Who is required to initiate an involuntary examination if it appears the individual meets criteria?

The Florida Mental Health Act, more commonly known as the Baker Act, was passed to allow for the creation of mental health programs designed to “reduce the occurrence, severity, duration, and disabling aspects of mental, emotional, and behavioral disorders.” Section 394.453, Florida Statutes.

The Baker Act contains a variety of provisions ranging from screening to appointment of legal guardians. However, the Baker Act is most commonly known for the involuntary evaluation and confinement provisions. Being involuntarily confined for a mental health exam in Florida is commonly called being “Baker Acted.”

The rights of a Baker Act patient are spelled out in Section 394.459, Florida Statutes. They include receiving a physical exam within 24 hours of arrival at the facility (sect. 394.459 (2) (c), Fla. Stats.); requesting a writ of habeas corpus in accordance with Chapter 79, Florida Statutes (Sect. 394.459 (8). Fla. Stats.).

The process for an involuntary evaluation

Many people have heard a reference to someone being “Baker Acted.”  Being Baker Acted essentially means that a person has exhibited some extreme behavior that insinuates a mental illness, and without care or treatment, may result in harm to themselves or to others.

Originally the act allowed this involuntary confinement and evaluation only when the individual posed a threat to himself/herself or to others. Recent amendments have broadened these grounds somewhat, but this is still the standard that most mental health facilities follow.

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

See: Section 394.463 (2) (a) (1)-(3), Florida Statutes.

When a person is the subject of an involuntary examination, he/she can be held in a facility for a maximum of 72 hours. During this period of time physicians and counselors will examine and interview the patient to determine his/her mental state and the type and duration of further treatment that may be needed, including further involuntary confinement. This does not mean that if a patient is examined and determined to be releasable earlier, that the patient may still be retained for 72 hours.

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

See: Section 394. 463 (2) (i) (1)-(4), Florida Statutes.

How to get a client released

The facility isn’t the only entity with the ability to get the court system involved. A patient or the patient’s guardian advocate can file a petition for a writ of habeas corpus requesting a hearing regarding release from involuntary confinement. Forms for this are usually made available to patients at the facility. Otherwise, an attorney can prepare and file a petition for a writ of habeas corpus as needed.

Before filing a petition, legal counsel may be able to get involved during the 72-hour window and obtain a patient’s release prior to the facility petitioning the court system for permission to extend confinement. As stated earlier, the prevailing test is usually whether the person being held is a danger to himself/herself or to others.

In our experience, the mere presence of an attorney along with family members lets the facility know that there is a support system in place that will address the needs of the patient. 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.

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. Your clients should know that hiring an attorney is one of the best ways to indicate to the facility that they are serious about getting released.

As attorneys, it is vital to keep ahead of changing laws and legislation to support clients’ ever-changing needs. Staying aware of any changes to the law that may occur in the future, as well as current rising trends, can help you better understand how best to represent your clients.

The Baker Act was enacted by the Florida Legislature in 1972 to provide legal procedures for mental health examination and treatment. The Act prohibits the indiscriminate admission of persons to state institutions or the retention of persons without just cause.Named after former State Rep. 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

​Additional facts that the State has to prove in the hearing:

1. What is the mental illness that the person has been diagnosed?
2. Do they meet the Baker Act Criteria?
3. 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?)
4. What is their recommendation as to the length of time needed for stabilization in the facility?
5. Does another Doctor concur with their recommendation and diagnosis? And Who?
6. 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.)

Voluntary Admissions

Involuntary Examination

1. 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
2. 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

1. 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.
2. 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.
3. 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.)

Source: Baker Act Handbook and User Reference Guide 2014 State of Florida Department of Children & Families

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
• HIV/AIDS
• Business Losses
• Children’s Learning Ability
• Family Dysfunction

​Source: Marchman Act, The Florida Substance Abuse Impairment Act, State of Florida Department of Children & Families