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

INTRODUCTION 

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.

HISTORY

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.

FACILITIES AND INITIATIONS

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.

USE AND ABUSE

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.

CRIMINAL OR CIVIL 

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.

RIGHTS

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.

VOLUNTARY

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.

THE 72-HOUR AND THE TWO DAY CLOCKS

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.

CONCLUSION

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.

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