Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

Baker Act Basics

Jan Rebstock, RHIT, LHRM, CPHRM
Cheryl Smith, LCSW Shands UF
5-3-1 Background their behalf. Patients found to have the capacity to consent are encouraged to seek psychiatric examination and treatment on a voluntary basis. The law set time limits to perform an involuntary examination (72 hours) and to transfer a patient to a designated receiving facility (12 hours) if taken to a hospital without the capability of performing an involuntary exam. Baker Act patients can also not be incarcerated for their mental illness unless they have committed a crime.  The Florida Mental Health Act (Baker Act) is intended to enable a prompt return to community life using available   In 1971 the Florida legislature made the first revisions in 97 years to the Mental Health Laws in Florida (Florida Statues, Chapter 394 and 65E-5 Florida Administrative Code).  These revisions were comprehensive and dramatic with the intent to bring about a prohibition of indiscriminant admission of persons to state institutions and “retention without cause” as had been the practice for many years. Prior to these revisions, the only requirement for commitment to a state hospital was for three people to sign a petition, present it to the county judge for approval, and the sheriff would pick up the individual and transport them to the state hospital. Once hospitalized, there were no discharge plans, and it was common for individuals to languish in State facilities for years.   The 1971 Mental Health Law or Baker Act was named for its sponsor, State Representative Maxine Baker of Miami. It established criteria for involuntary placement and afforded legal representation for patients.   The law also established a patient bill of rights which includes the right to be treated with dignity, participate in their treatment and discharge plan; communicate with persons outside the facility by phone, mail or visitation; send and receive mail, to use their own possessions as long as they are deemed safe; vote while hospitalized, file a petition with the court if they question the legality of the involuntary examination and select or have a representative appointed on outpatient services whenever appropriate.   In 1996, additional reforms to the law were made increasing protection to individuals voluntarily seeking treatment, the appointment of trained guardian advocates as decision makers for those lacking the capacity to consent to make healthcare decisions. Standards for receiving facilities were more clearly specified and an application process, as well as audits and compliance standards were strengthened.   The most recent revisions in 2004 were significant in providing for court-ordered Involuntary Outpatient Treatment.  The intention of this addition to the Baker Act was to encourage treatment compliance in community-based services.   The Baker Act was considered around the country as landmark legislation at the time of its enactment. As perspectives of the disorders, new treatment development, and federal and state budget shifts occur, the intent of Florida’s Mental Health Law is to continually make revisions reflective of the these trends, as well as to protect the rights of persons with mental illness.     Purpose of the Baker Act   The purpose of the Baker Act is to assure appropriate, responsive care for persons with acute mental illness. It cannot be used to justify the examination and treatment of non-psychiatric medical conditions, to conduct diagnostic procedures or laboratory testing without the express and informed consent of the person or a legally authorized substitute decision-maker (Use Health Care Surrogate/HCS or Health Care Proxy HCP, Chapter 765 Part II, and Part IV respectively.) The Baker Act can only be used for initiating psychiatric examination and treatment.   Mental illness is legally defined by the State of Florida as:   An impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with a person’s ability to meet the ordinary demands of living, regardless of etiology.  It does not include retardation or developmental disability as defined in Chapter 393, intoxication or conditions manifested only by antisocial behavior or substance abuse impairment.   The Baker Act covers both voluntary and involuntary psychiatric examination of adults and minors (ages 17 and under). An individual, after “conscientious explanation and disclosure of the purpose of the examination,” may request voluntary admission for examination. The present law in Florida does not allow minors to consent to examination, nor for their parents to initially consent for them unless a hearing is held with a judge or magistrate who determines the ability of the minor to be voluntary.  Only one other state has the requirement for a voluntariness hearing for minors. Until a change is made in the statutes, this requirement will remain.   Criteria for Involuntary Examination (Chapter 394.463(1), F.A.C.)   Criteria for initiating an involuntary examination:  

• The person has refused voluntary examination or is unable to determine whether examination is necessary; and

• Without care of treatment, the person is likely to suffer from neglect resulting in real and present threat of substantial harm that cannot be avoided through the help of others; or

• There is substantial likelihood that without care or treatment the person will cause serious bodily harm to self or others in the near future, as evidenced by recent behavior.

  It is important to know that an involuntary examination cannot be lifted, rescinded, overturned or abrogated. Once an involuntary examination has been initiated, the exam must be completed to determine whether or not the patient meets involuntary placement criteria.   Professionals who can initiate an involuntary exam:  

• Law enforcement officer

• Judge who issues an ex parte order based upon sworn testimony by one or more interested parties

• Mental health professional, which includes a physician , clinical psychologist, psychiatric nurse which includes an ARNP with psychiatry certification, a clinical social worker or a licensed mental health counselor.

  Physician Assistants, ARNPs, and residents in training cannot initiate an involuntary examination under the current law.   The health professional initiating an involuntary examination is required to complete a mandatory 3052B form which requires documentation of their examination and observations to substantiate the need for an involuntary examination.   It may include collateral information, but cannot be based solely on collateral information.   Who is qualified to perform the involuntary examination?   1. Any licensed physician with experience in the diagnosis and treatment of mental and nervous disorders (such as a psychiatrist)   2. Clinical Psychologist     Mandatory Components of an involuntary examination:

• A thorough review of any observations of the person’s recent behavior;

• A review of the document initiating the involuntary examination and transportation form

• A brief psychiatric history; and

• A face to face examination of the person in a timely manner to determine if the person meets criteria for release.

  It is the intent of the law to perform involuntary examinations without unnecessary delay and while there is a time frame of 72 hours in which to do them, they are frequently performed in less time.   If after the exam, it is determined that the patient does not meet criteria for involuntary inpatient or outpatient placement, the patient can be released.   Other Considerations:   If a patient who has an emergency medical condition in addition to his/her emergency psychiatric condition, the 72 hour time frame for completing the exam and 12 hour time frame for transfer to a designated receiving facility is suspended until the emergency medical condition is stabilized. Once the treating physician documents in the clinical record that the patient’s emergency medical condition is stabilized or no longer exists, the clock starts ticking again.   Hospital patients who have been “Baker Acted” are considered to have an emergency psychiatric condition and requirements under the federal Emergency Medical Treatment and Active Labor Act (EMTALA) apply. This means that Baker Act patients seen in the ED must receive a medical screening exam, stabilizing treatment within the capability of the facility and appropriately transferred as indicated to a psychiatric receiving facility. This also includes completion of the routine transfer certification form which should be sent to the receiving facility along with any other pertinent patient medical information. It is important  to know that not all receiving facilities have the same capabilities for treating a patient’s medical conditions and  facilities not licensed as a hospital (such as crisis stabilization units )are not required to comply with EMTALA   Contrary to popular belief, Baker Acts initiated by a police officers do not require them to take the patient to a hospital ED to be “medically cleared”. If the patient is not visibly hurt or otherwise doesn’t appear to need medical attention, the police officer can take the patient directly to the receiving facility.   However, if the police officer presents with the patient to the ED, the hospital must provide a medical screening exam, treat and/or stabilize the patient within their capability and capacity and appropriately transfer the patient to a receiving facility. The Florida Mental Health Law is available on-line and can be accessed at: http://www.dcf.state.fl.us/mentalhealth   The appendices which contain frequently asked questions and responses are very helpful. The Florida Department of Children and Families which has oversight for mental health services, offers training in even numbered years and there is online training available through the Louis de la Parte, University of South Florida website providing Continuing Education Units.  This interactive training provides an excellent opportunity to increase knowledge and expertise.   References: Baker Act Handbook and User Reference Guide, 2006. State of Florida Department of Children & Families. Catalyst: Newsletter of the Treatment Advocacy Center, 3300 N. Fairfax Drive, Arlington, VA 22201