Wednesday, February 1, 2012

A Family Guide to the Florida Marchman Act
By Raymond G. Ferrero III, Esq.
(Executive Director for Health Affairs for Nova Southeastern University
Partner and attorney with Addiction Recovery Legal Services, LLC.)

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 recognized throughout Florida and nationally as one of a family’s most powerful tools for addressing crisis substance use, abuse and addiction within the family unit.  Professionally, I take great pride in my work in counseling and advising families about The Florida Marchman Act’s ability to aid them in addressing the struggles of a loved one who is in crisis. Personally, I take even greater pleasure when I witness the often surprised reaction a family experiences when they come to the realization that this law holds the answer to the problems they currently face.  The Florida Marchman Act, when properly litigated by an experienced attorney with a full understanding of the nuances and powers of this law, is a process that will: (1) establish consequences and hold an impaired individual legally accountable for their continued substance abuse; and (2) empower families with a legal mechanism to interrupt the stranglehold the individuals addiction has 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”.  The Florida Marchman Act is a legal process and 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 a Florida Marchman Act court order is that detox and treatment become “involuntary”.  The impaired individual must comply with any and all treatment recommendations of a licensed substance abuse professional or face legal consequences by the court for any non-compliance.  I refer to this as “compulsive care” or “leveraged care”.  You see, once the court has ordered the impaired individual to complete assessment, stabilization and/or treatment, the individual no longer has a choice in the matter.  Accordingly, even if the individual has an extensive medical history of repeatedly refusing voluntary detox and/or treatment (or, has a history of leaving detox and/or treatment against medical advice), once the Florida Marchman Act order is in place, they cannot refuse help in the future without consequence.

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 Florida Marchman Act statute is to provide treatment and not punishment.  Accordingly, any person sentenced to jail under the Florida Marchman Act for contempt will always be given a "purge provision".  A purge provision means that they can “purge” their jail sentence for contempt 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.  Ironically, Hal S. Marchman held worldwide recognition, not for his service to addicts, but 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 Florida 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 abuse impaired individual reaches the chronic stage of addiction whereby their personal choice to abuse substances begins to pose a danger not only to themselves, but the public at large.  Medical science has conclusively demonstrated that substance abuse impaired individuals lose the ability to make rational decisions regarding their 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 clinical addiction.  The Florida legislature recognized that an avenue for intervention (without criminal penalty) was necessary for the protection of society and the impaired individual.  Thus, the Hal S. Marchman Alcohol and Other Drug Abuse Services Act of Florida was adopted and entered into law in 1993.

Specifically, The Florida Marchman Act – F.S. §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 you actually consider using the Florida Marchman Act?

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 progressive 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 from mind altering substances.  Without intervention and abstinence, addiction is not only a chronic disease, a fatal disease as well.  Those are the facts.  Accordingly, the sooner one intervenes in the progression of an individual’s substance abuse impairment the better.

Although I said, the decision to first consider filing a Marchman Act is a simple one, please do not get the impression that I am downplaying or failing to recognize the difficulty a family faces when deciding to act on that decision.  There are many factors that a family must consider.  When counseling a family, I typically ask them to consider the following: (1) the behavior and decision to continue using mind altering substances by the impaired individual is predicated by the fact that (typically) there has been no overriding significant consequence for their continued use; (2) this is not a problem that will get 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, this is a big decision.  However, I cannot stress enough, Florida Marchman Act courts are truly nothing to be intimidated by or feared.  The Florida Marchman Act courts exist to help families and individuals in crisis.  Even in a scenario, where a family only has a mere suspicion that a person is substance abuse impaired (instances often experienced by the parents of juveniles or young adults), filing a Florida Marchman Act can be an incredibly effective tool to simply uncover what (if anything) is actually going on.  Also, there is absolutely nothing harmful that will result from initiating this process for anyone involved.  The person filing a Florida Marchman Act and the person on the receiving end of a Florida Marchman Act have nothing to lose and everything to gain.  Remember: The Florida Marchman Act is a civil process, not criminal.  All hearings are held in closed courtrooms and the process is strictly confidential in nature.  Filing a Florida Marchman Act will never impose a criminal court ramification upon a person or potentially affect the fact that a person may have an 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 as mentioned previously is strictly confidential.  Any and all assessment and/or treatment records; including the Florida Marchman Act petitions, are protected by Federal HIPPA law (the Health Insurance Portability and Accountability Act of 1996).  Accordingly, my advice is always to be proactive.  Don't simply wait and hope that things will somehow get better.

What are the criteria required to prove a Florida Marchman Act case?

Before I discuss the criteria of the Florida Marchman Act, let me first thank you for taking the time to read this brief overview. I hope that this information was helpful.  Everyone knows someone who may be in need of substance abuse services, so feel free to pass this information on to another.  This information can save families years of frustration and thousands of dollars in treatment, when dealing with someone who suffers from substance abuse impairment and/or addiction.

In conclusion, I leave you with the following criteria established by the Florida Marchman Act statute that I review with every family I counsel.  More often than not, simply hearing the following criteria becomes their “Ah-ha” moment for recognizing that a loved one truly needs help and recognizing that The Florida Marchman Act is the next step they need to take:

"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;


(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;


(d)   the person has refused to seek voluntary care.

How do I file a Marchman Act Petition?

When deciding to file a Florida Marchman Act, you can call 1-877-35-ABUSE for a free and detailed consultation that will be specifically tailored to the issues that you are currently facing.  The above overview 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 Florida Marchman Act law.  As in any legal procedure, you should always seek the advice of an experience legal professional to ensure the best possible approach for success.

Raymond G. Ferrero III, Esq., A Family Guide to the Florida Marchman Act © 2012

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