Written by: Jaclyn Bovarnick
John Doe, a young man who found himself in the criminal justice system because of an “impulse control” issue, suffered for over twenty years from a mental illness that was poorly managed and mis-diagnosed1
. As a result of his poorly treated mental illness, he began to use and abuse anything that he could put in his mouth, in his veins, or up his nose1
. He became addicted to substance use because he wanted to do anything to make himself “feel better”. While John Doe fought to stay out of trouble, his family suffered as they watched their son’s life deteriorate. While they became physically, emotionally, and financially spent, they wondered what their options were and how they could help their son get his life back on track before it was completely lost. There is a “definite connection between mental illness and the use of addictive substances”2
and these diseases, if left unchecked and untreated, only get worse with time. As a result, an individual suffering from these diseases can really go to one of three places: prison, a morgue, or to treatment. This topic is of importance because mental health is a very prominent issue in today’s society as well as substance abuse, especially with the urgent opioid crisis. In 2016, more than 63,000 lives worldwide were lost to drug overdose3
, a majority of which were as a result of opioid use. In 2016 alone, statistics showed that opioids killed more people than breast cancer. There were 42,249 drug fatalities in the United States, 66% percent of which involved opioids; that’s over a thousand more than the American’s who die from breast cancer ever year3
. Statistics from this past year also revealed that America is one of the countries with the highest prevalence of alcohol abuse, where 237 million men and 46 million women are problem drinkers and alcohol abusers4
. More than 3 million people died in 2016 from drinking too much alcohol, meaning 1 in 20 deaths worldwide were linked to harmful drinking4
. “Far too many people, their families, and their communities suffer the consequences of the harmful use of alcohol” 4
, said the WHO director-general, Adhanom Ghebreyesus; the same can be said for mental illness and drug abuse. “The mortality trends in mental and substance use disorders point to the need for a well-considered response from local and state governments, as well as care providers, to help reduce the disparities we are seeing across the country (Dr. Christopher Murray)” 5
. As a country we need to have a bigger discussion about getting individuals the treatment they need as well as keeping them in treatment so they have a successful recovery. A major dilemma with the treatment of these diseases is that individuals, along with their families, sometimes have an issue with either accepting the fact that they need treatment, going in and out of treatment facilities because of relapse or not wanting to be there, or believing that they don’t need treatment at all. There are options when it comes to helping families and individuals when a loved one has a substance abuse and/or a mental health disorder. These options can involve the use of involuntary commitment and treatment under the Baker Act or Marchman Act, sometimes in conjunction with temporary or permanent guardianship over the person with the disease. A major implication of involuntarily committing a person for substance abuse and mental health treatment is the violation of their constitutional rights. A constantly reoccurring question asks whether involuntary treatment and commitment violates a persons’ constitutional rights. Following this question, one might ask if a person is in need of involuntarily commitment for treatment, who should have the ability to make this decision and why is someone else more capable of making a ‘better’ life decision that could have lasting effects on that person’s life.
The Florida Mental Health Act (also known as the Baker Act) took effect in 1972 and is a state statute that allows for involuntary detention and subsequent examination of mentally ill and dangerous persons for a limited time period, ranging from 48 to 72 hours6
. The intent of this statute is to provide the least restrictive form of intervention for mentally ill persons and to provide a Bill of Rights for persons of all ages who may suffer from mental illness7
. Under this law, if (1) there is reason to believe that a person has a mental illness, (2) the person does not agree to a voluntary examination, and (3) without care the person may suffer harm or be a danger to himself or others, the involuntary examination process can be initiated by a court order, by a law enforcement officer, or by a physician or a mental health professional6
. Upon initiation of a Baker Act, the person is delivered to a receiving facility and must be examined within 72 hours; patients may not be held involuntarily for longer than 72 hours. By the end of the 72-hour holding period, the receiving facility must act based on the patient’s best interests. If treatment is deemed necessary for the patient but they refuse voluntary treatment, a petition for involuntary placement (known as civil commitment in other states) may be filed6
. A question one might ask about the Baker Act is does it violate a person’s constitutional rights. “Because civil commitment takes away a person’s freedom, the patient in a civil commitment proceeding receives full due process rights”6
and a “finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement”6
. Therefore, the answer to this question is no, depending upon the fact that the mentally ill person meets the designated criteria for involuntary detention under the Baker Act statute. A person’s constitutional rights must also be upheld once committed and receiving treatment.; “psychiatric patients retain substantive constitutional rights”6
to conditions appropriate with their diagnoses. The first case brought to the Supreme Court that shed light on the rights of mental health patients was O’Connor v. Donaldson
422 U.S. 563 (1975). In this case, a man was confined against his will in a state mental hospital for 15 years even though he was not thought to be dangerous to himself or others and was not receiving any treatment6
. The Supreme Court held that O’Connor violated Donaldson’s constitutional right to freedom6
. Eventually this decision led to the due process protections in most states’ laws6
. Under due process protections, the Baker Act does not violate a person’s constitutional rights. Individual’s under the Baker Act are allowed a hearing to determine if they should continue to be held because of mental illness. If a doctor does not deem them to be mentally ill and harmful to themselves or another, then the hold will be released, and they are free to go. The Baker Act can be a useful tool in helping people who suffer from mental illness by keeping themselves and others out of harm’s way. Unfortunately, in some cases, the Baker Act may not be enough to save a person’s life, however, it is a necessary tool in the fight against mental illness. The Baker Act is different from the Marchman Act in that it is used solely for the purpose of involuntary detention of a mentally ill person, but it is certainly of equal importance.
The Marchman Act, also known as the Florida Law on Substance Abuse or the Hal. S Marchman Alcohol & Other Drug Services Act of 1993 addresses an entire array of substance abuse impairment issues7
. In 1993, it replaced the Myers Act which was alcohol abuse only, and the Florida Drug Dependency Act which addressed ‘other’ drugs. “The Marchman Act is not just the substance abuse version of the Baker Act”7
; the Marchman Act, unique to Florida, is a piece of lifesaving legislation that permits the involuntary commitment of an individual, minor or adult, suffering from a drug or alcohol substance abuse disorder1
in addition to a co-occurring mental health disorder. The Marchman Act (397.675, FS) provides three distinct non-court procedures (protective custody, emergency admission, alternative assessment and stabilization of minors) and one court procedure (involuntary assessment and stabilization) for conducting assessments, which may include detoxification, stabilization, and short-term treatment. The criteria is: There is good faith reason to believe the person is substance abuse impaired and, because of such impairment: 1. Has lost the power of self-control with respect to substance use; and either 2a. Has inflicted, or threatened or attempted to inflict, or unless admitted is likely to inflict, physical harm on himself or herself or another; or 2b. Is in need of substance abuse services and, by reason of substance abuse impairment, his or her judgment has been so impaired that the person is incapable of appreciating his or her need for such services and of making a rational decision in regard thereto; however, mere refusal to receive such services does not constitute evidence of lack of judgment with respect to his or her need for such services.7
The Marchman Act is initiated when an Ex Parte petition, which is a temporary order pending a formal hearing or an emergency request for continuance8
, is filed and reviewed, followed by a Court order, ordering the assessment of an individual for up to 5 days, possibly followed by involuntarily commitment for up to 90 days (which can be extended for a further 90 days)1
. If an individual decides to leave treatment prior to completion of the Court ordered treatment, a pick-up order may be issued, and the individual is held in contempt of court. The Court can then use the threat of incarceration to “leverage” the individual back into treatment1
. Could this be a violation of a person’s constitutional rights? The Marchman Act provides many placement options for assessment and possible subsequent treatment; some places include hospitals, addiction receiving facilities, as well as detoxification facilities. Treatment plans are individualized and are based upon information from the assessments taken at placement facilities. All of these proceeding are confidential and will become a part of the person’s medical records. Simon Astor, a doctor currently completing his residency at Mount Sinai Hospital, shared the horrors of treating a child who was brought in after suffering a heart attack caused by an untreated opioid addiction. He said, “there is nothing worse than having to tell a mother and father that their 18, 19, or 20-year-old child is gone because they suffered a heart attack after shooting up with heroin.”1
Involuntary commitment and treatment for this young man under the Marchman Act may have had the ability to save his life. An example ex parte petition titled: EX PARTE PETITION SEEKING INVOLUNATRY SUBSTANCE ABUSE ASSESSMENT, STABLIZATION AND TREATMENT SERVICES (MARCHMAN ACT) filed by Petitioner in Palm Beach County (2018). The Respondent, who is 39 years of age, has been a heavy drinker for the past 20 years. At 13 years of age, the Respondent attended a detox facility for an addiction to pain pills, cocaine, and alcohol but did not follow up with any post-detox treatment. The Respondent, who has lived with the Petitioner for the past 10 years has been struggling with alcohol abuse and social anxiety as well as having ‘bad’ thoughts, especially towards the Petitioner. For the past 12 years, the Respondent has been addicted to pain pills such as Oxycodone which he began following a back injury. In the last year, in addition to significant consumption of alcohol, the Respondent has been abusing medications obtained by “doctor shopping” by being dishonest about his addictions and prescriptions he was already taking. The Petitioner has become more aggressive and physical towards the Petitioner, battering her on several occasions. In addition to his prescribed medications and cocaine use, the Respondent has been using his deceased father’s medications; all of which are mixed with alcohol. In March 2017, the Respondent threatened to shoot the Petitioner’s family with firearms that were already in his possession. On November 3, 2017, the Petitioner asked the Respondent to leave their home because he was drunk and aggressive, scaring her. The Petitioner has learned more recently that the Respondent has been abusing additional anxiety and anti-depressant medications.9
Under Section 397.675 (Marchman Act), Florida Statutes, the Respondent meets the criteria for Involuntary Substance Abuse Assessment and Stabilization in that he is substance abuse impaired and has a co-occurring mental health disorder, and because of such impairment and disorder he meets the criteria explained above. Therefore, the Petitioner requests that the court enter an Ex Parte Order finding the Respondent in need of Involuntary Substance Abuse Assessment and Stabilization. The Petitioner also requests that the court order the Respondent to be taken and remain at Sunrise Detox Facility where he can be assessed and stabilized until the court can conduct an additional hearing to determine Involuntary Treatment Services.9
In cases such as this, where the Respondent’s disease has seemingly taken control of his ability to make good decisions, the Marchman Act has the potential to save not only his life, but the lives of others around him. Ultimately, the Marchman Act has the ability to save many lives of those suffering from substance abuse and mental health disorders and has the possibility to become a leading statute for fighting the opioid epidemic faced by our nation.
A Guardianship, also known as an Emergency Temporary Guardianship (ETG), can be valuable for cases in which there is a mental health disorder with a history of substance abuse, but such substances are not immediately found in someone’s system. An ETG can also be useful in situations where the Petitioners have exhausted every option such as the Marchman Act and the Baker Act to try to get their loved ones the help they need. Like the Marchman Act, the ETG is set for 90 days (with the ability to renew for an additional 90 days). A Guardianship enables a Petitioner (in most cases a family member), 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.”1
In an emergency proceeding, the Court grants temporary relief pending a determination of incapacity. The emergency temporary relief gives the emergency temporary guardian the ability to get the alleged incapacitated person (AIP) into treatment. This temporary relief is granted when an individual appears to be in danger to themselves or others. Once incapacity is determined, a guardianship allows the Petitioner to make decisions for their loved ones regarding medical care, management of their property, restrictions of their right to travel, right to vote, choice of residence and who to socialize with; once determined incapacitated in Florida, their right to possess and own a firearm is now taken away. Do these decisions made by the Petitioner and the state of Florida violate the Respondent’s constitutional rights? One of the benefits of a petition for an Emergency Temporary Guardianship, is the ability to circumvent HIPPA1
which must be considered when an individual reaches the age of eighteen. A parent, physician, or interested person over the age of eighteen, who qualifies as a Guardian, has the ability to begin to manage the AIP’s medical decisions, receive medical information on behalf of the AIP, authorize treatment based on physician recommendations, initiate a change in facilities, or decide any other specific medical decisions unique to that particular AIP1
. An example ETG Petition titled: PEITION FOR APPOINTMENT OF EMERGENCY TEMPORARY GUARDIAN, filed by Petitioners against Respondent (2018). A Petition to Determine Incapacity has been filed with respect to Respondent, an alleged incapacitated person (AIP), but a guardian has not yet been appointed. The Petitioners are his parents and are interested in the welfare of the AIP. There appears to be imminent danger that the physical or mental health or safety of the AIP will be seriously impaired or that the property of that person is in danger of being wasted, misappropriated or lost unless immediate action is taken because: The AIP is 21 years of age. The AIP had manual dexterity delays and required speech therapy and had difficulty learning. The AIP was diagnosed with ADHD at an early age and while in middle school he was diagnosed with anxiety and depression. At the age of 9, following a surgery, the AIP was prescribed pain medication. The Petitioners soon found him drinking the entire bottle of Hydrocodone, saying it “made him feel good”. At 13 years of age, the AIP began an obsession with smoking marijuana. One night his mother (Petitioner) asked to talk about his addiction and the AIP replied, “You do not understand, this is the only peace I have ever found.” The AIP was taken to counseling with limited success. He was caught stealing cold medicine from drugstores and taking Corcidin by the handful. The AIP was taken to a treatment facility at the age of 14, however, he refused to stay in treatment and ran away twice with no shoes. At the ages of 15 and 16 the AIP was in and out of other treatment facilities. Around January 2012, the AIP went into the Petitioners home and stole whatever drugs he could find as well as a knife. The police were called and the Respondent was arrested for drug possession where he wanted taken for a psych evaluation. He was then taking to another treatment facility for several months. The following year, after he has aspirated on his vomit in an outpatient program, the AIP was taken to a treatment center in Florida where he remained in recovery for six months eventually gaining the ability to seek employment. He relapsed and ended up getting arrested on four drug possession charges, resulting in admittance to a Drug Court program. The AIP was terminated from this program after multiple “dirty” violations. By the age of 19 the AIP had 4 separate drug convictions and no place to live (2015). In November of 2017, the AIP began to hallucinate telling the Petitioner he was being chased by people, his phone was bugged, and he “was going to die”. After being Baker Acted by police and taken to North Shore Medical Center in Miami, the Respondent requested his mother come get him, from Virginia, because he was being poisoned by Anthrax. AIP’s mother discovered he was using meth and taking Xanax. Around November 9, 2017 under a Marchman Act order the AIP was ordered to a detox facility in Boca Raton, Florida. The AIP became uncooperative and belligerent and subsequently left, in direct violation of the order. An Emergency Ex Parte Motion was filed for a pick up order. The AIP now resides in South County Mental Health Facility. The Petitioners are seeking Emergency Temporary Guardianship because the AIP is a threat to himself and to others and needs medical treatment. The AIP is noncompliant with treatment. There is imminent danger in that he is likely to inflict physical harm onto himself or to another. The AIP has lost the power of self-control due to substance abuse and a co-occurring mental health disorder and he is incapable of appreciating his need for treatment. 10
The proposed emergency temporary guardians should be appointed because the AIP is incapable of making rational decisions due to his substance abuse and mental health disorder. Without proper care, the AIP is likely to suffer from neglect or refuse to care for himself thereby posing a substantial threat to himself and others. The temporary guardians will be able to make rational decisions for the AIP in order to save his life and hopefully help him get on the right track.
There is also something called a Permanent Guardianship which can be granted by a Court with or without an ETG. The petitioner can ask for Permanent Guardianship if it appears that the AIP is not going to become competent enough to manage their own affairs. If a Permanent Guardianship is granted, all of the benefits of the ETG apply, but for an indefinite period of time1
Constitutional Rights Violations
In terms of the Baker Act, under due process protections, this statute does not violate a person’s constitutional rights. The Marchman Act, however, is relatively newer and we have yet to come across a case where violation of a person’s constitutional rights have set grounds for what due process protections are protected under the statute.
In terms of Guardianship, some might question the ability of a guardian to take away an individual’s rights under the constitution such as the right to vote as well as an individual’s right as a free person such as the right to travel and to manage one’s own property. If determined incapacitated, it makes sense that an appointed guardian with an interest in the welfare of the individual make rational decisions on their behalf. Also in terms of an incapacitated person losing their ability to possess a firearm(s), although this seems to violate a person’s second amendment rights, there is no reason that a person under the influence of substances or with a mental disorder that causes them to make irrational decisions should possess a firearm. This would put their life in danger and potentially many others around them.
There is an old idea that people who have a substance abuse disorder cannot be helped until they reach their own bottom11
Too many have died while their loved ones waited for them to ‘hit rock bottom’ causing the individual to finally seek treatment or help11
. Because of statutes such as the Marchman Act, we no longer have to play this tired game. The Marchman Act, as well as a petition for Guardianship, can be effective tools to get individuals the treatment they so desperately need, even if they deny it because their judgment is impaired. Although these statutes sometimes seem to take away an individual’s constitutional rights, if someone else is more capable of making an informed, rational decision on their behalf thereby keeping that individual and others around them safe, then they should be able to petition a court to do so. Involuntary committing a loved one for substance abuse and mental illness can be a fairly difficult situation and not all cases turn out well. But, the Baker Act, Marchman Act, and Guardianship are all ways in which we make possible, the opportunity to save the life of a loved one or individuals around them.
References Click here for references