Baker Act Basics

Monday, October 20, 2014
By Lance O. Leider, J.D., The Health Law Firm

The Florida Mental Health Act, more commonly known as the Baker Act, was passed to allow for the creation of 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 wide range of provisions ranging from screening to appointment of legal guardians.  But what the Act is most known for are the involuntary evaluation and confinement provisions.


What is Involuntary Evaluation?

Most people have heard a reference to someone being "Baker Acted."  Being Baker Acted essentially means that a person has exhibited some behavior that makes them appear to have a mental illness which without care or treatment may result in neglect or harm to themselves or to others.

The initial determination can be made by one of three types of people:
(1)  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;

(2)  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;

(3)  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.

When a person is the subject of an involuntary examination they 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.

The facility must, within the 72 hours, do one of the following things:

(1)  Release the patient without condition;

(2)  Release the patient for voluntary outpatient treatment;

(3)  Request that the patient give consent to being admitted for voluntary inpatient treatment;

(4)  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 Out.


The facility isn't the only one 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.

But before you file a petition, a friend or family member, with the help of 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.

The predominant factor is whether the person being held is a danger to themselves or others.  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.

One of the best ways to let the facility know that you are serious about getting someone released is to hire an attorney.  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 cares about the patient.  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.


The Hearing Process.


If you are unable to obtain a person's release prior to the facility filing a petition for involuntary confinement, here are some strategies to prepare for the hearing.

•  Meet with the patient to try to explain the situation and try 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 and 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.

•  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/she is recommending further treatment.  Also try to discuss alternative treatment plans that would be acceptable so that those arrangements can be made prior to the hearing.  This may allow you to turn the main witness against the patient into an ally.

•  If possible, meet with the assistant state attorney 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.

Many of these tips require knowledge of the legal system and the medical field.  You or your family member stand the best chance of being discharged from a Baker Act confinement if you have experienced legal counsel or a patient advocate to assist.

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 borderline patients, but at the same time do not want to be responsible for releasing someone prematurely.  Having an attorney or advocate present brings a neutral perspective to the picture that can often be the difference between release and further confinement.


Comments?

Have you had any experience with a family member or friend being involuntarily confined under the Baker Act? How did you handle the situation? How did the victim react to being confined? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced in Handling Victims of Involuntary Confinement Through the Baker Act and Marchman Act.

The Health Law Firm represents individuals, families and friends in challenges to and hearings related to the Florida Baker Act and Marchman Act, when the basic criteria for confinement are not met and there is no medical necessity for further confinement.

Our firm has a process we follow to make sure that a person who should not be held under the Baker Act may be released in a very short time.  If the basic criteria for a Baker Act confinement are not present, the person is not required to be held and should be released.  If the person has been living independently for decades, has family and a support system available, and has had no prior mental health problems, the odds are he or she should not be involuntarily confined.  We act immediately to begin our representation, to make the hospital and its physicians aware that we are representing you, and to take measures to obtain release.  If required, we are prepared to file an emergency Petition for Writ of Habeas Corpus with the local Circuit Court to have you brought before the judge for an emergency release hearing.  These cases can be time intensive, require a great deal of immediate work, but can yield fast results in most cases.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


About the Author: Lance O. Leider is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone:  (407) 331-6620.

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The Health Law Firm" is a registered fictitious business name of George F. Indest III, P.A. - The Health Law Firm, a Florida professional service corporation, since 1999.

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George F. Indest III 10/20/2014

Comments:

Response to: Baker Act Basics
Tuesday, January 12, 2016
Jennifer Verge says:

My husband is currently being held at Springbrook Psychiatric Hospital in Spring Hill, FL against his will passed the 72 hour hold time because the doctors claim he is "depressed" and needs further observation. He has complied with all of their demands. he takes the medications he's administered, goes to their group therapies and does not act out in any way. He is a disabled Iraq war Veteran with PTSD and he is not being allowed to see his VA physicians. He cannot see his family except for Wednesday's and weekends and I feel that it's because he has good insurance. Our insurance pays them $637 EACH Day he's there and I know if he was a homeless uninsured veteran exhibiting the same symptoms or worse, he would've been released already and we feel helpless and frustrated and don't know what to do. I've asked numerous times to speak to his psychiatrist and they refuse to allow me to speak to him and he's been there since Sunday and has yet to hav his "2nd opinion". He has an excellent

Response to: Baker Act Basics
Thursday, February 4, 2016
New England mental health worker says:

What's the difference between the baker act and someone being placed on a section 12a in Massachusetts

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