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BAKER ACTBENCHGUIDENovember 2016A Project of the Florida Court Education Council’s Publications Committee

ACKNOWLEDGMENTSThe Publications Committee of the Florida Court Education Council acknowledgesand thanks Ms. Martha Lenderman, M.S.W., one of Florida’s recognized expertson the Baker Act statute, and General Magistrate Sean Cadigan, Thirteenth JudicialCircuit, for their diligent work on this Baker Act Benchguide. The materials inChapter Eight were created under the auspices of the Florida Department of LawEnforcement.This benchguide was partially extracted, with permission, from the “2014 BakerAct User Reference Guide: The Florida Mental Health Act” written by MarthaLenderman under a contract between USF Florida Mental Health Institute with theFlorida Department of Children and Families.AUTHORSMartha Lenderman, M.S.W., and General Magistrate Sean Cadigan, ThirteenthJudicial CircuitPURPOSEThe Baker Act Benchguide was developed to serve as an educational resource anda user-friendly reference for Florida circuit judges who are dealing withproceedings under the Baker Act. Although far-reaching, this benchook cannothope to be definitive; readers should always check cited legal authorities beforerelying on them.DISCLAIMERViewpoints reflected in this publication do not represent any official policy orposition of the Florida Supreme Court, the Office of the State CourtsAdministrator, the Florida judicial conferences, the Florida Court EducationCouncil, or the Florida Court Education Council’s Publications Committee.Baker Act Benchguide September 2016ii

FLORIDA COURT EDUCATION COUNCIL’SPUBLICATIONS COMMITTEEThe Honorable Angela Cowden, Tenth Circuit, ChairThe Honorable Cory Ciklin, Fourth District Court of AppealThe Honorable Josephine Gagliardi, Lee CountyThe Honorable Ilona Holmes, Seventeenth CircuitThe Honorable Matt Lucas, Second District Court of AppealThe Honorable Ashley B. Moody, Thirteenth CircuitThe Honorable Louis Schiff, Broward CountyMs. Gay Inskeep, Trial Court Administrator, Sixth CircuitAUTHORSMs. Martha Lenderman, MSWPinellas CountySean Cadigan, General Magistrate,Thirteenth CircuitPUBLICATIONS COMMITTEE STAFFMs. Madelon Horwich, Senior Attorney, Publications Unit,Office of the State Courts AdministratorBaker Act Bench Guide November 2016iii

TABLE OF CONTENTSPlace your cursor over the item you would like to view and press“Click” to go directly to that item.Case law and most other legal citations are hyperlinked to the Westlaw database.When you click on a link, you will be asked for your Westlaw sign-on information.Once you are signed on, just minimize the screen. You should then be able to retrieveall of the Westlaw hyperlinks you select. Due to technical difficulties, some legalcitations other than case law citations are linked to the primary sources.Introduction: Development and Use of Baker Act Benchguide .1Chapter One: History and Overview of Baker Act .3I.History .3II.Rights of Persons with Mental Illnesses .4III.Voluntary Admissions.6A. In General .6B. Selected Definitions .6C. Criteria for Voluntary Admissions .7D. Voluntary Admission — Exclusions .7E. Consent to Admission/Treatment .8F. Transfer to Voluntary Status .8G. Transfer to Involuntary Status .9H. Discharge of Persons on Voluntary Status .9IV.Involuntary Examinations – § 394.463, Fla. Stat.; Fla. Admin. Code R.65E-5.280 .10A. Criteria .10B. Initiation of Involuntary Examination .10C. Definitions of Professionals .12D. Selected Procedures for Involuntary Examinations .13E. Initial Mandatory Examination .14F. Release from Involuntary Examination .14G. Notice of Discharge or Release .15H. Reporting to DCF .15I. Transportation of Persons for Involuntary Examination.16J. Persons with Criminal Charges .18K. Weapons Prohibited on Grounds of Hospital Providing MentalHealth Services .18L. Paperwork Required by the Baker Act.19M. Involuntary Placement.19Baker Act Benchguide November 2016iv

N.O.P.Q.R.S.V.VI.VII.VIII.IX.Continued Involuntary Services .23Discharge of Persons on Involuntary Status .24Transfers .24Baker Act Oversight .25Immunity .25Statute and Rule Matrix — Florida Mental Health Act(Baker Act) .27Maps of Administrative Entities Regions .30A. Judicial Circuits and DCF Regions .30B. DCF Regions and Managing Entities .31C. Managing Entities.32Psychiatric Diagnoses and Treatment/Medication .33A. Diagnoses .33B. Psychotherapeutic Medication .341. Generally .352. Antipsychotic Medications .363. Medications for Mood Disorders .384. Anti-Anxiety Medications.41C. Importance of Medication Compliance .41D. Electroconvulsive Therapy (ECT) .42Adult Mental Health System of Services and Support .43Children’s Mental Health System of Services and Support .52Glossary of Common Definitions, Acronyms, and Abbreviations .55Chapter Two: Express and Informed Consent .63I.Guardian Advocates and Other Substitute Decision Makers .63II.Documentation of Competence to Provide Express and InformedConsent .64III.Persons Determined Incompetent to Consent to Treatment .65IV.Persons Adjudicated Incapacitated .66V.Persons with Health Care Surrogates/Proxies .67VI.Summary of Consent Issues .68VII.Bench Card on Substitute Decision-Making .70VIII. Frequently Asked Questions .72A. Competence to Consent .72B. Incompetence to Consent .75C. Disclosure .77D. Consent to Treatment .78E. Initiation of Psychiatric Treatment .80F. Mental Health Advance Directives .81Baker Act Benchguide November 2016v

IX.G. Electroconvulsive Therapy .83H. Consent to Medical Treatment .85I. Guardian Advocates and Other Substitute Decision Makers .871. In General .872. Court-Appointed Guardians (Ch. 744, Fla. Stat.) .883. Guardian Advocates .924. Health Care Surrogates/Proxies .1005. Powers of Attorney .105Selected Model Baker Act Forms for Informed Consent and Use ofSubstitute Decision Makers .106A. Petition for Adjudication of Incompetence to Consent to Treatmentand Appointment of a Guardian Advocate.107B. Order Appointing Guardian Advocate .109C. Petition Requesting Court Approval for Guardian Advocate toConsent to Extraordinary Treatment .110D. Order Authorizing Guardian Advocate to Consent to ExtraordinaryTreatment.111E. Authorization for Electroconvulsive Treatment.112F. Notification to Court of Person’s Competence to Consent toTreatment and Discharge of Guardian Advocate .113G. Findings and Recommended Order Restoring Person’sCompetence to Consent to Treatment and Discharging theGuardian Advocate .114Chapter Three: Admission and Treatment for Minors .115I.Cautionary Note .115II.Minority/Non-Age.115A. Definition.115B. Removal of Disabilities of Non-Age.116C. Rights, Privileges, and Obligations of Persons 18 Years of Ageor Older.117D. Consent to Treatment .117III.Consent for Admission to a Mental Health Facility .119A. Admission .119B. Hospitals .119C. Children’s Crisis Stabilization Units .120IV.Consent to Psychiatric Treatment .121A. Inpatient Treatment .121B. Residential Treatment Centers .121C. Outpatient Crisis Intervention Services .121Baker Act Benchguide November 2016vi

V.VI.VII.VIII.IX.X.Substance Abuse (Marchman Act) Admission and Treatment .122A. In General .122B. Criteria .122C. Initiation .123D. Disposition.123E. Parental Participation in Treatment .124F. Release of Information .124G. Parental Participation/Payment .124Consent for General Medical Care and Treatment .124A. Power to Consent.124B. Emergency Care .125Emergency Care of Youth in DCF or DJJ Custody .126Delinquent Youth .127Dependent Youth .128A. Medical, Psychiatric, and Psychological Examination andTreatment of Children in DCF Custody .128B. Psychotropic Medications for Children in DCF Custody .130C. Examination, Treatment, and Placement of Children in DCFCustody .134Frequently Asked Questions .135A. Minority Defined .135B. Informed Consent and Consent to Treatment .136C. Voluntary Admissions .138D. Involuntary Examinations .139Chapter Four: Involuntary Examination .142I.In General .142II.Criteria.142III.Initiation .143IV.Definitions of Mental Health Professionals .144V.Initial Mandatory Involuntary Examination .146VI.Release .146VII.Notice of Discharge or Release.147VIII. Involuntary Examination Flowchart .148IX.Frequently Asked Questions .150A. Criteria and Eligibility .150B. Initiation in General.156C. Initiation by Courts.158D. Transport .164E. Examination and Release .165Baker Act Benchguide November 2016vii

X.Selected Baker Act Forms for Involuntary Examination.166A. Petition and Affidavit Seeking Ex Parte Order RequiringInvoluntary Examination .166B. Ex Parte Order for Involuntary Examination .171Chapter Five: Involuntary Inpatient Placement .172I.In General .172II.Criteria.172III.Initiation of Involuntary Inpatient Placement .173IV.Petition for Involuntary Inpatient Placement .173V.Appointment of Counsel .173VI.Continuance of Hearing .174VII.Independent Expert Examination .174VIII. Hearing on Involuntary Inpatient Placement .174IX.Admission to a State Treatment Facility .176X.Release of Persons on Involuntary Status .177XI.Return of Persons .177XII.Procedure for Continued Involuntary Inpatient Placement .178XIII. Involuntary Inpatient Placement Flowchart .181XIV. Continued Involuntary Inpatient Placement Flowchart .182XV.Involuntary Inpatient Placement Hearing Colloquy .183A. Introductory Remarks .183B. Preliminary Matters .185C. Testimony and Evidence .185D. Closing Arguments .188E. Findings and Order of Court .1881. Preliminary Contents .1882. When Baker Act Criteria Have Been Met .1893. When Baker Act Criteria Have Not Been Met .1914. Sample Provisions for Short-Term Placement WithReservation of Jurisdiction to Extend or Modify.191XVI. Frequently Asked Questions .192A. Criteria and Eligibility .192B. Initiation and Filing of Involuntary Inpatient Placement .194C. Public Defender and State Attorney .202D. Independent Expert Examination .213E. Continuances .214F. Transfers for Medical Care .216G. Waiver of Hearings and Waiver of Patient Presence at Hearing .216H. Conversion between Voluntary and Involuntary Status .218Baker Act Benchguide November 2016viii

I. Witnesses .219J. Hearings.222K. Involuntary Placement Orders .225L. Continued Involuntary Inpatient Placement.231M. Baker Act Forms and Service of Process .232N. Transfers of Persons under Involuntary Placement .233O. State Treatment Facilities and Transfer Evaluations .234P. Convalescent Status .236XVII. Selected Sample Baker Act Forms for Involuntary InpatientPlacement .238A. Petition for Involuntary Inpatient Placement .238B. Notice of Petition for Involuntary Placement .241C. Application for Appointment of Independent Expert Examiner .242D. Notice to Court – Request for Continuance of InvoluntaryPlacement Hearing .243E. Order Requiring Involuntary Assessment and Stabilization forSubstance Abuse and for Baker Act Discharge of Person .244F. Order Requiring Evaluation For Involuntary OutpatientPlacement .245G. Notification to Court of Withdrawal of Petition for Hearing onInvoluntary Inpatient or Involuntary Outpatient Placement .246H. Order for Involuntary Inpatient Placement .247I. Petition Requesting Authorization for Continued InvoluntaryInpatient Placement .248J. Notice of Petition for Continued Involuntary InpatientPlacement .250K. Order for Continued Involuntary Inpatient Placement or forRelease.251Chapter Six: Involuntary Outpatient Services .252I.Introduction .252II.Rights of Persons.252III.Criteria.252IV.Petition .254V.Service Provider .255VI.Treatment Plan .256VII.County of Filing .257VIII. Notice of Petition .258IX.Hearing .259X.Testimony .260Baker Act Benchguide November 2016ix