Tuesday, February 7, 2012

A Family Guide to the Florida Marchman Act

Let me first introduce myself. My name is Raymond G. Ferrero III, Esq. I am an attorney and Partner with the Florida based law firm 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 past Gubernatorial Appointee to Florida’s Statewide Drug Policy Advisory Committee.

It is my great pleasure to be writing this brief overview of the Florida Marchman Act. For over a decade, I have been actively involved in Florida’s mental health community and Marchman Act Courts. I have witnessed the Florida Marchman Act develop from what was once a little known (and, little understood) law into what is now being recognized not only throughout Florida, but nationally as a family’s greatest tool for addressing crisis substance use, abuse and addiction within a family unit. Professionally, I take great pride in my ability to honestly inform families that are struggling with a loved one in crisis that the Florida Marchman Act is the answer that they have been seeking. The Florida Marchman Act, when properly litigated by an attorney with a full understanding of the nuances and powers of a law, is a process that will: (1) establish consequences and hold an addict legally accountable for their continued substance abuse; and (2) empower families with a mechanism to interrupt a substance abusers stranglehold on the people around them. Let’s begin our overview of the Florida Marchman Act…

What is the Florida Marchman Act?

Most simply put, the Florida Marchman Act is an “involuntary commitment statute”. T
he Florida Marchman Act is a legal procedure that allows the friends or family of someone who is substance abuse impaired to confidentially petition a civil court and ask the court to help them address their loved one's substance abuse problem. How does the court do this? By ordering the individual into mandatory drug and/or alcohol “assessment & stabilization” (in layman's terms - a detox) and then into subsequent treatment that will be overseen by the court for a minimum of (60) sixty day.

The key to the Marchman Act court order is that it is “involuntary”. The impaired individual must comply with any and all treatment recommendations by the assessing professionals or face consequences by the court for any non-compliance. Once ordered, the individual has no choice in the matter. Even if the individual has repeatedly refused to voluntarily get help in the past for their substance abuse, once the Florida Marchman Act is in place they cannot refuse help in the future.

Under the Florida Marchman Act, if an individual refuses to comply with treatment once ordered, they subject themselves to contempt of court and possibly jail time for up to (6) six months. This may seem harsh, but recognize foremost that the intention of the Marchman Act court is to provide care and not punishment. Any person sentenced to jail under the Florida Marchman Act for contempt is always given a "purge provision". They can purge any jail time at any time by doing one simple thing: re-entering and re-engaging treatment.

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 is 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. 

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

Florida is an extremely progressive State in its recognition of 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. Especially, when a substance abuser reaches the chronic stage of addiction whereby a personal choice to abuse substances now begins to pose a danger not only to themselves, but the public at large. Medical science has conclusively demonstrated that a substance abuser loses the ability to make rational decisions regarding care and actually loses the ability to appreciate their own need for care in general as they progress along the stages of substance abuse and addiction. The Florida legislature recognized that some avenue for intervention (without criminal penalty) was necessary for the protection of society and the individual abuser. Thus, the Florida Marchman Act was adopted and entered into law.

Specifically, The Florida Marchman Act - Florida Statute §397.305 recognize(s):

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 one consider the Florida Marchman Act to help an impaired individual?

That is actually a simple decision. A friend or family member of an impaired individual should consider filing under the Florida Marchman Act immediately upon suspecting that the individual is using or abusing drugs or alcohol. Remember, it is well established that addiction is a disease. It is a disease that simply does not get better on its own over time. In fact, just the opposite is true. Addiction is a chronic medical condition that is progressive in nature (having well-defined stages) that can only be treated by abstinence. Without intervention and abstinence addiction is ultimately a chronic and fatal disease. Those are the facts. Accordingly, the sooner one intervenes in the progress of an individual’s substance abuse impairment the better. The decision to first consider filing a Marchman Act is simple, but (believe me) I do understand the difficulty of the decision as well. When counseling a family, I always ask them to consider the following: (1) the impaired behavior of the individual is in large part predicated by the fact that there is absolutely no consequence for their continued use; (2) this is not a problem that gets better on its own without something being done; and (3) there are ultimately only two possible outcomes for an individual who progresses through the stages of substance abuse and addiction: jail or the morgue. 

Is this a big decision? Yes, it is. However, I cannot stress enough, Florida Marchman Act courts are truly nothing to be intimidated by or feared. The court is there to help. Even in the worst case scenario, when a person’s substance abuse is merely suspected (without any anything concrete for the family or friends to put a finger on), once filed, the Florida Marchman Act can be an incredibly effective tool to uncover what (if anything) is actually going on. And, there is absolutely nothing harmful that will result from the process for anyone. You have nothing to lose and everything to gain. Remember: The Florida Marchman Act is a civil process that is strictly confidential in nature. The process will never impose any criminal court ramifications upon a person or potentially affect the person’s unblemished legal record. The intent of the Florida Marchman Act is treatment, not punishment. More so, because addiction is a medical condition, the Florida Marchman Act process is strictly confidential. Any and all records are protected by Federal HIPPA law (the Health Insurance Portability and Accountability Act of 1996). Be proactive. Don't simply wait and hope that things will somehow get better. 

What criteria does the court ultimately consider before granting a Florida Marchman Act? 

In conclusion, thank you for taking the time to read this brief overview of the Florida Marchman Act. I hope that this information is helpful for you or someone you know with a loved one who suffers from substance abuse and/or addiction. I leave you with the following criteria established by the Florida Marchman Act statute that I go over with every family I counsel. More often than not, when a family has placed that call to my office for consultation, the following becomes their “Ah-ha” moment for what needs to be done next: 

"A court may grant a Petition for Involuntary Assessment, Stabilization and/or Treatment, if there is a reasonable belief that the individual is substance abuse impaired and the individual: 

(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.  

How do I file a Marchman Act Petition? 

In order to initiate the Florida Marchman Act please call 1-877-35-ABUSE for a free detailed consultation that is specific to the issues you are facing. The following has been offered as a general overview of the Florida Marchman Act process. Litigating the Florida Marchman Act statute should be done by an attorney well versed and experienced in Marchman Act law. As in any legal procedure, you should always seek the advice of an experience legal professional. 

A Family Guide to the Florida Marchman Act – © 2012

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