Most people who contact a Mental Health Rights Advocate or a Baker Act attorney wonder how to fight the Baker Act. There are those who meet the criteria for involuntary examination and the legislator who enacted this law, Maxine Baker, had in mind to assist those individuals and to prevent any harm. Yet there are many who do not meet the criteria and still, they are Baker Acted.
How to fight the Baker Act, has everything to do with understanding the criteria as stated in the Florida Law. When that is understood, then the individual and their friends or family members can understand whether they have grounds to fight it or not.
Sometimes, individuals are perceived as having a disability or a mental illness because they have just received bad news and have a strong emotional reaction; or some people have had too much alcohol and start talking in a depressed manner; others may have a medical illness which symptoms are taken for mental health symptoms instead of physical. The individuals who do not meet the criteria are placed under the 72 hour hold and they cannot leave the facility just because they don’t think they belong there. It’s a law, and the law is very specific on this. To assist yourself in fighting the Baker Act, first get familiar with the criteria and then it may be very beneficial to work with a Mental Health Rights Advocate and/or a Baker Act attorney.
Involuntary commitment law exists in every state across the country and while some aspects of the law vary state-to-state, they all have commonalities such as the length of stay, the mandatory aspect of the stay and the fact that only a qualified mental health professional can grant release of the patient.
Afterwards, the involuntary examination becomes a part of the individual’s medical records and will follow them throughout their life. This is one aspect that should be considered when in the situation. Of course, if the person didn’t meet the criteria, it is a very irritating aspect. There is not a lot that can be done about it after the fact. You always have the right to file appropriate complaints to state agencies in regards to the Baker Act and specific aspects that you feel violated Florida law. Again, this is best accomplished with the help of an advocate or attorney.
Disabilities and/or abilities are determined by majority opinion in the field of mental health. They are not evidenced by medical tests in the way that Diabetes, Cancer or any other physical ailment is diagnosed. If an individual is “regarded as having a disability” there are certain legal actions that can be taken if the person is treated in an unfair way that violates the Americans with Disabilities Act. That’s interesting because the disabilities law allows for the fact that some people are “regarded as having disabilities” when they don’t and yet, the Baker Act law does not take this into consideration at all. Once someone is deemed to meet the criteria, they are determined to have a mental illness, per the criteria.
In a report, written by Risa M. Mish, titled, “Regarded As Disabled” Claims under the ADA: Safety Net or Catch-all?, Ms. Mish enlightens us as to what this legal concept of “regarded as disabled” actually means. On a rare occasion if someone was Baker Acted and during the stay at the facility, was treated in a way that violates the Americans With Disabilities Act, then a Disabilities Attorney might have reason to file suit on the patient’s behalf.
Per Ms. Mish’s report, “The ADA regulations provide that an individual is “regarded as disabled” if she: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) has none of the impairments specified in the ADA subsection, but is treated by an employer as having a substantially limiting impairment. Therefore, an individual will be “regarded as disabled” when others behave toward that individual as if she had a substantially limiting impairment, regardless of whether the individual actually has such an impairment.
This is offered as food for thought! If you find yourself in a situation where a friend of family member has been Baker Acted, you can keep this in mind. Additionally, there is a lot of information on this site that you may find helpful in asserting your rights and fighting the Baker Act.