By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law
Time after time, we are consulted by family members of individuals who are wrongfully restrained under The Florida Baker Act or who believe their family member is being held without a legitimate reason. The Baker Act, also known as the Florida Mental Health Act, was passed in order to implement programs that are created to “reduce the occurrence, severity, duration, and disabling aspects of mental, emotional, and behavioral disorders.” Section 394.453, Florida Statutes. Invalid confinement under the Baker Act can take place for numerous reasons. The result, however, is that an independent citizen is confined in violation of his constitutional rights to liberty and privacy.
The Baker Act contains a wide range of provisions ranging from screening, to appointment of legal guardians. But, what the Act is most known for are the involuntary evaluation and confinement provisions for someone who has mental health issues that meet certain criteria. Involuntary confinement because of alcoholism, drug addiction or impairment is addressed in Florida by the Marchman Act, a different law, and is not the subject of this article.
What is Involuntary Evaluation?
Essentially, being Baker Acted means that an individual has displayed some act of behavior that makes it seem as though they have a mental illness. Without seeking proper care or treatment, the individual can be found to neglect and harm themselves or others.
The initial determination can be made by one of three types of people:
(1) A court can issue an order stating the person appears to meet the criteria and can direct that person to be transported to a facility for an involuntary evaluation;
(2) A law enforcement officer can take a person who appears to meet the criteria into custody and transport him/her to a facility for an involuntary evaluation;
(3) A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist or clinical social worker may execute a certificate stating that he/she has evaluated the person within the last 48 hours and the person appears to meet the criteria for involuntary evaluation.
When a person is the focus of an involuntary examination, they can be detained in a facility for a maximum of 72 hours. During this duration, physicians and counselors will examine and interview the patient to determine his/her mental state. This assists in determining the type and further treatment that may be needed including further involuntary confinement.
The facility must, within the 72 hours, do one of the following things:
(1) Release the patient without condition;
(2) Release the patient for voluntary outpatient treatment;
(3) Request that the patient give consent to being admitted for voluntary inpatient treatment;
(4) File a petition for involuntary placement with the appropriate circuit court when outpatient or inpatient treatment is necessary but the patient refuses to consent.
How to Get Out.
The facility is not, by any means, the only one with the ability to get the court system involved. A patient or the patient’s guardian advocate can file a petition for writ of habeas corpus requesting a hearing regarding release from involuntary confinement.
Before you file a petition, a friend or family member, with the assistance of legal counsel, may be able to help obtain a patient’s release during the 72-hour window. The predominant factor is whether the individual being held is a danger to themselves or others. This means that a family’s plans to address the facility’s concerns through voluntary treatment or the active participation of family can be very effective.
One of the most effective ways to let the facility know that you are serious about getting someone released is to hire an attorney. The mere presence of an attorney along with family members allows the facility to acknowledge there is a support system in place.
The Baker Act specifically states that confinement is not appropriate when any apparent harm “may be avoided through the help of willing family members or friends” Section 394.463(1)(b)(1), Florida Statutes.
The Hearing Process.
If you are unable to obtain a person’s release prior to the facility filing a petition for involuntary confinement, here are some strategies to prepare for the hearing.
(1) Meet with the patient to try to explain the situation and try to prepare them for the hearing by explaining the purpose of the hearing and what questions to expect.
(2) Meet with the facility’s director to try and gauge the institution’s position on further treatment and involuntary confinement. Depending on the plans put in place by the confined person’s family, you may be able to convince the facility to withdraw the petition and discharge the patient.
(3) Meet with the counselors and nurses caring for the patient to discuss their opinions. These people are likely to be key witnesses during the hearing.
(4) Meet with the physician who examined the patient and try to determine why he/she is recommending further treatment. Also, try to discuss alternative treatment plans that would be acceptable so that those arrangements can be made prior to the hearing.
(5) If possible, meet with the assistant state attorney who will be representing the government in the hearing to discuss options. If you can get the treating physician on your side, you may be able to get the government to support a discharge.
Many of these tips require knowledge of the legal system and the medical field. You or your family member stand the best chance of being discharged from a Baker Act confinement if you have experienced legal counsel or a patient advocate to assist. To learn even more about the Baker Act, click here to read one of our past blogs.
Contact Health Law Attorneys Experienced in the Representation of Psychiatrists, Mental Health Counselors, Psychologists, Social Workers, and Marital and Family Therapists.
The attorneys of The Health Law Firm provide legal representation to psychiatrists, mental health counselors, psychologists, social workers and family therapists in Department of Health (DOH) investigations, medical malpractice investigations, business transactions, contracts, structuring business ventures, clinical privileges actions, professional licensure matters, Board hearings, business litigation, Medicare and Medicaid audits, and other types of investigations of health professionals and providers.
Often the early advice and representation of an experienced health law attorney can help avoid discipline which will be on your record for a lifetime.
To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.
About the Author: George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Avenue, Altamonte Springs, Florida 32714, Phone: (407) 331-6620.
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