Finally, while fighting Baker Act custody of a loved one will never be a straightforward experience, having the right attorney in your corner can make all the difference in your family’s experience of this challenging situation.
In Florida, a person experiencing a mental health emergency can be taken into custody by law enforcement and transported to a psychiatric facility, where they can be held for up to 72 hours during an unnecessary psychiatric examination. This process is made possible by the Baker Act, a law introduced into Florida law in 1971 to provide emergency treatment for people with severe mental illness. While Baker Act interventions can be life-saving under the right circumstances, they are unfortunately misused by law enforcement officials who misapply the Act’s standards, or by unscrupulous facilities that seek to take advantage of vulnerable individuals. If a friend or family member finds themselves in this position, it is critical that you take steps to help them fight Baker Act detention as soon as possible.
This article briefly explains the legislative provisions governing Baker Act proceedings, and the immediate steps you need to take to challenge an illegal Baker Act hold.
What causes the Baker Act detention?
A Baker Act Detention – often referred to as a Baker Act Hold, or simply a ‘Baker Act’ – is a process that can be initiated in one of three ways:
1. By a law enforcement officer who reasonably believes that a person is exhibiting conduct that meets the criteria for an involuntary examination.
2. By a medical professional who has examined a person within the last 48 hours and issued a certificate stating that they believe the person meets the criteria for an involuntary examination. or
3. Upon a request for non-compulsory examination brought by a court, a concerned family member or other interested party, who demonstrates that their loved one meets the criteria of the Act.
When families have to fight Baker Act detention on behalf of a loved one, it’s often because law enforcement or medical professionals have misapplied the standard. For example, law enforcement may mistake the behavior of a neuro-removal person for a mental health emergency, or a doctor may mistake a person’s legitimate refusal of medical treatment as a symptom of psychosis.
What are the criteria for the Baker Act?
A Baker Act proceeding can only be initiated when it is clear that a person is experiencing a mental health emergency and they meet the criteria set forth in the act. Essentially, these standards stipulate that a person may be subject to the Baker Act only when there is good reason to believe that they have a mental illness (as defined in the Act), and that illness results in:
• They are either unable to admit that they need a psychological examination, or refuse such an examination altogether. And
• If they do not receive intervention, neglect is likely to the extent that it poses a real risk of harm to their well-being, and this risk cannot be reduced with family care support. Alternatively, based on their recent behavior, they are likely to cause serious harm to themselves or others.
As these standards clarify, the Baker Act sets a high bar for noncompulsory examination. Even if a person has mental health issues, they don’t meet the act’s strict criteria.
Baker Act’s Key Steps to Fight Detention
Taking steps to fight your loved one’s Baker Act detention as soon as possible is the best way you can help them through this difficult time. Although the Act specifies that a person must be released from a psychiatric facility (called a receiving facility in the Act) as soon as possible after the conclusion of their examination, and even then within 72 hours, this provision is often violated. Days of illegal confinement in a receiving facility can be traumatic for anyone, and especially for those who may have underlying mental health issues. It is important to take action as soon as possible to reduce the likelihood of this happening. In many of the steps outlined below, the assistance of an experienced Baker Act attorney will be critical.
Demanding the release of a loved one
The first step you need to take is to locate the receiving facility where your loved one has been taken. While incarcerated, your loved one has several important procedural rights – such as the right to contact loved ones, and the right to speak with an attorney. Once you have established your loved one’s location, you should demand their immediate release.
Often, this demand will be more effective if it is made by a lawyer. A non-litigation facility may be willing to release a person under the Baker Act without issue if they realize their family has hired an attorney to fight their loved one’s Baker Act detention. Reputable Baker Act attorneys have good insight into how receiving facilities operate, and may have dealt with facility personnel on numerous occasions. This strategic experience will likely be very useful to you as you try to navigate the release process.
Opposing long-term involuntary placement
The only circumstances in which a person may be held for longer than 72 hours are when the receiving facility has filed a petition requesting a court order that they undergo long-term involuntary psychiatric treatment, or where the patient has given informed consent to remain on a voluntary admission basis. This is called an ‘Application for Involuntary Placement’, and is usually filed within the 72-hour hold period.
If your loved one has received notice that the facility is applying for their involuntary placement, it is critical that you hire an experienced Baker Act attorney to defend the action. A good attorney will have an in-depth understanding of the legal requirements and process involved in involuntary placement hearings, and will help you build a case to fight Baker Act custody of your loved one through persuasive legal arguments and a strong body of evidence to oppose the petition. They will also represent your loved one in court, and will be an invaluable source of moral support for you and your family in what can often be a difficult and unfamiliar legal process.
Filing a writ of habeas corpus
Finally, in cases where the receiving facility is refusing to release your loved one, but is not even taking steps to petition for long-term treatment, you may need to initiate legal action to have the courts intervene. Your lawyer can prepare a special application known as a writ Habeas corpusin which the receiving facility is asked to provide legal justification to the court for the continued incarceration of the loved one. Your attorney can use this process to argue that your loved one’s continued detention is illegal and unjustified, or that the receiving facility violated their due process rights. If the court is not satisfied with the justifications for this facility, it will order the immediate release of your loved one.
Avoiding future Baker Act detention
For most families, successfully fighting a loved one’s Baker Act detention and obtaining their release is hardly the end of the road. Although your loved one’s circumstances may not justify long-term incarceration, it may still be important that they access treatment to reduce their risk of future Baker Act violations. If your loved one is struggling with mental health or behavioral issues, your attorney will be able to guide you to relevant professionals to help them on their road to recovery.
Getting reliable legal help is key
Finding out that a loved one has been diagnosed with Baker’s Act can be an incredibly distressing experience. When you don’t know where to turn for help, an experienced Baker Act attorney should be your first port of call. However, with a compassionate, skilled attorney representing you, the burden on your shoulders will be significantly lighter. A lawyer will not only provide legal advice and representation in court, but also serve as an invaluable source of emotional support. Finally, while fighting Baker Act custody of a loved one will never be a straightforward experience, having the right attorney in your corner can make all the difference in your family’s experience of this challenging situation.
