November 6, 2014
The Florida Mental Health Act, more commonly known as the Baker Act, was passed to allow for the creation of mental health programs designed to “reduce the occurrence, severity, duration, and disabling aspects of mental, emotional, and behavioral disorders.” Section 394.453, Florida Statutes.
The Baker Act contains a variety of provisions ranging from screening to appointment of legal guardians. However, the Baker Act is most commonly known for the involuntary evaluation and confinement provisions. Being involuntarily confined for a mental health exam in Florida is commonly called being “Baker Acted.”
The rights of a Baker Act patient are spelled out in Section 394.459, Florida Statutes. They include receiving a physical exam within 24 hours in the facility (sect. 394.459 (2) (c), Fla. Stats.); requesting a writ of habeas corpus in accordance with Chapter 79, Florida Statutes (Sect. 394.459 (8). Fla. Stats.).
The Process for an Involuntary Evaluation.
Many people have heard a reference to someone being “Baker Acted.” Being Baker Acted essentially means that a person has exhibited some extreme behavior that insinuates a mental illness, and without care or treatment, may result in harm to themselves or to others.
Originally the act allowed this involuntary confinement and evaluation only when the individual posed a threat to himself/herself or to others. Recent amendments have broadened these grounds somewhat, but this is still the standard that most mental health facilities follow.
The initial determination can be made by one of three types of people:
- A court can issue an order stating the person appears to meet the criteria and can direct that person to be transported to a facility for an involuntary evaluation;
- A law enforcement officer can take a person who appears to meet the criteria into custody and transport him/her to a facility for an involuntary evaluation;
- A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker may execute a certificate stating that he/she has evaluated the person within the last 48 hours and the person appears to meet the criteria for involuntary evaluation.
See cite: Section 394.463 (2) (a) (1)-(3), Florida Statutes.
When a person is the subject of an involuntary examination, he/she can be held in a facility for a maximum of 72 hours. During this period of time physicians and counselors will examine and interview the patient to determine his/her mental state and the type and duration of further treatment that may be needed, including further involuntary confinement. This does not mean that if a patient is examined and determined to be releasable earlier, that the patient may still be retained for 72 hours.
The facility must, within the 72 hours, do one of the following things:
- Release the patient without condition;
- Release the patient for voluntary outpatient treatment;
- Request that the patient give consent to being admitted for voluntary inpatient treatment;
- File a petition for involuntary placement with the appropriate circuit court when outpatient or inpatient treatment is necessary but the patient refuses to consent.
How to Get a Client Released.
The facility isn’t the only entity with the ability to get the court system involved. A patient or the patient’s guardian advocate can file a petition for writ of habeas corpus requesting a hearing regarding release from involuntary confinement. Forms for this are usually made available to patients at the facility. Otherwise an attorney can prepare and file a petition for a writ of habeas corpus as needed.
Before filing a petition, legal counsel may be able to get involved during the 72-hour window and obtain a patient’s release prior to the facility petitioning the court system for permission to extend confinement. As stated earlier, the prevailing test is usually whether the person being held is a danger to himself/herself or to others.
In our experience, the mere presence of an attorney along with family members lets the facility know that there is a support system in place that will address the needs of the patient. This means that a family’s plans to address the facility’s concerns through voluntary treatment or the active participation of family can be very effective.
The Baker Act specifically states that confinement is not appropriate when any apparent harm “may be avoided through the help of willing family members or friends . . . .” Section 394.463(1)(b)(1), Florida Statutes. Your clients should know that hiring an attorney is one of the best ways to indicate to the facility that they are serious about getting released.