What You Need to Know About Florida's Baker Act - Part 2

Wednesday, July 23, 2014
By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law


We are frequently consulted by family members or friends of individuals who are erroneously confined under Florida's Baker Act or the Marchman Act.

An erroneous confinement under the Baker Act can occur for a number of different reasons.  However, the result is that an independent citizen is confined in violation of his constitutional rights to liberty and privacy.  There is a similar law, the “Hal S. Marchman Alcohol and Other Drug Services Act" or the "Marchman Act," that legally authorizes involuntary confinement for drug addicts and other substance abusers.

Loosely speaking, the Baker Act allows physicians or other health professionals to order that an individual who is a threat to himself or to others because of a mental illness to be involuntarily held for a psychiatric evaluation for up to 72 hours, in certain designated health facilities.

To read more on Florida's Baker Act and Marchman Act, including when you should call an experienced attorney, click here for part one of this blog.


Baker Act Cases We've Previously Worked.

Overly cautious health care officials, including physicians, emergency room personnel, school officials, Department of Children and Families (DCF) officials, nursing home staff and other authorities will often have those they suspect may have a mental problem and those they suspect to be a threat involuntarily confined under the Baker Act.

Here are examples of actual cases in which we have been retained to obtain the release of a Baker Act patient:

Case #1:  An independent elderly woman who still works and is completely independent trips and falls in her condominium, injuring her face.  Her roommate takes her to the local hospital emergency room.  The emergency room staff has her involuntarily confined in the hospital's Baker Act unit and will not release her.  She is not a danger to herself or to others. She is completely independent.  Her roommate helps in driving her to her medical appointments. She has never been diagnosed with a mental illness before and has never been Baker Acted before. She has a pet dog she takes care of in her apartment and being involuntarily confined causes her to miss several medical appointments she had scheduled.

Case #2:  President of a medium-sized manufacturing company in another state comes to Florida for a business convention at which his company has a display.  On the last night of the conference, he parties late, drinks too much and a friend takes him to a hospital emergency room.  He has a plane ticket to leave the next day.  The hospital emergency room staff diagnoses him with depression and has him involuntarily confined under the Baker Act.  He misses his flight home, and one of his company officials has to come to Florida to try to get him released.

Case #3:  The fairly new wife of a businessman who owns his own business, works a lot, and already has one child, delivers triplets. About six months later, the nanny quits and the wife and her husband finally receive a solid offer on their house (which has been on the market for three years) and they will have to move in two weeks.  The wife goes to her OB/GYN for her routine follow-up visit.  She is tired and run down from the loss of her nanny, getting ready to move, taking care of triplets, etc. Questioning by her OB/GYN indicates she may be depressed.  The OB/GYN has two nurses from his office walk her over to the hospital emergency room (which is next door) to be Baker Acted.  Now her husband and kids are at home without a nanny and without mom.  Mom is angry and upset because she is not suicidal, feels she has been betrayed by her doctor and is not a threat to herself, her children or anyone else. She feels she is a prisoner, confined without any rights.

Case #4:  A 14-year-old girl in high school breaks up with her best friend.  She is somewhat depressed and writes down her thoughts about "ending it all."  Two months later, someone finds the anonymous note and turns it into a teacher.  The teacher and principal are eventually able to identify the handwriting and confront the teenager.  She admits that it is her note but denies any suicidal thoughts.  The principal calls the sheriff's department and sheriff's deputies come and take her away to a Baker Act facility over her parents' protests and have her involuntarily confined there.

Case #5:  A happily married mother of three young adults (who are in college and live with their mother and father) has had a long history of depression for which she sees her own psychiatrist on a regular basis (for more than ten years) and receives prescription medications to control it.  Her psychiatrist routinely adjusts her medications as required.  Her psychiatrist has recently adjusted her medications but is out of town on vacation for two weeks.  She has a reaction to the medication adjustment.  She telephones her psychiatrist's office and is instructed to go to the nearest hospital emergency room to have her medications adjusted.  She does this.  Instead of getting her medications adjusted, she is involuntarily confined in the hospital's behavioral health unit under the Baker Act, her husband (an engineer) and her children, who live with her and depend on her, are distraught and cannot convince the hospital or its medical staff to release her.

The cases above are all based on actual cases in which we have represented the family and been able to obtain the prompt release of the involuntarily confined individual.


Serious Problems We See With the Process.

-    The staff and treating physician constantly pressure the patient to convert their involuntary confinement (which may be expiring shortly, or there may be no grounds to renew it) to a voluntary admission.  If this occurs, then they can keep the person as long as they desire.  However, they threaten that if the patient attempts to leave, even though the patient is now there voluntarily, then they will have the patient involuntarily confined under the Baker Act.

-    The patient is angry and upset at being imprisoned when he or she came to the hospital voluntarily for help.  As a result, he or she rants and raves and threatens the doctors and staff with litigation or refuses to talk to them.  This may serve to reinforce the doctor and staff's concerns that the patient is mentally ill or irrational.

-    Some of our clients have expressed concerns that because they have excellent health insurance, Medicare, Medicaid, or TRICARE coverage (all of which cover hospitalizations), that they are being held involuntarily against their will when they should not be, while indigents who really have serious mental health issues are discharged immediately.  They express concerns that they are being held involuntarily solely because the hospital and physician are getting paid to keep them.

-    Individuals who have medical problems, but are successfully living independently and obtaining regular medical treatment for their ailments, may not receive the appropriate type of medical care they need when they are being confined in a psychiatric facility.  Their prescription medications are at home, and they are not able to take their prescribed medications.  Their regular treating physicians are not called or consulted. Their continuity of care is interrupted by the confinement.

-    The regular treating physicians of those confined may not visit or see them while they are confined in a different hospital from the one(s) in which the treating physician has approved clinical privileges.


We Work to Get Victims Out Quickly.

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 a victim, 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 the victim 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.


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 quickly.  We act immediately to begin our representation, to make the hospital and its physicians aware that we are representing the victim, 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 the victim 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: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of 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 Ave., Altamonte Springs, FL 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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7/23/2014

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