Ultimately, although fighting a loved one’s Baker Act detention will never be a straightforward experience, having the right attorney in your corner can make the world of difference to 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 delivered to a psychiatric facility, where they can be held for up to 72 hours while undergoing an involuntary psychiatric examination. This process is made possible by the Baker Act, a statute that was introduced into Florida law in 1971 to facilitate the emergency treatment of those suffering with severe mental illness. Although Baker Act interventions can be life-saving when carried out in appropriate circumstances, they are unfortunately often misused by law enforcement officials who misapply the Act’s criteria, or by unscrupulous facilities which seek to take advantage of vulnerable individuals. If a friend or family member finds themselves in this position, it is crucial that you take steps to help them fight their Baker Act detention as soon as possible.
This article briefly explains the legislative provisions regulating Baker Act proceedings, and lists the immediate steps you need to take to challenge an unlawful Baker Act hold.
What Leads To A 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 displaying behaviors that meet the criteria for involuntary examination;
2. By a medical professional who has examined a person in the preceding 48 hours and issues a certificate stating that they believe the person meets the criteria for involuntary examination; or
3. By a court, following a petition for involuntary examination brought by a concerned family member or other interested party that demonstrates that their loved one meets the Act’s criteria.
When families have to fight Baker Act detentions on behalf of a loved one, it is often because of a misapplication of the criteria by law enforcement or medical professionals. For example, law enforcement may mistake a neuro-divergent person’s behavior for a mental health emergency, or a doctor may mistake a person’s legitimate refusal of medical treatment as a sign of psychosis.
What Are The Criteria For Baker Act Holds?
Baker Act holds can only be initiated when it is clear that a person is having a mental health emergency and that they meet the criteria set out in the Act. Essentially, these criteria stipulate that a person may only be subject to a Baker Act hold when there is good reason to believe that they have a mental illness (as defined in the Act), and that as a result of this illness:
•they are either unable to recognize that they require a psychiatric examination, or have refused such examination entirely; and
•if they do not receive an intervention, are likely to suffer neglect to such an extent that it poses a real risk of harm to their well-being, and this risk cannot be mitigated with the help of family care; alternatively, they are imminently likely to cause serious harm to themselves or others, based on their recent conduct.
As these criteria make clear, the Baker Act sets a high bar for involuntary examination. Even if a person has mental health issues, they may not meet the Act’s strict criteria.
Key Steps To Fighting A Baker Act Detention
Taking steps to fight your loved one’s Baker Act detention as soon as possible is the best way you can support them in this challenging time. Although the Act makes clear that a person should be released from the psychiatric facility (called a receiving facility in the Act) as soon as possible after their examination has concluded, and nevertheless within 72 hours, this provision is often violated. Days of unlawful confinement in a receiving facility can be traumatizing for any person, and especially for those who might have underlying mental health difficulties. It is critical 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 pivotal.
Demanding your loved one’s release
The first step you will need to take is to locate the receiving facility where your loved one has been taken. While in confinement, your loved one has several important procedural rights – such as the right to contact loved ones, and the right to speak with an attorney – that must be respected by the facility. 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 an attorney. A litigation-averse receiving facility may be willing to release a person subject to a Baker Act hold without further issue if it realizes that 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 the facility’s personnel on numerous occasions. This strategic experience will likely be very useful to you as you attempt to navigate the release process.
Opposing long-term involuntary placement
The only circumstances in which a person can be held for longer than 72 hours is when the receiving facility has filed a petition requesting the 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 a ‘petition for involuntary placement’, and it is usually filed within the 72-hour hold period.
If your loved one has received notice that the facility is petitioning for their involuntarily placement, it is crucial that you hire an experienced Baker Act attorney to defend the proceedings. A good attorney will have an in-depth understanding of the legal requirements and processes involved in involuntary placement hearings, and will help you build a case to fight your loved one’s continued Baker Act detention by preparing 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 to you and your family throughout what can often be a daunting 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 also not taking any steps to petition for their long-term treatment, you may need to institute legal proceedings seeking the intervention of the courts. Your attorney can prepare a special petition known as a writ of habeas corpus, in which the receiving facility is called to provide the court with legal justification for the continued confinement of your loved one. Your attorney may use this process to argue that your loved one’s continued detention is unlawful and invalid, or that their procedural rights have been violated by the receiving facility. If the court is unsatisfied with the facility’s justifications, it will order your loved one’s immediate release.
Avoiding future Baker Act detentions
For most families, successfully fighting their loved one’s Baker Act detention and securing their release is rarely the end of the road. Although long-term confinement may not be justified in your loved one’s circumstances, it may nevertheless be necessary to ensure they access treatment to reduce the risk of future Baker Act holds. If your loved one is struggling with their mental health or behavioral issues, your attorney will be able to guide you towards relevant professionals to help them on their road to recovery.
Obtaining Reliable Legal Support Is Key
Finding out that a loved one has been Baker Acted 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, skillful attorney representing you, the burden on your shoulders will be significantly lightened. An attorney will not only provide legal advice and representation in court, but will serve as an invaluable source of emotional support. Ultimately, although fighting a loved one’s Baker Act detention will never be a straightforward experience, having the right attorney in your corner can make the world of difference to your family’s experience of this challenging situation.
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