The Baker Act, Part I: Need-to-Know Facts about Patient Rights

Addiction is a disease that affects more than 23.5 million people every year. Since it alters the way the brain functions, the medical community considers addiction to be a mental health issue. In the state of Florida, laws that oversee the treatment of mental illness date all the way back to 1874. The Florida Legislature revised these laws in 1971 with the passing of the Florida Mental Health Act. This particular law, also called the Baker Act, protects the rights of patients who receive professional mental health care.

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About the Baker Act

The Florida Mental Health Act received the alternate name “Baker Act” for Maxine Baker, the former State Representative who sponsored it. Representative Baker served as one of the chairpersons of the House Committee on Mental Health at the time. This law calls for emergency or involuntary institutionalization for anyone struggling with mental health issues who refuse to or cannot commit themselves. Under this law, patients must enter treatment if ordered by a judge, law enforcement official, physician, or mental health professional. However, the patient in question must show signs of mental illness for involuntary commitment to be legal.

Since its initial introduction into state law, Florida lawmakers have revised the Baker Act several times to incorporate better civil and due process rights for patients with mental health issues. In the 1996 amendments, the Act expanded its rights and protections to include patients who voluntarily seek treatment.

The Purpose of the Baker Act

When the Baker Act passed, Representative Baker emphasized that its purpose was to encourage people to enter mental health treatment voluntary rather than involuntarily. Eventually, it did. Baker also asserted that, through this Act, the hospitalization process and any legal operations involving patient incompetency would be separate. The purpose of this was to increase the quality of care for people in treatment for mental illness. This separation also helps patients return to everyday community life once treatment is complete.

The Baker Act Patient Rights and Protections

The Baker Act lays out a list of fundamental rights for mental health patients. Every Florida treatment facility must honor these rights, which include:

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The Right to Individual Dignity

Under the Baker Act, mental health patients must receive dignified treatment from others during both the commitment process and their time in therapy. Simply put, this means that the facility and its staff must recognize and uphold the patient’s constitutional rights throughout the entire treatment process.

This right also means that a patient cannot be treated like a criminal unless it’s necessary for his/her or others’ protection. For example, a law enforcement officer cannot put a patient in handcuffs unless the patient is perceivably dangerous. In other words, protocols for criminals apply only to criminal patients. Even then, criminals entering mental health treatment still have the same constitutional rights as anyone else.

The Right to Habeas Corpus

The phrase “habeas corpus” means “you shall have the body (in court)” in Latin. As it pertains to law, a writ of habeas corpus is an action that ensures that a person cannot go to prison without first appearing in a court of law. In other words, habeas corpus protects people from unlawful imprisonment after the initial police arrest. However, contrary to popular belief, it is not the same as the right to a fair trial.

For mental health patients who are under arrest, the Baker Act allows them to use habeas corpus for extra protection. This means that patients are within their right to:

  • question the cause (and legality) of the arrest or incarceration
  • challenge any abuse of procedure during or after the arrest
  • dispute any wrongful denial of their rights or privileges

The Baker Act also allows advocates to use habeas corpus on behalf of the patient in question. This includes parents, relatives, legal representatives, and even friends.

The Right to Receive Quality Treatment

The Baker Act enforces everyone’s right to mental health treatment. This particular right has several layers to it. Overall, this right protects mental health patients by ensuring that the facility:

  • performs a physical examination within 24 hours of arrival, if the patient is there for 12+ hours (i.e., if the patient needs inpatient treatment)
  • cannot deny or limit treatment based on a patient’s ability or inability to pay
  • builds an individualized treatment plan within five (5) days of admission
  • provides adequate, appropriate, and minimally restrictive treatment
  • allows the patient to assist in the treatment planning process

Every treatment facility that operates under the Baker Act must give each of its patients any and all of the services that meet their individual needs. The services that the Act requirements for protected patients include:

  • social
  • medical
  • educational
  • rehabilitative
  • vocational (i.e., services that relate to the patient’s occupation)

Additionally, this Baker Act right requires that patients receive their treatment safely and humanely. As such, treatment facilities are expected to 1) have and practice safe methods of conflict resolution and 2) exact discipline as needed for patient safety. For example, if two patients in treatment are always fighting, then the facility might resolve this by making adjustments to their schedules or accommodations to keep them separated.

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The Right to Advance Directives

Under the Baker Act, mental health patients have the right to prepare advance directives. This means that they can specify what kind of mental health care they want or don’t want. Advance directives also allow patients to choose a healthcare professional to make decisions on their behalf in the event of an emergency.

Also, mental health treatment facilities that operate under the Baker Act must keep their patients informed about their policies regarding advance directives. Furthermore, facilities must also document any advance directives that their patients present.

Any mental health facility that operates under the Baker Act must also make reasonable efforts to honor their patients’ advance directives. Otherwise, they must transfer patients to other facilities that can better accommodate them and their requests regarding treatment.

The Right to Express and Informed Consent

Like with any civil or due process, a mental health patient entering treatment has the right to express and informed consent. This means that he or she must 1) be willing to complete treatment, and 2) know what to expect. For the latter, if a facility fails to prepare a patient for what treatment entails, it has violated the patient’s right to informed consent.

For a facility to obtain informed consent from a patient, it must provide specific information about treatment, including:

  • the reasons for admission (for involuntary patients)
  • how long the patient will be within the facility’s care
  • the proposed treatment method or plan, as well as its side effects and any available alternatives

Additionally, any facility that operates under the Baker Act must also inform their patients that they are within their right to revoke any oral or written consent at any point before or during treatment. However, since not every mental health patient enters treatment voluntarily under the Baker Act, sometimes consent is not theirs to give or revoke.

In cases where mental health patients in need of treatment are unable to give consent themselves, the responsibility falls on a parent or guardian. For example, if a teenager needs to enter addiction treatment, that teenager’s parents are within their legal right to send their child to treatment, regardless of whether the teenager has consented or not. Situations like this are why the Baker Act was created.

The Right to Confidentiality

One of the strictest regulations of the Baker Act is confidentiality. When a patient receives mental health treatment, the facility must protect all information about the patient and the stay. The only time that information like this is released is if the patient or a legal guardian consents to it. For example, the patient’s parents might have access to sensitive records if the patient gives the facility permission to disclose them. Additionally, patients themselves can have reasonable access to certain personal records. Otherwise, the facility and staff cannot share any patient information the patient’s or guardian’s express permission, with very few exceptions. Special circumstances in which a mental health facility can legally share patient records with others include when 1) attorneys need them for a court order, or 2) aftercare programs require certain documents to continue the patient’s treatment.

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The Right to Care of Inventoried Personal Effects

The Baker Act also protects the personal property of mental health patients. When a patient enters treatment, the facility must take care of the patient’s personal effects as much as the patient. This applies to both voluntary and involuntary patients. The only time a facility is within its right to confiscate private materials is if they pose a risk to the patient or others. For example, if an admitted patient has a pocket knife, the staff would take it and keep it inventoried until the patient completes treatment. In cases like this, at least two facility staff members must review and log the confiscated personal item(s).

The Right to Choose a Representative

Patients who enter treatment under the Baker Act have the right to designate a person to be their representative. This right applies to both voluntary and involuntary admissions. In addition to serving as the emergency contact, a patient’s representative is also the facility’s point of contact for updates about the patient. For example, if a teenager is in addiction recovery, the parents or guardians might be the designated representatives.

If the patient is not able to designate a representative, the responsibility falls on the facility. In instances like this, the facility would refer to a prioritized list of people from the patient’s life. This might include family, friends, doctors, or anyone else who is well-informed about the patient’s condition and entry into treatment. However, designating a representative is not mandatory. If a patient chooses not to notify anyone of his or her admission into treatment, the facility must honor that decision. Also, patients have the right to change who their representatives are at any time.

The Right to Communication

This Baker Act-protected right allows mental health patients to maintain free and private communication with people outside of the facility. This includes phone calls, e-mails, letters, or visits from guests. The only time a facility can legally restrict a patient’s outside communication is if it is harmful to the patient or others. For example, if the staff catches a patient’s guest sneaking drugs into the facility, they can ban that guest from any future visitation. In extreme cases like this, the facility may monitor the patient more heavily going forward.

If communication for a patient is restricted, the facility must give written notice to explain why. Additionally, the facility must review restrictions like this every seven (7) days. It’s also important to note that the only form of communication that a treatment facility cannot restrict is emergency calls. Under the Baker Act, mental health patients must always have access to the phone for calls to their attorneys or the Abuse Registry. This allows the patient to report incidents of poor treatment freely. Setting restrictions for calls like this are not permitted under any circumstances.

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The Right to Voting in Public Elections

Even when it comes to long-term residential care, the Baker Act protects any mental health patient’s right to vote. In fact, since the right to vote is a Constitutional one in the United States, there isn’t anything that can take it away from anyone. So, if a person in inpatient treatment is 18 or older and is registered, he or she is eligible to vote in any primary or general elections. Additionally, if a patient becomes eligible to vote during the treatment process (i.e., if the patient turns 18 while at the facility), he or she has the right to register to vote.

The Right to Request Release

This Baker Act right has to do with discharge during or after treatment. Even though the protocols for voluntary and involuntary admission differ slightly, the Baker Act legally grants each patient the opportunity to be part of discharge planning.

The Right to Discharge

Voluntary patients can leave their treatment facility by submitting a request. They can also be released if:

  1. their condition has improved to the point where inpatient treatment is no longer needed
  2. a family member or legal guardian submits a request for their release, or
  3. they decide to refuse or revoke consent for treatment

Involuntary patients do not have these same options. Still, it’s important to note that facilities cannot legally hold involuntary patients for more than 72 hours. After that, the facility must do one of five things:

  1. release the patient
  2. send the patient to outpatient treatment
  3. file a petition for involuntary admission with the circuit court
  4. surrender the patient into police custody if (s)he is charged with a crime
  5. get express and informed consent from the patient for voluntary admission

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Learn More About Your Rights as a Patient at The Treatment Center Residential Care

As a rehabilitation facility in South Florida, The Treatment Center is one of many that operates under the Baker Act and its revisions. The rights listed here are rights that you or someone you know would have as a patient with us. If you have any questions about our policies or procedures surrounding the Baker Act and its protections, please contact us at (844) 201-3136.