Handling a Family Member's Baker Act in Florida
When a loved one is Baker Acted, things move very quickly. It is important to know what steps you can take to ensure that your family member or friend is release as quickly as possible and does not relinquish his or her rights while the civil commitment is ongoing.
Gather InformationBefore you contact an attorney to secure the patient's rights, make sure you have all necessary information. This includes:
1. The patient's full name;
2. The name and address of the Baker Act Receiving Facility or hospital where he or she is being held;
3. The patient's access code (most places will require that someone who calls or wishes to speak to the patient must have a code; otherwise, the facility is required by law to refuse to acknowledge whether or not the individual is at the facility);
4. The patient's date of birth and home address;
5. Whether or not the patient has signed any forms, including the voluntary admission form and the form granting or denying the use of psychotropic medication;
6. The specific reasons for and circumstances surrounding the Baker Act: where it happened, why, whether the patient was transported by police or taken to a hospital by ambulance, etc.;
7. Whether a petition for further involuntary treatment has been filed by the facility (or threatened by one of the clinical staff);
8. Exactly when (down to the hour, if possible) the Baker Act happened. This last one is among the most important, because it lets the attorney know the time frame under which he or she is working. Under s. 394.463, Florida Statutes, an involuntary examination under the Baker Act may not last more than 72 hours.
These are the pieces of information that a lawyer would need to start working on the case, so it makes things much faster if you can gather them before you call or email.
Know the Patient's RightsWhen a person's freedom is taken by way of a civil commitment (Baker Act), certain constitutional rights are implicated. Essentially, the fourth amendment (right against unreasonable searches and seizures) is the foremost constitutional right at play, but the patient is also entitled to first amendment rights to communicate and receive communication and due process rights when it comes to the amount of time he or she may be held and the process that must be followed if the facility decides to file a petition for further involuntary placement.
The patient also has statutory rights under Florida law, and these are listed in s. 394.459, Florida Statutes. Among them are:
1. The right to dignity;
2. The right to appropriate mental and physical health care;
3. Express and informed consent (this is VERY important, especially when it comes to the voluntary admission form that the facility is likely to ask the patient to sign before the expiration of the 72-hour examination period);
4. The right to communicate with family, friends, and an attorney (this can only be restricted upon good clinical reason noted by the psychiatrist or doctor in the clinical record, and attorney communications can only be limited when it poses an immediate risk to the patient);
5. The right to care and custody of person possessions or, alternatively, the right to receive one's items back once the commitment is over (in most cases, a person's clothes and personal effects will be removed and placed in a safe location until release);
5. The right to petition the court for release (called a 'habeas') or to address violations of rights during the stay;
6. The right to sue the facility if it intentionally or recklessly violates the patient's rights.
When you know the patient's rights, you know how they can be protected or whether they have already been violated.
Contact an AttorneyAs mentioned in the summary, Baker Acts move quickly. The facility only has 72 hours (or the first business day after a holiday or weekend, if the end of the Baker Act occurs on one of these days) to make one of three determinations:
1. Release the patient;
2. Ask the patient to sign a voluntary admission form; or
3. File a petition with the circuit court asking for further involuntary treatment of the patient.
If a facility decides to take option 3, then it will have another five business days to hold the patient before a hearing must be held to determine whether the petition for further treatment will be granted. (Many facilities will file this petition just to buy a little bit more time, in fact.) If a petition is going to be filed, an attorney needs to know as soon as possible in order to prepare. That's why it's so important to gather information and call someone who can protect the patient's rights.
Most facilities hold their hearings on the same day/time every week. Keep in mind, however, that if the patient is not going to hire a private attorney (or the patient's family is not going to hire one for the patient), he or she will be represented by a public defender because the hearing is considered to be an adversarial process. They are, after all, asking the court to remove the patient's fundamental right of freedom!
Often, an attorney will be able to pressure the facility into dropping a petition prior to the hearing date by pointing out that the patient does not meet the strict criteria for involuntary placement under Florida law. Either way, the attorney needs to know as quickly as possible what the situation is in order to start working on the release.
Ensure Continuity of CareSome individuals who are Baker Acted really do need mental health care. They just don't need to be incarcerated against their will to get it. To that end, it is very helpful (and will encourage the facility to release the patient more quickly) if you can get appointments for a counselor, psychiatrist, psychologist, or licensed clinical social worker so that the patient has a continuity of care plan after his or her release. It sometimes take a while to get these appointments, so the sooner you start calling, the better.