Florida's Baker Act Laws: How Florida's Excessive Use of Baker Acts Can Be Harmful to Children

University of Florida Levin College of Law University of Florida Levin College of Law

UF Law Scholarship Repository UF Law Scholarship Repository

Gator TeamChild Juvenile Law Clinic

4-2023

Florida's Baker Act Laws: How Florida's Excessive Use of Baker Florida's Baker Act Laws: How Florida's Excessive Use of Baker

Acts Can Be Harmful to Children Acts Can Be Harmful to Children

Kaitlin Gibbs

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Part of the Family Law Commons, and the Juvenile Law Commons

Recommended Citation Recommended Citation

Kaitlin Gibbs, Florida's Baker Act Laws: How Florida's Excessive Use of Baker Acts Can Be Harmful to

Children (Gator TeamChild Juvenile Law Clinic, Working Paper No. 3, 2023),

https://scholarship.law.u9.edu/gator-team-child/3.

This White Paper is brought to you for free and open access by UF Law Scholarship Repository. It has been

accepted for inclusion in Gator TeamChild Juvenile Law Clinic by an authorized administrator of UF Law

Scholarship Repository. For more information, please contact rachel@law.u9.edu.

Florida’s Baker Act Laws:

How Florida’s Excessive Use of Baker Acts Can be Harmful to

Children

Gator TeamChild Juvenile Law Clinic

Virgil D. Hawkins Civil Clinics

University of Florida Levin College of Law

Supervised by: Professor Stacey B, Steinberg, Master Legal Skills Professor

Supervising Attorney, Gator TeamChild Juvenile Law Clinic

Director, Center on Children and Families

Author: Kaitlin Gibbs

April 2023

The goal of this White Paper is to provide an overview of Florida’s Baker Act Laws. Additionally,

this White Paper will show how the excessive use of Baker Acts in Florida can have harmful

effects on children, especially those in the dependency system, and potential solutions to reform

the Baker Act process.

Students enrolled in the Gator TeamChild Juvenile Law Clinic provide representation to

children in dependency, education, and delinquency related matters as well as work on systemic

policy issues affecting children and families.

TABLE OF CONTENTS

I. INTRODUCTION………………………………………………………………………..3

II. HISTORY OF BAKER ACTS IN FLORIDA………………………………………….……5

A. WHAT DOES FLORIDA’S CURRENT LAW SAY?......................................................6

B. HOW ARE BAKER ACTS USED ON CHILDREN?....................................................8

C. THE SEVENTY-TWO HOUR HOLD IN A MENTAL HEALTH FACILITY…………….8

III. TYPES OF HARM THAT BAKER ACTS CAN HAVE ON CHILDREN………………..…......11

IV. WAYS TO REFORM FLORIDA’S BAKER ACT LAWS…………………………….....…13

V. THE UNIQUE CHALLENGES OF CHILDREN IN FOSTER CARE………………….…….17

VI. CONCLUSION………………………………………………………………………...18

I. INTRODUCTION

Florida is an outlier for Baker Acts because the state involuntarily evaluates and commits

children at a rate much higher than any other state in the country.

In Florida, more than 37,000

children are Baker Acted each year.

Not all states collect data on Baker Acts, but out of the

twenty-five states that do collect data, Florida’s rate is at least twice the rate of eighty percent of

the states that track this data.

Florida involuntarily commits more than 800 people per 100,000

people per year and is the only state to have rates that high.

Colorado and Massachusetts are the

only two other states that have rates exceeding 600 per 100,000 and only three states exceed 400.

Young children can be handcuffed by law enforcement officers, driven in the back of a police car,

and traumatized as they stay for days at a time in psychiatric facilities for an involuntary psychiatric

exam, where they may have limited ability to call and talk to their family.

Baker Acts can be

Southern Poverty Law Center, Costly and Cruel How Misuse of the Baker Act Harms 37,000

Florida Children Each Year, (2021),

https://www.splcenter.org/sites/default/files/com_special_report_baker_act_costly_and_cruel.pdf

Id.

Bacardi Jackson, COSTLY AND CRUEL: THOUSANDS OF FLORIDA CHILDREN SUFFER

THE HARM AND INDIGNITY OF INVOLUNTARY, AND OFTEN ILLEGAL, COMMITMENT

TO PSYCHIATRIC FACILITIES, SOUTHERN POVERTY LAW CENTER (Mar. 24, 2021),

helpful in the sense that children can meet other people that are going through similar problems

and can better relate to them.

However, Florida’s excessive use of Baker Act’s on children is

causing unnecessary harm in many cases.

The Baker Act, passed in 1971, regulates involuntary commitments based on mental

health.

Every state in America has laws that allow for short, involuntary mental commitments.

A person committed under the Baker Act can be held against their will for up to seventy-two

hours.

Seventy-two hours is often not enough time for children to implement coping mechanisms

for when they get out of the Baker Act, which is why children can be Baker Acted multiple times.

Long-term mental health care is not realistic for a lot of people because it costs too much

money.

Therefore, children in crisis are forced to rely on emergency short-term care instead

through a Baker Act.

Florida was ranked forty-eighth in the nation on access to mental health

care, due to many individuals being uninsured and unable to get treatment.

Facilities that provide

Baker Act services can be public or private.

Public facilities in Florida receive funding from the

state and are under contract with the Department of Children and Families (“DCF”).

Patients can

be forced to pay for care that they did not give their consent for.

Payments for care can come

from insurance companies, charity care, public programs including Medicare and Medicaid, and

out-of-pocket costs from the patient.

The cost of a week of in-patient psychiatric treatment on

average is just over $7,000.

https://www.splcenter.org/news/2021/03/24/costly-and-cruel-thousands-florida-children-suffer-

harm-and-indignity-involuntary-and-often.

VICE NEWS, There’s a Mental Health Crisis Among Florida’s Kids, (May 17, 2019),

https://www.youtube.com/watch?v=tBlWDyFZ-so.

FLA. STAT. § 394 (2022).

VICE NEWS, supra note 6.

FLA. STAT. § 394.463 (2022).

VICE NEWS, supra note 6.

Id.

Anne Swerlick, Funding for Behavioral Health Services in Florida: Frequently Asked

Questions, FLORIDA POLICY INSTITUTE, (Aug. 19, 2022), https://uploads-

ssl.webflow.com/5cd5801dfdf7e5927800fb7f/63050cac7086102b7b5e11af_FS_Behavioral-

Health_Funding_FINAL.pdf.

Florida Association of Counties, HSJ-PP-09: BAKER ACT SERVICES, https://www.fl-

counties.com/sites/default/files/2021-09/HSJ%2009%20-%20Baker%20Act%20Services.pdf.

Id.

Nathaniel Morris & Robert Kleinman, Involuntary Commitments: Billing Patients for Forced

Psychiatric Care, THE AMERICAN JOURNAL OF PSYCHIATRY, (Dec. 1, 2020),

https://ajp.psychiatryonline.org/doi/10.1176/appi.ajp.2020.20030319.

Id.

Javier Rizo, Billing Psychiatric Patients for Involuntary Treatment is Unethical, Mad in

America, (Feb. 18, 2021), https://www.madinamerica.com/2021/02/billing-psychiatric-patients-

involuntary-treatment-unethical/.

This white paper will first focus on the history of Baker Act’s in Florida including what

the Florida law says and how Baker Acts are used on children. Next, this paper will focus on the

harm that Baker Acts can have on young children. Next, this paper touches on different solutions

to help reform the Baker Act process in Florida including what different organizations can do to

help and what needs to be changed. Lastly, this paper will identify the unique challenges of

children in foster care.

II. HISTORY OF BAKER ACTS IN FLORIDA

Florida, especially throughout the past several years, has placed a large emphasis on the

parental right to control the upbringing of their children. This includes aspects such as where your

child goes to school, what religion they learn, and what medical care they receive.

However, this

right is not absolute.

Parents can initiate Baker Acts on their children, or others concerned for a

child’s well-being can initiate the procedure, even without parental consent. The Baker Act’s

legislative intent was revised in 2018.

The new legislative intent is “. . . to reduce the occurrence,

severity, duration, and disabling aspects of mental, emotional, and behavioral disorders.”

The

statute also states that “[i]t is the policy of this state that the use of restraint and seclusion on clients

is justified only as an emergency safety measure to be used in response to imminent danger to the

client or others. It is, therefore, the intent of the Legislature to achieve an ongoing reduction in the

use of restraint and seclusion in programs and facilities serving persons with mental illness.”

However, the Baker Act’s legislative intent is contradictory to the data that is available

about Florida Baker Acts. The College of Behavioral and Community Sciences at the University

of South Florida runs the Baker Act Reporting Center.

The reporting center has organized and

analyzed involuntary examination data, including of minors.

From 2020 to 2021, ages eighteen

and younger made up 19.81% of the total population that was involuntarily examined and there

was a 7.21% year-to-year percent change.

To look over time, from the 2001-2002 fiscal year to

the 2018-2019 fiscal year, the percentage of children who were Baker Acted increased by

152.6%.

This shows that minors are being Baker Acted increasingly more often in Florida, ahead

of any other state, and Florida is not meeting the legislative intent of the state’s Baker Act laws.

Victoria Langley, Florida Baker Act Laws for Minors, LAW FOR FAMILIES (Aug. 18, 2021),

https://www.lawforfamilies.com/6887055-florida-baker-act-laws-minors.html.

Id.

Alexander Lemieux, The Baker Act: Time for Florida to Get Its Act Together, Child and

Family Law Journal: Vol. 8: Iss. 1, Article 5 (2020),

https://lawpublications.barry.edu/cgi/viewcontent.cgi?article=1045&context=cflj.

FLA. STAT. § 394.453 (2022).

Id.

Langley, supra note 19.

Id.

Annette Christy, et al., The Baker Act Florida Mental Health Act Fiscal Year 2020/2021

Annual Report, UNIVERSITY OF SOUTH FLORIDA, DEPARTMENT OF MENTAL HEALTH LAW AND

POLICY, BAKER ACT REPORTING CENTER (2022), https://www.usf.edu/cbcs/baker-

act/documents/usf_barc_fy_20_21_annual_report.pdf.

Southern Poverty Law Center, supra note 2.

A. WHAT DOES FLORIDA’S CURRENT LAW SAY?

Under Florida Statute § 394.463, the law does not differentiate between children and adults

for involuntary examination criteria.

The involuntary examination may only be initiated by a

judge, law enforcement officer, or a mental health professional.

For a child to be Baker Acted

the following requirements must be met:

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

to believe that the person has a mental illness and because of his or her mental illness:

• The person has refused voluntary examination after conscientious explanation

and disclosure of the purpose of the examination; or

• The person is unable to determine for himself or herself whether examination

is necessary; and

• 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

• 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.”

Children are usually involuntarily Baker Acted under the “likely to cause harm to self or

others” prong.

Harm to self is the most common reason for approximately seventy-one percent

of children being involuntarily examined.

Minors are not in charge of caring for themselves, and

therefore will likely not be Baker Acted under the neglect prong.

This means that evaluators do

not have to consider the willingness and ability of family or friends to help the child avoid harm,

which could help prevent the child from ultimately being Baker Acted.

In 2021, Florida passed the School Safety Bill, which amended Florida law to require

parental or guardian notification prior to the initiation of a Baker Act on a minor child.

Baker

Acts are often initiated in schools, which has been historically problematic because parents were

not always a part of the school’s decision-making process when initiating a Baker Act. However,

the School Safety Bill gave more control to parents. The intent was to reduce the number of

FLA. STAT. § 394.463 (2022).

Id.

Southern Poverty Law Center, supra note 2.

Lemieux, supra note 21.

Southern Poverty Law Center, supra note 2.

Id.

FLA. STAT. § 381.0056 (2022).

inappropriate Baker Acts on children by giving parents the ability to help their children.

This

helps to give the parents a chance to explain anything in their child’s health background including

any history of disabilities or outpatient mental health treatment that the child is currently attending.

Florida Statute § 381.0056 requires that:

“A reasonable attempt is made to notify a student’s parent, guardian, or caregiver before

the student is removed from school, school transportation, or a school-sponsored activity to be

taken to a receiving facility for an involuntary examination.”

“A reasonable attempt to notify” means the exercise of reasonable diligence and care by

the principal or the principal’s designee to make contact with the student’s parent, guardian, or

other known emergency contact whom the student’s parent or guardian.

The methods of

communication should include but are not limited to telephone calls, text messages, e-mails, or

voicemails.

The Florida Legislature has made some efforts to minimize trauma during the Baker Act

process. Florida’s Baker Act laws were recently amended regarding police transport.

It is

common for minors to be transported in the back of a police car while handcuffed, which can be a

traumatic experience.

The law states, “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 him or

her delivered to an appropriate, or the nearest, facility within the designated receiving system

pursuant to s. 394.462 for examination.”

Now, the law added, “[a] law enforcement officer

transporting a person pursuant to this subparagraph shall restrain the person in the least restrictive

manner available and appropriate under the circumstances.”

Florida Statute § 394.4625 authorizes minors to receive voluntary inpatient services.

Although, it is harder for minors to receive voluntary inpatient services than adults because it

requires their parent or guardian’s consent and a clinical review to determine the voluntariness of

that consent.

In Parham v. J.R., the Court held that “the risk of error inherent in the parental

decision to have a child institutionalized for mental health care is sufficiently great that some kind

Citizens Commission on Human Rights Florida, Baker Act? Protect Your Children with 5

Simple Steps!, (July 1, 2021) https://www.cchrflorida.org/baker-act-rights/.

FLA. STAT. § 381.0056 (2022).

Id.

FLA. STAT. § 394.463(2)(a)(2) (2022).

Tom McLaughin, Rep. Patt Maney's Baker Act reform package gets gutted in the Florida

Senate, NWF DAILY NEWS, (Mar. 3, 2022),

https://www.nwfdailynews.com/story/news/politics/2022/03/03/representative-patt-maney-

baker-act-reform-package-gutted-florida-senate/9330103002/.

FLA. STAT. § 394.463(2)(a)(2) (2022).

Id.

FLA. STAT. § 394.4625 (2022).

FLA. STAT. § 394.4625(1)(a) (2022).

of inquiry should be made by a "neutral factfinder" to determine whether the statutory requirements

for admission are satisfied.”

The review should include all relevant information about the child

including speaking with parents, schools, and the child.

The decisionmaker then has the authority

to refuse to admit a child that does not meet the criteria.

However, this does not have to be done

in a formal hearing as it would place parents against their children as adversaries.

B. HOW ARE BAKER ACTS USED ON CHILDREN?

Baker Acts can be used on children in many different situations. As a hypothetical,

imagine Sarah a young girl with autism. She has trouble acting out at school and the school is

working on how to best suit her needs. She gets into a verbal argument and threatens her teacher.

A Baker Act could be initiated in this setting by the school. Another situation is Brett, a young

boy at a residential home. There are many different kids living in the home. He is working on his

anger management and is upset with another child at the home. He physically assaults the child,

and the home calls the police. Instead of arresting Brett and taking him into custody, the police

initiate a Baker Act. A former lieutenant in the Duval School Board Police Department admitted

to this practice.

“I have said Baker Act them and don't put them in jail. … when a problem

student is placed under the Baker Act, statistically, it's not counted as an arrest at school.”

Instead of arresting some children, the police department would Baker Act them.

A third situation is Zach. Zach does not like the rules that his foster parents are implementing.

He knows if he acts out in a certain way, he can leave the home. A Baker Act could also be used

in this situation, for a child that would rather be Baker Acted, than stay at their current

placement.

C. THE SEVENTY-TWO HOUR HOLD IN A MENTAL HEALTH FACILITY

Florida Statute § 394.463 lays out the criteria for starting an involuntary examination and

after they are met, allows for authorized officials to transfer the child to a mental health facility.

Florida is required to designate one or more law enforcement officials to drive the child to a mental

health facility.

These facilities may vary depending on age guidelines for child, adolescent, and

adult units. Once the child is transported to the facility, they can either be released or required to

442 U.S. 584 (1979).

Id.

Clark Fouraker, Former cop says district uses Baker Act to reduce arrests, FIRST COAST

NEWS, (Aug. 17, 2016), https://www.firstcoastnews.com/article/news/education/former-cop-

says-district-uses-baker-act-to-reduce-arrests/295152933.

Id.

Lemieux, supra note 21.

stay in the mental health facility.

The law only allows for a physician or clinical psychologist to

release the child.

If one is not present the child may be forced to wait longer.

The facility has

up to 12 hours to begin the examination process.

Under Florida Law, any child who is fourteen years of age or older is eligible to share a

room with an adult who is suffering from a mental health condition based on the attending

physician’s review.

This law can put vulnerable children at risk in a room with adults with mental

health disorders. The rooms at mental health facilities also are not monitored at all times which

can result in times the child may be left alone with the adult. However, Florida law differs

regarding jail facilities.

No child is allowed to share a cell with an adult inmate under any

circumstances.

The mental health facility shall attempt to notify the minor’s parent or guardian until the

receiving facility receives confirmation by phone call or another form of electronic communication

from the parent or guardian that the notice has been received.

Attempts to notify the parent or

guardian must be repeated at least once every hour during the first twelve hours after the minor’s

arrival and once every twenty-four hours after and must continue until such confirmation is

received unless the minor is released at the end of the seventy-two-hour examination period.

What comes next is an examination that must be initiated within twelve hours of the child’s

arrival at the mental health facility.

The involuntary holds typically only last for seventy-two

hours, however, if the examination period falls on a weekend or a holiday then the child can be

held even longer until the next working day for the examination period.

The seventy-two-hour

hold involves evaluating and monitoring the child.

The child will go through an intake process,

have vital signs checked, be asked questions about their symptoms, and can be drug tested.

The

child’s belongings will be searched and anything that can be used as a weapon will be taken.

The

child will likely be prescribed medication by a doctor or psychiatrist.

The child will likely have

Southern Poverty Law Center, supra note 2.

Id.

FLA. STAT. § 394.4785 (2022).

FLA. STAT. § 985.265 (2022).

Id.

FLA. STAT. § 394.4599 (2022).

Id.

FLA. STAT. § 394.463 (2022).

FLA. STAT. § 394.463(g) (2022).

MedCircle, What is a 72-Hour Psychiatric Hold?, (Aug. 16, 2022),

https://medcircle.com/articles/what-is-a-72-hour-psychiatric-hold/.

Id.

a structured schedule and most facilities offer different therapies during the day including, group

therapy, art therapy, and music therapy.

After the examination period ends, one of four actions is taken.

Three actions are directly

related to the child; the child is either released, released subject to voluntary outpatient treatment,

or asked to consent to switch to a voluntary inpatient treatment program and admitted under that.

The final action rests with the courts; a petition for involuntary services is filed in the circuit court

if inpatient treatment is deemed necessary by a physician.

Some problems that arise under the Baker Act are that two of the three statutorily

authorized individuals to apply the criteria are not licensed mental health professionals.

Judges

can decide on a child’s mental illness without any mental health training.

Law enforcement

officers, who typically initiate the involuntary examinations, also have no formal training relating

to mental health, unless the police department itself implements a training program.

Law

enforcement officers make up the majority of initiations because they are the first person who can

be contacted when a person believes there is an emergency regarding a child who may be suffering

from a mental illness and who may imminently harm themselves or others.

There has been

intense debate over whether police officers should be the ones handling these Baker Act calls. One

of the solutions to reform the Baker Act is to require formal training so law enforcement officers

can better apply the criteria and prevent unnecessary Baker Acts.

Another issue that arises under Florida law is that medical professionals and law

enforcement officers are held to different standards when initiating a Baker Act.

Law

enforcement officers may take someone into custody who appears to meet the criteria for

involuntary examination and deliver them to a facility.

Many law enforcement officers rely on

witnesses who observed the child’s behavior when the officer themselves did not witness any of

this behavior.

This means that many law enforcement officers will initiate a Baker Act on a child

just because the school contacted them about the child.

Florida Department of Children and

Families has also declared that officers should always “err on the side of initiating an exam.”

However, the law treats medical professionals differently.

Medical professionals cannot initiate

Arlin Cuncic, Psych Ward: What Happens If You Are Admitted?, VERYWELLMIND, (Mar. 30,

2023), https://www.verywellmind.com/what-is-a-psych-ward-5217423.

FLA. STAT. § 394.463(g) (2022).

Id.

Lemieux, supra note 21.

Id.

an involuntary examination unless the professional personally witnessed, within the past forty-

eight hours, someone that meets the statutory criteria.

Therefore, law enforcement officers who

do not have mental health training have more capability to initiate an involuntary examination than

a mental health professional. This leaves room for misuse in the Baker Act process because law

enforcement officers rely on the word of others when deciding to initiate a Baker Act on a child.

III. TYPES OF HARM THAT BAKER ACTS CAN HAVE ON CHILDREN

A 2017 task force report on the involuntary referrals of children under Florida's Baker Act

found that one-third of them were not necessary.

This puts children at risk of the unnecessary

harm that Baker Acts can cause. Imagine a child being handcuffed and put in the back of a police

car in front of their friends at school. Then, the child is driven to stay at a hospital, filled with white

walls, none of their belongings, and surrounded by strangers they have never met. On top of this,

the child is put on new medication with side effects that they are not used to. These hospitals can

also be far away, depending on what facility has an open bed at that time. This can be a very

traumatic experience for anyone, especially children. This can also worsen conditions that may

already be present in children, such as anxiety or depression.

Yes, Baker Acts may be necessary

for some, but for others, Baker Acts are misused and can cause more harm than good.

Baker Acts can be inappropriately used on three main types of children that would not

benefit from hospitalization:

(1) those who manifest developmentally appropriate behaviors, for example, sadness, which

may require counseling, but not to the extent of inpatient hospitalization;

(2) those who have a disability; and

(3) those who have bad behavior where a Baker Act is used as a form of punishment or an

effort to get the child out of school.

Children in the first category can include those who are already in outpatient counseling for a

certain diagnosis.

A Baker Act may not be appropriate for them because they may only require

a lower level of care. In these situations, the child can be Baker Acted without first speaking to

their therapist or other doctors to gain more insight into the child’s condition.

Id.

Lynn Hatter, Committed: Improving Florida’s Baker Act For Children A Challenge, WUSF

PUBLIC MEDIA, (Dec. 18, 2020), https://wusfnews.wusf.usf.edu/health-news-florida/2020-12-

18/committed-improving-floridas-baker-act-for-children-a-challenge.

Frank Gluck, Florida kids are getting sent to psychiatric units under the Baker Act in record

numbers, NEWS-PRESS, (Dec. 15, 2019), https://www.news-press.com/in-

depth/news/2019/08/21/florida-children-baker-act-record-numbers-mental-health/3247904002/.

Southern Poverty Law Center, supra note 2.

Id.

Children in the second category are also unique because a disability is not allowed to be the

basis for a Baker Act.

For example, a child with autism cannot be Baker Acted for that alone

because the Baker Act applies to mental illnesses, and developmental disabilities are excluded

from that criteria.

There must be some mental condition in addition to autism.

School officials

may have a hard time distinguishing between behavior due to a disability and behavior from a

mental condition. This is why mental health and special education training is very important for

school officials to better understand a child’s behaviors.

Children in the third category can be unnecessarily Baker Acted for causing problems in the

classroom. However, these children are rarely a danger to anyone, and mental hospitalization

would not benefit them.

These Baker Acts can also disproportionately harm students of color

because there are disparities in discipline in Florida schools.

Twenty-five percent of all children

who were Baker Acted between 2016-2017 were Black, despite Black children comprising only

fifteen percent of the juvenile population.

The rise of Baker Acts can also be correlated with

increased police presence in schools over the past few years.

Additionally bias can be an issue

with this problem as there are behaviors that cause children of color to be Baker Acted that do not

cause white children to be Baker Acted.

Baker Acts can cause many different types of harm. Many children can be scared due to being

alone at a hospital. This can also have the negative effect of causing fear to speak about their

emotions again, in fear of being Baker Acted again.

Children also miss time at school and can

fall behind.

Children in foster care risk losing their placement, disrupting their lives.

100

The

parents may also have to take time off work and struggle financially due to medical bills.

101

Children can also feel isolated and can struggle to receive phone calls from family if staff fails to

follow their protocol. Children can also start to distrust medical professionals if they have a

negative experience with the Baker Act. Many children refer to their Baker Act as not “wanting to

go to jail again.”

102

This puts a big emphasis on the negative experience that many children face

when Baker Acted.

Children are often forced to be placed on psychiatric medication when in a mental health

facility. Without proper communication with a child’s current doctor, if they are seeing one, this

can also cause problems. Some children in foster care have even expressed learning ways to answer

Id.

Mary Wozniak, REVISING the BAKER ACT, FORT MYERS FLORIDA WEEKLY, (Jan. 26, 2022),

https://fortmyers.floridaweekly.com/articles/revising-the-baker-act/.

Lemieux, supra note 21.

Southern Poverty Law Center, supra note 2.

Id.

McLaughin, supra note 46.

Jackson, supra note 5.

Id.

100

Id.

101

Id.

102

Id.

questions during a Baker Act to avoid placement on psychiatric medication.

103

What is commonly

referred to as “booty juice” is a powerful sedative that can be used on patients who “act out” in

mental facilities.

104

Another concern with modern Baker Act practices is that seventy-two hours is not enough

time to effectively help and treat most children. Mental illness cannot be treated in such a short

time frame and follow-up care is generally needed. However, follow-up care is not feasible for

families that cannot afford it.

The Baker Act can cause more harm due to the trauma of the experience. Studies have

shown that many patients witness traumatic events while in mental facilities. The study found that

“54% of individuals experienced being around frightening or violent patients as a harmful

experience, 59% were subject to seclusions, 34% experienced being held in restraints, 29% faced

forceful takedowns, 60% were handcuffed during transport, and 20% were threatened with

medication as a form of punishment while they were in a mental health facility.”

105

Forty-three

percent of patients reported suffering from Post-Traumatic Stress Disorder as a result of their

Baker Act.

106

These studies were focused on adults, however, can likely be similar for children as

well.

107

Many children are Baker Acted more than once, which shows the initial Baker Act may

not have successfully treated children with mental illness.

108

At least thirty percent of all children

Baker Acted will have a repeat Baker Act within five years.

109

This reoccurring experience can

cause additional trauma to children.

IV. WAYS TO REFORM FLORIDA’S BAKER ACT LAWS

It is important to get the children who need help access to it. It is equally as important to

prevent those children who do not need in-patient treatment from being subject to the harm of a

Baker Act. There is an ongoing lawsuit against Palm Beach County Schools alleging that they

have been abusing the Baker Act Process.

110

This shows how timely and prevalent this issue is and

how reforms to the process are needed. The issue has also been addressed in the news recently

103

Id.

104

Charlotte Huffman & Mark Smith, Patients say sedative known as 'booty juice' injected

against their will, WFAA, (Apr. 26, 2018), https://www.wfaa.com/article/news/patients-say-

sedative-known-as-booty-juice-injected-against-their-will/287-543222886.

105

Southern Poverty Law Center, supra note 2.

106

Id.

107

Id.

108

Id.

109

Id.

110

Pl.’s Opp’n to Defs’ Mot. To Dismiss Pl.’s First Am. Comp., D.P. et al, v. Sch. Bd. of Palm

Beach Cnty., No. 21-CIV-81099, S.D. Fla.,

https://www.splcenter.org/sites/default/files/documents/opposition_to_motion_to_dismiss.pdf.

stating, “[t]he law is so deeply enmeshed into the state’s culture that it is widely used as a verb, as

in: The 6-year-old was ‘Baker Acted.’”

111

• Some current successes to reform the process have been the pilot program of the Center

for Progress and Excellence Inc.

112

This program received a $1.2 million state grant for

mobile crisis response units to respond to Baker Act scenarios in Lee County and

Collier County.

113

Mobile response teams serve many different counties in Florida by

diverting to school and community resources instead of initiating a Baker Act when

possible.

114

Diversion rates have been successful with an average diversion rate of

seventy-seven percent.

115

Florida should continue to fund and prioritize mobile response

teams.

• Another push to reform the Baker Act process is to allow children who are detained under

the Baker Act to have access to a public defender, just like how adults have the right to

counsel.

116

Unfortunately, the bill for this reform died in the 2019 legislative session.

117

The current law only alerts public defenders if the facility is petitioning to keep the child

for longer than the allotted seventy-two hours.

118

The bill proposed changing this to instead

immediately alert public defenders.

119

Advocates argued for this change as a form of

checks and balances.

120

Public defenders would be able to review the police reports and

look for any potential misuse of the process to report for accountability purposes.

121

• Another major problem with Baker Acts is the lack of data collection. School districts

compromise the majority of Baker Act referrals of children, however, they are not required

to maintain any data on these children.

122

The juvenile dependency system which also

111

Donna St. George, In Florida, showing mental health struggles could get a child detained,

THE WASHINGTON POST, (Mar. 16, 2023),

https://www.washingtonpost.com/education/2023/03/16/florida-law-child-mental-health/.

112

Brent Batten, Editorial: How to address the rise in juvenile Baker Act committals in Florida,

NAPLES DAILY NEWS, (Aug. 22, 2019),

https://www.naplesnews.com/story/opinion/2019/08/22/editorial-how-address-rise-juvenile-

baker-act-committals/2062915001/.

113

Id.

114

FLA. STAT. § 394.495 (2022).

115

Kathleen Moore, Nickie Zenn, & Cathy Sowell, State Of Florida Best Practices Response

Protocol for Schools to Use Mobile Response Teams, FLORIDA MENTAL HEALTH INSTITUTE

(FMHI), (June 30, 2021),

https://www.usf.edu/cbcs/fmhi/documents/hb_945/fmhi_best_practices_protocol_v2_063021.pdf

116

Batten, supra note 112.

117

Id.

118

Lemieux, supra note 21.

119

Id.

120

Id.

121

Id.

122

Id.

makes up a fair amount of Baker Acts, is also not required to collect or report any data on

the children in the system.

123

The data that is available comes from police and the facilities,

whom the Baker Act Reporting Center then compiles and reports.

124

However, the forms

that law enforcement officers fill out are very basic and lack detailed questions.

125

These

forms do not ask questions such as “. . .how long a child was held at a facility, whether the

child was released after they first met with a psychiatrist, or with what mental illness the

child is diagnosed or suspected to have.”

126

Data is also not available on whether a least

restrictive means was evaluated for the child, which should be an important step to track if

Baker Acts are being used as a last resort.

127

The Baker Act Reporting Center often has to

list the location the Baker Act was initiated as unknown because police are not required to

report this data. The recording of more data is a reform that is needed to better understand

the Baker Act process in Florida. Tracking this data can also help lessen the misuse of

Baker Acts by holding people more accountable for any abuse in the process. By collecting

data, officials can compare school systems to see where there are higher rates to address

those districts more specifically.

128

School officials, law enforcement officers, and other

actors in the juvenile dependency system should all be required to report more detailed

information.

• Mental health training for law enforcement officers and school officials is very

important to reform the process as well. Crisis Intervention Training should be required in

all law enforcement districts, instead of being a decision that is made by each

department.

129

Districts could better serve children by following Lake City Police

Department’s approach by requiring new officers to undergo mental health training and

requiring refreshing training every three years.

130

Law enforcement officers play an

important role in Baker Acts, and it is imperative that they can better apply the statutory

criteria. Broward County requires officials to undergo forty hours of training regarding

mental health.

131

After implementing this requirement, the County saw the number of

involuntary examinations on children decrease.

132

Forty hours of training is minimal, but

enough to make a difference. Advocates have argued for statewide training that is uniform

to all districts.

133

The training can be given by mental health professionals who better

understand the Baker Act criteria.

134

Having a school psychologist in every school to defer

to before initiating a Baker Act is a good solution as well.

135

These trainings can be

123

Id.

124

Id.

125

Id.

126

Id.

127

Id.

128

Id.

129

Lemieux, supra note 21.

130

Id.

131

Id.

132

Id.

133

Id.

134

Id.

135

Southern Poverty Law Center, supra note 2.

implemented for school officials as well so that school officials can gain a better

understanding of how to deal with the process and implement strategies to de-escalate the

situation besides resorting to a Baker Act.

136

• Another change to the current law should be allowing mental health professionals to

initiate the Baker Act process in the same manner that law enforcement officers can.

137

Mental health professionals are limited in their ability to initiate a Baker Act because they

must have personally witnessed within the past 48 hours, someone that meets the statutory

criteria.

138

However, law enforcement officers can rely on witnesses who observe the

behavior to initiate a Baker Act.

139

• There are also solutions to make the process less traumatic for children. This can include

limiting police restraints such as handcuffs unless it is absolutely necessary to prevent a

child from harming themselves.

140

If parents consent to the Baker Act, then allowing the

child to ride in the car with their parents is a good solution to prevent more harm to the

child.

141

Allowing children to ride with their parents could give the children a better sense

of security.

• Implementing strict age guidelines for mental health facilities is important so that

children and adults are placed separately.

142

Keeping anyone over the age of eighteen in a

separate adult facility should be required as well as having an exception for eighteen-year-

olds that are still in high school to allow them to be placed with other adolescents. Having

separate child units and adolescent units is good to keep children with those of similar age

to lessen exposure to inappropriate behavior for the child’s age.

143

• Having a more collaborative approach between all actors in the child’s life is important

for the Baker Act process. This can include school officials, therapists, psychiatrists,

parents/guardians/foster caregivers, law enforcement officers, etc. Ensuring

communication between all the adults in the child’s life is important so that everyone has

the necessary information to better help the child. This approach can start from the very

beginning of initiating a Baker Act all the way until discharge. Law enforcement officers

and school officials can better communicate by sharing information if a child is on an

individualized education plan so that the child is not wrongfully Baker Acted due to a

disability and not a mental illness.

144

The school can also better communicate with parents

if the child is dealing with a mental illness and the parent is addressing it with outpatient

treatment. This is important knowledge for the school to have, so that parents have more

136

Id.

137

Id.

138

Lemieux, supra note 15.

139

Id.

140

Southern Poverty Law Center, supra note 2.

141

Id.

142

Id.

143

Id.

144

Id.

input, and the school is more informed about the child’s treatment. The mental health

facilities can also better communicate with parents to answer any questions they have

during the process and get any important information to better treat the child.

145

The mental

health facilities can also better communicate with the child so the child has accurate

expectations regarding what the Baker Act process can look like. The mental health facility

should also attempt to contact any of the child’s mental health professionals to get records

from them if applicable so that the child’s current, ongoing treatment is continued.

146

• The state can help by prioritizing more funding to implement mental health resources.

147

Schools can implement programs to educate children about mental health symptoms and

effective coping strategies. This includes speaking to parents about how to find services

for their child and alerting children of their ability to talk with a school counselor or

therapist.

148

V. The Unique Challenges of Children in Foster Care

Children in foster care are at a higher risk of being Baker Acted.

149

Twenty-eight percent

of Medicaid spending on inpatient mental hospitals is made up of children in foster care.

150

Baker

Acts can be used on children in foster care when there are no other options for the caregiver.

151

Baker Acts can also be used as a respite when a child perceives a Baker Act as a better option than

their current placement.

152

This is similar to Zach from the earlier hypothetical, acting a certain

way to leave his current placement. Baker Acts are also reported to be used by foster caregivers in

situations where parents would not have Baker Acted their own children.

153

This was shown

through the earlier example of Brett. Many parents would not Baker Act their children for fighting

with each other, but foster children can often be Baker Acted for this type of behavior.

Foster children in Baker Acts are also unique because they can suffer upon discharge if

they disrupt their placement and have nowhere to go afterward.

154

Many caregivers are not as

willing to care for a foster child who was previously Baker Acted which can make placement for

these children harder.

155

Children in foster care make up a large percentage of those who are Baker Acted, and the

Department of Children and Families (DCF) can play a part to help these children as well. DCF

145

Id.

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Id.

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Id.

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Id.

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Id.

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Id.

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Id.

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Id.

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Id.

can help by always reporting any incident that leads to a Baker Act.

156

DCF can prioritize

educating foster caregivers about strategies to deal with mental health disorders to de-escalate the

situation instead of making a Baker Act call.

157

This can include DCF making it a habit of always

following up with caregivers to make sure they understand medication side effects and can

adequality help with follow-up care.

158

VI. CONCLUSION

The rise of Baker Acts in Florida is a major issue that needs reform within different systems

and changes to Florida’s statutes. Children should be protected differently than adults regarding

Baker Acts because of the age difference. Many professionals advocate against Baker Acts due to

the potential trauma outweighing the lack of evidence of effective treatment.

159

The huge

difference between the amount of Baker Acts in Florida compared to other states shows that

changes are needed. Hardly any changes have been made by legislators in the past few years, and

this issue needs to be prioritized. The Baker Act process is being excessively used and subjecting

children to a traumatic experience that is not necessary for many of them.

156

Id.

157

Id.

158

Id.

159

Southern Poverty Law Center, supra note 2.