Baker Act Benchguide

BAKER ACT

BENCHGUIDE

November 2016

A Project of the Florida Court Education Council’s Publications Committee

Baker Act Benchguide September 2016

ACKNOWLEDGMENTS

The Publications Committee of the Florida Court Education Council acknowledges

and thanks Ms. Martha Lenderman, M.S.W., one of Florida’s recognized experts

on the Baker Act statute, and General Magistrate Sean Cadigan, Thirteenth Judicial

Circuit, for their diligent work on this Baker Act Benchguide. The materials in

Chapter Eight were created under the auspices of the Florida Department of Law

Enforcement.

This benchguide was partially extracted, with permission, from the “2014 Baker

Act User Reference Guide: The Florida Mental Health Act” written by Martha

Lenderman under a contract between USF Florida Mental Health Institute with the

Florida Department of Children and Families.

AUTHORS

Martha Lenderman, M.S.W., and General Magistrate Sean Cadigan, Thirteenth

Judicial Circuit

PURPOSE

The Baker Act Benchguide was developed to serve as an educational resource and

a user-friendly reference for Florida circuit judges who are dealing with

proceedings under the Baker Act. Although far-reaching, this benchook cannot

hope to be definitive; readers should always check cited legal authorities before

relying on them.

DISCLAIMER

Viewpoints reflected in this publication do not represent any official policy or

position of the Florida Supreme Court, the Office of the State Courts

Administrator, the Florida judicial conferences, the Florida Court Education

Council, or the Florida Court Education Council’s Publications Committee.

Baker Act Bench Guide November 2016

iii

FLORIDA COURT EDUCATION COUNCIL’S

PUBLICATIONS COMMITTEE

The Honorable Angela Cowden, Tenth Circuit, Chair

The Honorable Cory Ciklin, Fourth District Court of Appeal

The Honorable Josephine Gagliardi, Lee County

The Honorable Ilona Holmes, Seventeenth Circuit

The Honorable Matt Lucas, Second District Court of Appeal

The Honorable Ashley B. Moody, Thirteenth Circuit

The Honorable Louis Schiff, Broward County

Ms. Gay Inskeep, Trial Court Administrator, Sixth Circuit

AUTHORS

Ms. Martha Lenderman, MSW

Pinellas County

Sean Cadigan, General Magistrate,

Thirteenth Circuit

PUBLICATIONS COMMITTEE STAFF

Ms. Madelon Horwich, Senior Attorney, Publications Unit,

Office of the State Courts Administrator

_____________________________________________________________________________________

Baker Act Benchguide November 2016

TABLE OF CONTENTS

Place your cursor over the item you would like to view and press

“Click” to go directly to that item.

Case law and most other legal citations are hyperlinked to the Westlaw database.

When you click on a link, you will be asked for your Westlaw sign-on information.

Once you are signed on, just minimize the screen. You should then be able to retrieve

all of the Westlaw hyperlinks you select. Due to technical difficulties, some legal

citations other than case law citations are linked to the primary sources.

Introduction: Development and Use of Baker Act Benchguide ................................. 1

Chapter One: History and Overview of Baker Act .................................................... 3

I. History ........................................................................................................... 3

II. Rights of Persons with Mental Illnesses ....................................................... 4

III. Voluntary Admissions ................................................................................... 6

A. In General .............................................................................................. 6

B. Selected Definitions .............................................................................. 6

C. Criteria for Voluntary Admissions ........................................................ 7

D. Voluntary Admission — Exclusions ..................................................... 7

E. Consent to Admission/Treatment .......................................................... 8

F. Transfer to Voluntary Status ................................................................. 8

G. Transfer to Involuntary Status ............................................................... 9

H. Discharge of Persons on Voluntary Status ............................................ 9

IV. Involuntary Examinations – § 394.463, Fla. Stat.; Fla. Admin. Code R.

65E-5.280 ....................................................................................................10

A. Criteria .................................................................................................10

B. Initiation of Involuntary Examination .................................................10

C. Definitions of Professionals ................................................................12

D. Selected Procedures for Involuntary Examinations ............................13

E. Initial Mandatory Examination ...........................................................14

F. Release from Involuntary Examination ..............................................14

G. Notice of Discharge or Release ...........................................................15

H. Reporting to DCF ................................................................................15

I. Transportation of Persons for Involuntary Examination .....................16

J. Persons with Criminal Charges ...........................................................18

K. Weapons Prohibited on Grounds of Hospital Providing Mental

Health Services ....................................................................................18

L. Paperwork Required by the Baker Act ................................................19

M. Involuntary Placement .........................................................................19

_____________________________________________________________________________________

Baker Act Benchguide November 2016

N. Continued Involuntary Services ..........................................................23

O. Discharge of Persons on Involuntary Status .......................................24

P. Transfers ..............................................................................................24

Q. Baker Act Oversight ............................................................................25

R. Immunity .............................................................................................25

S. Statute and Rule Matrix — Florida Mental Health Act

(Baker Act) ..........................................................................................27

V. Maps of Administrative Entities Regions ...................................................30

A. Judicial Circuits and DCF Regions .....................................................30

B. DCF Regions and Managing Entities ..................................................31

C. Managing Entities................................................................................32

VI. Psychiatric Diagnoses and Treatment/Medication .....................................33

A. Diagnoses ............................................................................................33

B. Psychotherapeutic Medication ............................................................34

1. Generally ........................................................................................35

2. Antipsychotic Medications ............................................................36

3. Medications for Mood Disorders ...................................................38

4. Anti-Anxiety Medications ..............................................................41

C. Importance of Medication Compliance ...............................................41

D. Electroconvulsive Therapy (ECT) ......................................................42

VII. Adult Mental Health System of Services and Support ...............................43

VIII. Children’s Mental Health System of Services and Support .......................52

IX. Glossary of Common Definitions, Acronyms, and Abbreviations .............55

Chapter Two: Express and Informed Consent .........................................................63

I. Guardian Advocates and Other Substitute Decision Makers .....................63

II. Documentation of Competence to Provide Express and Informed

Consent ........................................................................................................64

III. Persons Determined Incompetent to Consent to Treatment .......................65

IV. Persons Adjudicated Incapacitated .............................................................66

V. Persons with Health Care Surrogates/Proxies ............................................67

VI. Summary of Consent Issues ........................................................................68

VII. Bench Card on Substitute Decision-Making ..............................................70

VIII. Frequently Asked Questions .......................................................................72

A. Competence to Consent .......................................................................72

B. Incompetence to Consent ....................................................................75

C. Disclosure ............................................................................................77

D. Consent to Treatment ..........................................................................78

E. Initiation of Psychiatric Treatment ......................................................80

F. Mental Health Advance Directives .....................................................81

_____________________________________________________________________________________

Baker Act Benchguide November 2016

G. Electroconvulsive Therapy ..................................................................83

H. Consent to Medical Treatment ............................................................85

I. Guardian Advocates and Other Substitute Decision Makers ..............87

1. In General .......................................................................................87

2. Court-Appointed Guardians (Ch. 744, Fla. Stat.) ..........................88

3. Guardian Advocates .......................................................................92

4. Health Care Surrogates/Proxies ...................................................100

5. Powers of Attorney ......................................................................105

IX. Selected Model Baker Act Forms for Informed Consent and Use of

Substitute Decision Makers ......................................................................106

A. Petition for Adjudication of Incompetence to Consent to Treatment

and Appointment of a Guardian Advocate........................................107

B. Order Appointing Guardian Advocate ..............................................109

C. Petition Requesting Court Approval for Guardian Advocate to

Consent to Extraordinary Treatment .................................................110

D. Order Authorizing Guardian Advocate to Consent to Extraordinary

Treatment ...........................................................................................111

E. Authorization for Electroconvulsive Treatment................................112

F. Notification to Court of Person’s Competence to Consent to

Treatment and Discharge of Guardian Advocate ..............................113

G. Findings and Recommended Order Restoring Person’s

Competence to Consent to Treatment and Discharging the

Guardian Advocate ............................................................................114

Chapter Three: Admission and Treatment for Minors ..........................................115

I. Cautionary Note ........................................................................................115

II. Minority/Non-Age.....................................................................................115

A. Definition ...........................................................................................115

B. Removal of Disabilities of Non-Age .................................................116

C. Rights, Privileges, and Obligations of Persons 18 Years of Age

or Older ..............................................................................................117

D. Consent to Treatment ........................................................................117

III. Consent for Admission to a Mental Health Facility .................................119

A. Admission ..........................................................................................119

B. Hospitals ............................................................................................119

C. Children’s Crisis Stabilization Units .................................................120

IV. Consent to Psychiatric Treatment .............................................................121

A. Inpatient Treatment ...........................................................................121

B. Residential Treatment Centers ..........................................................121

C. Outpatient Crisis Intervention Services ............................................121

_____________________________________________________________________________________

Baker Act Benchguide November 2016

vii

V. Substance Abuse (Marchman Act) Admission and Treatment .................122

A. In General ..........................................................................................122

B. Criteria ...............................................................................................122

C. Initiation ............................................................................................123

D. Disposition .........................................................................................123

E. Parental Participation in Treatment ...................................................124

F. Release of Information ......................................................................124

G. Parental Participation/Payment .........................................................124

VI. Consent for General Medical Care and Treatment ...................................124

A. Power to Consent...............................................................................124

B. Emergency Care ................................................................................125

VII. Emergency Care of Youth in DCF or DJJ Custody ..................................126

VIII. Delinquent Youth ......................................................................................127

IX. Dependent Youth ......................................................................................128

A. Medical, Psychiatric, and Psychological Examination and

Treatment of Children in DCF Custody ............................................128

B. Psychotropic Medications for Children in DCF Custody .................130

C. Examination, Treatment, and Placement of Children in DCF

Custody ..............................................................................................134

X. Frequently Asked Questions .....................................................................135

A. Minority Defined ...............................................................................135

B. Informed Consent and Consent to Treatment ...................................136

C. Voluntary Admissions .......................................................................138

D. Involuntary Examinations .................................................................139

Chapter Four: Involuntary Examination ................................................................142

I. In General ..................................................................................................142

II. Criteria .......................................................................................................142

III. Initiation ....................................................................................................143

IV. Definitions of Mental Health Professionals ..............................................144

V. Initial Mandatory Involuntary Examination .............................................146

VI. Release ......................................................................................................146

VII. Notice of Discharge or Release .................................................................147

VIII. Involuntary Examination Flowchart .........................................................148

IX. Frequently Asked Questions .....................................................................150

A. Criteria and Eligibility .......................................................................150

B. Initiation in General...........................................................................156

C. Initiation by Courts ............................................................................158

D. Transport ...........................................................................................164

E. Examination and Release ..................................................................165

_____________________________________________________________________________________

Baker Act Benchguide November 2016

viii

X. Selected Baker Act Forms for Involuntary Examination..........................166

A. Petition and Affidavit Seeking Ex Parte Order Requiring

Involuntary Examination ...................................................................166

B. Ex Parte Order for Involuntary Examination ....................................171

Chapter Five: Involuntary Inpatient Placement .....................................................172

I. In General ..................................................................................................172

II. Criteria .......................................................................................................172

III. Initiation of Involuntary Inpatient Placement ...........................................173

IV. Petition for Involuntary Inpatient Placement ............................................173

V. Appointment of Counsel ...........................................................................173

VI. Continuance of Hearing ............................................................................174

VII. Independent Expert Examination ..............................................................174

VIII. Hearing on Involuntary Inpatient Placement ............................................174

IX. Admission to a State Treatment Facility ...................................................176

X. Release of Persons on Involuntary Status .................................................177

XI. Return of Persons ......................................................................................177

XII. Procedure for Continued Involuntary Inpatient Placement ......................178

XIII. Involuntary Inpatient Placement Flowchart ..............................................181

XIV. Continued Involuntary Inpatient Placement Flowchart ............................182

XV. Involuntary Inpatient Placement Hearing Colloquy .................................183

A. Introductory Remarks ........................................................................183

B. Preliminary Matters ...........................................................................185

C. Testimony and Evidence ...................................................................185

D. Closing Arguments ............................................................................188

E. Findings and Order of Court .............................................................188

1. Preliminary Contents ....................................................................188

2. When Baker Act Criteria Have Been Met ...................................189

3. When Baker Act Criteria Have Not Been Met ............................191

4. Sample Provisions for Short-Term Placement With

Reservation of Jurisdiction to Extend or Modify .........................191

XVI. Frequently Asked Questions .....................................................................192

A. Criteria and Eligibility .......................................................................192

B. Initiation and Filing of Involuntary Inpatient Placement ..................194

C. Public Defender and State Attorney ..................................................202

D. Independent Expert Examination ......................................................213

E. Continuances .....................................................................................214

F. Transfers for Medical Care ...............................................................216

G. Waiver of Hearings and Waiver of Patient Presence at Hearing ......216

H. Conversion between Voluntary and Involuntary Status ...................218

_____________________________________________________________________________________

Baker Act Benchguide November 2016

I. Witnesses ...........................................................................................219

J. Hearings .............................................................................................222

K. Involuntary Placement Orders ...........................................................225

L. Continued Involuntary Inpatient Placement ......................................231

M. Baker Act Forms and Service of Process ..........................................232

N. Transfers of Persons under Involuntary Placement ..........................233

O. State Treatment Facilities and Transfer Evaluations ........................234

P. Convalescent Status ...........................................................................236

XVII. Selected Sample Baker Act Forms for Involuntary Inpatient

Placement ..................................................................................................238

A. Petition for Involuntary Inpatient Placement ....................................238

B. Notice of Petition for Involuntary Placement ...................................241

C. Application for Appointment of Independent Expert Examiner .......242

D. Notice to Court – Request for Continuance of Involuntary

Placement Hearing ............................................................................243

E. Order Requiring Involuntary Assessment and Stabilization for

Substance Abuse and for Baker Act Discharge of Person ................244

F. Order Requiring Evaluation For Involuntary Outpatient

Placement ..........................................................................................245

G. Notification to Court of Withdrawal of Petition for Hearing on

Involuntary Inpatient or Involuntary Outpatient Placement .............246

H. Order for Involuntary Inpatient Placement .......................................247

I. Petition Requesting Authorization for Continued Involuntary

Inpatient Placement ...........................................................................248

J. Notice of Petition for Continued Involuntary Inpatient

Placement ..........................................................................................250

K. Order for Continued Involuntary Inpatient Placement or for

Release ...............................................................................................251

Chapter Six: Involuntary Outpatient Services .......................................................252

I. Introduction ...............................................................................................252

II. Rights of Persons.......................................................................................252

III. Criteria .......................................................................................................252

IV. Petition ......................................................................................................254

V. Service Provider ........................................................................................255

VI. Treatment Plan ..........................................................................................256

VII. County of Filing ........................................................................................257

VIII. Notice of Petition ......................................................................................258

IX. Hearing ......................................................................................................259

X. Testimony ..................................................................................................260

_____________________________________________________________________________________

Baker Act Benchguide November 2016

XI. Court Order ...............................................................................................261

XII. Continued Involuntary Outpatient Services ..............................................261

A. Criteria ...............................................................................................261

B. Petition ...............................................................................................262

C. Notice of Petition for Continued Involuntary Outpatient

Services..............................................................................................262

D. Hearing on Continued Involuntary Outpatient Services ...................263

E. Order for Continued Involuntary Outpatient Services ......................264

XIII. Modification to Court Order for Involuntary Outpatient Services ...........264

XIV. Change of Service Provider ......................................................................265

XV. Noncompliance with Court Order .............................................................265

XVI. Discharge from Involuntary Outpatient Services .....................................267

XVII. Alternatives to Involuntary Outpatient Services Orders ...........................267

XVIII. Involuntary Outpatient Placement Flowchart

(DCF flowchart; 2016 legislative changes are not incorporated.) ............269

XIX. Continued Involuntary Outpatient Placement Flowchart .........................270

XX. Frequently Asked Questions .....................................................................271

XXI. Selected Model Baker Act Forms for Involuntary Outpatient

Services .....................................................................................................276

A. Petition for Involuntary Outpatient Placement .................................276

B. Designation of Service Provider for Involuntary Outpatient

Placement ..........................................................................................280

C. Proposed Individualized Treatment Plan for Involuntary Outpatient

Placement and Continued Involuntary Outpatient Placement ..........281

D. Order for Involuntary Outpatient Placement or Continued

Involuntary Outpatient Placement .....................................................284

E. Notice to Court of Modification to Treatment Plan for Involuntary

Outpatient Placement and/or Petition Requesting Approval of

Material Modifications to Plan ..........................................................286

F. Petition for Termination of Involuntary Outpatient Placement

Order ..................................................................................................287

G. Petition Requesting Authorization for Continued Outpatient

Placement ..........................................................................................288

H. Notice to Court of Waiver of Continued Involuntary Outpatient

Services Hearing and Request for an Order ......................................290

Chapter Seven: Rights of Persons with Mental Illnesses ......................................291

I. In General ..................................................................................................291

II. Frequently Asked Questions .....................................................................293

A. In General ..........................................................................................293

_____________________________________________________________________________________

Baker Act Benchguide November 2016

B. Habeas Corpus ...................................................................................297

C. Clinical Records and Confidentiality ................................................299

D. Duty to Warn .....................................................................................307

E. Americans with Disabilities Act (ADA) ...........................................308

F. Right to Dignity and Privacy .............................................................309

G. Communication Restrictions .............................................................310

H. Custody of Personal Possessions ......................................................312

I. Designated Representative ................................................................314

J. Right to Discharge .............................................................................315

K. Advance Directives ...........................................................................317

III. Forms .........................................................................................................320

A. Notice of Right to Petition for Writ of Habeas Corpus or for

Redress of Grievances .......................................................................320

B. Petition for Writ of Habeas Corpus or for Redress of Grievances ...321

C. Advance Directive for Mental Health Care ......................................323

Chapter Eight: Firearm Prohibition for Certain Individuals With Mental

Illnesses .....................................................................................................330

I. Background ...............................................................................................330

II. Applicability of the Law ...........................................................................335

III. Responsibility of Various Entities to Implement Section 790.06,

Florida Statutes..........................................................................................336

A. Physicians Practicing at Baker Act Receiving or Treatment

Facilities ............................................................................................336

B. Baker Act Receiving Facility Administrators (or Designee) ............337

C. Clerks of Court ..................................................................................338

D. Judges or Magistrates ........................................................................339

E. Florida Department of Law Enforcement .........................................340

IV. Relief from a Firearm Disability ...............................................................341

V. Flowcharts .................................................................................................345

A. Admission by Voluntary Status.........................................................345

B. Admission by Involuntary Status ......................................................346

C. Firearm Prohibition Process ..............................................................347

D. Petition for Relief from Firearm Disability .......................................348

VI. Frequently Asked Questions .....................................................................349

A. Applicable State Statutes ...................................................................349

B. Mental Competency (MECOM) Database ........................................350

C. Substance Abuse ................................................................................353

D. Juveniles ............................................................................................354

E. Capacity/Competency .......................................................................355

_____________________________________________________________________________________

Baker Act Benchguide November 2016

xii

F. Relief from Disability ........................................................................355

G. Provisions of Chapter 2013-249, Laws of Florida ............................356

VII. Forms .........................................................................................................360

A. Firearm Prohibition Cover Sheet ......................................................361

B. Finding and Certification by an Examining Physician of Person’s

Imminent Dangerousness ..................................................................362

C. Patient’s Notice and Acknowledgment .............................................363

D. Application for Voluntary Admission of an Adult (Receiving

Facility)..............................................................................................364

E. Notification to Court of Withdrawal of Petition for Hearing on

Involuntary Inpatient or Involuntary Outpatient Placement .............365

F. Order of Court to Present Record of Finding to FDLE or

Requiring Further Documentation on Voluntary Transfer ...............366

G. Petition and Order for Relief from Firearm Disabilities Imposed

by Court .............................................................................................368

APPENDIX I: Recommendations from 1999 Report of the Supreme Court

Commission on Fairness, Subcommittee on Case Administration ...........371

APPENDIX II: Compendium of Appellate Cases, Attorney General Opinions, and

Other Legal References .............................................................................381

I. Evidence Supporting Criteria for Involuntary Inpatient Placement .........382

A. In General ..........................................................................................382

B. Outpatient Commitment ....................................................................388

C. Waiver of Patient’s Presence at Placement Hearing .........................392

D. Notice to and Participation of State Attorney at Involuntary

Placement Hearings ...........................................................................394

E. Duty of State Attorney and Role of Counsel for Receiving Facility

in Involuntary Placement Hearings ...................................................394

F. Deadline for Filing Petitions and Notices .........................................395

G. Appeal Not Moot ...............................................................................396

H. Jurisdiction of Courts ........................................................................397

I. Testimony ..........................................................................................397

II. Clinical Records and Confidentiality ........................................................398

III. Public Records ..........................................................................................403

IV. Payment of Involuntary Placement Bills ..................................................404

V. Transportation of Baker Act Patients ........................................................405

VI. Law Enforcement ......................................................................................408

A. Warrantless Entry — Exigent Circumstances ...................................408

B. Detention and Custody ......................................................................412

C. Use of Force ......................................................................................416

_____________________________________________________________________________________

Baker Act Benchguide November 2016

xiii

D. Weapons ............................................................................................417

VII. Responsibilities of and Lawsuits Against Doctors and Receiving

Facilities ....................................................................................................418

A. In General ..........................................................................................418

B. Duty to Warn .....................................................................................426

C. Malpractice vs. Ordinary Negligence ...............................................428

VIII. Guardianship and Protective Services ......................................................429

IX. Baker Act and Minors ...............................................................................431

X. Baker Act and Criminal Defendants .........................................................437

XI. Marchman Act ...........................................................................................442

APPENDIX III: List of FAQ Categories on DCF Website ...................................445

APPENDIX IV: List of All Mandatory and Recommended Baker Act Forms ....452

Introduction: Development and Use of Baker Act Benchguide

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Introduction: Development and Use of Baker Act Benchguide

This benchguide is intended to help the courts appropriately carry out their

responsibilities related to the Baker Act, including:

 To enter orders on ex parte petitions for involuntary examinations under the

Baker Act.

 To conduct hearings on initial and continued involuntary inpatient placement

and involuntary outpatient services filed by administrators of Baker Act

receiving and treatment facilities.

 To respond to petitions for writs of habeas corpus filed on behalf of

individuals held in Baker Act receiving or treatment facilities.

 To respond to filings by Baker Act receiving facility administrators to limit

individuals’ access to firearm purchase or possession of a concealed weapon

permit.

This benchguide is intended to be used for informational purposes only. The

information presented herein is not legally binding and does not have any legal

authority. Only chapter 394, Florida Statutes, and chapter 65E-5, Florida

Administrative Code, as well as other federal and state laws, have legal authority.

The creation of administrative rules to implement and clarify the statute is

governed by chapter 120, Florida Statutes. The state law prohibits the repetition of

statute in administrative rules. Therefore, judges, magistrates, assistant state

attorneys, assistant public defenders, and clerks dealing with the Baker Act must

be familiar with and routinely reference both the statutes and the corresponding

rules to ensure correct implementation of the Baker Act law.

Please note that the forms and flowcharts included in this benchbook were

promulgated by DCF before the 2016 statutory amendments and do not incorporate

those changes.

To the extent possible, the word “individual” or “person” is used (rather than

“patient”) throughout this benchguide, except for direct quotes from the statutes

and for the purpose of clarity. Person-first language works to reduce stigma and

increases professional sensitivity to the dignity of persons served. Each chapter in

this benchbook contains useful material on select complex subjects derived from

Introduction: Development and Use of Baker Act Benchguide

_____________________________________________________________________________________

Baker Act Benchguide November 2016

the Baker Act law, administrative rules, forms, practices, and other statutes and

case law. A glossary of definitions, acronyms, and common terms is at the end of

Chapter One.

This benchguide was partially extracted from the “2014 Baker Act User Reference

Guide: The Florida Mental Health Act” written by Martha Lenderman under a

contract between USF Florida Mental Health Institute with the Florida Department

of Children and Families. The colloquy was prepared by General Magistrate Sean

Cadigan of the Thirteenth Judicial Circuit, who also reviewed the document for

usefulness to the judiciary.

The benchguide was otherwise prepared by Martha Lenderman. The material in

this benchguide was not prepared by attorneys, and reliance on its content should

not be considered as legal advice.

A separate benchguide for the Marchman Act governing substance abuse

impairment is in progress and will be available through the Office of the State

Courts Administrator.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Chapter One: History and Overview of Baker Act

I. History

Statutes governing the treatment of mental illness in Florida date back to 1874.

Amendments to the law were passed many times over the years, but in 1971 the

Legislature enacted the Florida Mental Health Act. This Act brought about a

dramatic and comprehensive revision of Florida’s 97-year-old laws. It substantially

strengthened the due process and civil rights of persons in mental health facilities.

The Act, usually referred to as the “Baker Act,” was named after Maxine Baker,

the former State representative from Miami who sponsored the Act while serving

as chairperson of the House Committee on Mental Health. Referring to the

treatment of persons with mental illness before the passage of her bill,

Representative Baker stated: “In the name of mental health, we deprive them of

their most precious possession — liberty.”

Since the Baker Act became effective in 1972, a number of legislative amendments

have been enacted to protect persons’ civil and due process rights. The most recent

major revision was when Involuntary Outpatient Placement was added by the

Legislature effective January 2005. In 2016, three bills were passed that revised

mental health law in Florida. SB 12 was passed to improve access to court and

make the process more seamless for persons in crisis with substance abuse and

mental health issues. HB 439 authorizes the creation of mental health courts,

expands eligibility for veteran programs and courts, and HB 769 made changes,

such as reducing the period of time persons with certain nonviolent offenses may

be held in forensic facilities.

It is important that the Baker Act be used only in situations where the person has a

mental illness and meets all remaining criteria for voluntary or involuntary

admission. The Baker Act is the Florida Mental Health Act. It does not substitute

for any other law that may permit the provision of medical or substance abuse care

to persons who lack the capacity to request such care. For many persons, the use of

other statutes may be more appropriate. Alternatives to the Baker Act may include:

 Developmental Disabilities, ch. 393, Fla. Stat.

 Marchman Act (Substance Abuse Impairment), ch. 397, Fla. Stat.

 Emergency Examination and Treatment of Incapacitated Persons, § 401.445,

Fla. Stat.

 Federal Emergency Medical Treatment and Active Labor Act (EMTALA)

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

hospital “Anti-Dumping” law, 42 U.S.C. § 1395dd.

 Hospital Access to Emergency Services and Care, § 395.1041, Fla. Stat.

 Adult Abuse, Neglect, and Exploitation, § 415.1051, Fla. Stat.

 Health Care Advance Directives, ch. 765, Fla. Stat.

 Guardianship, ch. 744, Fla. Stat.

 Expedited Judicial Intervention Concerning Medical Treatment Procedures,

Fla. Prob. R. 5.900

II. Rights of Persons with Mental Illnesses

See § 394.459, Fla. Stat.; Fla. Admin. Code R. 65E-5.140. The Baker Act ensures

many rights to persons who have mental illnesses. Some of these rights are as

follows:

 Individual Dignity: Ensures all constitutional rights and requires that

persons be treated in a humane way while being transported or treated for

mental illness.

 Treatment: Prohibits the delay or denial of treatment due to a person’s

inability to pay, requires prompt physical examination after arrival, requires

treatment planning to involve the person, and requires that the least

restrictive appropriate available treatment be used based on the individual

needs of each person.

 Express and Informed Consent: Encourages people to voluntarily apply

for mental health services when they are competent to do so, to choose their

own treatment, and to decide when they want to stop treatment. The law

requires that consent be voluntarily given in writing by a competent person

after sufficient explanation to enable the person to make well-reasoned,

willful, and knowing decisions without any coercion.

 Quality of Treatment: Requires medical, vocational, social, educational,

and rehabilitative services suited to each person’s needs to be administered

skillfully, safely, and humanely. Use of restraint, seclusion, isolation,

emergency treatment orders, physical management techniques, and elevated

levels of supervision are regulated. Grievance procedures and complaint

resolution is required.

 Communication, Abuse Reporting, and Visits: Guarantees persons in

mental health facilities the right to communicate freely and privately with

persons outside the facilities by phone, mail, or visitation. If communication

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

is restricted, written notice must be provided. No restriction of calls to the

Abuse Registry or to the person’s attorney is permitted under any

circumstances.

 Care and Custody of Personal Effects: Ensures that persons may keep

their own clothing and personal effects, unless they are removed for safety

or medical reasons. If they are removed, a witnessed inventory is required.

 Voting in Public Elections: Guarantees individuals the right to register and

to vote in any elections for which they are qualified voters.

 Habeas Corpus: Guarantees the right to ask the court to review the cause

and legality of the person’s detention or unjust denial of a legal right or

privilege or an authorized procedure.

 Treatment and Discharge Planning: Guarantees the opportunity to

participate in treatment and discharge planning and to seek treatment from

the professional or agency of the person’s choice upon discharge.

 Sexual Misconduct Prohibited: Provides that any staff who engages in

sexual activity with a person served by a receiving/treatment facility is guilty

of a felony. Failure to report such misconduct is a misdemeanor.

 Right to a Representative: Ensures the right to a representative selected by

persons (or by facility when person can’t/won’t select their own) when

admitted on an involuntary basis or transferred from voluntary to

involuntary status. The representative must be promptly notified of the

person’s admission and all proceedings and restrictions of rights, receives

copy of the inventory of the person’s personal effects, has immediate access

to the person, and is authorized to file a petition for a writ of habeas corpus

on behalf of the person. The representative can’t make any treatment

decisions, can’t access or release the person’s clinical record without the

person’s consent, and can’t request the transfer of the person to another

facility.

 Confidentiality: Ensures that all information about a person in a mental

health facility is maintained as confidential and released only with the

consent of the person or a legally authorized representative. However,

certain information may be released without consent to the person’s

attorney, in response to a court order (after a good cause hearing), after a

threat of harm to others, or in other very limited circumstances. Persons in

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

mental health facilities have the right to access their clinical records.

 Violation of Rights: Provides that anyone who violates or abuses any rights

or privileges of persons provided in the Baker Act is liable for damages as

determined by law.

III. Voluntary Admissions

A. In General

See § 394.4625, Fla. Stat.; Fla. Admin. Code R. 65E-5.270.

The Baker Act encourages the voluntary admission of persons for psychiatric care,

but only when they are able to understand the decision and its consequences and

are able to fully exercise their rights for themselves. When this is not possible due

to the severity of the person’s condition, the law requires that the person be

extended the due process rights assured for those under involuntary status.

B. Selected Definitions

See § 394.455, Fla. Stat.

Several definitions are important to understanding the criteria for voluntary

admissions and consent to treatment:

 “‘Mental illness’ means 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. For the purposes of

this part, the term does not include developmental disabilities as defined in

chapter 393, intoxication, or conditions manifested only by antisocial

behavior or substance abuse.” § 394.455(28), Fla. Stat.

 “‘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.” § 394.455(15), Fla. Stat.

 “‘Incompetent to consent to treatment’ means a state in which a person’s

judgment is so affected by a mental illness or a substance abuse impairment

that he or she lacks the capacity to make a well-reasoned, willful, and

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

knowing decision concerning his or her medical, mental health, or substance

abuse treatment.” § 394.455(21), Fla. Stat.

C. Criteria for Voluntary Admissions

See § 394.459(3)(a).

Section 394.4625(1)(a), Florida Statutes, provides:

A facility may receive for observation, diagnosis, or treatment any

person 18 years of age or older making application by express and

informed consent for admission or any person age 17 or under for

whom such application is made by his or her legal guardian. If found

to show evidence of mental illness, to be competent to provide express

and informed consent, and to be suitable for treatment, such person 18

years of age or older may be admitted to the facility. A person age 17

or under can be admitted only after a hearing to verify the

voluntariness of the consent.

Each person entering a facility, regardless of age, must be asked to give

express and informed consent for admission and treatment. Express and

informed consent for admission and treatment of a person under 18 years of

age is required from the minor’s guardian. See Chapter Three of this

benchguide concerning who is a “guardian” of a minor.

D. Voluntary Admission — Exclusions

See § 394.4625(1), Fla. Stat.

 A minor can be admitted on a voluntary basis only if willing and upon

application by his/her legal guardian and after a judicial hearing to verify the

voluntariness of the consent.

 A facility may not admit a person on a voluntary basis who has been

adjudicated by a court as incapacitated.

 The health care surrogate or proxy of a person on voluntary status may not

consent to mental health treatment for the person. Therefore, such a person

would be discharged from the facility or involuntary procedures initiated.

 Certain individuals residing in or served by long-term facilities licensed

under chapters 400 and 429, Florida Statutes, may not be removed from their

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

residence for voluntary examination unless previously screened by an

independent authorized professional and found to be able to provide express

and informed consent to treatment.

 A person on voluntary status who is unwilling or unable to provide express

and informed consent to mental health treatment must either be discharged

or be transferred to involuntary status.

E. Consent to Admission/Treatment

Before consent to admission or treatment can be given, the following information

must be given to the person or his/her legally authorized substitute decision maker:

 Reason for admission

 Proposed treatment, including proposed psychotropic medications

 Purpose of treatment

 Alternative treatments

 Specific dosage range for medications

 Frequency and method of administration

 Common risks, benefits, and common short-term and long-term side effects

 Any contraindications that may exist

 Clinically significant interactive effects with other medications

 Similar information on alternative medication that may have less severe or

serious side effects

 Potential effects of stopping treatment

 Approximate length of care

 How treatment will be monitored

 Disclosure that any consent for treatment may be revoked orally or in

writing before or during the treatment period by any person legally

authorized to make health care decisions on behalf of the individual.

Within 24 hours after a voluntary admission of an adult, the admitting physician

must document in the person’s clinical record that the person is able to give

express and informed consent for admission and treatment. If the adult is not able

to give express and informed consent, the facility must either discharge the adult or

transfer the person to involuntary status.

F. Transfer to Voluntary Status

See § 394.4625(4), Fla. Stat.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

A person on involuntary status who applies to be transferred to voluntary status

must be transferred unless the person has been charged with a crime or has been

involuntarily placed for treatment by a court and continues to meet the criteria for

involuntary placement. Before the transfer to voluntary status is processed, the

mandatory initial involuntary examination must be performed by a physician,

clinical psychologist, or psychiatric nurse, and a certification of the person’s

competence to consent must be completed by a physician. In addition, the

competent person must have formally applied for voluntary admission.

G. Transfer to Involuntary Status

See § 394.4625(5), Fla. Stat.

At any time a person on voluntary status is determined not to have the capacity to

make well-reasoned, willful, and knowing decisions about mental health or

medical care, he/she must be transferred to involuntary status. When a person on

voluntary status, or an authorized individual acting on the person’s behalf, makes a

request for his/her discharge, the request for discharge, unless freely and

voluntarily rescinded, must be communicated to a physician, clinical psychologist,

or psychiatrist as quickly as possible, but not later than 12 hours after the request is

made. If the person meets the criteria for involuntary placement, the administrator

of the facility must file a petition for involuntary placement with the court within

two court working days after the request for discharge is made. If the petition is not

filed within two court working days, the person must be discharged.

H. Discharge of Persons on Voluntary Status

See § 394.4625(2), Fla. Stat.

A facility must discharge a person on voluntary status under the following

circumstances:

 The person has sufficiently improved so that retention in the facility is no

longer clinically appropriate. A person may also be discharged to the care of

a community facility.

 The person requests discharge. A person on voluntary status, or a relative,

friend, or attorney of the person, may request discharge either orally or in

writing at any time following admission to the facility. The person must be

discharged within 24 hours of the request, unless the request is rescinded or

the person is transferred to involuntary status. The 24-hour time period may

be extended by a treatment facility (which generally is a state hospital) when

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

necessary for adequate discharge planning, but must not exceed three days,

exclusive of weekends and holidays.

 A person on voluntary status who has been admitted to a facility refuses to

consent to or revokes consent to treatment. Such person must be discharged

within 24 hours after the refusal or revocation unless transferred to

involuntary status or unless the refusal or revocation is freely and voluntarily

rescinded by the person.

IV. Involuntary Examinations – § 394.463, Fla. Stat.; Fla. Admin. Code R.

65E-5.280

A. Criteria

A person may be taken to a receiving facility for involuntary examination if there

is reason to believe that he or she has a mental illness (as defined in the Baker Act)

and because of the mental illness

 the person either

o has refused voluntary examination after conscientious explanation and

disclosure of the purpose of the examination, OR

o is unable to determine whether examination is necessary, AND

 without care or treatment, the person is likely to either

o suffer from neglect or refuse to care for himself or herself, which “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

o cause serious bodily harm to himself or herself or others in the near

future, as evidenced by recent behavior.

§ 394.463(1), Fla. Stat.

B. Initiation of Involuntary Examination

See § 394.463(2), Fla. Stat.

An involuntary examination may be initiated by any one of the three following

means:

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 A circuit or county court may enter an ex parte order stating that a person

appears to meet the criteria for involuntary examination, specifying the

findings on which that conclusion is based. The ex parte order for

involuntary examination must be based on sworn testimony, written or

oral. No fee can be charged for the filing of a petition for an order for

involuntary examination.

A law enforcement officer, or other designated agent of the court, must take

the person into custody and deliver him or her to an appropriate, or the

nearest, facility within the designating receiving system under section

394.462, Florida Statutes, for involuntary examination. A law enforcement

officer acting in accordance with an ex parte order may serve and execute

such order on any day of the week, at any time of the day or night. A law

enforcement officer acting in accordance with an ex parte order may use

such reasonable physical force as is necessary to gain entry to the premises

and any dwellings, buildings, or other structures located on the premises,

and to take custody of the person who is the subject of the ex parte order.

The officer must execute a written report entitled “Transportation to

Receiving Facility,” detailing the circumstances under which the person was

taken into custody, and the report must be made a part of the person’s

clinical record. Fla. Admin. Code R. 65E-5.260(2).

The ex parte order is valid only until executed or, if not executed, for the

period specified in the order itself. If no time limit is specified in the order,

the order is valid for seven days after the date that the order was signed.

Once a person is picked up on the order and taken to a receiving facility for

involuntary examination and released, the same order cannot be used again

during the time period. The order of the court must be made a part of the

person’s clinical record.

 A law enforcement officer must take a person who appears to meet the

criteria for involuntary examination into custody and deliver the person or

have him or her delivered to an appropriate, or the nearest, facility within the

designating receiving system under section 394.462 for examination. The

officer must execute a written report (form CF-MH 3052a) detailing the

circumstances (doesn’t require observations) under which the person was

taken into custody, and the report must be made a part of the person’s

clinical record.

 A physician, clinical psychologist, clinical social worker, mental health

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

counselor, marriage and family therapist, or psychiatric nurse (each as

defined in the Baker Act) may execute a certificate (form CF-MH 3052b)

stating that he or she has examined the person within the preceding 48 hours

and finds that the person appears to meet the criteria for involuntary

examination and stating the observations of the authorized professional

upon which that conclusion is based. A law enforcement officer must take

the person named in the certificate into custody and deliver him or her to an

appropriate, or the nearest, facility within the designating receiving system

under section 394.462 for involuntary examination. The law enforcement

officer must execute a written report detailing the circumstances under

which the person was taken into custody. The report and certificate must be

made a part of the person’s clinical record. (While not authorized by statute,

Florida’s Attorney General wrote on May 28, 2008, that physician assistants

could under specific circumstances initiate Baker Act involuntary

examinations. Op. Att’y Gen. Fla. 08-31 (2008).)

C. Definitions of Professionals

See § 394.455, Fla. Stat.

 “‘Physician’ means a medical practitioner licensed under chapter 458 or

chapter 459 who has experience in the diagnosis and treatment of mental

illness or a physician employed by a facility operated by the United States

Department of Veterans Affairs or the United States Department of

Defense.” § 394.455(32), Fla. Stat.

 “Physician assistant” means a person licensed under chapter 458 or chapter

459 who has experience in the diagnosis and treatment of metal disorders.”

§ 394.455(33), Fla. Stat.

 “‘Psychiatrist’ means a medical practitioner licensed under chapter 458 or

chapter 459 for at least 3 years, inclusive of psychiatric residency.” §

394.455(36), Fla. Stat.

 “‘Clinical psychologist’ means a psychologist as defined in s. 490.003(7),

with 3 years of postdoctoral experience in the practice of clinical

psychology, inclusive of the experience required for licensure, or a

psychologist employed by a facility operated by the United States

Department of Veterans Affairs that qualifies as a receiving or treatment

facility under this part.” § 394.455(5), Fla. Stat.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 “‘Clinical social worker’ means a person licensed as a clinical social worker

under s. 491.005 or s.491.006.” § 394.455(7), Fla. Stat.

 “‘Mental health counselor’ means a person licensed as a mental health

counselor under s. 491.005 or s.491.006.” § 394.455(26), Fla. Stat.

 “‘Marriage and family therapist’ means a person licensed as a marriage and

family therapist under s. 491.005 or s.491.006.” § 394.455(25), Fla. Stat.

 “‘Psychiatric nurse’ means an advanced registered nurse certified under s.

464.012 who has a master’s or doctoral degree in psychiatric nursing, holds

a national advanced practice certification as a psychiatric mental health

advanced practice nurse, and has 2 years of post-master’s clinical experience

under the supervision of a physician.” § 394.455(35), Fla. Stat.

 “’Qualified professional’ means a physician or a physician assistant licensed

under chapter 458 or chapter 459; a psychiatrist licensed under chapter 458

or chapter 459; a psychologist as defined in s. 490.003(7); or a psychiatric

nurse as defined in s. 394.455. § 394.455(38), Fla. Stat.

D. Selected Procedures for Involuntary Examinations

See § 394.463(2), Fla. Stat.

Any receiving facility accepting a person based on a court’s ex parte order, a law

enforcement officer’s report, or a mental health professional’s certificate must send

a copy of the document with the required cover sheet to the Florida Department of

Children and Families (DCF) (via the Baker Act Reporting Center) on the next

working day.

A person can’t be removed from any long-term care program or residential

placement licensed under chapter 400 (nursing homes) or chapter 429, Florida

Statutes (assisted living facilities), and transported to a receiving facility for

involuntary examination unless an ex parte order, a law enforcement officer’s

report, or a mental health professional’s certificate is first prepared. If the condition

of the person is such that preparation of a law enforcement officer’s report is not

practicable before removal, the report must be completed as soon as possible after

removal, but in any case before the person is transported to a receiving facility. A

receiving facility admitting a person for involuntary examination who is not

accompanied by the required ex parte order, mental health professional certificate,

or law enforcement officer’s report must notify DCF of the admission by certified

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

mail or by email, if available, by the next working day. § 394.463(2)(b), Fla. Stat.

E. Initial Mandatory Examination

See § 394.463(2)(f), Fla. Stat.; Fla. Admin. Code R. 65E-5.2801.

A person must receive an initial mandatory examination by a physician or clinical

psychologist at a facility without unnecessary delay to determine whether the

criteria for involuntary services are met. Emergency treatment may be provided.

This initial mandatory involuntary examination must include:

 a thorough review of any observations of the person’s recent behavior;

 a review of the document initiating the involuntary examination and the

transportation form;

 a brief psychiatric history; and

 a timely face-to-face examination of the person to determine if he or she

meets the criteria for release.

The person can’t be released by a receiving facility “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 illness and after completion of

an involuntary examination pursuant to this subsection. A psychiatric nurse may

not approve the release of a patient if the involuntary examination was initiated by

a psychiatrist unless the release is approved by the initiating psychiatrist.”

§ 394.463(2)(f), Fla. Stat. The person must be given prompt opportunity to notify

others of his or her whereabouts.

F. Release from Involuntary Examination

See § 394.463(2)(g), Fla. Stat.

Within the 72-hour examination period, one of the following three actions must be

taken based on the individual needs of the person:

 The person must be released unless he or she is charged with a crime, in

which case the person must be returned to the custody of a law enforcement

officer.

 The person, unless charged with a crime, must be asked to give express and

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

informed consent to placement on voluntary status, and, if such consent is

given, the person must be voluntarily admitted. Such transfer from

involuntary to voluntary status must be conditioned on the certification by a

physician that the person has the capacity to make well-reasoned, willful,

and knowing decisions about medical, mental health, or substance abuse

treatment.

 A petition for involuntary placement must be completed within 72 hours

and filed with the circuit court for involuntary inpatient placement, or with

the circuit or criminal county court for involuntary outpatient services,

within the 72 hours. If the 72 hours ends on a weekend or holiday, the filing

must be no later than the next working day thereafter.

G. Notice of Discharge or Release

See §§ 394.463(3), 394.469(2), Fla. Stat.

Notice of discharge or transfer of a person must be given as provided in section

394.4599, Florida Statutes. Notice of the release must be given to the individual

and his or her guardian, guardian advocate, health care surrogate or proxy,

attorney, and representative, to any person who executed a certificate admitting the

individual to the receiving facility, and to any court that ordered the individual’s

evaluation.

H. Reporting to DCF

See section 394.463(2)(a), Fla. Stat.

Any receiving facility accepting a person for involuntary examination must send

to DCF via the BA Reporting Center a cover sheet (form CF-MH 3118) and a copy

of the completed initiating form:

 ex parte petition/order;

 report of law enforcement officer; or

 certificate of a professional.

All court orders for involuntary placement must also be sent to the BA Reporting

Center within one day, including:

 involuntary inpatient placement order;

 involuntary outpatient servicesorder; and

 continued involuntary outpatient services order

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Receiving facilities must report directly to DCF by certified mail or email, within

one working day, any long-term care facility licensed under chapter 400 or chapter

429, Florida Statutes, that does not fully comply with Baker Act provisions

governing voluntary admissions, involuntary examinations, or transportation.

I. Transportation of Persons for Involuntary Examination

See § 394.462, Fla. Stat.; Fla. Admin. Code R. 65E-5.260.

Law enforcement has no responsibility to transport persons for voluntary

admission. Nor is law enforcement responsible for transferring persons from a

hospital ER where they may have been medically examined or treated to a Baker

Act receiving facility. In the latter case, the person’s transfer is the responsibility of

the sending hospital, pursuant to the federal EMTALA law, 42 U.S.C. § 1395dd.

Regardless of whether the involuntary examination is initiated by the courts, law

enforcement, or an authorized mental health professional, law enforcement is

responsible for transporting the person to the nearest receiving facility, or the

appropriate facility within the designated receiving system, for the

examination.

A law enforcement agency may decline to transport a person to a receiving facility

only when any of the following have occurred:

 The county has contracted for transportation at the sole cost to the county,

and the law enforcement officer and medical transport service agree that the

continued presence of law enforcement personnel is not expected to be

necessary for the safety of the person to be transported or others. This statute

requires the law enforcement officer to report to the scene, assess the risk

circumstances, and, if appropriate, “consign” the person to the care of the

transport company.

When a jurisdiction has entered into a county-funded contract with a

transport service for transportation of persons to receiving facilities, such

service must be given preference for transportation of persons from nursing

homes, assisted living facilities, adult day care centers, or adult family care

homes, unless the behavior of the person being transported is such that

transportation by a law enforcement officer is necessary.

 A law enforcement officer takes custody of a person under the Baker Act

and assistance is needed for the safety of the officer or the person in custody,

in which case the officer may request assistance from emergency medical

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

personnel.

If the law enforcement officer believes that a person has an emergency

medical condition, the person may be first transported to a hospital for

emergency medical treatment, regardless of whether the hospital is a

designated receiving facility. An emergency medical condition is defined in

chapter 395, Florida Statutes, as a “medical condition manifesting itself by

acute symptoms of sufficient severity, which may include severe pain, such

that absence of immediate medical attention could reasonably be expected to

result in” serious jeopardy to patient health (including pregnant women and

their fetus), serious impairment to bodily functions, or serious dysfunction of

any bodily organ or part. § 395.002(8), Fla. Stat.

Once the person is delivered by law enforcement to a hospital for emergency

medical examination or treatment and the person is placed in the hospital’s

care, the officer’s responsibility for the person is over, assuming no criminal

charges are pending. Eventual transfer of the person from the hospital

offering emergency medical treatment to the designated receiving facility for

an involuntary examination under the Baker Act is the responsibility of the

referring hospital, unless other appropriate arrangements have been made.

Other than when an emergency medical condition exists, the person must be

delivered to an appropriate or the nearest designated receiving facility — not

to a hospital emergency department that might be more convenient to the

law enforcement officer — unless a Transportation Plan has been approved

by the Board of County Commissioners and the Secretary of DCF. If the

person requires transfer to a different facility for specialized care, the

sending facility is responsible for arranging safe and appropriate

transportation.

 A mental health professional member of a mental health overlay program or

mobile crisis response service (as defined in the statute) evaluates a person

and determines that transportation to a receiving facility is needed. In such

cases the service, at its discretion, may transport the person to the facility or

may call law enforcement or make other transportation arrangements best

suited to the needs of the person.

 A transportation plan meeting the criteria set out in section 394.462, Florida

Statutes, has been approved by the Board of County Commissioners and the

Secretary of the Department of Children and Families.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

The appropriate facility within the designated receiving system or the nearest

receiving facility must accept persons brought by law enforcement officers or

EMS or private transport company authorized the county for involuntary

examination. § 394.462(1)(j), Fla. Stat. This means that the law enforcement

officer will never be legally obligated to further transport a person once presented

to the appropriate or nearest receiving facility or a hospital.

J. Persons with Criminal Charges

See § 394.462, Fla. Stat.; Fla. Admin. Code R. 65E-5.260.

When an officer has custody of a person based on either non-criminal or minor

criminal behavior that meets the statutory guidelines for involuntary examination

under the Baker Act, the law enforcement officer must transport the person to the

appropriate or nearest receiving facility for examination.

When any law enforcement officer has arrested a person for a felony and it appears

that the person meets the statutory guidelines for involuntary examination or

placement under the Baker Act, such person must first be processed in the same

manner as any other criminal suspect.

A receiving facility is not required to admit a person charged with a felony for

whom the facility determines and documents that it is unable to provide adequate

security, but must provide mental health examination and treatment to the person

where he or she is held. No person brought to a receiving facility on involuntary

status who is charged with a crime can be released except back to the custody of a

law enforcement officer.

The costs of transportation, evaluation, hospitalization, and treatment incurred by

persons who have been arrested for violations of any state law or county or

municipal ordinance may be recovered as provided in section 901.35, Florida

Statutes.

K. Weapons Prohibited on Grounds of Hospital Providing Mental Health

Services

See § 394.458, Fla. Stat.

Except as authorized by law or a hospital administrator, firearms or deadly

weapons cannot be brought into a hospital providing mental health services. Law

enforcement officers may choose to lock their firearms in their vehicle prior to

entering such a hospital or may place the firearms in a lock-box at the hospital, if

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

one exists.

L. Paperwork Required by the Baker Act

See §§ 394.462, 394.463, Fla. Stat.; Fla. Admin. Code R. 65E-5.280

A law enforcement officer must execute a written report detailing the

circumstances under which the person was taken into custody and the report must

be made a part of the person’s clinical record. A mandatory form entitled

“Transportation to Receiving Facility” (form CF-MH 3100) has been developed to

serve this purpose. An officer should not simply transport a person and leave him

or her at a receiving facility for involuntary examination under the Baker Act

unless the examination has been previously initiated by a court, an authorized

mental health professional, or a law enforcement officer.

If the officer takes an individual to an ED due to a medical emergency after

initiating the involuntary examination, the “Report of Law Enforcement Officer

Initiating Involuntary Examination” (form CF-MH 3052a) must be submitted to

hospital personnel to accompany the person to a receiving facility as well as the

transport form.

If the officer was only transporting a person whose involuntary examination was

initiated by a court or mental health professional, the officer must submit the

court’s Ex Parte Order or the Certificate of Professional Initiating Involuntary

Examination (form CF-MH 3052b), along with the Transportation to a Receiving

Facility form completed by the law enforcement officer, which will be made a part

of the person’s clinical record.

M. Involuntary Placement

See §§ 394.467, 394.4655, Fla. Stat.; Fla. Admin. Code R. 65E-5.290, 65E-5.285

A person may be ordered for involuntary inpatient placement upon a finding of

the court by clear and convincing evidence that he or she has a mental illness and

 because of the mental illness the person has refused voluntary placement or

is unable to determine whether placement is necessary, and either

o he or she is incapable of surviving alone or with the help of others and

without treatment is likely to suffer from neglect that poses a real and

present threat of substantial harm to his or her well-being, or

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

o there is a substantial likelihood that in the near future he or she will

inflict serious bodily harm on himself or herself or another person, as

evidenced by recent behavior causing, attempting, or threatening such

harm;

 and all available less restrictive treatment alternatives that would offer an

opportunity for improvement of the condition have been judged

inappropriate.

An adult may be involuntarily ordered for involuntary outpatient services upon a

finding of the court by clear and convincing evidence that:

(b) The person has a mental illness.

community without supervision, based on a clinical determination.

(d) The person has a history of lack of compliance with

treatment for mental illness.

(e) The person has:

1. At least twice within the immediately preceding 36

months been involuntarily admitted to a receiving or treatment facility as

defined in s. 394.455, or has received mental health services in a forensic or

correctional facility. The 36-month period does not include any period

during which the person was admitted or incarcerated; or

2. Engaged in one or more acts of serious violent behavior

toward self or others, or attempts at serious bodily harm to himself or herself

or others, within the preceding 36 months.

(f) The person is, as a result of his or her mental illness,

unlikely to voluntarily participate in the recommended treatment plan

and has refused voluntary services for treatment after sufficient and

conscientious explanation and disclosure of why the services are

necessary or is unable to determine for himself or herself whether

services are necessary.

(g) In view of the person’s treatment history and current

behavior, the person is in need of involuntary outpatient services in

order to prevent a relapse or deterioration that would be likely to

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

result in serious bodily harm to himself or herself or others, or a

substantial harm to his or her well-being as set forth in s. 394.463(1).

(h) It is likely that the person will benefit from involuntary

outpatient services.

(i) All available, less restrictive alternatives that would

offer an opportunity for improvement of his or her condition have

been judged to be inappropriate or unavailable.

§ 394.4655(2), Fla. Stat.

Within 72 hours of arrival at facility, or if the 72-hour period ends on a weekend or

holiday then no later than the next working day thereafter, a petition for

involuntary inpatient placement must be filed by the receiving facility

administrator (or a petition for involuntary outpatient services may be filed) and

supported by the opinion of a psychiatrist — and the second opinion of a clinical

psychologist or another psychiatrist, both of whom have personally examined the

person within the preceding 72 hours — that the criteria for involuntary placement

are met. If the administrator certifies that a psychiatrist or clinical psychologist is

not available to provide the second opinion, the second opinion may be provided

by a licensed physician, a physician assistant, a social worker, or by a psychiatric

nurse, each as defined in the Baker Act. The second opinion may be conducted by

electronic means. The public defender will be appointed by the court to represent

the person unless the person is otherwise represented by private counsel. The state

attorney represents the state, rather than the petitioning facility administrator, as

the real party in interest in the proceeding. The court will order an independent

expert examination if requested by the person. § 394.467, Fla. Stat. The filing of a

petition authorizes the facility to retain the person pending completion of a hearing.

The court is required to hold the involuntary placement hearing within five court

working days unless a continuance is requested by the person with concurrence of

counsel and granted by the court. The court may appoint a magistrate to preside at

the hearing. One of the two professionals who executed the involuntary placement

petition must testify at the hearing. The person’s attendance at the hearing may be

waived and the person may refuse to testify. All testimony must be given under

oath and recorded. At the hearing, the court must consider testimony and evidence

regarding the person’s competence to consent to treatment. If the court finds that

the person is incompetent to consent to treatment, it must appoint a guardian

advocate.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

If the court concludes that the person, by clear and convincing evidence, meets the

criteria for involuntary inpatient placement, it must order the person, on an

involuntary basis for a period of up to 90 days, or up to six months at a state

facility:

 to be retained at/transferred to or treated at an appropriate receiving or

treatment facility, or

 to be treated by an appropriate receiving or treatment facility.

The Florida Supreme Court has defined “clear and convincing evidence” as that

which is “precise, explicit, lacking in confusion, and of such weight that it

produces a firm belief or conviction, without hesitation, about the matter in issue.”

See, e.g., Fla. Stand. Jury Instr. (Civil) 405.4.

A petition for involuntary outpatient services can be filed only by an administrator

of a receiving or treatment facility; if by a receiving facility it must be filed in the

county where the facility is located, and if by a state hospital administrator it must

be filed in the county where the person will be living. In either case, a service

provider must be designated to develop with the person a proposed treatment plan

(that meets specific criteria) for the court’s consideration and attach the proposed

plan to the petition. The service provider cannot propose, nor can the court order,

services unless they are: readily available for the person in the community, funded,

determined by an authorized mental health professional to be clinically

appropriate, and services which the service provider agrees to deliver. The order

shall be for a period of up to 90 days.

A person can be held at a receiving facility pending the court hearing on

involuntary outpatient services unless stabilized, in which case the person must be

released pending the hearing.

If material modifications later need to be made to the involuntary outpatient

services order or approved treatment plan and there are no objections, the court

must be notified. If there are objections to proposed material changes, the court

must consider whether or not to approve those changes.

If, in the clinical judgment of a physician, the person has failed or refused to

comply with involuntary outpatient treatment ordered by the court and efforts

were made to solicit compliance, and the person meets criteria for involuntary

examination, the person may be brought to a receiving facility. If the person

doesn’t meet the criteria for involuntary inpatient placement, the person must be

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

discharged from the receiving facility. The service provider must then determine if

modifications should be made to the existing treatment plan and try to continue to

engage the person in treatment.

N. Continued Involuntary Services

See § 394.4655(8), Fla. Stat.; Fla. Admin. Code R. 65E-5.285(4).

If a person continues to meet the criteria for involuntary outpatient services, the

administrator is required, at least ten days prior to the expiration of the period

during which the treatment facility is authorized to retain the person or a service

provider is authorized to treat the person, to file, in the court that issued the order

for involuntary outpatient services, a petition requesting authorization for

continued involuntary services.

The request must be accompanied by a statement from the person’s physician or

clinical psychologist justifying the request, a brief description of the person’s

treatment during the time he or she was receiving involuntary services, and an

individualized plan of continued treatment.

Hearings on petitions for continued involuntary outpatient services are judicial

and are conducted by the court. Unless the person is otherwise represented by

private counsel, he or she will be represented at the hearing by the public defender.

If at a hearing it is shown that the person continues to meet the criteria for

involuntary placement, the judge will sign the order for continued involuntary

placement for a period not to exceed 90 days. The same procedure can be repeated

prior to the expiration of each additional period the person is retained.

Hearings on petitions for continued involuntary inpatient placement are

administrative rather than judicial hearings and are conducted by an administrative

law judge. However, if the placement was ordered for less than six months, case

law holds that the Florida Division of Administrative Hearings (DOAH) and the

judiciary have concurrent jurisdiction for continued inpatient placement. See, e.g.,

W.M. v. State, 992 So. 2d 383 (Fla. 5th DCA 2008) (within six-month maximum

period of order for involuntary inpatient placement, circuit court has concurrent

jurisdiction over commitment proceedings; after six-month period expires, all

placements must be handled through administrative hearings). (In 2016 the

maximum period was reduced to 90 days except for state treatment facilities,

where the maximum period remains six months.)

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

O. Discharge of Persons on Involuntary Status

See § 394.469, Fla. Stat.; Fla. Admin. Code R. 65E-5.320.

Receiving and treatment facilities, as well as service providers, are required to

discharge a person at any time the person no longer meets the criteria for

involuntary placement, unless the person has transferred, by express and informed

consent, to voluntary status. If the person being discharged is under a criminal

charge, he or she must be transferred to the custody of the appropriate law

enforcement agency at the time of release.

P. Transfers

See § 394.4685, Fla. Stat.; Fla. Admin. Code R. 65E-5.310.

Transfers of persons with emergency medical conditions (including psychiatric and

substance abuse emergencies) from hospital emergency departments are governed

by the federal EMTALA “anti-dumping” or “hospital transfer” law (42 U.S.C.

§ 1395dd) and Florida’s hospital licensing law (chapter 395, Florida Statutes). If a

person requires transfer from a hospital emergency department that has provided

the person evaluation or treatment for an emergency medical condition to a Baker

Act receiving facility, the transfer must take place within 12 hours after the

condition has stabilized. Otherwise, under provisions of the Baker Act governing

transfers between designated receiving and treatment facilities, the following

transfers may occur:

 Between public facilities, upon the request of the person or specified others

or upon the discretion of the department to meet the medical or mental

health treatment needs of the person or the availability of appropriate facility

resources;

 From public to private facilities, upon the request of the person, guardian, or

guardian advocate, and upon acceptance of the person by the private facility;

 From private to public facilities upon the request of the person, guardian,

guardian advocate, or private facility, and upon acceptance of the person by

the public facility. The public facility must respond to a request for the

transfer within two working days after receiving the request. The cost of

such transfer requested by a private facility is the responsibility of the

sending facility.

 Between private facilities upon the request of the person, guardian, or

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

guardian advocate, and upon acceptance of the person by the facility to

which transfer is sought.

Q. Baker Act Oversight

See § 394.457, Fla. Stat.

“The Department of Children and Families (DCF) is designated the ‘Mental Health

Authority’ of Florida. The department and the Agency for Health Care

Administration (AHCA) shall exercise executive and administrative supervision

over all mental health facilities, programs, and services.” § 394.457(1), Fla. Stat.

DCF is required to report to AHCA any violation of the rights or privileges of

persons, or of any procedures provided under the Baker Act, by any facility or

professional licensed or regulated by AHCA. § 394.459(9), Fla. Stat. DCF is also

required to adopt rules establishing forms and procedures relating to the rights and

privileges of persons seeking mental health treatment from designated receiving

and treatment facilities. Unless designated by DCF, facilities are not permitted to

hold or treat persons on involuntary status.

Disability Rights Florida (formerly known as the Advocacy Center for Persons

with Disabilities) is a private nonprofit organization that receives federal funding

to protect and advocate for the rights of persons who have disabilities. Disability

Rights Florida prioritizes services to people with psychiatric disabilities in

institutional inpatient and residential treatment settings. Some services are

provided to those living independently as resources allow. Services to individuals

include information and referrals, self-advocacy support, technical assistance,

investigations into complaints of abuse, neglect and rights violations, support in

dispute resolution, negotiation and mediation, as well as advocacy services.

Statewide initiatives include workshops and trainings, education of policymakers,

systemic and legal advocacy, collaborative work on disability rights issues and the

monitoring of public programs and facilities. Disability Rights Florida has offices

in Tallahassee, Tampa, and Fort Lauderdale, from which it serves the entire state

of Florida.

Contact can be made through www.disabilityrightsflorida.org or 1-800-342-0823

(1-800-346-4127 TDD).

R. Immunity

See § 394.459(10), Fla. Stat.

Any person who acts in good faith in compliance with the provisions of the Baker

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Act is immune from civil or criminal liability for his or her actions in connection

with the admission, diagnosis, treatment, or discharge of a person to or from a

facility, unless that person commits negligence.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

S. Statute and Rule Matrix — Florida Mental Health Act (Baker Act)

Florida Statute

Corresponding Fla. Admin. Code Rule

394.451 Short title

N/A

394.453 Legislative intent

N/A

394.455 Definitions

65E-5.100 Definitions

394.457 Operation and administration

65E-5.110 Delegation of Authority

65E-5.120 Forms

394.4572 Screening of mental health personnel

N/A

394.4573 Continuity of care management

system; measures of performance; reports

65E-5.130 Continuity of Care Management System

65E-5.1301 Transfer Evaluations for Admission to

State Mental Health Treatment Facilities from

Receiving Facilities

65E-5.1302 Admissions to State Treatment Facilities

65E-5.1303 Discharge from Receiving and Treatment

Facilities

394.4574 Department responsibilities for a

mental health resident who resides in an

assisted living facility that holds a limited mental

health license

N/A

394.458 Introduction or removal of certain

articles unlawful; penalty

N/A

394.459 Rights of patients

65E-5.140 Rights of Persons.

65E-5.150 Person’s Right to Individual Dignity

65E-5.160 Right to Treatment

65E-5.1601 General Management of the Treatment

Environment

65E-5.1602 Individual Behavioral Management

Programs

65E-5.170 Right to Express and Informed Consent

65E-5.1703 Emergency Treatment Orders

65E-5.180 Right to Quality Treatment

65E-5.1802 Maintenance of the Facility

65E-5.190 Right to Communication and Visits

65E-5.200 Right to Care and Custody of Personal

Effects

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

65E-5.210 Right to Vote in Public Elections

65E-5.220 Right to Habeas Corpus

65E-5.601 Operation and Administration of State

Mental Health Treatment Facilities

65E-5.602 Rights of Residents of State Mental

Health Treatment Facilities

394.4593 Sexual misconduct prohibited;

reporting required; penalties

N/A

394.4595 Florida statewide and local advocacy

councils; access to patients and records

(Defunded by 2010 Legislature)

N/A

394.4597 Persons to be notified; patient’s

representative

N/A

394.4598 Guardian advocate

65E-5.230 Guardian Advocate

65E-5.2301 Health Care Surrogate or Proxy

394.4599 Notice

N/A

394.460 Rights of professionals

N/A

394.461 Designation of receiving and

treatment facilities and receiving systems

65E-5.350 Eligibility Criteria and Procedures for

Designation of Baker Act Receiving Facilities

65E-5.351 Minimum Standards for Designated

Receiving Facilities

65E-5.352 Procedures for Complaints and

Investigations in Receiving Facilities

65E-5.353 Criteria and Procedures for Suspension or

Withdrawal of Designation of Receiving Facilities

394.4612 Integrated adult mental health crisis

stabilization and addictions receiving facilities

N/A

394.4615 Clinical records; confidentiality

65E-5.250 Clinical Records; Confidentiality

394.462 Transportation

65E-5.260 Transportation

65E-5.2601 Transportation Exception Plan

394.4625 Voluntary admissions

65E-5.270 Voluntary Admission

394.463 Involuntary examination

65E-5.280 Involuntary Examination

65E-5.2801 Minimum Standards for Involuntary

Examination Pursuant to Section 394.463, F.S

394.4655 Involuntary outpatient services

65E-5.285 Involuntary Outpatient Placement

394.467 Involuntary inpatient placement

65E-5.290 Involuntary Inpatient Placement

65E-5.300 Continued Involuntary Inpatient

Placement at Treatment Facilities

Treatment Facilities

394.46715 Rulemaking authority

N/A

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

*The following sections of Part I of chapter 394, Florida Statutes (Baker Act), have been

intentionally omitted from this matrix: 394.4781, “Residential care for psychotic and emotionally

disturbed children”; 394.4786, “Intent; 394.47865, South Florida State Hospital; privatization”;

394.4787, “Definitions; ss. 394.4786, 394.4787, 394.4788, and 394.4789”; 394.4788, “Use of

certain PMATF funds for the purchase of acute care mental health services”; and 394.4789,

“Establishment of referral process and eligibility determination.”

394.4672 Procedure for placement of veteran

with federal agency

N/A

394.468 Admission and discharge procedures

N/A

394.4685 Transfer of patients among facilities

65E-5.310 Transfer of Persons Among Facilities

394.469 Discharge of involuntary patients

65E-5.320 Discharge of Persons on Involuntary

Status

394.473 Attorney’s fee; expert witness fee

N/A

394.475 Acceptance, examination, and

involuntary placement of Florida residents from

out-of-state mental health authorities

N/A

394.4784 Minors; access to outpatient crisis

intervention services and treatment

N/A

394.4785 Children and adolescents; admission

and placement in mental facilities

N/A

394.47891 Military veterans and service

members court programs

N/A

65E-5.330 Training

65E-5.400 Baker Act Funded Services Standards

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

V. Maps of Administrative Entities Regions

A. Judicial Circuits and DCF Regions

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

B. DCF Regions and Managing Entities

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

C. Managing Entities

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

VI. Psychiatric Diagnoses and Treatment/Medication

A. Diagnoses

The Diagnostic and Statistical Manual of Mental Disorders (DSM) -IV, produced

by the American Psychiatric Association, noted five axes, or dimensions, to be

considered in assessment of psychological problems:

 Axis I: Clinical Disorders

 Axis II: Personality Disorders and Developmental Disabilities

 Axis III: General Medical Conditions

 Axis IV: Psychosocial and Environmental Problems

 Axis V: Global Assessment of Functioning

However, in the DSM-5, released in 2013, the multiaxial diagnostic system was

removed and replaced with a simplified documentation approach. Former Axes I,

II, and III were combined into one list, with separate notations for former Axes IV

and V, covering psychosocial and environmental factors and disability.

“Mental illness” is defined in the Baker Act to mean “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 the person’s ability to meet the ordinary demands of living. For the purposes

of this part, the term does not include a developmental disability as defined in

chapter 393, intoxication, or conditions manifested only by antisocial behavior or

substance abuse.” § 394.455(28), Fla. Stat. Impairments of the mental or emotional

processes that interfere with individuals’ ability to control their actions or to

perceive or understand reality are generally considered to be thought disorders or

mood disorders.

Thought disorders may include, but are not limited to, schizophrenia and

schizoaffective disorders:

 Schizophrenia: a group of mental disorders involving disturbances of

thinking, mood, and behavior; may be an altered view of reality, may

include delusions and hallucinations. Mood changes include strange

emotional responses and inability to relate to others. Withdrawn, childlike,

and bizarre behavior may be noted. Schizophrenia is a chronic disorder of

both thought and mood. It interferes with the person’s ability to maintain

interpersonal relationships and to function in daily life. Antipsychotic

medications are used to help control the distressing signs and symptoms

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

suﬀered by an individual who has schizophrenia.

 Schizoaffective disorder: combines major depressive episodes and manic

episodes with concurrent symptoms of schizophrenia.

Mood disorders are a category of mental health problems that includes a

disturbance in mood, usually deep sadness or indiﬀerence, excitement, or

irritability. These include bipolar disorder (previously called manic-depressive

disorder) and major depressive disorder. Mood stabilizers are primarily used to

treat bipolar disorder and to stabilize mood in other conditions. Antidepressants are

used to treat major depressive disorders and severe depression in other conditions.

 Major depression: depressed mood with diminished interest or pleasure,

often with agitation, loss of concentration, insomnia or hypersomnia, fatigue,

feelings of worthlessness.

 Manic episode: a distinct period of abnormally and persistently elevated,

expansive, or irritable mood, generally with decreased need for sleep,

pressured speech, flights of ideas, distractibility, excessive involvement in

pleasurable activities.

 Bipolar disorder: cycling between depressive episodes and manic episodes.

B. Psychotherapeutic Medication

The term “psychotherapeutic medication” refers to all medications used to treat

brain disorders that result in primary disturbances in mental function. Depending

on the eﬀect of the drug, treatment medications may be lumped into various

groups:

 Antipsychotics

 Antidepressants

 Mood stabilizers

 Hypnotics

 Anti-anxiety medications

Properly used, psychotherapeutic medications can cause rapid and signiﬁcant

improvement in the way the person feels and acts. However, psychotherapeutic

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

medications can have negative eﬀects. The doctor must explain the likely beneﬁts,

serious negative reactions, temporary and permanent side eﬀects, and risk

associated with each proposed psychotherapeutic medication to the person, and to

any substitute decision maker when the individual is incompetent to make his or

her own treatment decisions.

The practice of prescribing psychotherapeutic medications has undergone

signiﬁcant changes since they were ﬁrst discovered in the early 1950s. From a

single medication, there are now many available medications for treating the

various psychiatric conditions. Any physician and any psychiatrist can prescribe

psychotherapeutic medications. An advanced registered nurse practitioner (ARNP)

or a physician assistant (PA) may also be able to prescribe under the supervision of

a physician. There have been many powerful advances made in the

pharmacological treatment of bodily illnesses and diseases, including the treatment

of mental illnesses. Medication advances have helped many persons with severe

mental illnesses to leave institutions and to progress toward recovery and

productive lives.

C. Allergies and Side Effects

1. Generally

Allergies are the body’s reaction to what it regards as “foreign” stimuli (allergen)

that cause reaction. Histamine release is at the root of many unpleasant body

events in such an allergic reaction. A few of these are listed below:

 Runny nose and watery eyes. This is the classic hay fever. The histamine

release in the nose and eye tissues can be triggered by allergen particles in

the air that come into contact with the nasal passages and eyes.

 Skin rashes. Rashes can aﬀect a small or large percentage of the body.

Poison ivy oil, for example, causes histamine to be released. In response,

blood vessels dilate, ﬂuid is released, and a rash or swelling forms.

 Gastrointestinal disturbances. Although an allergic reaction such as hives or

swelling of the lips may occur after consuming something, GI symptoms

usually are not allergic reactions. Medication reactions can be widespread

and systemic. GI symptoms are usually a side effect, a result of the action of

serotonin change in the gut or in the brain (nausea).

 Breathing diﬃculties. This is the most serious reaction. The histamine

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

release causes inﬂammation of the airways, which creates diﬃculty in

breathing. The inﬂammation can be severe enough to totally close the

airways. At this point the allergic reaction is truly life threatening.

It is possible to have any or all of these reactions to a medication. It is important to

clarify the diﬀerence between these allergic reactions and side eﬀects. Most

symptoms that a person may describe as allergic reactions are often known side

eﬀects. Most individuals are relieved to know the reaction is not a rare, deadly,

allergic response and that it is expected and treatable. An informed, reassured

person tolerates known side eﬀects better and is more compliant. Depending on the

medication, a side effect may occur only a certain percentage of time (e.g., 5% vs.

20% is an important distinction).

If a medication appears to have caused an intolerable side eﬀect, the doctor must

decide whether it is a side eﬀect or an allergic reaction. A history of an allergic

reaction might eliminate a whole class of medications for possible use in the

individual. However, a serious side eﬀect may eliminate only the speciﬁc oﬀending

drug from consideration.

2. Antipsychotic Medications

There are older antipsychotic medications and newer classes of antipsychotic

medications; the latter are referred to as “atypicals.” Common side eﬀects of

antipsychotics include:

 Drowsiness and slowing, or activation and restlessness. The medication

might prevent a person from being totally alert. These side effects do not

always happen, and they usually lessen with time.

 Weight gain.

 Alteration in body temperature. The neuroleptic drugs can upset the

temperature-regulating center in the brain. A person who is taking a

neuroleptic may lose the ability to sweat, even to the point of heat stroke.

Some people, especially the elderly, are more at risk for hypothermia, or

lowered body temperature.

 Abnormal involuntary movements. The person feels a compelling need to be

in constant movement. The person cannot sit still and may pace, squirm,

shuﬄe in place, tap the feet, drum the ﬁngers, and more. The aﬀected person

may talk about an “antsy” feeling of restless. These might be diagnosed as:

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

o Akathesia.

o Parkinsonism. This may include body tremors, slowed movements, and

postural changes. These go away when the medication is changed or the

dosage is reduced.

o Rigidity.

o Dystonias (a state of abnormal tonicity or prolonged tonic contractions).

Dystonia can be frightening and very painful. Every muscle in a leg, for

instance, may suddenly knot into hard cramps. Dystonia may also cause a

person’s tongue to stick out or make the eyes move rapidly. The person is

helpless to stop the muscle actions.

 Blurred vision. This is generally a temporary side eﬀect. Follow-up is

recommended. For people with narrow angle glaucoma, caution is

recommended.

 Dry mouth or drooling. These conditions are uncomfortable but manageable.

Many medications used for relieving mental illness have these side eﬀects.

 Changes in blood pressure; for example, orthostatic hypotension, a

neuroleptic side eﬀect, felt as being dizzy or faint when standing up. Falling

in a faint is rare. Normally, when someone stands or gets out of bed in the

morning, a reﬂex vasoconstriction occurs to maintain blood pressure.

Neuroleptics may slow this reﬂex for a person.

 Constipation. This condition is uncomfortable but manageable. Many

medications used for relieving mental illness have this side eﬀect.

 Urinary retention or hesitancy. The person may become quite uncomfortable

with a full bladder.

 Sexual dysfunction. This side eﬀect is the most frequent reason given for no

longer taking helpful medication. The doctor may try to eliminate the eﬀect

by lowering the dose or changing medications.

 Sensitivity to sunlight. Thorazine is known to cause this, but it can also

happen with other antipsychotics. Some persons become much more

sensitive to the sun. Persons with this side eﬀect may feel the skin burning

before the severe sunburn can be seen.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Some adverse reactions possible from antipsychotics include:

 Tardive dyskinesia (TD): a movement disorder where there are

uncontrolled facial movements and sometimes jerking or twisting

movements of other body parts. This condition may develop after several

years of taking antipsychotic medications. It occurs mostly in older adults.

The risk of developing TD is about 5% per year for people taking

“conventional” antipsychotics; e.g., four years of use would entail an

approximately 20% risk. For the “atypical” antipsychotics, the risk is

estimated to be 0.5% total, not per year. TD can be treated but not cured.

 Neuroleptic Malignant Syndrome (NMS): a rare but very serious side

eﬀect. Signs to watch for are muscle stiﬀness that occurs over one to three

days, a high fever, and confusion. If these symptoms occur, medical help

must be sought immediately.

3. Medications for Mood Disorders

For depression: Antidepressants are used in the treatment of depression, as well as

other psychiatric disorders. There are four major classes of antidepressants:

selective serotonin reuptake inhibitors (SSRIs), tricyclic antidepressants (TCAs),

monoamine oxidase inhibitors (MAOIs), and newer antidepressant medications.

Possible side effects are as follows:

 Selective serotonin reuptake inhibitors (SSRIs), such as Prozac, Zoloft,

Paxil, Celexa, Lexapro, and others. Side eﬀects of SSRIs may include

anxiety or nervousness, nausea and diarrhea, headache, insomnia, rash,

slight weight loss, and decrease in sexual ability or desire.

 Tricyclic antidepressants (TCAs), such as Pamelor, Nopramin, Tofranil,

Elavil, and Anafranil, are older medications and are not used as much unless

in low doses for sleep or pain control, because of the potential for death. At

full doses, a person needs only a week’s worth of medication to die by an

intentional overdose. Also, because of interactions with some medications, a

person can develop cardiac arrhythmias. TCAs may have side effects

including:

o Sedation or activation/insomnia (because of possible activation, there can

be a temporary feeling of more anxiousness).

o Weight gain or weight loss.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

o Excessive sweating.

o Seizures – fairly rare; mostly the TCAs or bupropion.

o Headache.

o Blurred vision, worsening of narrow-angle glaucoma.

o Dry mouth.

o Cardiovascular effects, which may include hypertension or hypotension

depending on the medication. Increased heart rate is possible, but it is

usually benign.

o Gastrointestinal issues: nausea; diarrhea or constipation; decreased or

increased appetite.

o Urinary retention.

o Sexual dysfunction, including decreased desire or arousal.

 Monoamine Oxidase Inhibitors (MAOIs), such as Parnate, Nardil, and

others, may cause side effects that include:

o Dizziness, rapid heartbeat, loss of sexual interest, and food interaction.

o Orthostatic hypotension.

o Dangerous interaction with food/drink/other medications. MAOIs react

with certain foods and alcoholic beverages, and some medications, to

produce a severe reaction which often does not appear for several hours

after taking the medication. This may include a dangerous rise in blood

pressure, as well as headache, nausea, vomiting, rapid heartbeat, possible

confusion, psychotic symptoms, seizures, stroke, and coma. Dietary

restrictions may be necessary. Foods that may be fatal include ripened

cheeses, fermented sausages, soy sauce, anchovies, pickled herring,

broad beans, and red wine. Hypertensive crisis (heart rate increases and

blood vessels constrict, producing a dramatically high blood pressure)

can occur when MAOIs are taken with certain foods or drugs. This can

be life threatening and is the major reason why MAOIs are not used more

often. The person must be alert to these drug and food interactions.

MAOI treatment should be re-evaluated as an option if the person is

unable to follow the necessary diet.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 Newer antidepressant medications, such as Effexor, Cymbalta, Wellbutrin,

Serzone, and Desyrel, are now in common use.

For bipolar disorder: Mood stabilizers — such as lithium, some anticonvulsant

medications, and some antipsychotic medications — are used primarily to treat

bipolar disorders and to stabilize mood in other conditions. Side eﬀects of lithium

may include:

 Nausea, stomach cramps, diarrhea, mild hand tremor, muscle weakness, dry

mouth, thirst, frequent urination, trouble concentrating, acne, and lethargy.

These are common but usually disappear after the person’s body becomes

accustomed to the lithium dosage.

 Hand tremors. Simultaneous treatment with some types of antidepressants

can worsen this tremor. Heavy tremors may indicate lithium toxicity.

 Renal toxicity. Lithium can reduce the kidney’s ability to concentrate urine

in some people. It is important to monitor kidney function.

 Thyroid eﬀects. Lithium therapy can induce hypothyroidism, causing weight

gain, fatigue, low energy, and slowed mental function, which may be

mistaken as being lithium side eﬀects. Thyroid function testing and

monitoring for this complication and thyroid supplementation can be added

to the medication regimen.

 Cardiac eﬀects. Many cardiac dysfunctions are possible during lithium

intoxication. The main issue is to avoid toxicity. While a baseline ECG may

be done, it is not usually done, because the cardiac effects occur during toxic

high levels. Even a person with a normal baseline ECG can run into trouble

with toxicity. These cardiac eﬀects can be life threatening. If pre-existing

cardiac disease is present, a consultation with a cardiologist is usually

recommended.

 Lithium toxicity. Lithium can produce serious toxic reactions when there is

too little ﬂuid in the blood, called dehydration. “Water pills,” caﬀeine, and

alcohol deplete blood ﬂuids. Other factors that can reduce the body’s ﬂuids

and increase lithium levels are exercise with excessive sweating, fever, ﬂu,

diarrhea, vomiting, decrease in water intake, and slimming diets. A low

sodium diet will increase lithium levels because the kidneys need salt to

function well. During lithium therapy, the body must have enough salt and

10-12 glasses of water every day to prevent the buildup of lithium to toxic

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

levels. Most diuretics and NSAIDS (ibuprofen or Motrin and naproxen or

Aleve, for example) have an effect on the kidneys to retain more lithium,

creating toxic levels. Symptoms of lithium toxicity may include diarrhea,

vomiting, nausea, slurred speech, convulsions, confusion, drowsiness, and

severe trembling. The higher the level of lithium in the blood, the worse

these symptoms become. The doctor should be notiﬁed immediately if these

symptoms appear.

Medications can change lithium levels. Tetracycline increases lithium blood levels;

many asthma aids and certain headache remedies can lower them.

4. Anti-Anxiety Medications

Benzodiazepines are widely used to treat anxiety symptoms and sleep problems in

adults, and research shows some support for their use in children and youth. These

medicines are subject to potential nonmedical misuse. They can contribute to

excessive sedation and intoxication, especially when combined with alcohol. Side

eﬀects may include dizziness, light-headedness, drowsiness, clumsiness,

unsteadiness, amnesia, forgetfulness, and slurred speech. Tolerance can occur and

the initial sedation may go away. But persons in safety-sensitive positions cannot

take these medications because there can still be slowed reaction times and

memory can be diminished. The memory impairment can be subtle or it can be

obvious. The elderly are especially prone to all the side effects and have an

increased incidence of falls and memory impairment.

C. Importance of Medication Compliance

All medications have the potential of producing dramatic signiﬁcant beneﬁts for an

individual. If the person does not take the medication, for whatever reason, its

beneﬁt will not be felt. Noncompliance with medication (i.e., failing to regularly

follow the prescribed medication schedule necessary for the eﬀectiveness of the

medication) is the major reason for re-admissions to crisis stabilization units

(CSUs) and hospitals. A person’s decompensation (returning to the previous

unmedicated state of illness) carries a high cost to the person in the form of

psychological pain, frustration, and worst case, death. It is also costly to society in

the form of increased health care expense.

Side eﬀects are a major reason for medication noncompliance. Improved

medication compliance occurs when the person is stable and feels ﬁne while taking

medications. The danger occurs when the person has been discharged from the

hospital and feels that he/she is “healed” and no longer sees the need for taking the

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

medication.

Chronic illnesses like hypertension and diabetes, for example, require persons to

take medication for the rest of their lives. Mental illness is also an illness that may

require life-long medications. Fortunately, in modem society there is no longer any

stigma in taking medications for chronic illnesses like diabetes. However, too

many people feel diﬀerently about medications taken to treat mental illnesses. This

stigma, sometimes expressed even by family members, may discourage the person

from taking the needed medication. For persons needing such medications, the

failure to sustain medication compliance is likely to cause repeated cycles of

hospitalization with an accompanying lowering of mental abilities.

D. Electroconvulsive Therapy (ECT)

Electroconvulsive therapy (formerly known as electroshock therapy), whereby

seizures are electrically induced to provide relief from psychiatric illnesses, has

become a standard psychiatric treatment. The following is taken from the Mayo

Clinic Electroconvulsive therapy (ECT) webpage.

ECT is used to treat:

 Severe depression, particularly when accompanied by detachment

from reality (psychosis), a desire to commit suicide, or refusal to

eat.

 Treatment-resistant depression, a severe depression that doesn’t

improve with medications or other treatments.

 Severe mania, a state of intense euphoria, agitation or

hyperactivity that occurs as part of bipolar disorder. Other signs of

mania include impaired decision making, impulsive or risky

behavior, substance abuse, and psychosis.

 Catatonia, characterized by lack of movement, fast or strange

movements, lack of speech, and other symptoms. It’s associated

with schizophrenia and some other psychiatric disorders. In some

cases, catatonia is caused by a medical illness.

 Agitation and aggression in people with dementia, which can be

difficult to treat and negatively affect quality of life.

ECT may be a good treatment option when medications aren’t

tolerated or other forms of therapy haven’t worked. In some cases

ECT is used:

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 During pregnancy, when medications can’t be taken because they

might harm the developing fetus

 In older adults who can’t tolerate drug side effects

 In people who prefer ECT treatments over taking medications

 When ECT has been successful in the past

Although ECT is generally safe, risks and side effects may include:

 Confusion. Immediately after an ECT treatment, you may

experience a period of confusion that can last from a few minutes

to several hours. You may not know where you are or why you’re

there. You may be able to return to normal activities right away, or

you may need to rest for several hours after treatment. Rarely,

confusion may last several days or longer. Confusion is generally

more noticeable in older adults.

 Memory loss. ECT can affect memory in several ways. You may

have trouble remembering events that occurred before treatment

began, a condition known as retrograde amnesia. It may be hard to

remember things in the weeks or months leading up to treatment,

although some people do have problems with memories from

previous years as well. You may also have trouble recalling events

that occurred during the weeks of your treatment. And some

people have trouble with memory of events that occur even after

ECT has stopped. These memory problems usually improve within

a couple of months.

 Physical side effects. On the days you have an ECT treatment, you

may experience nausea, vomiting, headache, jaw pain, muscle ache

or muscle spasms. These generally can be treated with

medications.

 Medical complications. As with any type of medical procedure,

especially one that involves anesthesia, there are risks of medical

complications. During ECT, heart rate and blood pressure increase,

and in rare cases, that can lead to serious heart problems. If you

have heart problems, ECT may be more risky.

VII. Adult Mental Health System of Services and Support

The following is taken from the DCF webpages.

The kinds and amounts of publicly funded mental health services

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

available in an area are limited by the amount of funding available in

that area. The following list shows the kinds of services that can be

provided to people who meet the adult mental health priority

population criteria.

Florida’s service array can be put into the three broad categories:

treatment, rehabilitation, and support services. However, many of the

services identified in any one of the three categories could also be

identified in one or more of the others. Assertive Community

Treatment and Comprehensive Community Service Teams are two

examples of services falling into more than one broad category.

 Treatment

 Rehabilitation

 Support

TREATMENT

Treatment is a systematic approach to relieving the primary symptoms

and life results of mental illnesses. Treatment is intended to lessen and

remove the symptoms of mental illnesses, prevent later reoccurrence

or worsening of symptoms, and help individuals cope with symptoms

when medications and other treatments are only partially successful.

Treatment typically contains four elements:

 Medications;

 Individual therapy

 Crisis intervention; and when necessary

 Psychiatric hospitalization.

Florida considers the following services as treatment options:

Florida Assertive Community Treatment (FACT)

Florida Assertive Community Treatment Team (FACT) services are

available on a statewide basis and are modeled after the original

Programs of Assertive Community Treatment (PACT) in Madison,

Wisconsin. There are 31 FACT teams across the state. Each team is

staffed with a program psychiatrist, peer specialist, and team leader,

with a total staffing of 12.3 Full Time Equivalents (FTEs). Each team

has an independent advisory committee to assist the team develop

resources in its community. FACT is unique in Florida - at present it

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

is the only service available that offers a housing, medication, and

flexible funding subsidy to enrolled individuals. Each team is

mandated to serve no more than 100 individuals. FACT guidelines

have recently been revised so that enhancement funds can be used for

an expanded variety of services and supports. FACT is not a self-

directed program, and participants do not receive fixed budget

amounts for discretionary use. Clinical services are provided entirely

within the FACT Team - that’s what makes it unique. However, an

expansion of acceptable uses for enhancement funds will provide

participants greater opportunities for articulating and achieving their

individualized recovery goals.

Assessment

These services assess, evaluate, and provide assistance to individuals

and families to determine level of care, motivation, and the need for

services and supports. Assessment also assists individuals and

families in identifying their strengths.

Integrated Treatment for Individuals with Co-occurring Disorders

Florida understands that many adults in our priority populations have

both a mental illness and substance use disorder. A good assessment

and treatment for both at the same time is required so that people can

get better. Making sure contracted providers in the public mental

health and substance abuse systems can do a thorough assessment and

provide or arrange for needed treatment is a current priority for the

state.

Crisis Support / Emergency

These are outpatient services generally available twenty-four hours

per day, seven days per week, or some other specific time period, to

intervene in a crisis or provide emergency care.

Crisis Stabilization Unit (CSU)

This is an emergency care intervention, available twenty-four hours

per day, seven days per week. People can go to a CSU, or be brought

there by police, friends or relatives. They are assessed and may be

admitted voluntarily or against their wishes until the mental health

emergency is over.

Health Services (see also Medical Services, which follows later in this

section)

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Florida’s publicly-funded community mental health system does not

directly purchase other types of health services. However, as part of

the assessment process, case managers pursue needed health care

(e.g., medical services other than psychiatric; dental care; eye care /

glasses) by using resources available in the community. These efforts

could include referrals to local physicians who accept Medicaid,

county public health units, or physicians who provide free service

time. The issues are varied and can range from routine vaccinations to

treatment for diabetes or other life-threatening illnesses.

In-Home And On-Site Services

These are therapeutic services and supports rendered in non-mental

health provider settings, such as in nursing homes, assisted living

facilities (ALFs), residences, schools, detention centers, commitment

settings, foster homes, and other community settings.

Inpatient Services

Inpatient services are services provided in hospitals licensed under

Chapter 395, F.S., as general hospitals and psychiatric specialty

hospitals. They are designed to provide intensive treatment to persons

exhibiting violent behaviors, suicidal behaviors and other severe

disturbances due to substance abuse or mental illness.

Intervention - Individual or Group

These services focus on reducing risk factors generally associated

with the progression of substance abuse and mental health problems.

Intervention is accomplished through early identification of persons at

risk, performing basic individual assessments, and providing

supportive services that emphasize short-term counseling and referral.

These services are targeted toward individuals and families.

Medical and Dental Services

Medical services provide primary medical care, therapy, and

medication administration. This includes a psychiatric mental status

assessment, and the administration of psychiatric medications. For

adults, medical services are usually provided on a regular schedule

with arrangements for non-scheduled visits during times of increased

stress or crisis.

Case managers also make an assessment of the need for medical and

dental services (see also Health Services in this section, above), and

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

referrals are made to physicians or dentists in the community who

accept Medicaid. People who do not have Medicaid are referred to

whatever medical or dental services are available locally. These

resources may include Regional Workforce Board One-Stop Centers

and public health departments, medical societies, individual

physicians, and hospitals. The Department pays for medical and

dental care for individuals living in state mental health residential

treatment facilities.

Outpatient-Individual and Group

This cost center provides a therapeutic environment that is designed to

improve the functioning or prevent further deterioration of persons

with mental health and/or substance abuse problems. Outpatient

services are usually provided on a regularly scheduled basis by

appointment, with arrangements made for non-scheduled visits during

times of increased stress or crisis.

Residential Level 1

These are licensed services that provide structured, live-in, non-

hospital settings with 24-hour supervision daily. There is a nurse on

duty in these facilities at all times. For adult mental health, these

services include two different kinds of programs: group homes and

short-term residential treatment services. Group homes are for

residents who may require longer lengths of stay. These facilities offer

nursing supervision provided by, at a minimum, licensed practical

nurses, 24 hours a day, seven days per week.

Residential Level 2

These are licensed, structured rehabilitation-oriented group facilities

that have 24-hour a day, seven days per week supervision. Level 2

facilities are for persons who have significant deficits in independent

living skills and need extensive support and supervision.

Short-term Residential Treatment (SRT)

These individualized, acute, and immediately sub-acute care services

provide intensive mental health residential and rehabilitative services

24 hours a day, seven days per week. These services must meet the

needs of individuals who are experiencing an acute or immediately

sub-acute crisis and who, in the absence of a suitable alternative,

would require hospitalization. SRT services provide intensive

residential treatment for individuals in need of acute care for up to 120

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

days.

REHABILITATION

Rehabilitation is the process of helping individuals minimize the

effects of mental illnesses on major role skills and develop greater

competencies in employment, activities of daily living, social

performance. They promote recovery.

Florida considers the following services as rehabilitation options:

Aftercare services

These services include but are not limited to relapse prevention, and

are a vital part of recovery in every service level. Aftercare activities

include customer participation in daily activity functions that were

adversely affected by mental illness and/or substance abuse

impairments. New directional goals such as vocational education or

rebuilding relationships are often priorities. Relapse prevention

education is essential in assisting the customer’s recognition of

triggers and warning signs of regression. Aftercare services help

families and pro-social support systems reinforce a healthy living

environment.

Comprehensive Community Service Team - Individual or Group

Comprehensive Community Service Team (CCST) services render

assistance in identifying goals and making choices to promote resiliency and

facilitate recovery for adults and children with mental illnesses. The services

take place in either an outpatient or community setting. For individuals with

mental health problems, recovery is the personal process of overcoming the

negative impact of psychiatric illness despite its continued presence. CCST

services are intended to restore the individual’s function and participation in

the community. The services are designed to assist and guide individuals in

reconnecting with society and rebuilding skills in identified roles in their

environment. The focus is on the individuals’ strengths and resources as well

as their readiness and phase of recovery. A team approach of services will be

used to guide and support the adults and children served with development

of a recovery plan focusing on the areas of individual and family living,

learning, working, and socialization activities. Any therapy is brief and

oriented toward skill building. Services provided include Assessment, Case

Management, Intensive Case Management, Supported Housing, Aftercare,

Supported Employment, Outreach, Outpatient, In-home/On-site,

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Intervention, Information and Referral, Prevention, Prevention/Intervention

and other transition and non-traditional support services as negotiated by the

Department and the provider.

Day-night Services

These services provide a structured schedule of non-residential services for

three (when Medicaid funded) or four or more consecutive hours per day.

This may include delivery of services during evening hours. Activities for

children and adult mental health programs are designed to assist individuals

to attain the skills and behaviors needed to function successfully in the

living, learning, work, and social environments of their community.

Generally, a person receives three or more services a week. Activities for

substance abuse programs emphasize rehabilitation, treatment, and education

services, using multidisciplinary teams to provide integrated programs of

academic, therapeutic, and family services.

Educational Services

Educational activities are provided in a variety of service settings. These

include providing educational assessments; day treatment; case

management; drop-in, self-help centers; and the Florida Assertive

Community Treatment Team (FACT) program’s specific educational service

entitled Education, Support and Consultation to Family, and Other Major

Supports. With the exception of the FACT-specific service for education,

most educational services may be provided on-site of providers, with

instructors funded through local school boards.

Florida Self-Directed Care

Florida Self-Directed Care is available in two parts of the state - the

Jacksonville area and Southwest Florida. People eligible for public mental

health services are given a budget and can choose the services and supports

they want to buy, and from whom they will buy them. Their purchases have

to be linked to a personal recovery plan, and some of the services have to be

clinical. This program has served as a national model for similar efforts in

other states.

Supportive Housing

Supported housing/living services are designed to help people with

substance abuse or psychiatric disabilities find and keep living arrangements

of their choice. They also provide services and supports to ensure continued

successful living in the community. The goal of Supportive Housing is to

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

ensure that everyone has the opportunity to live as independently as

possible.

Supportive Employment

Supported Employment programs help people get or get back to productive

employment. These services are community-based and take place in an

integrated work setting, which provides regular contact with non-disabled

co-workers or the public. A job coach provides long-term ongoing support

as needed to give an individual every opportunity to maintain employment.

Mental Health Clubhouse

Clubhouses are structured, community-based interventions where members

can strengthen and/or regain interpersonal skills, get psycho-social therapy

toward rehabilitation, develop the environmental supports necessary to

thrive in the community, meet employment and other life goals, and recover

from the bad effects of a mental illness. Services are typically provided in a

community-based program with trained staff and members working as teams

to address the person’s life goals and to perform the tasks necessary for the

operations of the program. Clubhouses use a holistic approach focusing on a

person’s strengths and abilities while challenging that individual to pursue

chosen life goals. Florida is invested in the International Center for

Clubhouse Development (ICCD) model. Though there are other programs

promoting employment across the system, Florida strongly encourages the

ICCD approach and certification.

Residential Level 3

These are licensed facilities, structured to provide 24-hour a day, seven days

per week supervised residential alternatives to persons who have developed

a moderate functional capacity for independent living. For adults with

serious mental illnesses, these are supervised apartments.

SUPPORT

Support is practical, hands-on assistance to help people handle the

necessities of daily living and assist them in their recovery process.

Florida considers the following services as support options:

Case Management

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Case managers help people identify their needs, plan their services, link

them to the service system, coordinate the various system components,

monitor service delivery, and evaluate the effect of the services received.

Intensive Case Management

Same as above. Intensive case management is typically offered to persons

who are being discharged from a state mental health treatment facility or

crisis stabilization unit and in need of more support. They may also have

more needs for things like rental or regular transportation assistance to help

them live in the community.

Day Care Services

Day care services provide a structured schedule of activities for four hours

or more consecutive hours per day for children of persons who are

participating in a substance abuse or mental health day-night service or

residential service.

Drop-In / Self-Help Centers

These centers are intended to provide a range of opportunities for persons

with serious and persistent mental illnesses to independently develop,

operate, and participate in social, recreational, and networking activities.

Many are operated by consumers of mental health services.

Incidental Expenses

These may include the cost of medications that can’t be paid for any other

way, as well as things like clothing, medical care, educational needs,

housing subsidies, or one-time expenses like the cost of turning on utilities

for a new place to live.

Information and Referral

Provides information about resources in the community and

agencies/organizations that offer assistance; links people who need

assistance with people who can provide it.

Prevention

Prevention services involve strategies that avoid or put off the development

of substance abuse and mental health problems. They include increasing

public awareness through information, education, and alternative-focused

activities.

Residential Level 4

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

The facility may have less than 24 hours a day, seven days per week on-

premise supervision. This is the least intensive level of residential care and is

primarily a support service. For adults with serious mental illnesses, this

includes satellite apartments, satellite group homes, and therapeutic foster

homes.

Respite Services

Respite service is an organized program designed to sustain the family or

other primary care-giver by providing time-limited, temporary relief from

the ongoing responsibility of care giving.

Room and Board with Supervision Levels 1-3

This pays room and board costs for people living in Medicaid-funded

residential programs. Medicaid pays for the clinical services, and the SAMH

program pays for the rest.

VIII. Children’s Mental Health System of Services and Support

The following is taken from the DCF webpages.

The [DCF] Children’s Mental Health Program is a coordinated

network of community-based services and supports that is youth-

guided and family-driven to produce individualized, evidence-based,

culturally and linguistically competent outcomes that improve the

lives of children and their families.

This program provides funding for in-home and community based

outpatient services, crisis services and residential treatment (including

psychiatric residential treatment facilities, Therapeutic Foster Care,

and Therapeutic Group Homes provided through joint Medicaid and

Mental Health Program contracts with behavioral health managed

entities and providers).

The program also provides coordination and management of the

Juvenile Incompetent to Proceed (JITP) program. The system requires

that services are individualized, culturally competent, integrated, and

coordinated. The aim is to provide a smooth transition from children’s

mental health to the adult mental health system for continued age-

appropriate services and supports. These services are designed to

build resilience and to prevent the severity, duration and disabling

aspects of children’s mental and emotional disorders.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Services in the Children’s Mental Health Program

Service Planning and Coordination - Multi-disciplinary planning

teams, often called Family Service Planning Teams are family-

focused and community-based, and serve as a focus for identifying

supports and service planning for the family.

Residential Treatment – In some cases, residential treatment may be

necessary for some children. . . . Section 394.4781, Florida Statutes,

authorizes the Department to pay a portion of the costs associated

with residential care for children who have been diagnosed with

severe emotional disturbance, who are recommended to need a

residential level of mental health treatment by a Florida licensed

psychologist or psychiatrist, and who are not eligible for public or

private insurance.

The Department has very limited state General Revenue funds to

purchase residential mental health treatment for children who qualify

and is required to review applications monthly to approve or

disapprove each application in accordance with:

 The severity of the problems of the child

 The financial means of the family

 The availability of the needed residential care

 Available funds

Each DCF region has a procedure for reviewing applications for

residential mental health treatment and determining whether

placement in such a setting is the least restrictive, most beneficial

treatment alternative for the child. Many children, even those with

severe conditions, can be more effectively served in the community

with a specially designed program of “wraparound” services for the

child and family.

The goal of mental health treatment is to assist the child to live

successfully in their community and with their families. Therefore, the

placement of a child into residential mental health treatment should be

made only after careful consideration is given to less restrictive

treatment alternatives. Regions use a staffing process involving the

child and parents or other caregivers and a multiagency group of

professionals to consider the strengths and needs of the child and

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

family and developed a service plan to enable the child either to

remain at home or to return home from the treatment setting as soon

as possible. Only if the needed services cannot be provided in a less

restrictive environment is placement in a residential mental health

treatment program considered.

If residential treatment is approved by the [DCF] regional office, it

must then be determined if funding is available to place the child. All

available sources of funds are explored, including insurance (public

and private) and cost-sharing with the family, the local school district,

and other programs involved with the child, such as child welfare and

juvenile justice.

Family Inclusion - Florida’s Children’s Mental Health program is

fully committed to the value of family involvement. We strongly

believe that families must be included in all decisions regarding the

planning and provision of mental health services for their children. It

is the responsibility of all who work within the system of care to make

every effort to assure families have a strong voice and are actively

involved in the decisions being made that impact their child and

family.

Additionally, we are equally committed to including families in

policy-making. Since families have personal experience with the

service delivery system, they provide a reality base for policymakers,

a fresh perspective on how the system of care is serving their children,

and ideas for improving services. . . .

Medicaid Eligibility

Medicaid - Children may be eligible for Medicaid. Medicaid-covered

services can be provided only to Medicaid-eligible children, only by

Medicaid-enrolled providers. . . .

Juvenile Incompetent to Proceed Program

JITP - Florida’s Juvenile Incompetent to Proceed (JITP) Program

provides competency restoration services to juveniles who have been

charged with a felony prior to their 18th birthday and do not have the

ability to participate in legal proceedings due to their mental illness,

[intellectual disability], or autism.

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

IX. Glossary of Common Definitions, Acronyms, and Abbreviations

Acute: sudden and/or severe

Advance directive: a witnessed written document described in section 765.101(1),

Florida Statutes

Adverse reaction: sudden physical or mental crisis as a reaction to a medication

Agent: medication, drug

AHCA: Agency for Health Care Administration

Akathesia: inability to sit still, urgent need for movement to relieve anxiety

Anticonvulsant: medication to prevent or lessen seizures

Assessment: “the systematic collection and integrated review of individual-

specific data. It is the process by which individual-specific information such as

examinations and evaluations are gathered, analyzed, monitored and documented

to develop the person’s individualized plan of treatment and to monitor recovery.

Assessment specifically includes efforts to identify the person’s key medical and

psychological needs, competency to consent to treatment, patterns of a co-

occurring mental illness and substance abuse, as well as clinically significant

neurological deficits, traumatic brain injury, organicity, physical disability,

developmental disability, need for assistive devices, and physical or sexual abuse

or trauma.” Fla. Admin. Code Rule 65E-5.100(2).

BA-8: order for involuntary inpatient placement – recommended (short for form

CF-MH form 3008)

BA-32: petition for involuntary inpatient placement – recommended (short for

form CF-MH 3032)

BA-52A: initiation form used by law enforcement for involuntary examination –

mandatory (short for form CF-MH 3052a)

BA-52B: initiation form used by authorized mental health professionals for

involuntary examinations – mandatory (short for form CF-MH 3052b)

Baker Act: Florida’s Mental Health Act; chapter 394, part I, Florida Statutes

Behavioral Therapy: talk therapy directed at changing thinking habits (like

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

rational emotive therapy)

Chronic: constant condition, or always returning

Compliance: taking medication exactly as planned

Continued involuntary placement: involuntary placement that is subsequent to

the original involuntary placement hearing and order

Court: unless otherwise specified, the circuit court

Crisis: a peak in an illness

Decanoate: long duration medication injected into muscle

Decompensation: returning to the previous unmedicated state of illness

Delusion: a ﬁrmly held belief, not shared by other people, and not changed by

logic

Depression: mood condition of uncontrollable sadness, worry, slowed motion

Disassociate: to become separated from reality

Discharge plan: “the plan developed with and by the person which sets forth how

the person will meet his or her needs, including living arrangements,

transportation, aftercare, physical health, and securing needed psychotropic

medications for the post-discharge period of up to 21 days.” Fla. Admin. Code

Rule 65E-5.100(4).

Disorder: permanent medical problem (like diabetes or mania)

Dosage: how much medication is taken at a time

DSM: Diagnostic and Statistical Manual

Dysfunction: low or missing ability

Dystonia: muscle stiﬀness, a painful side eﬀect

ECT: electroconvulsive therapy

ED: emergency department or emergency room

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Edema: swelling due to ﬂuid retention

Eﬃcacy: how well a treatment works for a person

Emergency medical condition (EMC): a medical condition with acute symptoms

sufficiently severe that without immediate medical attention the condition could

result in serious harm to patient health, serious impairment to bodily functions, or

serious dysfunction of any bodily organ or part (defined in section 395.002(8),

Florida Statutes).

Emergency treatment order (ETO): “a written emergency order for psychotropic

medications . . . or a written emergency order for seclusion or restraint.” Fla.

Admin. Code Rule 65E-5.100(5).

Episode: event; usually one in a series

EPS: extrapyramidal symptoms; a side eﬀect of medication formulation: the

combination of chemicals in a particular medication (see generic)

Examination: “the integration of the physical examination under Section

394.459(2), F.S., with other diagnostic activities to determine if the person is

medically stable, and to rule out abnormalities of thought, mood, or behavior that

mimic psychiatric symptoms but are due to nonpsychiatric medical causes such as

disease, infection, injury, toxicity, or metabolic disturbances. Examination includes

the identification of person-specific risk factors for treatment such as elevated

blood pressure, organ dysfunction, substance abuse, or trauma.” Fla. Admin. Code

Rule 65E-5.100(6).”

Express and informed consent: “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.”

§ 394.455(15), Fla. Stat.

F/U: follow up

Generic: medication made by other companies; may vary in strength compared to

“brand”

Hallucination: hearing, seeing, touching, smelling or tasting unreal input

Health care proxy: “a competent adult who has not been expressly designated by

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

an advance directive to make health care decisions for a particular incapacitated

individual, but is authorized pursuant to Section 765.401, F.S., to make health care

decisions for such individual.” Fla. Admin. Code Rule 65E-5.100(7).

Health care surrogate: “any competent adult expressly designated by a

principal’s advance directive to make health care decisions on behalf of the

principal upon the principal’s incapacity.” Fla. Admin. Code Rule 65E-5.100(8).

Hematological: blood tests

Hypnotic: very calming

Hypothermia: body temperature drops below normal

ICD: International Classification of Diseases

IM: intramuscular injection of a medication

Incompetent to consent to treatment: “a state in which a person’s judgment is so

affected by a mental illness or a substance abuse impairment that he or she person

lacks the capacity to make a well-reasoned, willful, and knowing decision

concerning his or her medical, mental health, or substance abuse treatment.”

§ 394.455(21), Fla. Stat.

Interaction: one agent may change the way another one works

Involuntary examination: an examination performed under section. 394.463,

Florida Statutes, to determine if an individual qualifies for involuntary inpatient

treatment under section 394.467(1) or involuntary outpatient services under section

394.4655(2). § 394.455(34), Fla. Stat.

Involuntary placement: either involuntary outpatient services pursuant to section

394.4655, Florida Statutes, or involuntary inpatient treatment pursuant to section

394.467

IOP or AOT: involuntary outpatient treatment or assisted outpatient treatment,

which are synonymous; the former is used in Florida.

Lethargy: feeling of great tiredness

Maintenance dosing: dosing to prevent the person from having an acute episode

of the disorder

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Malaise: tiredness, vague feeling of illness

Mania: mood condition of uncontrollable physical or mental activity

Marchman Act: Florida’s substance abuse impairment law; chapter 397, Florida

Statutes. A Baker Act & Marchman Act Comparison document is available on the

DCF website.

Medication regimen: overall medications, including kinds and amounts of each

drug

Mental illness: “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 the person’s ability to meet

the ordinary demands of living. For the purposes of this part, the term does not

include a developmental disability as defined in chapter 393, intoxication, or

conditions manifested only by antisocial behavior or substance abuse.”

§ 394.455(28), Fla. Stat.

Monitoring: watching and recording event

Mood: emotional state

Neuroleptic: a drug designed to treat an illness by calming the brain

NMS: Neuroleptic Malignant Syndrome, a rare and dangerous physical reaction to

a psychotherapeutic medication

Noncompliance: inability or refusal to take treatment as prescribed

NOS: not otherwise specified

Obsession: unshakable focus on an idea, emotion or action (like jealousy)

Obsessive compulsive disorder (OCD): brain disruption causing repetitive ritual

actions to relieve feelings of anxiety

Oculogyric: eyes are constantly moving

Orthostatic hypotension: sudden drop in blood pressure

Paranoia: unbreakable, rigid belief of being persecuted

Polydipsia: drinking too much ﬂuid, from being constantly thirsty

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Polypharmacy: use of two or more medications for the same problem at the same

time

PRN: pro re nata; take when needed. “[A]n individualized order for the care of an

individual person which is written after the person has been seen by the

practitioner. . . . A PRN order shall not be used as an emergency treatment order.”

Fla. Admin. Code Rule 65E-5.100(11).

Psychomotor: movements caused by brain activity, not conscious will

Psychosis: loss of contact with reality, with delusions and hallucinations

Psychotherapeutic medications: medications used to alter abnormal thinking,

feelings, or behavior

Psychotherapy: method of treating mental disorders by discussion and interaction

Receiving facility: a facility designated by DCF to receive and hold individuals

involuntarily under emergency conditions or for psychiatric evaluation and provide

short-term treatment; does not include county jails

Rehabilitation: bringing a person back to normal skills

SAMH: substance abuse and mental health program of DCF

Schizophrenia: a group of mental disorders involving disturbances of thinking,

mood and behavior; may be an altered view of reality, may include delusions and

hallucinations. Mood changes include strange emotional responses and inability to

relate to others. Withdrawn, childlike, and bizarre behavior may be noted.

Service provider: “a receiving facility, a facility licensed under chapter 397, a

treatment facility, an entity under contract with the department to provide mental

health or substance abuse services, a community mental health center or clinic, a

psychologist, a clinical social worker, a marriage and family therapist, a mental

health counselor, a physician, a psychiatrist, an advanced registered nurse

practitioner, a psychiatric nurse, or a qualified professional as defined in s. 39.01.”

§ 394.455(44), Fla. Stat.

Side eﬀect: not part of the desired medical eﬀect

Sign: visible evidence of illness, such as a fever or hearing non-existent voices

Standing order: “a broad protocol or delegation of medical authority that is

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

generally applicable to a group of persons, hence not individualized.” Fla. Admin.

Code Rule 65E-5.100(16).

Stat: emergency, act at once! (abbreviation of Latin “statim,” meaning

immediately)

Substance abuse impairment: “a condition involving the use of alcoholic

beverages or any psychoactive or mood-altering substance in such a manner that a

person has lost the power of self-control and has inflicted or is likely to inflict

physical harm on himself, herself, or another.” § 394.455(44), Fla. Stat.

Symptom: the person’s description of physical or mental illness; “the person is

complaining that . . . .”

Syndrome: a group of certain signs and symptoms that indicates a particular

diagnosis

Tardive dyskinesia: temporary to permanent side eﬀect of neuroleptic

medications; involuntary tongue, eye, lip movement progressing to twisted body

posture

Titration: in medicine, a gradual increase

Tolerance: becoming used to an unpleasant situation

Tonic: muscles are tightened up, not relaxed

Transfer evaluation: the process by which a person who is being considered for

placement in a state treatment facility is evaluated for appropriateness of admission

to the facility. § 394.455(46), Fla. Stat. A civil patient may not be admitted to a

state treatment facility without previously undergoing a transfer evaluation. Before

a court hearing for involuntary placement in a state treatment facility, the court

must receive and consider the information documented in the transfer evaluation.

Treatment facility: “a state-owned, state-operated, or state-supported hospital,

center, or clinic designated by [DCF] for extended treatment and hospitalization,

beyond that provided for by a receiving facility, of persons with a mental illness.”

§ 394.455(32), Fla. Stat. It includes a private facility designated by DCF when

rendering those services to a person pursuant to the Baker Act.

Triage center: “a facility that has medical, mental health, and substance abuse

professionals present or on call to provide emergency screening and evaluation for

Chapter One History and Overview of Baker Act

_____________________________________________________________________________________

Baker Act Benchguide November 2016

mental health or substance abuse disorders for individuals transported to the center

by a law enforcement officer.” § 394.455(48), Fla. Stat.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Chapter Two: Express and Informed Consent

I. Guardian Advocates and Other Substitute Decision Makers

See § 394.459(3), Fla. Stat.; Fla. Admin. Code R. 65E-5.170.

Consent in the mental health treatment context is simply the agreement of one

person to accept the actions or decisions of another as his/her own. Consent must

be voluntary, by a person who is competent to choose and who is fully informed

about and understands the consequences of that choice. Individuals competent to

consent to treatment are also competent to refuse or revoke consent to treatment.

When a person is not competent to choose, he or she must be transferred to

involuntary status. There are legally prescribed methods for obtaining substitute

decision-making in such circumstances.

“Express and informed consent” is defined in the Baker Act as “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.” § 394.455(15), Fla. Stat.

A person “incompetent to consent to treatment,” as defined in the Baker Act, is a

person whose “judgment is so affected by a mental illness or a substance abuse

impairment that he or she lacks the capacity to make a well-reasoned, willful, and

knowing decision concerning his or her medical, mental health, or substance abuse

treatment.” § 394.455(21), Fla. Stat.

Each person entering a facility, other than those who are incapacitated or

incompetent to consent to treatment, must be asked to give express and informed

consent for admission and treatment. If the person is a minor, express and informed

consent for admission and treatment is required from the guardian.

No person can be administered treatment in a receiving or treatment facility

without express and informed consent to the treatment having first been provided

by a person legally authorized to give that consent, except in documented cases of

imminent danger when a physician orders emergency treatment.

Prior to seeking such consent, the person and/or guardian (if incapacitated or a

minor), guardian advocate, or health care surrogate/proxy must be given at least

the following information, and the clinical record should reflect that the person or

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

substitute decision maker clearly understood the information, had an opportunity to

ask questions and get answers about the information, and understood the

consequences of providing or withholding consent:

 Reason for admission or treatment.

 Proposed treatment, including proposed psychotropic medications.

 Purpose of treatment to be provided.

 Alternative treatments.

 Specific dosage range for medication.

 Frequency and method of administration.

 Common risks, benefits, and common short-term and long-term side effects.

 Any contraindications which may exist.

 Clinically significant interactive effects with other medications.

 Similar information on alternative medication that may have less severe or

serious side effects.

 Potential effects of stopping treatment.

 Approximate length of care.

 How treatment will be monitored.

 That notification that any consent for treatment may be revoked orally or in

writing before or during the treatment period by any person legally

authorized to make health care decisions on behalf of the individual.

II. Documentation of Competence to Provide Express and Informed Consent

A physician must determine whether a person being admitted to a receiving or

treatment facility is competent to provide express and informed consent to

admission and treatment.

 An adult admitted on a voluntary basis or transferred from involuntary to

voluntary status must be competent to provide his or her own consent. The

guardian of a minor must be willing to provide express and informed

consent for the minor.

 A person admitted on an involuntary status may or may not be competent to

provide or refuse to provide express and informed consent for his or her own

treatment.

In any case, when an adult is permitted to provide consent for his or her own

treatment, the physician must document in the clinical record the adult’s

competence to make well-reasoned, willful, and knowing medical, mental health,

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

or substance abuse treatment. If the person is not competent to consent, as defined

above, the facility administrator must release the person or petition the court for

appointment of a guardian advocate, unless the person already has a court-

appointed guardian. Only when the safety of the person or others is in imminent

danger may the physician order emergency treatment.

Emergency psychiatric treatment (by Emergency Treatment Order, ETO)

may be rendered in the least restrictive manner upon the written order of a

physician, if it is determined that such treatment is necessary for the safety of the

person or others and express and informed consent from an authorized person is

unavailable. If the person has not had a guardian appointed by the court, a petition

for a guardian advocate must be initiated within 24 hours and submitted to the

court within two court working days (unless only one ETO is ordered within a

seven-day period). See Fla. Admin. Code R. 65E-5.1703.

Drugs used as a restraint are medications that are used to control behavior or to

restrict the person’s freedom of movement and are not part of the standard

treatment for the person’s medical or psychiatric condition. § 394.455(41)(b), Fla.

Stat. Chemical restraints are also regulated by federal conditions of participation

and accrediting organizations.

Electroconvulsive treatment (ECT) may be authorized by a competent person or

by a guardian, or by a guardian advocate who has been given express court

authority to consent to electroconvulsive treatment. § 394.459(3)(b), Fla. Stat.

Section 458.325, Florida Statutes, requires that electroconvulsive treatment be

agreed to by a second physician not directly involved with the responsibility for the

person’s care. Such agreement must be documented in the person’s treatment

record and must be signed by both physicians. See Chapter One of this benchguide

for more information on ECT.

III. Persons Determined Incompetent to Consent to Treatment

See § 394.4598, Fla. Stat.; Fla. Admin. Code R. 65E-5.230.

The administrator of a receiving or treatment facility may petition the court for the

appointment of a guardian advocate based upon the opinion of a psychiatrist that

the person is incompetent to consent to treatment ― unable to make well-reasoned,

willful, and knowing decisions about his or her medical, mental health, or

substance abuse treatment.

“Before giving consent to treatment, the guardian advocate must meet and talk

with the [individual] and the [individual’s] physician in person, if at all possible,

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

and by telephone, if not.” The guardian advocate must certify that such

communication with the individual and physician has taken place before

authorizing treatment. The guardian advocate must also complete statutorily

required training. See the Guardian Advocate Training and Resource Manual

online for extensive information about the duties of a guardian advocate. The

manual can be found on the DCF website http://www.myflfamilies.com/. A

specialized web-based training course for guardian advocates can be found at

http://www.dcf.state.fl.us/programs/samh/mentalhealth/training/index.shtml.

IV. Persons Adjudicated Incapacitated

See § 394.4625(1)(d), Fla. Stat.

The Baker Act prohibits the voluntary admission of any person who has been

adjudicated by a court as incapacitated even though the guardianship law (section

744.3725, Florida Statutes) defines specific steps the court must follow before

granting a guardian the authority to do so. The First District Court of Appeal has

ruled that where the Baker Act and the guardianship law conflict on least

restrictive alternatives, the Baker Act prevails. Handley v. Dennis, 642 So. 2d 115

(Fla. 1st DCA 1994). A concurring case from the Fourth District Court of Appeal

in 2012 is Auxier v. Jerome Golden Center for Behavioral Health, 85 So. 3d 1164

(Fla. 4th DCA 2012). A magistrate had discharged the public defender’s office in a

Baker Act case because the person who was the subject of the proceedings had a

plenary guardian, and her rights had been transferred to her guardian and counsel

for the guardian would represent her. The person was not present at the hearing on

which the order was based and did not have independent counsel, and she was

involuntarily committed. The public defender’s office sought review of the order

discharging it from representing her, and the Fourth District Court of Appeal

granted it and quashed the discharge and commitment orders. It held that “the

magistrate and the circuit court departed from the essential requirements of law

[which] requires appointment of the public defender’s office to represent the

patient in involuntary civil commitment proceedings ‘unless the person is

otherwise represented by counsel.’ The guardian’s attorney represents the

guardian, not the ward.” The court “agree[d] with the First District’s discussion of

the role of the public defender in Baker Act proceedings” in Handley v. Dennis.

The court order adjudicating the person as incapacitated will designate who is the

guardian. “Letters of guardianship shall be issued to the guardian and shall specify

whether the guardianship pertains to the person, or the property, or both, of the

ward. The letters must state whether the guardianship is plenary or limited, and, if

limited, the letters must state the powers and duties of the guardian.” § 744.345,

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Fla. Stat. The guardian can only be permitted to perform those responsibilities that

have been expressly removed from the ward and delegated to the guardian.

V. Persons with Health Care Surrogates/Proxies

See ch. 765, Fla. Stat.; Fla. Admin. Code R. 65E-5.230.

Any competent adult may execute an advance directive designating any other adult

to make his/her health-related decisions should he/she ever become incompetent to

make these decisions. If the person has not executed an advance directive or the

surrogate selected by the person is not available, health care decisions may be

made by a proxy chosen from a statutorily authorized prioritized list of persons:

guardian, spouse, adult child, parent, adult sibling, adult relative, close friend, or

independent licensed clinical social worker (LCSW). Significant limitations are

placed on the designation of LCSWs.

If a person’s capacity to make health care decisions for himself or herself or

provide express and informed consent is in question, the attending physician

should evaluate the person’s capacity. If the attending physician concludes that the

person lacks such capacity to make mental health care decisions, the facility must

enter the physician’s evaluation in the person’s clinical record and notify the

surrogate or proxy in writing that his/her authority to act has commenced

(recommended form “Certification of Person’s Incompetence to Consent to

Treatment and Notification of Health Care Surrogate/Proxy” CF-MH 3122 may be

used). The authority thus activated remains in effect until a determination that the

person has regained his/her capacity. When a health care proxy is designated, the

proxy should also complete an affidavit (CF-MH 123). The 2015 Legislature

authorized a competent individual to designate a surrogate in an advance directive

to make his/her health care decisions without the need for a determination of

incapacity.

A specialized Mental Health Advance Directive has been developed for optional

use and can be found at the end of this chapter.

During the interim period between the time a person is determined by a physician

to be incompetent to consent to treatment and the time a guardian advocate is

appointed by a court to provide express and informed consent to the person’s

treatment, the health care surrogate or proxy may provide such consent to

treatment.

A petition for adjudication of incompetence to consent to treatment and

appointment of a guardian advocate must be filed with the court within two court

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

working days of the determination by the physician of the person’s incompetence

to consent to treatment. Recommended form “Petition for Adjudication of

Incompetence to Consent to Treatment and Appointment of a Guardian Advocate”

(CF-MH 3106) may be used.

The facility must immediately provide to the health care surrogate or proxy the

same information required by statute to be provided to the guardian advocate. In

order to protect the safety of the person, the facility must make available to the

health care surrogate or proxy the same training required of guardian advocates

and ensure that the surrogate or proxy communicates with the person and person’s

physician prior to giving express and informed consent to treatment.

The surrogate or proxy may provide consent for treatment only for persons on

involuntary status. The surrogate or proxy has the authority to do the following:

 Make any and all health care decisions, but must make those decisions based

upon what he or she believes the principal would have decided if that

principal was capable of making such decisions (substitute judgment). Only

if the surrogate/proxy doesn’t know what the person would have wanted can

a “best interest” standard be used.

 Access the person’s clinical record.

 Authorize the release of information and clinical records to appropriate

persons to ensure the continuity of the person’s health care.

 Apply for private, public, governmental, or veteran’s benefits to defray the

cost of health care and to have access to financial information of the

principal.

 Authorize transfers to and from other facilities.

The 2016 Legislature added section 765.2035, Florida Statutes, permitting a

natural guardian, legal custodian, or legal guardian to designate a competent adult

as a health care surrogate to make health care decisions for a minor. However, a

health surrogate or proxy is not permitted under the Baker Act to apply for a

minor’s voluntary admission to, or authorize treatment at, a Baker Act facility.

VI. Summary of Consent Issues

A person who is competent to provide express and informed consent to admission

or treatment is competent to refuse or revoke such consent. A mere refusal or

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

revocation of consent does not justify a transfer to involuntary status without clear

documentation of other behaviors by the person that satisfy the involuntary

placement criteria.

However, a person who has been adjudicated incapacitated or found to be

incompetent to consent to treatment by a court is incapable of refusing treatment

that has been authorized, by express and informed consent, by a substitute decision

maker.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Guardian

Guardian Advocate

Representative

Health Care

Surrogate

(

HCS

)

Health Care

Proxy

(

HCP

)

Statutory

Citation

Chapter 744,

F.S.

394.4598,

F.S.

394.4597,

F.S.

Chapter 765,

Part II,

F.S.

Chapter 765, Part

IV,

F.S.

Initiation

Petition to determine

incapacity filed by

adult.

Determination by

psychiatrist that

the

person is

incompetent

provide express

and

informed consent

treatment.

Conversion

from

voluntary

involuntary

status

or admission to

receiving or

treatment facility

involuntary

status.

Determination

attending

physician,

that

principal

lacks

capacity to

make

health care

decisions for

himself/her

self.

Same as Health

Care Surrogate

Appointment

Order of

Circuit

Judge

stating the nature of

the

guardianship as

either

plenary or

limited. If

limited, order states

the

rights which have

been

removed and delegated

to the

guardian.

Circuit judge

upon

petition of

Receiving or

Treatment

Facility

Administrator

and

adjudication

incompetence

consent to

treatment

Selected by

the

person

if possible;

not,

designated

by the facility

from

prioritized

list

specified

in law.

Healthcare

facility notifies

Surrogate

writing

that

authority under

the

advance

directive

has

commenced.

Health care

facility

notifies

Proxy

writing that authority

has commenced.

Qualifications

Competent adult;

non-

resident,

must

be related

by blood

adoption.

Preference

given to

wishes of

ward,

relative, and to

person

with ability

perform.

Prohibits

felon, an

incapacitated

person,

creditor, or

other

unsuitable person,

one

with

conflict

of interest.

providing

any

professional or

business

services, must be

a close

relative. Prohibits

judge

unless related

to ward.

See law for

other

limitations.

Same as

guardian but

gives

preference

HCS followed

spouse, adult

child,

parent, adult next

kin, adult friend,

trained adult. Prohibits

from serving: MH

professional,

facility

employee,

creditor,

person providing

substantial services,

or persons subject to

domestic violence

injunction for which

patient was petitioner.

Any

competent

adult

selected by

the

person.

Otherwise

preference

given

HCS, followed

spouse, adult

child,

parent, adult next

kin

or adult

friend.

Prohibits

from serving:

licensed

professional,

facility

employee,

creditor,

person

providing

substantial

services, or

persons subject to

domestic violence

injunction for which

patient was petitioner.

Any

competent adult

selected by

the

principal through

advance

directive.

Designated by

law

from

prioritized

list

persons

including

guardian,

spouse,

adult

child, parent,

adult

sibling,

adult

relative,

close friend*, or

clinical

social

worker*.

*Friend

defined

law

and LCSW

limits

provided

in law.

Requirements

40 hours training

duties, rights of

ward,

local resources,

and

plans/reports within

year of

appointment.

Professional and

public

guardian must take

oath

and file

bond

(unless

waived).

Agreement to

serve,

undergo

hour

training course, meet

with

person and

physician

prior to

providing consent.

No prerequisites

training

required.

No prerequisites

training

required

by law.

65E-5.2301

FAC

requires HCS

be given

same

information

required to be

given

guardian

advocate.

Same as Health

Care

Surrogate

VII. Bench Card on Substitute Decision-Making

(Does not substitute for statutes or legal advice)

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Guardian

Guardian Advocate

Representative

Health Care

Surrogate

(HCS)

Health Care

Proxy

(HCP)

Tenure

While person

incapacitated.

While person

incompetent to

onsent

treatment.

While person

is on

involuntary status

receiving or

treatment

facility.

While principal

physically or

mentally

unable

communicate

willful

and knowing

health

care

decision.

Same

authority

Health

Care

Surrogate.

Authority

Limited to

authority

granted by

Circuit

Court

Letters

Guardianship.

Plenary

Guardian

shall exercise

all

delegable

rights

while

Limited

Guardian

exercises only

those

removed from the

ward in

the

order.

Must

file

reports,

plans, inventory

and

accounting.

Consent to

psychiatric treatment,

access

client

record, and

release

of information for

continuity

of care.

Consent

medical

care,

ECT,

abortion,

sterilization,

psychosurgery,

and

experimental

treatment only upon

Court

approval.

Receives

all

notices

and

may

file

Habeas

petition.

Receives notices

proceedings and

any

restrictions during

the

time

person

held in

or admitted to

receiving or

treatment

facility.

Has standing

to file

Petition

for

Habeas

Corpus

if it is

believed the

person

being held illegally

or to file

a petition if

person

unjustly

denied

right

privilege.

Make written

consent

to health

care

decisions the

principal would have

made

capable of

making

such

decisions.

Have

access to

clinical

records,

authorize

release of records

for

continuity of

care,

authorize transfer

principal to or

from a

health care

facility,

and apply for

public

benefits.

Same as Health

Care

Surrogate.

Limitations

Prohibited from

having

ward admitted on

voluntary basis

for

psychiatric

examination or

treatment. May

only

consent to treatment

ward

involuntary

status.

Medical, ECT,

and

other extraordinary

interventions

are

prohibited

without

Court

approval.

Has no

authority

other than

described

above.

May not consent

psychiatric treatment

for

person on

voluntary

status.

May not

provide

consent for abortion,

sterilization,

ECT,

psychosurgery,

experimental

treatment

without

Court approval

express authority

an advance

directive

Same as Health

Care

Surrogate.

Termination

Upon resignation

guardian

and

appointment

successor

guardian;

upon restoration

capacity; or removal

guardian by the

Court.

Persons’ restoration

competency,

discharge from

involuntary

inpatient/outpatient

placement, or

transfer

to voluntary

status.

Transfer to

voluntary status or

discharge

from

receiving

treatment

facility.

Upon revocation

the advance

directive by

competent

principal, upon

the

principal’s

gaining

capacity to

consent,

or removal by

court.

Same as Health

Care

Surrogate.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

VIII. Frequently Asked Questions

A. Competence to Consent

Who is eligible to consent or refuse consent to their own treatment?

Minors cannot make their own inpatient mental health treatment decisions; this is

the responsibility of their parent or guardian. Neither can persons who have a

court-appointed guardian or a health care surrogate or proxy currently making

decisions for them. Only adults who are consistently able to make well-reasoned,

willful, and knowing decisions about their own mental health or medical care can

consent, refuse consent, or revoke consent to their own treatment.

I’m an attorney representing a hospital that isn’t designated as a receiving

facility. The doctor wants to admit a patient on voluntary status who has a

guardian willing to consent to the admission. We are told that many other

facilities permit that type of admission. A person adjudicated by a court as

incapacitated wouldn’t be able to provide express and informed consent. How

is inpatient mental health care provided to patients who have guardians and

who need treatment, but do not meet the criteria for involuntary admission?

The issue about prohibiting voluntary admission of adjudicated persons with

guardians is a statutory prohibition:

 394.4625. Voluntary admissions (emphasis added)

(d) A facility may not admit as a voluntary patient a person who

has been adjudicated incapacitated, unless the condition of incapacity

has been judicially removed. If a facility admits as a voluntary patient

a person who is later determined to have been adjudicated

incapacitated, and the condition of incapacity had not been removed

by the time of the admission, the facility must either discharge the

patient or transfer the patient to involuntary status.

(e) The health care surrogate or proxy of a voluntary patient

may not consent to the provision of mental health treatment for

the patient. A voluntary patient who is unwilling or unable to provide

express and informed consent to mental health treatment must either

be discharged or transferred to involuntary status.

(f) Within 24 hours after admission of a voluntary patient, the

admitting physician shall document in the patient’s clinical record that

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

the patient is able to give express and informed consent for admission.

If the patient is not able to give express and informed consent for

admission, the facility shall either discharge the patient or transfer the

patient to involuntary status pursuant to subsection (5).

The above references “facility,” not “receiving facility.” These are both defined in

the Baker Act. A facility is defined in the Baker Act as follows:

(16) “Facility” means any hospital, community facility, public or

private facility, or receiving or treatment facility providing for the

evaluation, diagnosis, care, treatment, training, or hospitalization of

persons who appear to have or who have been diagnosed as having a

mental illness or substance abuse impairment. The term does not

include a program or an entity licensed under chapter 400 or chapter

429.

§ 394.455, Fla. Stat. (emphasis added).

While the guardianship statute (chapter 744) has a provision where a guardian can

obtain extraordinary authority of the court to have his/her ward admitted

voluntarily to a receiving facility, this conflicts with the provisions of the Baker

Act, which is the more specific law and would take precedence.

If a person who arrives at a receiving facility for an involuntary examination

is cooperative and willing to take medications, is this sufficient to document

“express and informed consent”?

No. “Cooperative and willing” are helpful descriptors, but more important is

competence of the person to make such decisions. This is defined in the law as

being able to make well-reasoned, willful, and knowing decisions about one’s

medical, mental health, or substance abuse treatment. Without competence, as

defined in the Baker Act, no amount of cooperation or willingness is sufficient.

The standard under the Baker Act requires more than “implied consent” because

the person may have taken the medications prior to admission and/or is not

currently refusing the medications. “Med compliance” is a behavior, but it doesn’t

necessarily reflect competence.

Recently we had a question come up about a patient being able to sign legal

documents brought in by the family. The patient was not deemed incompetent

by our doctor, but was not here voluntarily either. Can the patient be able to

sign legally binding documents while inpatient in a mental health hospital or

Crisis Stabilization Unit?

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

It’s unclear what kind of legal documents are involved. Just because a person

hasn’t been adjudicated incapacitated by a court doesn’t mean he/she is competent

for various purposes. If the patient is on voluntary or involuntary status and has

been allowed to provide consent to his/her own treatment, a physician would have

had to document the person’s competence to provide express and informed consent

on a sustained basis (not just some “window of lucidity”). This medical statement

means that the person is able to make well-reasoned, willful, and knowing medical,

mental health, and substance abuse treatment decisions.

If the person’s clinical record has notes from nurses, social workers, or other

personnel that reflect the person’s judgment or insight was impaired at the time,

the legitimacy of any consent would be questionable, even for treatment, not to

mention other legal documents. The person could later challenge any document

signed at such a time and place due to diminished capacity or perceived coercion,

whether the documents are advance directives, quitclaim deeds, a will, powers of

attorney, or any other legal document.

Can a person on involuntary status still be competent to consent or refuse

consent to his or her own treatment?

Yes. The issue of competence to consent is considered separately from the

placement issue. If the person meets the criteria for involuntary examination or

involuntary placement but is capable of making well-reasoned, willful, and

knowing decisions about his or her medical, mental health, or substance abuse

treatment, he or she may continue to consent, withhold consent, or refuse consent

to treatment. A person on involuntary status may or may not be competent to

consent to his or her own treatment. If the individual who initiated the involuntary

examination noted on the form that the subject person was unable to determine the

exam was necessary, as opposed to refusing the exam, the person must be

presumed to be incompetent to consent to treatment until determined by a

physician to have such capacity.

Must we stop giving a patient psychotropic medication if the patient has been

transferred to incompetent status if that person had given consent for those

medications while still competent? I know we must get a guardian advocate

who will then be asked to consent to psychotropic medication; we’re

wondering about the interim period.

If the patient had been certified by a physician while on voluntary status as

competent to make well-reasoned, willful, and knowing medical and mental health

decisions (required within 24 hours of all voluntary admissions) and was provided

all disclosures about medications required by law and rule, that authority would be

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

valid only while the patient remained competent, not valid after a subsequent

determination that the patient was no longer competent to consent.

Consent given by a competent adult is valid only while the person remains

competent. However, if the basis for transferring the person from voluntary to

involuntary status is because the person is “refusing” to stay at the facility (as

opposed to being unable to determine that placement is necessary), and the doctor

continues to certify the person’s competence to consent or refuse consent to

treatment, it is possible that the consent could still be valid. However, if the doctor

has determined that the person is no longer able to provide such express and

informed consent and is requesting the court to appoint a guardian advocate, earlier

consents can’t be honored.

It is at this point that a relative or close personal friend, if any, should be asked to

serve as the person’s health care proxy unless the person had previously executed

an advance directive designating a different person as his/her health care surrogate.

Such a proxy or surrogate could serve as an interim decision maker until the court

appointed a guardian advocate, who might be the same person.

When a person is transferred from voluntary to involuntary status, the petition must

be filed with the clerk of court within two working days, not 72 hours.

B. Incompetence to Consent

If a person with a mental illness refuses to consent to treatment, is that an

indication of incompetence?

No. A person’s refusal to consent to treatment is not, in itself, an indication of

incompetence to consent. There may be many reasons why a person may decide

not to consent to a particular medication or to any medication ordered by a

particular physician, or to treatment ordered at a particular facility. The decision as

to whether a person is competent to consent is a clinical judgment of his or her

capacity to decide, not one based on whether the person does or doesn’t provide

such consent.

Once a patient has a petition for involuntary placement filed, but prior to the

hearing, do medication orders remain emergency treatment orders or do they

become regular orders once the petition is filed?

Emergency treatment orders cannot be done either before or following the filing of

the BA-32 (petition for involuntary placement, form CF-MH 3032) unless the

record documents imminent danger and that there are no less restrictive

interventions. Only after the appointment of a guardian advocate can such

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

medications needed for the person’s treatment be authorized/administered if the

person is found by the court to be incompetent to consent. Prior to that time, short

of imminent danger, only a health care surrogate/proxy can authorize medications

for which the person either refuses or lacks capacity to consent.

If a person is determined by a psychiatrist NOT to have capacity to consent, is

it true that he or she can’t be given any psychotropic medications unless

under an ETO if he or she has no one to serve as health care proxy until after

a court-appointed guardian advocate has been selected?

This is correct ― no psychiatric treatment can be rendered short of imminent

danger without the express and informed consent of a person authorized by law to

provide such consent.

Can a person be incompetent for admission and competent for treatment or

be competent for admission and incompetent for treatment?

No. If a person is incompetent to provide express and informed consent, it applies

to both admission and to treatment. The Baker Act definition of “express and

informed consent” requires that the consent be voluntarily given in writing by a

competent person. Competence requires that the person have the capacity of

providing a well-reasoned, willful, and knowing decision about his or her medical,

mental health, or substance abuse treatment. If the person has this capacity, he or

she can choose to be voluntary (or may be involuntary) and can choose to give or

withhold consent to treatment. If the person doesn’t have this capacity, he or she

must be held under the elevated protection of the involuntary provisions of the law

and a guardian advocate must be sought.

However, if a person is competent, he or she can potentially be either voluntary or

involuntary, although most people on involuntary status lack the capacity to give

well-reasoned, willful, and knowing decisions about their medical, mental health,

and substance abuse care (the legal definition for incompetence). In those

situations, the person is incompetent to consent and must have a guardian advocate

appointed.

If a person is incompetent to consent to treatment, he/she must be placed on

involuntary status. Physicians and staff need to understand that no person should

be allowed to consent to treatment unless he/she would also be allowed to refuse

treatment. It is the capacity of the person to make the decisions ― not the quality

of the decisions the person makes ― that controls.

Can a person who has been determined to be incapacitated/incompetent to

consent to treatment refuse consent to a particular psychiatric treatment?

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

No. If the proposed treatment has been fully disclosed to the legally authorized

substitute decision maker who has provided informed consent to the treatment, the

person does not have the authority to refuse. The person does have the right to ﬁle

a petition for a writ of habeas corpus so a judge can determine if the person’s rights

have been violated. However, if a person strongly objects to a particular form of

treatment, the guardian/guardian advocate or surrogate/proxy should talk with the

person to determine the reasons for the objections. If appropriate, the

guardian/guardian advocate or surrogate/proxy may, based on this information,

withdraw his or her consent for the proposed treatment and negotiate a revised

treatment plan with the physician.

C. Disclosure

What must be disclosed to a person before authorization for treatment can be

obtained?

Before giving express and informed consent for treatment, the following

information must be provided and explained in plain language to the authorized

decision maker:

 Reason for admission or treatment.

 Proposed treatment.

 Purpose of the treatment to be provided.

 Identification of the proposed psychotropic medication.

 Common risks, benefits, and short- and long-term side effects thereof.

 Specific dosage range for the medication.

 Frequency and method of administration.

 Any contraindications which may exist.

 Clinically significant interactive effects with other medications.

 Similar information on alternative medications that may have less severe or

serious side effects.

 Alternative treatment modalities.

 Potential effects of stopping treatment.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 Approximate length of care.

 How treatment will be monitored.

 That any consent given for treatment may be revoked orally or in writing

before or during the treatment period.

Does the facility have the same responsibility to a substitute decision maker as

it does to a competent adult with regard to disclosure?

Yes. Prior to the administration of treatment, a qualified staff person must provide

the same information to a guardian, guardian advocate, or health care

surrogate/proxy as it would to a patient competent to make his/her own decisions.

D. Consent to Treatment

Does all consent need to be provided in writing, or can we accept verbal

consent under certain circumstances?

While the statutory definition of express and informed consent refers to such

consent being given in writing by the legally authorized decision maker, there are

times when the guardian of a minor or a guardian, guardian advocate, or health

care surrogate/proxy of an adult is unavailable to provide the consent in writing.

It is standard practice in medical situations when the decision maker is not present

to provide the full disclosure by telephone and receive the verbal authorization for

treatment by the decision maker, with two witnesses for the facility. This is

followed up by a written consent. When the substitute decision maker is not

physically available to provide written consent to treatment prior to administration

of treatment, it may not be in the best interest of the child or adult held in a facility.

In some cases, the parent may even be out of the country and it is not possible to

fax or scan and email consent forms to and from the parent. If the individual

presents imminent danger, an ETO can be ordered by a physician. Otherwise,

treatment would have to be withheld.

I have questions about express and informed consent by non-literate persons

or persons who are physically unable to write. Is this addressed in the Baker

Act or by rule?

This has been handled in different ways, depending on the circumstances:

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 Laws recognize an “X” if a person generally signs his/her name this way due

to illiteracy. Forms may have a place for the witness to a signature to sign

and date.

 Persons sometimes will give verbal authorization for treatment but won’t

sign the form. If the required disclosures and the authorization are witnessed

by staff members, this has always been considered as an acceptable

alternative. Verbal consent should be witnessed by two staff.

 The most frequent problem is when a substitute decision maker is relied on

to provide consent for treatment. Guardians, guardian advocates, and health

care surrogates/proxies may live at a great distance or just be unable to come

to the receiving facility in a timely way to provide written consent. Again, it

has always been considered acceptable to have verbal consent if such

consent is witnessed by two staff who sign that they personally heard the

disclosures and the consent. The facility might consider sending a form by

courier, fax, or email to the substitute decision maker to sign and return,

even if after the fact.

I’m a psychiatrist treating a patient admitted involuntarily for assaultive

behavior. We filed a petition for placement and are awaiting a hearing next

week. The patient has repeatedly said he will stop taking medications once

discharged. We would like to give him a long-acting injectable medication

before he is discharged. I had assumed that the court hearing would need to

take place in order to establish a guardian advocate, who could then authorize

the treatment. I was recently told that the court didn’t need to make this

determination if we could demonstrate that (1) the patient lacks decisional

capacity for this treatment, and (2) there is a family member willing to serve

as a proxy decision maker. Both of these criteria are met for the patient; if it is

appropriate and legal, we would likely get started with the long-acting

medication long before his court hearing next week. Is this appropriate?

The Baker Act recognizes a guardian advocate appointed by the court as a

substitute decision maker. However, because that appointment might not occur

until seven to ten days after the individual’s admission, the Florida Administrative

Code has “borrowed” from the state’s advance directive statute (chapter 765,

Florida Statutes) that governs any and all health care decision-making for an

interim decision maker until a guardian advocate has been appointed pursuant to

rule 65E-5.2301, Florida Administrative Code.

As soon as a physician documents that an individual cannot provide express and

informed decisions for his/her own care, a health care proxy (relative or close

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

personal friend) can be designated by the facility to provide “substitute decision-

making” ― after getting full disclosure providing the decision the proxy believes

the individual would have made if competent. Only if the surrogate or proxy

doesn’t know what the individual would have chosen if competent can a “best-

interest” standard be used. This could include long-acting medications if the proxy

believes the person would have consented to this type of medication or route of

administration had he/she been competent. Otherwise, the only other alternative to

legally authorized decision-making would be an ETO based on documentation of

imminent danger. Use of long-acting medications as an ETO requires extraordinary

justification. However, if it is included in the individual’s treatment plan and

you’ve obtained express and informed consent from an authorized person, such

extraordinary justification wouldn’t be required.

E. Initiation of Psychiatric Treatment

If a person is determined not to have the capacity to make his or her own

treatment decisions and has no known family, can a facility legally administer

medications until a court hearing and appointment of a guardian advocate if

the person is willing to take the offered medications?

No. There is no “implied consent” for psychotropic medications. Even if a person

swallows the pills or has willingly taken the medications at a point prior to the

hospitalization, the law prohibits the administration of medications unless “express

and informed consent” has been obtained from the person or his/her substitute

decision maker. The only exception is when the physician has fully documented

the nature and extent of the person’s imminent dangerousness and has ordered

emergency treatment ― this is limited to rapid response medications since it is for

chemical restraints ― an issue controlled by federal regulations as well as state

law/rules. Unless such an emergency exists, psychotropic medications cannot be

administered unless the person or his/her substitute decision maker provides

express and informed consent to the medications.

Two additional choices may be available. An expedited court hearing can be

requested on the issue of adjudicating incompetence to consent to treatment and

appointing a guardian advocate. A second alternative is to appoint an independent

clinical social worker as proxy, as permitted in chapter 765, part IV, Florida

Statutes, and rule 65E-5.2301, Florida Administrative Code. Either of these

alternatives will allow you to provide medication without waiting for an

emergency to occur.

Can psychiatric treatment be initiated before informed consent is obtained?

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

No. Unless the person is displaying uncontrolled symptoms and behaviors that are

causing imminent danger, treatment cannot be initiated unless express and

informed consent is first obtained from a competent adult or from a legally

authorized substitute decision maker. At any time staff observes that the person

isn’t making such well-reasoned decisions, treatment must stop until a substitute

decision maker is found or when the physician has documented imminent danger,

in which case an emergency treatment order can be considered.

If a person is admitted on involuntary examination status and the box on the

BA-52 form is checked indicating the person was unable to determine a

voluntary examination was needed, should we presume the person is

incompetent to consent to psychotropic medications or other treatment? In

this case no psychotropic medications could be administered until the

physician has done a competency exam unless an ETO was ordered. Correct?

Yes, this is correct. If a person is unable to determine the examination is needed,

he/she is likely to be incompetent to consent to either admission or to treatment.

If an individual on involuntary status with a legal guardian arrives at our

facility, do we have to wait for a documentation of incompetence by the

physician in order for the legal guardian to consent? It seems like we wouldn’t

have to wait, because the courts have already made this determination, which

is why the person has a legal guardian. Is this correct?

If you have documentation through a copy of the court order that it is either a

plenary guardianship or that the right to consent to mental health care has been

removed from the person and delegated to the guardian, no assessment of

competence is required since the adjudication of incompetence would have already

been established by the court. Once you have documentation through the court

order and letters of guardianship, you would then have to get consent from the

court-appointed guardian.

F. Mental Health Advance Directives

Is there a form for a psychiatric advance directive in Florida that meets the

state and federal requirements? We are aware of the recommended Baker Act

form to use “Affidavit of Health Care Proxy”‘ (form CF-MH 3123) but do not

see a form that could be used for persons with mental illness to be proactive

and document their wishes should they become incapacitated.

Yes. A mental health advance directive can be found in chapter 7 of this

benchguide. It is based on the 20-page Bazelon Center form, but condensed and

adapted to Florida laws. It is recommended, but not mandatory. Form CF-MH

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

3122, as well as the affidavit form (3123), can be used by the physician to certify

incompetence to consent and notify the surrogate/proxy.

I am trying to get clarification of exactly what the expectations are of our

facility should one of our inpatients request to complete a mental health

advance directive. Can psychiatric inpatients complete a mental health

advance directive?

Only a person who is considered competent may complete a valid advance

directive, even one for mental health care. If the patient is competent and there are

two witnesses who attest that “at the time the advance directive was signed, the

person was of sound mind and under no constraint or undue influence,” the patient

would be eligible to complete the form. Many facilities feel that the mere presence

of a person in a receiving facility may suggest lack of competence and possibly

some undue influence by staff. You may want to select a health care proxy

(relative or close personal friend) while the person is hospitalized if not competent

to execute an advance directive, and provide the person the paperwork and

assistance as part of release from the hospital. That way the document is in place

should he/she be re-hospitalized at some future time.

I need information about mental health advance directives. At this time my

facility asks patients being admitted if they have one and, if they do, we get a

copy. Where in the statute does it discuss mental health advance directives?

Federal regulations require that any hospital inquire about a person’s advance

directives at the time of admission. In addition, the Florida Administrative Code

governing the Baker Act (Fla. Admin. Code Ch. 65E-5). requires that each

receiving facility (hospital and CSU) also make such an inquiry. The primary

statute that governs advance directives in Florida is chapter 765, Florida Statutes. It

includes several references to mental health issues:

 765.101. Definitions

(6) “Health care decision” means:

(a) Informed consent, refusal of consent, or withdrawal of consent

to any and all health care, including life-prolonging procedures and

mental health treatment, unless otherwise stated in the advance

directives.

 765.113. Restrictions on providing consent.

(1) . . . or voluntary admission to a mental health facility.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 765.202. Designation of a health care surrogate

(5) A principal may designate a separate surrogate to consent to

mental health treatment. . . .

 765.204. Capacity of principal; procedure

However, the Baker Act (chapter 394, part 1, Florida Statutes) also makes

several references to advance directives and health care surrogates/proxies,

as does the Florida Administrative Code governing the Baker Act (Fla.

Admin. Code Ch. 65E-5).

G. Electroconvulsive Therapy

We are currently treating a patient with a severe psychotic disorder. We

petitioned the court for extension of the patient’s stay and asked for

Electroconvulsive Therapy (ECT) treatments. The judge appointed a

guardian advocate and also ordered the use of ECT. We want to help the

patient, but do not want to violate any rights. When a second opinion is

requested by the attending psychiatrist, does the consulting psychiatrist need

to physically assess the patient or can that psychiatrist just review the chart?

If the court appointed a guardian advocate under the Baker Act, the guardian

advocate authority to consent to ECT is governed as follows:

394.4598. Guardian advocate (emphasis added)

(7) If a guardian with the authority to consent to medical treatment

has not already been appointed or if the patient has not already

designated a health care surrogate, the court may authorize the

guardian advocate to consent to medical treatment, as well as mental

health treatment. Unless otherwise limited by the court, a guardian

advocate with authority to consent to medical treatment shall have the

same authority to make health care decisions and be subject to the

same restrictions as a proxy appointed under part IV of chapter 765.

Unless the guardian advocate has sought and received express court

approval in proceeding separate from the proceeding to determine the

competence of the patient to consent to medical treatment, the

guardian advocate may not consent to:

(a) Abortion.

(b) Sterilization.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

(d) Psychosurgery.

(e) Experimental treatments that have not been approved by a

federally approved institutional review board in accordance with 45

C.F.R. part 46 or 21 C.F.R. part 56.

The court must base its decision on evidence that the treatment or

procedure is essential to the care of the patient and that the treatment

does not present an unreasonable risk of serious, hazardous, or

irreversible side effects. The court shall follow the procedures set

forth in subsection (1) of this section.

The above requires a separate hearing after the appointment of the guardian

advocate (GA) to consider the need for ECT. However, if a guardian has been

appointed by the court under chapter 744, Florida Statutes, the guardianship law

(instead of a GA under the Baker Act), such a guardian has the authority to consent

to the ward’s ECT without further order of the court, unless the court has limited

the powers of the guardian in some way.

With regard to the actual administration of ECT, this is primarily governed by the

Florida Medical Practice Act as follows:

458.325. Electroconvulsive and psychosurgical procedures

(emphasis added)

(1) In each case of utilization of electroconvulsive or

psychosurgical procedures, prior written consent shall be obtained

after disclosure to the patient, if he or she is competent, or to the

patient’s guardian, if he or she is a minor or incompetent, of the

purpose of the procedure, the common side effects thereof, alternative

treatment modalities, and the approximate number of such procedures

considered necessary and that any consent given may be revoked by

the patient or the patient’s guardian prior to or between treatments.

(2) Before [electro]convulsive therapy or psychosurgery may be

administered, the patient’s treatment record shall be reviewed and the

proposed convulsive therapy or psychosurgery agreed to by one other

physician not directly involved with the patient. Such agreement

shall be documented in the patient’s treatment record and shall be

signed by both physicians.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

The above only requires the documented review and agreement by the second

physician. It isn’t addressed by the Baker Act.

Can a substitute decision maker consent to electroconvulsive treatment (ECT)

on behalf of the person?

A plenary guardian has the authority to make this decision on behalf of the person.

A guardian advocate has this authority only if speciﬁcally provided by the court in

a hearing separate from the one where the person was determined to be

incompetent to consent to medical treatment. A health care surrogate or proxy has

this authority only if a person speciﬁcally authorized this power in an advance

directive.

H. Consent to Medical Treatment

Is medical treatment provided to a person in a receiving facility governed by

the Baker Act?

No. The Baker Act is Florida’s Mental Health Act and doesn’t govern non-

psychiatric medical care. A facility would have to follow whatever medical

consent standards apply to non-psychiatric settings for aspirin, blood pressure

medications, etc.

Is there a statute or rule (other than the Baker Act) that requires informed

consent for general medical treatment, such as administration of non-

psychotropic drugs?

The Florida Medical Consent Law is set forth at section 766.103, Florida Statutes.

Does a Baker Act receiving facility have the right to take blood or urine

samples from an individual during the involuntary examination period

without consent?

As Florida’s Mental Health Act, the Baker Act doesn’t address medical consent

issues. Only if the physician had determined the individual has an emergency

medical condition requiring such diagnostic and laboratory testing could the

procedures be done without a competent patient’s consent or that of a legally

authorized decision maker.

Does the doctor’s finding of incompetent to consent for treatment under the

Baker Act relate to only psychiatric treatment or also to medications for

medical conditions? We frequently have individuals admitted who are on

routine diabetic medication, heart medication, or medication for COPD or

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

other chronic conditions. To stop these medications can be life threatening,

and it may take us two or three days to find a health care surrogate or proxy.

Thus, for the welfare of the patient we have allowed the patient to sign consent

for non-psychotropic medications. Please clarify.

The Baker Act is merely the state’s mental health law and doesn’t affect medical

treatment. The Baker Act is silent on this issue. For medical treatment, a provider

would follow whatever laws govern informed consent for medical care — it seems

to be much less stringent than for mental health. More to the point is that denial of

antihypertensive medications, insulin, and the entire range of other medications for

non-psychiatric conditions would probably represent medical neglect on the part of

a provider. Most receiving facilities will attempt to get a proxy to provide consent,

but if no proxy is available they will administer these drugs anyway. Given that the

patient was taking the medications prior to admission, an implied consent might be

acceptable where it is not sufficient for psychotropic medications.

We have a patient committed by the court to our unit on an order for

involuntary placement for up to 30 days. He was originally deemed competent

and the court did not appoint a guardian advocate. Just recently we found out

that he has a malignant melanoma that needs immediate surgery, but he is

refusing to have it done at this hospital due to his fixed paranoia about this

hospital. What legal procedures do we need to go through to get this man his

needed surgery? The psychiatrist now feels the man is incompetent. Do we

need to go back to court to get a guardian advocate appointed? Can a

guardian advocate sign the papers for a patient to get surgery or do we need

to do something else?

You have several alternatives.

 If the doctor believes the man lacks competence, this can be documented in

the chart and a health care proxy can be designated from the list found in

chapter 765, part IV. The proxy can immediately exercise substitute

judgment, consenting to treatment that he/she believes the person would

have consented to if competent to do so.

 You can file a petition (CF-MH 3106) for Adjudication of Incompetence to

Consent to treatment and Appointment of a Guardian Advocate with the

circuit court. The boxes for medical and for mental health treatment should

be checked. While surgery isn’t one of the procedures requiring a

specialized separate hearing before consent for extraordinary procedures can

be authorized, it might be wise to be sure the judge is aware of the

circumstances. It’s possible the court will provide an expedited hearing.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

 You can file a petition for Expedited Judicial Intervention for Medical

Treatment (rule 5.900, Florida Probate Rules) with the circuit court.

I. Guardian Advocates and Other Substitute Decision Makers

1. In General

Who can authorize the admission of a person who lacks the capacity to make

his or her own treatment decisions?

A person who is incompetent to consent to treatment is incompetent to consent to

admission and must be admitted on involuntary status so his or her rights can be

protected — this would be by a law enforcement officer, circuit court judge, or

authorized mental health professional. If a person lacks the capacity to make his or

her own treatment decisions, only a guardian, guardian advocate, or health care

surrogate/proxy has the authority to make treatment decisions. These substitute

decision makers cannot have a person admitted on a voluntary basis, but once the

person is admitted on an involuntary basis, they can begin making treatment

decisions.

How can a substitute decision maker document his or her authority to make

decisions on behalf of another person prior to being allowed to consent to

treatment?

A guardian must provide a copy of the court order appointing him or her as a

person’s guardian and letters of guardianship to document the limits of the

authority of the guardian. A guardian advocate must provide a copy of the court

order appointing him or her that designates whether the guardian advocate has only

the authority to make mental health decisions or also has the authority to make

medical decisions. A health care surrogate must provide a copy of an advance

directive completed when the person was competent to determine what decisions

he or she would want to have made on his or her behalf. (See later questions about

each one of these types of decision makers.)

If a person refuses care that his or her guardian, guardian advocate, or health

care surrogate has authorized, does the physician have to issue an order for

emergency treatment in order to administer the medication?

No. If the person has been determined to lack the capacity to provide express and

informed consent and a legally authorized substitute decision maker has provided

consent for a specific treatment after full disclosure, the person’s consent to the

treatment is invalid and is not needed. This doesn’t mean that the facility shouldn’t

attempt to communicate the person’s objections to the specified treatment to the

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

guardian/guardian advocate to determine if the substitute decision maker wishes to

alter his or her consent.

2. Court-Appointed Guardians (Ch. 744, Fla. Stat.)

Does section 744.3215(4)(a), Florida Statutes, allow a guardian to seek

commitment of a ward for mental health treatment using the extraordinary

authority procedures of section 744.3725, without using Baker Act

involuntary examination and placement procedures?

No. The Baker Act is the more specific law, which would prevail over the more

general guardianship law when in conflict on this issue. Further, the First District

Court of Appeal ruled in Handley v. Dennis, 642 So. 2d 115 (Fla. 1st DCA 1994)

that the rights of the patient under the Baker Act supersede rights of the guardian

under the guardianship law when in conflict. Florida’s guardianship law has

traditionally provided for the extraordinary authority cited above, for a guardian

who has received the specific authority of the circuit court to commit the ward to a

facility, institution, or licensed service provider without formal placement

proceeding, pursuant to chapter 393, chapter 394, or chapter 397, as follows:

744.3215. Rights of persons determined incapacitated

(4) Without first obtaining specific authority from the court, as described

in s. 744.3725, a guardian may not:

(a) Commit the ward to a facility, institution, or licensed service provider

without formal placement proceeding, pursuant to chapter 393, chapter 394,

or chapter 397.

The court in Handley v. Dennis stated that

the Court has concluded that if there is a conflict in these laws, both the duty

of the guardian and the power of the circuit court in the guardianship

proceeding must give way to the ward’s right under the Baker Act to be

released to a less restrictive environment. . . .

[T]he court has concluded that § 744.2025 Fla.Stat. (1991) and all

other provisions of the guardianship law regarding the residence of the

ward, are inapplicable to Baker Act patients. . . .

In summary, the court concludes that a liberty interest asserted

on behalf of an involuntary mental patient in a Baker Act hearing is

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

superior to any conflicting right that could be asserted on behalf of the

patient under the guardianship laws.

642 So. 2d at 117–118. The Baker Act requires that any person who has been

adjudicated incapacitated be held under the involuntary procedures established

under chapter 394, Part I.

Our patient’s mother is her court-appointed guardian of person, and the

guardian is now terminally ill in late stages of Alzheimer’s disease. The

patient has an adult sibling; should we petition the court to have the sister

appointed her guardian advocate?

Yes. You can request a guardian advocate when a natural or court-appointed

guardian is no longer able to serve for an interim period until the court can appoint

a successor guardian. In the meantime, an adult sibling can serve as a health care

proxy providing interim decision-making for an individual on involuntary status

pending appointment as a guardian advocate.

Our MD is confused as to how a patient’s mother, who is the legal guardian

but who also has a “No Contact” order with her son due to his violence

toward her, can be his advocate for the involuntary placement hearing. We’ve

been told that a separate guardian advocate could not be appointed when

there’s a legal guardian. His mother does have an attorney who’ll be

representing her at the hearing that she will not attend.

It is correct that a guardian advocate is generally not needed when a person has a

legal guardian. There are a few exceptions, such as when the guardianship is

limited (e.g, for property only) or when the guardian is not available or not willing

to serve. In such cases the court will appoint a guardian advocate. It is essential

that you have a copy of the guardianship order as well as the letters of guardianship

in your files. These documents will verify whether the mother is a plenary guardian

or a limited guardian.

In Handley v. Dennis, 642 So. 2d at 117, regarding when the rights of a guardian

under chapter 744, Florida Statutes, conflict with the rights of an individual under

chapter 394, the First District Court of Appeal concluded that “if there is a conflict

in these laws, both the duty of the guardian and the power of the circuit court in the

guardianship proceeding must give way to the ward’s right under the Baker Act to

be released to a less restrictive environment” and that all “provisions of the

guardianship law regarding the residence of the ward, are inapplicable to Baker

Act patients.” This is the same appellate case that defines the role of the public

defender or private attorney representing a client in a Baker Act matter to serve “as

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

an independent advocate for the patient, not as a neutral party charged with the

responsibility of determining the best interests of the patient or the needs of

society.” Id.

If the guardian indeed has the authority provided in the court order to make

treatment decisions for the ward, she can do this without conversing with her son.

However, for a guardian advocate’s authority to make treatment decisions on

behalf of the individual, he/she must have spoken with the patient and the doctor in

person if possible, and, if not, by phone, before providing consent.

If there is a legal order prohibiting communication between the guardian and ward,

you may have another issue. If the patient violates the order, it could potentially

result in criminal charges for violating the order.

Since the attorney for the mother will be attending the hearing in her place, he/she

might be interested in the summary of a Sixth Circuit case (not appealed) when an

attorney other than the assistant state attorney wants to question witnesses, In In re

[V.S.], No. 95-577-IN 003 (Fla. 6th Cir. Ct. Feb. 13, 1995), with regard to the

participation of the attorney for a receiving facility in a Baker Act involuntary

placement hearing, the court held that

the facility has every right to employ legal counsel to represent their

legal interests in any proceeding where the facility’s legal rights,

liabilities or corporate interests are implicated.

Since future actions of the facility, either in providing ordered

treatment, or arranging for discharge of the patient, are predicated on

the outcome of the hearing, the facility is entitled to have counsel

present during the adjudicatory process. Counsel for the facility,

although present at the hearing, may not interpose evidentiary

objections or participate in questioning witnesses. This is the assigned

role of the state attorney. While the facility may be a party in interest

for the purpose of placing the controversy before the court, they do

not have a legally protectable interest in the outcome of an

adjudication of the need for involuntary mental health treatment. The

statute permits the facility administrator to throw out the first ball, but

the constitutional rights of the patient require that the state attorney

pitch the game.

If the assistant state attorney is prosecuting the Baker Act petition, he/she probably

won’t need any assistance to argue retention of the patient in the facility. You may

wish to discuss this issue with the patient’s attorney to see if some restriction on

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

communication should be placed to avoid legal harm to his/her client.

A guardian appointed by an out-of-state court has her ward in our facility.

Does the guardian need to have the court in Florida re-establish the

guardianship in this state?

There is no reason that the current guardian has to re-create the existing

guardianship in Florida that was previously established in another state. Florida’s

guardianship law recognizes “foreign” guardians and gives full faith and credit to

such orders. However, the order must be filed with the local circuit’s clerk of court,

and once filed with the clerk, the laws of Florida apply.

744.306. Foreign guardians.

(1) When the residence of a ward of a foreign guardian is moved to

this state, the guardian shall, within 60 days after such change of

residence, file the authenticated order of her or his appointment with

the clerk of the court in the county where the ward resides. Such order

shall be recognized and given full faith and credit in the courts of this

state. The guardian and the ward are subject to this chapter.

If a person who has a plenary guardian (with full guardianship over the

person and property) is ordered to involuntary outpatient services, does the

court still have to seek the guardian’s authority to determine housing and

treatment, or does the IOP takes precedence?

There is no legal reason why an IOP court order would need to include housing or

treatment because the circuit court has already authorized the plenary guardian to

make such decisions. It may be that the guardian believes that the additional IOP

court order will assist in getting the ward to comply, considering that a judge has

specifically ordered it rather than just authorizing the guardian to make the

decisions.

If a person already has a court-appointed guardian, does the guardian need to

complete the guardian advocate test and submit the results to the court?

No. A guardian is not responsible for taking the guardian advocate course. If a

person has a guardian appointed by the court, no guardian advocate is needed.

However, it is essential that the receiving facility obtain a copy of the court order

to ensure the guardian is actually the individual appointed by the court, as well as

the letters of guardianship that specify whether the guardianship is a plenary one

(all rights) or a limited one where only certain rights have been removed from the

person and assigned to the guardian. The guardianship, if limited, must specify that

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

the guardian has the power to make medical and mental health decisions for the

person.

Can a court-appointed guardian consent for outpatient electroconvulsive

treatment on a patient who has been found incompetent without court

approval, or is the court-appointed guardian and attending physician

required to submit a petition to the court requesting the authorization for

ECT?

A plenary guardian appointed by the court under chapter 744 can consent. A

guardian advocate cannot consent to ECT on behalf of the patient without the

express approval of the court provided in a second hearing. § 394.4598, Fla. Stat.

Baker Act form CF-MH 3108, titled “Petition Requesting Court Approval for

Guardian Advocate to Consent to Extraordinary Treatment,” has been developed

for use in this situation.

3. Guardian Advocates

Who is authorized to serve as a guardian advocate?

Section 394.4598(6), Florida Statutes (emphasis added), provides:

In selecting a guardian advocate, the court shall give preference to a

health care surrogate, if one has already been designated by the

patient. If the patient has not previously selected a health care

surrogate, except for good cause documented in the court record,

the selection shall be made from the following list in the order of

listing:

(a) The patient’s spouse.

(b) An adult child of the patient.

(d) The adult next of kin of the patient.

(e) An adult friend of the patient.

(f) An adult trained and willing to serve as guardian advocate for

the patient.

The Legislature was clear that the preferred candidate to be appointed as a

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

guardian advocate was to be a family member or friend of the patient. Only when

no such family member or friend is willing and able to serve may the court appoint

an “adult training and willing to serve” who isn’t a relative or friend. To skip over

any person in the order of listing in the law, the court must document good cause in

the record.

In 2016, a new subsection (2) was added to section 394.4598, Florida Statutes, to

prohibit the following persons from being appointed as a patient’s guardian

advocate:

(a) A professional providing clinical services to the patient under this part.

(b) The licensed professional who initiated the involuntary examination of the

patient, if the examination was initiated by professional certificate.

the examination of the patient.

(d) An employee, an administrator, or a board member of a treatment facility

providing treatment of the patient.

(e) A person providing any substantial professional services, excluding public

and professional guardians, to the patient, including clinical services.

(f) A creditor of the patient.

(g) A person subject to an injunction for protection against domestic violence

under s. 741.30, whether the order of injunction is temporary or final, and for

which the patient was the petitioner.

(h) A person subject to an injunction for protection against repeat violence,

stalking, sexual violence, or dating violence under s. 784.046, whether the order of

injunction is temporary or final, and for which the patient was the petitioner.

Regardless of which person on the list of eligible persons is appointed as guardian

advocate, he/she is required to undergo the training required by law. The law

makes no exception. However, the court is authorized to waive some or all of the

training requirements for guardian advocates or impose additional requirements.

The court must make its decision on a case-by-case basis and consider the

experience and education of the guardian advocate, the duties assigned, and the

needs of the patient.

What is the court’s obligation regarding guardian advocate training

according to Florida Statutes?

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

Section 394.4598, Florida Statutes (emphasis added), provides:

(4) In lieu of the training required of guardians appointed pursuant

to chapter 744, a guardian advocate must, at a minimum, participate in

a 4-hour training course approved by the court before exercising his or

her authority. At a minimum, this training course must include

information about patient rights, psychotropic medications, the

diagnosis of mental illness, the ethics of medical decision-making,

and duties of guardian advocates.

(5) The required training course and the information to be supplied

to prospective guardian advocates before their appointment must be

developed by the department, approved by the chief judge of the

circuit court, and taught by a court-approved organization, which

may include, but is not limited to, a community college, a

guardianship organization, and a local bar association, or The Florida

Bar. The court may waive some or all of the training requirements

for guardian advocates or impose additional requirements. The

court shall make its decision on a case-by-case basis and, in

making its decision, shall consider the experience and education of

the guardian advocate, the duties assigned to the guardian

advocate, and the needs of the patient.

In 1996–1997 the chief judges in each of the 20 circuits approved a self-

instructional manual for guardian advocates developed by DCF that incorporated

the four hours of training in content required by the law. In addition, online

training is available at

http://www.dcf.state.fl.us/programs/samh/mentalhealth/training/index.shtml.While

the law seems to imply that instructor-led courses would be the norm similar to

those designed for plenary guardians who are authorized to make many decisions

even before training is completed, this wasn’t practical for guardian advocates for

whom there generally isn’t time to attend a course prior to having to make

decisions.

When does the training occur for newly appointed guardian advocates —

before or after their appointment?

The law says that facilities must provide the prospective guardian advocate with

information about the duties and responsibilities of GAs, including information

about the ethics of medical decision-making prior to the appointment. However,

the four-hour training course for GAs must be completed before the GA is

authorized to provide treatment decisions on behalf of the individual. The training

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

can be provided prior to appointment or after, as long as you’ve documented that

the training was complete and the GA passed the test. Of course, the GA must

speak with the individual and the physician before providing consent to treatment

— this must be done in person if possible; if not, by telephone.

Once a person has completed the guardian advocacy training for a patient,

does he/she ever have to take it again in the future for the same patient if the

patient ever returns to the Baker Act facility in the future, whether it is weeks,

months, or years later?

No. The proposed guardian advocate doesn’t need to undergo the four-hour

training course a second time if successful completion of the course is documented

in your records, unless the court requires additional training. There is a

recommended Baker Act form CF-MH 3120 that can be used as a “Certification of

Guardian Advocate Training Completion.”

The previous director of our unit has been serving as a volunteer guardian

advocate for persons found to be incompetent to provide express and

informed consent. Is there any problem with this role?

The Baker Act prohibits certain people from serving as a guardian advocate, as

follows:

394.4598. Guardian advocate (emphasis added)

(1) . . . . A guardian advocate must meet the qualifications of a

guardian contained in part IV of chapter 744, except that a

professional referred to in this part, an employee of the facility

providing direct services to the patient under this part, a departmental

employee, a facility administrator, or member of the Florida local

advocacy council shall not be appointed. A person who is appointed

as a guardian advocate must agree to the appointment.

Since the previous director is a licensed mental health counselor, he/she is “a

professional referred to in this part.” Some people believe this to mean a

professional currently serving in a clinical role for the person, but the law doesn’t

state this. Further, the law distinguishes the “professional” from those who are

employed by a facility providing direct services to the patient. Your hospital

attorney and the court need to determine if the previous director or any other

licensed professional can serve in this capacity.

Your unit’s previous director shouldn’t serve as a health care proxy (interim

decision maker) for anyone in your hospital. The list of people who can be

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

considered under chapter 765, Florida Statutes, is limited to family or a close

personal friend. The only other alternative is an LCSW under very limited

circumstances.

There are strong similarities between the list of eligible persons who can serve as

substitute decision makers under the Baker Act and under the advance directive

law. However, the lists are not identical. The advance directive statute limits a

proxy to a guardian, family, a close personal friend, or an independent LCSW.

§ 765.401, Fla. Stat. The Baker Act places preference on a health care surrogate

named by the patient, in an advance directive prepared when the patient was

competent, followed by family, a friend, or an adult trained and willing to serve.

In summary, no “adult trained and willing to serve” specified in the Baker Act to

serve as a guardian advocate can serve as a health care proxy. Neither can an

LCSW serve as a guardian advocate under the Baker Act. Otherwise, a health care

surrogate properly selected from the descending order listed in the advance

directive law will generally be eligible to be appointed as the patient’s guardian

advocate under the Baker Act.

Can a hospital train its own staff to serve as guardian advocates?

No. Section 394.4598(1), Florida Statutes, states that a professional referred to in

the Baker Act, an employee of the facility providing direct services to the person, a

DCF employee, a facility administrator, or a member of the Florida local advocacy

council cannot be appointed as a guardian advocate.

A staff member of a receiving facility would have a direct conflict of interest in

consenting or refusing consent to services recommended for a person in that

receiving facility. Further, no physician, psychologist, social worker, psychiatric

nurse, licensed mental health counselor, or licensed marriage and family therapist

could serve in this role for a person served in another receiving facility due to the

statutory prohibition.

What is the process for, and where would we send, a family member to receive

the training to become a guardian advocate? I currently have a patient in the

hospital and his health care surrogates are requesting this.

The Guardian Advocate Training Manual is available through the DCF website.

A web-based guardian advocate training course is available at

http://www.dcf.state.fl.us/programs/samh/mentalhealth/training/index.shtml.

Who would complete the certification to verify the guardian advocate

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

training?

A staff member could administer the “test” and sign the certification. This should

be placed in the patient’s clinical record with other legal forms.

Does the Baker Act prohibit an out-of-state family member guardian advocate

from being appointed?

No. Nothing precludes an out-of-state family member from serving. However,

there will be logistical problems. If the court doesn’t waive the four-hour training

course, the GA would be required to take the course. The Guardian Advocate

Training Manual is located on the DCF website and it is intended as a self-

instructional manual. The GA must speak with the individual and the physician

prior to providing consent for treatment — in person if possible, or by telephone if

not. Disclosure of all required information about treatment and the authorization

for treatment would probably have to be done by telephone — the facility would

want to have two witnesses participating on the call to document what was said by

both parties. Consent forms could be faxed or scanned and emailed to supplement

the verbal authorization received on the call.

Can a guardian advocate consent to laboratory tests or medical procedures?

No. Unless the court has specifically authorized the guardian advocate to consent

to medical treatment, authority is limited to decision-making about mental health

treatment only.

Is a separate second court hearing required to authorize the guardian

advocate to consent for blood draw? If the client is refusing and restraints are

required to obtain the sample, do we have to go to court for approval?

It shouldn’t be necessary to have a second court hearing for the guardian advocate

to get specific authorization to consent for blood draws or to have the person

restrained for such a blood draw if the guardian advocate has been specifically

authorized by the court to consent to medical treatment in addition to psychiatric

treatment. Even prior to the GA appointment, the person may meet the criteria to

serve as the person’s health care proxy. If so, the proxy could provide such consent

if he/she believed the person would have consented to the procedure if competent

to do so. A second hearing is required only in specific circumstances, including:

abortion, sterilization, electroconvulsive treatment, psychosurgery, and

experimental treatments.

An attending psychiatrist at our receiving facility wants to file a petition for a

guardian advocate to get court authority to consent for involuntary

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

sterilization of the GA’s sister. The patient is expected to deliver within the

next several days by C-section and the doctor recommends a tubal be done at

the same time. The patient is incompetent to consent. This current pregnancy

is a second one — the patient is entirely unable to raise her children — the

sister has custody of the first one and will likely have custody of the second

one when born. Can this be done?

Sterilization is one of the extraordinary procedures that must have a separate

petition filed by the guardian advocate. It is doubtful the court would approve a

non-reversible procedure like this. There is too much historical abuse of

sterilization and experimental studies done on persons with mental illness for this

to be uncontroversial. The public defender may strongly oppose it unless

convinced that this is what his/her client wants. You should have a “Plan B” if the

court doesn’t approve. These are reversible methods that might be more acceptable

if sterilization is not approved. The GA would already have authority to consent to

such an alternative plan. You need to alert the attorney representing your receiving

facility or risk management, since this petition might get significant visibility.

Can a guardian advocate charge a client for services?

There isn’t any prohibition for such a practice if the client is competent to contract

for this service. Given that a GA is appointed only when the person is adjudicated

incompetent to consent, this would be very questionable. Section 394.4598(1),

Florida Statutes, requires that a GA meet the qualifications of a guardian contained

in part IV of chapter 744 and specifically prohibits certain people from serving:

Individuals will be appointed to be a guardian advocate in this order: the health

care surrogate named by the person; a relative; or a friend. Only if none of these

people are available and willing to serve can an adult trained and willing to serve

as guardian advocate for the person be named by the court. § 394.4598(6), Fla.

Stat.

Can a petition for involuntary placement reflect that a person is competent to

consent to treatment? If yes, is the section of the petition regarding guardian

advocacy left incomplete? Does the person then need a proxy?

A person may “refuse” placement instead of being “unable to determine” that

placement is necessary. If refusing placement, it is possible that the person retains

competency to consent or refuse consent to his/her own treatment. This is the very

circumstance that the second question on page 2 of the involuntary placement

petition is intended to cover. If the person is competent to consent/refuse to

consent or a court-appointed guardian for mental health decision-making is already

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

appointed, #2 would be checked and the other questions on the petition would not

be answered. If the person is competent to make his/her own treatment decisions, a

proxy would be inappropriate.

If a guardian advocate is ordered for a patient who is subsequently

transferred to a state hospital, are we responsible for obtaining a different

guardian advocate?

A guardian advocate is appointed by the originating court to serve until the

person’s order expires, or until he/she transfers to voluntary status (must be

competent to make well-reasoned, willful, and knowing decisions about medical,

mental health, or substance abuse treatment) or is discharged from a facility (no

longer meeting involuntary placement criteria). The guardian advocate, generally a

family member, isn’t appointed just for the time in a single facility. The GA is

appointed to serve the person, wherever he/she is, not to serve a facility. If the

appointment was intended to apply only when the patient is at your facility, the

court should be notified of this so a different GA could be selected if possible. The

state mental health facility might not accept the person if no GA would be

available to make treatment decisions on behalf of the person and there may not be

access to a GA to serve.

If a guardian advocate is unexpectedly no longer able or willing to serve, a

procedure is laid out in rule 65E-5.230, Florida Administrative Code, as follows:

(3) When a guardian advocate previously appointed by the court

cannot or will not continue to serve in that capacity, and the person

remains incompetent to consent to treatment, the facility administrator

shall petition the court for a replacement guardian advocate. A copy of

the completed petition shall be given to the person, the current

guardian advocate, the prospective replacement guardian advocate,

person’s attorney, and representative, with a copy retained in the

person’s clinical record. Recommended form CF-MH 3106, “Petition

for Adjudication of Incompetence to Consent to Treatment and

Appointment of a Guardian Advocate,” as referenced in subparagraph

65E-5.170(1)(d)2., F.A.C., may be used for this documentation if

Parts I and III are completed.

Are guardian advocates immune from liability for treatment decisions they

make for patients?

You may need to consult with your attorney, but it doesn’t appear that the law

offers any immunity. If the GA appointed by the court is volunteering under the

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

100

supervision of a public or nonprofit organization, the volunteer is covered under

Florida’s Volunteer Protection Act (section 768.1355, Florida Statutes).

A corporation that provides guardian advocate services to patients of our

hospital often does not have anyone show up for the hearings, despite notice

given. The GA calls the next day and speaks to the client by phone. We then

have to find a way for the GA to talk to the psychiatrist. This all must be done

prior to the GA consenting for the medications. Any suggestions?

There is no legal requirement for the guardian advocate to actually attend the

hearing, and it is even questionable whether the GA would have the right to do so

until after the appointment took place, due to the confidentiality of the information

discussed. However, given that the person may have had medications delayed from

the time of admission until the time of the hearing (7-10 days), any further delay

seems unreasonable. If it is the corporation named in the order, it should be easy

enough to arrange for another agent of the corporation to come promptly to the

hospital after appointment.

Section 394.4598(3), Florida Statutes, provides: “Before giving consent to

treatment, the guardian advocate must meet and talk with the patient and the

patient’s physician in person, if at all possible, and by telephone, if not”

(emphasis added). A pattern of delay should cause your hospital to consider

finding an alternative service, especially since the hearing date is predictably the

same each week.

4. Health Care Surrogates/Proxies

What kind of liability does a health care surrogate/proxy have for his or her

decision-making on behalf of a person found incompetent to consent to

treatment?

The advance directive law provides the following immunity for surrogates/proxies,

as well as for providers in providing care under the statute:

765.109. Immunity from liability; weight of proof; presumption

(1) A health care facility, provider, or other person who acts under

the direction of a health care facility or provider is not subject to

criminal prosecution or civil liability, and will not be deemed to have

engaged in unprofessional conduct, as a result of carrying out a health

care decision made in accordance with the provisions of this chapter.

The surrogate or proxy who makes a health care decision on a

patient’s behalf, pursuant to this chapter, is not subject to criminal

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

101

prosecution or civil liability for such action.

(2) The provisions of this section shall apply unless it is shown by

a preponderance of the evidence that the person authorizing or

effectuating a health care decision did not, in good faith, comply with

the provisions of this chapter.

Our local CSU has asked me to serve as a proxy now that I’m no longer

working there, but I’m wondering about liability as an LCSW. I do not have

my own liability insurance. Do you have any thoughts on this?

The advance directive statute regarding health care proxies provides:

765.401. The proxy

(1) If an incapacitated or developmentally disabled patient has not

executed an advance directive, or designated a surrogate to execute an

advance directive, or the designated or alternate surrogate is no longer

available to make health care decisions, health care decisions may be

made for the patient by any of the following individuals, in the

following order of priority, if no individual in a prior class is

reasonably available, willing, or competent to act:

(a) The judicially appointed guardian of the patient or the guardian

advocate of the person having a developmental disability as defined in

s. 393.063, who has been authorized to consent to medical treatment,

if such guardian has previously been appointed; however, this

paragraph shall not be construed to require such appointment before a

treatment decision can be made under this subsection;

(b) The patient’s spouse;

adult child, a majority of the adult children who are reasonably

available for consultation;

(d) A parent of the patient;

(e) The adult sibling of the patient or, if the patient has more than

one sibling, a majority of the adult siblings who are reasonably

available for consultation;

(f) An adult relative of the patient who has exhibited special care

and concern for the patient and who has maintained regular contact

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

102

with the patient and who is familiar with the patient’s activities,

health, and religious or moral beliefs; or

(g) A close friend of the patient.

(h) A clinical social worker licensed pursuant to chapter 491, or

who is a graduate of a court-approved guardianship program. Such a

proxy must be selected by the provider’s bioethics committee and

must not be employed by the provider. If the provider does not have a

bioethics committee, then such a proxy may be chosen through an

arrangement with the bioethics committee of another provider. The

proxy will be notified that, upon request, the provider shall make

available a second physician, not involved in the patient’s care to

assist the proxy in evaluating treatment. Decisions to withhold or

withdraw life-prolonging procedures will be reviewed by the facility’s

bioethics committee. Documentation of efforts to locate proxies from

prior classes must be recorded in the patient record.

(2) Any health care decision made under this part must be based on

the proxy’s informed consent and on the decision the proxy

reasonably believes the patient would have made under the

circumstances. If there is no indication of what the patient would have

chosen, the proxy may consider the patient’s best interest in deciding

that proposed treatments are to be withheld or that treatments

currently in effect are to be withdrawn.

What’s most important is that you not be asked to serve if there is any guardian,

family member, or friend who is willing and able to serve. The receiving facility

should have already made a diligent effort to obtain such family or friend to serve

before even contacting you. If you are asked to serve, it must be after referral by an

ethics committee — most medical hospitals have such a committee if the CSU

does not. Most ethics committees have an expedited procedure, and there wouldn’t

have to be a delay for some scheduled meeting. Use of Baker Act forms CF-MH

3122 (Certification of Person’s Incompetence to Consent to Treatment and

Notification of Health Care Surrogate/Proxy) and CF-MH 3123 (Affidavit of

Health Care Proxy) may help in ensuring compliance with the law and rules.

If you agree to serve as a proxy, your exclusive obligation is to the patient, not the

convenience of the receiving facility. The decision is whether to consent and, if so,

what the individual would have consented to if competent (substitute judgment

standard). Only when this isn’t known can a “best interest” standard be used in

decision-making.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

103

The Baker Act rules permit use of a surrogate or proxy only on an interim basis —

a petition for involuntary placement and appointment of a guardian advocate must

be filed within two court working days of the certification of incapacity by the

physician. You must also be provided the same information that is required by law

to be provided to guardian advocates and can consent to treatment for the person

only after talking to the individual and to the physician — in person if possible and

if not, by telephone.

If a person needs medications but refuses them and has been determined by a

physician not to have capacity to make his or her own treatment decisions,

can a facility staff legally call a family member or close friend to be a health

care proxy without the person’s consent?

Yes. A facility can contact the person highest on the list of eligible proxies to seek

his or her involvement. The federal HIPAA law recognizes state statutory authority

to designate persons who will “stand in the shoes of the person,” such as guardians,

guardian advocates, and health care surrogates and proxies. Section 765.401(1),

Florida Statutes, lists individuals who, in the order of listing, can be selected by the

provider to act as proxy.

The Baker Act rules indicate that when a person has not executed an advance

directive, health care decisions may be made by an eligible proxy during the

interim period between the time the person is determined by the physician to

be incompetent to consent to treatment and the time a guardian advocate is

appointed by a court. Would there be any conflict with HIPAA allowing a

proxy to make decisions, since the person did not have an advance directive?

No. HIPAA defers to the state laws in recognizing individuals who are authorized

to “stand in the shoes of the person” for decision-making purposes in each state.

This includes guardians, guardian advocates, and health care surrogates/proxies in

Florida.

Can health care surrogates and proxies give consent to mental health

treatment?

Yes. Florida’s advance directive law is clear that it applies to any and all health

care decisions — this includes mental health decisions as well. The following

provisions help to reinforce this issue:

765.101. Definitions (emphasis added)

(10) “Incapacity” or “incompetent” means the patient is physically

or mentally unable to communicate a willful and knowing health care

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

104

decision. For the purposes of making an anatomical gift, the term also

includes a patient who is deceased.

765.205. Responsibility of the surrogate (emphasis added)

(1) The surrogate, in accordance with the principal’s instructions,

unless such authority has been expressly limited by the principal,

shall:

(a) Have authority to act for the principal and to make all health

care decisions for the principal during the principal’s incapacity.

765.202. Designation of a health care surrogate (emphasis added)

(5) A principal may designate a separate surrogate to consent to

mental health treatment in the event that the principal is determined

by a court to be incompetent to consent to mental health treatment and

a guardian advocate is appointed as provided under s. 394.4598.

However, unless the document designating the health care surrogate

expressly states otherwise, the court shall assume that the health care

surrogate authorized to make health care decisions under this chapter

is also the principal’s choice to make decisions regarding mental

health treatment.

765.204. Capacity of principal; procedure (emphasis added)

(1) A principal is presumed to be capable of making health care

decisions for herself or himself unless she or he is determined to be

incapacitated. Incapacity may not be inferred from the person’s

voluntary or involuntary hospitalization for mental illness or from

her or his intellectual disability.

The Florida Administrative Code governing the Baker Act also has extensive

provisions governing the use of health care surrogates and proxies as interim

decision makers until a guardian advocate is appointed by the court.

Can a health care surrogate or proxy make treatment decisions for a person

in a Baker Act facility?

Yes, but only for a person who is on involuntary status and for whom a petition is

to be filed with the court in a timely way requesting the appointment of a guardian

advocate.

If an involuntary placement petition is completed on the weekend and there is

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

105

a proxy, can we still medicate the patient before filing on the next business

day?

Yes, as long as the petition has been completed within the 72 hours permitted by

law and that point in time falls on a weekend or legal holiday and you file the

petition with the court on the next court working day. You can continue to seek

authorization for treatment from the health care proxy until the court acts on your

request for appointment of a guardian advocate.

Once a physician documents that a patient is incompetent and has no

healthcare surrogate or legal guardian, can we as a facility appoint a

healthcare proxy? Our local magistrate recently denied us permission to use a

proxy. Our interpretation was that we didn’t need the court’s permission. We

recognize that the proxy is time limited. Isn’t the point of a proxy to avoid

ETOs or, worse yet, a lack of treatment until the court hearing?

Rule 65E-5.2301, Florida Administrative Code, governing the use of a health care

surrogate or proxy, was added to the rules in 1998 to provide for an interim

decision maker between the time a person is determined to be incompetent to

consent to treatment by one or more physicians and the time a guardian advocate is

appointed by a court. The court has no role in issues relating to health care

surrogates or proxies unless a complaint is made and the court is responsible for

investigating the complaint. As long as a receiving or treatment facility submits a

petition for involuntary placement and appointment of a guardian advocate within

two court working days of the determination by a physician of an individual’s

incompetence to consent to treatment, the court shouldn’t have a concern.

5. Powers of Attorney

Does a power of attorney for health care override a Baker Act?

No. A person with a POA or a health care surrogate/proxy can consent only to

treatment, not to admission. Adults with a substitute decision maker must remain

on involuntary status because of their incapacity.

Can a power of attorney give consent to the admission or treatment of a

person in a Baker Act facility?

A durable power of attorney is insufficient to authorize the admission of a person

on a voluntary basis or to consent to treatment for a person, regardless of his or her

legal status. However, if the POA is in the form of an advance directive for health

care, the surrogate named in the advance directive can make treatment decisions

but not the decision to admit the person to a facility. Such admission must be on an

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

106

involuntary basis.

IX. Selected Model Baker Act Forms for Informed Consent and Use of

Substitute Decision Makers

Please note that these recommended forms were promulgated by DCF before

the 2016 statutory amendments and do not incorporate those changes.

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

107

A. Petition for Adjudication of Incompetence to Consent to Treatment and

Appointment of a Guardian Advocate

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR ___________________________ COUNTY, FLORIDA

IN RE: _________________________________________ CASE NO.: __________________________

Petition for Adjudication of Incompetence to Consent to Treatment

and Appointment of a Guardian Advocate

PART I

I, __________________________________________________________________________, Administrator of

__________________________________________________________________________________________

Name of Facility

__________________________________________________________________________________________

Facility Address

hereby recommend that

_______________________________________________________________________ be adjudicated

incompetent to consent to:

Mental health treatment

Medical treatment

and that a guardian advocate be appointed to make such health care decisions for the person. The person

is presently placed in the County of _____________ and has residence in the County of _____________.

Is presently ordered to involuntary outpatient placement in the County of :________________________.

PART II Psychiatric Opinion Supporting the Petition

I,_________________________________________________, a psychiatrist authorized to practice in the

State of Florida, have personally examined __________________________________________________

Name of Person Examined

on _____________, and found his/her judgment to be so affected by a mental illness that he/she lacks the

Date

capacity to make a well-reasoned, willful, and knowing decision concerning his/her medical and/or

mental health care. Observations which support this opinion are: _____________________________

_____________________________________________________________________________________

___________________________________________ _________________ ___________ am pm

Signature of Psychiatrist Date Time

___________________________________________ _________________________________

Typed or Printed Name of Psychiatrist License Number

CONTINUED OVER

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

108

Petition for Adjudication of Incompetence to Consent to Treatment

and Appointment of a Guardian Advocate (Page 2)

PART III - Proposed Guardian Advocate

________________________________________________________________________, who resides at

____________________________________________________________________________ and whose

relationship to the person is ____________________________, has agreed to serve as guardian advocate.

He/she has been provided with information about the duties and responsibilities of guardian advocates,

including the information about the ethics of medical decision-making.

_____________________________________________ __________________ __________ am pm

Signature of Administrator or Designee Date Time

_____________________________________________

Typed or Printed Name of Administrator or Designee

Complete Parts I, II, and III to Petition for a Guardian Advocate

Complete Part I only to petition the Court to expand a current guardian advocate’s authority to provide

consent to medical treatment in addition to mental health treatment.

Complete Part I and Part III to request the circuit court to appoint a substitute guardian advocate for

one who cannot or will not perform his or her duties.

cc: Check when applicable and initial/date/time when copy provided:

Individual

Date Copy

Provided

Time Copy Provided

Initial of Who Provided

Copy

Person

am pm

Representative

am pm

Current Guardian Advocate

am pm

Prospective Guardian Advocate

am pm

Person’s Attorney

am pm

See s. 394.4598(1), (2), (3), (4), (5), (6), Florida Statutes

CF-MH 3106, Feb 05 (obsoletes previous editions) (Recommended Form) BAKER ACT

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

109

B. Order Appointing Guardian Advocate

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR ___________________________ COUNTY, FLORIDA

IN RE: _________________________________________ CASE NO.: ______________________

Order Appointing Guardian Advocate

This matter came to be heard on the issue of whether the above-named person should be adjudicated incompetent to

consent to treatment, and the Court finds by clear and convincing evidence as follows:

1. Said person has been represented by counsel.

2. Said person is not presently adjudicated incapacitated with a duly appointed guardian with authority to consent

to treatment.

3. Said person meets the definition for being incompetent to consent to treatment pursuant to Section 394.455 (15),

Florida Statutes.

This finding is determined from the testimony of _________________________________________. The court

has considered testimony and other evidence regarding said person’s competence to consent to treatment and

based on such testimony and evidence has concluded that said person is not competent to consent to treatment.

On the basis of these findings, it is hereby,

ORDERED

That the above-named person presently within the county, is incompetent to consent to treatment because his/her

judgment is so affected by a mental illness that he/she lacks the capacity to make a well-reasoned, willful, and

knowing decision concerning his or her medical and/or mental health treatment.

___________________________________________________________, whose relationship to the person is:

Name of Guardian Advocate

1. Health Care Surrogate 2. Person’s Spouse 3. Person’s Adult Child 4. Person’s Parent

5. Person’s Adult Next of Kin 6. Person’s Adult Friend 7. Adult Trained and Willing to Serve

Has agreed to serve as guardian advocate and:

a. Will obtain from the facility sufficient information in order to decide whether to give express and informed

consent to the treatment, including information that the treatment is essential to the care of the person, and that

the treatment does not present an unreasonable risk of serious, hazardous, or irreversible side effects.

b. Has agreed to meet and talk to the person and the person’s physician in person, if at all possible, and by

telephone if not, before giving consent to treatment.

c. Has or will undergo a training course approved by this Court prior to exercising this authority, unless waived by

this Court.

d. Will be provided access to the appropriate clinical records of the person.

This guardian advocate has been given authority by this Court to consent, refuse consent, or revoke consent for:

mental health treatment medical treatment

but may not consent to abortion, sterilization, electroconvulsive treatment, psychosurgery, or experimental

treatments unless express Court approval in a separate proceeding is given.

This appointment as Guardian Advocate shall terminate upon the discharge of the person from an order for

involuntary outpatient placement or involuntary inpatient placement or the transfer of the person to

voluntary status, or an order of the court restoring the person’s competence.

DONE AND ORDERED this _______________ day of _________________________, _______________

____________________________________________ ____________________________________

Printed Name of Circuit Court Judge Signature of Circuit Court Judge

cc: Person ___ Guardian Advocate ___ Representative ___ Facility Administrator ___ Person’s Attorney

See s. 394.455(15), 394.4598(1), (2), (3), (4), (6), (7), Florida Statutes

CF-MH 3107, Feb 05 (obsoletes previous editions) (Recommended Form) BAKER ACT

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

110

C. Petition Requesting Court Approval for Guardian Advocate to Consent to

Extraordinary Treatment

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR ___________________________ COUNTY, FLORIDA

IN RE: ___________________________________ CASE NO.: __________________________

Petition Requesting Court Approval for

Guardian Advocate to Consent to Extraordinary Treatment

_____________________________________________, guardian advocate appointed on ____________________

Name of Guardian Advocate Date

for ______________________________________________,

Name of Person.

Said person is presently:

Placed on an inpatient basis in ______________________________________a receiving or treatment facility in

_____________________ County and has residence in __________________________________ County, or

Involuntarily placed on an outpatient basis in ______________County. The service provider is: _________________

Psychiatric or Medical Opinion Supporting the Petition

I,_________________________________, a psychiatrist or physician authorized to practice in the State of Florida,

Name of Psychiatrist or Physician

have personally examined _______________________________________ on ________________, and found

Name of Person Date

that he/she is in need of the following treatment or procedure: ___________________________________________

_____________________________________________________________________________________________

Observations which support this opinion are: _________________________________________________________

_____________________________________________________________________________________________

This treatment or procedure is essential to the care of the person and the treatment does not present an unreasonable

risk of serious, hazardous, or irreversible side effects.

_____________________________________________ ___________________ __________ am pm

Signature of: Psychiatrist Physician Date Time

_____________________________________________ ____________________________

Typed or Printed Name of Psychiatrist or Physician License Number

_____________________________________________ ___________________ ___________ am pm

Guardian Advocate’s Signature Date Time

_____________________________________________

Typed or Printed Name of Guardian Advocate

cc: Check when applicable and initial/date/time when copy provided:

Individual

Date Copy Provided

Time Copy Provided

Initials of Who

Provided Copy

Person

am pm

Guardian Advocate

am pm

Representative

am pm

Person’s Attorney

am pm

Facility Administrator

am pm

See s. 394.4598(6), Florida Statutes

CF-MH 3108, Feb 05 (obsoletes previous editions) (Recommended Form) BAKER ACT

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

111

D. Order Authorizing Guardian Advocate to Consent to Extraordinary

Treatment

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR ___________________________ COUNTY, FLORIDA

IN RE: ___________________________________ CASE NO.: __________________________

Order Authorizing Guardian Advocate to Consent to Extraordinary Treatment

This matter came to be heard on the issue of whether ______________________________________ guardian

Name of Guardian Advocate

advocate for the above-named person who is involuntarily placed should be given express court approval for

extraordinary treatment. Upon the evidence presented, the Court finds as follows:

1. The petitioner was appointed as the guardian advocate for the above-named person by order previously

entered in this cause after an earlier hearing.

2. The person has been represented by counsel.

3. The treatment or procedure approved herein is essential to the care of the person and the treatment does

not present an unreasonable risk of serious, hazardous, or irreversible side effects.

On the basis of these findings, it is hereby,

ORDERED

That the above-named guardian advocate for the above-named person, presently within the county, is

authorized to provide consent for:

________________________________________________________________________________________.

The Guardian Advocate’s appointment shall terminate upon the discharge of the person from an order

for involuntary outpatient placement or involuntary inpatient placement, or when the person is

transferred to voluntary status, or by order of the court restoring the person’s competence.

DONE AND ORDERED this _______________ day of ___________________, _________________.

________________________________________________ __________________________________

Printed Name of Circuit Court Judge Signature of Circuit Court Judge

cc: Check when applicable and initial/date/time when copy provided:

Individual

Date Copy Provided

Time Copy Provided

Initial of Who

Provided Copy

Person

am pm

Guardian Advocate

am pm

Person’s Attorney

am pm

Facility Administrator

am pm

See s. 394.4598(6), Florida Statutes

CF-MH 3109, Feb 05 (obsoletes previous editions) (Recommended Form) BAKER ACT

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

112

E. Authorization for Electroconvulsive Treatment

Authorization for Electroconvulsive Treatment

As the physician for this person, I have recommended a series of ____________ electroconvulsive treatments and have

provided sufficient information to ensure express and informed consent to the treatment.

__________________________ _______________________ ____________ ___________ am pm

Signature of Physician Printed Name of Physician Date Time

I have agreed with the need for this series of __________ electroconvulsive treatments after

examination of the person or review of the person’s treatment records. I am not directly involved with the person.

____________________________ _______________________________ ______________ ______ am pm

Signature of Second Physician Printed Name of Second Physician Date Time

I, the undersigned, competent adult, guardian, guardian advocate, health care surrogate

authorize ___________________________ Electroconvulsive Treatments for ______________________.

Number of treatments authorized Name of Person to Receive Treatment

a person in ___________________________________________________________________________________

Name of Facility

The information provided to the person to make the decision to consent to electroconvulsive treatment (which must

include the purpose of the procedure, the common side effects, alternative treatments, and the approximate number of

procedures considered necessary and that my consent may be revoked prior to or between treatments) is:

__________________________________________________________________________________________________

I have read and understood the information provided to me above and have been given an opportunity to ask questions and

receive answers about the procedures. Knowing the above, I hereby consent to the treatment described.

_________________________________________ ___________________ _______________ am pm

Signature of Competent Adult Date Time

________________________________________ __________________ ______________ am pm

Signature, * as appropriate, of: Date Time

Guardian, Guardian Advocate,

Parent of a Minor, Health Care Surrogate

____________________________________ __________________ ______________ am pm

Signature of Witness Date Time

Facility should attach information about or copies of educational materials provided to the person and/or

substitute decision maker.

* A guardian shall produce letters of guardianship prior to authorizing ECT to demonstrate authority to

provide consent. A guardian advocate requires express Court approval to provide consent to this

procedure. A health care surrogate requires an advance directive expressly delegating such authority to the

surrogate. In the absence of such an advance directive, a health care surrogate or proxy require express

court approval to consent to ECT. The authorizing documentation must be validated by staff and filed in the

person’s clinical record.

See s. 394.459(3)(b), 458.325, Florida Statutes

CF-MH 3057, Feb 05 (obsoletes previous editions) (Recommended Form) BAKER ACT

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

113

F. Notification to Court of Person’s Competence to Consent to Treatment and

Discharge of Guardian Advocate

Notification to Court of Person’s Competence to Consent

to Treatment and Discharge of Guardian Advocate

________________________________________, a guardian advocate appointed by the court on

Name of guardian advocate

________________________ for __________________________________________ who was:

Date of appointment Name of person

Court ordered for involuntary inpatient placement located at _________________________________

Name of receiving or treatment facility

Court ordered for involuntary outpatient placement with services provided by: _________________

Name of service provider

Has been discharged from his or her duties on __________, 20____ due to the person’s regaining

competence to consent to his or her own treatment.

________________________________________________________________

Printed Name of Facility Administrator/Service Provider or Designee

________________________________________________________________ _____________________

Signature of Facility Administrator/Service Provider or Designee Date

See s. 394.4598(6), Florida Statutes

CF-MH 3121, Feb 05 (obsoletes previous editions) (Recommended Form) BAKER ACT

Chapter Two Express and Informed Consent

_____________________________________________________________________________________

Baker Act Benchguide November 2016

114

G. Findings and Recommended Order Restoring Person’s Competence to

Consent to Treatment and Discharging the Guardian Advocate

IN THE CIRCUIT COURT OF THE __________ JUDICIAL CIRCUIT

IN AND FOR ___________________________ COUNTY, FLORIDA

IN RE: _____________________________________ CASE NO.: _______________

Findings and Recommended Order Restoring Person’s Competence

to Consent to Treatment and Discharging the Guardian Advocate

A hearing was held on _______________________, to consider the continued involuntary placement of

__________________________________, a person placed at ___________________________________

facility. This person was previously found incompetent to consent to treatment and _____________________

was appointed as guardian advocate.

Testimony and evidence was considered at this hearing regarding the person’s competence, including:

_________________________________________________________________________________________

On the basis of this evidence, it is recommended that the Court restore this person’s competence to consent to

treatment and that the guardian advocate previously appointed be discharged.

_____________________________________________ __________________ ___________ am pm

Signature of Administrative Law Judge Date Time

_____________________________________________

Typed or Printed Name of Administrative Law Judge

It is hereby ordered, that ____________________________________________________ be restored to

competence to consent to treatment and that

_______________________________________________________, guardian advocate be discharged.

ORDERED this_______________ day of _____________________.

___________________________________ ___________________________________________

Printed Name of Circuit Court Judge Signature of Circuit Court Judge

See s. 394.467(7)(f), Florida Statutes

CF-MH 3116, Feb 05 (obsoletes previous editions) (Recommended Form) BAKER ACT

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

115

Chapter Three: Admission and Treatment for Minors

(Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

I. Cautionary Note

Many statutes, case law decisions, and rules govern how minors are to be treated in

Florida. Some of these legal requirements regarding mental health differ, based on

whether the minor lives with his/her own family or is in the custody of the DCF or

the Department of Juvenile Justice, whether the minor is on voluntary or

involuntary status, whether the issue relates to admission or to treatment, and

whether the issue relates to inpatient, residential, or outpatient settings. Mental

health requirements applying to minors are different than those applying to

substance abuse and general medical examination/treatment.

The Baker Act makes only a few distinctions between adults and minors. Where

distinctions are not made, adults and minors have the same rights. Specific

provisions regarding the admission and treatment of minors in the Baker Act and

other statutes are summarized here, with the corresponding statutory references.

Since the Baker Act contains so few specific references to minors, and since this

law must be carried out in the context of other coexisting statutes and case law, it is

important for each professional and mental health agency to involve legal counsel

in reviewing policies and procedures for properly carrying out one’s

responsibilities. Legal consultation on an ongoing basis is necessary to ensure

responsible and lawful conduct. In each circumstance in which consent to

admission and/or treatment is sought for a minor, it is essential that the

professional consider the nature and context of the consent in determining whether

the consent is legally sufficient.

II. Minority/Non-Age

A. Definition

“‘Adult’ means an individual who is 18 years of age or older or who has had the

disability of nonage removed under chapter 743.” § 394.455(4), Fla. Stat.

“‘Minor’ means an individual who is 17 years of age or younger and who has not

had the disability of nonage removed pursuant to s. 743.01 or s. 743.015.”

§ 394.455(29), Fla. Stat.

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

116

While the text of the Baker Act occasionally uses the term “minor” or “adult,” in

which case these definitions apply, it also uses the phrases “age 17 and under,”

“under 18 years of age,” or “18 years of age or older” in many other citations. In

such instances, the more precise age limitation would apply rather than the more

generic term of “minor” or “adult.”

Regarding a “minor’s” access to outpatient crisis intervention and treatment

(section 394.4784), such access without consent of a parent or guardian is only

available to minors age 13 or older.

B. Removal of Disabilities of Non-Age

 Married minors. “The disability of nonage of a minor who is married or has

been married or subsequently becomes married, including one whose

marriage is dissolved, or who is widowed, or widowered, is removed. The

minor may assume the management of his or her estate, contract and be

contracted with, sue and be sued, and perform all acts that he or she could do

if not a minor.” § 743.01, Fla. Stat.

 Unwed pregnant minors or minor mothers. “An unwed pregnant minor may

consent to the performance of medical or surgical care or services relating to

her pregnancy by a hospital or clinic or by a physician licensed under

chapter 458 or chapter 459, and such consent is valid and binding as if she

had achieved her majority. [She] may consent to the performance of medical

or surgical care or services for her child by a hospital or clinic or by a

physician licensed under chapter 458 or chapter 459, and such consent is

valid and binding as if she had achieved her majority.” § 743.065, Fla. Stat.

However, this doesn’t affect the provisions of section 390.0111, Florida

Statutes, which governs termination of pregnancies.

 Circuit court. “A circuit court has jurisdiction to remove the disabilities of

nonage of a minor age 16 or older residing in this state upon a petition filed

by the minor’s natural or legal guardian or, if there is none, by a guardian ad

litem. . . . The court shall consider the petition and, if satisfied that the

removal of the disabilities is in the minor’s best interest, shall remove the

disabilities of nonage; and shall authorize the minor to perform all acts that

the minor could do if he or she were 18 years of age.” § 743.015, Fla. Stat.

 Minors adjudicated as adults. “The disability of nonage of a minor

adjudicated as an adult and in the custody or under the supervision of the

Department of Corrections is removed, as such disability relates to health

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

117

care services, except in regard to medical services relating to abortion and

sterilization.” § 743.066, Fla. Stat.

C. Rights, Privileges, and Obligations of Persons 18 Years of Age or Older

Section 743.07, Florida Statutes, provides in part:

(1) The disability of nonage is hereby removed for all persons in

this state who are 18 years of age or older, and they shall enjoy and

suffer the rights, privileges, and obligations of all persons 21 years of

age or older except as otherwise excluded by the State Constitution

immediately preceding the effective date of this section and except as

otherwise provided in the Beverage Law.

(2) This section shall not prohibit any court of competent

jurisdiction from requiring support for a dependent person beyond the

age of 18 years when such dependency is because of a mental or

physical incapacity which began prior to such person reaching

majority or if the person is dependent in fact, is between the ages of

18 and 19, and is still in high school, performing in good faith with a

reasonable expectation of graduation before the age of 19.

D. Consent to Treatment

Generally, persons under the age of 18 cannot consent to their own treatment

because they are presumed to be legally incompetent as a result of their age or

presumed immaturity of judgment. The mother and father jointly are natural

guardians of their biological and adopted children during minority, and they can

provide consent if necessary, unless their parental rights have been terminated

pursuant to chapter 39, Florida Statutes. § 744.301(1), Fla. Stat. That statute further

provides:

 If one parent dies, the natural guardianship passes to the surviving parent,

and the right continues even if the surviving parent remarries.

 If the marriage between the parents is dissolved, the natural guardianship

belongs to the parent to whom the responsibility of the child is given. (See

chapter 61, Florida Statutes, governing dissolution of marriage.)

 If the parents share parental responsibility, then both continue as natural

guardians.

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

118

 “If the marriage is dissolved and neither parent is given parental

responsibility for the child, neither may act as natural guardian of the child.”

 “The mother of a child born out of wedlock is the natural guardian of the

child and is entitled to primary residential care and custody of the child

unless a court enters an order stating otherwise.”

Upon petition of a parent, brother, sister, next of kin, or other person interested in

the welfare of a minor, the court can appoint a guardian for a minor without

appointing an examining committee or adjudicating the child incapacitated.

§§ 744.3021(1), 744.342. Fla. Stat. A guardian appointed for a minor, whether of

the person or property, has the authority of a plenary guardian. § 744.3021(1), Fla.

Stat. If the minor is age 14 or over, the court must consider the minor’s preference

as to who should be appointed guardian. § 744.312(3)(b), Fla. Stat.

“‘Legal custody’ means a legal status created by a court which vests in a custodian

of the person or guardian, whether an agency or an individual, the right to have

physical custody of the child and the right and duty to protect, nurture, guide, and

discipline the child and to provide him or her with food, shelter, education, and

ordinary medical, dental, psychiatric, and psychological care.” § 39.01(35), Fla.

Stat.

A guardian appointed by the court cannot commit the minor to a facility,

institution, or licensed service provider without a formal placement proceeding

pursuant to chapter 393, chapter 394, or chapter 397, unless the guardian ﬁrst

obtains speciﬁc authority from the court as described in section 744.3725.

§ 744.3215(4)(a), Fla. Stat.

The 2008 Florida Legislature extensively rewrote state laws (chapter 61, Florida

Statutes) governing the dissolution of marriage (SB 2532). This action

substantially changed terms used as well as the relationship among the parties of a

divorce as it pertained to children. It removed the term “divorce,” exchanged the

term “custody” for “parental responsibility,” and changed the term “visitation” to

“time-sharing.” Some of these terms are as follows:

 Parenting plan. A document that governs all circumstances among the

parties, including decision-making and time-sharing.

 Shared parental responsibility. Court-ordered relationship where both

parents retain full parental rights/responsibilities and shared decision-

making. Certain decisions may be assigned to one parent.

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

119

 Sole parental responsibility. Court-ordered relationship where one parent

makes decisions (with or without visitation).

 Time-sharing schedule. A timetable included in a parenting plan that

specifies the time the child will spend with each parent.

 Access to information. Availability of treatment records to either parent

unless the court specifically revokes this right.

III. Consent for Admission to a Mental Health Facility

A. Admission

“A facility may receive for observation, diagnosis or treatment . . . any person age

17 or under and for whom such application is made by his or her guardian . . . only

after a hearing to verify the voluntariness of the consent.” § 394.4625(1), Fla. Stat.

A facility is defined in the Baker Act as “any hospital, community facility, public

or private facility, or receiving or treatment facility providing for the evaluation,

diagnosis, care, treatment, training, or hospitalization of persons who have been

diagnosed as having a mental illness or substance abuse impairment.”

§ 394.455(10), Fla. Stat.

Each person, regardless of age, who enters treatment must be asked to give express

and informed consent for admission and for treatment. If the person is a minor,

express and informed consent for admission and treatment is required from the

guardian. § 394.459(3)(a), Fla. Stat. A minor 13 years of age or older is authorized

to consent to outpatient crisis intervention services under section 394.4784.

B. Hospitals

Section 394.4785(2), Florida Statutes, provides:

A person under the age of 14 who is admitted to any hospital

licensed pursuant to chapter 395, Florida Statutes, may not be

admitted to a bed in a room or ward with an adult in a mental health

unit or share common areas with an adult in a mental health unit.

However, a person 14 years of age or older may be admitted to a bed

in a room or ward in the mental health unit with an adult if the

admitting physician documents in the case record that such placement

is medically indicated or for reasons of safety. Such placement must

be reviewed by the attending physician or a designee or on-call

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

120

physician each day and documented in the case record. (emphasis

added)

In addition, all hospitals are required to ensure full compliance with the Baker Act

as a condition of licensure, as follows:

 Section 395.003(5)(a), Florida Statutes, governing licensure of all hospitals

states: “Adherence to patient rights, standards of care, and examination and

placement procedures provided under part I of chapter 394 shall be a

condition of licensure for hospitals providing voluntary or involuntary

medical or psychiatric observation, evaluation, diagnosis, or treatment.”

 Section 395.003(5)(b), Florida Statutes, states: “Any hospital that provides

psychiatric treatment to persons under 18 years of age who have emotional

disturbances shall comply with the procedures pertaining to the rights of

patients prescribed in part I of chapter 394.”

 Section 395.1041(6) , Florida Statutes, states: “A hospital providing

emergency services and care to a person who is being involuntarily

examined under the provisions of s. 394.463 shall adhere to the rights of

patients specified in part I of chapter 394 and the involuntary examination

procedures provided in s. 394.463, regardless of whether the hospital, or any

part thereof, is designated as a receiving or treatment facility under part I of

chapter 394 and regardless of whether the person is admitted to the

hospital.”

 Section 395.1055(5), Florida Statutes, governing rules and enforcement,

states: “The agency shall enforce the provisions of part I of chapter 394, and

rules adopted thereunder, with respect to the rights, standards of care, and

examination and placement procedures applicable to patients voluntarily or

involuntarily admitted to hospitals providing psychiatric observation,

evaluation, diagnosis, or treatment.”

C. Children’s Crisis Stabilization Units

Minors under the age of 14 cannot be admitted to a bed in a room or ward with an

adult. They may share common areas with an adult only when under direct visual

observation by unit staff. Minors who are 14 years of age and older “may be

admitted to a bed in a room or ward in the mental health unit with an adult, if the

clinical record contains documentation by a physician that such placement is

medically indicated or for reasons of safety.” This must be reviewed and

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

121

documented by the physician on a daily basis. Fla. Admin. Code R. 65E-

12.106(22).

IV. Consent to Psychiatric Treatment

A. Inpatient Treatment

Persons entering a facility must be asked to give express and informed consent for

admission and treatment. Express and informed consent for admission and

treatment of a person under 18 is required from the person’s guardian, unless the

minor is seeking outpatient crisis intervention services (see below).

§ 394.459(3)(a), Fla. Stat.

B. Residential Treatment Centers

All rights specified in section 394.459, Florida Statutes, must be safeguarded for

minors in residential treatment centers as well as receiving facilities. Children must

be informed of their legal and civil rights, including the right to legal counsel and

all other requirements of due process. Therefore, the Baker Act describes the rights

of children in residential treatment centers. Fla. Admin. Code R. 65E-9.012.

C. Outpatient Crisis Intervention Services

The disability of non-age is removed for any minor age 13 years or older to access

services under the following circumstances, pursuant to section 394.4784, Florida

Statutes (emphasis added):

(1) Outpatient diagnostic and evaluation services.--When any minor

age 13 years or older experiences an emotional crisis to such degree that he

or she perceives the need for professional assistance, he or she shall have the

right to request, consent to, and receive mental health diagnostic and

evaluative services provided by a licensed mental health professional, as

defined by Florida Statutes, or in a mental health facility licensed by the

state. The purpose of such services shall be to determine the severity of the

problem and the potential for harm to the person or others if further

professional services are not provided. Outpatient diagnostic and evaluative

services shall not include medication and other somatic methods, aversive

stimuli, or substantial deprivation. Such services shall not exceed two visits

during any 1-week period in response to a crisis situation before parental

consent is required for further services, and may include parental

participation when determined to be appropriate by the mental health

professional or facility.

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

122

(2) Outpatient crisis intervention, therapy and counseling services.--

When any minor age 13 years or older experiences an emotional crisis to

such degree that he or she perceives the need for professional assistance, he

or she shall have the right to request, consent to, and receive outpatient crisis

intervention services including individual psychotherapy, group therapy,

counseling, or other forms of verbal therapy provided by a licensed mental

health professional, as defined by Florida Statutes, or in a mental health

facility licensed by the state. Such services shall not include medication and

other somatic treatments, aversive stimuli, or substantial deprivation. Such

services shall not exceed two visits during any 1-week period in response to

a crisis situation before parental consent is required for further services, and

may include parental participation when determined to be appropriate by the

mental health professional or facility.

(3) Liability for payment.--The parent, parents, or legal guardian of a

minor shall not be liable for payment for any such outpatient diagnostic and

evaluation services or outpatient therapy and counseling services, as

provided in this section, unless such parent, parents, or legal guardian

participates in the outpatient diagnostic and evaluation services or outpatient

therapy and counseling services and then only for the services rendered with

such participation.

(4) Provision of services.--No licensed mental health professional shall

be obligated to provide services to minors accorded the right to receive

services under this section. Provision of such services shall be on a voluntary

basis.

V. Substance Abuse (Marchman Act) Admission and Treatment

A. In General

“The disability of minority for persons under 18 years of age is removed solely for

the purpose of obtaining voluntary substance abuse impairment services from a

licensed service provider, and consent to such services by a minor has the same

force and effect as if executed by an individual who has reached the age of

majority. Such consent is not subject to later disaffirmance based on minority.”

§ 397.601(4)(a), Fla. Stat. (emphasis added).

B. Criteria

A minor may be taken to a detox facility, hospital, or addictions receiving facility

(ARF) for involuntary admission if there is a good-faith reason to believe the

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

123

minor is substance abuse impaired (“a condition involving the use of alcoholic

beverages or any psychoactive or mood-altering substance in such a manner as to

induce mental, emotional, or physical problems and cause socially dysfunctional

behavior”), section 397.311(18), Florida Statutes, and who, because of such

condition

(1) Has lost the power of self-control with respect to substance

abuse; and:

(2)(a) Is in need of substance abuse services and, by reason of

substance abuse impairment, his or her judgment has been so impaired

that he or she is incapable of appreciating his or her need for such

services and of making a rational decision in that regard, although

mere refusal to receive such services does not constitute evidence of

lack of judgment with respect to his or her need for such services; or

(b) Without care or treatment, is likely to suffer from neglect or

refuse to care for himself or herself; that such neglect or refusal poses

a real and present threat of substantial harm to his or her well-being;

and that 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 there is substantial likelihood that the person has inflicted,

or threatened to or attempted to inflict, or, unless admitted, is likely to

inflict, physical harm on himself, herself, or another.

§ 397.675, Fla. Stat.

C. Initiation

Protective custody may be initiated through law enforcement. § 397.677, Fla. Stat.

A parent or guardian may apply for a certificate for a minor’s emergency

admission if a professional’s certificate has been obtained, see section 397.679, as

well as for admission to a juvenile addiction receiving facility, section 397.6798. A

parent/guardian or a licensed service provider can also petition the court for an

involuntary assessment and stabilization order. § 397.6811, Fla. Stat.

D. Disposition

Release of the minor from protective custody, emergency admission, involuntary

assessment, involuntary treatment, or alternative involuntary assessment, upon

approval of a qualified professional in a hospital, detoxification facility, addictions

receiving facility, or any less restrictive treatment component, must be to the

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

124

minor’s parent, legal guardian, or legal custodian, or the authorized designee

thereof, or to DCF or DJJ. § 397.6758, Fla. Stat.

E. Parental Participation in Treatment

“A parent, legal guardian, or legal custodian who seeks involuntary admission of a

minor . . . is required to participate in all aspects of treatment as determined

appropriate by the director of the licensed service provider.” § 397.6759, Fla. Stat.

F. Release of Information

Since a minor acting alone has the legal capacity to voluntarily apply

for and obtain substance abuse treatment, any written consent for

disclosure may be given only by the minor. This restriction includes,

but is not limited to, any disclosure of identifying information to the

parent, legal guardian, or custodian of a minor for the purpose of

obtaining financial reimbursement. . . . When the consent of a parent,

legal guardian, or custodian is required under this chapter in order for

a minor to obtain substance abuse treatment, any written consent for

disclosure must be given by both the minor and the parent, legal

guardian, or custodian.

§ 397.501(7)(e), Fla. Stat.

G. Parental Participation/Payment

A parent or legal guardian of a minor is required to contribute toward the cost of

substance abuse services in accordance with his/her ability to pay, unless otherwise

provided by law. § 397.431(2), Fla. Stat. “The parent, legal guardian, or legal

custodian of a minor is not liable for payment for any [voluntary] substance abuse

services provided to the minor without parental consent . . . , unless the parent,

legal guardian, or legal custodian participates or is ordered to participate in the

services, and only for the substance abuse services rendered. If the minor is

receiving services as a juvenile offender, the obligation to pay is governed by the

law relating to juvenile offenders.” § 397.431(3), Fla. Stat.

VI. Consent for General Medical Care and Treatment

A. Power to Consent

Persons who have the power to consent for a minor’s medical care and treatment

include a natural or adoptive parent, legal custodian, or legal guardian.

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

125

§ 743.0645(1)(c), Fla. Stat. The treatment provider must maintain records that

show documentation that a reasonable attempt was made to contact the person who

has the power to consent to the minor’s treatment. § 743.0645(2), Fla. Stat.

Any of the following persons, in order of priority listed, may consent to the

medical care or treatment of a minor who is not committed to DCF or DJJ “when,

after a reasonable attempt, a person who has the power to consent as otherwise

provided by law cannot be contacted by the treatment provider and actual notice to

the contrary has not been given to the provider by that person”:

(a) A health care surrogate designated under s. 765.2035 after

September 30, 2015, or a person who possesses a power of attorney to

provide medical consent for the minor. . . .

(b) The stepparent.

(d) An adult brother or sister of the minor.

(e) An adult aunt or uncle of the minor.

§ 743.0645(2), Fla. Stat.

“‘Medical care or treatment’ includes ordinary and necessary medical and dental

examinations and treatment, . . . but does not include surgery, general anesthesia,

provision of psychotropic medications, or other extraordinary procedures for

which a separate court order, health care surrogate designation under s. 765.2035

executed after September 30, 2015, power of attorney executed after July 1, 2001,

or informed consent as provided by law is required.” § 743.0645(1)(b), Fla. Stat.

(emphasis added).

B. Emergency Care

Section 743.064, Florida Statutes, provides as follows:

(1) The absence of parental consent notwithstanding, a physician

licensed under chapter 458 or an osteopathic physician licensed under

chapter 459 may render emergency medical care or treatment to any

minor who has been injured in an accident or who is suffering from an

acute illness, disease, or condition if, within a reasonable degree of

medical certainty, delay in initiation or provision of emergency

medical care or treatment would endanger the health or physical

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

126

wellbeing of the minor, and provided such emergency medical care or

treatment is administered in a hospital licensed by the state under

chapter 395 or in a college health service. Emergency medical care or

treatment may also be rendered in the prehospital setting by

paramedics, emergency medical technicians, and other emergency

medical services personnel, provided such care is rendered consistent

with the provisions of chapter 401. These persons shall follow the

general guidelines and notification provisions of this section.

(2) This section shall apply only when parental consent cannot be

immediately obtained for one of the following reasons:

(a) The minor’s condition has rendered him or her unable to reveal

the identity of his or her parents, guardian, or legal custodian, and

such information is unknown to any person who accompanied the

minor to the hospital.

(b) The parents, guardian, or legal custodian cannot be immediately

located by telephone at their place of residence or business.

(3) Notification shall be accomplished as soon as possible after the

emergency medical care or treatment is administered. The hospital

records shall reflect the reason such consent was not initially obtained

and shall contain a statement by the attending physician that

immediate emergency medical care or treatment was necessary for the

patient’s health or physical well-being. The hospital records shall be

open for inspection by the person legally responsible for the minor.

VII. Emergency Care of Youth in DCF or DJJ Custody

Section 743.0645(3), Florida Statutes, provides:

(3) The Department of Children and Families or the Department of

Juvenile Justice caseworker, juvenile probation officer, or person

primarily responsible for the case management of the child, the

administrator of any facility licensed by the department under s.

393.067, s. 394.875, or s. 409.175, or the administrator of any state-

operated or state-contracted delinquency residential treatment facility

may consent to the medical care or treatment of any minor committed

to it or in its custody under chapter 39, chapter 984, or chapter 985,

when the person who has the power to consent as otherwise provided

by law cannot be contacted and such person has not expressly

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

127

objected to such consent. There shall be maintained in the records of

the minor documentation that a reasonable attempt was made to

contact the person who has the power to consent as otherwise

provided by law.

(4) The medical provider shall notify the parent or other person

who has the power to consent as otherwise provided by law as soon as

possible after the medical care or treatment is administered pursuant

to consent given under this section. The medical records shall reflect

the reason consent as otherwise provided by law was not initially

obtained and shall be open for inspection by the parent or other person

who has the power to consent as otherwise provided by law.

(5) The person who gives consent; a physician, dentist, nurse, or

other health care professional licensed to practice in this state; or a

hospital or medical facility, including, but not limited to, county

health departments, shall not incur civil liability by reason of the

giving of consent, examination, or rendering of treatment, provided

that such consent, examination, or treatment was given or rendered as

a reasonable prudent person or similar health care professional would

give or render it under the same or similar circumstances.

VIII. Delinquent Youth

See ch. 985, Fla. Stat.

Section 985.18, Florida Statutes, titled “Medical, psychiatric, psychological,

substance abuse, and educational examination and treatment,” provides as follows:

(1) After a detention petition or a petition for delinquency has been

filed, the court may order the child named in the petition to be

examined by a physician. The court may also order the child to be

evaluated by a psychiatrist or a psychologist. If it is necessary to place

a child in a residential facility for such evaluation, the criteria and

procedures established in chapter 393, chapter 394, or chapter 397,

whichever is applicable, shall be used.

(2) If a child has been found to have committed a delinquent act, or

before such finding with the consent of any parent or legal custodian

of the child, the court may order the child to be treated by a physician.

The court may also order the child to receive mental health, substance

abuse, or intellectual disability services from a psychiatrist,

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

128

psychologist, or other appropriate service provider. If it is necessary to

place the child in a residential facility for such services, the

procedures and criteria established in chapter 393, chapter 394, or

chapter 397, as applicable, must be used. . . .

(6) A physician must be immediately notified by the person taking

the child into custody or the person having custody if there are

indications of physical injury or illness, or the child shall be taken to

the nearest available hospital for emergency care. A child may be

provided mental health, substance abuse, or intellectual disability

services in emergency situations pursuant to chapter 393, chapter 394,

or chapter 397, as applicable. After a hearing, the court may order the

custodial parent or parents, guardian, or other custodian, if found able

to do so, to reimburse the county or state for the expense involved in

such emergency treatment or care.

(7) Nothing . . . eliminates the right of the parents or the child to

consent to examination or treatment for the child, except that consent

of a parent shall not be required if the physician determines there is an

injury or illness requiring immediate treatment and the child consents

to such treatment or an ex parte court order is obtained authorizing

treatment.

IX. Dependent Youth

A. Medical, Psychiatric, and Psychological Examination and Treatment of

Children in DCF Custody

See ch. 39, Fla. Stat.; Fla. Admin. Code Ch. 65C-35. Rule 65C-35.007, Florida

Administrative Code, provides as follows (emphasis added):

(1) Parents or legal guardians retain the right to consent to or

decline the administration of psychotropic medications for children

taken into state care until such time as their parental rights, or court

ordered guardianship or custodial rights, have been terminated.

(2) If the parents’ or guardians’ legal rights have been terminated;

their identity or location is unknown; or they decline to approve

administration of psychotropic medications, and any party believes

that administration of the medication is in the best interest of the child

and medically necessary, then authorization to treat with psychotropic

medication must be pursued through a court order [via Children’s

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

129

Legal Services].

(3) In no case may the dependency case manager, child

protective investigator, the child’s caregiver, representatives from

[DJJ], or staff from Residential Treatment Centers provide

express and informed consent for a child in out-of-home care to

be prescribed a psychotropic medication.

Section 39.407, Florida Statutes, provides in part:

(1) When any child is removed from the home and maintained in

an out-of-home placement, the department is authorized to have a

medical screening performed on the child without authorization from

the court and without consent from a parent or legal custodian. Such

medical screening shall be performed by a licensed health care

professional and shall be to examine the child for injury, illness, and

communicable diseases and to determine the need for immunization.

The department shall by rule establish the invasiveness of the medical

procedures authorized to be performed under this subsection. In no

case does this subsection authorize the department to consent to

medical treatment for such children.

(2) When [DCF] has performed the medical screening , . . . or when it is

otherwise determined by a licensed health care professional that a child who

is in an out-of-home placement, but who has not been committed to the

department, is in need of medical treatment, including the need for

immunization, consent for medical treatment shall be obtained in the

following manner:

(a) [From a parent or legal custodian of the child, or by court order.]

(b) If a parent or legal custodian of the child is unavailable and his or her

whereabouts cannot be reasonably ascertained, and it is after normal

working hours so that a court order cannot reasonably be obtained, an

authorized agent of the department shall have the authority to consent to

necessary medical treatment, including immunization, for the child. The

authority of the department to consent to medical treatment in this

circumstance shall be limited to the time reasonably necessary to obtain

court authorization.

consent to the necessary treatment, a court order shall be required unless the

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

130

situation meets the definition of an emergency in s. 743.064 or the treatment

needed is related to suspected abuse, abandonment, or neglect of the child by

a parent, caregiver, or legal custodian. In such case, [DCF] can consent to

necessary medical treatment. This authority is limited to the time reasonably

necessary to obtain court authorization.

B. Psychotropic Medications for Children in DCF Custody

See Fla. Admin. Code Ch. 65C-35.

Section 39.407, Florida Statutes, provides:

(3)(a)1. . . . . [B]efore the department provides psychotropic

medications to a child in its custody, the prescribing physician shall

attempt to obtain express and informed consent . . . from the child’s

parent or legal guardian. The department must take steps necessary to

facilitate the inclusion of the parent in the child’s consultation with

the physician. However, if the parental rights of the parent have been

terminated, the parent’s location or identity is unknown or cannot

reasonably be ascertained, or the parent declines to give express and

informed consent, the department may, after consultation with the

prescribing physician, seek court authorization to provide the

psychotropic medications to the child. Unless parental rights have

been terminated and if it is possible to do so, the department shall

continue to involve the parent in the decisionmaking process

regarding the provision of psychotropic medications. If, at any time, a

parent whose parental rights have not been terminated provides

express and informed consent to the provision of a psychotropic

medication, the requirements of this section that the department seek

court authorization do not apply to that medication until such time as

the parent no longer consents.

2. Any time the department seeks a medical evaluation to

determine the need to initiate or continue a psychotropic medication

for a child, the department must provide to the evaluating physician

all pertinent medical information known to the department concerning

that child.

(b)1. If a child who is removed from the home under s. 39.401 is

receiving prescribed psychotropic medication at the time of removal

and parental authorization to continue providing the medication

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

131

cannot be obtained, the department may take possession of the

remaining medication and may continue to provide the medication as

prescribed until the shelter hearing, if it is determined that the

medication is a current prescription for that child and the medication

is in its original container.

2. If the department continues to provide the psychotropic

medication to a child when parental authorization cannot be obtained,

the department shall notify the parent or legal guardian as soon as

possible that the medication is being provided to the child. . . . The

child’s official departmental record must include the reason parental

authorization was not initially obtained and an explanation of why the

medication is necessary for the child’s well-being.

3. If the department is advised by a [licensed] physician . . . that

the child should continue the psychotropic medication and parental

authorization has not been obtained, the department shall request court

authorization at the shelter hearing to continue to provide the

psychotropic medication and must provide to the court any

information in its possession in support of the request. Any

authorization granted at the shelter hearing may extend only until the

arraignment hearing on the petition for adjudication of dependency or

28 days following the date of removal, whichever occurs sooner.

4. Before filing the dependency petition, the department shall

ensure that the child is evaluated by a [licensed] physician to

determine whether it is appropriate to continue the psychotropic

medication. If, as a result of the evaluation, the department seeks court

authorization to continue the psychotropic medication, a motion for

such continued authorization shall be filed at the same time as the

dependency petition, within 21 days after the shelter hearing.

authorization to initially provide or continue to provide psychotropic

medication to a child in its legal custody. The motion must be

supported by a written report prepared by the department which

describes the efforts made to enable the prescribing physician to

obtain express and informed consent for providing the medication to

the child and other treatments considered or recommended for the

child. In addition, the motion must be supported by the prescribing

physician’s signed medical report providing:

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

132

1. The name of the child, the name and range of the dosage of the

psychotropic medication, and that there is a need to prescribe

psychotropic medication to the child based upon a diagnosed

condition for which such medication is being prescribed.

2. A statement indicating that the physician has reviewed all

medical information concerning the child which has been provided.

3. A statement indicating that the psychotropic medication, at its

prescribed dosage, is appropriate for treating the child’s diagnosed

medical condition, as well as the behaviors and symptoms the

medication, at its prescribed dosage, is expected to address.

4. An explanation of the nature and purpose of the treatment; the

recognized side effects, risks, and contraindications of the medication;

drug-interaction precautions; the possible effects of stopping the

medication; and how the treatment will be monitored, followed by a

statement indicating that this explanation was provided to the child if

age appropriate and to the child’s caregiver.

5. Documentation addressing whether the psychotropic

medication will replace or supplement any other currently prescribed

medications or treatments; the length of time the child is expected to

be taking the medication; and any additional medical, mental health,

behavioral, counseling, or other services that the prescribing physician

recommends.

Chapter 65C-35, Florida Administrative Code, adopted in 2010, governs

“Psychotropic Medication for Children in Out of Home Care.” Several of the many

definitions in rule 65C-35.001, Florida Administrative Code, are as follows:

(1) “Assent” . . . means a process by which a provider of medical

services helps the patient achieve a developmentally appropriate

awareness of the nature of his or her condition; informs the patient of

what can be expected with tests and treatment; makes a clinical

assessment of the patient’s understanding of the situation and the

factors influencing how he or she is responding; and solicits an

expression of the patient’s willingness to accept the proposed care.

(10) “Express and Informed Consent” means . . . voluntary written

consent from a competent person who has received full, accurate, and

sufficient information and explanation about a child’s medical

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

133

condition, medication and treatment to enable the person to make a

knowledgeable decision without being subjected to any deceit or

coercion. Express and informed consent for the administration of

psychotropic medications may only be given by a parent whose rights

have not been terminated, or a legal guardian of the child. Sufficient

explanation includes but is not limited to the following information,

provided and explained in plain language by the prescribing physician

to the consent giver: the medication, reason for prescribing it, and its

purpose or intended result; side effects, risks, and contraindications,

including effects of stopping the medication; method for

administering the medication, and dosage range when applicable;

potential drug interactions; alternative treatments; and the behavioral

health or other services used to complement the use of medication,

when applicable.

(14) “Legal Guardian” means a permanent guardian as described in

Section 39.6221, F.S., or a “guardian” as defined in Section 744.102,

F.S., or a relative with a court order of temporary custody under

Chapter 751, F.S. Dependency case managers and Guardians ad Litem

do not meet the definition of legal guardian.

(15) “Medical Report” means a report prepared by the prescribing

physician that includes information required by Section 39.407(3)(c),

F.S. The form for the medical report is “Medical Report” (form CF-

FSP 5339 dated January 2010) which is hereby incorporated by

reference and is available by contacting the Family Safety Program

Office at 1317 Winewood Boulevard, Tallahassee, Florida 32399-

0700, or at

http://www.dcf.state.fl.us/dcfforms/Search/DCFFormSearch.aspx.

(18) “Psychotropic Medications” means, for the purpose of this rule,

any chemical substance prescribed with the intent to treat psychiatric

disorders; and those substances, which though prescribed with the

intent to treat other medical conditions, have the effect of altering

brain chemistry or involve any of the medications in the categories

listed below. The medications include, without limitation, the

following major categories:

(a) Antipsychotics;

(b) Antidepressants;

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

134

(d) Lithium;

(e) Stimulants;

(f) Non-stimulant Attention Deficit Hyperactivity Disorder

medications;

(g) Anti-dementia medications and cognition enhancers;

(h) Anticonvulsants and alpha-2 agonists; and

(i) Any other medication used to stabilize or improve mood,

mental status, behavior, or mental illness.

Psychotropic medications may be administered in advance of a court order or

parental authorization under two circumstances, including:

 if the prescribing physician certifies in writing on the medical report form

that “delay in providing a prescribed psychotropic medication would more

likely than not cause significant harm to the child,” or

 in hospitals, crisis stabilization units, and psychiatric residential treatment

programs.

§ 39.407(3)(e), Fla. Stat. In the above two circumstances, the dependency case

manager or child protective investigator must assist the prescribing physician in

obtaining express and informed consent and must take steps to include the parent

or legal guardian in the child’s consultation with the prescribing physician. If

express and informed consent hasn’t been obtained, the dependency case manager

or child protective investigator must obtain a completed/signed copy of the medical

report and provide it to Children’s Legal Services in time for a motion to be filed

within three business days after the medication is begun.

C. Examination, Treatment, and Placement of Children in DCF Custody

Section 39.407, Florida Statutes, provides in part as follows (emphasis added):

(4) A judge may order a child in an out-of-home placement to be

examined by a licensed health care professional. . . . The judge may

also order such child to be evaluated by a psychiatrist or a

psychologist or, if a developmental disability is suspected or alleged,

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

135

by the developmental disability diagnostic and evaluation team of the

department. If it is necessary to place a child in a residential facility

for such evaluation, the criteria and procedure established in

s. 394.463(2) or chapter 393 shall be used, whichever is applicable.

(5) A judge may order a child in an out-of-home placement to be

treated by a licensed health care professional based on evidence that

the child should receive treatment. The judge may also order such

child to receive mental health or developmental disabilities services

from a psychiatrist, psychologist, or other appropriate service

provider. If it is necessary to place the child in a residential facility for

such services, the procedures and criteria established in s. 394.467

shall be used. A child may be provided mental health services in

emergency situations, pursuant to the procedures and criteria

contained in s. 394.463(1).

(6) Children who are in the legal custody of the department may be

placed by the department, without prior approval of the court, in a

residential treatment center licensed under s. 394.875 or a hospital

licensed under chapter 395 for residential mental health treatment or

may be placed by the court in accordance with an order of involuntary

examination or involuntary placement entered pursuant to s. 394.463

or s. 394.467. All children placed in a residential treatment program

under this subsection must have a guardian ad litem appointed.

X. Frequently Asked Questions

A. Minority Defined

How is a minor defined?

“‘Minor’ means an individual who is 17 years of age or younger and who has not

had the disability of nonage removed pursuant to s. 743.01 or s. 743.015.”

§ 394.455(29), Fla. Stat.

While the text of the Baker Act occasionally uses the term “minor” or “adult,” in

which case these definitions apply, it also uses the phrases “age 17 and under,”

“under 18 years of age,” or “18 years of age or older” in many other citations. In

such instances, the more precise age limitation would apply rather than the more

generic term of “minor” or “adult.”

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

136

Is there any difference in legal status for minors of different ages, such as

above or below age 14?

There is no difference between the ages of a minor regarding inpatient care. Ages

0-17 are handled identically. The only differences referred to in the law are the

status of co-location with adult patients and outpatient crisis intervention.

Who is a child’s guardian?

A child’s guardian is generally one or both of his or her natural or adoptive

parents. After a dissolution of marriage, decisions related to the child’s health care

will be made by the parent or parents as set forth in the approved parenting plan.

The mother of a child born out of wedlock is guardian of the child. In the absence

of a parent, a guardian must be appointed by a court and can be a relative or other

person interested in the welfare of the child.

B. Informed Consent and Consent to Treatment

We have a psychiatrist who is board-certified for treatment of adult, child,

and adolescent patients. He has been treating a 17-year-old who is resistant to

medications. The doctor wants to perform outpatient ECT, and the parents

are willing to consent for the treatment. If the patient is willing to go through

the procedure and the parents give consent, and the psychiatrist has all the

“typical” paperwork needed for ECT, can he perform the procedure?

This issue is addressed in the Baker Act and the Medical Practice Act. These

Florida Statutes provisions are as follows:

394.459. Rights of patients (emphasis added)

(3) Right to express and informed patient consent.—

* * *

(b) In the case of medical procedures requiring the use of a general

anesthetic or electroconvulsive treatment, and prior to performing the

procedure, express and informed consent shall be obtained from the

patient if the patient is legally competent, from the guardian of a

minor patient, from the guardian of a patient who has been

adjudicated incapacitated, or from the guardian advocate of the patient

if the guardian advocate has been given express court authority to

consent to medical procedures or electroconvulsive treatment as

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

137

provided under s. 394.4598.

Since the minor is not competent to provide consent as a result of age, the guardian

has the power to make this decision. It still must be made with full disclosure of

the risks, benefits, and all other factors required for consent to be “informed.”

458.325. Electroconvulsive and psychosurgical procedures

(emphasis added)

(1) In each case of utilization of electroconvulsive or

psychosurgical procedures, prior written consent shall be obtained

after disclosure to the patient, if he or she is competent, or to the

patient’s guardian, if he or she is a minor or incompetent, of the

purpose of the procedure, the common side effects thereof, alternative

treatment modalities, and the approximate number of such procedures

considered necessary and that any consent given may be revoked by

the patient or the patient’s guardian prior to or between treatments.

(2) Before convulsive therapy or psychosurgery may be

administered, the patient’s treatment record shall be reviewed and the

proposed convulsive therapy or psychosurgery agreed to by one other

physician not directly involved with the patient. Such agreement shall

be documented in the patient’s treatment record and shall be signed by

both physicians.

Assuming that administering ECT to minors is an accepted psychiatric practice,

there appears to be no legal barrier to a minor receiving ECT.

Does the court have authority to appoint a guardian advocate for a child when

the child’s guardian is refusing to consent for treatment?

A child’s natural guardian has the power to consent or refuse consent to treatment

on behalf of the minor, just as does a guardian (plenary or “of person”) appointed

by the court for an adult. In the case of an adult, a request can be filed for the court

to investigate any complaints against a court-appointed guardian’s decision-

making. In the case of a minor whose parent’s refusal to consent to medically

necessary treatments might rise to the level of “medical neglect,” a report to the

DCF Abuse Registry should be made. There have been occasions when the natural

parents/guardians of a minor have been unavailable and the child’s caretaker isn’t

authorized to consent to psychotherapeutic medications (chapter 743, Florida

Statutes) in which a guardian advocate was appointed to make such treatment

decisions. This is not the case where the parents refuse consent.

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

138

C. Voluntary Admissions

Under what conditions can a minor be on voluntary status?

The Baker Act permits minors to be on voluntary status if they are agreeable to the

admission, but only when their parent or legal guardian has applied for their

admission and a judicial hearing has been conducted prior to the admission, to

confirm the voluntariness of the consent. Unless parental rights have been

terminated, natural or adoptive parents continue to have the right to make such

decisions on behalf of their children, even if they cannot or will not do so. In the

absence of a parent or legal guardian’s consent, the court must make this decision.

Any reference to “voluntariness hearings” done at facilities and by facility staff

was repealed from the Florida Administrative Code in 1997 because DCF was

found not to have the specific statutory authority to define a hearing as an

“administrative hearing” when all other references to hearings in the Baker Act are

judicial in nature. Therefore, it is DCF’s opinion that a judicial hearing of some

type is required prior to the admission of the minor on voluntary status. There are

no rules or model forms for this purpose.

A child has a right to be held on a voluntary basis if he/she meets the criteria and

the correct procedures are followed — especially if the child doesn’t meet the

criteria for involuntary status. However, due to the onerous nature of voluntary

admission of minors, especially those in DCF custody, many providers have

chosen to admit all such minors on involuntary status. Assuming the minor meets

the criteria for involuntary examination, it would be entirely proper to admit

him/her on involuntary status. While minors may state a willingness to be in a

psychiatric unit, they do not have the legal capacity to give independent consent to

the admission or to treatment.

Section 394.4625(1)(a), Florida Statutes, states that “[a] person age 17 or

under may be admitted only after a hearing to verify voluntariness of the

consent.” Please tell me what a hearing is comprised of and who must be

present, and what paper must confirm that this is valid and complete. If we

have a minor child and a parent or guardian in agreement with admission,

can we have the Application for Voluntary Admission – Minors (CF-MH

3097) signed? Do we need the psychiatrist to determine the patient’s

competence, or is it sufficient for a LMHC or LCSW to make this

determination? It seems that initiating a BA-52 by a professional does not

make sense when the person is willing.

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

139

The model form 3097, “Application for Voluntary Admission – Minors,” is an

approved document in the series of Baker Act forms. It allows for the

documentation of the parent/guardian’s consent and the minor’s assent. It is silent

as to the requirement for a hearing. However, the statutory language remains in

effect. DCF has proposed changes to this section of the Baker Act to allow for

certain licensed professionals, such as a clinical social worker or mental health

counselor, to conduct an evaluation of voluntariness. However, this bill would

have to be passed by the Legislature to take effect.

We admitted a 15-year-old girl to our CSU whose parents’ parental rights

were terminated, and she had been in the foster care system for many years.

The 72-hour period of the initial Baker Act expired yesterday, and the nurse

on duty obtained a consent for voluntary admission by telephone from the

child’s DCF or community-based care worker. The child signed the portion of

the voluntary admission form that asks if the child is willing to stay. The

question arose as to whether the DCF or community-based care worker has

the authority to sign the child in voluntarily, or whether a petition for

involuntary placement should have been initiated prior to the expiration of

the initial Baker Act. In the past we have petitioned the court for the

continuation of treatment, filing with the court a petition for involuntary

placement. We do know that this does not apply to treatment (medication)

and are fully aware of the need for a court order to administer medication.

The law requires that the application for voluntary admission be filed by the

minor’s guardian. If the court had formally appointed DCF or the community-

based care agency as the child’s legal guardian, consent by the authorized person

from that agency would be permissible. However, this isn’t the usual practice.

Absent a formal guardian appointed by the court, the court itself would act as the

child’s guardian and would be responsible for signing the voluntary application.

The only other alternative would have been to file a petition for involuntary

placement.

D. Involuntary Examinations

In order to initiate involuntary examination for a child or adolescent, do you

need the parent’s permission? This question came up after an agency director

reported having heard that parents must approve before a child or adolescent

can be Baker Acted.

No. There is no basis for a parent or guardian of a child to provide consent or

refuse consent to his/her child’s involuntary examination. This decision is entirely

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

140

up to a judge, law enforcement officer, or authorized mental health professional

who has reason to believe the involuntary examination criteria are met. In section

394.463, Florida Statutes, governing involuntary examination, no difference

between adults and minors is noted, and parental consent is not mentioned.

When a minor is brought to a receiving facility pursuant to an ex parte order

for involuntary examination, does consent for the admission and treatment by

the guardian specified under section 394.459(3)(a)1., Florida Statutes, still

apply? If so, is this for both admission and treatment or just treatment?

The minor must be accepted by the facility and must be examined (section

394.463) by a physician, psychologist, or psychiatric nurse, as each is defined in

the Baker Act, to determine if he/she meets criteria for involuntary placement

(section 394.467), regardless of whether consent is obtained from the guardian.

However, treatment is a different issue, since the court order is generally silent as

to this issue. The minor can’t be treated unless, after full disclosure, the child’s

legal guardian (parent or court-appointed guardian) provides consent. If a legal

guardian is not available or refuses such consent, a court order for treatment would

be required, short of an emergency treatment order resulting from documentation

of imminent danger.

A parent of a student who was recently Baker Acted from school by the school

resource officer stated that since there is Native American ancestry in the

child’s background, a federal order is required before he can be Baker Acted.

Since the need to hospitalize him again in the future may occur, we are hoping

that you can steer us in the right direction on this.

Contrary to the parent’s statement, there isn’t any exception in the Baker Act for

persons with Native American ancestry. People of all nationalities undergo

involuntary examination under the Baker Act. The Vienna Convention on Consular

Relations and bilateral treaties the United States has negotiated with other

countries require consulate notification and access to foreign nationals held against

their will in hospitals. Only a state circuit court (in addition to certified law

enforcement officers and authorized mental health professionals) has authority to

initiate an ex parte order under the Baker Act — federal courts have no such

authority. In fact, federal law enforcement officers can’t initiate involuntary

examinations, per the Florida Attorney General (Op. Att’y Gen. Fla. 99-68 (1999))

— only law enforcement officers who are certified under state law may do so.

Native American reservations are subject to federal law, just like military bases

and VA hospital properties. However, the Baker Act is applicable to persons of all

ages who are in Florida as residents, citizens, visitors, or otherwise, on legal or

Admission and Treatment for Minors

Chapter Three (Baker Act, Marchman Act/Substance Abuse, and Medical-Related Statutes)

_____________________________________________________________________________________

Baker Act Benchguide November 2016

141

illegal bases.

Our risk managers (attorneys) indicated there is a gap in the Baker Act law.

They instructed us that a child can be involuntarily examined, but cannot be

involuntarily placed. Usually families sign their children in voluntarily. If it is

true that you cannot treat a child on an involuntary status, what are our

options?

The information you’ve been given is incorrect. Minors are frequently

involuntarily placed by courts throughout the state, as the criteria for involuntary

examination and involuntary inpatient placement refer to “a person” regardless of

age. Minors cannot be ordered to involuntary outpatient services — this may have

caused some confusion. You should also consider the issues of admission/

placement separately from the issue of treatment.

 No minor can provide consent for his/her own admission or treatment.

However, if the child refused to assent (agree) to the admission, it is

necessary to initiate the involuntary process — involuntary examination if

necessary to conduct the examination and involuntary inpatient placement if

the examination reflects that the minor meets the criteria under section

394.467, Florida Statutes.

 With regard to voluntary admission of a minor, a parent or guardian must

actually sign the application, but a judicial hearing must be conducted prior

to the child’s admission.

With regard to a parent’s demand for release of the child, you may need to

consider a referral to the child abuse hotline if you believe the parent’s refusal of

care represents abuse or neglect, as defined in chapter 39, Florida Statutes.

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

142

Chapter Four: Involuntary Examination

I. In General

See § 394.463, Fla. Stat.; Fla. Admin. Code R. 65E-5.280.

The Baker Act encourages the voluntary admission of persons for psychiatric care,

but only when they are able to understand the decision and its consequences and

are able to fully exercise their rights for themselves. When this is not possible due

to the severity of the person’s condition, the law requires that the person be

extended the due process rights ensured under the Baker Act’s involuntary

provisions. The definition of “mental illness” is not a part of this section of the

statute. However, because it is relevant to the content of this part of the statute, it is

included here:

“Mental illness” means 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 the person’s ability to meet the ordinary

demands of living. For the purposes of this part, the term does not

include a developmental disability as defined in chapter 393,

intoxication, or conditions manifested only by antisocial behavior or

substance abuse.

§ 394.455(28), Fla. Stat.

II. Criteria

Section 394.463(1), Florida Statutes (emphasis added), provides:

A person may be taken to a receiving facility for involuntary

examination if there is reason to believe that he or she has a mental

illness [as defined in the Baker Act] and because of his or her mental

illness:

(a)1. The person has refused voluntary examination after

conscientious explanation and disclosure of the purpose of the

examination; or

2. The person is unable to determine for himself or herself

whether examination is necessary; and

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

143

(b)1. 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

2. There is a 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.

III. Initiation

Under section 394.463(2)(a), Florida Statutes, an involuntary examination

may be initiated by the following three means:

 A court may enter an ex parte order (form CF‑MH 3001 or other order

developed by the court) stating that the person appears to meet the criteria

for involuntary examination, specifying the findings on which that

conclusion is based. The order must be based on sworn testimony, written or

oral (form CF‑MH 3002 or other form developed by the court). No fee can

be charged for the filing of a petition for an order for involuntary

examination.

A law enforcement officer or other designated agent of the court must take

the person into custody and deliver the person to an appropriate, or the

nearest, facility within the designating receiving system under section

394.462, Florida Statutes, for an involuntary examination. “A law

enforcement officer acting in accordance with an ex parte order . . . may

serve and execute such order on any day of the week, at any time of the day

or night” and “may use such reasonable physical force as is necessary to

gain entry to the premises, and any dwellings, buildings, or other structures

located on the premises, and to take custody of the person who is the subject

of the ex parte order.” § 394.463(2)(c), (2)(d). The officer must execute a

written report titled “Transportation to Receiving Facility” (form CF‑MH

3100), detailing the circumstances under which the person was taken into

custody, and the report must be made a part of the person’s clinical record.

The ex parte order is valid only until executed or, if not executed, for the

period specified in the order. If no time limit is specified in the order, it is

valid for seven days after the date it was signed. Once a person is picked up

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

144

on the order and taken to a receiving facility for involuntary examination

and released, the same order cannot be used again during the time period.

The order must be made a part of the person’s clinical record.

 A law enforcement officer shall take a person who appears to meet the

criteria for involuntary examination into custody and deliver the person, or

have the person delivered, to an appropriate or the nearest receiving facility

for examination. (CF‑MH 3052a). The officer must execute a written report

(CF‑MH 3100) detailing the circumstances under which the person was

taken into custody. The report must be made a part of the person’s clinical

record.

 A physician, clinical psychologist, psychiatric nurse, mental health

counselor, marriage and family therapist, or clinical social worker (each

as defined in the Baker Act) may execute a certificate (CF‑MH 3052b)

stating that he or she has examined a person within the preceding 48 hours

and finds that the person appears to meet the criteria for involuntary

examination, The certificate must state the professional’s observations on

which that conclusion is based. A law enforcement officer must take the

person named in the certificate into custody and deliver the person to an

appropriate or the nearest receiving facility for involuntary examination, and

must execute a written report (CF‑MH 3100) detailing the circumstances

under which the person was taken into custody. The report and certificate are

to be made a part of the person’s clinical record.

See also Fla. Admin. Code R. 65E-5.280(1)–(3).

IV. Definitions of Mental Health Professionals

Under section 394.455, Florida Statutes, mental health professionals are defined as

follows:

(5) “Clinical Psychologist” means a psychologist as defined in

s. 490.003(7) with 3 years of postdoctoral experience in the practice

of clinical psychology, inclusive of the experience required for

licensure, or a psychologist employed by a facility operated by the

United States Department of Veterans Affairs that qualifies as a

receiving or treatment facility under this part.

* * *

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

145

(7) “Clinical social worker” means a person licensed as a clinical

social worker under s. 491.005 or s.491.006.

* * *

(25) “Marriage and family therapist” means a person licensed as a

marriage and family therapist under s. 491.005 or s.491.006.”

(26) “Mental health counselor” means a person licensed as a mental

health counselor under s. 491.005 or s.491.006.”

* * *

(32) “Physician” means a medical practitioner licensed under

chapter 458 or chapter 459 who has experience in the diagnosis and

treatment of mental illness or a physician employed by a facility

operated by the United States Department of Veterans Affairs or the

United States Department of Defense.

(33) “Physician assistant” means a person licensed under chapter

458 or chapter 459 who has experience in the diagnosis and treatment

of mental disorders.

* * *

(35) “Psychiatric nurse” means an advanced registered nurse

certified under s. 464.012 who has a master’s or doctoral degree in

psychiatric nursing, holds a national advanced practice certification as

a psychiatric mental health advanced practice nurse, and has 2 years

of post-master’s clinical experience under the supervision of a

physician.”

(36) “Psychiatrist” means a medical practitioner licensed under

chapter 458 or chapter 459 for at least 3 years, inclusive of psychiatric

residency.

* * *

(38) “Qualified professional” means a physician or a physician

assistant licensed under chapter 458 or chapter 459; a psychiatrist

licensed under chapter 458 or chapter 459; a psychologist as defined

in s. 490.003(7); or a psychiatric nurse as defined in s. 394.455.

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

146

The Florida Attorney General issued an opinion in May 2008 that physician

assistants may, under certain conditions, initiate an involuntary examination. Op.

Att’y Gen. Fla. 08-31 (2008). The opinion did not extend any other authority

granted to physicians.

V. Initial Mandatory Involuntary Examination

A person must have an initial mandatory involuntary examination “by a physician

or a clinical psychologist, or by a psychiatric nurse performing within the

framework of an established protocol with a psychiatrist at a facility without

unnecessary delay to determine if the criteria for involuntary services are met.

Emergency treatment may be provided upon the order of a physician if the

physician determines that such treatment is necessary for the safety of the person

or others.” § 394.463(2)(f), Fla. Stat.

This initial mandatory involuntary examination must include:

 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 timely face-to-face examination to determine whether the person meets the

criteria for release.

Fla. Admin. Code R. 65E-5.2801(1).

A physical examination, which must be conducted within 24 hours of the person’s

arrival at the facility (section 394.459(2)(c)), is intended to rule out mock

psychiatric symptoms caused by non‑psychiatric medical illness, injury, metabolic

disorders, and drug toxicity.

The person cannot be released by the receiving facility without the documented

approval of a psychiatrist, a clinical psychologist, or the physician in the hospital’s

emergency department. The release can also be approved by a psychiatric nurse (as

defined in the Baker Act) performing under a protocol with a psychiatrist and as

otherwise provided in section 394.463(2)(f), Florida Statutes.

VI. Release

Section 394.463(2)(g), Florida Statutes, provides:

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

147

Within the 72-hour examination period or, if the 72 hours ends on a

weekend or holiday, no later than the next working day thereafter, one

of the following actions must be taken, based on the individual needs

of the person:

1. The patient shall be released, unless he or she is charged with a

crime, in which case the patient must be returned to the custody of a

law enforcement officer;

2. The patient shall be released . . . for voluntary outpatient

treatment;

3. The patient, unless he or she is charged with a crime, shall be

asked to give express and informed consent to placement as a

voluntary patient, and, if such consent is given, the patient shall be

admitted as a voluntarily patient [such transfer from involuntary to

voluntary status must be conditioned on the certification by a

physician that the person has the capacity to make well-reasoned,

willful, and knowing decisions about medical, mental health, or

substance abuse treatment]; or

4. A petition for involuntary placement shall be filed in the circuit

court if inpatient treatment is deemed necessary or with the criminal

county court, as defined in s. 394.4655(1), as applicable. If inpatient

treatment is deemed necessary, the least restrictive treatment

consistent with the optimum improvement of the patient’s condition

shall be made available. When a petition is to be filed for involuntary

outpatient placement, it shall be filed by one of the petitioners

specified in s. 394.4655(4)(a). A petition for involuntary inpatient

placement shall be filed by the facility administrator.

If the person is converted to voluntary status in lieu of involuntary placement being

sought, it may be necessary under some circumstances to file documents with the

clerk of court to prohibit firearm purchase. See Chapter Eight of this benchguide.

VII. Notice of Discharge or Release

Notice of discharge or transfer of a person must be given as provided in section

394.4599, Florida Statutes. § 394.469(2), Fla. Stat.

Notice of release (form CF-MH 3038) must be given to the person’s guardian or

representative, any person who executed a certificate admitting the person to the

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

148

receiving facility, and any court that ordered the person’s evaluation. § 394.463(3),

Fla. Stat.

VIII. Involuntary Examination Flowchart

(DCF flowchart; 2016 legislative changes are not incorporated.)

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

149

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

150

IX. Frequently Asked Questions

A. Criteria and Eligibility

I’m a detective with the sheriff’s office. I’m getting many calls regarding the

Baker Act and people with autism who are being violent. The callers want to

know if they can Baker Act if someone has autism. I explained you cannot

Baker Act based on the autism label alone, but you can Baker Act if the

person is a threat to himself/herself or someone else. The question then

becomes: if the violence is a behavioral aspect of the developmental disability,

can you still Baker Act? My position is that a mental health facility would be a

better choice than jail. I then suggest they explore all other alternatives that

may be available. Can you please give me some guidance?

Regarding your question about initiating involuntary examination under the Baker

Act, there must be a diagnosis of mental illness consistent with the definition in the

law, refusal or inability to determine examination is needed, and passive or active

danger. If any one of these isn’t present, an initiation wouldn’t be appropriate. Just

being a threat to self or others (active danger) wouldn’t be sufficient unless it

resulted from a mental illness. Autism is a diagnosis under chapter 393, Florida

Statutes, governing developmental disabilities that is excluded from the statutory

definition of mental illness:

394.455. Definitions (emphasis added)

(28) “Mental illness” means 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. For the purposes of this

part, the term does not include developmental disabilities as

defined in chapter 393, intoxication, or conditions manifested only

by antisocial behavior or substance abuse.

393.063. Definitions

For the purposes of this chapter, the term:

(3) “Autism” means a pervasive, neurologically based

developmental disability of extended duration which causes severe

learning, communication, and behavior disorders with age of onset

during infancy or childhood. Individuals with autism exhibit

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

151

impairment in reciprocal social interaction, impairment in verbal and

nonverbal communication and imaginative ability, and a markedly

restricted repertoire of activities and interests.

While a person cannot be Baker Acted for dangerous behavior resulting from

autism, a judge or law enforcement officer may have reason to believe the person

has a mental illness in addition to autism. In such a situation, the initiation of

involuntary examination may be appropriate. Judges and law enforcement officers

aren’t expected to be diagnosticians; they can be wrong just like a mental health

professional is sometimes wrong. They also need to be aware that the person is

only going to be examined and may be released immediately or within 72 hours

back to where they came from. If treated, the only treatment available is for

psychiatric conditions and not for a developmental disability. Initiating an

involuntary examination may alleviate an immediate danger situation but is

unlikely to have any lasting benefit. You are correct that criminalization of a

developmental disorder or a mental health diagnosis should be avoided whenever

possible.

One of my deputies was told by the local CSU that it doesn’t accept Alzheimer

patients and officers can’t Baker Act an Alzheimer’s patient. The deputy then

took the patient to the county hospital. The deputy told the social worker that

the man had beaten his wife earlier in the day and then stood out in the street

directing traffic. There was no medical issue with this man. Was the CSU

correct?

Section 394.462(1)(k), Florida Statutes, states: “The appropriate facility within the

designated receiving system pursuant to a transportation plan or an exception under

subsection (4), or the nearest receiving facility if neither apply, must accept

persons brought by law enforcement officers, or an emergency medical transport

service or a private transport company authorized by the county, for involuntary

examination pursuant to s. 394.463.” This means that if the person is on Baker Act

involuntary status and transport is by law enforcement or specified transport

services, there is no exception to the receiving facility being required to “accept”

the person from the officer. If the person is under the involuntary provisions of the

Marchman Act, the facility must provide such persons “a basic screening or triage

sufficient to refer the person to the appropriate services.” § 394.462(l). If the

facility can’t manage the person’s medical condition, the person has public or

private insurance that will pay at another facility, or for any other reason the

facility can’t accept the person, it is up to the receiving facility to arrange the

person’s transfer to a more appropriate facility. It may be true that the facility

won’t “admit” a person with Alzheimer’s or other medical conditions, but it must

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

152

“accept” the person and arrange for medical transport rather than having the officer

put such a person back into the cruiser.

As noted above, section 394.455(28), Florida Statutes, defines the term “mental

illness.” This definition excludes developmental disabilities, substance abuse

impairment, and antisocial behavior. It has no other exceptions for Alzheimer’s or

other conditions. If a person has Alzheimer’s and otherwise meets the criteria for

involuntary examination, the person can indeed be Baker Acted.

Is it possible to involuntarily hospitalize someone with severe anorexia, and if

so, what are the criteria used and what type of professional would evaluate

and sign the Baker Act forms?

A person must have a “mental illness” as defined in the Baker Act and meet the

criteria for involuntary examination, including that:

there is reason to believe that the person has a mental illness and

because of his or her mental illness:

(a)1. The person has refused voluntary examination after

conscientious explanation and disclosure of the purpose of the

examination; or

2. The person is unable to determine for himself or herself

whether examination is necessary; and

(b)1. 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

2. 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.

§ 394.463(1), Fla. Stat.

The involuntary examination can be initiated by a circuit court judge, a law

enforcement officer, or an authorized mental health professional.

Regarding your first question about anorexia as a diagnosis, professionals usually

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

153

consider a thought or mood disorder diagnosis to be required for the Baker Act. If

you as an authorized professional, based on your own evaluation of the person,

believe anorexia to be such a thought or mood disorder or that the person has a

thought or mood disorder in addition to the anorexia, that would suffice.

One of the criteria for commitment for involuntary examination is “The

person is unable to determine for himself or herself whether examination is

necessary.” Is there any guidance, case law, or criteria that are used to make

this determination?

Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990), a U.S.

Supreme Court decision, was based on the definitions and other provisions of

chapter 394, part I, Florida Statutes, which include:

394.455. Definitions (emphasis added)

(15) “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.

* * *

(21) “Incompetent to consent to treatment” means a state in which

a person’s judgment is so affected by a mental illness that he or she

lacks the capacity to make a well-reasoned, willful, and knowing

decision concerning his or her medical, mental health, or substance

abuse treatment.

394.459. Rights of patients

(3) Right to express and informed patient consent.--

(a)1. Each patient entering treatment shall be asked to give express

and informed consent for admission or treatment. . . .

394.4625 Voluntary admissions (emphasis added)

(1) Authority to receive patients.--

(a) A facility may receive for observation, diagnosis, or treatment

any person 18 years of age or older making application by express

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

154

and informed consent for admission or any person age 17 or under

for whom such application is made by his or her guardian. If found to

show evidence of mental illness, to be competent to provide express

and informed consent, and to be suitable for treatment, such person 18

years of age or older may be admitted to the facility. A person age 17

or under may be admitted only after a hearing to verify the

voluntariness of the consent.

* * *

(d) A facility may not admit as a voluntary patient a person

who has been adjudicated incapacitated, unless the condition of

incapacity has been judicially removed. If a facility admits as a

voluntary patient a person who is later determined to have been

adjudicated incapacitated, and the condition of incapacity had not

been removed by the time of the admission, the facility must either

discharge the patient or transfer the patient to involuntary status.

(e) The health care surrogate or proxy of a voluntary patient

may not consent to the provision of mental health treatment for

the patient. A voluntary patient who is unwilling or unable to provide

express and informed consent to mental health treatment must either

be discharged or transferred to involuntary status.

(f) Within 24 hours after admission of a voluntary patient, the

admitting physician shall document in the patient’s clinical record

that the patient is able to give express and informed consent for

admission. If the patient is not able to give express and informed

consent for admission, the facility shall either discharge the

patient or transfer the patient to involuntary status pursuant to

subsection (5).

The Baker Act has always required that an adult be competent to provide express

and informed consent in order to be admitted or retained on voluntary status. An

involuntary examination is based on, among other criteria, the person either

refusing the examination or being unable to determine for himself/herself whether

examination is necessary. Refusal is fairly clear. However, a finding of the

inability to determine whether examination is necessary can be based on any

number of situations; for example:

 The person is like Burch in the case cited above, who was willing to go

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

155

anywhere, do anything, or sign any document because he thought he was in

Heaven. The U.S. Supreme Court found this to be de facto evidence of being

incompetent to provide express and informed consent.

 The person repeatedly changes his/her mind.

 The person is clearly manipulating a law enforcement officer to avoid

involuntary status.

 The person may have a severe impulse control problem and is articulating a

desire for help, but may not be able/willing to act on the desire.

Generally “unable to determine” is someone who fits one or more of the above

types of situations or is determined to be unable to make consistent “a well-

reasoned, willful, and knowing decision concerning his or her medical, mental

health, or substance abuse treatment.” § 394.455(21), Fla. Stat.

Can an individual who is a non-resident of Florida be legally detained and

court committed under the Florida Baker Act?

Yes. Any person who is present in the state of Florida is subject to the Baker Act.

Such persons, if they meet the criteria for involuntary examination, can be taken

into custody and legally examined under the law. If they are found to meet the

criteria for involuntary placement, a petition can be filed to further detain them for

treatment. It may be advisable to arrange a return of the person to his/her own state

as soon as possible to ensure appropriate discharge and aftercare planning. Finally,

if the person is a foreign national with citizenship in another country (even if with

dual citizenship in the U.S.), there are obligations for consular notification and

access.

How is “self-neglect” deﬁned as a criteria for involuntary examination?

The Baker Act doesn’t actually deﬁne self-neglect, but it does provide for the

situation when the person is likely to suﬀer a real and present threat of substantial

harm to his or her well-being that isn’t avoidable by intervention from family,

friends, or other services. The self-neglect must be a result of mental illness and

could take the form of refusing necessary prescription medications, refusing to eat

or drink, inability to sleep, placing oneself in imminently dangerous situations, or

other high risk behaviors. It would not include refusal of medical intervention by a

person with the capacity to make such decisions.

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

156

B. Initiation in General

Does an authorized person have a duty to initiate an involuntary

examination?

Judges and mental health professionals do not have a statutory duty to initiate the

examination when they have reason to believe the criteria have been met.

However, they may have a responsibility under their code of ethics or under case

law. On the other hand, a law enforcement oﬃcer has no discretion as to initiating

an involuntary examination if he/she has reason to believe the criteria are met.

I’d like to know more about “reason to believe” the criteria are met — how

much discretion an authorized person has. If a court “may” do something

(discretionary) like initiate involuntary examination, what criteria is the court

to use in determining whether to actually do it? Is it just a matter of general

prudence? If you have the right but not the duty to do something, can you just

base the decision on whim, or are there some implied criteria?

That is correct — a judge and a mental health professional may initiate if they have

reason to believe the criteria are met, but have no duty to do so. A law enforcement

officer has the duty to do so if he/she has reason to believe the criteria are met. If a

law enforcement officer doesn’t believe the criteria are met and declines to initiate,

he/she may wish to document at the time, on an incident report, the reason for not

initiating.

Law enforcement officers are required to initiate if they have reason to believe;

judges are not required to initiate even if they have reason to believe. So a judge

could find all the criteria to be met and still decline to initiate examination. The

discretion offered by the “may” language comes down to whether the person with

the legal authority to make the decision has reason to believe each of the criteria is

met.

Some judges are more likely than others to sign orders for emergency action

(domestic violence, Baker Act, Marchman Act, etc.). Other judges won’t sign such

an order if it will deprive a person of liberty unless it’s first proven that the criteria

are met. The standard is simply having “reason to believe.” In Blair v. Razilou,

2010 WL 571980 (M.D. Fla. 2010), a federal lawsuit against the city of Naples

police department, the court held that under the facts known to the police officer at

the time of the Marchman Act initiation, a reasonable officer in the same

circumstances could have believed the plaintiff met the Marchman Act criteria.

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

157

The criteria are clearly spelled out in the law. The person with the authority to

initiate must rely on those criteria — nothing more or less. However, everyone has

filters through which objective facts are applied against the criteria in determining

whether he or she has reason to believe the criteria are met. Some examples are:

 A belief that both the clinical and functional aspects of the definition of

mental illness are met.

 That the person has refused or is unable to determine the examination is

needed. Refusal is objective, but the inability to determine may be quite

subjective.

 That the person’s self-neglect is “real, present and substantial.”

 That the bodily harm is serious enough, and whether the actions on which

that conclusion is based are recent enough or the harm will occur in the near

enough future.

These aren’t “whims” but individual belief systems. While continued training can

add much more consistency for those who are authorized to initiate involuntary

examinations, the subjective differences in “reasons to believe” will and should

remain.

If persons with the authority to initiate an involuntary examination deviate far from

their professional standards, they can face discipline from groups such as licensing

boards, the Judicial Qualifications Commission, or Internal Affairs, depending on

whether the initiator is a mental health professional, judge, or law enforcement

officer.

Can a patient who requested voluntary status after coming in under

involuntary status be transferred to a public facility under a newly created

professional’s certificate? My thought is that the patient’s status should be

changed to involuntary and a petition filed. Is this correct?

Yes. Too frequently people are transferred from involuntary to voluntary status

who can’t consistently make well-reasoned, willful, and knowing decisions about

their medical, mental health, or substance abuse treatment — the very definition of

competence to consent. Then when the person requests discharge or refuses

treatment, the law requires that either the person be released within 24 hours or a

petition for involuntary inpatient placement be filed within two court working days

of the person’s request/refusal.

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

158

A certificate of a professional is only used to have the person taken into custody

and delivered to a designated receiving facility. Once at a receiving facility, the

proper procedure is to release the person, convert to voluntary, or file the

placement petition within 72 hours. However, when a petition for involuntary

inpatient placement is filed on behalf of a person on voluntary status who requests

discharge or refuses treatment, it must be filed within two working days of the

request or refusal. Any transfer to another facility and re-evaluation at that facility

would have to fit within the original 72-hour period during which a person’s liberty

can be denied for the purpose of involuntary examination.

How does a family member get his or her adult child Baker Acted when the

parties reside in different states? Can the person obtain an ex parte order in

Florida that would be enforced in Delaware? Could the family member have

the receiving facility be a VA hospital in Delaware if the subject qualifies?

Each state has enacted its own mental health law, and each is different. The family

would have to contact the Delaware authorities to determine the basis for an

involuntary examination in that state. Any initiation of such action would probably

have to take place in the state where the person needing the examination actually

lives so his/her due process rights can be protected. It is unknown whether

Delaware would permit the family to communicate with the court or others having

authority to initiate such intervention by sworn testimony or whether their presence

would be required — it depends on the requirements of that state’s mental health

law. Regarding treatment at a VA hospital, this would be permitted in Florida, but

whether that would apply in Delaware is unknown.

C. Initiation by Courts

I am trying to find out the procedure for a family member to petition a judge

for an ex parte order to have someone involuntarily picked up for psychiatric

assessment. We have had times when we advise the family to get one but never

tell them how to do it. Does it require more than one person to get it? Can a

non-relative request an ex parte order for a friend or neighbor if no family is

around?

The Baker Act provides the following for an ex parte order:

A circuit or county court may enter an ex parte order stating that a

person appears to meet the criteria for involuntary examination and

specifying the findings on which that conclusion is based. The ex

parte order for involuntary examination must be based on written or

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

159

oral sworn testimony that includes specific facts that support the

findings. If other less restrictive means are not available, such as

voluntary appearance for outpatient evaluation, a law enforcement

officer, or other designated agent of the court, shall take the person

into custody and deliver him or her to an appropriate, or the nearest,

facility within the designated receiving system pursuant to s. 394.462

for involuntary examination. The order of the court shall be made a

part of the patient’s clinical record. A fee may not be charged for the

filing of an order under this subsection. . . . The order shall be valid

only until the person is delivered to the facility or for the period

specified in the order itself, whichever comes first. If no time limit is

specified in the order, the order shall be valid for 7 days after the date

that the order was signed.

§ 394.463(2)(a)1., Fla. Stat.

Any person who has first-hand knowledge of the individual’s mental health status

can file a petition with the probate office of the clerk of court. The law just states

that it must be based on sworn testimony, but doesn’t indicate how many people

must file. It generally requires only one petition if the judge believes the criteria to

be met. If the judge has any reservations, he/she might require a second petition.

The judge is going to want to be assured that the petitioner’s reason for filing isn’t

retaliatory in any way.

The four-page model petition form (CF-MH 3002) can be found on the DCF

website, but the court in your circuit may have modified the form. There is no

reason the petitioner couldn’t have a copy of the form in advance to know what

type of information may be required. The staff in the clerk’s office is not able to

provide the petitioner more than ministerial assistance. See § 28.215, Fla. Stat.

(“The clerk of the circuit court shall provide ministerial assistance to pro se

litigants. Assistance shall not include the provision of legal advice”); Op. Att’y

Gen. Fla. 94-80 (1994). Once the petitioner completes the form and swears to the

accuracy of the information provided, the clerk will take the form to the judge and

the judge will decide whether to sign an ex parte order for examination and a pick-

up order for the sheriff to execute. The whole process shouldn’t take more than

several hours, assuming the person can be easily found.

A judge completed a law enforcement BA form and marked out everywhere it

said law enforcement officer and wrote in “Judge.” If a judge wanted to

Baker Act someone, what would be the appropriate form to use? Now that the

law enforcement officer is at our door with the Baker Act form completed by

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

160

the judge, what would be the appropriate steps for the receiving facility to

take?

A judge doesn’t qualify to execute a law enforcement officer’s report initiating an

involuntary examination under the Baker Act. Only a certified law enforcement

officer is authorized to do so — this is defined below:

394.455. Definitions

As used in this part, unless the context clearly requires otherwise, the

term:

(24) “Law enforcement officer” has the same meaning as provided

in s. 943.10.

943.10. Definitions; ss. 943.085-943.255

The following words and phrases as used in ss. 943.085-943.255 are

defined as follows:

(1) “Law enforcement officer” means any person who is elected,

appointed, or employed full time by any municipality or the state or

any political subdivision thereof; who is vested with authority to bear

arms and make arrests; and whose primary responsibility is the

prevention and detection of crime or the enforcement of the penal,

criminal, traffic, or highway laws of the state. This definition includes

all certified supervisory and command personnel whose duties

include, in whole or in part, the supervision, training, guidance, and

management responsibilities of full-time law enforcement officers,

part-time law enforcement officers, or auxiliary law enforcement

officers but does not include support personnel employed by the

employing agency.

A judge is authorized to enter an order initiating an involuntary examination only

under the following circumstances:

394.463. Involuntary examination

(2) Involuntary examination.--

(a) An involuntary examination may be initiated by any one of the

following means:

Chapter Four Involuntary Examination

_____________________________________________________________________________________

Baker Act Benchguide November 2016

161

1. A circuit or county court may enter an ex parte order stating

that a person appears to meet the criteria for involuntary examination

and specifying the findings on which that conclusion is based. The ex