How to fight the Baker Act

How to Fight the Baker ActMost people who contact a Mental Health Rights Advocate or a Baker Act attorney wonder how to fight the Baker Act. There are those who meet the criteria for involuntary examination and the legislator who enacted this law, Maxine Baker, had in mind to assist those individuals and to prevent any harm. Yet there are many who do not meet the criteria and still, they are Baker Acted.

How to fight the Baker Act, has everything to do with understanding the criteria as stated in the Florida Law. When that is understood, then the individual and their friends or family members can understand whether they have grounds to fight it or not.

Sometimes, individuals are perceived as having a disability or a mental illness because they have just received bad news and have a strong emotional reaction; or some people have had too much alcohol and start talking in a depressed manner; others may have a medical illness which symptoms are taken for mental health symptoms instead of physical. The individuals who do not meet the criteria are placed under the 72 hour hold and they cannot leave the facility just because they don’t think they belong there. It’s a law, and the law is very specific on this. To assist yourself in fighting the Baker Act, first get familiar with the criteria and then it may be very beneficial to work with a Mental Health Rights Advocate and/or a Baker Act attorney.

Involuntary commitment law exists in every state across the country and while some aspects of the law vary state-to-state, they all have commonalities such as the length of stay, the mandatory aspect of the stay and the fact that only a qualified mental health professional can grant release of the patient.

Afterwards, the involuntary examination becomes a part of the individual’s medical records and will follow them throughout their life. This is one aspect that should be considered when in the situation. Of course, if the person didn’t meet the criteria, it is a very irritating aspect. There is not a lot that can be done about it after the fact. You always have the right to file appropriate complaints to state agencies in regards to the Baker Act and specific aspects that you feel violated Florida law. Again, this is best accomplished with the help of an advocate or attorney.

Disabilities and/or abilities are determined by majority opinion in the field of mental health. They are not evidenced by medical tests in the way that Diabetes, Cancer or any other physical ailment is diagnosed. If an individual is “regarded as having a disability” there are certain legal actions that can be taken if the person is treated in an unfair way that violates the Americans with Disabilities Act. That’s interesting because the disabilities law allows for the fact that some people are “regarded as having disabilities” when they don’t and yet, the Baker Act law does not take this into consideration at all. Once someone is deemed to meet the criteria, they are determined to have a mental illness, per the criteria.

In a report, written by Risa M. Mish, titled, “Regarded As Disabled” Claims under the ADA: Safety Net or Catch-all?, Ms. Mish enlightens us as to what this legal concept of “regarded as disabled” actually means. On a rare occasion if someone was Baker Acted and during the stay at the facility, was treated in a way that violates the Americans With Disabilities Act, then a Disabilities Attorney might have reason to file suit on the patient’s behalf.

Per Ms. Mish’s report, “The ADA regulations provide that an individual is “regarded as disabled” if she: (1) has a physical or mental impairment that does not substantially limit major life activities but is treated by an employer as constituting such limitation; (2) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (3) has none of the impairments specified in the ADA subsection, but is treated by an employer as having a substantially limiting impairment. Therefore, an individual will be “regarded as disabled” when others behave toward that individual as if she had a substantially limiting impairment, regardless of whether the individual actually has such an impairment.

This is offered as food for thought! If you find yourself in a situation where a friend of family member has been Baker Acted, you can keep this in mind. Additionally, there is a lot of information on this site that you may find helpful in asserting your rights and fighting the Baker Act.

My child, my husband, my daughter, my friend, my mother, my father, my sister, my brother was Baker Acted

My friend was Baker ActedMy child, my husband, my daughter, my friend, my mother, my father, my sister, my brother was Baker Acted and what do I do?

First and foremost, know that your friend or relative has all constitutional rights despite having been involuntarily committed. This right is assured by the Baker Act law, Florida Statute394.459 Rights of patients.

The law states: RIGHT TO INDIVIDUAL DIGNITY. A person who is receiving treatment for mental illness shall not be deprived of any constitutional rights.

The circumstances just prior to the person being taken to the psychiatric facility, largely determine if he or she met the criteria or were perceived to have met the criteria. An experienced Mental Health Rights Advocate or a Baker Act attorney can help you to sort that out. Each year, the state publishes an annual report in regards to how many Baker Acts there were, statewide, during the year. Startling as it may be, there were over 170,000, per the most recent annual report. That leaves a lot of people wondering what their rights are if their child, husband, daughter, friend, mother, father, sister or brother was Baker Acted. Family members have rights as well as the individual who is being examined.

Those rights include the right to visit their loved one during visiting hours. Visiting hours vary per facility and it may be one of the first things you want to find out so that you can ensure your right to see your loved one as soon as possible. The rights of the patient are, by law, supposed to be posted in a visible place within the facility and you can mention that to the person being held. They can get familiar with what options they have at the point they are admitted.

Additionally, you have the right to communicate with your friend or family member, at “reasonable times”. Again, this varies according to policies at each individual facility and you may want to find out when it is you can speak to your loved one over the phone.

You have the right to file a Writ of Habeas Corpus on behalf of the individual being held and that gets filed in the courthouse of the county where the facility is. The Writ is a formal request to find out why the person is being detained. You, also, have the right to help your friend or family member to report any violations of rights and privileges of the patient.

The law states:

VIOLATIONS.—The department shall report to the Agency for Health Care Administration any violation of the rights or privileges of patients, or of any procedures provided under this part, by any facility or professional licensed or regulated by the agency.

POSTING OF NOTICE OF RIGHTS OF PATIENTS.—Each facility shall post a notice listing and describing, in the language and terminology that the persons to whom the notice is addressed can understand, the rights provided in this section. This notice shall include a statement that provisions of the federal Americans with Disabilities Act apply and the name and telephone number of a person to contact for further information. This notice shall be posted in a place readily accessible to patients and in a format easily seen by patients. This notice shall include the telephone numbers of the Florida local advocacy council and Advocacy Center for Persons with Disabilities, Inc.