Florida's Baker Act: Involuntary Exams for Mental Health

Florida's Baker Act is intended to strengthen the protections of the due process and civil rights of those suspected of suffering from mental illness.

In 1971 the Florida Legislature passed into law the Florida Mental Health Act (Baker Act), which went into effect July 1, 1972. The Baker Act was an all-inclusive revision of Florida’s mental health laws, which dated back to 1874. The intent was to provide safeguards for persons in mental health facilities, by strengthening the protections of their due process and civil rights.

Sponsor of Mental Health Reform: Maxine Baker

The 1971 law was named after its sponsor State Representative Maxine Baker. According to Representative Baker, the Act was to encourage voluntary commitments (when the person was competent to consent). The idea was to separate the hospitalization process from the legal incompetency process, and to expedite return to regular life. Representative Baker stated, regarding treatment of the mentally ill prior to the Baker Act: “In the name of mental health, we deprive them of their most precious possession – liberty.”

Long active in the civic and political issues of her day, Ms. Baker was 73 years old when the Baker Act became law. Her dedication to civil liberty included protecting the most vulnerable among us. She initiated the law to address critical freedom issues for the mentally ill.

Mental Health Commitments Prior to the Baker Act

In Florida, before 1972, a person could be retained in a state mental hospital based upon three affidavits presented to a county judge. Based upon the affidavits a judge could order commitment. The judge was required to order an indigent mentally ill person to the sheriff’s custody until hospital admission. Adults and children as young as 12 could be placed into same hospital. Persons committed under judicial order could correspond only with a single individual. There was no defined time period for judicial reconsideration of a person’s detention.

Baker Act Changes the Process of Commitment For Mental Health Issues

The Baker Act significantly changed the process by which an individual with a suspected mental illness could be hospitalized involuntarily, including early evaluation by a mental health professional, time frames for such evaluation, definitions of commitment criteria, issues of evidence, provisions for early and regular judicial review, and a patient’s bill of rights.

Prior to 1972, the process was one of involuntary commitment. The Baker Act changed that to involuntary examination by a mental health professional before a commitment could take place. Standards were established to trigger the examination. Law enforcement and mental health professionals were designated at individuals that could initiate involuntary examination. Judicial process was changed to one requesting examination rather than commitment.

The Baker Act mandates that examination take place within 72 hours, and if the criteria for commitment are not met during the examination, the individual is to be released. If the criteria are met during those 72 hours, a separate court hearing is to be held with the person whose liberty is at stake having representation.

Initial Findings to Trigger Involuntary Examination

A certification, whether by law enforcement, mental health professional or judicial order, is needed to trigger an involuntary examination, and must include the following :

Belief That Person a Has Mental Illness

There must be reason to believe a person has a mental illness as defined by Section 394.455(18), Florida Statutes (excludes retardation or developmental disabilities, intoxication, or conditions manifested only by antisocial behavior or substance abuse impairment):

“ ‘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.

2. Refusal or Inability to Participate in a Voluntary Examination Because of Mental Illness

The person has refused voluntary examination after conscientious explanation of disclosure of the purpose of examination or the person is unable to determine for himself/herself whether examination is necessary.

3. Likelihood of Neglect or Harm to Self or Others

Without care and treatment the person is likely to suffer from neglect or refuse to care for himself/herself, and 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 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 behaviors.

Number of Persons Affected by the Baker Act

Provisions of the Baker Act require reporting of statistics regarding the operation of the law. According to data collected by the Department of Mental Health Law and Policy at the University of South Florida, there were more than 70,000 involuntary examinations in 1997. By 2009, the most recent year for which statistics are available document 136,120 involuntary examinations initiated, nearly twice as many as 1997.

Almost half (49%) of the involuntary examinations in 2009 were initiated by mental health professionals, with close to half initiated by law enforcement officials (49%), and the remaining (3%) initiated via ex-parte order of a judge. As of 2009, Florida's population was estimated to be 18,537,969. This means that 1 of every 136 Floridians were subjected to an involuntary examination in 2009.

Controversy over Operation of the Baker Act

Representative Baker’s intent was to provide protections for the civil liberties of those either with or suspected to have a mental illness. The prior swift judicial process without provisions for periodic commitment review or the original input of mental health professionals was the source of significant abuse.

The Baker Act process with its specific criteria and time frames was intended to address those problems. The provisions allowing initiation of an involuntary examination by law enforcement and mental health professionals without a judicial proceeding have been the source of controversy. A good source of information regarding those controversies is the Florida Citizen’s Commission on Human Rights.