The Essentials of Florida Mental Health Law: A Straightforward Guide for Clinicians of all Disciplines

Stephen H. Behnke, Bruce J. Winick, Alina M. Perez

Overview – Excerpt – Table of Contents

Introduction

The idea for this book arose from our teaching mental health professionals about how best to address problems in risk management. The most frequent comment from trainees and experienced clinicians alike-that it is enormously helpful to have laws relevant to clinical practice explained in a simple and straightforward way-suggested the need for a book to orient mental health professionals to their legal rights and responsibilities.

The purpose of this book is to set forth, in a clear and concise manner, the laws most relevant to mental health practice in Florida. The book is also designed to explain and demonstrate how these laws apply to the many problems mental health professionals encounter on a day-to-day basis. The format will be useful both to the student trainee and to the more senior clinician; indeed, the majority of treaters find it difficult to keep up to date on how the Florida legislature and courts have changed the legal landscape of clinical practice. Lawyers, as well, may find the explanations of state laws governing mental health practice useful to their understanding of this interesting and ever-changing field.

The Essentials of Florida Mental Health Law is divided into two parts. The three chapters of part I serve as a general introduction to the law. The first chapter, A Brief Introduction to the Law, explains where the different laws affecting clinical practice come from and, should a treater feel particularly bold, how she would go about finding an actual statute, court decision, or regulation.

The second chapter, Tarasoff and Its Florida Progeny, takes an actual statute and illustrates how a law 'works.' This chapter sets forth the philosophy of the Florida law, explains what the law requires, and demonstrates how different parts of the law fit together like building blocks to form a coherent whole. Tarasoff and Its Florida Progeny explains why the law was written, what the law says, and how the law goes about saying it. Any law can be analyzed in this manner, as we hope will become clear throughout the book. The third and final chapter in part I discusses the set of laws and regulations perhaps most central to actual practice, those that pertain to privacy, confidentiality, and testimonial privilege. Privacy is an individual's right to make important life decisions-what to wear, whether to have children, which profession to pursue-without interference from the government. Confidentiality is the right to have communications with a therapist kept between the therapist and client. Testimonial privilege, often referred to simply as privilege, is the patient's right to prevent a therapist from divulging confidential information in a legal proceeding. Chapter 3 includes a discussion of mandatory reporting laws; these laws require a mental health professional to break confidentiality when certain circumstances are present. Appendix A contains the actual texts of the privacy, confidentiality, and privilege laws most central to clinical practice. By the end of part I the clinician should have a good sense of how a law can be read, understood, and applied in her work.

Part II consists of 200 questions clinicians often ask about Florida mental health law. We have divided the questions into nine topic headings. Topics range from the standard for placing an individual in a psychiatric hospital against his will, to the rules of confidentiality that govern consultations, to the wisdom of meeting with a family after a patient commits suicide. Answers to these questions describe in a clear, direct manner how the law affects clinical practice. In appendix B are several examples of written materials that clinicians may find helpful in their practice. These materials include an informed consent letter to begin a psychotherapy, a letter terminating a therapy with a difficult patient, and a reply to a board of registration letter of complaint. A sample subpoena is also included.

At the heart of this book is our belief that good patient care and knowledge of the law go hand in hand. Our experience is that, far from restricting or inhibiting clinical practice, knowing the essentials of Florida mental health law will free treaters from much undue-and unwarranted-anxiety about their legal rights and duties. We hope that such freedom will allow clinicians to concentrate on what they do best and enjoy most-treat patients.*

Chapter 1
A Brief Introduction to the Law

The American system of law is divided into two layers: federal and state. Federal laws affect the United States as a whole, while state laws are specific to a particular state or commonwealth. As a citizen of Florida, you are also a citizen of the United States. You are thus accorded the rights and privileges, as well as the responsibilities, afforded by both federal and state law. While our discussion will focus primarily on laws made in Florida, we will also mention important federal laws that affect Florida citizens.

Florida laws may be similar to laws found in other states, but always keep in mind that any state law is binding only for that state. Because each state is its own sovereignty, each is free to decide for itself what laws to enact, which means that things can get a bit confusing, since the 50 states may have 50 different laws governing the same topic. Thus, always note whether a law is a state law; if so, then, should you reside in that same state, the law applies to you and you are bound to follow it. If the law belongs to another state, then it is not binding on you, although you will want to know what your state says about the particular topic.

Our discussion will address and explain how to cite five types of laws: (1) the constitutions; (2) statutes enacted by the legislature; (3) regulations promulgated by boards or agencies; (4) rules of court adopted by the judiciary; and (5) decisions made by courts.

Although the hierarchical relationships between the constitution, statutes, regulations, rules of court, and court decisions can be quite complicated, each of these five is nevertheless considered part of the law. An outline of the discussion on how to cite Florida laws is found on pages 9Ð10.

The first and most important law in the state and in the federal government is the constitution. A constitution is that document whose provisions are sometimes referred to as 'supreme,' because no law in a given jurisdiction can conflict with anything in that jurisdiction's constitution-no state may pass a law that conflicts with the state constitution, and the federal government may not pass a law that conflicts with the United States Constitution. Many times a constitution will have a preamble that invokes its philosophical or moral basis. Both the Constitution of the United States and the Constitution of the State of Florida, for example, begin, 'We, the People . . .' and thus make clear that their moral basis is found in the assent of the people. Simply put, a constitution is the touchstone by which a law will be deemed legitimate or illegitimate, and this is why our starting point for discussing law begins with recognizing the importance, indeed supremacy, of the constitution. The second category of laws is 'statutes.' Generally, statutes are written by the legislature that we elect. The United States Congress is the legislature for the federal government. The representatives gather, spend much time collecting information, even more time arguing with one another, and then write a bill that, if signed by the Governor or the President, becomes a law. A Florida statute is sometimes referred to in an abbreviated form called a 'citation.' 'Florida Statutes' is abbreviated (put in citation form) as 'Fla. Stat.' An example of a citation is 'Fla. Stat. ch. 394.467 (1997).' This citation refers to section 467 of chapter 394 of the Florida Statutes. (The chapter reference comes first; the section number follows the period.) The date in the citation indicates that this statute can be found in the 1997 edition of a series of volumes that contains the Florida Statutes. The citation can be even further abbreviated by writing 'section 394.467.' Again, this refers to section 467 of chapter 394.

The third group of laws is not written by the legislature at all and, in fact, these laws are not even called laws. These laws are called 'regulations.' Different groups of people write regulations. Sometimes these people belong to boards or commissions that the legislature has created. The Florida legislature created the Board of Psychology, for example, to adopt regulations that govern the practice of psychology in Florida. Regulations get their legitimacy through the legislature, which generally has neither the time nor the expertise to get into the nitty-gritty of running an administrative agency or of governing a highly specific profession. It is as if the legislature were to say, 'Look, we really know very little about how things work in this profession or in this agency on a day-to-day basis. We therefore delegate to you broad authority to run this agency or to govern this profession in the way that makes most sense. You fill in the details about how things will get done.' The details are the regulations. Generally, the legislature writes a statute authorizing a board, an agency, or a commission to write regulations. Regulations must be consistent with the statutes they are designed to carry out. A Florida regulation is referred to by the citation 'Fla. Admin. Code Ann.,' which stands for 'Florida Administrative Code Annotated.' An example of a citation to a regulation would be 'Fla. Admin. Code Ann. r.65E-5.290 (1996).' This citation refers to the Florida Administrative Code Annotated, rule 65E, section 5.290, which appears in the volume published in 1996.

The fourth category of laws is 'rules of court' adopted by the judicial branch of government. Rules of court apply to judges as they conduct judicial proceedings and to lawyers who practice before the judges. Rules of court are just what they sound like-rules that govern how things are to be done, somewhat like the rules of the road for drivers. Rules of court are important because they set forth the process by which a legal case moves forward. Failure to follow the rules of court can harm a client's case-perhaps seriously-and may even result in penalties. Examples of rules of court are the 'Florida Rules of Civil Procedure' and the 'Florida Rules of Criminal Procedure.' As examples, Florida Rules of Criminal Procedure govern the evaluation and disposition of criminal defendants whose competence to stand trial has been questioned, while Florida Rules of Civil Procedure govern how one begins a malpractice lawsuit. Like statutes and regulations, rules of court have their own manner of citation. 'Fla. R. Crim. P. 3.212,' for example, refers to rule 3.212 of the rules of criminal procedure. 'Fla. R. Civ. P. 1.390' refers to rule 1.390 of the rules of civil procedure. All these court rules are found in a volume appropriately called the 'Florida Rules of Court.'

The fifth and final group of laws are those found in court decisions. Laws that arise from court decisions are referred to as 'case law.' In some cases, courts simply interpret statutes, regulations, or court rules, but at other times courts actually make new law. As an example, courts have made new law in determining the scope of a mental health professional's duty in malpractice cases (see chapter 2).

In most instances relevant to our purposes, case law comes from a particular kind of court, an 'appellate court.' An appellate court is a court that deals with cases 'on appeal,' that is, when someone doesn't like the decision of a lower court (usually a trial court) and so asks a higher court to review the lower court's decision. The holding of an appellate court is referred to as 'law' because, like the Constitution, statutes, regulations, and rules of court, the court's holding is legally binding. The court's holding is referred to as 'case law' because it derives from a case. 'Common law,' a phrase you may have heard, is case law that has developed over a long, long time-many centuries, in fact.

The Florida court system is comprised of three tiers. The county and circuit courts are on the first tier. Most Florida trials take place in a county or a circuit court. The difference between a county and a circuit court rests on the type of case that each has the authority to decide (that is, has 'jurisdiction over'; see question 6 in part II). For example, the county court has authority to decides cases where a sum of money less than $15,000 is at stake and cases that involve certain municipal and county ordinances. The circuit court, on the other hand, has jurisdiction over cases that involve guardianship, involuntary hospitalization, incompetence issues, and other cases that do not go before a county court.

The district court of appeals is on the tier above the county and circuit courts. There are five district courts of appeals in Florida. Each district court of appeals handles cases within a specific geographical location. As an example, the First District Court of Appeals covers the northwestern part of the state. The majority of cases brought in the Florida judicial system end when a district court of appeals has rendered a decision, that is, when a case reaches the second tier in the Florida judicial system. Put in the language of the law, the district court of appeals is the final court of decision for most Florida cases. In a word, the district court of appeals is usually the last stop on the litigation train.

The Supreme Court of Florida is the highest of the three tiers. In Florida, however, the State Supreme Court only has the authority to decide (only has jurisdiction over) cases that involve very specific matters. The Florida Constitution explicitly names which cases may come before the Florida Supreme Court. As examples, the Florida Constitution says that the Florida Supreme Court may hear cases that involve the death penalty, cases that involve conflicts between district courts of appeals (cases that arise when the district courts of appeals disagree among themselves), cases in which a district court of appeals 'certifies' a question as being of great public importance and thus appropriate to be heard by the state's highest court, and cases that have come before a federal court but that concern Florida law. These cases, however, comprise only a small percentage of cases actually heard by Florida courts. In practice, the vast majority of cases in the state of Florida never get beyond a district court of appeals.

The three tiers of the Florida court system
   I. The first tier: county and circuit courts
Most cases are heard by a county or a circuit court.
   II. The second tier: district court of appeals
There are five district courts of appeals in Florida, arranged according to their geographic location. Most Florida cases never go higher than a district court of appeals.
   III. The third (and highest) tier: Florida Supreme Court
The Florida Supreme Court only hears cases specified by the Florida Constitution.

The federal system operates in a similar fashion, in the sense of having three tiers. Federal district courts are the trial courts, the lowest tier in the federal system. A decision of a federal district court can be appealed first to a federal court of appeals and then to the United States Supreme Court. The United States Supreme Court is the highest federal court. The United States Supreme Court is not as restricted in what cases it may hear as is the Florida Supreme Court.

Legal cases from across the 50 states are grouped in volumes called 'reporters' according to geography. Florida cases, naturally enough, are found in the Southern Reporter. The Southern Reporter has two editions. 'So.' in the citation to a legal case indicates that the case is found in the first edition of the Southern Reporter, while 'So. 2d' indicates that the case is found in the second edition of the Southern Reporter. The citation will also indicate whether the case comes from the Florida Supreme Court, a Florida district court of appeals, or a county or circuit court. 'Fla.' is the abbreviation for cases of the Florida Supreme Court, while 'Fla. Dist. Ct. App.' or 'DCA' or 'Fla. App. Dist.' are abbreviations for cases from a Florida district court of appeals.* The numbers before and after the initials refer to the volume, page number, and date of the opinion. For example, '565 So. 2d 315 (Fla. 1990)' indicates that this opinion was written by the Florida Supreme Court (because of the 'Fla.') in 1990. The citation further tells us that this opinion is found in volume 565, page 315 of the second edition of the Southern Reporter. The citation '582 So. 2d 784 (Fla. 5th Dist. Ct. App. 1991)' indicates that this opinion was written by the 5th District Court of Appeals in 1991. The opinion is found in volume 582, page 784 of the second edition of the Southern Reporter.

While cases heard by the Florida Supreme Court and the Florida District Court of Appeals are found in the Southern Reporter (either the first or second edition, depending upon when the case was written), cases decided by the county and circuit courts are found in a reporter called the Florida Supplement. Like the Southern Reporter, the Florida Supplement has two editions (Fla. Supp. and its second edition, Fla. Supp. 2d). Also like the Southern Reporter, citations in the Florida Supplement indicate which kind of court heard the case. As examples, '252 Fla. Supp. 351 (Fla. 5th Cir. Ct.) (1996)' indicates that the case is from the Fifth Circuit Court. '321 Fla. Supp. 823 (Miami-Dade County Ct.) (1999)' indicates that the case is from the county court of Miami-Dade.

The laws we have discussed-the constitutions, statutes, regulations, rules of court, and case law-can all be found in law libraries that are available to anyone who wishes to use them. Typically, each county in the state has a trial court with its own library. In addition, law schools have their own libraries, some of which are open to the public. If you would like to find a law, simply go to the reference librarians, people who can help you find what you are looking for. There are also numerous sites on the Internet that provide access to legal materials. Our discussion of laws is not complete without mention of professional codes of ethical conduct. Codes of ethics are not considered law. They are written by private associations and may be amended without the consent or approval of an elected representative, judge, or government employee. Nevertheless, codes of ethics do establish acceptable standards of conduct and may be adopted by state licensing boards. For this reason, it behooves a mental health professional to be intimately familiar with his or her profession's code of ethical conduct, and to think of that code as if it were law because, in a way, it is-it is the law of the profession. One final comment. Should you find yourself faced with a legal question, consult a lawyer who has expertise in mental health law. Cases involving law and mental health can be exceedingly complex and require legal expertise that no book, pamphlet, or review will provide. Educating yourself about the law by reading statutes and court decisions is an enormously worthwhile endeavor. Educating yourself about brain surgery is enormously worthwhile as well. But don't go after that tumor with your Swiss army knife.

LAWS AFFECTING MENTAL HEALTH PRACTICE IN FLORIDA

I. Constitution
A. Supreme law of the land
B. No law may conflict with the Constitution
II. Statutes
A. Written by the legislature
1. United States Congress for federal laws
2. Florida legislature for Florida laws
B. Florida statutes referred to as, e.g., Fla. Stat. ch. 394.467 (section 467 of chapter 394 of the Florida Statutes; this citation may also be written as 'section 394.467')
III. Regulations
A. Written by agencies, with authority from the legislature
B. Florida regulations referred to as, e.g., Fla. Admin. Code Ann. r.65E-5.290 (Florida Administrative Code Annotated, rule 65E, section 5.290)
IV. Rules of court
A. Adopted by the judiciary to govern judges and attorneys in court proceedings
B. Serve as 'rules of the road'
C. Cited as, e.g.:
1. Fla. R. Crim. P. 3.212 (rule 3.212 of the Florida Rules of Criminal Procedure)
2. Fla. R. Civ. P. 1.070 (rule 1.070 of the Florida Rules of Civil Procedure)
V. Cases
A. Generally written by appellate courts
B. Florida Supreme Court hears only cases specified by Florida Constitution
C. Cases of the Florida Supreme Court and Florida district courts of appeals, found in the Southern Reporter, referred to as, e.g.:
1. 582 So. 2d 784 (Fla. 5th Dist. Ct. App. 1991) [or 'Fla. App. 5 Dist. 1991' or 'Fla. 5th DCA 1991'] (1991 opinion of the Florida 5th District Court of Appeals, found in volume 582 of the second edition of the Southern Reporter, at page 784)
2. 565 So. 2d 315 (Fla. 1990) (1990 opinion of the Supreme Court of Florida, found in volume 565 of the second edition of the Southern Reporter, at page 315)
D. Cases of the circuit court and county courts, found in the Florida Supplement, referred to as, e.g.:
1. 252 Fla. Supp. 351 (Fla. 5th Cir. Ct.) (1996) (1996 opinion of the Fifth Circuit Court of Florida, found in volume 252 of the Florida Supplement, at page 351)
2. 321 Fla. Supp. 823 (Miami-Dade County Ct.) (1999) (1996 opinion of the Miami-Dade County Court, found in volume 321 of the Florida Supplement, at page 823)
VI. Codes of ethics
A. Written by professional associations
B. Establish standards of conduct for profession
C. May be used as a guide for regulatory boards

About the Authors

Stephen H. Behnke, J.D., Ph.D., is Director of the Program in the Practice of Scientific Investigation at the Harvard Medical School Division of Medical Ethics. He is on the Psychology Faculty of the Massachusetts Mental Health Center, and an Instructor in Psychology in the Harvard Medical School Department of Psychiatry.
Bruce J. Winick, J.D., is Professor of Law at the University of Miami School of Law since 1974, and co-founder of the school of social inquiry known as therapeutic jurisprudence. He has authored and edited numerous books, including most recently, The Right to Refuse Mental Health Treatment and Therapeutic Jurispreudence Applied: Essays on Mental Health Law.
Alina M. Perez, J.D., L.C.S.W., is in private law practice in Miami, Florida.

ISBN: 0-393-70309-6
March, 2000
Hardcover, 240 pages