A Lawyer’s Take on Proposed Changes to the Florida Marchman and Baker Acts
With the 2018 legislative session going full bore, the members of the bar’s special committee on mental health in the courts were already gearing up for next year’s session, as well as improving education for lawyers about mental health matters.
For those who don’t know, the Florida Marchman Act and the Baker Act allow involuntary commitment, respectively, of people with substance abuse or mental health problems. The committee’s goal is to have recommendations ready for the 2019 Legislative Session. One of the goals is to create legislation that might help the systems of care as they might pertain to serious mental issues.
Recommendations for the Marchman and Baker Acts
The bar’s special committee on mental health in the courts is looking at improving the Marchman and Baker acts. Among the committee’s recommendations approved at the January meeting for next year are:
- Similar to the Baker Act, naming the state attorney “as the real party in interest” in Marchman Act cases. Some of the public defenders have said the change could create a funding and workload issue for state attorneys, and the final motion was contingent on that being addressed by lawmakers.
- Extending the time to schedule a treatment/service hearing in Marchman cases from five to 10 days, the same as the time allotted to schedule an assessment hearing. The court has previously had 10 days to schedule both hearings, and committee members noted that even 10 days created problems in notifying all parties. The shorter time, they said, “reduces the flexibility of court in setting hearings and additional time will allow for more treatment.” I disagree with this proposal, as when I am dealing with Marchman Acts, time is of the essence. Every day counts and, in waiting for that second hearing after the assessment, the person you are trying to save can be lost. Ten days is too long, in my opinion, when we are dealing with a life-and-death situation. In fact, I have often stated that even five days is too long when every day could be a person’s last day unless they get the help they need.
- Eliminate slight differences in Marchman petition, admission, and treatment hearing statutes, including having uniform standards on waiving appearances and allowing for teleconference testimony. In some cases, if the evaluation doctor is not present, his or her testimony is considered hearsay, even if there is a written report and a case is dismissed.
- Allowing the state attorney to seek a one-week continuance for a Baker Act hearing. Currently, the defendant can seek up to a four-week continuance, however the state attorney cannot seek any continuance, which can create difficulties in finding witnesses and issuing subpoenas. The committee discussed allowing continuance up to four weeks before settling on seven days.
- Exempting information about substance abuse and mental health cases, including names of those committed under the Baker Act, from the public record.
- Conforming the Marchman Act petition and criteria for treatment, which currently do not match up.
- Allowing defense counsel access to treatment facilities, something currently not allowed by law.
- Reducing the number of hearings required under the Marchman Act to order a patient into treatment from four to two, similar to its predecessor Myers Act. That action included recommending that, if a patient had three prior adjudications for treatment, the assessment hearing could be skipped. This is actually a good proposal, in that it cuts down on the time it takes to get a person in need ordered into treatment in some cases. I mean, if someone has been adjudicated three times under the Marchman Act, it is a colossal waste of time to have to get them assessed yet again. And time is a luxury we cannot afford in these type of life-or-death cases.
Recommendations Discussed and Deferred
The committee discussed – but ultimately deferred action – on several other recommendations. Those included:
- Returning the maximum time a person could be ordered for inpatient placement to six months after the legislature reduced it to 90 days back in 2016. Six months remains the maximum if the patient is ordered to a treatment facility. Committee members noted the shorter commitment time has led to an increase in court hearings. However, we still have the ongoing problem of no more civil beds for these commitments, because the state had allocated them for criminal forensic examinations.
- The committee also postponed acting on removing the option for judges to appoint guardian advocates (who are required in hearings where a patient has been found to be injurious to him or herself) in cases where the patient may be incompetent to consent to medical treatment. Committee members said some courts have frequently made such appointments, and there is no money appropriated for it, so it reduced funds for treatment. Committee members said they want to obtain more information about the practice statewide before acting.
- The committee is also looking into the suddenly high-profile issue of firearm possession by people with mental health issues. Committee members noted that people involuntarily committed under the Baker Act go on a federal list that prevents them from buying guns. But only one to two percent of Baker Act commitments are involuntary, and those who agree to a commitment under the act retain the right to buy guns. Furthermore, there is no procedure for dealing with guns already owned by people who are involuntarily committed. Committee members discussed alternatives and then tabled the matter.
My Feelings on the New Proposals
In sum, as an attorney who appears in many Marchman and Baker Act proceedings, I have mixed feelings about some of these proposals. While I do like the idea of uniformity, I am not in favor of the 10-day increase in time to get a hearing on treatment. I am also not in favor of bringing in guardians to Marchman proceedings at the expense of treatment beds.
However, it seems most of the proposed changes would be beneficial, while adding efficiency to the overall process. Only time will tell. One thing is for sure; we are in dire need of publicly-funded beds for Marchman Acts. As it stands now, Marchman Act respondents are too far down the list of prioritized beds for treatment. The criminal clientele are usually given first dibs on beds, followed by other specialized classifications of clients, and then Marchman Act cases. For this reason, private treatment is still the best option for Marchman clients if they are covered under a health insurance policy.
While the Florida Marchman Act is a Florida-specific legislation, other states have similar enactments where you can seek help for your loved ones suffering from out of control substance abuse. In some courts, it may be in the Family division and others in a special Mental Health division. If you need legal help, start by checking with your local clerk’s office. If you are in Florida and need help, feel free to contact us at Schlam Law, P.A. We are here to help.
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