What is CCHR?DocumentaryFAQsTake Action!MembershipMedia Videos PSA'sNews ArticlesContact UsReport Adverse Reactions

Call Toll Free

Join Our Email List
Email:  
For Email Marketing you can truest


The Citizens Commission on Human Rights of Florida is a non-profit watchdog organization that investigates and exposes psychiatric abuse and educates the public about their rights in the field of mental health. We do not promote the use of the Baker Act. Instead, we provide factual information regarding involuntary commitment so each individual and their families, can protect their rights if they have been Baker Acted and so that Floridians understand how to protect their rights at all times.

CCHR Florida provides only facts and does not provide medical or legal advice.

Our office recommends that an individual seek a competent medical examination by a non-psychiatric medical professional.

Question and Answers about the Florida Involuntary Commitment Law – The Baker Act

Q. When does a patient need to be examined by a health practitioner?

A.  Florida Statute 394.459 Rights of patients, Section (2) RIGHT TO TREATMENT, Subsection (c) states:

(c) Each person who remains at a receiving or treatment facility for more than 12 hours shall be given a physical examination by a health practitioner authorized by law to give such examinations, within 24 hours after arrival at such facility.

Q. Does a patient have a right to say what treatment they do or do not want to receive?

A. Florida Statute 394.459, Rights of patients, Section (2) RIGHT TO TREATMENT, Subsection (e) states:

(e) Not more than 5 days after admission to a facility, each patient shall have and receive an individualized treatment plan in writing which the patient has had an opportunity to assist in preparing and to review prior to its implementation. The plan shall include a space for the patient’s comments.

Q. What is Express and Informed Consent?

A. Florida Statute 394.459, Rights of patients, Section (3), RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT, Subsection (a)2. states:

2. Before giving express and informed consent, the following information shall be provided and explained in plain language to the patient, or to the patient’s guardian if the patient is 18 years of age or older and has been adjudicated incapacitated, or to the patient’s guardian advocate if the patient has been found to be incompetent to consent to treatment, or to both the patient and the guardian if the patient is a minor: the reason for admission or treatment; the proposed treatment; the purpose of the treatment to be provided; the common risks, benefits, and side effects thereof; the specific dosage range for the medication, when applicable; alternative treatment modalities; the approximate length of care; the potential effects of stopping treatment; how treatment will be monitored; and that any consent given for treatment may be revoked orally or in writing before or during the treatment period by the patient or by a person who is legally authorized to make health care decisions on behalf of the patient.

Q. Does a parent/guardian have the right to express and informed consent to treatment if a patient is a minor?

A. Florida Statute 394.459, Rights of patients, Section (3), RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT, Subsection (a)1. states:

(a)1. Each patient entering treatment shall be asked to give express and informed consent for admission or treatment. If the patient has been adjudicated incapacitated or found to be incompetent to consent to treatment, express and informed consent to treatment shall be sought instead from the patient’s guardian or guardian advocate. If the patient is a minor, express and informed consent for admission or treatment shall also be requested from the patient’s guardian. Express and informed consent for admission or treatment of a patient under 18 years of age shall be required from the patient’s guardian, unless the minor is seeking outpatient crisis intervention services under s. 394.4784. Express and informed consent for admission or treatment given by a patient who is under 18 years of age shall not be a condition of admission when the patient’s guardian gives express and informed consent for the patient’s admission pursuant to s. 394.463 or s. 394.467.

Q. Are there any times when a parent’s right to express and informed consent can be bypassed by the court?

A. Florida Statute 394.459, Rights of patients, Section (3) RIGHT TO EXPRESS AND INFORMED PATIENT CONSENT, Subsections (c) and (d) state:

(c) When the department is the legal guardian of a patient, or is the custodian of a patient whose physician is unwilling to perform a medical procedure, including an electroconvulsive treatment, based solely on the patient’s consent and whose guardian or guardian advocate is unknown or unlocatable, the court shall hold a hearing to determine the medical necessity of the medical procedure. The patient shall be physically present, unless the patient’s medical condition precludes such presence, represented by counsel, and provided the right and opportunity to be confronted with, and to cross-examine, all witnesses alleging the medical necessity of such procedure. In such proceedings, the burden of proof by clear and convincing evidence shall be on the party alleging the medical necessity of the procedure.

(d) The administrator of a receiving or treatment facility may, upon the recommendation of the patient’s attending physician, authorize emergency medical treatment, including a surgical procedure, if such treatment is deemed lifesaving, or if the situation threatens serious bodily harm to the patient, and permission of the patient or the patient’s guardian or guardian advocate cannot be obtained.

Q. Does a patient have the right to communicate to their attorney, family and/or report alleged abuse?

A. Florida Statute 394.459, Rights of patients, Section (5) COMMUNICATION, ABUSE REPORTING, AND VISITS, Subsections (c), (d) and (e) state:

(c) Each facility must permit immediate access to any patient, subject to the patient’s right to deny or withdraw consent at any time, by the patient’s family members, guardian, guardian advocate, representative, Florida statewide or local advocacy council, or attorney, unless such access would be detrimental to the patient. If a patient’s right to communicate or to receive visitors is restricted by the facility, written notice of such restriction and the reasons for the restriction shall be served on the patient, the patient’s attorney, and the patient’s guardian, guardian advocate, or representative; and such restriction shall be recorded on the patient’s clinical record with the reasons therefor. The restriction of a patient’s right to communicate or to receive visitors shall be reviewed at least every 7 days. The right to communicate or receive visitors shall not be restricted as a means of punishment. Nothing in this paragraph shall be construed to limit the provisions of paragraph (d).

(d) Each facility shall establish reasonable rules governing visitors, visiting hours, and the use of telephones by patients in the least restrictive possible manner. Patients shall have the right to contact and to receive communication from their attorneys at any reasonable time.

(e) Each patient receiving mental health treatment in any facility shall have ready access to a telephone in order to report an alleged abuse. The facility staff shall orally and in writing inform each patient of the procedure for reporting abuse and shall make every reasonable effort to present the information in a language the patient understands. A written copy of that procedure, including the telephone number of the central abuse hotline and reporting forms, shall be posted in plain view.

Q. Does the family or Representative of a patient, who was involuntarily committed have the right to be notified?

A. Florida Statute 394.4597, Persons to be notified; patient’s representative, Section (2) INVOLUNTARY PATIENTS, states:

(a) At the time a patient is admitted to a facility for involuntary examination or placement, or when a petition for involuntary placement is filed, the names, addresses, and telephone numbers of the patient’s guardian or guardian advocate, or representative if the patient has no guardian, and the patient’s attorney shall be entered in the patient’s clinical record.

(b) If the patient has no guardian, the patient shall be asked to designate a representative. If the patient is unable or unwilling to designate a representative, the facility shall select a representative.

(c) The patient shall be consulted with regard to the selection of a representative by the receiving or treatment facility and shall have authority to request that any such representative be replaced.

(d) When the receiving or treatment facility selects a representative, first preference shall be given to a health care surrogate, if one has been previously selected by the patient. If the patient has not previously selected a health care surrogate, the selection, except for good cause documented in the patient’s clinical record, shall be made from the following list in the order of listing:

1. The patient’s spouse.
2. An adult child of the patient.
3. A parent of the patient.
4. The adult next of kin of the patient.
5. An adult friend of the patient.
6. The appropriate Florida local advocacy council as provided in s. 402.166.

(e)A licensed professional providing services to the patient under this part, an employee of a facility providing direct services to the patient under this part, a department employee, a person providing other substantial services to the patient in a professional or business capacity, or a creditor of the patient shall not be appointed as the patient’s representative.

Additionally:

Florida Statute 394.4599, Notice, Section (2) INVOLUNTARY PATIENTS, Subsection (b) states:
(b)  A receiving facility shall give prompt notice of the whereabouts of a patient who is being involuntarily held for examination, by telephone or in person within 24 hours after the patient’s arrival at the facility, unless the patient requests that no notification be made. Contact attempts shall be documented in the patient’s clinical record and shall begin as soon as reasonably possible after the patient’s arrival. Notice that a patient is being admitted as an involuntary patient shall be given to the Florida local advocacy council no later than the next working day after the patient is admitted.

Q.  What are the criteria used for Involuntary Commitment?
A. Florida Statute 394.463, Involuntary examination, Section (1) states:

(1) CRITERIA.—A person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness:
(a)1. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or

2. The person is unable to determine for himself or herself whether examination is necessary; and

(b)1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or

2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.

Q. What are the general rules for Involuntary Commitment?
A. Florida Statute 394.463, Involuntary examination, Section (2) INVOLUNTARY EXAMINATION, Subsection (f) states:

(f) A patient shall be examined by a physician or clinical psychologist at a receiving facility without unnecessary delay and may, upon the order of a physician, be given emergency treatment if it is determined that such treatment is necessary for the safety of the patient or others. The patient may not be released by the receiving facility or its contractor without the documented approval of a psychiatrist, a clinical psychologist, or, if the receiving facility is a hospital, the release may also be approved by an attending emergency department physician with experience in the diagnosis and treatment of mental and nervous disorders and after completion of an involuntary examination pursuant to this subsection. However, a patient may not be held in a receiving facility for involuntary examination longer than 72 hours.

Q. What is the procedure if a patient has an emergency medical condition and has been placed under involuntary commitment?
A. Florida Statute 394.463, Involuntary examination, Section (2) INVOLUNTARY EXAMINATION, Subsection (g), states, in part:

(g) A person for whom an involuntary examination has been initiated who is being evaluated or treated at a hospital for an emergency medical condition specified in s. 395.002 must be examined by a receiving facility within 72 hours. The 72-hour period begins when the patient arrives at the hospital and ceases when the attending physician documents that the patient has an emergency medical condition. If the patient is examined at a hospital providing emergency medical services by a professional qualified to perform an involuntary examination and is found as a result of that examination not to meet the criteria for involuntary outpatient placement pursuant to s. 394.4655(1) or involuntary inpatient placement pursuant to s. 394.467(1), the patient may be offered voluntary placement, if appropriate, or released directly from the hospital providing emergency medical services.

 

Q. What is the definition of Emergency Medical Treatment?
A. Florida Statute 395.002, Definitions, Section (8) states:

(8) “Emergency medical condition” means:
(a)  A medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in any of the following:

1.  Serious jeopardy to patient health, including a pregnant woman or fetus.
2.  Serious impairment to bodily functions.
3.  Serious dysfunction of any bodily organ or part.
(b)  With respect to a pregnant woman:
1.  That there is inadequate time to effect safe transfer to another hospital prior to delivery;
2.  That a transfer may pose a threat to the health and safety of the patient or fetus; or
3.  That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes.

Q. What occurs after a patient’s emergency medical condition stabilizes?
A. Florida Statute 394.463, Involuntary examination, Section (2) INVOLUNTARY EXAMINATION, Subsection (h) states:

(h) One of the following must occur within 12 hours after the patient’s attending physician documents that the patient’s medical condition has stabilized or that an emergency medical condition does not exist:

1.  The patient must be examined by a designated receiving facility and released; or

2. The patient must be transferred to a designated receiving facility in which appropriate medical treatment is available. However, the receiving facility must be notified of the transfer within 2 hours after the patient’s condition has been stabilized or after determination that an emergency medical condition does not exist.

Q. Is there a hearing that will take place regarding the patient?

A. Florida Statute 394.4655, Involuntary outpatient placement, Section (6) HEARING ON INVOLUNTARY OUTPATIENT PLACEMENT, Subsection (a)(1) states:

(a)(1) The court shall hold the hearing on involuntary outpatient placement within 5 working days after the filing of the petition, unless a continuance is granted. The hearing shall be held in the county where the petition is filed, shall be as convenient to the patient as is consistent with orderly procedure, and shall be conducted in physical settings not likely to be injurious to the patient’s condition. If the court finds that the patient’s attendance at the hearing is not consistent with the best interests of the patient and if the patient’s counsel does not object, the court may waive the presence of the patient from all or any portion of the hearing. The state attorney for the circuit in which the patient is located shall represent the state, rather than the petitioner, as the real party in interest in the proceeding.

Q. How old is a child or adolescent?

A. Florida Statute 394.492, Definitions, Sections (1) and (3) state:

  1. “Adolescent” means a person who is at least 13 years of age but under 18 years of age.

 

(3) “Child” means a person from birth until the person’s 13th birthday.

Q. Can a child or adolescent be involuntarily committed?

A. Florida Statute 394.499, Integrated children’s crisis stabilization unit/juvenile addictions receiving facility services, Section (2) states, in part:

(2)  Children eligible to receive integrated children’s crisis stabilization unit/juvenile addictions receiving facility services include:
 
(b) A person under 18 years of age who may be taken to a receiving facility for involuntary examination, if there is reason to believe that he or she is mentally ill and because of his or her mental illness, pursuant to s. 394.463:

1. Has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or

2. Is unable to determine for himself or herself whether examination is necessary; and

a. Without care or treatment is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or

b. There is a substantial likelihood that without care or treatment he or she will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.

Q. Does a patient have a right to say what treatment they do or do not want to receive?”

Question: What Rights does an individual have if they have been involuntarily committed?

Answer:
65E-5.140 Rights of Persons.

(1) Every person admitted to a designated receiving or treatment facility or ordered to treatment at a service provider shall be provided with a written description of his or her rights at the time of admission. Recommended form CF-MH 3103, Feb. 05, “Rights of Persons in Mental Health Facilities and Programs,” which is incorporated by reference and may be obtained pursuant to Rule 65E-5.120, F.A.C., of this rule chapter may be used for this purpose. A copy of the rights statement, signed by the person evidencing receipt of the copy, shall be placed in the person’s clinical record and shall also be provided to the person’s guardian, guardian advocate, representative, and health care surrogate or proxy.
(2) To assure that persons have current information as to their rights, a copy of the Florida Mental Health Act (Chapter 394, Part I, F.S.) and Mental Health Act Regulations (Chapter 65E-5, F.A.C.) shall be available, and provided upon request, in every psychiatric unit of each receiving and treatment facility and by each service provider and, upon request shall be made available for review by any person, guardian, guardian advocate, representative, or health care surrogate or proxy. The administrator or designee of the facility or service provider shall make physicians, nurses, and all other direct service staff aware of the location of these documents so they are able to promptly access them upon request.
(3) Posters delineating rights of persons served in mental health facilities and by service providers, including those with telephone numbers for the Florida Abuse Hotline, Florida Local Advocacy Council, and the Advocacy Center for Persons with Disabilities, shall be legible, a minimum of 14 point font size, and shall be posted immediately next to telephones which are available for persons served by the facility or provider.
(4) Each person shall be afforded the opportunity to exercise his or her rights in a manner consistent with Section 394.459(1), F.S. The imposition of individual or unit restrictions and the development of unit policies and procedures shall address observance of protecting rights of persons served in developing criteria or processes to provide for care and safety.


Question: What is Rights of Persons’ form that should be given to the patient and their family?

Answer: Rights of Persons In Mental health Facilities and Programs, Download Patients Rights Form


Question: Can voluntary admission be transferred to involuntary status without the individual or their family’s consent?

Answer:
65E-5.270 Voluntary Admission.

(4) If a competent adult or the guardian of a minor refuses to consent to mental health treatment, the person shall not be eligible for admission on a voluntary status. A person on voluntary status who refuses to consent to or revokes consent to treatment shall be discharged from a designated receiving or treatment facility within 24 hours after such refusal or revocation, unless the person is transferred to involuntary status or unless the refusal or revocation is freely and voluntarily rescinded by the person. When a person refuses or revokes consent to treatment, facility staff shall document this immediately in the person’s clinical record. Recommended form CF-MH 3105, Feb. 05, “Refusal or Revocation of Consent to Treatment,” which is incorporated by reference and may be obtained pursuant to Rule 65E-5.120, F.A.C., of this rule chapter may be used for this purpose. Should a competent person withdraw his or her refusal or revocation of consent to treatment, the person shall be asked to complete Part II of recommended form CF-MH 3105, “Refusal or Revocation of Consent to Treatment,” as referenced in subsection 65E-5.270(4), F.A.C., or similar documentation, and the original shall be retained in the person’s clinical record.
(5) An oral or written request for discharge made by any person following admission to the facility shall be immediately documented in the person’s clinical record. Recommended forms CF-MH 3051a, “Notice of Right of Person on Voluntary Status to Request Discharge from a Receiving Facility,” as referenced in subsection 65E-5.270(2), F.A.C., or CF-MH 3051b, “Notice of Right of Person on Voluntary Status to Request Discharge from a Treatment Facility,” as referenced in subsection 65E-5.270(2), F.A.C., may be used for this purpose. This form may also be completed by a relative, adult friend, or attorney of the person.
(6) When a person on voluntary status refuses treatment or requests discharge and the facility administrator makes the determination that the person will not be discharged within 24 hours from a designated receiving or treatment facility, a petition for involuntary inpatient placement or involuntary outpatient placement shall be filed with the court by the facility administrator. Recommended form CF-MH 3032, “Petition for Involuntary Inpatient Placement,” as referenced in subparagraph 65E-5.170(1)(d)1., F.A.C., or recommended form CF-MH 3130, “Petition for Involuntary Outpatient Placement”, as referenced in subparagraph 65E-5.170(1)(d)2., F.A.C., may be used for this purpose. The first expert opinion by a psychiatrist shall be obtained on the petition form

Full Text of the Baker Act: http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&URL=0300-0399/0394/0394.html