
Section 3: Provides statements of public necessity.
Section 4: Provides that the bill is effective on the same date as HB 7021 (2024) or similar
legislation takes effect.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
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DATE: 2/23/2024
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
The bill has an indeterminate, but likely insignificant, negative fiscal impact on the State Courts
System.
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B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to spend funds or take
action requiring the expenditures of funds; reduce the authority that counties or municipalities have
to raise revenues in the aggregate; or reduce the percentage of state tax shared with counties or
municipalities.
2. Other:
Vote Requirement
Article I, section 24(c) of the Florida Constitution requires a two-thirds vote of the members present
and voting for final passage of a newly-created or expanded public record exemption or public
meeting exemption. The bill creates a public record and public meeting exemption; thus, it requires a
two-thirds vote for final passage.
Public Necessity Statement
Article I, section 24(c) of the Florida Constitution requires a public necessity statement for each
newly created or expanded public record or public meeting exemption. The bill creates a public
record and public meeting exemption; thus, it includes statements of public necessity. The
statements provide that the Legislature finds, in part, that the mental health or substance abuse
impairments of a person are medical conditions, which are intensely private matters that should be
protected from public disclosure.
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DATE: 2/23/2024
Breadth of Exemption
Article I, section 24(c) of the Florida Constitution requires a newly created or expanded public record
exemption or public meeting exemption to be no broader than necessary to accomplish the stated
purpose of the law. The bill makes hearings under the Baker Act and under Parts IV and V of the
Marchman Act confidential and expands current exemptions from public record requirements to
include a respondent’s name, at trial and on appeal, and applications for voluntary mental health
examinations or treatment and substance abuse, none of which appear broader than necessary to
accomplish their purpose.
B. RULE-MAKING AUTHORITY:
The bill does not create new, or expand existing rulemaking authority.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On February 22, 2024, the Health and Human Services Committee adopted an amendment and reported
the bill favorably as a committee substitute. The amendment links the bill to HB 7021 and makes the bill
effective on the same date that HB 7021 or similar legislation takes effect.
This analysis is drafted to the amendment as approved by the Health and Human Services Committee.