Florida’s Baker Act – What Does it Entail and at What Time Do You Need a Criminal Defense Attorney?

February 10, 2022 Criminal Defense, Drug Charges

*This article is for informational use only. Pumphrey Law does not practice, nor advise, on any Baker Act matters, in Florida or elsewhere.*

Baker Act – General Goal & History

Florida’s Baker Act, also known as the Florida Mental Health Act, is a law encompassed in Chapter 394 of the Florida Statutes that provides comprehensive legal procedures when it comes to mental health treatment and examination.

The law was enacted in 1971 and named after Maxine Baker, a Miami State Representative who sponsored the Act and intended for it to

 Encourage voluntary commitments as opposed to involuntary, to separate the process of hospitalization from the process of legal incompetency, to increase community care of persons with mental illnesses, and to facilitate persons’ return to normal community life. Referring to the treatment of persons with mental illness before the passage of the bill, Representative Baker stated “in the name of mental health, we deprive [individuals] of their most precious possession – liberty.

Involuntary Examination

Most notably, Florida’s Baker Act allows for both adults and children to be committed for an involuntary 72-hour mental health examination if they refuse to take part in a voluntary exam. Section 394.463 states that a person may be taken to a receiving facility for involuntary examination if there is reason to believe that the person has a mental illness and because of his or her mental illness:

  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 for himself or herself whether an examination is necessary; and
  2. 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
  3. 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.

Unfortunately, most individuals are committed under prong (2), as they pose a serious threat to either themselves or those around them.

Who Can Initiate a Baker Act?

The law permits police, family members, and doctors to have an individual committed for an involuntary examination. Such examination may be initiated by any of the following means:

  1. A court may enter an ex parte order (an order that is granted when one of the involved parties are not present or represented) stating that a person appears to meet the criteria for an involuntary examination, and the findings for such order are based on sworn testimony, either written or oral. If less restrictive means are not available, such as a voluntary appearance for outpatient evaluation, a law enforcement officer may then take the person into custody and deliver them to the nearest receiving facility for involuntary examination
  2. A law enforcement officer may take a person who appears to meet the criteria for an involuntary examination into custody and deliver them to the nearest receiving facility for involuntary examination. The officer must then issue a written report detailing the circumstances under which the person was taken into custody.
  3. A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker may execute a certificate stating they examined the person within the last 48 hours, and they find the person meets the criteria for an involuntary examination and state the observations upon which that conclusion is based. If less restrictive means are not available, a law enforcement officer may then take the person into custody and deliver them to the nearest receiving facility for involuntary examination.

72 – Hour Examination Period

A patient must be examined by a physical or clinical psychologist without unnecessary delay and may not be held for examination longer than 72 hours. This period begins when the patient arrives at the hospital and ends when the attending physician documents that the patient has an emergency medical condition. Within the 72-hour examination period, one of the following actions will be taken based on the needs of the individual:

  1. The patient will be released. Unless they are charged with a crime, in which they will be returned to the custody of law enforcement
  2. The patient will be released for voluntary outpatient treatment
  3. The patient, unless charged with a crime, will be asked to give informed and express consent to a voluntary placement. If such consent is given, the patient will be admitted as a voluntary patient.
  4. A petition for involuntary placement will be filed by the facility in the circuit court if a longer period of mental health treatment is deemed necessary. If filed, an additional hearing must be held within 5 business days to determine if the petition should be granted.

Can I Be Involuntarily Held for Longer than 72 Hours?

 If you refuse voluntary treatment and are deemed to be a danger to yourself or others, a hearing will be conducted to determine if extended treatment is necessary. Under Section 394.4655, the court will look at the person’s treatment history and current behavior and decide whether the patient is in need of extended treatment. They will weigh the following:

  1. Whether it is likely that the person will benefit from the involuntary outpatient placement; and
  2. Whether all available, less restrictive alternatives that would offer an opportunity for improvement of the patient’s condition are inappropriate or unavailable.

This second prong is especially imperative, as the court employing a less restrictive alternative often leads to them denying the petition for extended treatment. Yet, the court will still look towards the facility’s opinions when it comes to your mental health, many of which you may not be in agreement with. If you are the subject of such a petition for involuntary outpatient treatment, you will be afforded a public defender.

However, your freedom is at risk, because if the court finds that you meet the criteria for involuntary outpatient placement, you may be held in such placement for up to 6 months. If this happens, the facility you are placed at can file another petition before the expiration of the 6-month period to continue your involuntary placement. This cycle can continue until disposition on the petition for continued involuntary outpatient placement. Therefore, it’s of the utmost importance that you hire an experienced criminal defense attorney who can show that you do not meet the requirements for extended treatment, rendering the hearing unnecessary. If the court does grant the petition, a knowledgeable attorney can file a writ of habeas corpus stating the proper ground for relief. If you would like to read more about writs of habeas corpus, you can do so here.

Other Rights Are on the Line

Furthermore, a filing of a Baker Act may also result in a risk protection order (RPO), which restricts firearm and ammunition possession by a person who is deemed to pose a danger to themselves or others. Under Section 790.401 of the Florida Statutes, a risk protection order must allege the respondent poses a significant danger of causing personal injury themselves or others by having a firearm or any ammunition in their custody or control and must be accompanied by an affidavit stating the specific statements, actions or facts that give rise to a reasonable fear of significant dangerous acts by the respondent. Specifically, the court will look to evidence that the respondent has been seriously mentally ill or has recurring mental health issues to determine if grounds for a risk protection order exist. If they do, you may be required to surrender your firearms and ammunition for up to one year. Retaining a skilled criminal defense attorney for your hearing for involuntary outpatient treatment is crucial, as you do not want to give the State any more evidence to not only take away your freedom but your right to own a firearm. If you would like to read more about risk protection orders and the law that created them, visit our blog post here.

Tallahassee Criminal Defense Attorney

If you or a loved one has been Baker Acted in Florida and are fearful you may be wrongfully placed in an involuntary outpatient placement, or have been placed in extended treatment you believe is unnecessary, call an experienced and knowledgeable Tallahassee criminal defense attorney. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience helping navigate various legal matters and will explore every applicable defense in your case. Contact Pumphrey Law Firm today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

Article written by Sarah Kamide


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