72 Hours…The Baker Act Process
I was a social worker at a for-profit hospital in Florida. I wrote this piece because as I began my first role in an in-patient setting in the mental health field, it shocked and disappointed me how many family members, patients, healthcare workers, and even law enforcement officers were unaware of the complex aspects of the Baker Act process. A 26 year old female brought herself to the emergency room for depressive symptoms and passive suicidal thoughts. She believed that since she presented to the hospital herself, that she would be able to leave whenever she chose to and was merely seeking resources and possibly a medication adjustment. However, when psychiatry was consulted and assessed her, she was subsequently Baker Acted and admitted to our Behavioral Health Unit. She was angry, tearful, and very confused as to how she could be forced to stay in a hospital despite no one forcing her to come to the hospital in the first place. Upon assessing her, I explained the Baker Act process in detail, but the damage had been done-she no longer trusted the mental health system to support her when she needed it.
I became gravely concerned at the amount of misinformation and genuine ignorance of people as it relates to what an involuntary hold actually looks like. I was also surprised by the amount of readmissions I saw. We have developed a system of treating mental illness that consists of acute stabilization with psychotropic medications. These medications can have severe adverse effects and can cause significant challenges if stopped abruptly, which encourages patients to stay on them long-term despite their lack of efficacy. In short, it appears as though America has managed to use 72 hours to create a patient forever. I wanted people with mental health challenges and their family members to have a complete understanding of what the Baker Act process looks like so that they can advocate for themselves and others.
The Baker Act
72 Hours. That’s the standard “holding time” for a patient hospitalized under a Baker Act (also called a 51/50 in other states or involuntary hold) status. Which means they either came to the hospital by themselves, by ambulance, by law enforcement, or brought in by someone concerned enough about their well-being to decide that the person needs a psychiatric evaluation. Most people don’t know this, but even if a patient comes to the hospital voluntarily, they can still be converted to a “Baker Act” in the great state of Florida. Another piece of information most people are missing is the fact that if they present to the emergency department, their Baker Act clock doesn’t start until they are medically cleared to come to the behavioral health unit. Once moved to this floor, a technician will perform a “skin check” and write down piercings, tattoos, and any marks/lesions/bruises that are apparent or not so apparent on your body. Then the technician goes through every piece of property that you have on your person and documents your belongings. An RN will take your picture so that other hospital staff can identify you. The next step is to sign consent forms. You’re asked to consent to treatment, but what are you even consenting to? Florida Statutes state that “Express and informed consent” means consent voluntarily given in writing, by a competent person, after sufficient explanation and disclosure of the subject matter involved to enable the person to make a knowing and willful decision without any element of force, fraud, deceit, duress, or other form of constraint or coercion.
You’re required to sign a consent form for every medication prescribed. You’re required to sign a general consent for treatment. However, most patients have zero understanding of what a Baker Act is, the process, the difference between voluntary versus involuntary status, and the requirements to be considered competent or incompetent. And most patients (and some staff) use the phrase “Voluntary Baker Act” which is a complete contradiction.
Voluntary Versus Involuntary & Incompetent Versus Competent
At the time you are admitted to a behavioral health unit in a hospital setting, your psychiatrist must determine whether or not you are going to be considered voluntary or involuntary and competent or incompetent. These are legal statuses and they determine your plan of care in a hospital. Per Florida Statute 394.467, a person can be admitted involuntarily for inpatient placement if:
(a) He or she has a mental illness and because of his or her mental illness:
1.a. He or she has refused voluntary inpatient placement for treatment after sufficient and conscientious explanation and disclosure of the purpose of inpatient placement for treatment; or
b. He or she is unable to determine for himself or herself whether inpatient placement is necessary; and
2.a. He or she is incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, 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; or
b. There is substantial likelihood that in the near future he or she will inflict serious bodily harm on self or others, as evidenced by recent behavior causing, attempting, or threatening such harm; and
(b) All available less restrictive treatment alternatives that would offer an opportunity for improvement of his or her condition have been judged to be inappropriate.
Per the National Alliance of Mental Illness, a person is considered voluntary if “a person goes for psychiatric evaluation and the evaluating mental health provider and patient agree that the patient would benefit from hospitalization and meets criteria for hospitalization.”
At the same time your psychiatrist is also assessing your competency. Florida Statutes state that “Incompetent to consent to treatment” means a state in which a person’s judgment is so affected by a mental illness or a substance abuse impairment that he or she lacks the capacity to make a well-reasoned, willful, and knowing decision concerning his or her medical, mental health, or substance abuse treatment.
At any point during your stay in the hospitalization, your psychiatrist can change your voluntary and competency status.
After 72 Hours
If you are admitted to a behavioral health unit, be advised that this is an acute setting. 72 hours is usually the amount of time you’re expected to be in the unit. However, if your 72 hour “holding period” is up and your psychiatrist believes that you are still an imminent danger to yourself or others or that discharging you will have severe negative consequences for your health, then he/she has the ability to convert you to a “32 status.” This is the option the psychiatrist has to continue your stay in the hospital if he/she does not believe that converting your status to voluntary is appropriate. If the physician does believe that converting your status to voluntary is appropriate, you are required to sign a voluntary form. It is at this point that you also have the right to request your release at any time. If you request this, the hospital has 24 hours to honor your right to release and discharge you from the hospital. However, if you are converted to a 32 status, this means that two psychiatrists have agreed that if you are discharged, there will be negative consequences severe enough to warrant going to mental health court to ask a judge to rule over whether or not you will be legally required to stay in the hospital. It also means that both psychiatrists agree on the given diagnosis. Mental health court involves you, a public defender, a guardian advocate (if requested,) an attorney for the hospital, a psychiatrist, and perhaps a social worker and/or a Baker Act Coordinator. The patient is not required to attend the hearing. All parties testifying are sworn in at the beginning of the hearing. The psychiatrist is usually the first to testify. They are asked what the patient’s diagnosis is, what medications are being prescribed and what they are for, how many emergency treatment orders (if any) have been given, does another psychiatrist agree with their diagnosis and course of treatment, has a guardian advocate been requested, and (the most important question) have All available less restrictive treatment alternatives that would offer an opportunity for improvement of his or her condition have been judged to be inappropriate at this time? The last question is the most important because physicians have an obligation to the patient to assess what the least restrictive environment would be for the patient-ie. is it likely that the patient would be safe and capable of continuing treatment in an outpatient setting or would that setting cause the patient harm due to him/her requiring a higher level of care?
After the psychiatrist is questioned by both attorneys, the guardian advocate (if requested) is asked to testify.
If you are considered incompetent and your psychiatrist has requested a mental health court hearing, they are required to request a guardian advocate. “Guardian advocate” means a person appointed by a court to make decisions regarding mental health treatment on behalf of a patient who has been found incompetent to consent to treatment as defined by Florida Statutes. This is usually a family member, but if the patient has no social support or anyone to advocate on his/her behalf, the state is required to provide a volunteer advocate. The guardian advocate is first asked what their current concerns are about the patient’s mental status and/or behaviors. The court takes into account the patient’s history, but the hearing is focused on the current status of the patient. The guardian advocate is then asked if they are willing to make mental health (and at times medical) decisions on behalf of the patient, if they have the time to do so, if their history with the patient would interfere with them performing these duties, if they are aware of their right to discuss the plan of care with the patient’s doctor, if they are aware that they can consent to or refuse medications on behalf of the patient, and will they discuss all future treatment decisions with the patient?
The next witness would be the clinical social worker-some times their testimony is requested and other times it is not. The social worker is asked what behaviors they have personally observed of the patient, how many times he/she has met with the patient, have they spoken to the guardian advocate about his/her concerns, and is there a less restrictive environment appropriate for the patient at this time?
Prior to the judge’s ruling, the patient has the right to make a statement. The patient is asked if they are discharged, will they continue taking medications as prescribed, will they follow up with an outpatient provider, and is there anything else that they would like to share with the court at this time?
After the judge hears from all parties that have been sworn in to testify he/she will make a ruling of whether or not it is the court’s opinion that you have whatever diagnosis the psychiatrist proclaims you do and whether or not you need to stay in the hospital for the time requested by the psychiatrist. In my experience, psychiatrists request an additional 4-6 weeks for continued treatment.
After Court
After mental health court if you have a guardian advocate, from this point on in your stay in the hospital, the advocate is responsible for making treatment decisions for you. The guardian advocate will consent to what medications you are prescribed. He/she can also authorize the use of injectable medications if you are refusing oral medications. The control that you have is minimal. You may stay in the hospital for the full period of time requested by your doctor, or you may be discharged before this depending on whether or not your psychiatrist believes you would be able to be successfully treated in an outpatient setting.
In Reality
It is an entirely plausible scenario that you bring yourself voluntarily to the hospital, stay for 72 hours, request to be discharged and instead of being discharged, you can have your legal status changed to involuntary, be forced to go to court to plead your case, and if the judge rules in favor of the psychiatrist, you can be forced to stay in the hospital for weeks. It’s also possible that if you have refused medications up until this point (which is your right,) a guardian advocate can be appointed to make medical and mental health decisions on your behalf including you taking prescribed medications. And if you refuse oral medications, they can consent to intramuscular injections on your behalf.
The field of psychiatry transitioned from treatments such as blood-letting, lobotomies, trephination, isolation, insulin comas, metrazol therapy, and ECT (which is still widely used today) to seeing patients for 72 hours and prescribing psychiatric medications that have such severe side effects that we have to prescribe them additional medications to offset the side effects of their antidepressants and antipsychotics. We also recommend that patients continue these medications indefinitely or suffer the consequences of discontinuing them.
To put it simply, it takes 72 hours to create a forever patient.
Statutes & Constitution :View Statutes : Online Sunshine (state.fl.us)
