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The Baker Act Demystified
August 5, 2015
Beth Oberlander, LCSW
Learning Objectives
Participants will gain an understanding of the
following:
– The scope of the Baker Act
– Involuntary examination initiation and criteria
– Determining if an individual meets the criteria
– Parental consent, voluntary admissions, and
duty to warn
– What happens after an involuntary
examination is initiated
What does Baker Act actually mean?
• Baker Act is another name for the Florida Mental
Health Act, Chapter 394, Part I, F.S. It is intended
to protect the rights of all individuals examined or
treated for mental illness in Florida.
• It provides legal procedures for mental health
examination and treatment, including voluntary
admission, involuntary examination, involuntary
inpatient placement, and involuntary outpatient
placement.
• The Baker Act also regulates crisis stabilization
units (CSU’s) and short-term residential facilities.
Involuntary Examination
Initiation and Criteria
Initiation of Involuntary Examinations
When a person is “Baker Acted,” an involuntary
examination is initiated and the person is taken to a
receiving facility (hospital/CSU). There are three
ways to initiate an involuntary examination:
1. A circuit court may enter an ex parte order
stating that a person appears to meet criteria
based on sworn testimony. (2% of all IE per DCF 2013)
2. A law enforcement officer (LEO) shall take a
person who appears to meet criteria into
custody and deliver the person or have him or
her delivered to the nearest receiving facility.
(49%)
Initiation of involuntary examinations
3. A licensed psychiatrist, physician, clinical
psychologist, psychiatric nurse, clinical social
worker, mental health counselor, or marriage and
family therapist, as defined in FS 394.455, may
execute a Certificate of Professional Initiating
Involuntary Examination. (49%)
Licensed mental health professionals do not have a
statutory duty to initiate involuntary examinations,
but they may have responsibility under their code
of ethics.
Involuntary examination criteria
A person may be taken to a receiving facility for
involuntary examination if they meet ALL of the
following criteria:
1. There is reason to believe that the person has a
mental illness as defined in Section 394.455(18),
F.S. (excludes retardation or developmental
disabilities, intoxication, or conditions
manifested only by antisocial behavior or
substance abuse impairment).
Involuntary examination criteria
2. 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.*See definitions of expressed and
informed consent vs. incompetent to consent.**
Involuntary examination criteria
3. Without care or treatment, the person is likely
to suffer from neglect or refuse to care for
himself or herself; such neglect or refusal
poses a real and present threat of substantial
harm to his or her well-being; and it is not
apparent that such harm may be avoided
through the help of willing family members or
friends or the provision of other services; or
Involuntary examination criteria
3. (continued) 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.
Definitions of consent (re: criteria #2)
"Express and informed consent" means consent
voluntarily given in writing, by a competent person, after
sufficient explanation and disclosure of the subject
matter involved to enable the person to make a knowing
and willful decision without any element of force, fraud,
deceit, duress, or other form of constraint or coercion.
"Incompetent to consent to treatment" means that a
person's judgment is so affected by his or her mental
illness that the person lacks the capacity to make a wellreasoned, willful, and knowing decision concerning his or
her medical or mental health treatment.
All minors are considered "incompetent to consent" by
virtue of their age.
Key Statistics (DCF)
Over ten years (2002‐11), there were increases of
• 50% in involuntary exams (100,000 to 150,000)
• 46% in individuals examined
• 49% in adults examined
• 35% in children examined
In 2011, there were
• 150,000 involuntary exams
• 111,000 individuals examined
• 93,000 adults examined
• 18,000 children examined
But how do you know????
Determining if an individual meets
involuntary examination criteria
Neglect and self-care issues
Factors to consider:
• Refusal to take prescribed medications
• Refusal to eat or drink over a period of time
• Large amount of expired and unused food in the home
• Inability to sleep
• Placing oneself in imminently dangerous situations
• High risk behaviors
• Neglects household, property or personal hygiene–to
the point of putting self at risk
Lethality Assessment Model:
WHAT
•
•
•
•
Who does the person want to hurt?
How does the person intend to cause harm?
Access to method of harm?
Time frame to carry out threat?
Lethality Assessment Model
Who does the person intend to hurt?
• If he/she is suicidal, is he/she discussing future
events, i.e. next weekend?
• Are the threats directed at a vague group of
people, i.e. “everyone”?
• If the threats are directed at a specific
individual/group of people, does the person have
regular contact with them? If no, can the person
travel easily to their location? Do they live far
away?
Lethality Assessment Model
How does the person intend to cause harm?
• Has he/she thought of a specific plan, or is he/she
making vague statements?
• Is the intended method potentially lethal? Is it
unrealistic, i.e. “I’m going to hold my breath”?
Access
• Can the person easily gain access to the means to
carry out their plan? Do they have money,
transportation, etc.?
• For minors, are weapons readily available in their
home or neighborhood? How attentive is the
primary caregiver?
Lethality Assessment Model
Time Frame
• Does the plan include a time frame?
• Is it specific, i.e. tomorrow afternoon, or
vague, i.e. “one of these days”?
• Are there qualifiers in the threat regarding
when it will occur, i.e. “the next time he
makes me mad”?
Additional elements to assess
• ELDERLY ISSUES: wanders at night, leaves things
on stove unattended, unrealistic fears,
uncontrollable anxiety, confusion
• MOOD: feels hopeless or helpless, flat affect
• A person who expresses suicidal ideation but is
too depressed to put together a plan should be
strongly considered for involuntary examination.
• SUBSTANCE ABUSE: abuse of prescribed
medications, use of alcohol or illegal substances
while taking medications
Additional elements to assess
• PSYCHOSIS: auditory and visual
hallucinations, delusions, etc.; reports seeing
people who aren’t there, observed responding
to an unseen person, hears voices telling them
to harm self or others
• HARM: severe cutting that warrants medical
attention, recent suicidal gestures, head
banging to the point of bleeding and
unresponsive to prompts, previous suicide
attempts, physical aggression toward others,
previous CSU admissions due to HI/SI
Additional elements to assess
• MEDICATION ISSUES: noncompliant or recent
change in regimen, particularly for
antidepressants, antipsychotic meds, and mood
stabilizers
• BEHAVIORS: rapid speech, flight of ideas, no eye
contact, disconnected speech patterns,
constantly moves or paces, can’t concentrate,
mood changes quickly and frequently,
disorganized thoughts, disoriented to time or
place, inappropriate dress or nudity
Reasons to think twice
• Does the person seem to be making up the plan
while speaking to you?
• Is the person romantically involved with someone
currently at the CSU?
• Is the person manipulative in general?
• Does he/she have a pattern of making threats
when angry over minor issues and calming down
quickly?
• Please note that while people with personality
disorders can be very manipulative, they often
carry out their threats; do NOT dismiss them.
The bottom line
If the person is not sent to a
Crisis Stabilization Unit for an
involuntary examination, are you
confident that the person and
others will be safe?
So Now What?
Initiation of an Involuntary Examination
by a Licensed Mental Health Professional
The authorized professional may conduct a phone examination
if the professional is sure of the person’s true identity and
there is no conflict with the clinician’s professional standards.
MINORS
KEEP A COPY OF THIS FORM FOR THE CLIENT RECORD.
Transportation by law enforcement
• Once the certificate has been completed,
contact law enforcement to transport the
person to the nearest receiving facility; they are
required to do so by law.
• If a person is arrested for a felony and the
person meets involuntary examination criteria,
the person will first be processed in the same
manner as any other criminal suspect.
Transportation alternatives
• When a member of a mental health overlay
program or a mobile crisis response service, who
is also a professional authorized to initiate an
involuntary examination, evaluates a person and
determines that transportation to a receiving
facility is needed, the service may transport the
person to the facility.
• It is unwise to allow parents to transport minors,
because the child may jump out of the car, the
child may attack the parent, or the parent may
opt not to take the child to the receiving facility.
Parental consent, voluntary
admissions, and duty to warn
Parental consent and notification
• You do not need parent permission to initiate an
involuntary examination for a child or adolescent.
• Chapter 394.463 FS does not differentiate
between adults and minors, nor does it mention
parental consent.
• Senate Bill 954, approved by Governor Scott
5/15, requires school principals/designees to
immediately notify the parent of a public/charter
school student who is transported to a receiving
facility for involuntary examination.
Voluntary Admission of Minors
• Minors cannot be legally admitted on voluntary status
unless the minor’s legal guardian has applied for the
admission, the minor is in agreement, and a hearing has
been conducted prior to the admission.
• DCF has proposed legislative changes to eliminate the
requirement for a hearing, but the changes have not
been approved yet.
• Receiving facilities sometimes admit minors on an
involuntary status and then transfer the minor to
voluntary status, avoiding a voluntary “admission” (If
the minor and the legal guardian agree to the
admission).
Voluntary Admission of Adults
• If an adult requesting admission is believed by the
admission staff to be capable of providing wellreasoned, willful and knowing decisions about their
health care, he/she may be admitted on voluntary
status. Within 24 hours, a physician must confirm this
capacity and certify it in the clinical record.
• However, regardless of the person’s willingness to be
admitted, they must be handled on an involuntary basis
if they appear to be unable to make well-reasoned
decisions.
Duty to warn
• Florida is a permissive state; we are not legally
mandated to warn intended victims, but we
are permitted to do so.
• Duty to warn is an ethical mandate.
• If the person continues to make threats after
the initial warning, the professional should
continue to warn the intended victim.
Duty to warn
• A professional licensed or certified under chapter
491 may disclose confidential client information
when he or she determines that there is a clear
and immediate probability of physical harm to
the client, to other individuals, or to society.
• The professional may communicate information
to the potential victim, appropriate family
member, or law enforcement or other
appropriate authorities. The professional is
immune from liability for disclosure under this
section. (491.0147 FS)
What happens next?
Notification of involuntary
examination
The receiving facility must give prompt notice of
the whereabouts of a patient who is being
involuntarily held for examination, by telephone
or in person within 24 hours after the patient’s
arrival at the facility, unless the patient requests
that no notification be made.
Involuntary Examination
The patient shall be examined by a physician,
psychiatric nurse, or clinical psychologist at the
receiving facility without unnecessary delay and
may, upon the order of a physician, be given
emergency treatment if it is determined that
such treatment is necessary for the safety of the
patient or others.
After the examination
Within the 72 hour time period (or by the next working
day due to a weekend or holiday), one of the following
must occur:
• The patient shall be returned to the custody of a LEO if
he or she is charged with a crime;
• The patient shall be released for voluntary outpatient
treatment;
• The patient shall be asked to give express and informed
consent to voluntary placement; or
• A petition for involuntary outpatient or inpatient
placement shall be filed by the facility administrator.
Average length of stay is 4.5 days per DCF 2013.
Requirements for release
The patient may not be released by the receiving
facility or its contractor without the documented
approval of a psychiatrist or a clinical psychologist
or, if the receiving facility is owned or operated by a
hospital or health system, the release may also be
approved by a psychiatric nurse performing within
the framework of an established protocol with a
psychiatrist or an attending emergency department
physician with experience in the diagnosis and
treatment of mental and nervous disorders and
after completion of an involuntary examination.
Involuntary Placement: Criteria
If a petition for involuntary placement is filed by the
receiving facility with the circuit court, there must
be clear and convincing evidence that the person is
mentally ill and because of his or her mental illness:
• He/she has refused voluntary placement or is
unable to determine whether placement is
necessary; and
• He/she is incapable of surviving alone or with
the help of others and without treatment is
likely to suffer from neglect which poses a real
and present threat of substantial harm to his
or her well-being; or
Involuntary Placement: Criteria
• There is substantial likelihood that in the near
future he/she will inflict serious bodily harm on
self or other person, as evidenced by recent
behavior causing, attempting, or threatening such
harm; and
• All available less restrictive treatment alternatives
which would offer an opportunity for
improvement of his or her condition have been
judged to be inappropriate.
For additional information
http://myflfamilies.com/serviceprograms/mental-health/baker-act
Forms, FAQ’s, free online training
Questions? [email protected]