Written by Marcos Beaton
By Marcos Beaton
A client recently came to us with a problem that was a little outside our everyday practice. This client was facing a Marchman Act petition under Chapter 397 of the Florida Statutes. For those that don’t know, Chapter 397 authorizes involuntary evaluation and treatment for substance abuse. And although our practice is focused on protecting clients from encroachment on their constitutional rights and freedoms in criminal cases, this case involved having to master an area of the law that was a bit different. We explained this to the client. We told the client that our experience was in criminal cases, and that we would refer the client to someone that routinely handles involuntary commitments. But the client just would not take no for an answer. The client wanted a firm experienced in high profile criminal cases because the client foresaw a tough battle and wanted battle hardened trial lawyers. The client insisted that we take on the representation. So we did.
How did we do it and what did we learn?
First, the how. I was very blessed to have played baseball most of my life. By the time I had put up my cleats to pursue a career in the law, I had observed over and over that the one thing constantly separating the great players and the great coaches from everyone else, was an obsession with fundamentals.
I distinctly remember getting ready during practice to face a pitcher that threw intimidatingly hard. Like mid-90s hard. One teammate of mine – who incidentally had already been drafted by a major league team – spent the whole practice hitting a baseball off of a tee, while the rest of us were cranking up the pitching machine as high as it would goto see who could hit the most pitches the furthest. I wondered why our best hitter was hitting off of a tee, while the rest of us were playing home run derby with the pitching machine. Unfortunately for my baseball career, the answer wasn’t something that I would understand until many years later. Even though we were all 18-, 19-, and 20-year-olds at the time, this one teammate of mine understood that beating this pitcher would only come from a perfect application of the fundamentals.
And, so it is true in the practice of law. The mastering of any one area of the law, of any one case, of any one issue, comes from an obsessive application of the fundamentals.
And that’s what we did in this case. We started with the most fundamental thing – the statute. In fact, by the time the case was over a week later, we had probably read the statute over 100 times. Was it fun? No. Was it tedious? Yes. Was it boring? You have no idea. But, ultimately it was an indispensable part of successfully representing the client. From this intimate familiarity with each and every applicable section of the statute, came a host of compelling arguments, some of which were the product of nothing more than a careful and repeated reading of the statute.
As an aside, this is what we do in all of our cases, whether we’ve handled similar matters a hundred times or never before. We master the statute. Then we master the facts. Sounds almost childishly simple. And, maybe it is. But it’s by no means easy. It can be grinding, frustrating, exhausting, and painfully boring at times. In some of our large document cases, it takes years. But it works. Sort of like perfecting the mechanics of hitting by working off of a tee for hours.
So after mastering the statute and the facts on very short notice, we filed a motion attacking the case from every angle. We claimed that the petition was inadequate, that the facts did not warrant commitment to involuntary treatment, that the proceedings were flawed, and that the statute was unconstitutional. Ultimately, we prevailed. The client went home.
So, what did we learn about the Marchman Act? Well, the lesson most worth noting is that it hopefully won’t survive a constitutional challenge if and when that time comes. Fortunately for us, our client went home. Unfortunately for everyone else, the statue evaded review in our case.
We found only one reported case in Florida, Cole v. State, 714 So.2d 479 (Fla. 2d DCA 1998), which discussed the Act in any meaningful way. The Cole Court was critical of the Act and in what seemed like an invitation to a constitutional challenge wrote:
We have found no appellate decision applying, construing, or passing on the constitutionality of the Marchman Act or any of its provisions. In this case, no one disputes the meaning of the Act’s provisions, nor does Cole contend that any of them are unconstitutional. Therefore, in reaching our decision we are simply applying the Act, as we read it, to the facts of this case.
Cole v. State, 714 So.2d 479, 481 n.1 (Fla. 2d DCA 1998). The Cole court observed that the lower court proceedings were “fundamentally flawed” and “flawed to an astonishing degree.” Cole at 488, 491. After living with the Marchman Act for a week, and becoming intimately familiar with its many inadequacies, it didn’t surprise me to see that our case suffered from many of the same flaws observed by the Cole court.
Apart from the specific flaws in our petition and our proceeding, we identified two constitutional challenges to the Marchman Act. First, the Act appears to fall short of the constitutionally mandated burden of proof for involuntary commitment. The United States Supreme Court has unequivocally established that in civil commitment hearings, the standard of proof can be no lower than “clear and convincing evidence” to satisfy procedural due process under the United States Constitution. Addington v. Texas, 441 U.S. 418, 433 (1979). In rejecting a “preponderance of the evidence” standard and instead finding that “clear and convincing evidence” presents the constitutionally appropriate burden of proof, the Court emphasized that it has “repeatedly  recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Id. at 425 (citations omitted). Accordingly, the Court found that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” Id. at 427.
Under the Marchman Act, however, an individual “meets the criteria for involuntary admission [to a substance abuse treatment facility] if there is a good faith reason to believe the person is substance abuse impaired and, because of such impairment . . . .” Fla. Stat. § 397.675. (Emphasis added). Additionally, the statute provides that in a hearing initiated pursuant to a petition for involuntary admission, “the court shall determine whether there is a reasonable basis to believe the respondent meets the involuntary admission criteria.” Fla. Stat. § 397.6818. In other words, the statute only requires “a good faith reason to believe” or a “reasonable basis to believe” that the individual meets the criteria of section 397.675 for involuntary admission to be ordered. And while a separate provision of the act, section 397.6957, states that the “petitioner has the burden of proof of proving by clear and convincing evidence . . . ” this does not, in our view, cure the statute’s deficiency. Because while the Act does provide that Petitioner may have the burden of proof by clear and convincing evidence at a hearing to determine whether involuntary treatment will be ordered, the statute governing the hearing does not specifically direct the Court to make any findings and is therefore silent on whether the Court must find clear and convincing evidence that the Respondent meets the criteria for involuntary treatment. But more importantly, the statutory scheme permits this involuntary process to begin (at the assessment stage) with the Court making findings under the far lower and more indeterminate standards of “good faith” and “reason to believe,” neither of which satisfy Due Process.
The Marchman Act may also violate a respondent’s liberty interest in his or her right to refuse medical treatment as protected by the Fourteenth Amendment to the United States Constitution and Article I, Section 23 of the Florida Constitution. One of the criteria under which a person may be committed to involuntary treatment under the Act is where that person’s “refusal to voluntarily receive care is based on judgment so impaired by reason of substance abuse that the respondent is incapable of appreciating his or her need for care and of making a rational decision regarding that need for care.” Fla. Stat. § 397.6951. We aren’t sure what this “impaired judgment” standard is, but it certainly does not seem to be the same as incompetence. So should an otherwise competent adult be forced into medical treatment where he or she poses no immediate threat to himself or others?
The principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment can be traced back to Jacobson v. Massachusetts, 197 U.S. 11 (1905), in which the United States Supreme Court balanced an individual’s liberty interest in declining an unwanted smallpox vaccine with the State’s interest in preventing the spread of the disease.
Later, in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261, 279 (1990), the Court observed that the:
[N]otion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body . . . .
And while Cruzan dealt with whether the state of Missouri had improperly denied relatives of a woman in a persistent vegetative state, the right to discontinue her life support, the Court
noted that the woman herself could discontinue life saving treatment. In beginning its analysis, the Court plainly stated that “we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.” Cruzan, 497 U.S. at 279.
The Florida Constitution and the cases interpreting it, more jealously guard an individual’s right to refuse medical treatment. Article I, Section 23 of the Florida Constitution provides that: “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”
In considering the interests protected by this section of the Florida Constitution, the Florida Supreme Court has noted that “we begin with the premise that everyone has a fundamental right to the sole control of his or her person.” In Re Guardianship of Browning, 568 So. 2d 4, 10 (Fla. 1990). With regard to medical treatment, the Court writes:
Recognizing that one has the inherent right to make choices about medical treatment, we necessarily conclude that this right encompasses all medical choices. A competent individual has the constitutional right to refuse medical treatment regardless of his or her medical condition.
Id. Importantly, the Court observed that the issue of choice in medical treatments involves self-determination, and not what is thought to be in the patient’s best interests. The Court wrote: “We conclude that a competent person has the constitutional right to choose or refuse medical treatment, and that right extends to all relevant decisions concerning one’s health[,]”
Id. at 11(emphasis added), and “[w]e see no reason to qualify that right on the basis of the denomination of a medical procedure as major or minor, ordinary or extraordinary, life-prolonging, life maintaining, life-sustaining, or otherwise.” Id. at 11 n. 6.
Adhering to these principles, the Florida Supreme Court has honored the subjective choices of competent patients to refuse medical treatment. For example, in Public Health Trust v. Wons, 541 So.2d 96 (Fla.1989), the Court held that a competent, thirty-eight-year-old practicing Jehovah’s Witness could exercise her constitutional right to refuse an emergency blood transfusion, without which her death was certain to follow shortly. The Court approved the opinion of the district court, which concluded that Mrs. Wons was entitled “to exercise her religious freedom and to lead her private life according to her own conscience.” Wons v. Public Health Trust, 500 So.2d 679, 687 (Fla. 3d DCA 1987), approved, 541 So.2d 96 (Fla.1989).
Justice Brandeis said in Olmstead v. United States, 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting) :
The makers of our Constitution … sought to protect Americans in their beliefs, their thoughts their emotions and their sensations. They conferred, as against the Government, the right to be let alone the most comprehensive of rights and the right most valued by civilized man.
But what these words really mean, was put into focus by Chief Justice Burger while sitting on the D.C. Circuit Court of Appeals. Of Brandeis’ famous words in Olmstead, Burger wrote that:
Nothing in this utterance suggests that Justice Brandeis thought an individual possessed these rights only as to sensible beliefs, valid thoughts, reasonable emotions, or well-founded sensations. I suggest he intended to include a great many foolish, unreasonable and even absurd ideas which do not conform, such as refusing medical treatment even at great risk.
Application of President and Directors of Georgetown College, Inc., 331 F.2d 1010, 1017 (D.C.Cir.1964) (Burger, J., separate opinion).
So, where a respondent poses no imminent danger to the public or himself, what compelling interest does the government have in forcing him to undergo treatment? We think the answer is none. But that question wasn’t answered in our case because we prevailed on other grounds. So, we put this out there for someone else to give effect to Justice Brandeis’ words.