The Baker Act and Your Rights: One Attorney’s Perspective

by | Feb 8, 2024

The Baker Act and Your Rights: One Attorney’s Perspective By: Dr. Stephen Talmadge Ph.D. psychology | Attorney

By: Dr. Stephen Talmadge Ph.D. psychology | Attorney


I will address many questions about Baker Acts and will present a brief history and some facts about prevalence. I will talk about whether the Baker Act is criminal or civil law, patient rights, and time frames.

What does “Baker Act” mean? What is the “72-hour clock?” Does a person who has been Baker Acted have any rights? How long can an individual be held? How do I get someone out of a Baker Act? These questions are common.

Baker Act means involuntary psychiatric examination and/or commitment. It is understood better if it is thought of in two parts: examination and placement in a psychiatric facility granted by the court.

The law allows for up to a 72-hour period for psychiatric examination, often referred to as the “72- hour clock”. At the end of this period, an individual held involuntarily has to be discharged or the facility must file a petition with the court to hold him/her legally for a court hearing.

If it is decided by a court to grant the petition filed by the facility, then the facility is allowed to keep that individual for the time petitioned for. A facility is required to discharge a person when he/she no longer meets criteria for unwilling placement.

Unfortunately, this may not occur. Although a facility has a right to keep someone, unlike what individuals are told by the facility, individuals held under a Baker Act have several rights. The best way to ensure an individual’s rights are observed and to get an individual out of a Baker Act situation is to contact an attorney who is well versed in this special area of law.


The Baker Act was named after Maxine Baker, who served as a member of the Florida House of Representatives from 1963 to 1972. She is the namesake of the Baker Act, also known as the Florida Mental Health Act. The legislation went into effect as a result of numerous concerns about the civil rights of people in psychiatric hospitals. The Department of Children and Families (DCF) promulgated rules to help clarify the Baker Act.

When you or someone you love (even a child) is confined for involuntary psychiatric examination, they have rights. The law and its rules apply to anyone in the state, resident or visitor.

It guarantees that individuals undergoing psychiatric examination and placement are afforded rights and are treated with dignity. Following all statutes and rules protects an individual’s rights, but facilities following statutes and rules does not occur. As early as 1999, the Florida Supreme Court commission found the Baker Act was in need of an overhaul, including statutory reforms, improvements in court procedures, and increased funding. Although, over time the Baker Act has had some positive changes, the most significant being specifics on handling firearms of those involved in Baker Acts, rights continue to be violated by facilities.


Currently, there are approximately 128 Baker Act “receiving facilities” in Florida. Of these, about 59 claim to be not-for-profit and are funded through DCF. The remainder are for-profit, some with a psychiatric unit within a general hospital and others a free-standing psychiatric hospital. In FY 2021-2022, 170,048 Baker Act examinations were initiated. Compare that with 1997 when about 70,000 Floridians were involuntarily examined. In 1999, the population of Florida was 15.3 million. In 2022, the population was 21.4 million. The rate of Baker Act examinations has increased more than population growth. (.004% v .007%). To state the obvious, there has been an increase in Baker Acts even considering population growth!

In FY 2021-2022, law enforcement initiated 53% of Baker Acts, followed by health professionals at 45%, (mostly non-psychiatric physicians) and then by judges at 2%. An overwhelming percentage of these Baker Act examinations were due to concerns involving self-harm. Most initiations by mental health professionals involved emergency room physicians. Physicians are considered mental health providers by DCF. Speculation exists that ER physicians initiate the Baker Act often because of fears of lawsuits if there is an improbable outcome. Unfortunately, 21% of these Baker Acts involved forced examination of children.


The Baker Act should only be used in the event of emergencies. It is not designed to get treatment. It should not be used to get a quicker appointment/treatment or for those who are intoxicated. It is not to be used for those whose symptoms are from developmental problems. It should not be the automatic result of a “welfare check.” Many people who are forced into psychiatric examination do not meet the criteria for a Baker Act examination. Chapter 394 of the Florida Statutes gives the criteria and provides definitions. If your loved one has dementia, they are at risk of being Baker Acted. Anyone can be Baker Acted at any time, including pregnant women and mothers who have just given birth.


Baker Acts are within civil law even if a person is detained and handcuffed by a law enforcement officer. In the name of the parens patriae doctrine (parent of the country referring to the state as the legal guardian of people who are without natural guardians) Baker Acts give power to take someone into custody for their and society’s protection. This is opposed to its police power.

Baker Acts are civil, not criminal. That means that records of the Baker Act have no mechanism like criminal law to expunge them. However, law enforcement incident reports have been opined as public records by Florida attorneys general.


The Baker Act statute gives the state of Florida and facilities acting as an agent of the State the right to temporarily suspend patients’ rights to liberty. Some rights remain, including visitation and information rights. Unfortunately, these rights may not be recognized. Parents may not be allowed to contact their child or make decisions about their care and treatment. Sometimes a distraught husband or wife can’t understand why their spouse is being held in a Baker Act facility that refuses to give them any information.

Another important right is the right to refuse some or all medication. If your loved one has been Baker Acted, their medical care will be in the hands of Florida, and as its agent, the facility. I have often heard “they made [him/her/me] take medication.” Almost always, no physical threats to take medications were made. Instead, the threat of being viewed as being non-cooperative and thus staying longer is said or is understood. Baker Act facilities are medical facilities run by psychiatrists. They see taking medication as part of the answer and do not see the side effects of psychiatric medications as a big problem. And psychiatric medication is only prescribed if there is a major mental illness. So, which comes first – prescribing a psychiatric medication or diagnosing a major mental illness? Minor psychiatric diagnoses such as adjustment disorder are rarely diagnosed and likely would not be reimbursed by insurance.


What about being a voluntary patient, or in Baker Act jargon “signing voluntary”? You have the right not to be there voluntarily. Baker Act facilities will try to get a patient to “sign voluntary” because they don’t have to timely file a petition seeking court permission to keep you.

Some facilities present a stack of papers to sign, put an “X” where to sign, and tell an individual to sign at the “X.” Because it can be overwhelming and an individual wants to be cooperative, they sign a document requesting to be admitted voluntarily without understanding their signature’s impact. If you are held involuntarily for a hearing, one of the psychiatrists who opined on the petition submitted to the court would have to testify. The opining psychiatrist does not have to be subject to cross-examination when a patient is voluntary because there is no hearing. Facilities can and do file a petition to keep an individual until the hearing, and then discharge the individual after the petition before the hearing. All of this is legal. No petition is needed if the patient is truly voluntary.

Baker Act facilities use the signature obtained to request voluntary admission as proof of voluntariness and do not place much weight on whether an individual actually desires to be there. There is no mandated timeline when you enter a Baker Act facility voluntarily. You could be held for days, weeks, or even months without ever seeing a judge, speaking to an attorney, or entering a courtroom. Many individuals do not understand that even if already admitted to the facility, “signing voluntary” changes their status from involuntary to voluntary.


If you are coerced or tricked into signing a voluntary admission request, that 72-hour examination period stops. Once a voluntary patient requests discharge, the facility can switch his/her status back to involuntary and then the facility has 2 days to file a petition with the court to keep him/her. The facility will sometimes continue to hold an individual illegally even though the period has ended. (The period without the requirement to file a petition is extended if the period ends on a weekend or holiday. However, weekends and holidays count unless the period ENDS on a weekend or holiday.)

Another problem with the 72-hour observation period is that it is intermittent when you are Baker Acted in the ER. If you or a loved one is Baker Acted there, the clock starts and stops. The clock stops when a medical emergency or instability is declared and starts again when you are given medical clearance. This could take hours, days, or even weeks! The law requires a non-Baker Act hospital to transfer an individual 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.

If you or a loved one is Baker Acted by a law enforcement officer, the 72-hour clock will start at admission to a receiving facility. The law enforcement officer will almost always go to the closest receiving facility unless it involves a minor and a transportation exception plan has been approved by DCF.


The Baker Act, named after Maxine Baker, resulted from numerous concerns about the civil rights of people in psychiatric hospitals. The original intent of the Baker Act was to protect those in psychiatric hospitals. The right to refuse medication was discussed. Timeframes, visitation, and use/abuse were presented. The statute governing Baker Acts is good but often not followed in practice.

The majority of Baker Act facilities are for-profit and are run by psychiatrists. They usually prescribe psychiatric medications and infrequently diagnose minor mental illness. Through the education of the public, it is hoped that Baker Act facilities will start to comply. I also hope everyone will hold facilities accountable.

This article should NOT be construed as legal advice from a lawyer.

About the Author: Talmadge Law Firm

Dr. Stephen Talmadge was awarded a Ph.D. in psychology in 1989, after which he served as a licensed clinical psychologist in Naval hospitals during his 20-year career. He served on the medical staff of hospitals in various states and overseas. In 1997, he became a Diplomate in Forensic Psychology, performing evaluations and testifying in military proceedings for all services. After retirement he became a lawyer. Steve retired from the active practice of psychology in 2003. He was previously licensed in three states as a psychologist. Steve is now licensed by the Florida Bar as an attorney. Prior to opening his own firm, Steve was employed by a public defender, working on cases that involved involuntary psychiatric commitment. He was selected as a law clerk at a U. S. Attorney’s office during law school. Steve published an article about determining permission for psychotropic medication and an article about competence during law school and an article about false confessions. He has been a source of information about the Baker Act for several newspapers.


  1. MariaM

    As a former psychiatric consumer, I have many concerns about forced psychiatric treatment and appreciate this information on the Baker Act.

    I don’t think most people understand how easy it is to end up under forced psychiatric treatment and how difficult it is to learn to navigate through, and get out of, the mental health care system.

    For many consumers, psychiatric treatment ends up becoming a very expensive, life-long, and potentially life-shortening, purchase.

    From my experiences, I believe psychiatry through its creation of the DSM has become an unregulated powerbase of authority in our country.

    The negative impact of psychiatry and the profit being made off of psychiatric consumers in our country is in need of close scrutiny.

    In my opinion, mental health professionals and mental health facilities profit off of the fact that a diverse array of medical conditions and substances are known to induce symptoms that end up being labeled and treated as serious mental illnesses. These substances include medications used to treat many conditions, including psychiatric conditions.

    At one point I was Baker Acted at a Florida facility for three weeks after suffering a psychotic episode induced by an abscess tooth. The hold at the facility prevented me from receiving dental care in a timely fashion and prolonged my suffering. The facility was not covered under my insurance policy, and I was billed $17,000 for their services. I called and complained about the bill and the bill was reduced to $7000. I still refused to pay the bill and wrote a letter stating that as a consumer, I did willingly enter into an agreement to purchase psychiatric treatment from this facility, and I was coerced into staying there against my free will. In addition, the treatment they provided caused adverse reactions that endangered my life and the treating psychiatrist failed to follow best practice standards of care by treating the underlying condition.

    I cited this case:

    “In Wyatt v. Stickney, 325 F.Supp. 781 (M.D. Ala. 1971), a federal court in Alabama held for the first time that people who are involuntarily committed to state institutions because of mental illness or developmental disabilities have a constitutional right to treatment that will afford them a realistic opportunity to return to society.”

    The facility dropped the bill completely.

    I don’t think significant change in our mental health care system is possible without advocates becoming proactive in advancing best practice standards of care that will enhance awareness of underlying causes of symptoms considered by medical professionals as mental illnesses.

    Psychiatric Advance Directives (PADs), or Joint Crisis Plans (JCPs) are legal documents that could help protect individuals from being misdiagnosed with a mental disorder during a time of crisis intervention, by allowing individuals to express their wishes for treatment of underlying conditions and to authorize a legally appointed proxy to make decisions on their behalf during incapacitating crises.

  2. Ellen

    The law is used also to put well-to-do elderly under profitable involuntary guardianship. The probate court system circumvents constitutional rights and is used for profit / human trafficking. When we were home schooling our kids, we joined the HSLDA at the advice of other home schoolers. The Home School Legal Defense Association came to the aid of some of our friends when based on a “hot tip” social workers and cops knocked on their door; they were saved by the HSLDA. Other families who were not members were devastated. I spoke with a grandmother whose grandchild was taken from his parents when they were accused of harming him; after many months, they were able to get him back; it turned out his injury was a reaction to a vaccine.

  3. Kathy Sweigart

    Very informative! Thank you.


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