Let’s Fix The Marchman Act

By Sophie Zollmann 1 month agoNo Comments

At Drug And Alcohol Attorneys, our practice is exclusively focused on helping individuals and families who are in crisis because of drug and alcohol addiction. The Marchman Act is a critical piece of the puzzle when it comes to solving the issue of addiction. With that said, there are parts of the Marchman Act which need legislative attention, the most serious of which are addressed below.   

The process must be faster (much faster) 
 
Hypothetically speaking, if I receive a call from a distraught mom at 7:00 p.m. on a Thursday night, her daughter having come to Florida for treatment from another State, I can be retained, interview the client, and draft and file a Petition for Assessment, Stabilization and Detox before midnight. However, somewhere in the mix of the Clerk of Court, the Judicial System, and law enforcement, a Pick Up Order likely will not get executed when it is needed, the next day (Friday). By Monday morning, when law enforcement is ready, willing and able to execute the Pick Up Order, it’s too late. The daughter is nowhere to be found.

This hypothetical is the type of scenario I experience all too often and is desperately frustrating for a parent who has been referred to me and I can’t get them the help they desperately need. The simple fact remains that we need more clerks and judges and law enforcement officers receiving, reviewing and executing Pickup Orders if we are to move rapidly and save lives. Same day turnaround should be the norm when an ex parte Petition for Assessment, Stabilization and Detox has been filed, not the exception.   
 
The Enforcement Process is Too Cumbersome   

When an individual (the Respondent) is ordered into treatment, unless he or she is ordered into a hospital setting, which tends to be more secure than a regular treatment center, they are free to walk out against medical advice. The appropriate legal remedy when that occurs is to petition the Court for a Rule to Show Cause which, before being heard by the Court, must be served on the Respondent … who just walked out of treatment and cannot be located. While we recommend the filing of a Missing Person’s Report, unless the location of the Respondent is known, law enforcement will not go looking for them unless foul play is suspected. They just don’t have the man power.  

When a Defendant in a criminal case is arrested and goes before a judge to address the issue of pre-trial release, he or she can be ordered to wear an ankle monitor so that his or her location is known and can be restricted, usually to their home. If they leave or remove the device, law enforcement is immediately notified and can effectuate an arrest. Why is this or similar technology not being used in the Marchman Act process?

When an individual leaves treatment, not only must law enforcement be notified immediately, they must also be able to track, locate, pick up that individual, and either take them into custody, or in the event they have used opioids, take them to a secure detox facility. Respondents who are ordered into treatment have been judicially determined to be incapable of making a rational decision to go into treatment. These are individuals who are a danger to themselves and/or someone else and for that reason, they need to be closely monitored and located should they walk out of treatment.   
 
Pick up orders must be enforceable State-Wide (and maybe even nationwide)

The Marchman Act requires that the Petition for Assessment, Stabilization and Detox be filed in the County in which the Respondent is physically located. Residency status is irrelevant. Once filed, granted, and a Pick Up Order issued, it can only be served in that county. If the Respondent leaves the county, the pick up order cannot (or will not) be enforced or executed.  

When a judge, sitting on the criminal bench, issues an arrest warrant, that information is entered into the database of the National Crime Information Center (NCIC) making it available to virtually every law enforcement agency in the United States. In theory, a traffic stop for a broken tail light while driving in Ohio could result in the arrest of an individual on a Florida warrant. If Florida is willing to pay for transport, that person will be sent back to Florida for execution of the warrant. As the system currently functions, a Pick Up Order issued in Broward County is not enforced in Palm Beach County (never mind Ohio). When we are dealing with individuals who are at high risk of relapse and/or suicide (especially when there is a co-occurring mental health problem), the effectiveness of the Marchman Act is severely limited due to its lack of “full faith and credit”. 
 
Creation of a Centralized Record System (Baker and Marchman Acts)
 
A secure, centralized record system must be created, accessible to law enforcement and medical personnel. When an officer comes into contact with an individual, for his or her own safety, they need to know if there is a potential mental health or substance abuse issue.  

That information not only protects the officer, it also enables the execution of any outstanding Pick Up Order, much like an outstanding arrest warrant. If the Pick Up Order has been outstanding for more than thirty (30) days, then that individual should be taken to the county jail and within twenty-four (24) hours brought before the issuing judge to determine if the statutory criteria for the Marchman Act are still present (this is a process that mirrors the aforementioned first appearance requirement). 

The idea of the “revolving door” scenario, with individuals appearing multiple times at the same Emergency Room due to repeat overdoses (often in the same twenty-four hour period), is simply lubricous. If ER staff knew that someone either had an outstanding Pick Up Order (in which case they could contact law enforcement), or that the individual had previously been a Marchman Act Respondent, surely they would be more inclined to initiate a seventy-two (72) hour hold (see my last newsletter discussing the emergency provision of the Marchman Act http://drugandalcoholattorneys.com/the-forgotten-twins-of-the-marchman-act/), as opposed to releasing that individual only for them to overdose again. 
  
Emergency Guardianship Petitions (ETG) need to be part of the Marchman Act process (by Audra Simovitch, Esq.)
 
A Guardianship, and more specifically an ETG appointment, enables a Petitioner to make health care decisions on behalf of a Respondent when “there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person’s property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.” The court will consider whether the alleged incapacitated person (AIP) is a danger to themselves or others (like the Marchman Act).  

One of the benefits of Petitioning the Court for an ETG, is the ability to circumvent HIPA, and other such laws, that must be considered when an individual becomes eighteen (18) years of age. Generally, a parent, physician or interested person over the age of eighteen (18), who qualifies as a Guardian, can immediately begin to manage the AIP’s medical decisions, receive medical information on behalf of the AIP, authorize treatment based on physician recommendations, change facilities, or any specific medical decisions unique to that particular AIP. 

The ETG is good for 90 days, with the ability to renew for an additional ninety (90) days (like the Marchman Act), if a determination of Permanent Guardianship is not heard prior to that time.

One of the pitfalls of the current system is that the ETG must be filed separate and apart from the Marchman Act. This means that the ability to make medical decisions on behalf of a Respondent, who may be in the process of assessment, stabilization and detox, is delayed. This process requires a separate petition, heard before a different court, which may or may not move on the same time frame as the Marchman Court, increasing the financial and emotional stress of an already charged situation. Moreover, the ETG petition usually requires presentation of the same evidence as that presented to the Marchman Court.  In short, it’s a seriously inefficient way of doing things.

Conclusion

I believe that the Marchman Act can become the “gold standard” for involuntary commitment statutes which are already gaining national support (http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/06/15/support-grows-for-civil-commitment-of-opioid-users). It’s time for the Florida legislature to take action and fix the Marchman Act so we can reverse the current trend of increasing overdoses.  

As always, I welcome comments, criticisms and critique from anyone and everyone on the thoughts I have shared above. 

Categories:
  drugs, marchman, mental health, treatment
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