Judges: Robert L. Shevin, Attorney General Prepared by: Jerald S. Price, Assistant Attorney General
Filed Date: 11/19/1975
Status: Precedential
Modified Date: 7/5/2016
QUESTION: May a petition for the involuntary treatment of a person who refuses to be examined by a licensed physician for alcoholism under s. 396.102, F.S. (1974 Supp.), be submitted to, and considered by, the circuit court?
SUMMARY: Under s. 396.102, F.S. (1974 Supp.), providing for the involuntary treatment of alcoholics, the refusal of a person to be examined by a physician does not prevent proper parties from submitting a petition for the involuntary treatment of that person, nor does such refusal prevent the circuit court from considering and acting upon the petition. Your request arises from what appears to be a conflict between subsections (1) and (3) of s. 396.102, F.S. (1974 Supp.), in which is provided a procedure whereby a person suffering from alcoholism to such a degree as to meet statutory requirements regarding loss of self control, inability to make a judgment as to the need for treatment, etc., may by order of the circuit court be involuntarily treated. Such involuntary treatment is to be undertaken pursuant to the submission by statutorily designated parties of a petition urging such treatment, which petition is then considered by the circuit court. Regarding the petition, s. 396.102(1) provides: The petition shall be accompanied by a certificate of a licensed physician who has examined the person within 2 days of the submission of the petition. The certificate shall set forth the physician's findings in support of the allegation of the petition. If the person whose commitment is sought has refused to submit to an evaluation, the fact of such refusal shall be alleged in the petition. (Emphasis supplied.) Your concern is whether the above language, which states that the petition "shall be accompanied by a certificate of a licensed physician," prevents the submission to, and consideration by, the circuit court of the petition for involuntary treatment of one who has refused to be examined. First, I would point out the last sentence of subsection (1), supra, which provides that "refusal shall be alleged in the petition." If submission to a medical examination were an absolute prerequisite to the submission of the petition, then the above language would be meaningless. If refusal of an examination precluded submission of the petition, there would be no reason to allege such refusal in the petition. In addition, subsection (3) of s. 396.102, supra, clearly contemplates the consideration by a circuit court of a petition for the involuntary treatment of one who has refused to be examined. In this regard, s. 396.102(3) provides, in pertinent part:
If the person whose commitment is sought has refused to be examined by a physician, he shall be afforded an opportunity to consent to examination by a court-appointed physician. If he refuses and there is sufficient evidence to believe that the allegations of the petition are likely to be true, or, in any case, if the court believes that more evidence is necessary, the court may make a preliminary order committing the person to an appropriate treatment resource for a period of not more than 5 days for purposes of further evaluation. If after hearing all relevant evidence, including the results of any case findings, the court finds that the grounds for involuntary commitment have been met by clear and convincing proof, the court shall make a final order stating its findings and ordering the person to treatment at or through a treatment resource deemed appropriate by the court. Under the above provision, as well as the last sentence of s. 396.102(1), supra, it would appear that the absence of a certificate from a physician would not prevent the petitioners from submitting, or the circuit court from considering and acting upon, a petition for involuntary treatment. However, since there is some ambiguity or conflict within s. 396.102, it is appropriate to consider applicable rules of statutory construction. One well-established rule applicable here is that statutes are to be construed as a whole, with individual provisions considered in the context of the overall statute. In Ozark Corporation v. Pattishall,
The Ozark Corp. v. Pattishall , 135 Fla. 610 ( 1938 )
Deltona Corporation v. Florida Public Service Com'n , 1969 Fla. LEXIS 2448 ( 1969 )
State v. Hayles , 240 So. 2d 1 ( 1970 )
Miller v. State , 297 So. 2d 36 ( 1974 )
Orlando Sports Stadium, Inc. v. State Ex Rel. Powell , 262 So. 2d 881 ( 1972 )
Forehand v. Manly , 147 Fla. 287 ( 1941 )
Wilensky v. Fields , 267 So. 2d 1 ( 1972 )
Leach v. State , 293 So. 2d 77 ( 1974 )
Florida Jai Alai, Inc. v. LAKE HOWELL WATER & R. DIST. , 274 So. 2d 522 ( 1973 )
McKibben v. Mallory , 293 So. 2d 48 ( 1974 )