The Baker Act
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The Florida Legislature passed Florida Mental Health Act in 1971, which quickly became known as the “Baker Act.” Under Chapter 394, of the Florida Statutes, the Baker Act provides comprehensive mental health treatment reform while protecting the due process and other established rights of a person accused of having a mental illness.
In Section 394.455(22), F.S., the Baker Act sets out the process for a person to be involuntarily examined to determine whether a person qualifies for involuntary services. Involuntary services might include court-ordered outpatient services or inpatient placement for mental health treatment.
Under Section 394.463(1), F.S., the process begins when a person is taken to a receiving facility for an involuntary examination if there is reason to believe that the person has a mental illness and as a result:
- refuses voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or
- is unable to determine for himself or herself whether the examination is necessary; and
- one of the following conditions apply:
- a substantial likelihood exists 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; or
- without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself when 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.
Ways of Initiating an Involuntary Examination
Under Section 394.463(2)(a)1., F.S., Florida law provides for three ways of initiating an involuntary examination. First, a court may enter an ex parte order providing that a person appears to meet the criteria for involuntary examination and setting out findings on which that conclusion is based.
Secondly, a law enforcement officer might 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 an appropriate, or the nearest, facility for examination. When the Baker Act is initiated by a law enforcement officer, the officer must execute a written report explaining the circumstances in which the person was taken into custody, which becomes part of the patient’s clinical record.
Third, a designated medical professional, including a physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker, is permitted to execute a professional certificate explaining that the person was examined within the preceding 48 hours and found to meet the criteria for involuntary examination and explaining the observations upon which that conclusion is based as explained in Section 394.463(2)(a)3., F.S.
Read more about Marchman Act proceedings in Hillsborough County, FL.
The 72 Hour (Three Day) Rule
Florida’s Baker Act provides that a person cannot be held in a receiving facility for involuntary examination for more than 72 hours (or three days).
Within that 72-hour examination period, or, if the 72 hours ends on a weekend or holiday, no later than the next working day, one of the following must occur under Section 394.467(4) and (6), F.S.:
- The patient must be released, unless there is a jail hold, in which case law enforcement will resume custody;
- The patient must be released into voluntary outpatient treatment;
- The patient must be asked to give consent to be placed as a voluntary patient if the placement is recommended;
- A petition for involuntary placement must be filed in the circuit court for outpatient or inpatient treatment.
Petitions for Involuntary Placement
When a petition for involuntary placement is filed in the circuit court for outpatient or inpatient treatment, the patient is entitled to a hearing within five (5) working days after a petition for involuntary placement is filed.
The petitioner for involuntary placement must show, by clear and convincing evidence all available less restrictive treatment alternatives are inappropriate and that:
- The patient is mentally ill and because of the illness has refused voluntary placement for treatment or is unable to determine the need for placement; and
- The patient is manifestly incapable of surviving alone or with the help of willing and responsible family and friends, and without treatment is likely to suffer neglect to such an extent that it poses a real and present threat of substantial harm to the patient’s well-being; or
- A substantial likelihood exists that in the near future the patient will inflict serious bodily harm on himself or herself or another person.
A patient is entitled to representation at the hearing for involuntary inpatient placement.
Definitions in Florida’s Baker Act Statute
The term “mental illness” is defined in Section 394.455(28), F.S., to mean 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 the person’s ability to meet the ordinary demands of living.
For purposes of Part I of ch. 394, F.S., the term does not include a developmental disability as defined in ch. 393, F.S., intoxication, or conditions manifested only by antisocial behavior or substance abuse.
Under Section 394.455(39), F.S., the term “receiving facility” is defined as a public or private facility or hospital designated by the department to receive and hold or refer, as appropriate, involuntary patients under emergency conditions for mental health or substance abuse evaluation and to provide treatment or transportation to the appropriate service provider.
For purposes of Florida’s Baker Act, the term “receiving facility” does not include a county jail.
History of the Baker Act – Visit the My Florida Families website to find an article explaining the history of Florida’s Baker Act, as well as its development and intent.
This article was last updated on Friday, October 1, 2021.