How to fight the Baker Act?
August 24, 2010 8:14 PM   Subscribe

My daughter has been detained under Florida's Baker Act. A statement she made to a social worker was mis-interpreted, and she is being held against her will at a mental health facility.

Longer version: She's a college student, just turned 18, so she is an adult as of May. A counselor at her school mis-interpreted something that she said to mean that she was in immediate danger of harming herself. I have spoken to her about this, and she swears that she was mis-understood. This social worker called to police, and she has now been held mostly incommunicado since Sunday evening, late. She just want to go back to her dorm and classes.

According to the law, if they deem she requires further in-patient detention, they must take her before a judge and hold a competency hearing. The judge visits their facility every Thursday for this specific purpose. By the book, they can't legally hold her past 1:45 AM thursday -- except to detain her until the hearing. If they decide to keep her tomorrow, and hold a competency hearing, do I need to lawyer up immediately? Can I even retain a lawyer for her, since she's an adult, or does she need to retain one herself? She has no phone and no money where she is, currently -- I can only speak to her if she happens to be within reach of a single ward phone in the dayroom. They don't let her call long distance, except collect -- I am in another state, almost 1500 miles away and she has no friends or family close by. She's been in Florida for 2 weeks, exactly.

How do these things usually play out? They have no grounds, but have kept her for three days, already, each day saying they would release her that day, then changing their minds. Today it was because she didn't eat all of her breakfast. When I spoke to her this evening, she told me the food was terrible. She has NO eating disorder, or history of one. Then, they said this afternoon she seemed depressed. (NO SHIT -- she's locked up against her will in a state far, far from home, and no one will tell her what the hell is going on. What is a proper emotional response to being kidnapped by the system?)

What kind of lawyer will she/I need? Do I need to get my ass in the car and drive to Florida NOW? Do I have TIME to get a lawyer between now and Thursday -- whenever the hearing might be? Are there any not-crazy (Beware Scientologists are lurking around this thing, pretending to be anti Baker-Act advocates. They're not.) groups that advocate on behalf of people wrongly detained under this act? What are the odds that she'll be remanded to the state "indefinitely?" This is a normal 18-yer-old college kid who has occasional anxiety issues, and takes an ant-anxiety medication. She's a fully functioning member of society, very intelligent, motivated and organized. Moreso that 95% of kids her age. Do I have anything to fear? Help?

I'm a long-time, regular Metafilter user, so a mod can hopefully facilitate communication if any behind-the-scenes conversation needs to take place.
posted by anonymous to Law & Government (29 answers total) 16 users marked this as a favorite
Typically, psychiatric hospitals want to get rid of people as quickly as possible unless someone with deep pockets is paying them to keep them-- hospitalization is hugely expensive and usually, the problem is getting them to hold people who can't afford it but need to be there rather than people who shouldn't be there being held. The story is more often actively suicidal person gets sent home in a day with a prescription than person who is well gets held. So, a key question is, does she have some kind of good insurance?

In this instance, that would be bad: there are hospitals that have literally kidnapped people with good insurance and held them until the insurance runs out. If she has no insurance or only public insurance, chances are, they won't try to keep her much longer. Find this information out: find out the diagnosis and what typical length of stay is for that diagnosis and the max of the coverage. Their reasons for keeping her sound fishy-- but she should be as compliant and pleasant as possible.

You should definitely try to get her a lawyer -- unless she's going to say "No that person isn't my lawyer," I don't see why that would be a problem.
posted by Maias at 8:33 PM on August 24, 2010 [1 favorite]

I'm so sorry for your predicament. I have no legal experience, but a friend of mine in Florida went through a similar situation - she was detained under the Baker Act, and didn't have a lawyer. The court appointed her one, and he filed a motion immediately for her release citing unfounded grounds.

Please consult a lawyer ASAP. Also, if you haven't already done so, post this question on other law boards such as for advice from attorneys. Good luck...
posted by Everydayville at 8:34 PM on August 24, 2010 [1 favorite]

National Alliance for the Mentally Ill may be helpful-- you might also try National Disability Rights Network.
posted by Maias at 8:36 PM on August 24, 2010

I would use the Florida Bar's attorney referral service. You can do it online and they specifically mention Baker Act in the category selector.
posted by norabarnacl3 at 8:47 PM on August 24, 2010

This might not be the thing you want to here right now, but are you sure your daughter is telling the truth? was it really just a misunderstanding? Its pretty hard to get Baker-Acted because of a misunderstanding. The doctors will make doubly sure there is no misunderstanding before doing that to someone, since the state pays if the patient can not.
posted by luke1249 at 8:53 PM on August 24, 2010 [2 favorites]

Looks like you may need to, in addition to figuring out how to lawyer up, call the Florida Statewide Advocacy Council and let them know what's going on.
posted by fairytale of los angeles at 8:57 PM on August 24, 2010

Mod note: From the OP:
This might not be the thing you want to here right now, but are you sure your daughter is telling the truth? was it really just a misunderstanding? Its pretty hard to get Baker-Acted because of a misunderstanding. The doctors will make doubly sure there is no misunderstanding before doing that to someone, since the state pays if the patient can not.

The administrator of the school counseling services agreed that it was a mis-understanding. My daughter would have been more circumspect with her answers had she known of the existence of the Baker Act. She told the staffer that she was thinking of cutting (not suicide!) but had called them to talk, instead of acting on the urge -- a thing she had been encouraged to do by her LCSW here -- reach out. Before Monday, neither knew that this was remotely constitutional, much less a wide-spread law. There are MANY reports of it being abused -- by police, by irate neighbors, by estranged spouses. Her story checks out with Campus counseling people -- they overreacted, but she's now remanded to the care of the physician at the facility, and they have no sway, though they tried today to intercede for me and failed. She has good insurance. I can cancel our policy effective tomorrow morning, if that is adviseable. Are there "Baker Law Mills" in the healthcare industry in Florida? Have used the lawyer referral link -- thanks. Will check thread again in early AM, CST.
posted by jessamyn (staff) at 9:08 PM on August 24, 2010

I have no experience with the Baker Law, but if someone that close to me was incarcerated, I'd be on the next flight out to visit her and talk one on one with people to straighten things out. I would definitely have a talk with the doctor who committed her, one on one, just to hear them out.
posted by zippy at 9:52 PM on August 24, 2010 [2 favorites]

the advantages of face to face communication in situations like this are they get people movine and reduce lots of opportunities for misunderstanding.

While doing the above, I'd also be in touch with a member of the Florida bar to get a free consult on what to do.
posted by zippy at 9:54 PM on August 24, 2010 [1 favorite]

Someone upstream suggested that perhaps you weren't getting the whole truth from your daughter, but I tell you as someone who lived in Florida during my troubled youth, I was threatened with it by teachers, police, parents, and once had it used, despite the fact that I never, at any time, ever met the criteria.

During my lovely two week vacation at Club Crazy, most of the people under 30 that were there, were there because of the Baker Act, and most were there not because they were actually crazy/dangerous/suicidal/whatever, but because they "refused to be voluntarily examined",{PDF} and the refusal thereof is enough reason to commit you. In other words, commit yourself, or the state will commit you. It's the most kafka-esque law I've ever seen, and it is misused all.the.time.

So, don't listen to the people that say your daughter probably needed to be committed.

Not only would I lawyer up to get her out of the fucking hellholes that are "mental health facilities" in Florida, after this incident, I would probably lawyer up to get my fees back from the university, consider suit for damages and stress or whatever they've inflicted on her, and I would get her the hell out of the state.

With that on her record; it'll be twice as easy for someone to have her involuntarily committed again. One bitchy roommate who claims your daughter was trying to kill herself, and she's back in the hole...and getting out the second time is going to be waaaay harder.
posted by SecretAgentSockpuppet at 10:02 PM on August 24, 2010 [16 favorites]

Can you post a throwaway email?

And luke1249, did you even read the OP's post?
posted by Maximian at 10:13 PM on August 24, 2010

If something like this comes to the attention of the staff at a school and they don't act, and the person ends up hurting themselves or others, that school gets crucified for letting it slip through the cracks. Same with police departments, and same with hospital staff.

Every one of these agencies want to make extra super sure your daughter isn't going to hurt herself, in part because they care, but also because they don't want to be liable for a lawsuit if they let her go without being sure she is not going to do something serious.

I know it can be super-frustrating and scary, and none of these people know your daughter like you do, but their primary concern really is to make sure she isn't going to hurt herself; I very much doubt they are intentionally trying to be malicious.

If you can't stand to wait any longer, I would really recommend you let an attorney do the talking for you in this matter; there are obviously strong emotions here that can be counter-productive in trying to help.
posted by Menthol at 10:16 PM on August 24, 2010 [1 favorite]

Read the section of this with the subhead "controversy":

You of course have to find a lawyer who can address these specific issues. I love Florida, I was born there...but it is a weird weird alternative universe with bizarro laws.
posted by naplesyellow at 11:18 PM on August 24, 2010

Don't cancel the health insurance coverage unless advised to do so by your attorney after trying other options.
posted by studioaudience at 11:24 PM on August 24, 2010 [3 favorites]

Don't trust in the facility's staff to accurately recognize their error and release her. The Rosenham Experiment tested the ability of psychiatric institution staff to distinguish mentally healthy individuals from mentally ill ones, and they did a shockingly poor job of it. Keep advocating for her and get all the help you can from lawyers, mental health organizations and anyone else you can.
posted by platinum at 12:12 AM on August 25, 2010 [6 favorites]

I am really sorry you're dealing with this. I concur with Maias; the most likely Baker Act scenario is that they want to get the bed back as soon as possible and will release her at her hearing. However, to increase the chances of this being how it goes down, if you have the financial means to do so I would hire a lawyer in preference to relying on the court appointed lawyer. Court appointed does not mean "bad" but it can often mean overburdened, and as you're well aware this is not a traffic ticket we're talking about here.
posted by DarlingBri at 12:18 AM on August 25, 2010 [1 favorite]

When I was dealing with the state of Arizona around mental health issues with a family member, they truly didn't give a damn unless/until I walked into their office. I sent letters, kept vast storage of notes, who I talked to, what date/time, what they said, etc and etc, but over the telephone (I'm in Texas) it was like "Buzz off, ha ha, we're gonna do what we want."

Actually, it was more like "We're not gonna do anything."

Only when I'd show up, and not let off, only then did they move, only then did they do their job, only then would they help us. I'd not tell them when I was coming, just show up, wearing glad-rags, hair cut, boots shined, with every note I had and my cell phone and laptop and all the time in the world -- once, after speaking to a social worker, I called again the next day and spoke with her, again she was like "Yawn yawn yawn" and then I told her I was in Phoenix, right up the street, I'd be there in about four minutes -- I swear to you, I could almost see her straighten up, physically, her tone changed, she sharpened up, she knew she was going to work, she knew I wasn't going to just go away, not until she helped my family.

They weren't used to this. They were accustomed to people buzzing off when they tell them to buzz off.

Honestly, a lot of them were good people, probably would have wanted to help, but there's no money anymore, they're swamped, they were totally burnt out and blown down, and then they'd just give up and get cold and cynical and cruel and stop caring -- you could almost watch it happen to them.

I am *not* saying to start jumping up and down in their face; you need their help, you start jumping up and down and they can easy show you their power. That fine line between assertion and aggression, find it, walk this side of the aggression part. But I say to go there so they'll know that she's not alone, and that they are being watched, that you're competent, and awake, that notes are being taken.

My experience: You just cannot do near as much from a distance, and unless you get damn lucky you'll not find any advocate who cares about this situation as much as you do -- to anyone who does this for a living, your daughter is "a case". Screw that noise.

Get ready to rock and roll, gear up, hop a plane and rent a car and do the deal. Get the best counsel you can, get her the hell out of there and, as noted by SecretAgentSockpuppet above, I'd get her the hell out of Florida -- screw this noise.

I wish I could help you, I'm in your corner on this, email if you want -- it's in my profile -- I can't do much but offer support but I'll give that in spades, best I can.

Good luck.
posted by dancestoblue at 1:10 AM on August 25, 2010 [10 favorites]

I never said what was happening was right. Why do people misinterpret what I say? I just pointed out the possibility that maybe he's unaware of things going on in his daughter's life and that maybe she's not being totally honest with him. It woldn't be the first time that a daughter had lied to her father about something important (trust me).

But if he has made sure, then he has made sure, so that point is moot.

Another thing (that I'm going to get attacked for, probably): you're going to spend thousands on a lawyer. If she's going to be released tomorrow anyway (or is very likely to), why not wait until after the court date (cant believe theres a court date for mental helath issues) to hire a lawyer? The judge might release her anyway, and then you'll have spent all that money for nothing.

Trust me, I undestand your plight. But it costs MONEY to fight the system. and if the system is going to let her go, maybe you should just wait. is it worth $2-3000 to get her out a day early? That's all I'm saying.

If it turns longterm, then obviously spend every last dime.
posted by luke1249 at 4:36 AM on August 25, 2010

I am a Florida lawyer (but not your lawyer). While I am not a probate attorney with Baker Act experience, I have reviewed the legal authorities.

To answer some of your questions that have not yet been answered, yes, you can retain a lawyer on your daughter's behalf even though she is an adult. You pay the bills, but your daughter is the client. That means your daughter controls the representation and your daughter is the one who holds the attorney-client privilege. You will not have access to any attorney-client communication unless your daughter tells you.

At least one person has already mentioned the Florida Bar's attorney referral service. I agree with that recommendation. If you do not do so, she will be entitled to a public defender.

I get the feeling that you aren't getting the whole story from your daughter. I have only anecdotal Baker Act experience, but I find it hard to believe that this is all a big misunderstanding. Form CF-MH 3052b, which the certifying professional would have had to submit to the court, doesn't really allow for a Three's Company-esque misunderstanding and the 72 hour period is to provide for a second opinion. However, if things are as you say they are, it is likely that the doctor will recommend her release after the 72 hour-period. Of course, the 72-hour period is a maximum, not a minimum. They could have already released her, so I wonder what cause she is giving them to detain her.

I really don't think that your daughter has a lawsuit against the university for "stress", contrary to the recommendations of SockPuppet.

Lastly, and most importantly, why aren't you in Florida now? I'm a father of two and I cannot imagine wringing my hands on Metafilter instead of running to my daughter's side will all deliberate speed.
posted by Tanizaki at 5:37 AM on August 25, 2010 [8 favorites]

She needs to be super-compliant right now. That means eating the food, even if it's "terrible."
posted by Carol Anne at 6:10 AM on August 25, 2010 [1 favorite]

You can retain a lawyer on her behalf. I don't know about Florida law, but in my state, the state also provides lawyers for committal hearings; they have an office of the state guardian who does nothing but this (provide lawyers for health care hearings for incapacitated, mentally ill, or mentally incompetent people).

Again, this may not be how it works where you are, but my husband does a lot of these hearings for some local hospitals. How it works here is, the state office of the guardian sends a lawyer. The individual/family may send a lawyer (or may not). The hospital sends a lawyer (outside counsel, in this case). My husband is the hospital's lawyer. His biggest concern is not getting the hospital's ass sued by declaring someone incompetent who is not incompetent or having procedures or holds done against the will of someone who has a right to refuse treatment. In his perfect world, everyone is declared competent and he gets to go home. It is generally NOT an adversarial process; it is generally several people trying to ensure that a sick person gets appropriate treatment (or appropriately released) and that their rights are respected. It is not the hospital lawyer going, "WE'RE GOING TO KEEP HIM!" and the family lawyer going, "LET HIM OUT!" Everyone is "on the same side," so to speak. The doctors and nurses may be questioned; the hospital ethicist is actually frequently called too.

Which isn't to say the process works perfectly; these are big hospitals that don't want to get sued and the hospital lawyer is beholden to the hospital management, not to specific doctors, and the hospital management is conservative, careful, and risk-averse, and very concerned with policy, procedure, and rules. In small settings where a single doctor or a few doctors may manage a facility, they are often much more wrapped up in "do what's right for the patient (in my expert opinion)" and have more trouble separating that from what's legal (and sometimes what's ethical).

Which is to say, this isn't a great situation, but it's not likely to be a horrific one either. I suspect, as a human-life-advice thing (not a legal thing), that it would be helpful to have you there; it would probably be good for the judge to see she has a support system and it would be good for her to have someone there who can help articulate "her side of the story" because this must be stressful for her.

Please do pop back (or have a mod pop back) and let us know how it turns out.
posted by Eyebrows McGee at 6:18 AM on August 25, 2010

if the counselor that got her into this predicament agrees it was a mistake, why are they not helping you correct it?

I don't know about the Baker Act, but i do know one mother that desperately wishes she had taken authorities advice last Thursday and gotten her daughter help. That situation ended as badly as possible. If you can't get down there before she is released, please go ASAP and evaluate the situation in person. Your daughter has reached out for help, whether it is self mutilation or even worse. If she isn't in danger of harming herself, she is going to now be gunshy about asking for help for her other problems. Please help her.
posted by domino at 6:42 AM on August 25, 2010 [1 favorite]

There are mental health professionals and other advocates who work against involuntary treatment. Get involved with Mindfreedom - should the usual routes fail, there are activists who will show up and help you hold vigils and protests at the facility.
posted by jardinier at 6:43 AM on August 25, 2010

I have trouble believing your daughter won't be released after 72 hours. I've known three people who were Baker acted (and all of them were for legitimate reasons). The most recent example is a family member who took a knife and slit their wrist during an argument with their spouse. This person, who does have problems, was released after the 72 hour period. Since your daughter didn't actually do anything, she'll be out of there.
I do agree that you should go downto Florida if only because she's going to desperately need a hug from you. You may also want to make arrangements to get her a new counselor to work with her as she transitions into her first year of college. Good luck- I hope this all resolves itself quickly.
posted by Mouse Army at 7:02 AM on August 25, 2010

Maias is right, the greater problem I've had over the years in dealing with inpatient psych facilities is actually getting them to keep people who really need to be there rather than wrongfully detaining people who shouldn't, at least Medicaid funded clients tend to be expelled as soon as possible even with strenuous advocacy for a continued stay. You can laywer up, yes, but I have been to civil mental health courts before and there will be a mental health advocate representing your daughter's needs and you can personally act as a petitioner as her parent and you, your daughter and the court appointed advocate all being on the same page will likely be more than enough in the judge's eyes to have her released. And the way this system works in the City of Philadelphia is that these hearings have to be held every 72 hours, with continued petitioning by treating doctors in order for the stay to continue. The system is set up this way specifically to prevent indefinite detention of patients on civil mental health court orders.
posted by The Straightener at 7:06 AM on August 25, 2010

OP asked me to update:

I have not been just "wringing my hands on Metafilter." This AM, I was busy checking flight schedules, hotel availability, rent cars, and trying to retain a lawyer, and just this moment found one willing and able to take the case, if necessary. I didn't want to fly out until I knew she would be "court-ordered," to use their jargon, because all the money I have for plane fare/rentcar/hotel would be her tuition. If I have to spend the money to go to Florida, I will have to withdraw her from school as a result. I am packed and prepared to leave at the drop of a hat, and can be there by Thursday AM, if necessary.

That said, my daughter called me collect this AM (10.00 fee to cell phone!) and after meeting with the doctor today, he said she could go home today. She sounds well. There appear to be no plans for a court order. I'll rest easy when she calls me from outside the facility, which should be some time this afternoon. Thank you all for your advice, so far.

posted by The Straightener at 7:48 AM on August 25, 2010

I too was accidentally Baker Acted in Florida when I was 18, also because of a mis-understanding. They told me it would no more than 72 hours, but it quickly turned into a week... because the attending psychiatrist was on vacation.

I can't help with legal, because I didn't try to fight it. I just bided my time and got out when they let me. And promptly got the hell out of the state of Florida upon release.

This is not a fun thing to go through, but please don't freak out. She is safe, fed, and probably extremely well-rested. (I was, as I pretty much slept through the whole thing.) Just tell her to be compliant— take the stupid meds, eat the horrible food, go to her group sessions, watch the movies they provide.

This experience has not effected me in any way— college-wise or career-wise. I suppose it's in some record somewhere in Florida, but it's not some scary felony charge, and I highly doubt that's going to follow her around for the rest of her life.

And yes, get down there quickly. Thursday (tomorrow) is good. She might, as you suggest, be out by tomorrow, but she will want you there. When you see her, please stay calm. Make it "Not A Big Deal." Just get her on with school. Take her to a delicious dinner. Try to laugh. Tell her that this story will be funny some day, and that she's not crazy.

Good luck, and give the girl a hug for us.
posted by hubble at 8:55 AM on August 25, 2010

Mod note: From the OP:
Just got off the phone with the daughter -- "I'm free!"

I asked "You're outside the facility?" "Yes! I'm in my dorm room!" then her battery ran out.

Anyway. Thanks to those who suggested lawyering up -- Thanks to the referral service that norabarnacl3 posted, I was able to track down a good lawyer who specializes in Baker Act cases, and she'll carry his number on her person, I hope. She wants to remain at her school -- she loves it there, and it totally excited about her classes and teachers. Coming home would ruin her year.

I didn't fly down there right away, and I'm not going to now, as the only savings I have are for tuition, so to dip into that would impact her ability to stay at the school, pretty much past the first semester. We're running a skin-of-the-teeth operation, here.

I think she's fine, sounded super-happy just to be out, and knows what keywords trigger a "Baker-Acting." She has ongoing counseling sessions scheduled as part of her "voluntary outpatient plan" that she had to acquiesce to in order for release -- hopefully, those won't be a Baker Act minefield, either. If it happens again, we'll lawyer right up, I'll know I've got 72 hours to drive there, and will hit the road immediately.

I appreciate all the responses, and the work of Team Mod.
posted by jessamyn (staff) at 10:56 AM on August 25, 2010 [5 favorites]

I am glad that this story had the happy ending that I and many others predicted. While it is happy in terms of her release from voluntary commitment, I suspect that this ordeal was not a result of a frivolous counselor and that your daughter needs continuing help, so it is good that she has a outpatient treatment plan.

I don't understand why anyone would come to a Florida university from out-of-state, though. None of our schools are that good.
posted by Tanizaki at 3:22 PM on August 25, 2010

« Older Baggage Problem   |   Military Baggage Newer »
This thread is closed to new comments.