What You Need to Know About Florida's Baker Act - Part 1

Monday, July 21, 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 of individuals who are erroneously confined under Florida's Baker Act, Section 394.451, Florida Statutes. 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 that legally authorizes involuntary confinement for drug addicts and other substance abusers.  It is named the “Hal S. Marchman Alcohol and Other Drug Services Act" or the "Marchman Act" in its shorter form, and is codified at Section 397.301, Florida Statutes.

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.

When to Call a Baker Act Attorney.

Overzealous or overcautious 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 to be a threat involuntarily confined under the Baker Act. Seniors living on their own and teenagers are often the "victims" of this.

If the psychiatrist examining the involuntarily confined individual feels that he or she should be held for further evaluation, then he or she can be held up to a week, for further evaluation and treatment.

Examples of abuses that can occur as a result, include:

-    Individuals who do not have a mental condition and do not meet the basic criteria for the Baker Act are involuntarily confined and deprived of their freedom.
-    Children are involuntarily confined at facilities that are not really set up for children.
-    Because of overcrowding the person is taken to or transferred to a facility far away from his or her home, family and friends.
-    A person who has medical problems (especially true with the elderly) is confined in a Baker Act facility and is unable to receive regular medical care or attend scheduled appointments with their regular treating physicians.
-    A person who is taking one or more prescriptions for medical problems will not be allowed to take them while confined.  This can lead to a deterioration of the person's medical condition.
-    If the person has a regular psychiatrist or therapist, that person is not allowed to see or treat the person where he or she is confined because the therapist is not on the medical staff of the Baker Act facility.
-    Persons may be confined in a facility in which one or more dangerous patients are also confined.  Our clients have reported assaults and sexual molestation which have occurred at such facilities.
-    It has been reported to us by clients to whom this has happened that it seems if there is good insurance coverage they are kept longer because the insurance company (or Medicare) is paying the hospital for the inpatient stay, which can be a large amount of money.
-    Sometimes the family is located in another state and merely wants to have the person released so he or she can be taken to live with them and cared for by them.

Examples of How We Can Help.

We often receive calls from the husband, wife, parents, children or friends of individuals who have been confined involuntarily to a mental facility. Often we are called on to respond urgently to obtain the release of someone who may have been incorrectly confined to a mental institution without their consent.

Occasionally we assist in cases in which the family may be located in another state and the patient is located here in Florida.  Often we are able to obtain a prompt release of the confined person in cases in which the basic requirements for an involuntary confinement under Florida Law do not exist and the patient should not have been confined.

We have been involved in working on an expedited basis with the hospital, mental institution or court to obtain the release of individuals who should not be confined or who desire to be released into the custody and care of their family or back to their own independence.

For a sample of an Emergency Petition for Write of Habeas Corpus we prepared with its supporting documentation, and which contains citations to the appropriate legal authorities, click here.  A Memorandum of Law (legal brief) in support of the Petition for Writ of Habeas Corpus is also included with it.

For a link to a website which contains additional information and forms for Baker Act cases, including the complete Baker Act and the state regulations (agency rules) implementing it, click here.

The Baker Act Is Not a Bad Thing.

We realize that the Baker Act is a good thing.  There are many people who may have serious mental health issues and fail to obtain treatment, who should be involuntarily confined under the Baker Act so that they can receive appropriate treatment. Sometimes this is the only way they will ever be treated. And it is also a good thing that police, deputy sheriffs and other law enforcement officers are receiving training which is now resulting in more Baker Act hospitalizations and fewer arrests. This helps an individual to avoid a serious arrest and possible conviction of a serious offense (giving them a criminal record forever) when they may need only medical treatment for a mental condition.

Check this blog regularly for more on Florida's Baker Act and the Marchman Act.


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: 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.

Tag Words: Baker Act, Baker Act cases, Baker Act defense, Involuntary Baker Act Confinement, Involuntary Confinement in hospital, Confinement in Baker Act facility, mental health confinement, petition for Writ of Habeas Corpus, Baker Act attorney, Baker Act lawyer, Florida Baker Act, Florida Marchman Act, Baker Act defense attorney, Baker Act defense lawyer, Baker Act law, Baker Act forms, Marchman Act, health law, health law firm, The Health Law Firm

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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Response to: What You Need to Know About Florida's Baker Act - Part 1
Monday, May 4, 2015
Madison G Verger says:

Hi Health Law Firm my name is Madison. I just got out of one of these so-called hospitals and I read your page. Whatever sentiments I have about the Baker Act itself is irrelevant as far as I'm concerned. I am, however, certain that many of the hospitals that house the patients are not kept up to the standard of the the same baker act that they are supposedly enforcing.

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