Monday, December 21, 2015

State Attorney's Message: The Handling of Baker Acts

By Mark A. Ober

Although the Office of the State Attorney is tasked with a variety of duties, § 27.02, Fla. Stat., it is primarily involved in the prosecution of criminal offenses. Within the mental health arena, our office handles hearings conducted under the Florida Mental Health Act, also known as the Baker Act. § 394.451, Fla. Stat. Baker Act hearings are civil proceedings conducted pursuant to Chapter 394.

Although an individual may seek mental health treatment voluntarily, there are situations where an involuntary examination is appropriate. Involuntary examination and treatment may be sought if: 1) a person has a mental illness and, because of that illness, has refused voluntary treatment or is incapable of making a decision regarding treatment; and 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., or it is likely that the person will suffer from neglect that “poses a real and present threat of substantial harm to his or her well-being.” § 394.463(1)(b)(1), Fla. Stat.

The initial involuntary examination can be initiated by a law enforcement officer, a mental health or medical professional, or through an ex parte order issued by a court and based on sworn testimony. § 394.463(2), Fla. Stat. The patient is then brought to a designated receiving facility for emergency evaluation and short-term treatment. § 394.467(2), Fla. Stat. While at the receiving facility, the patient may choose to seek voluntary treatment or may become stabilized to the point that the patient can be released. If neither of these actions occurs and the patient continues to meet the Baker Act criteria, a petition for involuntary placement must be filed within 72 hours of the patient being admitted. § 394.463(2)(i), Fla. Stat.

Once the petition is filed, the patient is entitled to a hearing within five days. § 394.467(6), Fla. Stat. A magistrate is authorized to conduct this hearing. Id. Because of the liberty interests at stake, the patient has a right to counsel and may be appointed a public defender. § 394.467(4), Fla. Stat. The state attorney is charged with proceeding on the petition as the real party in interest on behalf of the state of Florida. § 394.467(6), Fla. Stat. The state must present clear and convincing evidence that the patient continues to meet Baker Act criteria. See Lischka v. State, 901 So. 2d 1025 (Fla. 1st DCA 2005); Boller v. State, 775 So. 2d 408 (1st DCA 2000); Singletary v. State, 765 So. 2d 180 (Fla. 1st DCA 2000). This includes a determination that there is no less restrictive alternative available. § 394.467(1), Fla. Stat.

The role of the state attorney in a Baker Act hearing is to seek appropriate mental health treatment for members of our community who are in danger or pose a danger to others because of their mental illness. Our office diligently prepares for these hearings and proceeds on cases where we believe that this is the appropriate outcome. At the same time, we comply with the legal processes that protect the due process rights of the patients. Our ultimate goal is always to seek justice and maintain public safety as we litigate these cases.