Understanding the Baker Act: A Guide to Mental Health Rights

The Baker Act: Protecting Mental Health in Florida

Life can be unpredictable. Sometimes, emotional or mental health struggles can escalate, causing concern for yourself or others. Florida’s Baker Act provides a legal framework for involuntary mental health evaluations. This guide aims to empower you with knowledge about your rights and the Baker Act process.

When Does the Baker Act Apply?

• The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or
• The person is unable to determine for himself or herself whether examination is necessary; and
  • 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
  • There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.

  The Baker Act Process Explained

  Here’s a simplified breakdown of the Baker Act process:

  1. Involuntary Examination : Once an involuntary examination is initiated by law enforcement, certain medical professionals, or by a judge, the individual is taken into custody and to the nearest Baker Act receiving facility if they are not already hospitalized.
  2. 72-hour Involuntary Examination Period: The 72-hour Involuntary Examination Period begins when the individual arrives at the Baker Act receiving facility or if the person is hospitalized, when the Certificate of Professional Initiating Involuntary Examination is executed.. Baker Act receiving facility often lie or falsify the time that the 72-hour Involuntary Examination Period so that they can keep people longer and obtain more insurance money.
  3. Examination : A patient shall be examined by a physician or a clinical psychologist, or by a psychiatric nurse performing within the framework of an established protocol with a psychiatrist at a facility without unnecessary delay to determine if the criteria for involuntary services are met.
  4. Release or Involuntary Hold : Within the 72-hour Involuntary Examination Period, one of the following actions must be taken, based on the individual needs of the patient:
     • Released : The patient shall be released, unless he or she is charged with a crime, in which case the patient shall be returned to the custody of a law enforcement officer. The patient may also be released for voluntary outpatient treatment.
     • Held for Voluntary Treatment : The patient, unless he or she is charged with a crime, may be asked to give express and informed consent for placement as a voluntary patient and, if such consent is given, the patient shall be admitted as a voluntary patient.
     • Involuntarily Hospitalized : If the individual continues to meet the criteria for involuntary examination a petition for involuntary services must be filed in the circuit court if inpatient treatment is deemed necessary. If a patient’s 72-hour Involuntary Examination Period ends on a weekend or holiday, and the receiving facility intends to file a petition for involuntary services, the patient may be held at a receiving facility through the next working day thereafter and the petition for involuntary services must be filed no later than such date. If the receiving facility does not intend to file a petition for involuntary services, it may postpone release of a patient until the next working day thereafter only if a qualified professional documents that adequate discharge planning and procedures in accordance with s. 394.468, and approval pursuant to paragraph (f), are not possible until the next working day.

  Your Rights Under the Baker Act

  • Least Restrictive Environment : Fla. Stat. § 394.459(2)(b) states that “It is further the policy of the state that the least restrictive appropriate available treatment be utilized based on the individual needs and best interests of the patient and consistent with optimum improvement of the patient’s condition.” 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 . . . .” Fla. Stat. § 394.463(1)(b)(1).
  • Right to Counsel : You have the right to an attorney who can represent you and advocate for your rights during the process. This is especially important when you believe the Baker Act has been misused.
  • Right to Hearing : You are entitled to a hearing to challenge the involuntary hospitalization. Your attorney is essential to gathering witnesses, helping you prepare for the hearing, and attacking the credibility of the psychiatrists that met with you for 7 minutes.
  • Right to Clinical Record : Fla. Stat. § 394.4615(11) states ”Patients shall have reasonable access to their clinical records, unless such access is determined by the patient’s physician to be harmful to the patient. If the patient’s right to inspect his or her clinical record is restricted by the facility, written notice of such restriction shall be given to the patient and the patient’s guardian, guardian advocate, attorney, and representative. In addition, the restriction shall be recorded in the clinical record, together with the reasons for it.” Baker Act receiving facilities will often claim that you cannot see your clinical record until after discharge. However, this is a false claim and counter-intuitive because how else would you gather evidence to bring before the judge, or even provide express and informed consent for treatment. Fla. Stat. § 394.467(4) states that “Any attorney representing the patient shall have access to the patient, witnesses, and records relevant to the presentation of the patient’s case and shall represent the interests of the patient.”
  • Right to Rights : Baker Act receiving facilities are required to provide you with a copy of a written description of your rights at the time of admission . See Florida Administrative Code 65E-5.140(1). We often see Baker Act receiving facilities sign a CF-MH 3103, Rights of Persons in Mental Health Facilities and Programs, without actually providing a copy to the patient.
  • Right toHabeas Corpus : Baker Act receiving facilities are required to provide you with written notice of the right to petition for a writ of habeas corpus . Fla. Stat. § 394.459(8)(a); Florida Administrative Code 65E-5.220(1).
  • Right to Treatment : While hospitalized, you have the right to receive appropriate treatment.
  • Right to Individual Dignity : While hospitalized, you have the right to individual dignity at all times and upon all occasions.
  • Right to Vote : While hospitalized, you have the right to vote.
  • Right to Communicate : Fla. Stat. § 394.459(5)(c) states that “Each facility must permit immediate access to any patient, subject to the patient’s right to deny or withdraw consent at any time, by the patient’s family members, guardian, guardian advocate, representative, Florida statewide or local advocacy council, or attorney, unless such access would be detrimental to the patient.” Fla. Stat. § 394.459(5)(b) states that “Each patient admitted to a facility under the provisions of this part shall be allowed to receive, send, and mail sealed, unopened correspondence; and no patient’s incoming or outgoing correspondence shall be opened, delayed, held, or censored by the facility unless there is reason to believe that it contains items or substances which may be harmful to the patient or others, in which case the administrator may direct reasonable examination of such mail and may regulate the disposition of such items or substances.”
  • Right to Express and Informed Consent : You have the right to express and informed consent for admission or treatment. Fla. Stat. § 394.459(3)(a)1; Florida Administrative Code 65E-5.170(2)(a). This requires the reason for admission or treatment; the proposed treatment; the purpose of the treatment to be provided; the common risks, benefits, and side effects thereof; the specific dosage range for the medication, when applicable; alternative treatment modalities; the approximate length of care; the potential effects of stopping treatment; how treatment will be monitored; and that any consent given for treatment may be revoked orally or in writing before or during the treatment period by the patient or by a person who is legally authorized to make health care decisions on behalf of the patient. Fla. Stat. § 394.459(3)(a)2.

  Don’t Delay, Get Help Now!

  If you or a loved one is facing a Baker Act situation, don’t delay in seeking legal representation. Thoele Drach Attorneys & Counselors at Law can:

  • Work to Secure Immediate Release : We understand the urgency of these situations, the games played by Baker Act receiving facilities, and will take immediate action to get your loved one released if they have been wrongly Baker Acted.
  • Contact the Facility and File Petitions : We will handle all communication with the facility and file any necessary petitions with the court to advocate for your rights.
  • Hold Facilities Accountable : Thoele Drach Attorneys & Counselors at Law is a leading law firm in Florida when it comes to holding Baker Act receiving facilities accountable for violating patient rights. We have a successful track record of recovering hundreds of thousands of dollars for clients who have been wronged.

  Beware of Hidden Fees

  • Beware of Lawyers Charging Fees for Petitions : There is no filing fee for a “Petition for Writ of Habeas Corpus.” If a lawyer tries to charge you for this, look elsewhere.
  • Transparent Flat Fee Structure : Our Baker Act cases are handled on a flat fee basis, so there are no surprise charges.
  • Potential Fee Recovery : In some cases, we may be able to recover the fees you paid us, as part of a lawsuit against the facility that violated your rights. If a lawyer claims that they cannot sue for Baker Act rights violations, speak with one who can, and who has.

  Seeking Help and Resources

  In addition to the legal support we provide, here are some resources that can help:

  • The Florida Department of Children and Families (https://www.myflfamilies.com/) : Get information and resources on mental health services.
  • The National Alliance on Mental Illness (NAMI) Florida (https://namiflorida.org/) : Connect with support groups and mental health advocacy organizations.

  Remember, you are not alone. If you have questions about the Baker Act or need legal support during this challenging time, Thoele Drach Attorneys & Counselors at Law is here to help. Contact us today for a confidential consultation – 904-807-1668.