The Baker Act
The Florida Mental Health Act of 1971 (Florida Statute 394.451-394.47891), commonly known as the Baker Act, was enacted by the Florida Legislature to provide legal procedures for mental health examination and treatment of an individual. The Act prohibits the indiscriminate admission of persons to state institutions or the retention of persons without just cause.
Named after former Florida State Representative Maxine Baker, the Act mandates that the courts appoint an attorney to represent those who are involuntarily placed in a mental health program and conduct independent reviews every six months of involuntary placements. Baker established a patients’ bill of rights, including protecting a person’s right to communicate with whomever they wished, to receive and send unopened mail, to use their own possessions and to vote.
Baker expressly prohibits the placement of persons with mental illnesses in jail unless they have committed a criminal offense.
Among the Baker Act’s intended purposes is to:
- Provide comprehensive services for those who need intensive short-term and continued treatment
- Admit persons to facilities on a voluntary basis when extended or continuing care is needed and unavailable in the community
- Ensure that involuntary examinations or treatments are accomplished in appropriate settings that will help the person to return to the community
- Provide emergency service and temporary detention for evaluation when required
- Employ the least restrictive means of intervention based on individual needs
- Guarantee that a person’s dignity and human rights when admitted to mental health facilities are protected
The role that the Office of the State Attorney plays in a Baker Act Hearing is to ensure that the person meets the Baker Act Criteria.
The Assistant State Attorney calls witnesses, usually including one of the two doctors who evaluated the person determining that the person does in fact suffer from a mental illness, along with any family members or proposed guardian advocates (either a family member or a volunteer who takes a four-hour course to become certified).
A guardian advocate is one who will, upon court approval and appointment, be allowed to talk to the treating physicians and ask questions about medication being prescribed or taken, the side effects of that medication and any additional information to aid the guardian in making an informed decision about the medications. The decision has to be informed and in the best interest of the patient and the patient only.
Additional facts that the State has to prove in the hearing:
- What is the mental illness that the person has been diagnosed?
- Do they meet the Baker Act Criteria?
- What led the Psychiatrist to make this diagnosis? (How did the patient come to be at the facility? Was it through law enforcement or family members who filed an ex parte petition? Does the patient have a history of mental illness and what behavior is being exhibited? Has that behavior been noted while in the facility?)
- What is their recommendation as to the length of time needed for stabilization in the facility?
- Does another Doctor concur with their recommendation and diagnosis? And Who?
- Is there a lesser restrictive placement for the patient at this time in the condition the patient is currently? (Sometimes family members will say “I don’t care,” “ I can take care of him,” “He can come home now.” But some of the patients really need the structure and expertise found in these facilities.)
Persons with Criminal Charges
When an officer has custody of a person based on either non-criminal or minor criminal behavior that meets the statutory guidelines for involuntary examination under the Baker Act, the law enforcement officer must transport the person to the nearest receiving facility for examination. When any law enforcement officer has arrested a person for a felony and it appears that the person meets the statutory guidelines for involuntary examination or placement under the Baker Act, such person must first be processed in the same manner as any other criminal suspect.
A receiving facility is not required to admit a person charged with felony charges for whom the facility determines and documents that it is unable to provide adequate security, but must provide mental health examination and treatment to the person where he or she is held. No person brought to a receiving facility on involuntary status who is charged with a crime can be released except back to the custody of a law enforcement officer.
The costs of transportation, evaluation, hospitalization, and treatment incurred by persons who have been arrested for violations of any state law or county or municipal ordinance may be recovered as provided in s. 901.35, F.S.
The Baker Act encourages the voluntary admission of persons for psychiatric care, but only when they are able to understand the decision and its consequences and are able to fully exercise their rights for themselves. When this is not possible due to the severity of the person’s condition, the law requires that the person be extended the due process rights assured for those under involuntary status.
A person may be taken to a receiving facility for involuntary examination if there is reason to believe that he or she has a mental illness (as defined in the Baker Act) and because of his or her mental illness:
- The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or the person is unable to determine whether examination is necessary; and
- a) 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 b) There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to self or others in the near future, as evidenced by recent behavior.
Initiation of Involuntary Examination
An involuntary examination may be initiated by any one of the three following means:
- A court may enter an ex parte order stating that a person appears to meet the criteria for involuntary examination, giving the findings on which that conclusion is based. The ex parte order for involuntary examination must be based on sworn testimony, written or oral. No fee can be charged for the filing of a petition for an order for involuntary examination. A law enforcement officer, or other designated agent of the court, must take the person into custody and deliver him or her to the nearest receiving facility for involuntary examination. A law enforcement officer acting in accordance with an ex parte order may serve and execute such order on any day of the week, at any time of the day or night. A law enforcement officer acting in accordance with an ex parte order may use such reasonable physical force as is necessary to gain entry to the premises, and any dwellings, buildings, or other structures located on the premises, and to take custody of the person who is the subject of the ex parte order. The officer must execute a written report entitled “Transportation to a Receiving Facility” detailing the circumstances under which the person was taken into custody, and the report must be made a part of the person’s clinical record. [65E-5.260, FAC] The ex parte order is valid only until executed or, if not executed, for the period specified in the order itself. If no time limit is specified in the order, the order is valid for seven days after the date that the order was signed. Once a person is picked up on the order and taken to a receiving facility for involuntary examination and released, the same order cannot be used again during the time period. The order of the court must be made a part of the person’s clinical record.
- A law enforcement officer must take a person who appears to meet the criteria for involuntary examination into custody and deliver the person or have him or her delivered to the nearest receiving facility for examination. The officer must execute a written report detailing the circumstances (doesn’t require observations) under which the person was taken into custody, and the report must be made a part of the person’s clinical record.
- A physician, clinical psychologist, clinical social worker, mental health counselor, marriage and family therapist, or psychiatric nurse (each as defied in the Baker Act) may execute a certificate (CF-MH 3052b) stating that he or she has examined the person within the preceding 48 hours and finds that the person appears to meet the criteria for involuntary examination and stating the observations of the authorized professional upon which that conclusion is based. A law enforcement officer must take the person named in the certificate into custody and deliver him or her to the nearest receiving facility for involuntary examination. The law enforcement officer must execute a written report detailing the circumstances under which the person was taken into custody. The report and certificate must be made a part of the person’s clinical record. (While not authorized by statute, Florida’s Attorney General wrote on May 28, 2008 that physician assistants could under specific circumstances initiate Baker Act involuntary examinations.)
For more information about the Baker Act, visit Baker Act Reference Guide.
Source: Baker Act Handbook and User Reference Guide 2014 State of Florida Department of Children & Families.
The Marchman Act
The Marchman Act is the Florida Substance Abuse Impairment Act and governs voluntary and involuntary assessment and admissions for those with substance abuse. Enacted by the Florida Legislature in 1993, the act was named after Hal S. Marchman, an advocate for those who suffer from alcoholism and drug abuse.
The Marchman Act recognizes substance abuse is a major health problem leading to:
- Serious Impairment
- Chronic Addiction
- Criminal Behavior
- Vehicular Casualties
- Spiraling Health Care Costs
- Business Losses
- Children’s Learning Ability
- Family Dysfunction
To learn more about Marchman, including proceedings, treatment and to access forms, visit the Marchman Act Handbook.
Source: Marchman Act, The Florida Substance Abuse Impairment Act, State of Florida Department of Children & Families394.451-394.47891 [2009 rev.])