TALLAHASSEE — In his first legislative session, state Rep. Patt Maney took on something no other lawmaker has had much luck tackling: a thorough overhaul of statutes governing the Baker and Marchman acts.
The Baker Act, passed in 1971, governs involuntary commitments based on mental health. The Marchman Act, passed in 1993, allows similar action to be taken in cases involving alcohol addiction or substance abuse.
“These laws have been subject to numerous revisions since their enactments, but their fundamental structure has remained unchanged despite numerous case law and scientific developments,” Maney’s introduction to House Bill 405 states. “This proposal represents the first comprehensive reform of Florida’s civil commitment system to reflect these developments.”
Maney, R-Shalimar, might be uniquely qualified for the task he has set out to accomplish. He served for 20 years as a county judge in Okaloosa County, where he saw firsthand the impacts of mental illness and substance abuse not only on individuals and families, but also on the legal system.
His work with the Florida Supreme Court Task Force on Mental Health and Substance Abuse also brought him into close contact with Miami-Dade County Judge Steve Leifman, arguably the state’s leading advocate for mental health care reform and since 2007 the Supreme Court’s special adviser on criminal justice and mental health.
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But the road to passage for legislation as expansive as that introduced by Maney can be a long one and, on April 1 — about halfway through this year’s session — he was seeing little movement of his House bill and only slightly more activity with a Senate companion bill sponsored by Republican George Gainer of Panama City and Democrat Lauren Book.
Maney said he was contemplating signing on as a co-sponsor to another bill that deals solely with the Baker Act as it pertains to minors. HB 383 appears to have gained better traction than his legislation.
“If we can’t get the whole loaf, maybe we can get part of the loaf,” he said.
Maney said he can reintroduce his full Baker Act package this fall when legislators get together again to prepare for the 2022 session that will start in January because it’s an election year.
History of the Baker Act
When the Baker Act became law 50 years ago, it was designed to provide a legal process by which people with mental health issues could be involuntarily hospitalized, primarily, at that time, in state psychiatric hospitals.
“Florida had significantly more psychiatric hospital beds than it has today, serving a state population of approximately 6.8 million people,” according to documentation prepared by Maney to bolster his argument for HB 405.
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Today, there are just more than 2,600 psychiatric hospital beds serving a state of 21.3 million people, the document states, and 69% of those beds are occupied by men and women sent there by the courts because of some legal entanglement.
In Okaloosa County, all Baker Acted patients are treated at the Psychiatric Treatment Center at Fort Walton Beach Medical Center. The hospital has a 48-bed inpatient unit and takes in patients 18 years old and older “who are in need of intensive psychiatric treatment in an inpatient hospital setting,” according to the hospital website.
The Psychiatric Treatment Center is located on the first floor of the main hospital building and is split into two separate 24-bed acute care psychiatric units, the website said.
Hospital officials declined to discuss any aspect of its Baker Act protocols or changes that might be anticipated if changes to the statute were made. A request for numbers of people committed annually under the Baker Act also was unanswered.
Baker Act wakeup call
The Baker Act, its implications and the weaknesses in its enforcement were brought home in Okaloosa County on July 22, 2008.
Deputy Anthony Forgione and other members of the Sheriff’s Office’s Special Response Team were called to a home on Plymouth Avenue in the Ocean City area of Fort Walton Beach where Mark Rohlman had barricaded himself.
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Rohlman, who was haunted by delusions, had escaped twice in 24 hours from lax confinement at Fort Walton Beach Medical Center. His family told officials he likely was armed.
Forgione and his team tried to persuade Rohlman to come out of the house, but after three hours decided to enter before he hurt himself.
As SRT members walked into a bedroom, Rohlman fired a shotgun. Forgione was struck in the chest and killed. Rohlman then shot himself in the head and died.
Forgione, who was 33, was just shy of his three-year anniversary with the Sheriff’s Office when he was killed.
One year after Forgione’s death, the Florida Legislature passed the Forgione Act, a bill championed by then-state Rep. Ray Sansom and then-state Sen. Don Gaetz. The bill better delineated the duties of law enforcement officers and mental health facilities when they deal with patients who have been detained involuntarily under the Baker Act.
Defining the Ba
Under the Baker Act, people can be committed against their will for up to three days if mental illness puts them at risk of self-neglect or causes them to be a danger to themselves or others, according to the statute.
Because mental illness and addiction tend to overlap, Maney’s bill would make many of the same changes to the Marchman Act that would be made to the Baker Act, with the intent that the laws mirror each other as much as possible.
One of the key components of Maney’s bill would be to establish definitions for the statutory terms “neglect or refuse to care for himself and herself” and “real and present threat of substantial harm.”
Those terms “are crux of the self-neglect prong” used to justify involuntary commitment, the bill explainer said, “but the Legislature has never defined them.”
The failure to provide clear definitions has led to courts applying the self-neglect criteria inconsistently, according to Maney’s documents.
Baker Act statutes also contain a “dangerousness criteria” that would be modernized under Maney’s bill.
“The present Baker Act allows a person with (mental illness) to inflict less-than-serious bodily harm on others, and an unlimited amount of emotional injury, without being a candidate for civil commitment,” the documents accompanying Maney’s bill said. “The civil commitment system is authorized to intervene under the present statute only if there is a threat, or the reality, of serious bodily harm.”
Removing the words “bodily” from the law and providing that “significant property damage” could be a pre-commitment consideration would reform Florida law so that it resembles that of the majority of other states to “address harm on a ‘totality of the circumstances’ basis,” the bill’s accompanying paperwork states. Maney hopes it also could increase public safety.
Assistance for minors
Local school administrators say Florida lawmakers took a big step in the right direction in 2018 when, following the massacre of students at Parkland’s Marjory Stoneman Douglas High School, legislation was passed requiring mental health counseling for students.
Sansom, who as a senior administrator for the Radar Group now oversees a handful of local charter schools, including the Okaloosa Academy for at-risk students, said since counseling was mandated, Baker Act commitments have dropped at Okaloosa Academy from between six and 10 a year to just one thus far this session.
“The counseling is really working,” he said. “In our world, counseling is critical.”
Both the Okaloosa County School District and Bridgeway Center have provided counselors to the academy, and the district also has brought in social workers since the Public Safety Act was passed, Sansom said.
Mental health counselors also have proven valuable within the public school system itself, according to School District spokesman Steve Horton.
This year, 163 mental health screenings have been conducted through the Sheriff’s Office or a counselor, Horton said. Those resulted in 16 cases where the Baker Act was initiated by the Sheriff’s Office and 31 cases in which a parent/child agreed to a commitment for mental health evaluation.
But in 116 cases the district did not have to resort to involuntary commitment, and in some of those cases a student safety plan was put in place, Horton said.
“The challenges we have all faced this year have been especially impactful on our students. … We know that, for many, school, family and friendships were changed by COVID. The impact on some of our students has been significant,” School Superintendent Marcus Chambers said in an email. “I am pleased that we added counselors in our schools this year to work with students who need extra support.”
Chambers said school district officials plan to add an extra layer of counseling support, including more personnel, in the upcoming year. Mental health counseling, he said, “will be a multi-year process.”
Maney’s bill seeks to do even more to protect minors by further cutting into the number of forced voluntary commitments and providing more locations where mental health evaluations can be conducted.
Sansom called Maney’s efforts “spot on.”
“It’s a great idea to combine more services to prevent the Baker Acting of minors,” Sansom said.
Maney said the House bill he expected to sign on to, HB 383, could, through its passage, help to relieve an “urgent” issue facing many Florida counties, including Okaloosa and Walton.
In several regions of the state, there aren’t enough existing locations to hold minors who have been ordered committed under the Baker Act. Youths committed in Okaloosa or Walton, for instance, are at present taken to a location in Pensacola for evaluation.
“It makes it more difficult for families and the child to be close as they try to work through things,” Maney said. “I’m hopeful we’ll get the juvenile piece through.”
A significant component of the comprehensive Maney bill calls for the formulation of wording designed to protect minors from being forced into “voluntary treatment.” The new law would attempt to accomplish that by enabling public defenders to verify the “voluntariness” of a commitment situation.
The Florida Public Defenders Association, which has objected to other aspects of the bill, did state its support for “the section that allows public defender attorneys to have access to children who have been admitted to a receiving facility as voluntary patients.”
An additional tweak to existing statutes is likewise designed to reduce the number of involuntary examinations under the Baker Act, “especially in cases involving minors and students,” the support documentation for HB 405 said.
If Maney’s bill passes, it would replace the word “shall” with “may” in a section of the Florida Statutes that assigns duties under the Baker Act so that law enforcement officers would have greater discretion over taking someone “who appears to meet (Baker Act) criteria) into custody.”
“Law enforcement may believe a minor meets criteria, but can now decide against Baker Acting the child because the officer was able to de-escalate the situation, a parent is present and able to resolve the matter, etc.,” Maney explained in the summary.
Inpatient vs. outpatient care
HB 405 also seeks to grant the Florida Department of Children and Families the power to establish rules governing a person’s care after their discharge from commitment.
“A continuum of care is necessary to reduce the number of people re-Baker Acted shortly after being discharged from a hospital,” the footnotes to Maney’s bill said.
“The whole point of after-care is that we’re trying to keep people from recycling through the system,” he said.
The literature supporting the bill cites a study showing that 21% of people Baker Acted once will be involuntarily examined twice or more in the same one-year period.
“While the people with two or more involuntary exams in a year account for 21 percent of the people with involuntary exams in that year, their involuntary exams account for 44 percent of the total involuntary exams for the year,” the support documentation said.
“While the people with five or more involuntary exams account for 2 percent of people with exams in that year, their exams account for 12 percent of the total involuntary exams,” it said.
Maney’s bill also seeks to allow courts the option of ordering inpatient or outpatient treatment depending on an individual’s needs. And it would remove a legal exclusion for minors.
“Outpatient is less costly and restrictive than inpatient hospitalization,” the documents accompanying Maney’s bill said.
Kathleen Smith, public defender in the 12th Judicial Circuit and legislative spokeswoman for the Public Defenders Association, agreed with Maney’s assertion that outpatient care is preferable to inpatient care for mental health patients. But the counties she serves, she said, offer few outpatient options.
“Citizens in Okaloosa (which has embarked on a pilot program encouraging outpatient treatment) and Miami-Dade (where County Judge Liefman has spearheaded a mental health outpatient success story) will benefit from outpatient care,” Smith said. “In my county, they would be hospitalized. The people in my circuit would be treated inpatient.”
Officials with the Public Defenders Association believe the state would be better off setting Maney’s proposal aside and using tax dollars to expand access to outpatient care across the state.
“In our view, the bill is not accomplishing that,” Smith said. “We believe the new eligibility criteria is vague and will allow many people to be committed under the Act when community treatment would be a far better and less expensive option.”
Increasing number of Baker Acts
The outline of Maney’s bill cites a study conducted at the University of South Florida that showed in 2019 there were more than 205,000 involuntary examinations conducted in Florida. That number more than doubled the number of commitments of 2002, and the study also showed more than 50% of Baker Acts were initiated by law enforcement.
State law allows law officers, judges, doctors and mental health professionals to order confinement under the Baker Act. In Okaloosa County, Fort Walton Beach Medical Center is the only facility that houses Baker Acted adults.
Records show that between the courts and the county’s three largest law enforcement agencies — the Sheriff’s Office and Fort Walton Beach and Crestview police departments — there have been about 1,450 Baker Act commitments each year for the past five years. The highest year for commitments in that period was 2016, the only year the figure topped 1,500.
Sheriff’s Office numbers, though, reflect only Baker Act calls answered. They do not indicate when the call did not end in an actual involuntary commitment, according to agency spokeswoman Michele Nicholson. The figures also do not show when calls not coded “Baker Act” ultimately resulted in a person’s hospitalization.
The most accurate numbers for Baker and Marchman Act commitments in Okaloosa County could be provided by Fort Walton Beach Medical Center or DCF, according to law enforcement and health officials. And while spokespersons for the hospital and DCF’s Northwest Region accepted questions pertaining to involuntary commitments, no answers have been provided and no commitment numbers have been released.
DCF spokesman David Fiero said in an email that DCF is monitoring the progress of Maney’s legislation and a public records request to DCF for Fort Walton Beach Medical Center commitment numbers was being processed.
Florida ranks 43rd nationally in access to mental health care and has the fourth highest rate of adults with mental illness who are uninsured, according to HB 405’s support documents. Spending for community-based treatment ranks 49 among all states.
The USF study also found costs to house people with mental illness in jails, prisons and forensic treatment facilities costs Florida an estimated minimum of $2.8 million per day, which amounts to $1.2 billion a year.
“That number is $186 million more than the entire DCF mental health services budget,” Maney’s memo said. “Improving access to treatment under this proposal will help Florida avoid unnecessary acute care spending and will afford those with serious mental illness an opportunity for hope and recovery.”
Outpatient care can work
The pilot program launched in Okaloosa and a handful of other Florida counties is based on a model that Leifman found success with in Miami-Dade. It was so successful that the county was able to divert enough mentally ill people out of the courts to allow it to close an entire jail.
Okaloosa’s Bridgeway Center just completed the first year of what it calls a “condition of bond program,” as opposed to a diversion program, at this early stage of its existence.
The goal of the program is to remove certain offenders — those who have shown signs of suffering from mental illness, possibly coupled with substance abuse — from the judicial system and place them in a setting where they can receive assistance and treatment.
Once accepted into the program, an individual is provided safe shelter, which in some cases is a luxury unto itself. Outpatient substance abuse treatment is provided alongside psychosocial care such as learning to cope with anxiety.
Bridgeway was able to shepherd more than half of the 35 clients it welcomed to its program in COVID-tainted 2020 through to graduation, and CEO Bonnie Barlow said the center presently has a full complement of new clients.
Barlow cheered Maney’s effort to reform Baker Act and Marchman Act statutes.
“We’re so glad they’re taking a look at the Baker Act and making access to services easier. We need to look at a continuum of care before and after a crash happens,” she said. “We are watching that bill and are glad the issue is being looked at by the Legislature. We will see how it does. This year is going to be a difficult budget year, so we will see.”