Tuesday, January 11, 2011

To the Members of “The Addict’s Mom” - 2011- “Committed to Care”: A Guide to the Florida Marchman Act

To the Members of “The Addict’s Mom”

“Committed to Care”: A Guide to the Florida Marchman Act

After meeting and being interviewed by one of your members Denise Krochta of WebTalkRadio.net, I immediately joined your Facebook friends as you are the audience I have been searching for as an educator and advocate in the field of addiction, and I am the resource that many of you have probably been seeking for years, if you are dealing with an addicted loved one.

That said: Let me first introduce myself. My name is Raymond G. Ferrero III, Esq. I am a Partner and Co-founder of Addiction Recovery Legal Services, LLC.  I am also the Executive Director of Heath Affairs for Nova Southeastern University’s Health Professions Division and a Gubernatorial Appointee for the Florida Statewide Drug Policy Advisory Committee. Within months it will also be announced that I will be the acting Chairman of the Board of Governors for Nova Southeastern Universities, National Institute of Substance Prevention, Use, Abuse and Addiction.  Today I take great pleasure in the fact that I am going to be writing to you on regaining control when dealing with the ultimate loss of control one experiences when living with an addict. I am going to write and explain to you a little known (or, understood) law that exists in Florida: The Florida Marchman Act, and a law that can be utilized by anyone whether you live in Florida, New York, Greenland or the North Pole  - as long as you can get the addict to step foot in Florida.

For over a decade, I have been actively involved with South Florida as an attorney and advocate for families in Florida Marchman Act Court and an educator through Nova Southeastern University’s College of Osteopathic Medicine and College of Public Health.  I firmly believe that the Florida Marchman Act is a family’s greatest resource and tool for addressing substance use, abuse and addiction within the family unit and regaining control over a disease that is as destructive to the family as any crisis imaginable.  The Florida Marchman Act is a law that was written to provide those in need of confidential, court ordered and monitored drug and alcohol assessment, stabilization and treatment. It is a law and a process that when handled correctly empowers families and literally saves lives.  So, let us begin…

What is the Florida Marchman Act?

Most simply put, the Florida Marchman Act is a civil procedure that allows the friends or family of someone who is substance abuse impaired to confidentially petition and request that a court help them address their loved ones substance abuse problem. Based upon this petition, the court may issue an order that requires the substance impaired individual to enter into a private or community based facility for drug and alcohol intervention, assessment, stabilization and/or treatment. The key to this court order is that the impaired individual must comply with the court supervised drug and alcohol intervention, assessment, stabilization and/or treatment. Let me repeat that - the individual has no choice in the matter and must comply with the court ordered treatment. Even if this is an individual who has a history of refusing to get help voluntarily, or, repeatedly fails in their attempts to remain drug and alcohol free, under The Florida Marchman Act they cannot refuse such help once the court order has been put into place. Under the Florida Marchman Act, if the individual refuses to comply with the court order, they subject themselves to court sanctions and punishment - including, jail time! If that court order is in place and the addict relapses and uses, or, leaves the facility against medical advice, or, threatens to leave the facility against medical advice, or, simply refuse to engage the treatment program, the court will do what I like to call “handing them the keys to the jail”.  What does that mean?  That means that the court will look at them and give them one of two options: (1) go back to treatment, or, (2) be held in Civil Contempt and go to jail.  And, if they choose jail, when they get out, they will still have to go back to treatment and comply with the original court order. I stress, however, that the Marchman Act Court is to geared toward providing people who need help the help they need to overcome their addiction – the court is there to provide treatment, not punishment. A family member should never fail to file a Marchman Act petition out of concern that they are subjecting their loved one to interaction with law enforcement.  Always look at the big picture: This is someone you love and you are trying to save their life. Nothing else matters - period!

What is the history of the Florida Marchman Act?

The Marchman Act was passed in 1993 by the Florida Legislature and is officially entitled the Hal S. Marchman Alcohol and Other Drug Abuse Services Act of Florida.  The Marchman Act was named after Hal S. Marchman, a pastor and lifelong advocate for the rights of alcoholics and drug addicts throughout Florida.  Hal S. Marchman was most widely recognized worldwide as the Chaplain of the Daytona International Speedway, who gave the invocation at the beginning of every race for 42 years before retiring at the age of 85.  Hal S. Marchman passed in October of 2009 in Daytona, Florida after a lifetime of commitment to advocacy for the substance abuse impaired and their families.

Why did the Florida Legislature draft and enact the Florida Marchman Act?

Florida is an extremely progressive State that recognized the growing trend of substance abuse across the Nation and the need of the government to play a role in addressing the consequences that addiction has upon society as a whole.

Specifically, Florida Statute §397.305 recognized:

Substance abuse is a major health problem and leads to such profoundly disturbing consequences as serious impairment, chronic addiction, criminal behavior, vehicular casualties, spiraling health care costs, AIDS, and business losses, and profoundly affects the learning ability of children within our schools and educational systems. Substance abuse impairment is a disease which affects the whole family and the whole society and requires specialized prevention, intervention, and treatment services that support and strengthen the family unit.

When should a parent begin to consider filing a Marchman Act petition?

A parent should consider filing a Marchman Act petition if they suspect their child may be using or abusing drugs or alcohol.  This may be a very difficult decision for a parent.  The main concern I hear is that parents do not want to involve their children in the court system, or, “give them a record.” To address these concerns, I tell parents that they need to recognize that drug and/or alcohol abuse is not the type of problem that gets better on its own. Also, it is better for a parent to allow their child to enter a Florida Marchman Act, which is a Civil Court, than wait and allow a hidden substance abuse problem to grow, whereby the child will eventually end up in a Florida Criminal Court looking at jail or prison time. More importantly, the parent needs to recognize that The Florida Marchman Act is a confidential and a civil procedure unlike the criminal court system. Filing a Marchman Act petition has no effect upon a child’s personal record because the case is not criminal in nature.  In fact, the record is sealed because of H.I.P.P.A. laws and the fact that you are dealing with medical opinions and recommendations. 

The intent of the Florida Marchman Act is treatment, not punishment.  I always advise clients who are unsure of whether or not to file a Marchman Act Petition to ask themselves if they want to uncover and address a potential substance abuse problem in a confidential, civil environment, or, allow a potential problem to persist and address the problem after the child has been thrown into the criminal arena for an arrest due to drug use, possession or associated criminal activity.  Parents cannot afford to fail to take a proactive approach when it comes to suspected drug and alcohol use.  Don’t simply wait, hoping that things will somehow get better.

What if I only suspect that my child is using drugs or alcohol?

Often, parents are unsure if their child is using or experimenting with drugs and/or alcohol, and are not exactly sure what may be going on with their child.  My advice to a parent who suspects their child is using or abusing drugs or alcohol: If a parent suspects substance use or abuse by their child, they need to recognize that The Florida Marchman Act is an extremely effective procedure to determine if there is a drug or alcohol problem in your child’s life.

One way to determine if your child is using drugs or alcohol is to purchase an over-the counter drug test; and, without presenting the test to your child, ask them if they would be willing to take a drug test to put your mind at ease. If the child refuses, you should strongly consider filing The Florida Marchman Act. If the child agrees to take a drug or alcohol test, immediately present the pre-purchased drug test to them at that moment and express to them how happy you are for their cooperation. If the child suddenly backtracks and refuses to take the test at that time, or, the child suddenly is suddenly unable to produce a urine sample - you should consider filing The Florida Marchman Act immediately.

What are some of the signs that my child may be using or abusing drugs or alcohol?

         Child has been experimenting with drugs or alcohol.
         Child has been found in possession of drug paraphernalia.
         Child admits using drugs or alcohol.
         Child has been having problems with law enforcement.
         Child has been having problems with school.
         Child has been having problems with authority figures.
         Child has expressed concern or loss of control over their life.          
         Child has shown lack of motivation or concern for their future.
         Child has begun to neglect their appearance or hygiene.
         Child has shown unexpected weight loss.
         Child has been stealing/borrowing money.
         Child has developed a poor self-image.
         Child has changed friends.
         Child has changed dress or appearance.
         Child has slipped in grades or job performance.
         Child has been skipping school or classes.
         Child has started to lie or have manipulative or deceptive behavior.
         Child begins to show disrespect or disregard of family values.
         Child has run away from home.
         Child starts ignoring curfews or house rules.
         Child has demonstrated violent outbursts or hostility toward friends/family.
         Child has become depressed or withdrawn.
         Child has injured themselves or others.
         Child begins to possess unexplained valuables.
         Child takes valuable items or money from your purse, wallet or home.
         Child has lost interest in healthy activities.
         Child has become verbally or physically abusive.
         Child had glassy/red eyes.
         Child has slurred speech.
         Child develops reckless or inappropriate behavior.

Any of the above may be indicators of a serious, potential substance abuse problem, which may warrant that a child be ordered for an involuntary assessment and stabilization under the Florida Marchman Act.

What elements must be demonstrated for the court to grant a Marchman Act petition?

A court may grant a Petition for Involuntary Assessment, Stabilization and/or Treatment, if it is determined that there is a reasonable belief that the child is substance abuse impaired and the child:
            (a)  has lost the power of self control with respect to substance use; and either
(b) has inflicted or is likely to inflict physical harm on him/herself or others unless admitted; or
(c) the person's judgment is so impaired they are incapable of appreciating the need for care and making a rational decision regarding such care; or
            (d) the person has refused to seek voluntary care.

Who has standing to file a Marchman Act Petition?

A Marchman Act may be filed by a parent, a legal guardian, a relative, a spouse or any three individuals with direct knowledge of the child’s substance abuse problem. However, a parent needs to be aware that once their petition has been filed, your child will be appointed a court attorney to represent them throughout the proceedings to ensure that their rights are protected under the law; and, if possible, the attorney will act as any good defense attorney and seek to have your petition dismissed or postponed for a later court date. Although the Marchman Act is designed to initiate the process by yourself, the complexity of any given situation may suggest that you seek the assistance of a skilled and trained attorney.  I hope this general overview of the Marchman Act process has helped to educate you as to the fact that families do have the ability to regain control of an addict in the midst of a drug and alcohol and mental health crisis. You have the power to subject an addict to a legal intervention even in what appears to be a hopeless situation. You do have the ability to keep a loved one from leaving treatment once you have gotten them into treatment, but more importantly you have a legal remedy to get an addict back into treatment, if they should leave against medical advice and relapse. As long as you can get an addict to step foot on Florida soil, you have the power under The Florida Marchman Act to have them ordered and monitored by the court until the addict remains sober long enough to have that window of opportunity, whereby their recognize their need for care and begin to engage a healthy, drug-free life.
The Florida Marchman Act
Presented by:
Raymond G. Ferrero III, Esq.
Addiction Recovery Legal Services, LLC
888 South Andrews Avenue, Suite 203
Fort Lauderdale, FL 33316

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