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Stopping at a guard shack recently to be checked before driving into the State Mental Hospital seemed an oxymoron to me. I would hardly be trying to sneak in to gain admission. I was entering the grounds of the Florida State Mental Hospital to confer with clients prior to their court appearances. The hearings were about 2 weeks away, but since I had more than 60 cases on the docket for presentation, it was necessary for me to make the 90 minute drive to review matters with as many clients as possible.

The hearings at the State Hospital are quite informal. An administrative law judge from the state capital comes to hear the cases. This is statutorily required for all continuing involuntary placement hearings. When meeting my clients, this is one of the first things I explain to them about the hearing, the informality and candor of the proceedings (many of my clients are very familiar with these hearings, some of them having resided in the state mental hospital for 10 to 20 years). Attendance at the hearings is not mandatory; however, I do ask my clients to attend and possibly testify.

I have represented numerous clients at the hospital. One was deaf. The state hospital had no services for her as they had no certified translators, psychiatrists, social workers or psychologists who could sign or could effectively work with the three translators offered by the hospital. This hospital has more than 400 patients, some of whom are deaf and need 24 hour services.

This young woman lived in a ward with no other deaf patients, no translators on constant call. No one with whom she could communicate. For two years she virtually lived in isolation. All of the strange day to day business going on around her went by unexplained.

This cruel and unusual lifestyle was recently ended by a writ of habeas corpus. The woman was transferred to a facility where sign language would be a second language. Therefore, she would be able to receive therapy and treatment.

Where do these clients come from? Who or what sends people to a state mental hospital? Every client, whether there for 20 years or 20 days, has one thing in common in Florida. The Baker Act. Every client, whether sent to the state hospital recently or long ago has arrived pursuant to F.S. 394.451 et. al. (Florida Statute) or a legal interpretation and precedence thereof (In re: Beverly, 342 So. 2d 47, Fla. 1994). Other states have similar laws.

The Florida statute, like others, was originally intended to take care of those who could not take care of themselves, were a danger to themselves, or a danger to others-the power of the state to act as guardian, protector, big brother, etc. In many cases, the well intended plans of our legislators have too often turned into a terrifying form of incarceration and isolation.

Imagine sitting alone at home in the comfort of your favorite easy chair. The house is in somewhat disarray simply because you haven't felt like cleaning it lately. There is plenty of food in the house for one, as that is all you need now. Suddenly the police are at your door, dragging you out of the comfort of your home with no explanation. You become somewhat hysterical at this forceful removal from the familiar confines of your home. You are put in the back of a patrol car like a criminal. Handcuffs are put on your arms to keep you from swinging at the officers or hurting yourself. You are a 102 lb., 70 year old female being hauled away without explanation by two young and strong officers of the law.

Several hours earlier, you had mentioned to an intrusive neighbor that you would rather be dead at times than face life without your deceased husband of 49 years. This statement, combined with a previous diagnosis of severe depression, which occurred immediately after his death 7 months earlier, is presented to a Circuit Court Judge in an affidavit by a nosy neighbor. She does not file this in person. The judge has no witness to examine or questions he can ask of the party filing the affidavit. He is simply presented an ex parte communication about a woman who may be depressed enough to carry out a threat of killing herself.

The judge will most likely err on the side of caution, protecting himself/herself, rather than thoroughly examining the shoddy affidavits. His/her signature on the ex parte petition and order acts as a warrant for the arrest of this elderly woman, sitting in her comfortable chair, in her comfortable home, who has done nothing but feel sad about the loss of her husband and chose not to clean house. She is about to be held in a psychiatric facility for at least 72 hours. She is not given Miranda rights or an automatic phone call. She does not have the right to see a judge within 24 hours. She will not even be legally represented until the three days (72 hours) have elapsed.

Eventually I was appointed by the court to represent this "locked down" client. It then became my obligation to get this 70 year old woman back home to her leisure chair and dusty shelves.

This nightmare is the beginning of a Baker Act case. Not all start this way. A police officer can initiate such a violation of your civil rights on his or her own if in his/her "well trained, psychiatrically competent opinion," this "cop playing shrink" thinks a person needs to be placed in a psychiatric facility.

One may wonder how such a thing can happen. Part of the problem stems from how quickly and easily anyone of us can lose our freedom. This legislation allows almost anyone with a semblance of information or diminutive knowledge of a person's habits or idiosyncrasies to simply fill out an affidavit, add a threat of possible harm to self or others (real or imagined), and present it to the court clerk who then presents it to a preoccupied circuit judge for his/her signature.

Unfortunately, a disgruntled husband hoping to gain custody of his children in a divorce action, may see this as a quick and effective mode of discrediting his spouse. A relative seeking to gain access or control of an aunt's or uncle's money or property may avail themselves of this necessary first step. Motives for the presentation of these affidavits vary, but the result is incarceration of the victim in a psychiatric facility for at least 72 hours with no recourse or relief.

As a public defender, it is my responsibility to use any lawful means to satisfy my clients' demands. Most of my clients want to be discharged from the facility. Therefore, it is my job to try to get them out. Discharge means precisely that. If the petition for involuntary placement is denied by the court, the state hospital has 30 days to find alternative community placement or, in some cases such as crisis units, person can be discharged to the streets. A discharge to the streets and total freedom without restriction or supervision is attractive to many clients. However, for some, this usually means recommitment to a hospital within a month or two.

If a client wants out of any constraint or confinement, then my job is to dig through his/her medical chart and get as much information from the client's sometimes confused mind as I can. I then try to challenge the basis of the petition. If my client is mentally ill and a danger to himself/herself, a danger to others, or a danger to himself/herself because he/she is unable to take care of himself/herself without the help of willing and responsible family or friends, the judge or hearing officer will most likely continue confinement in an institution.

In all Florida hearings it is the psychiatrist who performed the original evaluation during the patient's first 72 hours of captivity who testifies against the patient's release. However, many clients' charts reveal a person who may have a mental illness, but is not a danger to himself/herself or others. Their interactions with staff and other patients often reveal a person who is medication compliant, causes no problems within the confines of the psychiatric facility and seemingly can take care of himself/herself. A thorough examination of this chart is critical by the public defense lawyer, in order to competently represent the client.

Being mentally ill is not alone a basis for confinement behind locked doors. For example, a woman (client of mine) who enjoys walking the streets at night clothed in what a hospital psychiatrist might think is strange attire or talking in an unknown dialogue, could be diagnosed as schizophrenic by the psychiatrist performing the 72 hour evaluation required by F.S.394.463. There is no basis for holding this woman involuntarily. Her eccentricity is not a danger to herself or others. Her medical examination, a requirement of Florida law, revealed a physically healthy woman, obviously taking care of herself.

The judicial magistrate comes to the hospital to conduct the hearings. This is done for the "benefit of the patient/client," but it is realistically done for the benefit of the courts and counties. Hospital based hearings save money. The hearings are somewhat less formal than courtroom cases, however the rules of evidence apply and courtroom etiquette is expected of the attorneys, witnesses and clients. The assistant state attorney presents the case through direct examination of the testifying psychiatrist. The state attorney's office is delegated this responsibility not because of the doctrine of parens patriae (supposedly the state looking out for those needing its care). If the hearing goes well for my client and the court finds he/she does not meet the criteria, the client is discharged and set free.

The public defender must be aware of abuses in the mental health system and must be ready with solutions. These individuals have fewer protections and rights than any other in our judicial system. It is the job of the public defender to protect and assert every right they have under the law.