There is an increase in children who are being removed from school grounds under the Baker Act, without parental consent, and held in a psychiatric ward for psychiatric examination for up to 72 hours. This increase notably follows the change in legislation regarding school threat and safety assessment that resulted in the Marjory Stoneman Douglas High School Public Safety Act. This legislation calls for more stringent procedure in regards to why a student is Baker Acted and what to do following the Baker Act.
Mental Health Rights nonprofit has seen this increase in numbers of children who are determined to be a threat to themselves or others and has seen this increase in terms of children diagnosed with Autism. Our nonprofit always advises parents to get informed of their rights prior to any possible situation, with their child at school, that could escalate and be determined as meeting the criteria for the Baker Act examination and/or involuntary psychiatric treatment.
There are four areas of law that parents need to know and they are:
-The Baker Act Law (specifically the criteria and the intention of the law)
-Individuals Disability Education Act (specifically the Individual Education Plan)
-Florida’s Anti-Bullying Law (specifically what to do if a bullying situation exists)
-The Marjory Stonemason Douglas High School Public Safety Act (specifically what will be perceived as a possible threat to oneself or others)
The Baker Act Criteria and Intention of the Law
The intention of the Baker Act law is clear when it says “It is further the policy of the state that the least restrictive appropriate available treatment be utilized based on the individual needs and best interests of the patient and consistent with optimum improvement of the patient’s condition.” (emphasis added to least restrictive).
The criteria are very specific. It is not just about having been diagnosed with a mental illness, and it is not solely about being depressed, anxious, frustrated or acting out. The criteria require that several variables are in place in order for an individual to actually and legally meet the criteria. Below are the criteria as stated in the law.
“Florida Statute 394.467 Involuntary inpatient placement.—
(1) CRITERIA.—A person may be ordered for involuntary inpatient placement for treatment upon a finding of the court by clear and convincing evidence that:
(a) He or she has a mental illness and because of his or her mental illness:
1.a. He or she has refused voluntary inpatient placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of inpatient placement for treatment; or
b. He or she is unable to determine for himself or herself whether inpatient placement is necessary; and
2.a. He or she is incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, is likely to suffer from neglect or refuse to care for himself or herself, and such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; or
b. There is substantial likelihood that in the near future he or she will inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm; and
(b) All available less restrictive treatment alternatives that would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.
Autism is excluded from the statutory definition of mental illness:
“Florida Statute 394.455(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 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
“Florida Statute 393.063(12) “Developmental disability” means a disorder or syndrome that is attributable to intellectual disability, cerebral palsy, autism, spina bifida, Down syndrome, Phelan-McDermid syndrome, or Prader-Willi syndrome; that manifests before the age of 18; and that constitutes a substantial handicap that can reasonably be expected to continue indefinitely.
Prior to the changes in threat and safety legislation, a parent could demand that the school give them the opportunity to take their child home instead of Baker Acting the child. Now, with the changes made to threat and safety law, that is not possible.
In the criteria, as stated in the law, it is clear that the individual has to be unable to take care of themselves or and there is no help of willing and responsible family or friends and with the use of available alternative services and will likely neglect themselves and therefore harm themselves .
Section 2. b is clear that if the individual has shown they will harm themselves or others and all available less restrictive treatment is not sufficient to prevent that harm, they will be Baker Acted.
Now it is up to school personnels’ viewpoint and interpretation of the child’s behavior or self expression as to whether the child is determined to meet the criteria. It is a subjective observation that is done in a split-second and perhaps when the child has already been provoked into a moment of frustration.
Mental Health Rights nonprofit, always encourages the parents to do two things to prevent their child from being Baker Acted. If the child has an Individual Education Plan, (IEP) it is vital the parent work with the IEP plan to determine what behaviors the child may exhibit when frustrated or provoked and what procedure or method of action should be taken if this occurs. Additionally, it is highly advisable for parents to work with their children on the language they use when frustrated. Any statement that expresses a possibility of threat to oneself or others will be interpreted as meeting the criteria for the Baker Act. Work with your child to understand better ways of expressing themselves with the words they use.
Additionally, the parents need to be acquainted with the Individuals Disability Education Act, specifically the Individual Education Plan
Title 34, Code of Regulations, Section 300.320 states that an Individual Education Plan “must include-How the child’s disability affects the child’s involvement and progress in the general education curriculum”. Also, “A statement of measurable annual goals, including academic and functional goals designed to—Meet each of the child’s other educational needs that result from the child’s disability”. As well as, “A statement of the special education and related services and supplementary aids and services, based on peer-reviewed research to the extent practicable, to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided to enable the child—To be educated and participate with other children with disabilities and nondisabled children in the activities described in this section”.
This is where the parents can be very pro-active and take a role in making sure that the Individual Education Plan (IEP) includes every possible scenario of what may prompt their child to react in a way that is deemed a possible threat to themselves or others and to put in place services and/or actions that can prevent the provoking incidents and dictate what needs to be done in order to de-escalate a situation if it occurs. This is a key point in preventing a Baker Act from occurring in the future.
Florida Anti-Bullying Law
Often, what leads up to a situation where a child will feel provoked and therefore, react with actions or words that are interpreted as a possible threat to themselves or others, involves a series of incidents where the child was bullied in school. It is vital that parents take an active role in talking with their child, regularly about any bullying situation that may be occurring in their daily school routine. When your child tells you of a bully situation, then it is vital you report it to the school. They are obligated to investigate the situation and to terminate any of the bullying.
The following excerpts from the Florida Anti-Bullying Law are key in parents’ rights to assert that the bullying be put to a stop.
Florida Statute 1006.147 Florida’s Anti-bullying law “Each school district shall adopt and review at least every 3 years a policy prohibiting bullying and harassment of a student or employee of a public K-12 educational institution. Each school district’s policy shall be in substantial conformity with the Department of Education’s model policy. The school district bullying and harassment policy shall afford all students the same protection regardless of their status under the law”
“The school district policy must be implemented by each school principal in a manner that is ongoing throughout the school year and integrated with the school’s curriculum, bullying prevention and intervention program, discipline policies, and other violence prevention efforts. The school district policy must contain, at a minimum, the following components:
(a) A statement prohibiting bullying and harassment.
(d) The consequences for a student or employee of a public K-12 educational institution who commits an act of bullying or harassment.”
Marjory Stoneman Douglas High School Public Safety Act—Threat and Safety Assessment in the schools.
With the change in Florida law regarding safety and security at schools, there are changes to what happens if a child is perceived to be a threat to self or others. With these changes, if a child is Baker Acted, it changes the child’s future at the school and for their continued education. Regardless of what the Baker Act law states in terms of “willing family” that can help to prevent any alleged potential harm, the school personnel will move to Baker Act the child promptly and without question. The Threat and Safety Assessment trumps the very specific point regarding the rights of the parents to take the child home from school if they feel they can prevent the alleged potential harm.
This is a game changer for the parents and child, because, additionally the school can now share information about your child and the Baker Act with other state agencies and your family matters become a matter of record in multiple offices across the state. Here are the relevant points in the Marjory Stoneman Douglas High School Public Safety Act.
“Upon a preliminary determination that a student poses a threat of violence or physical harm to him/herself or others, the threat assessment team must immediately report its determination to the superintendent who must immediately attempt to notify the student’s parent or legal guardian.
Notwithstanding any other provision of law, all state and local agencies and programs that provide services to students experiencing, or at risk of, an emotional disturbance or a mental illness may share with each other records or information that are confidential or exempt from disclosure under chapter 119 if the records or information are reasonably necessary to ensure access to appropriate services for the student or to ensure the safety of the student or others.
If an immediate mental health or substance abuse crisis is suspected, school personnel shall follow policies established by the threat assessment team to engage behavioral health crisis resources. Behavioral health crisis resources, including mobile crisis teams and school resource officers trained in crisis intervention, shall provide emergency intervention and assessment, make recommendations, and refer the student for appropriate services. Onsite school personnel must report all such situations and actions taken to the threat assessment team.”
“All such state and local agencies and programs shall communicate, collaborate, and coordinate efforts to serve such students.”
“If an immediate mental health or substance abuse crisis is suspected, school personnel shall follow policies established by the threat assessment team to engage behavioral health crisis resources. Behavioral health crisis resources, including, but not limited to, mobile crisis teams and school resource officers trained in crisis intervention, shall provide emergency intervention and assessment, make recommendations, and refer the student for appropriate services. Onsite school personnel shall report all such situations and actions taken to the threat assessment team, which shall contact the other agencies involved with the student and any known service providers to share information and coordinate any necessary followup actions.”
Once your child has been released from the Baker Act and is ready to go back to school, you may find that the school is requiring further psychological services for your child or may not permit your child to return to the school. This, unfortunately, does fall within the law. This is why so many parents, that have called our nonprofit, whose child has been Baker Acted from school, are deciding to home-school their child from that point forward.
The key is in preventing the Baker Act from occurring in the first place and from understanding what you need to do in order to ensure your child does not appear to be a threat to self or others. For any questions or thoughts on the issues laid out in this article, please feel free to contact our nonprofit or go on our website! Each child’s situation is unique and there are additional facts and information that you may find helpful.
Laurie Anspach, the Director of Mental Health Rights, has spent 25 years as a mental health advocate in Florida, working side-by-side with legal and medical professionals, advocates and volunteers, to assist individuals in protecting their mental health rights. Having helped people over such a long span of time, it is clear that when an individual gets full information of the facts, and specifically in regards to their situation, they are able to assert their rights. Phone: 727-686-1852; Website: www.mentalhealthrights.org