Marchman Act Evaluation Refusal in Florida: What Happens

If your loved one refuses a Marchman Act evaluation in Florida, you may wonder whether the case is over. It is not. A refusal alone does not stop a Marchman Act case from moving forward. Here is how the process works, step by step.

Short Answer: Refusing an Evaluation Does Not End the Process

Chapter 397 lets a court order an assessment after a refusal when the statutory criteria are met. Under Fla. Stat. § 397.6957, the respondent’s assessment by a qualified professional must occur within 72 hours after his or her arrival at a licensed service provider, unless the respondent shows signs of withdrawal or a need to be detoxified or treated for a medical condition; if the respondent is a minor, the assessment must be initiated within the first 12 hours of admission. Fla. Stat. § 397.6957 reads: “The respondent’s assessment by a qualified professional must occur within 72 hours after his or her arrival at a licensed service provider unless the respondent shows signs of withdrawal or a need to be either detoxified or treated for a medical condition, which shall extend the amount of time the respondent may be held for observation until such issue is resolved but no later than the scheduled hearing date, absent a court-approved extension.” Whether the criteria are met depends on the facts presented in each case. For the full overview of these cases, read our Marchman Act guide.

What Chapter 397 Requires Before a Court Can Order an Assessment

A court needs a petition that meets the statute’s test. The test begins with a good faith reason to believe the person is substance abuse impaired, or has a substance use disorder and a co-occurring mental health disorder. Under Fla. Stat. § 397.675, the person must also have lost the power of self-control with respect to substance use. The statute then requires either an inability to appreciate the need for services, or a real and present threat of harm from neglect where it is not apparent that such harm may be avoided through the help of willing, able, and responsible family members or friends or the provision of other services, or a substantial likelihood of harm to self or others. Fla. Stat. § 397.675 reads: “(b) Without care or treatment, is likely to suffer from neglect or refuse to care for himself or herself; that such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and that it is not apparent that such harm may be avoided through the help of willing, able, and responsible family members or friends or the provision of other services, or there is substantial likelihood that the person has inflicted, or threatened to or attempted to inflict, or, unless admitted, is likely to inflict, physical harm on himself, herself, or another.” Mere refusal to receive services does not, by itself, count as evidence of lack of judgment about the need for services. Courts rely on the petition and the evidence, so the details in the petition carry weight.

Who can file? For an adult, Fla. Stat. § 397.68112 allows a spouse or legal guardian, any relative, a service provider, or an adult with direct personal knowledge of the impairment and prior treatment. The petition must state the factual allegations that establish the need for involuntary services, including the reasons for believing the person is substance abuse impaired, under Fla. Stat. § 397.68141. If the person was never assessed or refused an assessment, the petition must say so, under Fla. Stat. § 397.68141.

What Your Loved One May Do After Receiving Notice

Your loved one must receive the petition and a notice of the hearing. Read every paper carefully and write down the hearing date as soon as you have it. Under Fla. Stat. § 397.68151, the court must schedule the hearing within 10 court working days unless a continuance is granted.

The respondent must be present at the hearing. The court may excuse that only if it finds a knowing, intelligent and voluntary waiver, or finds that presence is inconsistent with the person’s best interests or likely to be harmful. The respondent has the right to counsel at every stage. The respondent may also refuse to testify. Testimony is taken under oath, and the court hears relevant evidence, including from family members who know the person’s history (Fla. Stat. § 397.6957).

What a Respondent’s Lawyer Does in a Marchman Act Case

A respondent’s lawyer represents the person named in the petition, regardless of who pays. Under Fla. Stat. § 397.68151, that lawyer has access to the person, witnesses and records relevant to the case. If the respondent desires counsel and cannot afford a private lawyer, the respondent has a right to court-appointed counsel under Fla. Stat. § 397.681. The Second District has held that a Marchman Act respondent has a constitutional right to be represented by counsel in Hillsborough County v. Albrechta.

In practice, a respondent’s lawyer may review the petition, meet with the respondent, prepare for the hearing and question witnesses. A lawyer can also raise questions about the facility, the timing of the evaluation and the options the statute allows.

Robinson Casey limits its practice to Marchman Act petitions and guardianship matters. Richard J. Casey III, Esq. is the responsible lawyer for this page. Our team includes assistants and office staff who support each matter. A Marchman Act matter may be referred to another lawyer or firm.

What Usually Happens Next After a Refusal

The typical path runs from petition to notice, then to a hearing, and then to a court order if the criteria are met. In an emergency, Fla. Stat. § 397.6818 lets the court rely on the petition alone and enter an ex parte order for assessment and stabilization, without first appointing an attorney. A petition that does not show a good faith reason for the criteria can lead to dismissal, as a Second District decision explains. A provider generally may not hold the person for more than 72 hours of observation, unless a statutory exception applies.

If the court finds the conditions proved by clear and convincing evidence, it may order treatment for up to 90 days under Fla. Stat. § 397.697. An assessment order lasts 90 days.

A provider may refuse admission for lack of space, services or money. It must first try to contact the referral source, under Fla. Stat. § 397.6751. For how bed availability affects placement, see our receiving facility bed guide.

The petitioner carries the burden of proof. In J.C. v. State, the Fifth District reversed an order where the judge called and questioned the only witness after the petitioner was absent. That is Fifth District law. Florida’s appeals courts have not all agreed on how far a judge may go, as a Fourth District decision shows. If drug charges are part of your family’s situation, our guide on arrests tied to drug charges covers that path.

How a Family Should Document a Refusal

Keep a dated, written record of each conversation about the evaluation. Note the date, time, who was present, what was said, and how your loved one responded. Stick to facts you saw or heard, and leave out guesses about what the person meant.

Save copies of every document served, every text or email about the evaluation, and any written refusal. Write down names and contact details for people who saw the refusal, such as a case manager or physician. Keep a dated log of any safety incident, even small ones.

This record matters because the petition must note a refusal. An accurate timeline helps whoever prepares the filing or a response. For a look at how a commitment record can matter later, see our commitment record guide.

Talk to a Marchman Act Attorney About Your Situation

A short, confidential conversation can help you sort out where your family’s situation stands.

Robinson Casey offers a free first consultation, which is confidential and carries no obligation to continue. If your loved one has turned down an evaluation and you are weighing a petition, call (561) 849-4149 or contact us online to talk through your facts.