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Ask Judge Smith: Involuntary Evaluations and Treatment

Special to the News Columns

Ask Judge SmithMany people with a mental illness or addiction isolate themselves and go it alone. I see them daily in my courtroom. You would be shocked by how much court time judges spend handling people’s mental health and addiction issues.

Suppose the court questions a criminal defendant’s competency to proceed. When that happens, one or more doctors evaluate the defendant. The state cannot try incompetent defendants before they regain their competency. This delay ensures that they understand the charges, the punishments they face, and the legal process. Also, mindful defendants can help their defense lawyers.

As a society, we highly value liberty and freedom from undue government interference. People with mental issues or addictions also have privacy, liberty, and the pursuit of happiness rights, and the law jealously protects their freedoms.

The behavior of mentally ill persons and addicts can range from quirky, to dysfunctional, to dangerous. Sometimes they spin out of control. When they do, concerned family members may petition circuit courts to make them safe by interfering with their liberty.

Per Florida’s Baker Act, a court may force a person in the grip of a mental illness to be evaluated and treated for up to a few days. Mental illness does not include chronic brain conditions such as dementia or closed-head injuries. In part because modern medicine can’t cure or improve these conditions. And certainly not in a couple of days turnaround.

Likewise, per Florida’s Marchman Act, a court may order a person crushed by substance abuse to be assessed and treated for up to a few days. These short-term remedies permit emergency interventions to avert likely death or great bodily harm. Lesser risks will not suffice. The danger must be immediate, not simply a condition that worsens over time.

Usually, a concerned family member initiates the process by filing a sworn petition asking the court to intervene. Courts must make two findings of fact before doing so. First, the person must have refused needed help. Second, if left alone, he will be dangerous to himself or others. Anything less won’t cut it.

An analogy may help make the “danger” distinction clearer. Think of the Baker and Marchman acts as life preservers. You would throw a life preserver to a drowning woman in the deep end of a pool. You would not throw a life preserver at a sunburned man standing knee-deep in a pool. It’s one thing to drown and another to be sunburned — even if too much sun stings and may cause skin cancer later.

The petitioner must have first-hand knowledge of the sworn facts, and the judge will evaluate urgency and the danger factor by applying an objective standard to these facts. Petitions must not rely solely on hunches or conclusions. Thus, a court would deny a petition reading only, “Bob is crazy and dangerous,” for lack of details.

Judge J. Layne Smith is the circuit judge for Wakulla County, a bestselling author, and a public speaker.

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