Chapter 394 of the Florida Statutes is known as “The Baker Act,” named in honor of its sponsor, Representative Maxine Baker. Enacted in 1971, the Act governs mental health services, including voluntary admissions, involuntary examination, and involuntary placement, with the intention to strengthen the legal and civil rights of patients of state mental institutions.
Under the Baker Act, a person may be legally confined involuntarily if he or she appears to meet the criteria for involuntary inpatient or outpatient placement. In some cases, an individual who is being confined may not actually be a threat to him or herself or any other party, but the receiving facility he or she was taken to will still refuse to release him or her.
Baker Act Attorney in West Palm Beach, FL
Understanding how the Baker Act might affect a pending criminal case is imperative. Having a criminal defendant institutionalized could affect his or her access to important documentation or resources concerning a pending case. To learn more about the Baker Act, contact Meltzer & Bell, P.A.
Meltzer & Bell, P.A. defends clients in communities throughout Broward County, Palm Beach County, and Miami-Dade County, such as Delray Beach, Jupiter, Palm Beach Gardens, Royal Palm Beach, Boca Raton, and many other surrounding areas.
Call (561) 283-3259 right now to have our lawyers review your case and help you understand all of your legal options during a free initial consultation.
Overview of Baker Act in Palm Beach County
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Voluntary vs. Involuntary Baker Act Examinations in Florida
Florida Statute § 394.463(1) establishes that an individual can be taken to a receiving facility—a facility is defined under Florida Statute § 394.455(16) as "any hospital, community facility, public or private facility, or receiving or treatment facility providing for the evaluation, diagnosis, care, treatment, training, or hospitalization of persons who appear to have or who have been diagnosed as having a mental illness or substance abuse impairment."
The phrase receiving facility is defined under Florida Statute § 394.455(39) as meaning "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 involuntary examination if there is reason to believe that he or she has a mental illness 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 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; 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.
Under Florida Statute § 394.463(2), there are three ways that an involuntary examination can be initiated:
- A court can enter an ex parte order stating that a person appears to meet the criteria for involuntary examination and specifying the findings on which that conclusion is based. The ex parte order needs to be based on written or oral sworn testimony that includes specific facts that support the findings. The order is valid only until the person is delivered to the facility or for the period specified in the order itself, whichever comes first. If no time limit is specified in the order, the order is valid for seven days after the date that the order was signed;
- A law enforcement officer can 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 within the designated receiving system for examination;
- A physician, clinical psychologist, psychiatric nurse, mental health counselor, marriage and family therapist, or clinical social worker can execute a certificate stating that he or she has examined a person within the preceding 48 hours and finds that the person appears to meet the criteria for involuntary examination and stating the observations upon which that conclusion is based.
Florida Statute § 394.4625(1)(a) states that a facility can receive for observation, diagnosis, or treatment any person 18 years of age or older making application by express and informed consent for admission or any person age 17 or under for whom such application is made by his or her guardian. A facility cannot, however, admit a person as a voluntary patient under Florida Statute § 394.4625(1)(d) who has been adjudicated incapacitated, unless the condition of incapacity has been judicially removed.
Florida Statute § 394.4625(1)(f) also establishes that an admitting physician needs to document in the patient’s clinical record that the patient was able to give express and informed consent for admission within 24 hours after admission of a voluntary patient. If the patient is not able to give express and informed consent for admission, he or she must be discharged or transferred to involuntary status.
A facility must discharge a voluntary patient under Florida Statute § 394.4625(2)(a):
- Who has sufficiently improved so that retention in the facility is no longer desirable. A patient may also be discharged to the care of a community facility; or
- Who revokes consent to admission or requests discharge. A voluntary patient or a relative, friend, or attorney of the patient can request discharge either orally or in writing at any time following admission to the facility, and the patient must be discharged within 24 hours of the request unless the request is rescinded or the patient is transferred to involuntary status. The 24-hour time period can be extended by a treatment facility when necessary for adequate discharge planning, but cannot exceed three days exclusive of weekends and holidays. Requests for discharge must be immediately entered in the patient’s clinical record.
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Rights of West Palm Beach Patients Under The Baker Act
The rights of patients are established under Florida Statute § 394.459. The statute lists the following dozen areas relating to such rights:
- Right to individual dignity, Florida Statute § 394.459(1) — The individual dignity of a patient must be respected at all times and upon all occasions, including any occasion when the patient is taken into custody, held, or transported. Persons who have a mental illness but are not charged with a criminal offense cannot be detained or incarcerated. A person who is receiving treatment for mental illness cannot be deprived of any constitutional rights, but such person's rights may be limited to the same extent the rights of any incapacitated person are limited by law if such a person is adjudicated incapacitated;
- Right to treatment, Florida Statute § 394.459(2) — A person cannot be denied treatment for mental illness and services cannot be delayed at a receiving or treatment facility because of inability to pay. Each patient must have and receive an individualized treatment plan in writing which the patient has had an opportunity to assist in preparing and to review prior to its implementation Not more than five days after admission to a facility;
- Right to express and informed patient consent, Florida Statute § 394.459(3) — A patient entering treatment must be asked to give express and informed consent for admission or treatment. If the patient has been adjudicated incapacitated or found to be incompetent to consent to treatment, express and informed consent to treatment shall be sought instead from the patient’s guardian or guardian advocate. If the patient is a minor, express and informed consent for admission or treatment shall also be requested from the patient’s guardian.
- Before giving express and informed consent, the following information must be provided and explained in plain language to the patient, patient’s guardian, patient’s guardian advocate, or both the patient and the guardian: 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;
- Quality of treatment, Florida Statute § 394.459(4) — Each patient must receive services administered skillfully, safely, and humanely with full respect for the patient’s dignity and personal integrity. A facility cannot use seclusion or restraint for punishment, to compensate for inadequate staffing, or for the convenience of staff;
- Communication, abuse reporting, and visits, Florida Statute § 394.459(5) — Each person receiving services in a facility providing mental health services has the right to communicate freely and privately with persons outside the facility unless it is determined that such communication is likely to be harmful to the person or others.
- Each facility must make available as soon as reasonably possible to persons receiving services a telephone that allows for free local calls and access to a long-distance service.
- Each patient admitted to a facility must also 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.
- Each facility needs to establish reasonable rules governing visitors, visiting hours, and the use of telephones by patients in the least restrictive possible manner;
- Care and custody of personal effects of patients, Florida Statute § 394.459(6) — A patient’s right to the possession of his or her clothing and personal effects must be respected;
- Voting in public elections, Florida Statute § 394.459(7) — A patient who is eligible to vote according to the laws of the state has the right to vote in the primary and general elections;
- Habeas corpus, Florida Statute § 394.459(8) — At any time, and without notice, a person held in a receiving or treatment facility, or a relative, friend, guardian, guardian advocate, representative, or attorney, or the department, on behalf of such person, may petition for a writ of habeas corpus to question the cause and legality of such detention and request that the court order a return to the writ in accordance with Chapter 79 of the Florida Statutes;
- Violations, Florida Statute § 394.459(9) — The department must report to the Agency for Health Care Administration any violation of the rights or privileges of patients, or of any procedures provided under this part, by any facility or professional licensed or regulated by the agency;
- Liability for violations, Florida Statute § 394.459(10) — Any person who violates or abuses any rights or privileges of patients provided by this part is liable for damages as determined by law, but any person who acts in good faith in compliance with the provisions of this part is immune from civil or criminal liability for his or her actions in connection with the admission, diagnosis, treatment, or discharge of a patient to or from a facility (although this section does not relieve any person from liability if such person commits negligence);
- Right to participate in treatment and discharge planning, Florida Statute § 394.459(11) — The patient must have the opportunity to participate in treatment and discharge planning and shall be notified in writing of his or her right, upon discharge from the facility, to seek treatment from the professional or agency of the patient’s choice; and
- Posting of notice of rights of patients, Florida Statute § 394.459(12) — Each facility must post a notice listing and describing, in the language and terminology that the persons to whom the notice is addressed can understand, the rights provided in this section.
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Baker Act Resources in Florida
Mental Health | Clerk & Comptroller, Palm Beach County — Mental health cases in Broward County are handled in the Unified Family Court. Visit this website to learn more about incapacity as well as involuntary examination and involuntary placement under the Baker Act. You can also find information about restoration to capacity, the Adult Protective Services Act, and Emergency Adult Protective Services.
Palm Beach Unified Family Court
205 N. Dixie Hwy.
West Palm Beach, FL 33401
Baker Act User Reference Guide | Florida Department of Children and Families — View the full text of the 2014 Baker Act User Reference Guide prepared by the Department of Mental Health Law & Policy. The guide includes sections on voluntary admissions, express, and informed consent, and consent for admission and treatment for minors. You can also learn more about licensed long-term care facilities, orders for emergency treatment including restraints and seclusion, and qualifications of professionals & others to perform baker act related functions.
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Find a Baker Act Defense Lawyer in West Palm Beach, FL
To learn more about the Baker Act and how a family member’s placement in a mental health facility might affect his or her criminal case, contact the experienced criminal defense attorneys at Meltzer & Bell, P.A..
West Palm Beach criminal defense attorneys Lawrence Meltzer and Steven Bell represent individuals in Greenacres, Lake Worth, Riviera Beach, Wellington, Boynton Beach, and many other surrounding areas of Palm Beach County, Broward County, and Miami-Dade County.
You can have our lawyers provide an honest and thorough evaluation of your case as soon as you call (561) 283-3259 or complete an online form to schedule a free, confidential consultation.
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