What is the Baker Act? How do you Baker Act someone?

The Baker Act allows for the temporary detention and examination of people showing evidence of mental illness and who are in danger of harming themselves or others. This includes danger from self-neglect as well as physical harm.

Although the official name is the Florida Mental Health Act of 1971, the statue is commonly called the Baker Act after one of the bill’s co-sponsors, former Florida state representative Maxine Baker.

The Baker Act was aimed at preserving the rights of those who are involuntarily committed. It replaced the state’s previous mental health law originating in 1874, frequently referred to as “draconian.”

The new statute set stringent criteria for invoking the Baker Act, as well as time limit on evaluations and for involuntary treatment requests based on those evaluations.  Representation was now required for those who are Baker Acted, among other provisions.

The Baker Act is sometimes confused with the Marchman Act.  Florida’s Marchman Act also allows for involuntary evaluation and commitment, but it is for substance abuse treatment.

By contrast, the Baker Act just deals with mental health.

Although the Baker Act is just a Florida statute, people across the country use the term “baker acting” to mean the process of involuntary committing someone. There are laws in almost every state (including the District of Columbia), however, that authorize some form of involuntary commitment.

What is the criteria for the Baker Act?

Baker Act admissions can be voluntary or involuntary.

The following criteria must be met in order to involuntarily commit someone for an examination through the Baker Act:

1. There is “reason to believe” that a person has a mental illness and, because of the mental illness:
2. The person has refused to be examined, even after “conscientious” explanation and disclosure of the examination’s purpose. Or, due to the person’s mental illness, they lack the ability to determine that an examination is needed, AND
3. A lack of proper treatment will pose a “real and present” threat of substantial neglect from lack of self-care that cannot be avoided by the intervention or help of family members and friends or other available services, OR
4. In the absence of proper treatment, the individual will be highly likely (based on recent behavior) to cause serious physical harm to themselves or others in the “near future.”

As you can see, it all starts with evidence of a mental illness. In the 2014 Baker Act Handbook, mental illness is defined as:

“… an impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with a person’s ability to meet the ordinary demands of living, regardless of etiology” 

It’s important to note what is not covered under that definition.

For example, neither a developmental disability nor retardation is not included.

Also, if a loved one has a substance abuse problem as opposed to a mental condition, the Baker Act does not apply. As mentioned previously, Florida’s Marchman Act should be considered.

Conditions which merely produce antisocial behavior are also not a part of the Baker Act’s mental illness definition. So, if Cousin Johnny is not wanting to go to the family barbeque or drops out of class, this does not meet the stringent criteria of the Baker Act.

Simply being intoxicated or under the effects of substance abuse are also not considered signs of mental illness as defined by the Baker Act.

In addition to Florida, there are 35 other states with some sort of involuntary commitment law regarding substance abuse treatment.

RELATED: Find out more about Florida’s Marchman Act

If it’s a voluntary Baker Act admission, the person must have the ability to understand the decision and to exercise their rights. For those 17 and under, the application for a voluntary Baker Act must be made by a legal guardian, and a hearing to ensure consent is voluntary will be held.

How to Baker Act someone

There are three ways by which a person can be Baker Acted: through a circuit court, a law enforcement officer, and certain health professionals.

1. A Circuit Court

Florida’s judicial system is divided into 20 judicial circuits (listed below).

A Petition and Affidavit Seeking Ex Parte Order Requiring Involuntary Examination must be filed in the court that the person you are wishing to Baker Act is living.

Once you find your court below, you can either visit the website or call for specific instructions on requesting and filing forms. In some cases, additional documentation will be needed and this will prevent you from wasting time. There is no fee for filing the form(s). Also, in some cases, you may need to file with the county clerk of court, not the district.

1^st Circuit – Escambia, Okaloosa, Santa Rosa & Walton Counties
2^nd Circuit– Franklin, Gadsden, Jefferson, Leon, Liberty & Wakulla Counties
3^rd Circuit – Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee & Taylor Counties
4^th Circuit – Clay, Duval & Nassau Counties
5^th Circuit – Citrus, Hernando, Lake, Marion & Sumter Counties
6^th Circuit – Pasco & Pinellas Counties
7^th Circuit – St. Johns, Volusia, Flagler & Putnam Counties
8^th Circuit – Alachua, Baker, Bradford, Gilchrist, Levy & Union Counties
9^th Circuit – Orange & Osceola Counties
10^th Circuit – Hardee, Highlands & Polk Counties
11^th Circuit  – Dade County
12^th Circuit – DeSoto, Manatee & Sarasota Counties
13^th Circuit – Hillsborough County
14^th Circuit – Bay, Calhoun, Gulf Holmes, Jackson & Washington Counties
15^th Circuit – Palm Beach County
16^th Circuit – Monroe County
17^th Circuit – Broward County
18^th Circuit – Brevard & Seminole Counties
19^th Circuit – Indian River, Martin, Okeechobee & St. Lucie Counties
20^th Circuit – Charlotte, Collier, Glades,  Hendry & Lee Counties

Once filed with the court, the judge can consider an ex parte order. It is based on the sworn testimony on your form and other accompanying documents, if required.

If the circuit court enters the order, a law enforcement officer will execute it. It can be executed any time on any day, and the officer is authorized to use reasonable physical force as necessary to “gain entry to take custody of the person.”

Afterward, the officer must give a written report called “Transportation to a Receiving Facility,” that describes the circumstances surrounding taking the person into custody.

The individual is then transported to a designated receiving facility for examination.

2. A Law Enforcement Officer

A law enforcement officer has the authority take someone meeting the Baker Act criteria into custody and transport them to the nearest receiving facility.

Generally, this starts with a phone call from a friend, family member, or bystander (if there is an incident occurring in public) after witnessing behavior indicating the person may be mentally ill and is in danger.

Once again, the officer files a written report detailing the circumstances regarding the person being taken under custody. Ultimately, this report becomes part of the clinical record.

3. Certain Professionals

A certificate can be filed by a qualified professional, authorizing a law enforcement officer to take the person into custody and transport them to a receiving facility.

The professionals who are able to do this are:

• • • Physicians
    • Clinical Psychologists
    • Psychiatrists
    • Mental Health Counselors
    • Marriage and Family Therapists
    • Psychiatric Nurses
    • Clinical Social Workers

The certificate states that, within the last 48 hours, they have personally examined someone who they feel meets the Baker Act criteria, including a report of the observations upon which they based this conclusion. Once again, a law enforcement officer is employed to take the person into custody and transport the to the nearest receiving facility. Both the report and certificate become part of the clinical record.

On May 28, 2008 Florida’s Attorney General wrote that physician’s assistants were able to initiate the Baker Act under specific circumstances.

What is it like to be Baker Acted?

No matter which of the three methods are used, it all starts with the person being picked up by a law enforcement officer. That is, unless a person is already in a receiving facility. For example, if a hospital serves a receiving facility and the person goes to the ER for care, whether related or unrelated to mental illness. The attending physician may determine that the person meets the criteria for the Baker Act and hold the person at the facility.

If the person is picked up by an officer, they will be taken one of three places:

1. Hospital Emergency Room – If the officer determines that the individual is experiencing a medical emergency (and this is outlined in the law), he may take them to a hospital emergency room. This hospital may or may not be a receiving facility for the Baker Act. Within 72 hours, a receiving facility must examine the person, unless the person is documented to have an emergency medical condition by the attending physician. Twelve hours after documentation that the person no longer has a medical condition or that the condition is stabilized,  the person can be examined by either a physician or clinical psychologist at the hospital or a designated receiving facility and either be released or transferred to voluntary status. Or, the person can be transferred to a receiving facility where medical treatment needed is available. The transfer to a Baker Act receiving facility must be done within 12 hours of stabilization of the condition.
2. To be processed by law enforcement – If the officer has arrested someone for a felony, even though they may meet the Baker Act criteria for an involuntary examination, they must be processed before being transported to a receiving facility.
3. To a receiving facility – Unless there is a felony arrest or medical emergency involved, the individual will be taken straight to the nearest receiving facility. This includes those in custody for minor criminal behavior.

All receiving facilities must accept the person brought to them by a law enforcement officer. There are currently 134 receiving facilities in the state of Florida. Chances are, there’s one near you.

Within 72 hours, a physician or clinical psychologist will conduct an examination. The goal is to discover whether the individual meets the criteria for release.

During the examination, the professional will:

• Review recent behavioral observations, the document that initiated the examination, the transportation form.
• Take a brief psychiatric history
• Conduct a face-to-face exam

Again, this all has to happen with the three-day period. What happens next all depends on the results of the examination.

What happens after the Baker Act has expired?

Within 72 hours, the person must be released, either for outpatient treatment or on their own recognizance, unless:

• They are charged with a crime, OR
• They give “express and informed consent” to voluntarily be held or admitted.
  A physician must certify that the individual is able to make “well-reasoned, willful and knowing decisions” about their mental health and medical conditions, OR
• The facility administrator files a petition for involuntary placement with the circuit court

Note that in the latter example, the initial three-day holding period may be longer if a weekend or a holiday falls within that period. In that case, the petition must be filed on the next business day.

If the facility administrator has filed a petition for involuntary placement, a hearing will be held within five business days. The only exception is if the subject of the Baker Act requests – and is granted – a continuance from the court.

The individual has a right to representation. Unless a private attorney is hired, a public defender will be appointed to represent them. An independent expert examination can be provided by the court on behalf of the person.

The state attorney represents the state. However, one of the facility professionals who filed the petition must be present as a witness.

The court first hears testimony as to whether the individual is competent to elect (consent to) voluntary treatment. If they are not, a guardian advocate is appointed.

If the court further finds that involuntary placement criteria is met, then the individual is retained at or transferred to another receiving facility for treatment. The time period can be up to six months.

How long can a Baker acted person be committed to treatment?

As stated above, the initial time period for involuntary treatment is up to six months. However, it can be continued.

In order to do this, a facility administrator must file for continued involuntary placement again before the initial time period. A statement by the physician or clinical psychologist, description of the treatment already received, and an individualized plan for continuing treatment must be filed with the petition. For continued involuntary treatment, the hearing will be conducted by an administrative law judge.

If the court finds it is still justified, then they can find for another period of up to six months.

This process continues until the person no longer meets the criteria, at which time they are released by the facility. The court does not have to approve the release. The person can also transfer to voluntary status. If, however, the individual has a criminal charge, they will be taken into custody by the appropriate law enforcement agency.

Who pays for the Baker Act?

Unfortunately, even though it wasn’t their idea, the patient pays for both the 72-hour evaluation period as well as any treatment afterward. The patient can use private insurance, Medicaid, or Medicare for the treatment, but is responsible for any deductibles and co-pays.

Baker Act rights

Those who are Baker Acted do not forfeit their constitutional rights. The statute also expressly provides for the rights of those who have a mental illness, including:

• Individual Dignity – All constitutional rights are retained for individuals who are Baker Acted. Humane treatment during treatment and transportation is mandated.
• Right to Treatment – Regardless of ability to pay, treatment for mental illness cannot be delayed or denied. Planning for treatment must involve the individual. It must also be appropriate for the individual’s condition as well as the least restrictive possible. After arrival, there must be a prompt physical examination.
• Express and Informed Consent – Whenever possible, the Baker Act law encourages people to voluntarily seek mental health treatment of their choosing, and to stop that treatment when they desire. Consent must be given voluntarily, in writing, after sufficient explanation and by a competent person.
• Treatment Quality – Skillful, safe, humane administration of services is required, whether it be medical, rehabilitative, social, educational or vocational, and suited to the needs of the individual. There are regulations in place regarding the use of restraints, isolation, seclusion, physical management techniques, emergency treatment orders and elevated supervision levels. The law further provides for grievance procedures and complaint resolution.
• Right to Communicate, Report Abuse & Visits Baker Acted individuals have the right to communicate privately and freely with outside individuals, whether it’s a phone call, a letter or a visit to the facility. Written notice must be provided if communication is restricted. However, there will be no restriction of calls to the person’s attorney or to the Abuse Registry, under any circumstances.
• Proper Care and Custody of Personal Effects: Unless safety or medical reasons do not permit, individuals can keep their clothing and any personal effects. If any personal effects are removed, an inventory of the items must be witnessed.
• The Right to Vote: Baker Acted individuals retain the right to vote, and to register to vote, in all public elections for which they are qualified to vote in.
• Habeas Corpus: Individuals retain the right to ask for a review by the court regarding both the cause and the legality of their detention, legal right or privilege denial, or unjust denial of an authorized procedure.
• Treatment and Discharge Planning: Individuals have a right to participate in their treatment as well as their discharge planning. They can also plan and seek treatment from the professional of their choice once they are discharged.
• Sexual Misconduct Prohibited: Staff members who sexually engage with an individual under treatment in a receiving facility are committing a felony. Anyone not reporting such an incident is guilty of a misdemeanor.
• Right to a Representative: Involuntarily admitted individuals have the right to select a person to be their representative. If the individual cannot/will not select one of their own, the facility can select one. This representative has immediate access to the person; is promptly notified of their admission, restrictions of rights, and proceedings; is authorized to file a writ of habeas corpus on the individual’s behalf; and receives a copy of the personal effects inventory. However, the representative cannot access or release the person’s clinical record without their consent and can’t make treatment decisions or facility transfer requests.
• Confidentiality: All information about the individual should be confidentially maintained by the mental health facility. It is only to be released with the person’s (or their legally authorized representative’s) consent. Certain information can be released without consent after a good faith hearing in response to a court order. It may also be released without consent to the individual’s attorney. Other limited circumstances for disclosure without consent include after a threat of harm to others is made. Individuals in mental institutions have the right to access their own records.
• Violation of Rights: Violating or abusing the rights or privileges of individuals subject to the Baker Act are liable for damages [as determined by law].

The Baker Act is a serious undertaking. It should only be used when a person meets the strict criteria set forth in the law. There have been suits brought for wrongful Baker Act initiation. All of that being true, there are times when it is appropriate. If your loved one is threatening to harm themselves, and you can’t seem to help or stop it, it may be time to consider the Baker Act.

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SOURCES

Florida Department of Children and Families. (n.d.). Retrieved from MyFLFamilies.com

Judicial Circuits Map. (n.d.). Retrieved from The Florida Bar

Many States Allow Involuntary Commitment for Addiction Treatment. (n.d.). Retrieved from DrugFree.org