Mental Health professionals are trained to and must fully respect a patient’s right to register complaints about any aspect of his or her care or treatment, and to ensure that such complaints are addressed by the treating facility in a timely manner.
The issues patients may raise about their care and environment can range from fairly minor concerns that can be quickly and easily resolved to more serious matters that need to be addressed through a formal patient complaint resolution process.
Each practice, facility, or program should develop a response review process to facilitate the prompt and fair resolution of patient complaints. While individual facilities may tailor their own complaint resolution policies to best meet their unique needs, this course sets forth basic floor requirements that should be included in a policy for complaint resolution and are not intended to inhibit the use of additional helpful approaches in handling patient grievances.
The Florida Mental Health Act, better known as the Baker Act, was passed in 1971 by the Florida Legislature. It dramatically reformed the 97-year old laws by ensuring that persons with mental illnesses were assured of their civil and due process rights when seeking treatment or when examination or treatment was sought involuntarily on their behalf.
The Baker Act guaranteed the following rights:
Individual Dignity: Ensures all constitutional rights and requires that persons be treated in a humane way while transported or treated for mental illness.
Treatment: Prohibits the delay or denial of treatment due to inability to pay and requires prompt physical examination after arrival; requires treatment planning to involve the person, and requires the least restrictive appropriate available treatment be based on the individual needs of each person.
Express and Informed Consent: Encourages people to voluntarily apply for mental health services when competent to do so, to choose their own treatment, and to decide when they want to stop treatment. The law requires that consent is voluntarily given in writing after sufficient explanation to enable the person to make a knowing and willful decision without any coercion.
Communication, Abuse Reporting, and Visits: Guarantees persons in mental health facilities the right to communicate freely and privately with persons outside the facilities by phone, mail, or visitation. If communication is restricted, written notice must be provided. No restriction of calls to the Abuse Registry or to the person’s attorney is permitted under any circumstances.
Care and Custody of Personal Effects: Ensures that persons may keep their own clothing and personal effects unless they are removed for safety or medical reasons. If removed, a witnessed inventory is required.
Voting in Public Elections: Persons are guaranteed the right to register and to vote in any elections for which they are qualified voters.
Habeas Corpus: Guarantees persons the right to ask the court to review the cause and legality of the person’s detention or unjust denial of a legal right or privilege or an authorized procedure.
Treatment and Discharge Planning: Guarantees the opportunity to participate in treatment and discharge planning and to seek treatment from the professional or agency of a person’s choice upon discharge.
Designation of Representative
Requires that a person admitted to or held in a facility involuntarily be allowed to designate a representative to be advised of the admission, receive all legal notices, and notices of any restriction of rights.
Assures that a person’s clinical record remain confidential and not be disclosed to others without consent, except by court order, to the person’s attorney, after a threat of harm to others, and other limited circumstances. A person has the right to waive the privacy of his or her admission to a facility.
Access to One’s Own Record
Assures that persons have reasonable access to their clinical records unless determined by a physician to be harmful to the person.
The federal government has established conditions of participation for hospitals that accept Medicare or Medicaid payments to follow regarding Patient’s Rights. The rights include:
- A hospital must protect and promote each patient’s rights, including informing each person of their rights in advance of providing or discontinuing care whenever possible. This may include the use of interpreters or large print materials.
- Hospitals must establish a process for prompt resolution of grievances, a procedure for submission of written or verbal grievances, and must inform each person whom to contact to file a grievance. This must be approved by the hospital’s governing body, which must review and resolve grievances. Persons must be given written notice of the hospital’s decision about the grievance, including a contact person, the steps taken to investigate the grievance, the results, and the date of completion.
- Persons must have the right to participate in the development and implementation of his or her plan of care.
- Persons or their legally authorized substitute decision-makers have the right to make informed decisions about his or her care, including consulting the person’s advance directives. Persons have the right to request or refuse treatment.
- Persons have the right to have a person of his or her choice and his or her own physician notified promptly of the hospital admission.
- A person has the right to privacy during personal hygiene activities, during medical/nursing treatments, and when requested, as appropriate. Privacy may be limited only where a person may be at immediate and serious risk of harm to self or others.
- Persons have the right to receive care in a safe setting and to be free from all forms of abuse or harassment.
- Persons have the right to the confidentiality of his or her clinical records and to access information contacted in his or her records, within a reasonable time frame. Few limits to this access exist, including that access could be reasonably likely to endanger the life or physical safety of the person or anyone else. Hospitals must actively seek to meet requests to access records as quickly as the record-keeping system permits.
For the purposes of this course, a complaint means any formal written or verbal grievance that is filed by a patient when a patient issue cannot be resolved promptly by the staff present.
Each treatment provider should establish a process for prompt resolution of all patient complaints and must ensure that each patient is informed as to whom to contact to file a complaint and appeal a complaint determination.
The provider should designate an individual to be responsible for the effective operation of the complaint resolution process. The following points are a minimal start to what should be included in the formal process:
- Patients should have reasonable expectations of care, and services and facilities must address these expectations in a timely, reasonable, and consistent manner.
- Patients have the right to make complaints about any aspect of their care and treatment.
- The right to make complaints may not be limited by the facility as a means of punishment or for the convenience of staff.
- The complaint resolution process shall assure patient confidentiality.
- Whenever possible, complaints should be resolved by beginning with direct care staff and progressing through administrative levels as necessary.
Letting clients know they have rights and making sure they receive written information about the complaint resolution process are critical elements.
Procedures should allow for both verbal and written complaints. Also, the complaint resolution process should specify that, upon receipt of a complaint by a patient, the provider’s decision with regard to the complaint will be provided to the patient in writing within a time frame specified.
Each provider should have a process to implement a relatively minor change in a more timely manner than a written response. For example, a change in bedding; however, those complaints related to the safety of patients or others should receive immediate action. In unusual circumstances wherein an investigation into a complaint will require more than the time specified to complete, the provider should advise the patient.
Decisions should be in written form, when appropriate. For all filed complaints, the program representative should render a determination in a written decision that is then communicated to the patient in a language and manner the patient understands.
The written decision should include:
- the name of the facility contact person regarding the complaint;
- a summary of the steps taken on behalf of the patient to investigate the complaint;
- the results of the complaint resolution process; and
- the date of completion.
- The appeal of decisions.
RECORD KEEPING AND RECORDING
Each provider should establish a process for recording and monitoring all complaints received. Such a process should include a description of how and the date upon which each complaint was resolved. The process should also identify whether or not the patient was satisfied with the outcome of the process, wherever possible.
Each provider must aggregate its complaint data and analyze it as part of its performance improvement program, identifying systemic trends or patterns, as possible.
Each should make available education and training relating to the implementation of this policy directive to all staff having direct patient care responsibilities.
In the healthcare setting, failing to deal effectively with complaints proves detrimental, not only from a regulatory standpoint but also in terms of client outcomes.
Staff should be trained and feel competent to discuss the complaint resolution process with clients and patients, be able to prioritize complaints, record complaints appropriately, acknowledge the concerns of the patient.
Effectively addressing a complaint not only satisfies the patient but is also an opportunity to create a positive experience and effective behavior modeling.
Staff should always:
Watch for signs of conflict and hostility in clients.
- Show empathy.
- Keep their cool. Remain calm.
- Listen for understanding.
- Express concern for the patient’s feelings.
- When making statements, use “I” rather than “you.”
- Be sensitive to non-verbal communication.
A patient must be informed of their rights, and the staff should keep these rights in mind at all times. When someone feels slighted, or misunderstood situations can escalate quickly. Staff should recognize that the patient has a right to complain, and the resolution of that complaint is an important part of their treatment.
Frequently Asked Questions Regarding the Baker Act and Client Rights
If a person is intoxicated or appears to be developmentally disabled, can they still be considered mentally ill, even though these conditions are exceptions to the definition of mental illness in the Baker Act?
YES. Persons with co-existing disorders are frequently seen in the health care field. However, the mental illness must, in and of itself, be of sufficient seriousness to warrant admission as a person on voluntary or involuntary status. The coincidence of having an additional disorder would not preclude the person from admission.
Is the diagnosis of dementia or Alzheimer’s Disease included under the definition of “mental illness” in the Baker Act?
Not specifically. However, there are several other disorders that are specifically exempted from the definition. Other than the named disorders, the definition of mental illness implies that a person must have a serious thought or mood disorder that substantially impairs a person’s ability to meet the ordinary demands of living, regardless of etiology. — regardless of the cause of the mental illness.
If a federal and a state statute are in conflict, which one takes precedence?
When a federal law and a state law are in conflict, federal law generally takes precedence. However, if the state law is more stringent, it will generally supersede the corresponding federal law or regulation. Where both laws deal with a subject and are not in conflict, both laws must be followed.
Can a unit be restricted through facility policies or due to the behavior of a single person?
Any restriction of a person’s rights must be based on the individual person’s behavior or condition and individually documented in the person’s clinical record.
Can a parent restrict the communication of his or her child in a receiving facility?
Only the physician or authorized facility staff is permitted to restrict a person’s communication, regardless of the age of the person—proceedings and restrictions of rights. The Designated Representative receives a copy of the inventory of the person’s personal effects, has immediate access to the person, and is authorized to file a petition for a writ of habeas corpus on behalf of the person. The Designated Representative does not have the authority to make any treatment decisions, cannot access or release the person’s clinical record without the person’s consent, and cannot request the transfer of the person to another facility.
Advocacy Center for Persons with Disabilities, or their attorney?
The facility can communicate with the entity to which the person is calling and seek direction. The facility cannot, on its own, limit the person’s access to communicate with these entities.
What should a facility do with personal effects that have been removed from a person and are believed to be dangerous?
Weapons removed from the person should be given back to the representative or a family member rather than to the person. If the person demands the return of such weapons, seek to advise of an attorney. If the item removed is an illegal substance, it can be turned over to a law enforcement agency for disposal, but the name of the person from whom the substance was removed should not be revealed.
Can a person be forced to wear specialized clothing in a receiving facility to designate their status as a suicide or escape risk?
The use of special clothing for identification purposes is a violation of individual dignity. However, if the physician orders special clothing for medical reasons, no such violation would occur.
Does a person on voluntary status need to be advised of the right to Habeas Corpus?
YES. The Baker Act requires that all persons “held” in a facility be advised of their right to file a petition for habeas corpus. No distinction is made regarding the age of the person. Since persons are entitled to file a petition for being unjustly denied a right or privilege granted under the law, this may apply to persons on voluntary as well as involuntary status.
What is the facility’s responsibility when a person wants to file a petition for a writ of habeas corpus for what appears to be a frivolous matter?
The facility has no discretion to determine what is serious and what is frivolous. In any case, the staff should give the petition form (form 3090 recommended) to the person and offer assistance in completing the form. No matter what form is chosen by the person to file a petition or whether the person accepts the assistance of the staff, the petition must be filed with the clerk of court within one working day.
How is the Court expected to respond to a petition for a writ of habeas corpus?
The Florida Supreme Court Commission on Fairness strongly urged all courts to treat petitions for writ of habeas corpus as emergency matters and expeditiously resolve these issues and ensure that the petitioner receives notice of the disposition.
What is the role of a designated representative?
A representative is designated when a person is admitted to a facility on an involuntary basis or is transferred from voluntary to involuntary status. The representative is promptly notified of the person’s admission and of all.
How is a clinical record defined? What is considered a part of the clinical record?
The Baker Act defines the clinical record to mean all parts of the record required to be maintained and includes all medical records, progress notes, charts, and admission and discharge data, and all other information recorded by a facility which pertains to the person’s hospitalization and treatment.
Can information from a psychiatric clinical record be released in response to a subpoena? A court order is required. In determining whether there is good cause for disclosure, the court must weigh the need for the information to be disclosed against the possible harm of disclosure to the person to whom the information pertains.
Can a member of a Local Advocacy Council (previously called the Human Rights Advocacy Committee) see a clinical record without the person’s consent?
YES. A Council member, showing a picture identification, has the authority to visit with any person and to see legal and clinical records in designated receiving and treatment facilities.
If a person has declared an intention to harm other persons, does the Baker Act require the administrator to release this information?
The Baker Act authorizes but doesn’t require, the facility administrator to release sufficient information to provide adequate warning to the person threatened with harm by the patient. However, case law suggests a stronger argument for protecting an intended victim.
If a person in a receiving or treatment facility confesses to committing a crime, does the facility have a responsibility to inform law enforcement?
The facility has no right to notify law enforcement of a person’s acknowledgment of any past crime. This may be a treatment issue, in which the person is encouraged to notify law enforcement on their own accord, or the facility may wish to share the information with the person’s attorney.
Can a facility release information about a person without consent?
NO except the Baker Act specifically permits the parent or next of kin of a person, regardless of age or legal status, which is held in or treated under a mental health facility or program to request and receive information limited to a summary of that person’s treatment plan and current physical and mental condition, as long as the release of information is in accordance with the code of ethics of the profession involved in the release. The facility is permitted but not required to provide this information when requested, and such a release of information does not require the person’s consent.
Can a Guardian Advocate review the contents of the clinical record?
YES. The Baker Act requires that the Guardian Advocate be given access to the appropriate clinical records of the person and may also authorize the release of information and clinical records to appropriate persons to ensure the continuity of the person’s health care or mental health care.
Can the Public Defender and State Attorney access the clinical record?
The Public Defender can have access to the clinical record, the person, and the staff is preparing for the involuntary placement hearing. The law doesn’t expressly permit this same access to the State Attorney prior to the hearing. In some circuits, the State Attorney has access, while not in others. In any case, the clinical record is always available at the time of the hearing and is, at that time, available to the State Attorney. The Supreme Court Commission on Fairness has recommended that the access to clinical records by the State Attorney in preparation for the hearing be clarified by the Legislature.
Does a person have a right to see their own clinical record?
YES. The Baker Act requires that persons have reasonable access to their clinical records unless such access is determined by the person’s physician to be harmful to the person. Federal law requires that access to one’s record be given unless that access is reasonably likely to endanger the life or physical safety of the person or others. Facilities and mental health professionals should make every possible effort to ensure persons have this access. Facilities should have policies and procedures addressing what is “reasonable access,” what is “harmful,” who makes the decision to permit access, who is authorized to restrict access, how the record will be reviewed to determine if harmful material is included, how the record’s integrity will be protected, and if a copy of the record will be provided to the person if requested.
Express & Informed Consent
If a person has an emergency medical condition and cannot or will not provide informed consent to examination and treatment, can the person be Baker Acted in order to authorize these procedures?
The Baker Act is Florida’s Mental Health Act, and it can’t be used to authorize medical intervention, with the exception of the required physical examination of each person within 24
Patient Rights State of Florida Department of Children and Families Mental Health Program Office Florida’s Baker Act Website – May 2002 7 hours of admission to a receiving facility. Other state statutes must be used, including Chapter 395 (hospitals), Chapter 401 (EMS), Chapter 765 (advance directives), Chapter 744 (guardianship), or Chapter 415 (adult protective services).
Mental Health Professionals
Do professionals identified in the Baker Act have to be licensed in the state of Florida?
Yes, physicians (including psychiatrists), clinical psychologists, clinical social workers, and psychiatric nurses but be licensed under their respective laws. The only exceptions are for physicians and psychologists who are employed at a veteran’s hospital that qualify as a receiving or treatment facility under the Baker Act; this does not include veteran’s outpatient clinics.
Can an Advanced Registered Nurse Practitioner (ARNP), physician’s assistant, or clinical psychologist perform duties permitted under their licensure but required by the Baker Act to be performed by a physician?
The licensure statutes are general laws that lay out the maximum scope of possible practice for specified professionals. The Baker Act is one specific statute under which a professional may practice. The limits of a specific statute take precedence over a general statute. Therefore, if the Baker Act places responsibility for a particular function on a physician, it cannot be delegated to another differently licensed professional. This applies to all aspects of mandatory examinations, emergency treatment orders, restraint/seclusion orders, certification of competency, and other duties.
What rights do professionals named in the Baker Act have?
The Baker Act provides three areas of immunity or protection to facilities and professionals. They are:
- Any person who acts in good faith in compliance with the provisions of this part is immune from civil or criminal liability for his or her actions in connection with the admission, diagnosis, treatment, or discharge of a person to or from a facility. However, this section does not relieve any person from liability if such a person commits negligence [394.459(10)].
- No professional referred to in this part shall be required to accept persons for treatment of mental, emotional, or behavioral disorders. Such participation shall be voluntary [394.460].
- Any person, agency, or entity receiving information pursuant to this section shall maintain such information as confidential and exempt from the provisions of s. 119.07(1). Any facility or private mental health practitioner who acts in good faith in releasing information pursuant to this section is not subject to civil or criminal liability for such release [394.4615 (6) &(7)].
Patient Rights State of Florida Department of Children and Families Mental Health Program Office Florida’s Baker Act Website – May 2002 Patient Rights State of Florida Department of Children and Families Mental Health Program Office Florida’s Baker Act Website – May 2002 8
What rights and responsibilities do the receiving facilities have?
All receiving facilities, public or private, are permitted to hold a person on an involuntary basis, assuming that all aspects of law or administrative code required or prohibited of personnel and facilities are in full compliance. The requirements of public and private receiving facilities are basically the same. A facility that has chosen not to seek designation must be sure to transfer any person with a serious mental illness to a designated receiving facility at any time the person cannot provide well-reasoned, willful and knowing decisions about their mental health care since such persons are not eligible for voluntary care.
Can a receiving facility limit the age or payer status of persons being presented for voluntary or involuntary admission?
A receiving facility must “accept” all persons brought by law enforcement personnel for involuntary examination. The only exception is when a transportation exception plan has been approved by the Board of County Commissioners and the Secretary of DCF. In addition, to limit persons by age, a receiving facility must have its designation specify such a limitation to children, elders, or other special populations.
Does the person have a right to request a transfer from one receiving facility to another?
YES. A person or their guardian or guardian advocate can request the transfer of the person between public and private receiving facilities. The facility to which the person would be transferred must approve the transfer in advance. In the case of a transfer from a private to a public receiving facility, the cost of the transfer is the responsibility of the transferring facility. A public facility must respond within two working days after the receipt of the transfer request, except from a hospital that has treated a person’s emergency medical condition where the person must be transferred within 12 hours. In any transfer situation, the federal EMTALA/COBRA law prevails where a conflict with state law exists.