Competence & Mental Illness

Mental illness and legal incompetence are not the same; it does not necessarily follow that all mentally ill people are legally incompetent.  Competency certification is a procedure during a Baker Act that can be misunderstood and applied unfairly. Psychiatrists at a Baker Act receiving facility certify competence. What may not be widely known is that someone can be held under a Baker Act involuntarily, even if the patient is competent. There are two areas in which competency during Baker Act examination is certified: voluntary admission and consent to treatment. If a patient is certified as incompetent for voluntary admission, they cannot be competent to consent to treatment. If the patient is certified as competent and requests voluntary admission, he or she can be a “voluntary” patient, and there is no court hearing in which a facility psychiatrist must testify. There is no “72-hour clock” in which actions by the facility must be taken within the examination timeframe. Patients in voluntary status may be in a Baker Act receiving indefinitely. Requests to patients to accept voluntary status are so common that, in some facilities, the staff completes the request for voluntary admission form, except for signature, and calls it “signing voluntary.” Some patients are reportedly told if they sign voluntary, they will be released sooner. If a patient is not on voluntary status, however, the patient can be certified as either competent or incompetent. Competence does not mean agreement, but it may be viewed that way by Baker Act psychiatrists. In practice, if the patient agrees to medication, then the patient is viewed as competent; if not, then the patient is seen as incompetent merely because he or she is not cooperating with needed treatment. If the patient is certified incompetent, a proxy’s permission is sought for treatment until a court hearing is held. This is usually the same hearing for involuntary placement. At this time, a guardian advocate (often the proxy) may be appointed by the court. Now the guardian advocate’s permission is sought by the hospital – the same as permission from the proxy before the court hearing.