THE CRIMINALIZATION OF MENTAL HEALTH

by EMMA HUERTA STAFF WRITER

TheFlorida Mental Health Act—the Baker Act—was implemented in 1972 to legally protect those with mental illness and fortify community mental health services. Specifically, it aims to preserve the civil rights of persons with mental illness such that involuntary evaluation and/or commitment is the last resort. When involuntary procedures are needed, the Baker Act strives to ensure one’s liberty remains intact throughout the process. The law also requires the Florida Department of Children and Families to provide mental health treatment programs. However, presently, “Baker Act” connotes a more dystopian reality.

The Baker Act intended to facilitate more voluntary mental health examinations. However, the most significant practice it has established is legal involuntary commitment. The law permits someone who (1) suffers from mental illness and (2) presents danger to oneself and/or to others or is seriously neglectful of oneself to be taken to a “receiving facility”—a local hospital or crisis unit—for up to 72 hours.

The legality of the Baker Act relies heavily on the harm clause. Essentially, the person unwillingly undergoing psychiatric evaluation or commitment presents potential danger to themselves or others. The Baker Act’s legal provisions intend for its long-term benefits to outweigh the opportunity costs. Unfortunately, this is rarely if ever the case. The Baker Act doesn’t adequately execute its objectives. In fact, the Treatment Advocacy Center gave Florida’s involuntary treatment programs a “D” score, the third lowest possible score among the 50 states. The law’s downfalls are likely due to infrequent updates; its latest update in 2022 was only the second set of improvements (the first being in 1996) since it was first signed.2

The most evident issue with the Baker Act is municipal law enforcement agencies’ authority to assess mental health crises. Persons are eligible to be “Baker-acted” through three possible ways. The first is if someone signs an affidavit describing why a person meets Baker Act unfair school policing. The 20202021 school year marked a 77% increase in Baker Act examinations on schoolchildren from the past decade. In many conflict scenarios, the Baker Act is used to momentarily deal with a child having a mental health crisis. Furthermore, minimal infrastructure for post-examination care denies the long-term well-being of Baker-acted children. The Baker Act is used to immediately deal with children’s mental illnesses, putting out small fires rather than confronting root issues. criteria that is later approved by a circuit judge, who issues an ex parte order (a temporary motion granted without the opposing party’s say). The second way is if a law enforcement officer is called to or present at a situation in which someone appears to be suffering from a mental illness and presents a risk to themselves or others. The third way is if a doctor or other healthcare provider decides a person meets Baker Act criteria. Law enforcement officers are critical actors in the involuntary examination process. They are not only entitled to decide on a person’s mental health state, but are also solely responsible for bringing the “Baker-acted” person to a receiving facility.

Law enforcement’s new power also culminates in another issue: elder mistreatment. Because of the involuntary examination provisions, those caring for elders tend to call law enforcement and cause elders to be Baker-acted at higher rates.

Consequently, law enforcement officers’ outsized role perpetuates

Having law enforcement be the first point-of-contact for elderly persons being processed under a Baker Act ordinance presents liberty and safety issues. Moreover, the elderly individuals being Baker-acted, while distressed or confused, often do not need psychiatric examination or commitment. Florida categorizes Alzheimer’s and dementia as mental illnesses when the nature of both neurological disorders differs from a mental health crisis. There have even been cases in which elderly people with either or both disorders were mistreated or even died in psychiatric care after being Baker-acted. Given its current execution, Baker Act experiences can be more harmful, especially to the elderly.

Law enforcement officials typically responding to mental health crises are ill-equipped for de-escalation, let alone appropriately judging a person’s mental state and

CONTINUED ON PAGE 32 needs. Hence, policies like Laura’s Law in California which implement assisted outpatient treatment (AOT)—court-ordered, self-directed, and guided mental health programs—are significantly more effective at addressing mental health concerns.

Furthermore, although the Baker Act’s main contribution to legal mental health crisis procedure was expanding initial evaluations, the follow-up process has been neglected. The Baker Act neglects the fact that mental illness crises often go beyond 72 hours.

Nevertheless, the law’s provisions do not establish resources for “Baker-acted” persons following their initial evaluation. Alternatively, other state policies explicitly establish longterm rights for those suffering from mental illness following legally-mandated examination.

Overall, Florida’s Baker Act charges law enforcement with handling mental health crises they are ill-equipped for, accumulating into other issues such as school policing and elder abuse.