        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                             MICHAEL LIZZI,
                                Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D14-4355

                              [July 29, 2015]

  Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin  County;   Lawrence   Mirman,    Judge;    L.T.  Case    No.
432014CA001131A.

   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.

   No appearance for appellee.

WARNER, J.

   Appellant challenges an order allowing a medical facility to
involuntarily treat him with psychiatric medication. The order allowed the
facility to treat appellant with twenty different drugs. Because the record
contains no competent substantial evidence that the administration of the
drugs, except for two, was essential to the appellant’s care, we reverse the
order authorizing treatment.

    Appellant was admitted to Treasure Coast Forensic Treatment Center
(“the facility”) after having been found not guilty by reason of insanity in a
criminal proceeding. He had been diagnosed with “[b]ipolar disorder with
psychotic features,” and his symptoms included “rapid speech, . . .
pressured speech sometimes, delusional grandiose delusions, . . . [and]
impulsive control issues,” according to appellant’s treating psychiatrist.
After appellant refused to take medications, the facility filed a petition
requesting authorization to administer drugs to treat appellant. The list
contained twenty different drugs:
    [1] Aripiprazole 5mg-30 mg PO/IM, [2] Fluphenazine 5mg-40mg
    PO/IM, [3] Haloperidol 5mg-40mg PO/IM, [4] Olanzapine 2.5mg-
    30mg PO/IM, [5] Perphenazine 2mg-64mg PO, [6] Quetiapine
    25mg-800mg PO, [7] Risperidone 0.25mg-16mg PO, [8] Saphris
    5mg-20mg SL, [9] Thioridazine 50mg-800mg PO, [10] Latuda
    6mg-160mg PO, [11] Ziprasidone 20mg-240mg PO/IM, [12]
    Clonazepam O.5mg-16mg PO, [13] Lorazepam 0.5mg-10mg
    PO/IM, [14] Carbamazepine 100mg-1600mg PO, [15]
    Lamotrigine 25mg-200mg PO, [16] Lithium 150mg-1800mg
    PO, [17] Valproic Acid 250mg-3000mg PO; [18] Proposed IM
    Medicine: Fluphenazine Decanoate 25mg-100mg IM every 2-4
    weeks, [19] Benadryl 25mg-100mg PO/IM, [20] Vistaril 25mg-
    100mg PO/IM; tests as necessary for treatment including
    medical test to monitor for side effects including, but not limited
    to drawing blood and any others that identified in any facts and
    comparisons, which serves as the official compendium for
    psychotropic medication usage for FDCD, and will be
    administered at the lowest and possible dose [sic] to achieve a
    therapeutic response in accordance with CF-155-1, which
    governs the use of psychotropic medications in state institution
    [sic], as well as, appropriate FL statutes governing the practice
    of medicine.

(Emphasis supplied.) The petition attached two supporting opinions from
psychiatrists.

   At the magistrate hearing on the petition, the appellant’s treating
psychiatrist testified that medication was essential to the appellant’s care
and to accomplish the goal of allowing him to “step down” to a civil
hospital. Appellant was currently taking Saphris, but the dose he was
taking was inadequate to control his symptoms of yelling at staff in the
facility and other disruptive behavior.

   The psychiatrist and the other members of appellant’s multi-
disciplinary treatment team had agreed to a plan of treatment, including
the drugs on the list, but appellant had refused treatment. Appellant
desired to continue with only the Saphris, as he was concerned with the
side effects of the other medications. The psychiatrist testified that he
would first administer Lithium as well as the current Saphris dose.
Regarding the other medications described in the petition, the
administrator testified that he would not use them, unless appellant had
an adverse reaction to the Lithium. The other medications would be used
only as a “last case scenario,” if they ran into a lot of problems. He
admitted that when Lithium had been administered to appellant in the

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past he had had tremors as an adverse reaction, but the psychiatrist
thought they could keep the tremors under control. He opined that
without treatment appellant would relapse, and that everything the
treatment team was recommending was medically necessary for
appellant’s care and treatment.

   After the psychiatrist testified, appellant addressed the magistrate in a
rambling fashion. First, he explained his conduct toward staff. Then, he
objected to being treated with Lithium because of its side effects.

    The magistrate subsequently issued an order granting the petition,
which found: “Based upon the clear and convincing evidence during this
hearing, including the testimony of [the psychiatrist], the Forensic Client
is in immediate need of psychiatric medication and treatment pursuant to
Section 916.107(3)(a), Florida Statutes (2013).” The form order noted the
magistrate had “considered the following factors in making its
determination: a. The expressed preference of the Forensic Client
regarding treatment; b. The probability of adverse side effects; c. The
prognosis without treatment; and d. The prognosis with treatment.” The
magistrate authorized the facility to treat appellant with medication as
provided in the petition for a period of ninety days. After a circuit judge
entered an order adopting the magistrate’s recommendation, appellant
timely appealed.

    Chapter 916, the Forensic Client Services Act, establishes the authority
for treatment of persons adjudicated guilty by reason of insanity. Section
916.105, Florida Statutes (2014), provides:

      (2) It is the intent of the Legislature that treatment . . .
      programs for defendants who . . . are involuntarily committed
      to the department or agency, and who are still under the
      jurisdiction of the committing court, be provided in a manner
      . . . which ensures the rights of the defendants as provided in
      this chapter.

Section 916.107(3), Florida Statutes (2014), allows a facility to
involuntarily treat a patient if the facility meets certain requirements and
obtains a court order:

      (3) Right to express and informed consent.--

      (a) A forensic client shall be asked to give express and
      informed written consent for treatment. If a client refuses
      such treatment as is deemed necessary and essential by the

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      client’s multidisciplinary treatment team for the appropriate
      care of the client, such treatment may be provided under the
      following circumstances:

                                     ...

      2. In a situation other than an emergency situation, the
      administrator or designee of the facility shall petition the court
      for an order authorizing necessary and essential treatment for
      the client. The order shall allow such treatment for a period
      not to exceed 90 days . . . .

      3. At the hearing on the issue of whether the court should
      enter an order authorizing treatment for which a client was
      unable to or refused to give express and informed consent, the
      court shall determine by clear and convincing evidence that
      the client has mental illness, intellectual disability, or autism,
      that the treatment not consented to is essential to the care of
      the client, and that the treatment not consented to is not
      experimental and does not present an unreasonable risk of
      serious, hazardous, or irreversible side effects. In arriving at
      the substitute judgment decision, the court must consider at
      least the following factors:

         a. The client’s expressed preference            regarding
         treatment;
         b. The probability of adverse side effects;
         c. The prognosis without treatment; and
         d. The prognosis with treatment.

To affirm an order entered under this section, “the record [must] contain
evidence ‘that the treatment is deemed necessary by the patient’s
multidisciplinary team, that the patient has refused to give express and
informed consent as defined in the statute, and that the trial court has
considered at least the four factors specified in clauses a-d of section
916.107(3)(a) 3.’” Louisma v. State, 78 So. 3d 50, 52 (Fla. 4th DCA 2012)
(quoting Dinardo v. State, 742 So. 2d 287, 289 (Fla. 1st DCA 1998)). “On
appellate review of an order authorizing involuntary psychotropic
treatment, the record must contain competent substantial evidence to
substantiate compliance with section 916.107, Florida Statutes.” Smith v.
State, 145 So. 3d 189, 191 (Fla. 4th DCA 2014); see also Rogers v. State,
138 So. 3d 1160, 1161-62 (Fla. 4th DCA 2014).



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   Appellant argues that the state established his need for only Lithium,
not the remaining drugs listed in the petition. He also contends that,
contrary to section 916.107(3)(a), Florida Statutes (2014), and section
916.106(8), Florida Statutes (2014), the facility did not give him “the
opportunity to prove express and informed consent to any medication
other than Lithium or Saphris.”

    While appellant’s psychiatrist testified to the use of Lithium to treat
appellant, he specifically stated that he would not use the remaining
medications unless they ran into problems with the Lithium. He did not
address specifically any of the other medications or their potential side
effects. The psychiatrist did not testify to appellant’s prognosis with
treatment by the other drugs or without them, because he was not
intending to use them. In substance, therefore, he testified that the other
medications were not necessary to appellant’s care at the time of the
hearing. On this record, there was simply no evidence as to the medical
necessity of the drugs other than Lithium and Saphris, and the court did
not have any evidence to support findings on the statutory factors which
the court must consider to authorize involuntary treatment.

    Section 916.107(3)(a), Florida Statutes (2014), requires the forensic
client to “be asked to give express and informed written consent for
treatment.” Only when a client refuses treatment does the facility petition
for a court order under section 916.107(3)(a)2., Florida Statutes (2014).
See Louisma, 78 So. 3d at 52 (the record must “contain evidence . . . that
the patient has refused to give express and informed consent as defined in
the statute”). We do not think that the approval of a wide variety of drugs,
which may or may not be used, comports with the intent of the law, as
section 916.105(2), Florida Statutes (2014), states that the legislative
intent is to provide treatment in a manner to ensure a defendant’s rights.
If such a blanket approval of a variety of treatments were authorized,
whether or not the facility intends to use them, nothing would prevent a
facility from petitioning the court, the moment a forensic client enters a
facility, to authorize a wide range of treatments as “medically necessary,”
and then treating the client in any manner it wishes within a wide range
of treatment options, thus ignoring the client’s right to refuse specific
medical treatments.

   The involuntary treatment orders provide authority for only ninety
days. With this short period, the facility’s treatment plan should be
narrowed to those drugs which it actually intends to use. Then it must
provide the necessary information to the magistrate to explain why each
drug is essential to the treatment of the client as well as an analysis of its
side effects.

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    If within the ninety day period “there is immediate danger to the safety
of the client or others,” the statute provides for emergency treatment for
48 hours on the authorization of a physician, even without client approval.
§ 916.107(3)(a)1., Fla. Stat. (2014). This allows for situations where
additional drugs may be needed immediately to protect the client or others
from danger, although the client has not consented to those drugs and
court approval has not been obtained. Thus, the statute contemplates
that any change in treatment should require the consent of the client or
court authorization.

   We reverse the order authorizing treatment to the extent that it allows
treatment of appellant with drugs other than Lithium and Saphris. We
further direct that future petitions, hearings and orders authorizing
involuntary treatment comply with this opinion.

LEVINE and CONNER, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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