June 21, 2024

Health Mettler Institute

Healthy LifeStyle & Education

Mental health law meant as last resort used increasingly on kids

Mental health law meant as last resort used increasingly on kids

Advocates say the Baker Act, designed as a measure of last resort, is not used that way. The result: Kindergarteners can be forcibly committed to psych centers for exams.

Marah Marino poses in her twin sons’ room at her Florida home. (Josh Ritchie for The Washington Post)

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When a fourth-grader in Florida was frustrated about having to sit out his afternoon recess, he penciled a word on an outdoor bench: kill. A teacher asked him about it, and he said it was what he wanted God to do to him.

His mother, Marah Marino, guessed he was hurt and angry. “He’s not a mature 10-year-old,” she said.

But soon, a sheriff’s deputy who was working in the school stepped in, using a controversial state law to order an involuntary psychiatric evaluation and confinement for up three days in a mental health facility. Marino, who rushed to the school after getting a call about the incident, was stunned, pleading with the officer and asking to be with her son.

The deputy drove away with the terrified boy, and Marino followed closely behind them in her car, watching her son stare out the back window, sobbing, his hand on the glass.

Every day in Florida, children and adolescents are involuntarily committed for psychiatric assessments under the Baker Act, a 1971 law. In fiscal year 2020-21, involuntary exams happened more than 38,000 times to children under 18 — an average of more than 100 a day and a nearly 80 percent increase in the past decade, according to the most recent data. The law is so deeply enmeshed into the state’s culture that it is widely used as a verb, as in: The 6-year-old was “Baker Acted.”

Some children have been taken away in handcuffs.

Florida’s reliance on forced psych exams is rising amid a national mental health crisis among school-aged children. The percentage of girls who reported depressive symptoms and suicidal thoughts climbed in 2021, according to the Centers for Disease Control and Prevention. There are too few clinicians for the expanding need for mental health care. And in Florida, Baker Act intakes hit a high. By contrast, the number for adults dropped, according to a report by the Baker Act Reporting Center at University of South Florida.

While the law is useful for the most serious cases, critics say, it is too often used with kids who have behavioral issues, students with disabilities and those who say something they don’t mean. Children as young as 5 or 6 have been temporarily committed, and opponents contend that some mental health facilities are profit-driven and substandard and fail to keep parents informed about their children.

Supporters say that the longtime Florida law has helped keep people from hurting themselves or others — and that it can force a family to reckon with a child’s need for professional care. When police and others involved are sufficiently trained, the process can work well “as one strategy for intervention,” says Stephen Roggenbaum, chair of the Florida Suicide Prevention Coalition.

Florida is not alone in detaining children this way. But of the six states that keep publicly available data on the practice — including California, Colorado, Connecticut, Virginia and Wisconsin — Florida is an outlier, said David Cohen, a professor at the University of California at Los Angeles who studies the issue. In 2018, the state committed children nearly 16 times more often than Wisconsin, one of the less zealous users of its provision.

“The public has no clue how much involuntary commitment and coercion are going on right now,” Cohen said.

By law, the Baker Act can be used when a person is thought to be mentally ill and poses a “substantial likelihood” of serious harm to themselves or others in the near future if they don’t have care or treatment. Police, mental health clinicians and others with the power to invoke the law used it more than 5,000 times in school settings in Florida during the 2021-22 fiscal year, according to data collected by school districts.

This school year, a 16-year-old who made a joke about running into traffic, a 6-year-old who made an unspecified threat in class and a 15-year-old who spoke of self-harm when the school declined to recognize their gender identity all found themselves Baker Acted.

The most recent data showed a commitment rate of 1,231 per 100,000 minors, compared to 740 per 100,000 a decade ago.

The Florida Department of Children and Families did not provide comment — in response to repeated inquiries by The Washington Post — on the law’s benefits and challenges, including oversight and lack of parent involvement.

Elizabeth McGill, a mother of two in northeastern Florida, watched her 6-year-old be led away in handcuffs last year for allegedly saying he would shoot others or harm himself — words she was certain he did not fully understand. School officials could not be reached for comment this week.

McGill and the boy’s father were not allowed to visit him at the mental health facility where he spent three nights, she said, but she called frequently. Each time, McGill said, the kindergartner pleaded: “Mama, when are you getting me out?”

In the early 1970s, when lawmakers crafted the Florida Mental Health Act, commonly called the Baker Act, support was growing for community-based mental health efforts that would reduce long-term psychiatric hospitalizations. Fifty years later, those hospitalizations are no longer the norm.

But the law has no age parameters and, critics contend, little oversight, and sometimes children or adolescents are kept longer than the 72 hours permitted by the statute, according to parents and advocates.

One problem is that not everyone using the law is equally trained. April Lott, chief executive of a Florida mental health nonprofit called Directions for Living, sat on a statewide task force convened to study the Baker Act in 2017. Some police officers get training in crisis intervention, she said, but it is not comparable to the expertise of mental health or medical practitioners. “It should require extensive training,” she said.

Sixty percent of cases for people under age 18 were initiated by police, and 40 percent were made by health professionals, according to state data. Florida has mobile mental health response teams that get involved in cases, but “there’s just not enough of them,” Lott said.

In 2020, just weeks before the pandemic, 6-year-old Nadia King was sent for a compulsory psychiatric exam for being “a threat to herself and others” and “out of control.” But body-camera footage from that day shows a calm child as she is led away from her school by sheriff’s deputies. Later, as the officers confer, one is heard saying that nothing seems to be wrong with the girl.

“She’s been actually very pleasant,” the officer said. The other agreed. “I think it’s more of them just not knowing how to deal with it,” he said, appearing to refer to the school.

School officials said at the time of the episode that the decision was made by a mental health professional sent by a nonprofit, according to a story by The Washington Post. It was not clear whether school officials considered other ways to resolve the incident.

The law’s detractors say even a night of psychiatric detainment is traumatic in the life of a child. Some had never slept away from home. Some interpret it as being jailed or punished. And after the ordeal, some parents move their children into new schools, scared it will happen again.

Adding to the toll, some families are saddled with medical bills for the time their children spent in psychiatric facilities. The tab may be several thousand dollars, depending on insurance and other factors, several parents and lawyers said.

Critics say the process is traumatic without being helpful. “Kids leave there with recommendations for treatment but no way to get it,” said Robert Latham, associate director of the Children & Youth Law Clinic at the University of Miami Law School. Standing in the way, he said, are waiting lists for therapy, insurance limitations, access problems and geographical barriers. Most of the time, nothing changes afterward, he said.

Florida newspapers have often pressed the issue. In 2019, a Tampa Bay Times investigation found cases of children being housed with adults in mental health centers, or being physically or sexually abused there. It cited instances of children being Baker Acted after saying something on Snapchat, scribbling about death in a textbook or crying in a counselor’s office.

Efforts to change the law have been mixed. One change in 2021: Parents must now be notified before a child is removed from a school. But their consent is not needed. Other changes from 2022 require each school system to designate a mental health coordinator and police to restrain people in the least restrictive manner “available and appropriate under the circumstances.”

Caitlyn Clibbon, a public policy analyst with Disability Rights Florida, said that the change to police practices could reduce the use of handcuffs on children but that the wording leaves room for interpretation. “We should not be treating them like criminals,” she said.

While revisions from 2017 say psych exams on minors must start within 12 hours of arrival at a facility, the wording is vague and parents report children detained for days.

Some argue for more scrutiny of the Baker Act process as it begins, so that children are not pulled into facilities unnecessarily.I wish there were an intermediate step where the facility that they’re brought to can sort of reevaluate and see that they really need to be admitted or not,” said Michael Shapiro, a Florida psychiatrist.

For Latham, the most important issue is that the Baker Act solves little in the lives of children. They may get some medication management and possibly some group sessions while detained, but they typically don’t receive therapy or other services, he said. “If it was the front door to something that would help, that would be different,” he said. But “it traumatizes and puts a kid through all of this with nothing on the other end.”

Superintendent Bill Husfelt of Bay District Schools on the Gulf Coast makes no apologies for supporting the Baker Act. His students have been pummeled by Hurricane Michael — a Category 5 storm that ripped away houses, paychecks, stability and hope — and then a pandemic that brought more stress and chaos. Some are immigrants from Honduras, Guatemala and Ukraine who experienced hideous traumas before they arrived.

During the previous school year, children were Baker Acted 121 times in school settings, district data show. This year appears to be similar.

But Husfelt said that in his district of 27,000 students, the Baker Act is not used lightly. Well-trained mental health staff conduct a thorough examination, he said, in a process that could take “an hour or two easy before that decision is made.” Usually, he said, parents are there.

Still, he said, “there are more Baker Acts of elementary school students than I’ve ever seen.”

State data on use of the Baker Act in 2020-21 shows a majority of students ages 5 to 10 were boys, while a majority of those ages 11 to 17 were girls. More than 60 percent of students were White, 23 percent Black and 11 percent other races, with 20 percent identifying as Hispanic. The racial makeup largely reflects the population.

Husfelt cites examples: A 9-year-old said she was hearing voices that were telling her to hurt herself and who planned to turn on the oven and climb inside. A 16-year-old with a history of self-harm who needed counseling but was hamstrung by her family’s disapproval and now wanted to hurt herself.

“I would rather every child get counseling, and nobody get Baker Acted,” he said. “But I also don’t want to be the one that finds out that one of our students committed suicide because we didn’t do anything about it.”

On the other side of Florida, on another side of the debate, advocates assert that the best way to apply the Baker Act is sparingly. The better-safe-than-sorry approach presumes that the risks of not using the Baker Act are greater than the trauma children experience from commitment, they say.

In Palm Beach County, the nonprofit Disability Rights Florida and several families sued the school system in 2021 for allegedly overusing the law, an action that followed a report by the Southern Poverty Law Center detailing the “costly and cruel” practice.

More than 1,200 students went from district schools to psychiatric facilities from 2016 to 2020, the suit said, including more than 250 students in elementary school. The suit also accuses the county of having “seized Black children for involuntary examination at twice the rate of white children, a disparity that worsens for young children: 40 of 59 children under age eight examined under the Act in that period were Black.”

Those students did not get the benefit of de-escalation strategies, and they instead were taken into custody by police officers working for the district — often without parental input or over parents’ fierce objections, the suit alleged.

Palm Beach County school officials said in a statement that the case points to the need for student mental health support. Each student involved in the suit was experiencing a mental health crisis, they said, and “the appropriate individuals, acting in good faith … made the decision that these children should be transported to the hospital for the appropriate medical personnel to evaluate them and provide them with help.”

The legal team behind the case said that de-escalation strategies should precede a referral and that parents should be involved in decision-making. They want handcuffs used in only the most severe circumstances and cases to receive after-action reviews to see whether they were preventable.

Brian Martinez’s son was 10 years old when he was caught up in the Baker Act. The boy was part of a special program for children with autism in a public school in the Orange County school district in Orlando. After students teased him one April day in 2018, he said he wanted to hurt himself, the father said.

Teachers and principals can’t order a student’s psychiatric removal through the Baker Act, but they can involve police officers or mental health personnel who have the authority to do so.

In the Martinez case, a school administrator alerted police, who beat Martinez and the boy’s mother to the school, he said. The decision had already been made by the time they arrived. Martinez recalls pleading that his son not be handcuffed. He dropped to his knees to tell his son it would be okay.

Once at the psychiatric facility, the 10-year-old refused to eat or shower. He shared quarters with teenagers as old as 17, the family said. Martinez hired a lawyer who won the boy’s release the next day. “He had a developmental disability, not a mental illness,” said attorney Kendra Parris, who argues that teachers and police need more training on how to use the law.

But for the boy, the experience was not over, Martinez said. He had nightmares for two years. He worried more. At 14, he still struggles with “saying the wrong thing” and facing detention again, Martinez said.

“Kids say stupid things all the time,” he said. “It doesn’t mean they’re going to go kill themselves. You’re telling me, with all the advances and all the science and all of the education, we can’t diagnose this and know the difference?”

School officials in Orange County said that they could not speak directly on the case because of student privacy protections, but that the district has threat assessment teams set up at each school, and centrally, and relies on law enforcement to determine when a Baker Act is needed.

Nev Jones, a University of Pittsburgh professor who interviewed dozens of affected teenagers and young adults in Florida, said a substantial number reported feeling worse after their psychiatric stay than before it — more despondent, depressed and hopeless. None had received therapy during a Baker Act commitment.

Families have reported that children have trouble sleeping after they come home. Some lose faith in adults at school. Some children of color, who already fear interactions with police, feel even more frightened. Many children and adolescents vow to protect themselves by never disclosing their mental health difficulties.

“I don’t want to share my feelings, even with people I trust,” said a 16-year old from Melbourne who was Baker Acted during the 2022-23 school year and spoke on the condition of anonymity to protect her privacy.

Foster kids are especially vulnerable to Baker Acts, said Latham, of the Children & Youth Law Clinic. Many lose their placements after being sent away, he added, and then are harder to place because of the stigma that attaches to them.

“I’ve had kids held in Baker Acts for way longer than they should be,” Latham said. “No placements would take them, so they wound up getting stuck there for months.”

The 10-year-old who wrote “kill” on the bench at his public charter school — which said it could not comment because of student privacy laws — was one of the lucky ones. He was taken to a hospital where a doctor saw the boy quickly and decided he had been wrongly Baker Acted. According to Marino, the doctor called it a “grave overreaction.”

Together, mother and son headed home.

If you or someone you know needs help, visit 988lifeline.org or call or text the Suicide & Crisis Lifeline at 988.