December 8, 2014
All facilities should have a form petition for writ of habeas corpus for the patient to execute if the facility is trying to keep the patient involuntarily and the patient desires to leave. Most facilities have procedures in place for a Florida Circuit Court judge to have a hearing on all such cases in the facility once a week.
However, if it is necessary to get the patient out earlier than this, or if the attorney, family or patient has other reasons, the attorney may want to prepare and file his or her own petition for writ of habeas corpus with the Court.
This is done using the procedures set forth in Chapter 79, Florida Statutes and Rule 1.630, Florida Rules of Civil Procedure, including a detailed memorandum of law and supporting affidavits. We have found this to often be more effective than using the sparse forms made available by a facility for its patients to use.
The Hearing Process.
As legal counsel, if you are unable to obtain a person’s release prior to the facility filing a petition for further involuntary confinement, here are some strategies to prepare for the hearing.
- Make sure the patient has not signed a voluntary agreement to be treated. If so, revoke it.
- Meet with the patient to explain the situation and to prepare them for the hearing by explaining the purpose of the hearing and what questions to expect.
- Meet with the facility’s director to try to gauge the institution’s position on further treatment and involuntary confinement. Depending on the plans put in place by the confined person’s family, you may be able to convince the facility to withdraw the petition and discharge the patient to follow up with outpatient care.
- Meet with the counselors and nurses caring for the patient to discuss their opinions. These people are likely to be key witnesses during the hearing.
- Meet with the physician who examined the patient and try to determine why he or she is recommending further treatment. Offer to discuss alternative treatment plans that would be acceptable so that those arrangements can be made prior to the hearing. Having an outside psychiatrist or treatment facility identified to follow up on treatment after discharge may be a key factor to obtain release.
- If possible, meet with the assistant state attorney (prosecutor) who will be representing the government in the hearing to discuss options. If you can get the treating physician on your side, you may be able to get the government to support a discharge.
Facilities and physicians are very risk-adverse with respect to Baker Act patients. In general, they do not want to treat someone involuntarily because it tends to be less effective for most patients, but at the same time, do not want to be responsible for releasing someone prematurely.
Many of these tips require knowledge of the legal system and the medical field. Having an attorney present brings a neutral perspective to the picture that can often be the difference between release and further confinement. In these situations having legal counsel experienced in Baker Acts is necessary. No physician or facility wants to be responsible for a patient’s committing suicide or hurting others if it could have been avoided by continuing treatment.