The Baker Act Process—-Baker Act Abuse

The Baker Act process begins and ends with the criteria, as written in the Florida Statute 394. In order to prevent Baker Act abuse, it is necessary to understand the criteria. All too often, individuals are placed under an involuntary examination when they do not meet the criteria as stated.

Per the Florida law, the Baker Act, the criteria are as follows:

Involuntary Examination Criteria

394.467 Involuntary inpatient placement.—

(1) CRITERIA.—A person may be placed in involuntary inpatient placement for treatment upon a finding of the court by clear and convincing evidence that:

(a) He or she is mentally ill and because of his or her mental illness:

1.a. He or she has refused voluntary placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of placement for treatment; or

b. He or she is unable to determine for himself or herself whether placement is necessary; and

2.a. He or she is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or

b. There is substantial likelihood that in the near future he or she will inflict serious bodily harm on himself or herself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm; and

(b) All available less restrictive treatment alternatives which would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.

Who can Baker Act?

Psychiatrist

Physician

Clinical Psychologist

Psychiatric Nurse

Clinical Social Worker

Licensed Mental Health Counselor

Licensed Marriage and Family Therapist

Physician’s Assistant (not in statute, but in Attorney General Opinion, 2008)

 

The intent of the Baker Act law

The Baker Act law is named after Representative Maxine Baker and her intent in writing this law was to support the legal and civil rights of individuals who were being held in psychiatric wards. This law was passed in 1971 and shortly after it was enacted, Ms. Baker was quoted in the media as saying “only 9 percent of our patients are dangerous to themselves or others, yet 91 percent are under lock and key.” She continued with this, “for the 58 percent of our patients who are committed involuntarily, they lose all their civil rights and leave with an indelible stigma. In the name of mental health, we deprive them of their most precious possession–liberty.”

For those who are in an emergency situation, Ms. Baker intended there to be oversight so that their rights were upheld.

Unfortunately, individuals who may be experiencing mental health symptoms, due to real-life stresses, or an underlying physical ailment, are placed under lock and key without ever meeting the criteria as intended.

Review of the Baker Act by the Florida Supreme Court

 

In 1999, the Florida Supreme Court wrote an Executive Summary that documented Baker Act abuse and still, to this day, this type of abuse is consistently occurring throughout the state.

The Executive Summary quotes Maxine Baker, from an article in the Times-Miami Herald, as saying “there are so many people who are better treated in the community, through group therapy and other methods of treatment. With this bill, we can treat more persons with less money without subjecting many of them to institutionalization.”

The Summary continues with this, “Many survey respondents and speakers noted the relationship between ability to pay and the length and quality of confinement. They said the system is a “revolving door” for indigent patients, who are back on the street quickly.”

The Florida Supreme Court raised one of the most important points, in their review of the Baker Act and Baker Act abuse, the right to due process (representation by legal Counsel)

The summary states “Chapter 394 contains the only provisions in Florida law that allow restriction of liberties for an extended period of time with no judicial review. Until or without a court hearing, there is no due process.”

The Baker Act law requires a court hearing for the individual within five days. The Florida Supreme Court makes note of the fact that there were those, in the legal system, that felt that meant five working days, not simply five days and there were those who were ignoring the five-day hearing completely.

Before the five days are up, the person is held in the facility without legal representation. Involuntary examination laws exist in each state across the country, with the intent to assist and protect those who may be of potential harm to themselves or others. Yet, that decision as to that meets the criteria leaves room for error and those that have been erroneously Baker Acted have no course for justice prior to the five-day hearing.

The Baker Act is a 72 hour hold, three days, and yet if the physician deems that the person still meets the criteria they are required by law to petition the court to keep the person in the facility, and thus the reason for the hearing at the five day mark.

The Florida Supreme Court found that training, of those individuals involved with the Baker Act process, was a problem and a concern. The Summary states “Justice system participants reported that they are not always adequately trained on mental health issues. Judges, general masters, state attorneys, and public defenders are legal experts. Most of them possess no special knowledge or training about mental illnesses prior to being assigned to involuntary examination and placement matters.”

Training of law enforcement officers, physicians, psychologists, public defenders and court magistrates, should not be left up to those with vested interests in mental health treatment. In order for there to be consistent training on the Baker Act law, it should be done by those who have no real interest in increasing the population of individuals who receive mental health services. This has not been the case since 1971 when the law was implemented.

Clarification of Baker Act Criteria

 

  1. Specific criteria must be met in order to initiate involuntary examination.

 

  1. Among those criteria are the following elements, that by themselves, do not qualify an individual as having met or meeting the criteria:

 

  1. Reason to believe that the person has a mental illness; Refusal of voluntary examination; the person is unable to determine whether examination is necessary.

 

Criteria are not met simply because a person has mental illness, appears to have mental problems, takes psychiatric medication, or has an emotional outburst, without care or treatment, the person is likely to neglect and or harm themselves.

  1. These factors, alone, do not qualify an individual as meeting the criteria.

 

  1. Criteria are not met simply because a person refuses voluntary examination. This factor alone, does not qualify an individual as meeting the criteria.

 

  1. Criteria are not met if there are family members or friends that will help prevent any potential and present threat of substantial harm.

 

  1. The criteria, as stated in the statute, mentions a substantial likelihood that without care or treatment the person will cause serious bodily harm in the near future.
    1. “Substantial” means ample or considerable or firm or strong.

 

  1. To further clarify this point of substantial likelihood, there must be evidence of recent behavior to justify the substantial likelihood of serious bodily harm in the near future. Moments in the past, when an individual may have considered harming themselves or another, do not qualify the individual as meeting the criteria.
    1. “Near” means close or short or draws near.

 

Get help from an experienced mental health rights advocate!

 

Sources:

Florida Statute: 394.455(2), (4), (21), (23) and (24)

Times- Miami Herald Service report from May 11, 1971

Florida Supreme Court Executive Summary 1999