It’s a new year, and so we have some new – and very confusing – changes to the Baker Act and Marchman Act to discuss.
For those who have never interacted with the mental health legal apparatus in Florida, the Baker Act (Chapter 394, Florida Statutes) is a collection of laws in Florida that govern mental health evaluation and treatment. Most people use the term “Baker Act” to refer to a 72-hour involuntary examination – likely because this is what most people encounter in Florida1 – but it can refer to voluntary examinations, as well as involuntary and voluntary treatment beyond the examination window. Treatment under the Baker Act can be further broken down into inpatient or outpatient, and one of the more recent developments is a trend toward encouraging more involuntary outpatient. This is reflected in the recent statutory changes, as I’ll discuss a bit more below.
The sister legislation addressing substance abuse treatment is called the Marchman Act (Chapter 397, Florida Statutes). Like the Baker Act, the Marchman Act can refer to both voluntary and involuntary examinations and treatment for substance abuse, as well as to inpatient and outpatient services. There are some key operational differences in how the laws work, but the primary difference is that Marchman Act is for chemical dependency and Baker Act is for psychiatric treatment. (For people with co-occurring mental health and substance use disorders, both laws might apply, but only one can be used at any given time – meaning a person may be under a Baker Act, or a Marchman Act, but not both at once. Email the office if you have questions about which law might be most applicable in your situation: info@parrislaw.org.)
Now on to some of the changes. I will bullet them below to avoid making this post too complicated, but before I do I should note that a major theme of legislative changes in the past few years is to add ever-expanding duties on the hospital or provider when it comes to discharge planning. The legislature seems to believe that comprehensive discharge planning is the key to avoiding re-admissions. In my experience, those discharge plans tend to end up right in the trash once the patient is freed from an involuntary stay. And a several-day examination window is rarely adequate time for the facility to properly evaluate the patient’s problems, let alone create a worthwhile and useful continuity of care plan. But I digress.
The major changes, and ones that look like they might create huge headaches, are as follows:
- S. 394.463 now states that a 72-hour examination begins when a patient arrives to a receiving facility. This new provision is at direct odds with existing provisions relating to patients who are taken to a non-receiving facility hospital for treatment of an emergency medical condition, prior to transfer to a receiving facility.
- Following a Baker Act examination, a facility may petition for involuntary inpatient services, involuntary outpatient services, or both – for a total of up to 6 months. (Keep in mind that regardless of how long a treatment order is, it is an upper limit, and the patient must be discharged from involuntary treatment as soon as the criteria are no longer met.)
- The authority of a psychiatric nurse practitioner is expanded to allow them to write the required 2nd opinion for a petition for involuntary treatment.
- Emancipated minors (individuals ages 16 or 17 who have been married or emancipated by a court) are granted the express authority to voluntarily check themselves into a receiving facility, but the legislature failed to also give them authority to consent to their own treatment within the facility. This will likely mean that emancipated patients aged 16 or 17 will need to be admitted solely on an involuntary basis.
- For individuals who have been admitted to a Baker Act facility three or more times within the previous 12 months, this fact may be alleged in a petition for involuntary treatment as grounds to support the requested involuntary treatment.
- The power of law enforcement officers to initiate an involuntary Baker Act is changed from mandatory to discretionary. In other words, if an LEO has reason to believe that someone meets criteria for an involuntary psychiatric examination, the statute no longer says that they “shall” initiate the exam but rather that they “may” initiate the exam. (This may have a significant impact on Fourth Amendment jurisprudence, as previous cases have limited officer liability for discovering illegal items during the course of a welfare check due to the mandatory language in the statute, which seems to compel warrantless entry of homes and vehicles where the officer believes involuntary criteria are met.)
This is hardly a comprehensive list, and I’ll delve into the specifics more when case law emerges interpreting the new provisions (or when the legislature decides to go back and fix their mistakes!). For now this should provide a good overview of what’s new, and what to expect, in the coming year of Florida mental health law implementation and enforcement.
- While every state has some mechanism to compel involuntary psychiatric examinations of its residents (and visitors!), Florida uses its law most frequently and aggressively. Compare Florida’s rate of involuntary psychiatric examinations to 24 others here: Incidences of Involuntary Psychiatric Detentions in 25 U.S. States (Psychiatric Services 2020), Gi Lee, M.S.W. and David Cohen, M.S.W., Ph.D.. ↩︎
