LEGACY
3968 users shared this document! click
pdfIs the state responsible for paying the bill when a person is admitted for
involuntary examination under the Baker Act?
The Legislature appropriates to DCF a specified amount of funding for the Baker Act. In
addition, the counties are responsible to match these state dollars with a 25% share.
These funds are allocated to the various DCF districts/regions of the state and
contracted to public receiving facilities. The public receiving facilities generally serve
persons who are uninsured. Public receiving facilities are legally obligated to charge
persons on a sliding fee schedule according to their ability to pay.
However, there is no funding through DCF for persons served in private receiving
facilities. Most private receiving facilities (general hospitals) receive funds for indigent
care that help to offset the cost of uncompensated services. These hospitals can, if
they choose, reduce or eliminate outstanding fees on a case-by-case basis. While
hospitals are required under the federal EMTALA act to provide a medical screening
and stabilization to any person who seeks (or for whom care is sought), there is no
prohibition to charging the person for the cost of that care. For this reason, it is
encouraged that persons without insurance be transferred to a public receiving facility
for subsequent services.
Can a hospital operate a psychiatric unit for persons on voluntary status without
being designated as a receiving facility?
Persons who either refuse voluntary placement or those who are unable to determine
that voluntary examination is needed must be placed on involuntary status. This
includes any person who is not making "well-reasoned, willful and knowing decisions
about their mental health and medical conditions" at any time during their stay. In these
situations, the person's compliance or "implied" consent would not be sufficient to justify
voluntary status -- express and informed consent is a much more rigorous standard. A
physician would have to certify in the clinical record of each person you have on your
unit (within 24 hours of admission) that they are able to make such well-reasoned
decisions and there shouldn't be any documentation in the chart made by the physician
or other staff to indicate otherwise. Few insurers would reimburse a provider for
inpatient care if the person was functioning at such a high level. Chapter 395, FS
requires that all hospitals, even those not designated as receiving facilities, must be fully
compliant with the rights assured to persons under the Baker Act.
What is the responsibility of public receiving facilities to assist with locating an
appropriate facility for a person on involuntary status within the 12 hour-post
medical stabilization time frame? What is their responsibility is in assisting a
person who has insurance but is not able to be transferred to a private facility
due to over-crowding?
1 A non-receiving facility hospital is obligated to transfer a person on involuntary status to
a designated receiving facility (capable of managing the person's medical condition)
within 12 hours after a physician has determined that an emergency medical condition
is stabilized. Once a transfer has been determined to be appropriate (an array of
conditions) under the federal EMTALA law, the person can be sent to the most
appropriate facility, even considering the person's source of payment.
While it is preferable for a public receiving facility to reserve its bed space to the extent
possible to persons without ability to pay, there is no prohibition to a CSU accepting an
insured person if no other local facility has available beds. In fact, the law permits up to
20% of days can be provided to financially ineligible persons.
Assuming you have found that all beds are full, leaving you with no place to transfer the
person for psychiatric examination, you should seek the public receiving facilitys
assistance in trying to find a placement for the person. Chapter 65E-5.351(5), F.A.C.
governing Minimum Standards for Designation of Receiving Facilities, states that "A
public receiving facility that is affiliated with a publicly funded community mental health
center shall ensure the centralized provision and coordination of acute care services for
eligible individuals with an acute mental illness".
You should also contact the DCF district office and AHCA to seek assistance as a way
to expedite the transfer and to document your good faith efforts to meet the
requirements of the law. However, if all local designated facilities are at capacity, the
person may need to be transferred to another facility outside of your district.
If any local hospital with psychiatric capability ever goes over census by placing persons
on other units (with sitters or other means), EMTALA would require that they also
accept these persons, even if it would result in being over-census.
If a person on involuntary status has severe physical problems, can a local non-
receiving facility hospital keep the person pending hearing and transfer directly
to the State Hospital?
As long as the receiving facility administrator (or designee) files the petition based on
two expert evaluators and one of those two evaluators is able to be present to testify at
the persons hearing on involuntary placement, this should be acceptable. Chapter
394.4599(2)(c)4, FS states that the person, guardian or representative, or the
administrator may apply for a change of venue for the convenience of the parties or
witnesses or because of the condition of the person. This is conditional on the court
being willing to conduct the hearing at the hospital where the person is being treated.
The transfer of the person to the state hospital should be expedited as soon after the
signed court order is received so psychiatric treatment can begin at the earliest possible
time.
2 Discharge Planning
What are Baker Act receiving facilities required to do in preparing a person for
discharge?
Baker Act receiving facilities are required, for all persons being discharged, to consider
the persons transportation resources; access to stable housing; access to medications
and access to an aftercare appointment. They are required to give persons education
and written information about their illness and their psychotropic medications including
other prescribed and over-the-counter medications, the common side-effects of any
medications prescribed and any adverse clinically significant drug-to-drug interactions
common between that medication and other commonly available prescribed and over-
the-counter medications, as well as information about and referral to any community-
based peer support services in the community; information about and referral to any
needed community resources; and referral to substance abuse treatment programs,
trauma or abuse recovery focused programs, or other self-help groups, if indicated by
assessments.
The Baker Act rules require that a receiving facility provide medications,
prescriptions, or a combination of the two for a period of up to 21 days or until
the first scheduled aftercare appointment. Can a receiving facility develop a
protocol assessing peoples resources/ability to pay before we buy medications?
Can a receiving facility decline to provide the medications if the person has a
history of not taking the medications, throwing them away, or selling them? What
if we cant get a timely aftercare appointment within 7 days after discharge?
The rule was specifically designed to require provision of either prescriptions,
medications, or a combination thereof. This means a facility can provide the
medications for the full 21 day period (unless a follow-up appointment can be arranged
earlier), provide a prescription(s) for the medication, or give a limited amount of the
medication and a prescription for the rest. If the persons physician is averse to giving
the meds or a prescription to the person because of safety reasons and there is no one
else to whom the meds or prescriptions can be entrusted, this should be fully justified in
the persons clinical record. If staff has confirmed that the person has ever sold such
meds or thrown them away (not just as part of their illness), this should be documented
in the clinical record. A person who has public or private insurance should be expected
to pay for his or her own medications and only the issuance of a prescription would be
appropriate.
Some hospitals or doctors are willing to provide medication samples to hold the person
over until an appointment. Pharmaceutical company scholarship program could cover
this on a short-term basis if the county or city doesnt have any type of indigent care
fund that could cover part of the cost.
Receiving facilities should discuss the issue of aftercare appointments with the DCF
district staff to see how such appointments for persons being released from psychiatric 3 inpatient programs and from jails could get expedited attention. Most people who need
psychotropic medications and dont take them will quickly be back at the hospital, in jail,
or in life threatening circumstances.
4 Rights of Persons in Receiving and Treatment Facilities
Does a person or someone on his or her behalf have the right to request a change
of physicians?
The DCF General Counsels Office, verbally advised that the relationship between
doctor and patient is a contract and that if one of the two parties wishes to terminate or
change the conditions of the contract, they may do so. If a person wants to terminate
the relationship with his or her psychiatrist and retain another psychiatrist instead, this
should be allowed. unless there is some very unusual reason for disapproving it such as
daily requests for change of physician, drug seeking behavior, etc. In such refusal, it
should be referred to the hospital's medical review process.
Does a court appointed guardian have the power to restrict a persons visitation
rights?
No. Chapter 394.459, FS governs rights of persons in receiving facilities and all
hospitals in the state of Florida. Further, the statute is clearly supported by the Handley
v. Dennis case out of the 1 st DCA which states that the rights of the person protected by the Baker Act trumps the rights of the guardian under Chapter 744. For instance, if the
person wishes to have visits by family members or others, he or she should be allowed
to do so. If staff believes that this individual has abused, neglected or exploited the
person, a report to the abuse line should be made. Otherwise, the preferences of the
person should prevail. Further, if the guardian is not acting in the best interest of the
ward, this should reported to the court. This may be especially important if it is a
temporary emergency guardianship, where the court may decide to appoint someone
else as guardian at the time when the hearing takes place, based on such information.
Any restriction of a persons right to communication or to access ones own record by a
facility can only be done for up to 7 days after documentation of the reasons for the
restriction are placed in the chart. These restrictions can be renewed if the conditions
causing the restrictions continue. A written notice of such restrictions must be
immediately provided to the person, his/her attorney, guardian, guardian advocate, or
representative.
When I visit a friend or family member at a Baker Act facility, how do I know what
the persons rights are and what rules the facility has?
Facilities are required to post the rights of persons in an open area, close to the
telephones available for their use. Each person admitted to a facility is also given
written and verbal information about their rights at the time of their admission.
Information about the Florida Abuse Hotline, the Local Advocacy Council, and the
Advocacy Center for Persons with Disabilities must also be posted. A schedule of daily
activities also must be posted for review. Each facility is required to establish
reasonable rules governing visitors, visiting hours, and the use of telephones. Check
with the social worker or nurse on the unit if other questions arise. 5 6 Voluntary Admissions
If a person is not verbally objecting to admission, can they be admitted on
voluntary status?
Not necessarily. If the person is an adult and is believed by the admission staff to be
capable of providing well-reasoned, willful and knowing decisions about their health
care, he or she may be admitted on voluntary status. Within 24 hours, a physician must
confirm this capacity and certify it in the clinical record. However, regardless of the
persons willingness to be admitted, they must be placed on involuntary status if he or
she appear to be unable to make well-reasoned decisions.
How does a facility document in the clinical record that a person is both willing
and able to provide express and informed consent to admission and to
treatment?
Completion and proper use of the Voluntary Admission form (3040) and the Certification
of Competence form (3104) is the best way to ensure compliance with the law. These
forms track the law/rules and will provide required documentation, where notes in the
chart may be inadequate or overlooked.
What happens if a facility finds out that a person is being forced by family or
others to be in a facility on a voluntary basis?
The person must be released or a petition for involuntary placement filed by the facility
administrator. The Baker Act states that the persons admission on voluntary status and
his or her consent to treatment must not be a result of force, fraud, deceit, duress, or
other form of constraint or coercion.
Can a guardian appointed by a court or a health care surrogate/proxy have his or
her ward/principal admitted to a psychiatric facility on voluntary status?
NO. The Baker Act specifically prohibits a guardian appointed by the court to act for a
person found to be incapacitated in some way from admitting the person on voluntary
status but the guardian does have the authority to make treatment decisions, once the
person is admitted on an involuntary status. The Baker Act also specifically prohibits a
health care surrogate/proxy from consenting to treatment of a person held on a
voluntary status. The person must be on involuntary status, in which case the
surrogate/proxy may provide consent until a guardian advocate is appointed by the
court.
Can a health care surrogate or proxy admit a person on a voluntary basis?
No. Even if the person (principal) has consented in an advance directive for the
surrogate to have this authority, the Baker Act prohibits the surrogate from providing 7 consent for such a persons treatment. In such circumstances, the person must be
discharged from the facility or transferred to involuntary status.
Can the required Certification of a Persons Competence to Provide Express and
Informed Consent be performed by a psychologist, an ARNP, or a physicians
assistant?
NO. The Baker Act requires that this be performed by a physician. It cannot be
delegated to other personnel.
What happens if the clinical status of a person on voluntary status deteriorates
and the chart documents the person is no longer able to give well-reasoned
decision-making regarding his/her treatment?
The person must be transferred to involuntary status and a petition filed for the
appointment of a guardian advocate.
How long can a facility hold a person on voluntary status who has requested
discharged?
The facility has to discharge any person within 24 hours after the person requests
discharge unless the person freely revokes the request and is able to give well-
reasoned decision-making about the stay in the hospital and psychiatric treatment. If
the person is at a state hospital, the period can be extended to three working days.
Can a person be transferred from involuntary to voluntary status, after arrival at a
receiving facility?
YES, but only after the person has received the mandatory initial examination by a
physician or a clinical psychologist and a physician has certified that the person is
competent to provide well-reasoned decision-making about his or her admission and
treatment, the person can be transferred to voluntary status.
Can a person be transferred from voluntary to involuntary status, after arrival at a
receiving facility?
YES. At any time a person meets the criteria for involuntary examination or placement,
he or she must be converted to involuntary status to ensure that due process rights are
protected.
Is it illegal for a CSU to refuse to accept a person on voluntary status prior to
screening? Perhaps the CSU is full so the family member that transported the
person is told to go to the next nearest receiving facility or the person has
insurance that is accepted at another hospital?
8 There is no requirement in the Baker Act for a CSU to accept voluntary admissions.
There is a possibility of liability to the agency if the person does something dangerous to
self or others subsequent to the refusal. Staff would generally want to at least interview
the person and anyone with them to determine if they may be eligible for involuntary
examination under the Baker Act, but this is not required. A person meeting voluntary
criteria is presumed to be able to go anywhere by any means to seek the care they
need.
However, a hospital would be required to perform the screening required by the federal
EMTALA law, unless the person has refused the screening. This could be done only
after qualified staff confirmed that the person was capable of making an informed
consent about the refusal.
9 Involuntary Examinations
Can a screener at the admissions office of a hospital or crisis stabilization unit
change a persons legal status from involuntary to voluntary?
NO. Once an involuntary examination been initiated by a court, law enforcement officer,
or mental health professional, the persons legal status cannot be changed until after a
physician or clinical psychologist has performed the initial mandatory involuntary
examination, has certified the person can give express and informed consent, and the
person has made application for voluntary admission.
The Baker Act prohibits the transfer of a person for whom an involuntary
examination has been initiated who is charged with a crime from being
transferred to voluntary status. If he/she meets involuntary placement criteria, a
BA 32 can be filed with the court. If he/she doesn't meet involuntary placement
criteria, is our only option to contact law enforcement to take custody of the
person?
Yes. Only persons without criminal charges and those who can make well reasoned,
willful, and knowing decisions about their medical and mental health care are eligible to
become voluntary. This presumes the person also wants to remain in the facility and a
physician has certified the person's capacity to make such well-reasoned decision-
making.
How is self-neglect defined as one of the criteria for involuntary examination?
The Baker Act doesnt actually define self-neglect but it does state that the person is
likely to suffer a real and present threat of substantial harm to his or her well-being that
isnt avoidable by intervention from family, friends, or other services. The self-neglect
must be a result of mental illness and could take the form of refusing necessary
prescription medications, refusing to eat or drink, inability to sleep, placing oneself in
imminently dangerous situations, or other high risk behaviors. It would not include
refusal of medical intervention by a person with the capacity to make such decisions.
Can a person be taken for involuntary examination to a facility that is not the
nearest at the request of a person, family, mental health professional or the order
of a court?
NO. A person must be taken by law enforcement to the nearest designated receiving
facility rather than to the preferred facility. After arrival at the facility, the person or legal
representative can request a transfer to an alternate facility.
Does an authorized person have a duty to initiate an involuntary examination?
A judge and a mental health professional do not have a statutory duty to initiate the
examination when they have reason to believe the criteria have been met. However, 10 they may have a responsibility under their code of ethics or under case law. On the
other hand, a law enforcement officer has no discretion as to initiating an involuntary
examination if he/she has reason to believe the criteria is met.
Does an authorized mental health professional have to actually observe the
criteria for an involuntary examination prior to initiating the examination?
YES. The Baker Act requires that the specified professional find that the person meets
the criteria for involuntary status based on their own examination and they must
describe their observations upon which their conclusion is based. However, a law
enforcement officer only needs to describe the circumstances under which the person
was taken into custody.
What are the first things a receiving facility must do when a person is presented
for an involuntary examination?
The person needs to be examined as quickly as possible by a physician or clinical
psychologist to determine if he/she meets the criteria for involuntary placement,
including all six required elements of an initial mandatory involuntary examination. If
not, the person must be released even if it is less than the maximum period of 72 hours
and even if the person could benefit from treatment (unless the person is willing and
competent to provide consent for voluntary admission and treatment). The person must
have a physical examination within 24 hours and must be assessed by a physician as to
his/her capacity to provide informed consent to his/her own treatment.
Why do receiving facilities have to send copies of the involuntary examination
initiation forms and cover sheet initiating involuntary examinations to the Agency
for Health Care Administration?
AHCA, through the University of South Florida, Louis de la Parte Florida Mental Health
Institute, is required by the Florida Legislature to receive these forms (mailed within one
working day after each persons admission). AHCA is required to prepare an annual
report analyzing the data obtained from these documents and submit the report to the
Department of Children and Families and to legislative leaders. No patient identifying
data is included in these reports.
How many involuntary examinations are initiated throughout the state each year?
Over 117,000 examinations were initiated in 2004. This number has increased each
year since this reporting system was initiated in 1996. The increase doesn't necessarily
imply an increase in involuntary examinations, but could be a result of improved
compliance with the law by receiving facilities and those persons initiating involuntary
examinations.
11 Can a person be sent from a nursing home or an assisted living facility to an
emergency room for psychiatric assessment to determine if voluntary or
involuntary examination is warranted?
NO. A person shouldnt be sent to an emergency room unless he/she has a medical
emergency. If the person has a severe psychiatric disorder requiring hospitalization,
facilities licensed under Chapter 400, F.S. must follow the voluntary, involuntary, and
transportation requirements of the Baker Act as a condition of licensure. In such
situations, before sending a resident out for a voluntary examination an assessment by
an independent professional is generally required. Before sending a resident out for an
involuntary examination, the initiation must be performed by an authorized mental
health professional, a judge, or a law enforcement officer.
12 Does a psychiatrist have to have a face-to-face examination of a person before
the person is released from a receiving facility?
NO. The Baker Act only requires that a psychiatrist, clinical psychologist, or physician
in a hospital's emergency department document his/her approval of the persons
release, not perform a face-to-face examination. However, most authorized
professionals would want to personally confirm another persons judgment prior to
extending this approval.
What constitutes the initial mandatory involuntary examination required by the
Florida Administrative Rules for all persons for whom an involuntary examination
is initiated?
A physician or clinical psychologist must do a thorough review of any observations of
the persons recent behavior; review the Transportation to Receiving Facility,
completed by the law enforcement officer and one of the three types of forms initiating
the involuntary examination. The physician or clinical psychologist must also conduct a
brief psychiatric history and a face-to-face examination of the person in a timely manner
to determine if the person meets criteria for release.
Who has to receive a notice of the persons admission to a receiving facility for
involuntary examination?
The Baker Act requires that prompt notice be given to the persons guardian, guardian
advocate, attorney, and representative, unless the person requests that no notification
be made. A notice of the persons admission must be given within one working day to
the Florida Local Advocacy Council, regardless of the persons consent, and should be
in the format requested by the Council (e.g. telephone, fax, mail, e-mail).
Who has to receive a notice of the persons release from a receiving facility after
an involuntary examination?
Notice has to be given to the persons guardian or representative, to any person who
executed a certificate admitting the person to the receiving facility, and to any court that
ordered the persons evaluation.
Does the 72-hour period permitted by law to conduct the involuntary examination
begin when the person is admitted to the receiving facility or does it expire 72
hours after the date and time stated on the BA Certificate and/or medical
clearance form?
The law provides 72 hours for the psychiatric examination to take place. Chapter
394.463(2)(f) states that a patient may not be held in a receiving facility for involuntary
examination longer than 72 hours. This period of time begins at the time of the
persons arrival at the receiving facility and ends 72 hours later, regardless of nights, 13 weekends, or legal holidays. This is clocked from the time of arrival, not the time of
admission, which could be somewhat later.
However, in cases where a person is first taken to a hospital for evaluation or treatment
of an emergency medical condition, chapter 394.463(2)(g) states that the 72-hour
period begins when the person arrives at the hospital and ceases when the attending
physician documents that the person has an emergency medical condition. This
means that the time period is 72 hours plus the period of time in which the physician
documents the person has an emergency medical condition. The period of time while a
person is waiting for the emergency physician to see him/her and the period of time
after medical clearance waiting for transfer is counted against the 72-hour psychiatric
evaluation period.
In no case does the 72-hour period begin at the time the form is signed, unless the
person is already at a hospital or receiving facility. A form may be signed by a private
practice mental health professional on one day but not taken into custody by law
enforcement until several days later. This period between form signing and arrival at
the facility is not counted against the 72 hours.
Does the 72 hours permitted for an involuntary examination include the
weekends? If a person arrives on involuntary status on Friday, when does the 72
hours expire? Should the Petition for Involuntary Placement (BA-32) be initiated
immediately so as not to exceed the 72 hour rule?
The 72-hour period begins when the person arrives at the receiving facility (if the person
had previously been at a hospital for evaluation or treatment of an emergency medical
condition, it would have begun upon the person's arrival at that hospital and stopped
only for the period the physician had documented an emergency medical condition).
The person must be released, transferred to voluntary status (if eligible), or a petition for
involuntary placement filed within the 72-hour period. If a petition is filed, it must be filed
within the 72-hour period unless the 72 hours ends on a weekend or holiday. In those
cases, it must be filed with the court no later than the next working day. For example:
1. If a person arrives at your facility at 10 a.m. on Friday, a petition would have to be filed with the clerk of court by 10 a.m. Monday. 2. If a person arrived at your facility after the court closed on a Friday afternoon, the petition would have to be filed before close of court on Monday afternoon, since the
filing is only delayed when the 72-hour period runs out on weekends and legal
holidays not week nights... 3. If a person arrives at 9 p.m. on Monday, the petition would have to be filed by close of court business on Thursday. 4. If a person arrives on Tuesday at 10 p.m., the petition would not have to be filed until the following Monday, although the BA-32 would need to have been fully completed
by Friday night at 10 p.m. 14
How long can the 72-hour clock for an involuntary examination be stopped for a
medical emergency?
The law is silent as to how long the clock can be stopped for an emergency medical
condition. It is solely a medical determination and documentation of an "emergency
medical condition" as it is defined in federal (EMTALA) and state (chapter 395) laws. It
is not just a matter of providing medical treatment needed by a person, but rather an
"emergency medical condition" that stops the clock -- due to the presence of a condition
that makes concurrent psychiatric examination impossible.
At any point where the involuntary examination can be performed, it should be,
especially if it means the person can be "released" from the Baker Act hold. The Baker
Act can never be used as the basis for giving any medical examination or treatment -- it
provides no such authority. Further, it can't be used solely to hold a person in a medical
facility for medical examination and treatment that the person can't or won't consent to.
The Baker Act involuntary examination provision only provides authority to hold the
person who meets criteria for the Initial Mandatory Involuntary (mental health)
Examination.
Does the time in the ER count as part of the 72 hours allowed for the involuntary
examination? Who has legal custody of a person if he or she is admitted for
involuntary examination to a CSU and is later taken to an ER for medical
treatment?
If an emergency medical condition (as defined in 395.002) is documented by the ED
attending physician, the 72-hour clock stops at that point and doesn't start back up
again until the attending physician documents that the persons medical condition has
stabilized or that an emergency medical condition doesn't exist. This is an "emergency
medical condition", not just any visit to the ED. Any transport time or waiting for transfer
back to the CSU is counted against the 72-hour period.
With regard to the "legal custody" of a person who is a CSU client taken to an ED for
treatment, this situation is governed by EMTALA rather than the Baker Act. Any person
taken to a hospital with an ED must be medically screened by medical staff to determine
if an emergency medical condition exists (federal law includes emergency psychiatric
and emergency substance abuse conditions as emergency medical conditions). If an
emergency condition is found to exist, the person cannot be released or transferred until
stabilized. The only exception is when the person refuses such a medical screening
and stabilization has been documented by medical staff as having the capacity to make
such a refusal -- one would have to presume that a person undergoing an involuntary
examination under the Baker Act would not have this capacity to refuse.
This is not "legal custody", but the responsibility for retaining the person would be that of
the hospital under EMTALA requirements.
15 Is there ever a reason for a non-receiving facility hospital to re-initiate an
involuntary examination under the Baker Act for a person being held for transfer?
No. There should never be one BA-52 placed on top of another one. The 72 hour
period is the maximum that a person can lose their liberty for the purpose of psychiatric
examination -- it is not intended to necessarily give a facility 72 hours in which to
examine the person. This becomes problematic when a transfer from one facility to
another takes place, with the first facility taking a significant chunk of the 72 hours. It is
the reason the statute was changed to require a person to be transferred within 12
hours of the stabilization of an emergency medical condition. This should give plenty of
time for the exam to be completed, and if necessary, a petition filed with the court for
involuntary placement.
Once a person has an involuntary examination under the Baker Act initiated and
the 72-hour exam period expires, can the person be "re-Baker Acted" for a
second time? If so, where does it state that in the Baker Act law? If the person
can be re-Baker Acted, how many times can that occur?
No, the person cannot be re-Baker Acted. It is the person's right not to be held for
longer than 72 hours for involuntary psychiatric examination. This requirement is found
in chapter 394.463(2)(f), FS that states "a patient may not be held in a receiving facility
for involuntary examination longer than 72 hours". Subsection (i) of that same section
states "Within the 72-hour examination period...one of the following actions must be
taken..." These actions include release, conversion to voluntary if competent to consent
and willing, or filing a petition for involuntary placement.
It is essential that the exam take place within 72 hours of the person's arrival at the
facility because a facility would never want to release someone without such an
examination having taken place.
If such a lapse occurs and a person is there for 72 hours who appears to meet the
involuntary placement criteria but a petition hasn't been filed in a timely way, the
facility's attorney and/or risk manager should be consulted. The least damaging
alternative may be to file the petition late and face the wrath of the Public Defender.
Sometimes it is just a question of whether you defend against false imprisonment or
wrongful death.
Does a private receiving facility that specializes in treating persons age 50 and
older have to provide a psychiatric consult to other persons prior to their transfer
to other facilities? Will an emergency departments evaluation for medical
stability sufficient for transfer?
A designated receiving facility is required to "accept" all persons brought by law
enforcement for involuntary examination regardless of age unless a transportation
exception plan has been approved by the Board of County Administrators and DCF.
However, once the hospital has performed all of its responsibilities under EMTALA, it 16 can, with the person's and destination hospital's consent, transfer the person to the
most appropriate facility that can meet his or her needs.
The Baker Act requires that the person receive an Initial Mandatory Involuntary
Examination as soon as possible, but certainly within the 72 hour period allowed. If the
person is going to receive a full psychiatric examination after the transfer, it makes no
sense to also conduct one before the transfer, unless your hospital policies require such
an examination to be done. Remember, if your policy is to conduct such an
examination on paying persons, you would have to conduct the same examination with
the same indicators who is indigent or risk an EMTALA violation.
Our Baker Act receiving facility only treats adults. A minor was sent to us and we
were unable to find a placement for the person within 72 hours. An involuntary
placement wasnt initiated since there was no identified facility that was willing to
receive the minor for treatment and our hospital isnt licensed for minors. Is it
legal to Baker Act the person for another 72 hour assessment? How many times
can this be done?
The law prohibits retaining a person for more than 72 hours in a receiving facility for
involuntary examination. This applies to adults and minors. Since a receiving facility
has a responsibility to perform the examination and either release the minor or file a
petition for involuntary placement on her behalf within the 72 hour period.
It would never be appropriate to initiate a new involuntary examination for someone who
had already been at a receiving facility for 72-hours. It is the right of the person not to
be held for more than 72 hours for involuntary psychiatric examination -- not the right of
the facility to have 72 hours in which to examine the person.
It would have been appropriate in this situation to have had a petition for involuntary
inpatient placement filed with the court within the 72 hour period, based on the opinions
of the two psychiatrists, while seeking out DCF assistance in finding an appropriate
receiving facility that is licensed to handle minors.
Communities should consider a Transportation Exception Plan to keep minors from
being brought to a hospital that doesnt have licensed pediatric beds by law
enforcement, unless for medical emergencies. This might reduce the frequency of such
events occurring.
If a person on involuntary status is brought to an ER of a non-receiving facility
with a medical condition and is admitted to the hospital as an inpatient to treat
the medical condition, can the admitting physician determine if the person
continues to meet criteria for involuntary placement?
Yes. Chapter 394.463(2)(f) and (g), Florida Statutes governs this issue. The law
requires that when a person for whom an involuntary examination has been initiated
who is being evaluated or treated at a hospital for an emergency medical condition 17 specified in s.395.002 must be examined by a receiving facility within 72 hours. The 72-
hour period begins when the person arrives at the hospital and ceases when the
attending physician documents that the person has an emergency medical condition. If
the person is examined at a hospital providing emergency medical services by a
professional qualified to perform an involuntary examination (a physician or a
psychologist -- a psychiatrist is not required) and if found as a result of that examination
not to meet the criteria for involuntary inpatient or involuntary outpatient placement, the
person may be offered voluntary placement, if appropriate, or released directly from the
hospital providing emergency medical services. However, if the attending physician
believes that the criteria for involuntary inpatient or involuntary outpatient placement are
met, the person should not be transferred to voluntary status or released; instead the
physician should initiate a transfer of the person to a designated receiving facility.
A person has been admitted to a receiving facility nearly every two weeks but
doesnt follow up on treatment recommendations and is being manipulative of the
system. The treatment team believes it is therapeutically inappropriate to keep
readmitting him because this is enabling his behavior. If he doesnt follow up on
treatment recommendations, can the facility choose to not readmit him under the
current laws?
No. The Baker Act wouldn't permit you to deny services based upon a person's past
history of non-compliance or manipulation. Once a judge, law enforcement officer, or
authorized mental health professional has initiated an involuntary examination, such
examination must be conducted at a receiving facility. However, the law/rules don't
require you to admit the person -- just perform and document the Mandatory Initial
Involuntary Examination by a physician or a psychologist and approval of the person's
release by a psychiatrist or psychologist. If the mental health professional determines
the man doesn't meet the criteria for involuntary placement, he should be released as
soon as possible -- that may mean even before a formal admission takes place.
If a Certificate of a Professional Initiating Involuntary Examination reflects a
diagnosis was substance abuse and supporting criteria was consistent with
substance abuse impairment and no indication of a DSM mental illness diagnosis
or indication that the person was suicidal or homicidal, should this person be
admitted to a Baker Act receiving facility? Should our psychiatrist re-write the
BA52 with a psychiatric diagnosis and supporting criteria?
The physician who initiated the involuntary examination may need some training in the
legal definition of mental illness; the only definition that applies under the Baker Act.
That definition is found in chapter 394.455(18), FS:
"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. For the purposes of this part, the
term does not include retardation or developmental disability as defined in chapter 393, 18 intoxication, or conditions manifested only by antisocial behavior or substance abuse
impairment.
The person should have had an involuntary admission initiated instead under the
emergency admission provisions of the Florida Marchman Act instead of the Baker Act.
The BA-52 shouldnt be rewritten since you are a receiving facility designated with the
power to hold a person under the Baker Act for involuntary examination. A physician or
psychologist must examine the person as soon as possible after the persons arrival
(could be done prior to admission), but certainly within the 72 hours permitted by law. If
the person meets the criteria for involuntary placement, based on the psychiatrists
examination, you would document this as the 1 st opinion for a petition this would document the appropriateness of the person remaining in your facility.
If the person is found not to meet the criteria for involuntary inpatient placement or
involuntary outpatient placement, the person must be released, unless the person
meets the criteria for voluntary admission, including the definition of mental illness found
above and is competent to provide express and informed consent to admission and to
treatment.
19 Involuntary Inpatient Placement
What is the most important difference between the criteria for involuntary
examination and involuntary placement?
The Baker Act requires that there be clear and convincing evidence that the criteria is
met for placement, rather than reason to believe by one of the specified persons
authorized to initiate the examination. Further, the criteria for placement requires that
all less restrictive treatment alternatives which would offer an opportunity for
improvement of the persons condition have been judged to be inappropriate.
Can the Public Defender and State Attorney access the clinical record?
The Public Defender can have access to the clinical record, the person, and the staff in
preparing for the involuntary placement hearing. The law doesnt expressly permit this
same access to the State Attorney prior to a hearing in involuntary inpatient placement.
In some circuits, the State Attorney has access, while not in others. In any case, the
clinical record is always available at the time of the hearing and is, at that time, available
to the State Attorney. The Florida Supreme Court Commission on Fairness has
recommended that the access to clinical records by the State Attorney in preparation for
the hearing be clarified.
What is the responsibility of the Public Defender to represent the clients wishes
vs. the best interest of the client and the community?
The First District Court of Appeals found that the Public Defender has a legal and
professional duty to the patient as a client. The Public Defender serves as an
independent advocate for the patient, not as a neutral party charged with the
responsibility of determining the best interests of the patient or the needs of society. If
the patient wishes to be released or transferred and if there is a basis for that request,
the Public Defender has a duty to advocate the cause of the patient.
What is the role of the State Attorney in an involuntary placement hearing?
The State Attorneys role is to represent the state, rather than the petitioning facility, as
the real party in interest in the proceeding. The Florida Supreme Court Commission on
Fairness states each state attorney should place a high priority on involuntary
placement proceedings and properly prepare the cases on behalf of the state. Assistant
state attorneys representing the state in involuntary placement proceedings must be
bound to the same legal and ethical obligations as they do prosecuting other cases.
The Commission also stated that the state attorneys office should independently
evaluate and confirm the allegations set forth in the petition for involuntary placement. If
the information is found to be correct, the state attorney should vigorously prosecute the
petition. If the allegations are not substantiated, the state attorney should withdraw the
petition. The Commission further states the state attorneys office must be represented
at and actively participate in every hearing. If a representative of the state attorneys 20 office is not present at the hearing, the Commission urges the court to halt the
proceeding while the state attorney is summoned.
Can the receiving facility or a doctor testifying at an involuntary placement
hearing request a continuance?
NO. Only the person is entitled, with the concurrence of counsel, to request a
continuance. The Florida Supreme Court Commission on Fairness urges courts, when
considering a motion for continuance, to conduct a hearing and make a finding as to the
capacity of the person to consent to treatment if there is a pending request. If the court
finds that the capacity to consent to treatment is lacking, a guardian advocate should be
appointed at the time the involuntary placement hearing is continued.
Is the Circuit Court required to use the model Baker Act form developed by the
Department of Children and Families?
NO. Separation of powers between each branch of government ensures that the
executive branch cant compel the judicial branch to a specific action. However, the
Florida Supreme Court Commission on Fairness recommended that each judicial circuit
should review and consider adapting and adopting the model forms prepared by DCF.
Can the involuntary inpatient placement hearing be waived?
NO. While the hearing cannot be waived, the persons attendance at the hearing can
be waived if it is consistent with the best interests of the person and the persons
counsel does not object, the court can waive the persons presence from all or any part
of the hearing.
Who is eligible for an independent expert examination?
Any person for whom a petition for involuntary placement has been filed has the right to
request an examination by an independent expert. If the person cant afford to pay for
the examination, the court is required to provide one. The independent experts report
is confidential and no one but the persons attorney will see the results unless the expert
is called as a witness for the person at the hearing.
What are the required elements of an involuntary placement hearing?
To determine if there is clear and convincing evidence that the person meets all criteria
for involuntary placement and to consider testimony and evidence regarding the
persons competence to consent to treatment. If the court finds the person is
incompetent to consent to treatment, it is required to appoint a guardian advocate.
Does an order for involuntary placement need to be for six-months?
21 NO. The maximum period for which a person can be ordered for involuntary placement
is six-months. However, most courts order the period of placement to be the length of
time it is expected to take to stabilize the person.
Does a facility have the discretion to release a person from an order for
involuntary placement without the consent of the court?
YES. The administrator has the duty to discharge a person at any time the person no
longer meets the criteria for involuntary placement, unless the person has transferred to
voluntary status.
If a psychiatrist who is asked to do a second opinion on a petition for involuntary
placement did not agree, our facility would ask another psychiatrist. If that
psychiatrist also didnt agree, would our only recourse be to discharge the
person?
Yes. If there isn't a psychologist or a second psychiatrist in agreement with the 1st
opinion, the person would have to be released within 72 hours, unless the person
agreed to a voluntary status and was found to be competent to provide express and
informed consent. There is no prohibition to seeking other psychologists or
psychiatrists to provide a second opinion, even if a professional had previously
disagreed.
When converting a person from voluntary to involuntary status and a Petition for
Involuntary Placement and Request for Guardian Advocate will be filed, is the
physician first required to complete a Certificate of Professional Initiating
Involuntary Examination or Is filing the Petition it itself sufficient to convert a
person from voluntary to involuntary status?
Completing the Petition for Involuntary Placement alone is sufficient to convert the
person to involuntary status. The involuntary examination initiation form is only
referenced in the law or rule as a method by which the person is taken into custody and
delivered to a receiving facility. The proper procedure in the situation described is to
initiate the BA-32, as found in Chapter 394.4625(5), FS and 65E-5.270(6), FAC. There
is no purpose served in a Professional's Certificate for Involuntary Examination being
signed after the person is already admitted to a designated receiving facility.
Completion of the BA-32 and its timely filing with the clerk of court within two court
working days of the determination is the appropriate action.
If a person was on voluntary status in a CSU subsequently was adjudicated
incapacitated by the court, must the CSU file a petition for involuntary
placement?
Yes. The Baker Act is very specific on this issue. Chapter 394.462(1)(d) states a
facility may not admit on voluntary status a person who has been adjudicated
incapacitated, unless the condition of incapacity has been judicially removed. If a facility 22 admits as a person on voluntary status who is later determined to have been
adjudicated incapacitated, and the condition of incapacity had not been removed by the
time of the admission, the facility must either discharge the person or transfer the
person to involuntary status.
A circuit judge entered an order for our receiving facility to accept a person who
was in jail on felony charges. The order provided that the inmate be sent to a
state hospital as soon as a bed became available. Is this proper?
No. This is not a proper use of the Baker Act. However, one cant ignore a court order.
There are procedures to be followed in challenging a court order requesting
reconsideration or having a re-hearing, or appealing the order, as determined by the
receiving facilitys attorney to determine in the future what to do with such orders. The
attorney will probably want to discuss this matter with the judge to avoid having to
respond to such orders later.
The only way to legally order someone into Florida State Hospital is under 394, Part I
(Baker Act) or 916 (forensic). If the judge didnt follow either of these two statutes, it is
essential that the facility properly challenge the order. The state hospital attorney
should also be consulted on the matter.
Magistrates in our area have been placing time restrictions on the orders for
periods of weeks instead of the six months permitted by law. It is difficult to
estimate how long it will take to stabilize the person on medication or difficulty
with discharge placement issues which may prohibit the person from being
discharged prior to the end of the order. Would this become subject to
involuntary inpatient placement criteria requiring an administrative law judge
from Tallahassee (requires a minimum of 20 days notice prior to the expiration of
the order) to perform the hearing? Or do we re-file a 3032, in order to get the
hearing scheduled and a new court order entered?
Judges and Magistrates throughout the state typically enter orders for less than 6
months, unless it is expected that the person will be sent to a state hospital. Chapter
394.467(6)(b), FS states that if the court concludes that the patient meets the criteria
for involuntary placement, it shall order that the patient be .. For a period of up to 6
months The facility shall discharge a patient any time the patient no longer meets
the criteria for involuntary placement, unless the patient has transferred to voluntary
status.
The Baker Act was originally written to place the burden on the receiving or treatment
facility to make the clinical decision as to when, during the 6 month period, the person
no longer met the criteria. Over the past 10 years or so, there has been an increasing
use of shorter court orders, transferring the control over the maximum length of time a
person could be held from the facility to the court.
23 The Continued Involuntary Placement provisions in subsection (7) are administrative
hearings rather than judicial ones. However, courts around the state have handled this
issue in several ways. Some have considered anything within the first 6 months as
within the courts jurisdiction. They do this by having the facility request a
reconsideration of the courts original order or an amending the original order to extend
the period of time the person can be held. Others have the facilities file a new BA-32,
prior to the expiration of the original order, initiating a new involuntary inpatient
placement order. This allows the facility to retain the person pending the second hearing
and allows the court to hear evidence as to what factors require a longer than
anticipated length of stay (should the person still be retained when the second hearing
is held).
This matter needs to be negotiated with the local courts. Each person has an attorney
and if that attorney and the assistant state attorney concur with the procedures used
locally, due process has been provided.
Can Baker Act involuntary placement hearings be done via remote video?
The Baker Act requires involuntary placement hearings to be conducted in a location
"as convenient to the patient as may be consistent with orderly procedure and shall be
conducted in physical settings not likely to be injurious to the patient's condition".
The Florida Supreme Court Commission on Fairness made many recommendations
regarding the Baker Act, including a very strong recommendation against the use of any
video or telephonic hearings or testimony in Baker Act related matters. The reason for
this is that the person's appearance at a hearing done in this fashion may be altered by
the use of such electronic means, particularly if the person's mental illness is
characterized by paranoia or hallucinations. If all court personnel, including the Public
Defender, are sitting in a court room many miles away. How does the person even
know who is representing him/her? Is the court aware of what influences may be
exerted by staff prior to or during the hearing? How does the court even know who else
is in the room with the person? Certain rules governing juvenile procedures also limit
video or telephonic means due to the minors' diminished capacity. If so, than persons
with mental illnesses certainly also have such a diminished capacity.
How is Clear and Convincing evidence defined for involuntary inpatient and
involuntary outpatient placement hearings?
The Florida Supreme Court published standard jury instructions (No. SC95832) on June
15, 2000 stating that the burden of proof by clear and convincing evidence means
evidence that is precise, explicit, lacking in confusion, and of such weight that it
produces a firm belief or conviction, without hesitation, about the matter at issue.
Who uses Form CF-MH 3114 titled Order Requiring Involuntary Assessment and
Stabilization for Substance Abuse and for Baker Act Discharge of Person? Does
this that takes the place of a Marchman Act? 24
The 3114 form is used by the court when, prior to the conclusion of a hearing for
involuntary inpatient or involuntary outpatient placement under the Baker Act, finds that
the person instead meets the criteria for involuntary admission under the Marchman
Act. This form can then be used to order the person to undergo such admission for
involuntary assessment under the Marchman Act.
If a petition for involuntary inpatient placement is filed with the court, is the clerk
of the court responsible for providing copies of the petition and the notice of
hearing to all required parties?
Yes. Chapter 394.467(3) states that upon filing a petition for involuntary inpatient
placement, the clerk of the court shall provide copies of the petition to the department,
the patient, the patients guardian or representative, and the state attorney and public
defender of the judicial circuit in which the patient is located. Chapter 394.4655(3)(c)
assigns the same responsibility (along with a copy of the proposed treatment plan) to
the clerk of the court for involuntary outpatient placement.
Chapter 394.4599(2)(c) governing notice of the filing of petitions for involuntary
(inpatient or outpatient) placement doesnt specify who is responsible for filing the notice
of hearing. However, one can only conclude that this lies with the Clerks office
because it requires confirmation of petition filing, of PD appointment, the date/time/place
of hearing, court appointment for independent expert, change of venue, etc all issues
that are the responsibility of the court.
What authority does the court have to specify a particular program or facility in
an involuntary inpatient placement order?
The court has the power to order a person be transferred to a treatment facility or, if the
person is at a treatment facility, that he/she be retained there or be treated at or receive
services from any designated receiving or treatment facility. The recommended BA-8
Order for Involuntary Inpatient Placement intentionally doesnt include a space for a
name of a facility in order that a persons right to request transfer from one facility to
another is expedited without having to go back to court for an amended order.
With that said, if the court opts to modify the form; that is certainly a judicial prerogative.
If it enters its order on a modified form that includes a specific facility or program, the
only alternative that program would have is to request the court to reconsider or amend
its order or to file an appeal of the order. An uncontested court order must be followed
or staff would run the risk of contempt.
A receiving or treatment facility may wish to have its organizations attorney speak with
the judge about future orders and the problems created by specifying a particular facility
or program. This might change the way future orders are written. This is really an issue
where an attorney will need to be involved to represent the organizations interests.
25 What should be done when a person is awaiting a hearing on involuntary
inpatient placement and the physician writes orders for the person to be
discharged? When the family refused to take the person back, the physician
cancelled the discharge order. Would the current BA-32 be nullified because of
the order for discharge and another petition have to be filed?
If the physician documented that the person didnt meet criteria for involuntary inpatient
or outpatient placement as a prerequisite for a discharge order, the facility couldnt go
forward on an existing petition and couldnt file a new petition unless the persons
condition had deteriorated after the discharge order was written.
If the person is willing to apply for voluntary status and the physician has certified the
person can make well-reasoned, willful and knowing decisions about his or her mental
health and medical treatment, such a transfer to voluntary status can be done.
If the person doesnt meet criteria for involuntary status and is unwilling or unable to
consent to voluntary status, the Baker Act requires the person to be discharged. In that
case, your discharge planners should investigate alternate discharge plans other than
the family.
26 Involuntary Outpatient Placement
The involuntary inpatient provisions of the Baker Act refer to notifying the court
of material changes to a treatment plan ordered by the court. How is material
defined?
Material is defined in Blacks Law Dictionary as: important; more or less necessary,
having influence or effect; going to the merits; having to do with matter rather than form.
27 Emergency Treatment Orders (ETO)
What conditions must exist before a physician can order emergency treatment?
The person must be demonstrating inability to exercise voluntary control over his or her
own symptomatic behavior and that these uncontrolled symptoms and behavior are an
imminent danger to the person or to others in the facility. The nature and extent of
imminent danger posed must be documented in the clinical record, the emergency
treatment must be the least intrusive method, and only rapid response medications are
permitted unless a detailed and complete justification for using other medications is
documented by the physician. A statement of agitation wouldnt be sufficient; actual
description of dangerous behavior would be required.
Would our facility still need to get ETO orders every 24 hours if we had an
authorization for treatment form completed?
In all cases, express and informed consent must be obtained (after full disclosure) by a
legally authorized decision-maker before any treatment can be rendered, except in
cases of imminent danger in which an ETO may be considered. If informed consent
from the guardian, guardian advocate, or health care surrogate/proxy, in accordance
with the Baker Act law/rules for the necessary treatment, no ETO for such authorized
treatment would be needed.
A competent adult can provide or refuse consent to one's own treatment. At any time "a
person's judgment is so affected by his or her mental illness that the person lacks the
capacity to make a well-reasoned, willful, and knowing decision concerning his or her
medical or mental health treatment", he or she is incompetent to consent to treatment.
In such cases, a legally authorized substitute decision-maker must be sought to make
such decisions on behalf of the person.
The Baker Act rules state "each emergency treatment order is only valid and is
authority for emergency treatment for a period not to exceed 24 hours." If staff
has documented that the person is posing an imminent danger, can a physician
issue an order for a rapid response medication to be given every 6 hours to
address the imminent danger or does this mean that an ETO for medication can
be given now and again, if the same imminent danger behavior presents again,
within the 24 hour timeframe without having to obtain a new physician's order?
If a physician orders a medication to address an imminent danger situation to be
administered every four hours for a 24-hour period, this is considered one ETO. A
nurse doesn't have discretion as to whether or not to administer the doses called for in
the order. However, if the nurse calls the physician after one or two administrations of
the medications and to say the person is calm, is sleeping, or the dangerous behavior
has ceased, the physician can then discontinue his or her order. This would not be
considered a PRN since the medications would be administered only as directly ordered
by the physician. 28
Would the administration of Geodon and Ativan for a person with major
depression as an emergency treatment order after attempting to hurt staff be a
chemical restraint?
The federal Centers for Medicare and Medicaid would refer to any drug used as a
restraint to include one that is used to control behavior or to restrict the persons
movement, and is not a standard treatment for the persons medical or psychiatric
condition. Treatment medications are those therapeutic doses of psychotropic
medications that help improve persons functioning so they can more actively participate
in their treatment. If the drug is used to restrain negative behaviors instead of being
part of a continuing treatment plan, it would be considered a restraint. Restraint is not
defined so much by what device or medication is used as much as it determined by the
purpose the device or medication is used. If used for behavior, it is restraint.
If a person who is on involuntary status and has a guardian advocate refuses oral
medications, resulting in an injection of which the guardian advocate has
provided consent. The person has merely refused medications but has not posed
an imminent danger to self or others. Would this constitute an ETO?
If a person has been found incompetent to consent to treatment by a court, resulting in
the appointment of a guardian advocate, the person is incompetent to refuse
medication. However, the Baker Act law/rules prohibit a facility from administering
psychotropic medications without the express and informed consent from someone who
is legally authorized to consent on behalf of the person, unless the physician has
documented the nature and extent of an emergency justifying an ETO.
It would be necessary to get the guardian advocate's consent to a change in the
medication or its method of administration. In an emergency, most facilities get this by
telephone with 2 witnesses, having the guardian advocate sign a modified consent form
later.
In the above scenario, this would not constitute an ETO because it is limited to
treatment contained in the person's treatment plan and disclosure has been fully
provided to the guardian advocate.
The federal conditions of participation for hospitals also govern "chemical restraints".
There should be no inconsistency between the federal regulations and the Baker Act,
given that the medications in this scenario are not being ordered for a person's behavior
but are consistent with his/her treatment plan as a standard treatment for the diagnosis.
If a person is posing an imminent danger to self or others, can a physician issue
an order for a rapid response medication to be given every 4 hours for 24 hours
(6 administrations) within a single ETO without having to obtain a new
physician's order? Would this be considered a PRN?
29 If a physician orders a medication to address an imminent danger situation to be
administered every four hours for a 24-hour period, this is considered under the Baker
Act as a single ETO. A nurse doesn't have discretion as to whether or not to administer
the doses called for in the order. However, if the nurse calls the physician after one or
two administrations of the medications to say the person is sleeping or the dangerous
behavior has ceased, the physician can then discontinue his or her order. This would
not be considered a PRN since the meds would be administered only as directly
ordered by the physician.
If a person under involuntary examination status is on a medical floor, does the
person have the right to refuse medications/treatment, including life saving
treatment?
The Baker Act is Florida's Mental Health Act -- nothing more or less than that. It doesn't
address issues of medical care and can not be used as the basis for providing medical
examination or treatment. Other laws must be used instead, such as 395 that governs
hospitals or 415 that governs the abuse, neglect, or exploitation of vulnerable adults
(self neglect by a person who lacks capacity). If a person has a life threatening
condition and is unable (not the same as refusing) to provide informed consent to
necessary treatment, one can usually presume the person would have consented to
such treatment if able to do so. However, a person who is competent to make such
decisions but refuses the treatment has this right to do so. If the medical treatment
needed by a person who isn't competent to consent isn't related to a life threatening
condition, one needs to obtain a substitute decision-maker such as a health care
surrogate or proxy to obtain the necessary authorization. The hospital's attorney and/or
risk manager may need to consult on issues such as this.
If a person has a guardian advocate but no consent has been given for the
person to be given Geodon I/M, does the nurse need to seek consent from the
guardian advocate or does an ETO need to be written due to the persons
escalation and agitation?
An ETO can be ordered by a physician in cases of imminent danger without waiting for
express and informed consent. However, Chapter 65E-5.1703, FAC states that When
emergency treatment with psychotropic medication is ordered for a minor or an
incapacitated or incompetent person, facility shall document attempts to promptly
contact the guardian, guardian advocate, or health care surrogate or proxy to obtain
express and informed consent for the treatment in advance of administration where
possible and if not possible, as soon thereafter as practical.
The purpose of this rule is to attempt to get express and informed consent from the
substitute decision-maker so you dont have to consider this an ETO. If the facility is a
hospital or JCAHO accredited facility, a physician would have to see the person within
one hour due to use of chemical restraints. If a legally authorized person has provided
express and informed consent prior to it administration, it probably wouldnt be
considered a chemical restraint. 30
A person for whom an involuntary examination has been initiated was recently
taken to an emergency room by a law enforcement officer and the person was
verbally threatening, removing his clothing, and attempting to leave the ER and
police were unsure if the person was under the influence of substances that may
have induced the behavior or if the behavior was based in a pre-existing
psychiatric condition. The person refused all lab work and refused all
medications, ultimately escalating to the point of requiring 4 point restraints. Can
the ER Physician order a medication ETO or draw blood without consent for the
purposes of medical safety?
The Baker Act doesn't specifically address this issue. However, the medication would
be considered a chemical restraint under the behavioral restraint standards governed by
the federal conditions of participation. A physician can order an ETO for psychotropic
medications or restraints at any time there is imminent danger because of a person's
condition, whether the person is at a receiving facility or a medical hospital preceding
transfer. This presumes that the ETO is the least restrictive intervention possible under
the circumstances. It is essential that the physician's signed order in the progress notes
and order describe the specific behavior which constitutes a danger to the person or to
others, and the nature and extent of the danger posed. In this circumstance,
If a person has met criteria for a chemical ETO given via injection and staff has to
manually hold the person while the injection is being given, are there any
guidelines regarding timeframes for how long staff can restrict the persons
movement in the process of medicating the person? In other words at what
point, if at all, does this become a restraint?
The holding of the person to administer the medications would be just part of the ETO
administration, rather than a separate action. Once the injection is administered, any
continued holding would be considered a restraint under the same federal regulations.
The Federal regulations define restraint to mean the immobilization of a person's body
in order to restrict free movement or range of motion, whether by physical holding or by
the use of a mechanical device.
31 Guardian Advocates & Other Substitute Decision-Makers
When a person has designated a Health care Surrogate or a proxy is designated
by a facility for a person who is incompetent to make treatment decisions, is the
receiving facility required to provide "the same training" for this Surrogate/proxy
as would be provided for a Guardian Advocate?
A surrogate is selected by the person in an advance directive prior to a crisis occurring.
A proxy is appointed by the facility when the person doesn't have an advance directive
or the surrogate named in the advance directive is no longer able or willing to serve.
The Baker Act rules require that the surrogate or proxy be given information about their
responsibilities and ethics of medical decision-making. They also have to be offered
the same training as that required of guardian advocates, but are not required to
undergo the training until they are actually appointed as the person's guardian
advocate. However, they must talk to the person and the person's physician in person
prior to giving consent; if that's not possible they can speak with the person and his or
her physician by telephone instead
Can a hospital train its own staff to serve as Guardian Advocates?
No. Chapter 394.4598(1), FS states that a professional referred to in the Baker Act, an
employee of the facility providing direct services to the person, a DCF employee, a
facility administrator, or member of the Florida local advocacy council shall not be
appointed as a guardian advocate.
A staff member of a receiving facility would have a direct conflict of interest in
consenting or refusing consent to services recommended for a person in that receiving
facility. Further, no physician, psychologist, social worker, psychiatric nurse or licensed
mental health counselor could serve in this role for a person served in another receiving
facility due to the statutory prohibition.
If a person already has a court-appointed guardian, does the guardian need to
complete the guardian advocate test and submit the results to the court?
No, a guardian is not responsible for taking the guardian advocate course. If a person
has a guardian appointed by the court, no guardian advocate is needed. However, it
essential that the receiving facility obtain a copy of the court order to ensure the
guardian is actually the individual appointed by the court, as well as the letters of
guardianship that specify whether the guardianship is a plenary one (all rights) or a
limited one where only certain rights have been removed from the person and assigned
to the guardian. The guardianship, if limited, must specify that the guardian has the
power to make medical and mental health decisions for the person.
If a person in a medical facility under an involuntary exam is awaiting medical
stabilization before transfer to a BA Receiving facility and has refused a CT Scan
ordered by the medical physician. Once the person arrives at a receiving facility 32 can a proxy who is consenting for treatment and medications of a person found
to be incompetent consent to a CT Scan or other diagnostic procedures on behalf
of the person?
The Baker Act only governs mental health issues, while other statutes govern consent
for medical care. However, chapter 765, FS is the Advance Directive statute for Florida
and can be used for medical or mental health decisions. Part IV of that statute governs
the issue of proxies when a person has not executed an advance directive or the
surrogate named in an advance directive is no longer able or willing to serve.
Proxies and surrogates have the power to make any and all health care decisions that
persons who lack competence would have made for themselves if they had been
capable of doing so. The only exception to the authority relates to ECT, psychosurgery,
experimental treatments, abortion and sterilization -- these must be specifically allowed
in a written advance directive for a Surrogate to provide consent. The only other
restriction is the Surrogate/Proxy cannot consent to voluntary admission of the person
for psychiatric care or provide consent to treatment for a person on voluntary status in a
psychiatric facility.
Can a hospitalized person fire his or her health care surrogate/proxy or
guardian advocate who is currently making mental health and medical decisions?
No. The person who has been found incompetent to consent to treatment cannot fire
his guardian advocate or other substitute decision-maker until capacity has been
regained.
Chapter 394.4598(2), F.S. states the decision of the guardian advocate may be
reviewed by the court, upon petition of the person's attorney, the person's family, or the
facility administrator. This section doesnt even allow the person to challenge the
decisions made by the guardian advocate, much less terminate the guardian advocate.
A competent person can change his/her advance directive at any time naming a new
surrogate. The person can challenge decisions made by a health care surrogate or
proxy with the court.
Can a guardian or guardian advocate give a verbal consent for medications over
the phone or is a written authorization required before medications can be given?
Verbal authorization for medications, after a full disclosure about the medications as
required under 65E-5.170(4)(a) and (b), FAC by a qualified person, is fairly routine
practice throughout the state. However, such verbal authorization should be obtained
by a nurse and witnessed by a second staff person. The treatment can then be
administered, but the Guardian Advocate should be encouraged to come into the facility
promptly to sign the form later.
33 Who can authorize the admission of a person who lacks the capacity to make his
or her own treatment decisions?
A person who is incompetent to consent to treatment is incompetent to consent to
admission and must be admitted on involuntary status so his or her rights can be
protected. If a person lacks the capacity to make his or her own treatment decisions,
only a guardian, guardian advocate, or health care surrogate/proxy has the authority to
make treatment decisions. These substitute decision-makers cannot have a person
admitted on a voluntary basis but, once the person is admitted on an involuntary basis,
they can begin making treatment decisions.
When is the decision on a persons competency made and how soon can a
guardian advocate be appointed if the person is found to be incompetent to
consent to his or her own treatment?
The Baker Act requires that the court, at a hearing on involuntary placement, consider
testimony and evidence regarding the persons competence to consent to treatment,
and if the court finds that the person is incompetent, it must appoint a guardian
advocate. However, the person may have been in the facility for up to three working
days before a petition is filed and the hearing may take place up to five days after filing.
This is an extraordinarily long period to hold a person without treatment if incompetent
to consent to his or her own treatment and the person has no guardian or health care
surrogate/proxy to make such decisions. The Florida Supreme Court Commission on
Fairness strongly urges the court to conduct a hearing and make a finding as to the
persons capacity to consent to treatment at the earliest possible time. A separate
hearing on competency and appointment of a guardian advocate can be scheduled
early in the persons hospitalization, prior to the hearing on involuntary placement.
Does the facility have the same responsibility to a substitute decision-maker as it
does to a competent adult with regard to disclosure?
YES. Prior to the administration of treatment, a qualified staff person must provide
information about the reason for admission, the proposed treatment, the purpose of the
treatment to be provided, the common side effects, alternative treatments, the
approximate length of care, and that any consent given may be revoked. Specifically
with regard to medication disclosure, such qualified staff member must, in plain
understandable language, identify the proposed medication, the proposed dosage
range, the frequency and method of administration, recognized short-term and long-
term side effects, any contraindications which may exist, clinically significant interactive
effects with other medications, and similar information on alternative medications which
may have less severe or serious side effects.
Can a health care surrogate or proxy make treatment decisions for a person in a
Baker Act facility?
34 YES, but only for a person who is on involuntary status and for whom a petition is to be
filed with the court in a timely way requesting the appointment of a Guardian Advocate.
Can a Power of Attorney give consent to the admission or treatment of a person
in a Baker Act facility?
NO. A Durable Power of Attorney is insufficient to authorize the admission of a person
on a voluntary basis or to consent to treatment for a person, regardless of his or her
legal status. However, if the POA is in the form of a surrogate named in a health care
advance directive, the surrogate can make treatment decisions but not the decision to
admit the person to a facility. Such admission must be on an involuntary basis,
If a person refuses care that his or her guardian, guardian advocate or health care
surrogate has authorized, does the physician have to issue an order for
emergency treatment in order to administer the medication?
NO. If the person has been determined to lack the capacity to provide express and
informed consent and a legally authorized substitute decision-maker has provided
consent for a specific treatment after full disclosure, the persons consent to the
treatment is invalid and is not needed. This doesnt mean that the facility shouldnt
attempt to communicate the persons objections to the specified treatment to the
guardian/guardian advocate to determine if the substitute decision-maker wishes to alter
his or her consent.
Can a person be appointed as guardian advocate who is not the persons health
care surrogate, family member, or close personal friend?
YES. The Baker Act limits the role of guardian advocate to those identified above,
unless the court has determined good cause to appoint another person, including any
adult who is trained and willing to serve.
Can a guardian advocate consent to laboratory tests or medical procedures?
NO. Unless the court has specifically authorized the guardian advocate to consent to
medical treatment, their authority is limited to decision-making about mental health
treatment only.
Can a substitute decision-maker consent to electroconvulsive treatment (ECT) on
behalf of the person?
A guardian has the authority to make this decision on behalf of the person. A guardian
advocate only has this authority if specifically provided by the court in a hearing
separate from the one where the person was determined to be incompetent to consent
to medical treatment. A health care surrogate or proxy only has this authority if a
person specifically authorizes this power in an advance directive.
35 Can a health care surrogate, designated by the person in an advance directive, or
a health care proxy give consent to treatment for a person on involuntary status
in a receiving or treatment facility?
YES. However, such decision-making authority is limited to the period where a
physician determines the person lacks the capacity to make well-reasoned decisions
and the filing of a petition for adjudication of incompetence and appointment of a
guardian advocate. This petition must be filed with the court within two working days of
the determination of incapacity by the physician.
What happens when there is a difference of opinion between a persons court
appointed guardian and the administrator of a receiving or treatment facility
about what is the least restrictive setting for a ward?
The First District Court of Appeal found that if there is a conflict between the Baker Act
and the guardianship statute, both the duty of the guardian and the power of the circuit
court in the guardianship proceeding must give way to the wards right under the Baker
Act to be released to a less restrictive environment. While the circuit court has authority
to approve or disapprove a plan to change the residence of a ward, that authority could
never be used to interfere with a persons right to be released or transferred from
involuntary confinement in a mental hospital. The court concluded that all provisions of
the guardianship law regarding the residence of the ward are inapplicable to persons
served under the Baker Act. The court concluded that a liberty interest asserted on
behalf of an involuntary mental patient in a Baker Act hearing is superior to any
conflicting right that could be asserted on behalf of the patient under the guardianship
laws.
How can a substitute decision-maker document his or her authority to make
decisions on behalf of another person prior to being allowed to consent to
treatment?
A guardian must provide a copy of the court order appointing him or her as a persons
guardian and letters of guardianship to document the limits of the authority of the
guardian. A guardian advocate must provide a copy of the court order appointing him or
her that designates whether the guardian advocate has only the authority to make
mental health decisions or also has the authority to make medical decisions. A health
care surrogate must provide a copy of an advance directive completed when the person
was competent to determine what decisions he or she would want to have made on his
or her behalf.
36 Minors
How is a minor defined?
A minor is any person under 18 years old who has not been married and has not had a
court remove the disability of nonage.
Who is a childs guardian?
A childs guardian is generally one or both of his or her natural or adoptive parents. After
a divorce, guardianship belongs to the parent or parents with custody. The mother of a
child born out-of-wedlock is guardian of the child. In the absence of a parent a guardian
must be appointed by a court and can be a relative or other person interested in the
welfare of the child.
What is required to admit a minor voluntarily into a receiving facility?
Besides an application made by a minor's guardian for admission, the law requires that
"a person age 17 or under may be admitted only after a hearing to verify the
voluntariness of the consent." Any reference to "voluntariness hearings" done at
facilities and by facility staff was repealed from the Florida Administrative Code in 1997
because DCF didn't have the authority to define a hearing as an "administrative
hearing", when all other references to hearings in the Baker Act are judicial in nature.
Therefore, it is DCF's opinion that a judicial hearing of some type is required prior to the
admission of the minor on voluntary status. There is no rule or model forms for this
purpose.
Assuming the minor meets the criteria for involuntary examination, it would be entirely
proper to admit him/her on involuntary status. While minors may state a willingness to
be in a psychiatric unit, they do not have the legal capacity to give consent to the
admission or to treatment. While the Express and Informed Consent provision of the
law requires the minor's and the guardian's express and informed consent for admission
and treatment be sought, only the guardian of the minor has standing to actually give
this consent. The involuntary criteria requires that the person be either refusing
examination or unable to determine that the examination is needed. In such cases,
even when the minor is not refusing the examination, he/she is legally unable to consent
-- thus the involuntary criteria are likely to be met.
When two physicians have determined a minor to be incompetent for admission,
does a petition for involuntary placement need to be sent in to the court or does
the petitioner have the right to choose not to send it?
All minors are considered "incompetent to consent" by virtue of age. They can only be
voluntary if the parent/guardian has applied for the child's admission and a court has
conducted a hearing to verify the voluntariness of the consent.
37 Chapter 394.4625(1)(a), F.S. governs voluntary admissions. The "hearing" referred to
in this section for minors has been determined to be judicial, rather than administrative.
Another Baker Act provision is 394.459(3)(a) that governs right to express and informed
patient consent. This section requires that each person (including minors) be asked to
give express and informed consent for admission and treatment. If a minor, that
consent must also be requested and obtained from the person's guardian.
If a minor objects to or is unable to fully understand the implications of inpatient care, a
petition for involuntary placement must be filed with the court. There is no provision for
a waiver of filing/hearing in the law.
Involuntary examination 394.463(1) and Involuntary Placement (394.467 (1) provisions
of the Baker Act make no distinction between minors and adults. If they meet the
criteria listed in the law, a petition must be filed with the court.
38 Restraints & Seclusion
The Baker Act rules [65E-5.180] states that the highest level staff member who is
immediately available may initiate seclusion. Does the state have a standard or is
it at the discretion of the facility?
DCF hasnt established a minimum standard for this issue regarding restraint or
seclusion. The rule does require that the staff member be trained in seclusion/restraint
procedures and use of unlicensed staff for this purpose be in accord with specific written
facility policies. If not initiated by a nurse, then a nurse must assess the need for the
seclusion/restraint and document it in the chart within 15 minutes of initiation. Further
the rule requires that a physician issue an order within one hour that must be signed
within 24 hours.
39 Law Enforcement
How does the Baker Act define a law enforcement officer?
A law enforcement officer means a law enforcement officer as defined in s. 943.10, F.S.
Therefore, as Chapter 943 is revised in future legislative sessions, the Baker Act will not
have to be revised further. [s. 394.455, F.S.]
Does a law enforcement officer have to be acting in his or her official capacity or
on duty to initiate an involuntary examination or to transport a patient for such
an examination?
The statute doesnt distinguish between official and off-duty actions but the Florida
Administrative Code requires that an officer must be working in the course of his or her
official duties to initiate an involuntary examination under the Baker Act [Chapter 65E-
5.280(2)(a), F.A.C.] Liability issues might also arise if acting in an off-duty capacity.
Department legal counsel should be consulted where the officer is considered to be on
duty 24 hours per day, 7 days per week.
How is a law enforcement officer supposed to diagnose mental illness?
Law enforcement officers, in the course of their duties, probably have more day-to-day
interaction with persons who have serious mental illness than many mental health
professionals. However, officers are not expected to diagnose mental illness. Mental
illness is defined in the Baker Act to mean:
An impairment of the mental or emotional processes that exercise conscious control of
ones actions or of the ability to perceive or understand reality, which impairment
substantially interferes with a persons ability to meet the ordinary demands of living,
regardless of etiology. For the purposes of this part, the term does not include
retardation or developmental disability as defined in Chapter 393, intoxication, or
conditions manifested only by antisocial behavior or substance abuse impairment. [s.
394.455 (18), F.S.]
It is important for officers not to unnecessarily invoke the Baker Act for persons who
seem to be intoxicated, retarded, or criminal unless there is reason to believe they also
have co-occurring serious mental illness, as it is defined in the law.
What is the criteria for initiating an involuntary examination under the Baker Act?
A person may be taken to a receiving facility for involuntary examination if there is
reason to believe that he or she is mentally ill and because of his or her mental illness:
(a) The person has refused a voluntary examination or is unable to determine that an
voluntary examination is necessary after conscientious explanation and disclosure of
the purpose of the examination; and 40
(b) 1. Without care or treatment, the person 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; 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
(b) 2. There is a 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
behavior.
Does a law enforcement officer have to personally see the behavior to justify
taking a person into custody under the Baker Act?
No. Taking a person into custody under the Baker Act is a civil procedure, not requiring
the same probable cause required under criminal law. An authorized person may
initiate the involuntary examination by having reason to believe a person appears to
meet the criteria. A law enforcement officer may consider the statements of other
credible persons who have seen the behavior. The Baker Act requires the officer to
detail the circumstances under which the person was taken into custody, which may
include but does not require description of the officers personal observations. An
officer may wish to have witnesses to behavior write and sign a statement to be
attached to the incident report in case the witnesss statement changes in the future.
This will, uphold the officers good faith in initiating the involuntary examination.
How long is an ex parte court order initiating an involuntary examination good
for?
The Baker Act states that an ex parte order shall be valid only until executed or, if not
executed, for the period specified in the order itself. If no time limit is specified in the
order, the order is valid for seven days after the date that the order was signed.
This means that if the person is taken to a receiving facility, examined, and released, he
or she cannot be picked up on the original court order again within the seven day period
after the order was signed by a judge. A judge can designate a longer or shorter period
in which law enforcement can search for the person to be taken into custody.
Does the Baker Act let a law enforcement officer execute an ex parte order
anytime, even at night or on weekends?
The Baker Act states that a law enforcement officer acting in accordance with an ex
parte order may serve and execute such order on any day of the week, at any time of
the day or night. It further states that a law enforcement officer acting in accordance
with an ex parte order issued may use such reasonable physical force as is necessary
to gain entry to the premises, and any dwellings, buildings, or other structures located 41 on the premises, and to take custody of the person who is the subject of the ex parte
order.
Why do law enforcement officers have the responsibility to transport mentally ill
people? Isnt this a health function?
The criteria for involuntary examination requires that the person be refusing examination
or be unable to determine that the examination is necessary. For anyone other than
those authorized by law to take a person against his or her will or without informed
consent to a receiving facility could be a criminal offense. In addition, law enforcement
is specifically trained in the transportation of persons who are either violent, resisting
transportation, or are otherwise unwilling to comply with directions. Others without that
training may either injure the person or be injured by the person.
How does a law enforcement officer know which agency in the county is
responsible for transporting people for involuntary examinations under the Baker
Act?
The 1984 Florida Legislature required that each county designate a single law
enforcement agency within the county, or portions thereof, to take persons into custody
upon entry of an ex parte order or the execution of a certificate for involuntary
examination by an authorized professional and to transport that person to the nearest
receiving facility for examination. This might result in the Sheriffs Office being
responsible for certain transportation and municipal police responsible for others. A
copy of the formal action taken by the Board of County Commissioners should be
available through the County Attorney.
Does a law enforcement officer have any responsibility to transport persons for
voluntary examinations?
No. There is nothing in the Baker Act to require law enforcement officers to transport
persons for voluntary examinations, since they are both willing and able to provide
consent to the examination. However, there is nothing to prohibit such transportation if
officers and their Departments (including legal counsel) concur. However, providing
such discretionary courtesy transport may not provide the same level of immunity from
liability as offered in involuntary examinations.
Can a law enforcement officer take a person who meets the criteria for
involuntary examination to jail instead of a Baker Act receiving facility if they
have committed a misdemeanor?
NO. The Baker Act states that any law enforcement officer who has custody of a
person based on either non-criminal or minor criminal behavior that meets the statutory
guidelines for involuntary examination, shall transport the person to the nearest
receiving facility for examination. [s. 394.462(1)(f), F.S.]
42 Can a law enforcement officer use handcuffs and other restraints when
transporting persons with mental illness to a Baker Act receiving facility?
The Baker Act states that the individual dignity of the patient shall be respected at all
times and upon all occasions, including any occasion when the patient is taken into
custody, held or transported. Procedures, facilities, vehicles, and restraining devices
utilized for criminals or those accused of crime shall not be used in connection with
persons who have a mental illness, except for the protection of the patient or others.
Where the dangerous circumstances are clearly documented, such restraints may be
used in accord with the law enforcement agencys written policies s. 394.459(1), F.S.
Under what conditions can a law enforcement officer delegate the responsibility
to someone else to do the transport? How is this documented?
The Baker Act states that the designated law enforcement agency may decline to
transport the person to a receiving facility only if:
a. The jurisdiction designated by the county has contracted with an emergency medical transport service or private transport company for transportation of persons to
receiving facilities pursuant to this section at the sole cost of the county; and the law
enforcement agency and the emergency medical transport service or private
transport company agree that the continued presence of law enforcement personnel
is not necessary for the safety of the person or others. When a jurisdiction has entered into a contract with an emergency medical transport
service or a private transport company for transportation of persons to receiving
facilities, such service or company shall be given preference for transportation of
persons from nursing homes, assisted living facilities, adult day care centers, or
adult family-care homes, unless the behavior of the person being transported is such
that transportation by a law enforcement officer is necessary for the safety of the
subject or others.
b. When a law enforcement officer takes custody of a person pursuant to the Baker Act, the officer may request assistance from emergency medical personnel if such
assistance is needed for the safety of the officer or the person in custody. Further, if
the appropriate law enforcement officer believes that a person has an emergency
medical condition as defined in s. 395.002,F.S. the person may be first transported
to a hospital for emergency medical treatment, regardless of whether the hospital is
a designated receiving facility. Nothing in this section limits emergency examination
and treatment of incapacitated persons provided in accordance with the provisions
of s. 401.445.
c. When a member of a mental health overlay program or a mobile crisis response service is a professional authorized to initiate an involuntary examination and that
professional evaluates a person and determines that transportation to a receiving
facility is needed, the service, at its discretion, may transport the person to the 43 facility or may call on the law enforcement agency or other transportation
arrangement best suited to the needs of the patient.
d. When a transportation exception plan has been approved by the Board of County Commissioners and the Secretary of the Department of Children and Family
Services, among others. [s. 394.462(3), F.S.]
How can a law enforcement officer find out which Baker Act receiving facilities
are in his or her jurisdiction and their addresses?
The District Office of the Department of Children and Family Services can provide you
with a list of the names and addresses of all Baker Act receiving facilities in your locale.
(See page vi)
Does a law enforcement officer have to take the person to the nearest Baker Act
receiving facility or can he/she take them to another facility where the patient,
caregiver, or mental health professional has asked me to take them?
The Baker Act requires you to take all patients to the nearest receiving facility, unless
the person is suffering from an emergency medical condition, in which case they should
be taken to the nearest emergency room. The patient can be later transferred to
another facility if requested by the patient or their guardian.
Does a law enforcement officer have to return to a hospital to transfer the patient
to another facility?
NO. Once the patient is taken to the hospital, the states Baker Act and the federal
EMTALA law require the hospital to arrange for appropriate transfer, when necessary.
Can a Baker Act receiving facility refuse to accept the person a law enforcement
officer brings to them?
No. The Baker Act states that the nearest receiving facility must accept persons
brought by law enforcement officers for involuntary examination. If the receiving facility
believes the patient should be medically cleared the facility can arrange appropriate
medical transport for this purpose. If the receiving facility is at capacity, it should accept
the patient and arrange an appropriate transfer.
Does a law enforcement officer have to wait at a hospital for the patient to be
medically screened, treated, or have their insurance verified?
No. The officers only duties are to present the patient and the required completed
paperwork. However, if the patient is acting in a dangerous manner, beyond the ability
of the hospital staff to manage, the officer should stay to assist for a very temporary
period until hospital clinical or security staff can arrive.
44 Can a law enforcement officer take his or her weapon into a psychiatric facility?
No. The Baker Act states that except as authorized by law or as specifically authorized
by the person in charge of each hospital providing mental health services under this
part, it is unlawful to introduce into or upon the grounds of such hospital any firearms or
deadly weapons. Additionally, the administrator of the facility has the authority to make
exceptions to the no firearms policy in the case of law enforcement officers while in the
performance of their duty. [s. 394.458, F.S.]
What forms does a law enforcement officer have to present to the Baker Act
receiving facility staff? Where does the officer get copies of the forms?
The Baker Act form entitled Transportation to a Receiving Facility (CF-MH 3100) must
be presented each time a law enforcement officer takes a person to a receiving facility
for involuntary examination, regardless of whether the examination is initiated by a
judge, a mental health professional, or by the officer. In addition, the Baker Act form
entitled Report of Law Enforcement Officer Initiating Involuntary Examination (CF-MH
3052a) must be completed when the officer, as opposed to the judge or mental health
professional, initiates the examination. These forms, as well as all other Baker Act
forms can be obtained from the district office of the Department of Children and
Families. [Chapter 65E-5.280, F.A.C.]
Why do the hospitals or crisis stabilization units release people with mental
illness so soon?
A Baker Act receiving facility is only permitted to hold a person against their will or
without their informed consent for examination and treatment for a maximum period of
72 hours. However, as soon as an examination is conducted that shows that the patient
does not meet the more stringent criteria for involuntary placement, the person must be
released or a petition filed with the court for a hearing. This means that persons who
may be severely mentally ill, but who are neither self-neglectful or dangerous to self or
others, will often be released. [s. 394.463(2)(i), F.S.]
What does a law enforcement officer do if he or she thinks someone is trying to
have a person Baker Acted in a malicious or vindictive way, without the legal
criteria being met?
If it is in response to an ex parte order, immediately contact the judge who signed the
order. If it is in response to a mental health professionals initiation, immediately contact
your departments legal counsel. Filing a sworn false affidavit with the court leading to
an ex parte order may constitute perjury. Further, any person who intentionally violates
or abuses any rights or privileges of patients provided in the Baker Act is liable for
damages as determined by law.
The census on our CSU is often over its licensed capacity. The jail staff calls
insisting we have to take their people regardless of not having any available 45 beds, even if they have to sleep on the floor. Do we have to take their clients
when in overflow or can the inmate stay in the jail over night while coming to our
facility for examination and treatment during the day?
As the nearest designated receiving facility, you are required to "accept" any person
brought to your facility by law enforcement officers for involuntary examination. The
Baker Act requires that persons charged with non-criminal or minor criminal behavior
that meets the statutory criteria for involuntary examination be brought to a receiving
facility instead of to jail.
However, the transportation provisions of the Baker Act state that if the person meets
the criteria for involuntary examination and has a felony charge and you have
determined and documented that you are unable to provide adequate security, you are
required to provide mental health examination and treatment to the person where he or
she is held. The costs of transportation, evaluation, hospitalization, and treatment
incurred under this subsection by persons who have been arrested for violations of any
state, county, or municipal law/ordinance can be recovered by the receiving facility as
provided in s.901.35, FS.
A law enforcement officer is specifically defined in 943.10 and is not the same as any
other Sheriff's Office employee, such as correctional, detention, or transport officer.
However, if a certified law enforcement officer brings a person to your facility with a
valid BA-52 completed, you cannot refuse the person, assuming you can provide
adequate security.
If a facility can't provide adequate security to a person on felony charges, the law
permits the facility to refuse the admission but it must have a plan to examine the
person at the jail. If the jail staff agrees to transport the person back and forth between
the jail and the receiving facility, that would be great. However, transport is inherently
risky for the person and treatment in one place or another may be preferable.
If a person is admitted to a CSU on an ex parte order for involuntary examination
is involved in altercation with a staff member, was restrained, and given an ETO.
The person was than arrested and transported to the jail. Does this arrest
constitute a violation of the persons rights and should the CSU have treated the
aggressive behavior to stabilize the person?
There are rare occasions when a person attacks a staff member or another individual at
a receiving facility and is subsequently determined by a psychiatrist to be capable of
managing his/her own behavior. In such cases, facing consequences of criminal
behavior may be appropriate. Often the State Attorney cant establish the person could
form intent to commit a crime -- a legally required condition for a crime to have been
committed -- thus no charges are brought. In such situation, a face-to-face psychiatric
consult should be a minimum requirement in the policies and procedures of any
designated facility prior to calling law enforcement. A person is in a CSU or other
receiving facility because he/she is mentally ill and as a result of the mental illness is 46 self-neglecting or overtly dangerous to self or others. Staff should be trained to
anticipate and prevent such alterations. If these documented efforts have failed, the
least restrictive but effective interventions should be employed.
If a person on involuntary status in a receiving facility is involved in an altercation
where another client was injured and police were called. The client who was the
aggressor was transferred to another CSU due to his behavior. Is this transfer
appropriate or should the CSU deal with the client clinically?
If there is a documented history between the two persons and a second designated
receiving facility agreed to accept the transfer, the transfer may be appropriate. One
would question why the first CSU turned to law enforcement to resolve an issue that is
generally resolved clinically by other receiving facilities around the state. The facility
should examine possible failures in staff training or lack of constructive policies and
procedures for handling such problems -- problems that are not uncommon in such
facilities.
Where in the Baker Act statute does it specifically state that law enforcement
officers are able to take a person for involuntary examination under the Baker Act
to a non-receiving hospital Emergency Room and then leave?
The Baker Act requires law enforcement to take a person for whom an involuntary
examination has been initiated to the nearest designated receiving facility unless a
transportation exception plan has been approved by the Board of County
Commissioners and DCF. The only exception to this is when the law enforcement
officer believes that the person has an emergency medical condition as defined in
s.395.002, FS. In such circumstances, the person may be transported to a hospital for
emergency medical treatment, regardless of whether the hospital is a designated
receiving facility. You can find this citation in s.394.462(1)(h), Florida Statutes. At this
point, the federal EMTALA law applies when in conflict with the state Baker Act. The
hospital must perform the medical screening and, if the person has an emergency
medical condition (including psychiatric and substance abuse emergency), the person
cannot be transferred or released until the condition has been "stabilized".
There is no provision in the EMTALA or Baker Act requiring the law enforcement officer
to remain at the hospital while the person is being examined or treated. Law
enforcement's only responsibility in the Baker Act is to take the person into custody and
deliver him/her to the facility [s394.463(2)(a)2,FS]. Once there, it is the facility's
responsibility to maintain the person until the required medical screening and
stabilization can be performed and, when necessary, to arrange a safe and appropriate
method of transferring the person to a designated receiving facility where appropriate
medical treatment is available that has the capability to provide the psychiatric
examination and short-term psychiatric treatment.
Can a VA or other federal law enforcement officer initiate an involuntary
examination under the Baker Act? 47
No. The Florida Attorney General (AGO99-68) was asked if federal law enforcement
officers constitute law enforcement officers entitled under Florida's Baker Act to initiate
the involuntary examination of a person who may be mentally ill or to transport patients?
The Attorney General answered that Federal law enforcement officers do not constitute
law enforcement officers for purposes of Florida's Baker Act, and thus possess no
authority under the act to initiate the involuntary examination of a person or to transport
such person as law enforcement officers.
48 Transportation
Is it true that if law enforcement is transporting a person for involuntary
examination under the Baker Act, they must transport the person to the nearest
receiving facility, regardless of if the facility is public or private or if the client has
insurance?
Yes, law enforcement is required to transport the person to the nearest receiving facility,
regardless of whether it is public or private and regardless of whether the person has
any insurance or not. The only exceptions are when a transportation exception plan
has been approved by the Board of County Administrators and DCF or when the officer
believes the person has an emergency medical condition as defined in chapter 395,
F.S.
If a private facility happens to be the nearest receiving facility, but staff informs
law enforcement that they have no beds or do not take the clients insurance,
would law enforcement be required to transport the client to the next closest
receiving facility (which is usually a public receiving facility), or is the private
facility required to receive the client and arrange appropriate disposition?
A private receiving facility that is the "nearest facility" must accept: the person from law
enforcement and perform the screening required by the federal EMTALA law. Once all
EMTALA requirements are met, it can request the transfer of the person to a designated
receiving facility that can manage the person's medical condition and the ability or
inability of the person to pay for their own care can be considered in determining which
facility the person would be sent. The hospital is responsible for arranging safe and
appropriate transportation. Law enforcement has no responsibility to provide this
transfer, although there is not prohibition in federal or state law against it.
Since law enforcement is statutorily required to transport persons on involuntary
status to the nearest Baker Act facility unless an emergency medical condition
may exist, where should a person with significant non-acute physical
impairments or physical assistance needs such as, paralysis, self care deficits or
require wound care for a chronic condition be taken?
The Baker Act requires law enforcement officers to transport a person for whom an
involuntary examination has been initiated to the nearest receiving facility unless:
1. For the safety of the officer or person in custody, emergency medical personnel are needed. EMS will only deliver persons to hospitals, not to any less acute medical
setting. 2. The officer believes the person has an emergency medical condition, in which case the person can be first transported to a hospital for examination and treatment of the
condition, regardless of whether the hospital is a designated receiving facility. In
such a case, the person can then be transferred after stabilization of his/her
condition to a receiving facility. 49 3. A transportation exception plan has been approved by your Board of County Commissioners and DCF permitting an exception to the legal requirements for
transportation to the nearest receiving facility.
Receiving facilities cannot legally refuse to accept persons brought by law enforcement
for involuntary examination for any reason. Once the officer brings a person to any
receiving facility, that facility must accept the person and then can send the person to
an acute care hospital for treatment of an acute medical condition. The facility should
never expect an officer to put the person back into his/her cruiser once a person has
been found to have a medical condition too acute for a receiving facility to manage. In
such a case, the receiving facility must "accept" the person and call 911 for an
ambulance to transport the person to a hospital.
The receiving facility should be able to handle certain conditions. Paralysis, for
example, may require a person to be in a wheelchair. The federal ADA would require
that a facility make reasonable accommodations to manage the person's care. Every
receiving facility is staffed with RN's and should be able to assess persons and provide
for most sub-acute medical needs. Each facility has medical staff and the 65E-12 rules
require some level of medical care to be provided to persons at the facility -- persons
are allowed by rule to be transferred out for "acute medical treatment" only and be
"medically cleared" before the person is accepted back to the receiving facility.
Is the use of law enforcement to provide transport for hospital transfers
appropriate? What about the use of restraints in such transports?
The federal EMTALA law requires among other things for a transfer to be appropriate,
that the sending facility be responsible for arranging safe and appropriate transportation
to the destination facility. If the person is under an involuntary status and remains
suicidal or homicidal, EMTALA continues to apply as the person continues to have an
"emergency medical condition". Transfer cannot take place until the person is stabilized
-- meaning the person's condition is not likely to deteriorate during or as a result of
transfer. EMTALA requires that the transfer be done through qualified personnel and
transportation equipment. This may mean use of mechanical, chemical or legal
restraints, if ordered by a physician due to safety reasons. Obviously this would entail
meeting EMTALA and Medicare/Medicaid Conditions of Participation.
The responsibility is that of the hospital, not of law enforcement to perform this transfer
duty. They have no duty to do this and their liability is much increased if they do take
on this non-discretionary activity. At least one hospital in the state has a contract with
the sheriff's office for off-duty deputies to provide this transport.
Mechanical and chemical restraints are governed by federal regulations and
accreditation standards. Legal restraints are governed by the Baker Act -- if a person
meets the criteria for involuntary examination, he or she should generally be transferred
on a voluntary status due to the ability of the person to change his or her mind prior to 50 arriving at the destination facility. The sending facility is liable for the person's safety
until securely in the destination facility, regardless of the method of transportation used.
Is a law enforcement officer required to sign the transportation form when
transportation is delegated to a transportation company? Does this form as well
as the involuntary examination initiation form have to be sent to the Baker Act
Reporting Center by the receiving facility?
Law enforcement is expected to always complete the front side of the transportation
form. In addition, they should complete and sign the back of the form when delegating
the transport to medical transport. Then the transport form as well as the initiation form
(BA 52a, BA 52b, or ex parte order) must be sent with the person to the receiving
facility. The law only requires the initiation form to be forwarded to the BA Reporting
Center by the receiving facility, not the transport form. However, both forms must be
retained in the persons medical record at the receiving facility.
What is a law enforcement officers responsibility for transporting person from
hospitals to receiving facilities??
The state's Baker Act requires law enforcement officers to transport any person for
whom an involuntary examination has been initiated to the nearest receiving facility.
However, if the officer believes the person has an emergency medical condition as
defined in s.395.002, FS, the person can be transported to a hospital for treatment,
regardless of whether the hospital is a designated receiving facility [394.462(1)(h), FS].
However, there is a federal law called "EMTALA" (Emergency Medical Treatment and
Active Labor Act) that intervenes here and trumps any state law with which it is in
conflict. EMTALA requires that a hospital accept any person who presents or is brought
to the emergency room for the purpose of performing a medical screening. If the ED
staff determine the person has an emergency medical condition (including psychiatric
and substance abuse emergencies), the hospital is then responsible for the person until
the emergency has been stabilized, including the persons discharge or transfer from
the hospital to another facility that has the capability and capacity to manage the
person's condition. This includes, among other responsibilities, the duty to provide a
safe and appropriate method of transportation to the destination facility.
There is no prohibition against a law enforcement officer providing this transport,
although Agency for Health Care Administration staff believes that such transfer
between hospitals is not an appropriate method of transfer. In fact, some law
enforcement agencies have contracts with hospitals to provide such transfers using off
duty officers. Generally, the sending hospital arranges with EMS to perform the
transfer.
The federal EMTALA law only governs hospitals. Law enforcement still is required to do
the primary transport of any person with an involuntary examination initiated. This
includes from nursing homes, ALFs, doctors offices, etc. However, the Baker Act 51 states in s.394.462(1)(d) that when a law enforcement officer takes custody of a person,
the officer may request assistance from EMS if assistance is needed for the safety of
the officer or the person in custody. This is often the case when the person is too frail
or medically involved to place him/her in the back of a cruiser.
52 Medical Records & Confidentiality
If photo IDs of new admissions are taken for security and safety reasons (for
internal purposes and to give to law enforcement if someone escapes or elopes),
is that a violation of the Baker Act if prior permission of the person hadnt been
obtained?
The Baker Act law and rules make no reference to photographs. However, the
photograph becomes part of the "clinical record" which is defined as all parts of the
record required to be maintained and including all medical records, progress notes,
charts, and admission and discharge data, and all other information recorded by a
facility which pertains to the person's hospitalization and treatment".
Therefore 394.4615, FAC and 65E-5.250, FAC governing confidentiality of clinical
records would apply. In this case, the photographs would be confidential unless waived
by express and informed consent by the person or his/her legally authorized substitute
decision-maker. The law provides for several specific exceptions. One of which
is found in 394.467(8), FS governing RETURN OF PATIENTS that states "When a
patient at a treatment facility leaves the facility without authorization, the administrator
may authorized a search for the patient and the return of the patient to the facility. The
administrator may request the assistance of a law enforcement agency in the search for
and return of the patient". In such cases, there is no prohibition of the use of a
photograph in assisting the law enforcement agency to search for the person.
In these circumstances, releasing the photograph only to law enforcement at a time of
unauthorized absence from the hospital is acceptable, assuming the person meets the
involuntary placement criteria.
If a person needs medications but refuses them and has been determined by a
physician not to have capacity to make his or her own treatment decisions, can a
facility staff legally call a family member or close friend to be a health care proxy
without his/her consent?
Yes. A facility can contact the person highest on the list of eligible proxies to seek his or
her involvement. The federal HIPAA law recognizes state statutory authority to
designate persons who will "stand in the shoes of the person", such as guardians,
guardian advocates, and health care surrogates and proxies. Chapter 765, FS states
that a person from the following list, in the order of listing, can be selected by the
provider, to act as proxy:
(a) The judicially appointed guardian of the patient or the guardian advocate of the person having a developmental disability as defined in s. 393.063, who has been
authorized to consent to medical treatment, if such guardian has previously been
appointed; however, this paragraph shall not be construed to require such
appointment before a treatment decision can be made under this subsection; (b) The patient's spouse; 53 (c) An adult child of the patient, or if the patient has more than one adult child, a majority of the adult children who are reasonably available for consultation; (d) A parent of the patient;
(e) The adult sibling of the patient or, if the patient has more than one sibling, a majority of the adult siblings who are reasonably available for consultation; (f) An adult relative of the patient who has exhibited special care and concern for the patient and who has maintained regular contact with the patient and who is familiar
with the patient's activities, health, and religious or moral beliefs; or (g) A close friend of the patient.
(h) A clinical social worker licensed pursuant to chapter 491, or who is a graduate of a court-approved guardianship program. Such a proxy must be selected by the
provider's bioethics committee and must not be employed by the provider. If the
provider does not have a bioethics committee, then such a proxy may be chosen
through an arrangement with the bioethics committee of another provider. The proxy
will be notified that, upon request, the provider shall make available a second
physician, not involved in the patient's care to assist the proxy in evaluating
treatment. Decisions to withhold or withdraw life-prolonging procedures will be
reviewed by the facility's bioethics committee. Documentation of efforts to locate
proxies from prior classes must be recorded in the patient record.
The Baker Act rules indicate that when a person has not executed an advance
directive, health care decisions may be made by an eligible proxy during the
interim period between the time the person is determined by the physician to be
Incompetent to consent to treatment and the time a guardian advocate is
appointed by a court to provide express and informed consent. Would there be
any conflict with HIPAA allowing a proxy to make decisions, since the person did
not have an advance directive?
No. HIPAA defers to the state laws in recognizing those individuals who are authorized
to "stand in the shoes of the person" for decision-making purposes in each state. This
includes guardians, guardian advocates, and health care surrogates/proxies in Florida.
The federal CMS/HIPAA website has a large number of frequently asked questions.
Three of them may help on this issue, as follows:
Does the HIPAA Privacy Rule address when a person may not be the appropriate
person to control an individual's protected health information?
Generally, no. The Rule defers to State and other laws that address the fitness of a
person to act on an individuals behalf. However, a covered entity does not have to treat
a personal representative as the individual when it reasonably believes, in the exercise
of professional judgment, the individual is subject to domestic violence, abuse or
neglect by the personal representative, or doing so would otherwise endanger the
individual.
54 How does the HIPAA Privacy Rule change the laws concerning consent for
treatment?
The Privacy Rule relates to uses and disclosures of protected health information, not to
whether a person consents to the health care itself. As such, the Privacy Rule does not
affect informed consent for treatment, which is addressed by State law.
Does the HIPAA Privacy Rule change the way in which a person can grant
another person health care power of attorney?
No. Nothing in the Privacy Rule changes the way in which an individual grants another
person power of attorney for health care decisions. State law (or other law) regarding
health care powers of attorney continue to apply. The intent of the provisions regarding
personal representatives was to complement, not interfere with or change, current
practice regarding health care powers of attorney or the designation of other personal
representatives. Such designations are formal, legal actions which give others the ability
to exercise the rights of, or make treatment decisions related to, an individual. The
Privacy Rule provisions regarding personal representatives generally grant persons,
who have authority to make health care decisions for an individual under other law, the
ability to exercise the rights of that individual with respect to health information.
Our facility will be going live with Electronic Medical Records. Is it okay to have
bar codes with the hospital logo on the mandatory Baker Act forms so they can
be scanned into the electronic record after a persons discharge?
Yes. Generally, the mandatory forms cannot be altered. In this situation the
mandatory form is not being altered; only a logo and bar code is added .for purposes of
electronic recording keeping or preprinting the name and address of the receiving
facility to the form. However, retyping the form/changing the format in any significant
way is not acceptable. Over 117,000 of these forms are inputted by USF/FMHI staff
each year and they can't be searching for the data elements to input.
55 Professional Credentials
The Baker Act requires a physician to have had experience in the diagnosis and
treatment of mental and nervous disorders. Can this be a general practitioner or
emergency physician who learned mental and nervous disorder in medical school
or must they have additional training?
Any physician who is licensed under 458 or 459 Florida Statutes has had some level of
experience in the diagnosis and treatment of mental and nervous disorders, whether it
is during rotations in medical school, residency, or in practice as a GP, family
practitioner, emergency physician, or other. There should be no problem as long as the
physician is fully licensed in Florida (except for physicians employed in VA hospitals
who are licensed in other states). There is no reference to specialized training to initiate
or conduct an involuntary examination.
I am a LMHC and would like to know whether my license authorizes me to initiate
an involuntary examination under the Baker Act?
As a licensed mental health counselor you will be able to begin initiating involuntary
examinations under the Baker Act effective July 1, 2005. There are certain other
functions in the Baker Act that can be performed by physicians, clinical psychologists,
clinical social workers, and psychiatric nurses (all as defined in the Baker Act) that
cannot be performed by a LMHC, unless the law is revised at some future time.
There are certain other functions allowed to physicians, psychologists, clinical social
workers, and psychiatric nurses that are not extended to LMHCs. LMHCs were
excluded from the definition of service provider in the Baker Act and are not authorized
to determine clinical appropriateness of proposed treatment plans for the purpose of
involuntary outpatient placement.
Can an Advanced Registered Nurse Practitioner initiate an involuntary
examination?
No. The Baker Act doesnt recognize the term Advanced Registered Nurse
Practitioner. It uses the term psychiatric nurse and it gives a very specific definition in
chapter 394.455 (23), Florida Statutes. This definition is: a registered nurse licensed
under part I of chapter 464 who has a master's degree or a doctorate in psychiatric
nursing and 2 years of post-master's clinical experience under the supervision of a
physician.
Many ARNPs were grandfathered in and may not have at least a masters degree.
Others may have a masters degree, but the degree is not specifically in psychiatric
nursing. In such cases, they are not psychiatric nurses in the context of the Baker Act
and cannot initiate an involuntary examination. The Baker Act has its own definition of
physician, psychiatrist, clinical psychologist, and clinical social worker. These 56 definitions, rather than the definitions in the licensure laws, must be used in Baker Act
specific settings.
Is an Advanced Registered Nurse Practitioner a psychiatric nurse under the
Baker Act?
NO. A "psychiatric nurse" must not only be licensed under chapter 464, but must have
a masters degree or a doctorate in psychiatric nursing and two years of post-masters
clinical experience under the supervision of a physician. If the ARNP meets these
training and experience criteria, they meet the definition of a psychiatric nurse. If not,
the ARNP may not initiate an involuntary examination under the Baker Act.
Why cant licensed marriage and family therapists initiate involuntary
examinations under the Baker Act?
The Legislature has never expanded the types of mental health professionals
authorized to initiate involuntary examinations to include licensed marriage and family
therapists. If a marriage and family therapist identifies a person who meets the criteria
for involuntary examination, he or she must refer the person to one of the other
authorized professionals, file a petition with the court for an ex parte order, or call law
enforcement.
Can a physician assistant initiate an involuntary examination under the Baker
Act?
NO. Just because physician assistants are licensed under chapter 458 and operate
under physician protocols doesn't make them physicians. The licensing law is a general
law that, when in conflict with a specific law governing the same subject, must defer to
the specific law -- the Baker Act. Only a physician, clinical psychologist, clinical social
worker, psychiatric nurse and licensed mental health counselors are authorized as
mental health professionals under the law to initiate involuntary examinations. While
many physician roles can be delegated to physician assistants under protocols, the
more specific statute of the Baker Act takes precedence in limiting this role to
physicians and the other specified professionals.
57 Long-Term Care Facilities
What was the major change in the 1996 Baker Act reform as it applies to long-
term care facilities?
The major change involved the process by which persons may be voluntarily transferred
to a psychiatric hospital and their rights under the Baker Act. However, violation by a
facility licensed under Chapter 400, F.S. of the voluntary, involuntary or transportation
provisions of the Baker Act became causes of action against such a licensed facility.
If someone in a long-term facility is acting in a manner that appears to be related
to mental illness and this behavior is escalating, what should be done?
First there should be an assessment done by the facility to determine if something in the
persons environment may be causing this behavior and steps taken to alleviate the
circumstances. If this fails, then consultation should be requested, i.e., psychiatrist,
physician, psychologist, social worker, mental health worker, case manager, mental
health coordinator in a licensed limited mental health assisted living facility, etc., as
appropriate. All appropriate attempts to address the problem by providing care should
be taken on-site prior to transfer and documented.
Are Baker Act receiving facilities equipped to treat behavior problems of person
with dementia and Alzheimer's disease?
Receiving facilities are designated by DCF to perform psychiatric examinations and
short-term psychiatric treatment. If the resident does not have a mental illness (as
defined in the law) and would not benefit from short-term treatment, they should not be
sent to a receiving facility. Instead, a transfer should be negotiated with another nursing
home that has the capability of meeting the resident's needs.
How can staff of a long-term care facility prevent harm to staff or other residents
by a person with severe behavior problems?
Nursing and social work staff should work with skilled consultants when necessary, at
the first sign of behavior problems. Interventions, including behavior management,
medications, redirection, comfort measures, change of rooms, one-to-one, revisions to
plan of care, and other services are often successful. Choices are not limited to picking
between the Baker Act and allowing staff/residents to be harmed.
A draft policy and procedure for working with behavioral problems of residents has been
developed by the Florida Health Care Association Quality Credentialing Foundation.
The tool is titled "Behavior Management/Aggression Control (Involuntary Baker Act
Guide) can be found at the end of this appendix. Use of this recommended Best
Practice Tool will prevent many unnecessary transfers and improve quality care in
nursing facilities.
58 If it is determined that a person needs to receive emergency psychiatric services
outside of a long-term care facility, what steps should be taken?
A decision must be made whether the person meets the voluntary or the involuntary
provisions of the Baker Act. They may not be sent out of the facility for this Baker Act
initiation to be made. No one should be sent to an emergency room for this purpose
emergency rooms are to be used for medical emergencies only; not to substitute for
responsibilities of the licensed facility.
Prior to certain persons being voluntarily transferred to a private or public receiving
facility (a designated psychiatric hospital or unit in a hospital, or a public crisis
stabilization unit) section 394.4625, F.S., requires that an assessment of the persons
ability to give express and informed consent to treatment, as defined in section
394.455(9), F.S., is to be conducted by:
a. A mental health overlay program that either contracts with the Department of Children and Family Services for this service or is part of a public receiving facility
that is also a publicly funded, not-for-profit community mental center or clinic which
contracts with the Department of Children and Family Services, or
b. A mobile crisis response service attached to a public receiving facility; or
c. A licensed professional who is authorized to initiate an involuntary examination and is employed by a publicly funded, not-for-profit community mental center or clinic
which contracts with the Department of Children and Family Services.
Which residents of nursing homes require an assessment prior to their transfer to
a Baker Act receiving facility?
The Baker Act only requires that persons from nursing homes have the pre-transfer
assessment for voluntary admissions if the resident is 60 years of age or older and has
any form of dementia and/or if the transfer is considered an emergency. If under the age
of 60, the law doesn't require such an assessment, unless the resident has a health
care surrogate or proxy making medical treatment decisions for him/her; in such cases,
the pre-transfer assessment for voluntary admission would have to be conducted
regardless of the resident's age.
It is important that the resident doesn't just consent to the transfer. They must be able
to provide well-reasoned, willful, and knowing decisions about their medical and mental
health care in order to be voluntary -- this is the definition of competence to consent and
is necessary for providing express and informed consent. If a nursing home resident
arrives at a receiving facility on voluntary status, regardless of age and isn't able to
make well-reasoned decisions, the person would have to be discharged back to the
nursing home or converted to involuntary status.
59 If you believe that certain nursing homes may have violated the Baker Act, you may
want to communicate to the nursing home that the Chapter 400 requires you to report to
AHCA any long-term care facility for failure to fully comply with the voluntary, involuntary
or transportation provisions of the Baker Act, by sending a report by certified mail on the
next working day after a violation occurs. However, before doing this, you might offer to
work with the facility to ensure that residents are fully protected as required by law.
Who does a long-term care facility or program call to get an assessment for
voluntary Baker Act admissions?
The Department of Children and Family Services district mental health program office
will direct the facility or program to the appropriate resource, in accordance with a plan
approved by that district administrator.
What if the voluntary assessment of a long-term care facility resident cannot be
done in a reasonable amount of time?
When a voluntary assessment program is not available or it cannot be done within two
hours after the request is made the requesting facility may arrange for assessment by
any physician, clinical psychologist, clinical social worker, or psychiatric nurse (each as
defined in the Baker Act), who is not employed by or under contract with, and does not
have a financial interest in, either the facility initiating the transfer or the receiving facility
to which the transfer may be made.
If it is determined by the long-term care facility that the person does not have the
capacity to consent to voluntary treatment, what should be done?
If the person doing the assessment does not complete a professional's certificate for
involuntary examination, the facility has the following options:
a. The facility may get a mental health professional (a licensed clinical psychologist, a physician, a licensed clinical social worker, or a psychiatric nurse, as defined in
section 394.455, F.S.), to initiate a professional certificate for involuntary
examination (CF-MH 3052b). At that time, law enforcement will transport the person
to the nearest designated receiving facility; or
Section 394.462(1)(k), F.S. provides for an exception to transportation by law
enforcement when a county has entered into a contract with a transport service.
However, the law enforcement officer and the transport service representative must
first agree that the continued presence of law enforcement personnel is not
necessary for the safety of the person or others. Preference for this transportation
service for persons in nursing homes, assisted living facilities, adult day care
centers, or adult family-care homes shall be given unless the behavior of the person
is such that law enforcement is necessary; or 60 b. Law enforcement may initiate an involuntary examination; however, they must have reason to believe that the person is a danger to themselves or others or be unable to
care for self; or
c. The circuit court may be petitioned for an ex parte order for involuntary examination.
What happens to a resident of a long-term care facility who gets to a Baker Act
receiving facility on a voluntary status from a nursing home or ALF without the
independent assessment? What happens if the resident is determined, once at
the facility, to lack the capacity to make well reasoned decision-making?
A facility's failure to obtain the independent assessment of a resident as required by law
and when required by law before sending a resident to a facility must be reported by
certified mail within one working day to AHCA by the Baker Act receiving facility. In
addition, a person who has been admitted to a receiving facility on a voluntary basis but
determined by a physician within 24 hours of admission to lack the capacity to make
well reasoned, willing, and knowing decisions about their mental health or medical care,
must be discharged from the facility or a petition for involuntary placement promptly filed
with the court.
Must a resident of a long-term care facility who is to have an involuntary
examination always have a certificate for involuntary examination, a report of law
enforcement, or a Judges ex parte order for involuntary examination completed
prior to the transfer of a resident?
YES. However, if the facility permits family or guardian to transport the resident for
involuntary examination, no report of the facility's failure to properly initiate the
examination by the receiving facility to AHCA is required. Allowing a guardian or family
to provide transportation of a resident for the involuntary examination may result in high
liability to the facility if harm occurs during such transport.
Does the long-term care facility have to have an independent mental health
professional conduct an evaluation prior to an authorized professional connected
with the facility initiating an involuntary examination?
NO. The independent assessment required under the Baker Act is limited to voluntary
admissions. An authorized mental health professional associated with the facility who
has personally examined the person within 48 hours of signing the Certificate and
whose observations are consistent with the criteria for involuntary examination is
authorized, without independent corroboration, to initiate an involuntary examination.
Is there a preference as to which of the three methods of initiating an involuntary
examination, e.g. Judge, law enforcement, or professional should be used for
residents of long-term care facilities?
61 YES. One of the four authorized mental health professionals (as defined in the Baker
Act) who is either employed by or under contract with the facility should always be the
first option to initiate the involuntary examination. This professional has the training and
experience to evaluate the residents condition and determine if a consultation by a
specialist would avoid the necessity of the transfer. It is essential that the Certificate
form be fully completed. Only in the case of a true emergency should a law
enforcement officer be expected to act for the professional associated with the facility.
If neither the authorized professional associated with the facility or a law enforcement
officer has seen behavior consistent with the involuntary examination criteria and a law
enforcement officer doesn't believe the criteria has been met, staff who have seen such
behavior should go to the probate office of the court and file a petition for an ex parte
order.
Can a long-term care facility residents family refuse to have the resident
transferred to a receiving facility for an involuntary examination?
NO. Such initiation of an involuntary examination is solely vested in an authorized
professional, judge, or law enforcement officer. Family members may request transfer
of the person to a different receiving facility, once the person has been taken to the
nearest receiving facility. However, the facility should listen carefully to the concerns
raised by the family and consider whether their concerns could be addressed in an on-
site evaluation, in order to avoid the possible problems to the resident that often result
from transfers.
What about the long-term care facility residents personal effects and medical
record when the person is transferred?
The sending facility should do an inventory of the persons personal effects such as
eyeglasses, hearing aid, dentures, jewelry, etc. that will accompany the person or
should be sent shortly thereafter. A copy of the medical record that shows current
medications, dosages, frequencies, and allergies should accompany the person being
transferred.
Does a long-term care facility have to notify anyone about the persons transfer?
YES. Section 400.0255(7), F.S., requires nursing homes to notify the persons legal
guardian or representative by telephone or in person before the transfer, or as soon
thereafter as practicable, with documentation in the residents file.
Does a long-term care facility residents health care surrogate or proxy have the
authority to give permission to transfer the person to a psychiatric hospital?
NO. The health care surrogate does not have the authority to give permission to
transfer a person, either voluntarily or involuntarily, to a psychiatric hospital.
62 Is law enforcement transportation required to take a resident of a nursing home
or ALF to a receiving facility for involuntary examination?
YES. The law requires that law enforcement be contacted and that they respond. If the
law enforcement officer determines that, for the safety of the officer or the resident, that
assistance from emergency medical personnel is needed, the officer can authorize EMS
to provide the transport. The officer is required to complete the CF-MH 3100 form titled
Transportation to a Receiving Facility, leaving the designated portions of the form to
be completed by EMS personnel. The transportation form, along with one of the three
documents initiating the involuntary examination, must accompany the resident to the
receiving facility.
Is a long-term care facility permitted to allow family members or guardians to
transport a person for involuntary examination?
The law only references law enforcement transportation, unless the officer determines
that emergency medical personnel are needed. Since the resident has been
determined, by virtue of the criteria for involuntary examination, to have refused or be
unable to consent to the examination and to be subject to self-neglect or overt harm to
self/others, facilities should consult with legal counsel about liability issues if persons
other than law enforcement are authorized to transport.
What are a long-term care facility choices when law enforcement refuses to
transport?
If law enforcement refuses to respond to the facilitys request for transporting a resident
for whom an involuntary examination has been initiated, it is recommended that the
facility administrator contact the supervisor of the officer refusing to respond. If the
supervisor doesnt assist, ask to speak with the attorney for the law enforcement
agency. If none of these options result in law enforcement response, the facility should
contact the district DCF mental health program office and or the AHCA field office. If it
occurs at night or on a weekend, and none of the above is available and the need for
transfer is urgent, the facility should seek EMS assistance to transport the resident to
the nearest receiving facility. On the next working day, the facility should contact DCF
and AHCA to seek long-term resolution of this problem.
Can nursing homes transport a resident who is stable enough and is in
agreement to go for treatment?
A person who is able to give well-reasoned decision-making and understands the
purpose of and is willing to go to a receiving facility meets the criteria for voluntary
examination (cannot be a person who has been adjudicated incapacitated or who has a
Health Care Surrogate or Proxy currently making decisions for them). In such cases, an
independent assessment of the residents capacity to make such decisions is required
before transfer.
63 Must a resident of a long-term care facility always be transported to the nearest
receiving facility?
a. If a person is to be treated voluntarily and has been determined by the assessment to have the capacity to consent to treatment, the person may be transported to the
facility of his/her choice.
b. If the person is transported on an involuntary basis by law enforcement or a county contracted emergency medical transport service, the person must be taken to the
nearest receiving facility.
c. A person who is involuntary and is personally driven by a family member or guardian does not have to go to the nearest receiving facility.
d. Section 394.462(3), F.S., provides for exceptions to transportation requirements if there is a district plan approved by the Secretary of the Department of Children and
Families.
What should happen to a long-term care facility resident when the nearest
receiving facility is at capacity and not accepting new admissions?
A receiving facility must "accept" any person brought by law enforcement for involuntary
examination. If at capacity, the receiving facility must contact other facilities in the
community to find one with the capability and capacity to serve the person, and initiate a
transfer. If EMS has been delegated responsibility by law enforcement via use of the
3100 form, the receiving facility is required to accept the person if presented by law
enforcement. If the receiving facility is a licensed hospital (not a CSU) it must accept
the person regardless of who provides transportation, if the person has an emergency
psychiatric condition, (EMTALA). If receiving facilities are refusing to accept persons for
involuntary examinations, complaints should be made with AHCA and DCF staff.
After residents are returned from the receiving facility to the nursing home or
ALF, they are often so somnolent from new medications the behaviors are gone
but the resident has declined in function. This apparent over-medication
causes the facility staff to attempt a dosage reduction that often causes the
psychiatric symptoms to escalate. What should the facility do?
Facility staff should not attempt to reduce medications. They should keep the attending
physician informed of the resident's condition, on a daily basis, if necessary, and follow
doctor's orders. If the facility cannot meet the resident's mental health or medical
needs, the resident should be transferred to another facility.
Can a nursing home or ALF refuse to take a resident back after the resident has
undergone examination and treatment at a receiving facility?
64 While a facility should not accept a resident back if their needs cannot be met, such a
determination by the facility administration must be made in conjunction with the health
assessment conducted after examination and treatment at a receiving facility and
clearly documented in the chart. Federal and state requirements for transfer and
discharge must be observed, even under emergency conditions. Given that such
residents will generally be transferred to another nursing home, licensed and staffed the
same as the first nursing home, this may indicate the first facility should have been able
to manage the residents condition.
If a district doesnt have a state funded service to perform the independent
assessment of persons from long-term care facilities, the law requires that the
assessment be completed by an independent professional who is not employed
by or under contract with, and does not have a financial interest in, either the
facility initiating the transfer or the Baker Act receiving facility to which the
transfer may be made. Does this requirement only apply to voluntary
admissions? Who pays for the assessment?
This section of law applies only to voluntary admissions. An involuntary examination
can be initiated by an employee or contractor of the facility. This heightened protection
of "voluntary" admissions was to keep facilities from sending everyone as voluntary,
when it is clear that the resident can't give well-reasoned, willful, and knowing decisions
about his/her care -- the definition of competence to consent.
The issue of who pays for this independent professional assessment is not addressed in
the law or appropriations' act. Medicare, Medicaid, private insurance, or self-pay may
all be considered. This provision will rarely be needed since most long-term care
residents who require inpatient psychiatric care will not meet the definition of
competence, i.e. being able to make well-reasoned, willful and knowing decisions about
medical or mental health care.
The Baker Act allows certain mental health professionals to execute a certificate
stating that he or she has examined a person within the preceding 48 hours and
finds that the person appears to meet the criteria for involuntary examination...."
Many times, a qualified professional has examined the person within the previous
48 hours and felt that if certain criteria present themselves or continue in the near
future, the person would be eligible for an involuntary examination. If staff on
duty at an ALF or SNF call the professional to report ongoing or increased
symptoms or behaviors within the 48 hours after the professional last saw the
person, could the "Certificate of Professional Initiating Involuntary Examination"
be completed and faxed to the facility to be sent along with law enforcement to
the receiving facility?
There may be a problem with staff who are not authorized professionals using their own
observations to reach conclusions that are reserved in the law to one of the specified
professionals. If the person did not meet the criteria for involuntary examination at the 65 time the professional performed the exam, the professional would have to re-exam to
determine that the clinical status of the person had deteriorated. The 48 hour period
simply gives the professional time to complete the paperwork following the exam when
necessary.
66 Baker Act Forms
Where in the Baker Act does it require forms to be completed correctly? Can a
facility refuse to accept a person if the forms arent completed correctly?
A receiving facility cannot refuse anyone brought by law enforcement for involuntary
examination, even if the form hasn't been correctly completed. However, the failure of
one professional doesn't relieve a designated receiving facility or a hospital from
carrying out its state and federal responsibilities.
Facility staff should communicate with the initiator as soon as possible to get corrected
information and to ensure that it doesn't happen again. If that doesn't work, the initiator
should be reported to his/her superior or to the licensing board, or AHCA. In any case,
as a designated receiving facility, it has the right to hold the person rather than releasing
them to the street.
If the facility is a hospital, it also has its EMTALA responsibilities. Any person presented
to a hospital ED must undergo a medical screening to the full capability and capacity of
the hospital and if the person has an emergency medical condition (including
emergency psychiatric or substance abuse conditions), must be admitted or be
stabilized and transferred under the conditions required by EMTALA.
The top of the Certificate of a Professional Initiating Involuntary Examination (BA-52b)
requires that all sections of the form must be completed and be legible.
Is an ED of a hospital required to submit the initiating documents for involuntary
examinations to the Baker Act Reporting Center if the person is never admitted to
a psychiatric unit?
If a person is brought to a hospital that is associated with a designated receiving facility
with an involuntary examination already initiated, the initiating document must be
submitted with a completed cover sheet to the Baker Act Reporting Center on the next
working day. This requirement applies whether the person is admitted to the facility or
not, whether the person is brought for medical examination/treatment and
transferred/released or not. If the hospital is not associated with a Baker Act receiving
facility, it isnt required to submit the form.
Sometimes a psychiatric unit of a general hospital may be in a separate building on the
same premises. In such cases, the whole hospital is designated as the receiving
facility, not just the psychiatric unit. Once the person is "accepted" at any part of the
hospital, it is obligated to submit the form. The psychiatrist, psychologist or ED
physician is authorized to perform and document the involuntary examination prior to
releasing the person from the hospital or converting the person to voluntary status. The
exam includes the Mandatory Initial Involuntary Examination required in 65E-5.2801
and a determination that the person doesn't meet the criteria for involuntary inpatient
placement or involuntary outpatient placement. Before converting to voluntary status, 67 the doctor is also required to certify the person is able to make well-reasoned, willful
and knowing decisions about his/her mental health and medical decisions.
When a receiving facility submits the Baker Act Coversheet along with a copy of
the involuntary examination initiation form, what is required to prove that these
documents were actually submitted?
The facility would just need to keep a copy of the completed cover sheet in the persons
chart reflecting the date the person arrived at the facility (date completed) and the date
the form was submitted to the Baker Act Reporting Center. There must be a cover
sheet attached to each initiation form and they must be submitted within one working
day to the Reporting Center. However, the facility can put as many in an envelope as
involuntary initiations received that day or weekend. Submitting these documents by
registered or certified mail is not required and would be an unnecessary expense and a
workload issue on the facilitys end as well as the Reporting Center.
68
Download LEGACY.pdf
Comments
Google Search
RECENT SEARCHES
jabra hf5001 set up | Christopher Hagerman | COMMAREXSECGRU TWO xo | Cub Cadet Volunteer Service Manual | Saphouvong Khamhou | edward gorlo | nancy hale beasley | Lerlean Cotten | mariah johnson rabb | 2006 cub cadet utility vehicle specs | orbis terrarum descriptio duobis planis hemisphaeriis comprehesa | multiple choice exam in money market | sh7619 toppers | cub cadet volunteer fuel system | jabra hf5001 iphone 4 | hwic 3g gsm configuration | oystercatchers watercolours | motorola IHDT5SZ1 EE3 | jeff horowitz and money laundering | joseph thors signature | Virginia Beach Ciric | Lewis Burrell Buford | detyra te zgjedhura nga matematika | Flow Of Document Kendaraan | henze illinois | how long does a deros extension take usaf | dsp wells fargo | rachimah fraval | part number 69e6219 | Kristina Bicking | qerim pllana | johnny chriscoe | PO BOX 831830 RICHARDSON TX 75083 | smpte 381m | cathy l codrea | gregory luhn | Jabra speakerphone hf5001 instruction | jabra hf5001 pairing | 1NCD LCDR Kamensky | SMPTE 429 encrypt 6 essence | 0h | barry bohmueller | cotm presentation | vehibe ece toros | orbis terrarum tabula recens emendata et in lucem edita | 922646BJ2 | professor glenn jonas campbell university nc | naim gjoshi zyrtar ne kuvend | Kimberly Tassinaro allentown | ATTENTA PO BOX 803356 DALLAS TX 75380 FAX |
Hot Tags
interference Ballys Las Vegas Bed In A Bag Bmg Music Barbecue Accessory air travel american singles australian domain name Bridal Show domeinnaam Baymont antique maps neotion video link Book Marketing yahoo domain name global wireless matrix Bradstreet Bad Credit Consolidation Binding System attorney florida injury american equity mortgage adwords Beer Tap Buy Wine Online Animal Print Rug att store wireless at t dsl running races nc fall 2008 Accept Credit Card Asbestos Litigation
Related Articles
- Dig
- Print spr03sar
- Discovery Ball Raises $382,000 for Cancer Care
- Tampa Tribune
- katie, what a memory
- 52520-newsletter
- files.meetup.com/299468/2008 SD Rock & Roll Results.xls
- St. Luke's Report to the Community 2004
- A Partnership with the Future.
- LEGACY
- Monday 28 July 2008
- Veteran eteran eteran eteran eteran
- Building a Community of Hope— 5th International PHA Conference
- www.einetwork.net/member/ils/2006/feb06inproc.xls
- 2005 2006
- BOA-Sm Bus Cat-FEB07
- BOA-Sm Bus Cat-FEB07
- CLWB ATHLETAU HARRIERS CAERFYRDDIN A'R CYLCH
- feb03version1
- Layout 1
Popular Articles
- STUDENT – LONG DISTANCE ACCESS CODE REQUEST FORM – STUDENT
- AUTOMOTIVE TECHNOLOGY
- In his State of the Union address, President Bush (will propose ...
- April Whitlock
- www.vertex42.com/Files/auto-loan-calculator.xls
- Federal Student Loan Network
- E-MAIL SECURITY SERVICES | In Brief
- ROAD TRAVEL REPORT: MOROCCO
- Statements Within Statements
- PASSENGER INDEX PUBLICATION VO IS PG TYPE CLASS SUBJECT DATE LOCATION ...
- Treatment of Obsessive Compulsive Disorder and Comorbid Social Phobia
- ATIONAL
- Balance Balance
- Microsoft Word - mod 03_top1
- Taxes on Connecticut Business & Industry
- INSURANCE DEPARTMENT OF BANKING AND INSURANCE PROPERTY AND CASUALTY ...
- Rasmus Bjørn: Sweet To The Bone
- Some Thoughts on the Source of Return to Managed Futures
- portseattle.org/downloads/about/commission/RM_20080122_Minutes_Linked.pdf
- microsoft PowerPoint - Kamat-Bladder cancer support group.ppt