CIVIL COMMITMENT PROCEEDINGS

The following is a brief overview of the processes by which a person may be admitted or committed to a psychiatric facility in Massachusetts.  A comprehensive review, including the several “practice advocacy” sections for defense counsel referenced below, and a detailed discussion of defense litigation techniques and strategies, is available in:

Counsel assigned through the Committee for Public Counsel Services should review the “Performance Standards

Definitions & Terminology:

ALCOHOLIC

For the purposes of civil commitment under G.L.c. 123, § 35, an alcoholic is “a person who chronically or habitually consumes alcoholic beverages to the extent that (1) such use substantially injures his health or substantially interferes with his social or economic functioning, or (2) he has lost the power of self-control over the use of such beverages.” G.L.c. 123, §35.

COMPETENT TO STAND TRIAL

A criminal defendant is competent to stand trial if he or she has sufficient present ability to consult with counsel with a reasonable degree of rational understanding, and a rational as well as factual understanding of the proceedings. Commonwealth v. Vailes, 360 Mass. 522, 524 (1971).

CONSERVATOR

A conservator is a person who is appointed by a court to manage the estate of a protected person and includes a limited conservator, temporary conservator and special conservator.G.L. c. 190B, §5-101(2).

DESIGNATED FORENSIC PSYCHIATRIST

For purposes of civil commitment and issues of competence to stand trial and criminal responsibility, a psychiatrist who has met certain requirements under 104 C.M.R. 33.04(3) and (4), including: demonstrating to the DMH Assistant Commissioner that he or she is licensed to practice medicine; is certified or eligible for certification by the American Board of Psychiatry and Neurology; and has completed training in conducting evaluations under G.L. c.123 §§ 12(e), 15-19, and 35. A designated forensic psychiatrist conducts examinations of persons 17 and older or any persons before the District or Superior Court pursuant to G.L. c.123 §§ 12(e), 15-19, and 35 and prepares reports of such examinations. 104 C.M.R. 33.04.

DESIGNATED FORENSIC PSYCHOLOGIST

For purposes of civil commitment and issues of competence to stand trial and criminal responsibility, a psychologist who has met certain requirements under 104 C.M.R. 33.04(8) and (9), including: being licensed as a psychologist and certified as a Health Service Provider under G.L. c. 112 §§ 118 and 121; obtaining 2,000 hours of clinical experience with adult psychiatric patients or 1,000 hours of clinical experience in an inpatient psychiatric hospital; and completing training in conducting evaluations under G.L. c.123 §§ 12(e), 15-19, and 35. A designated forensic psychologist conducts examinations of persons 17 and older or any persons before the District or Superior Court pursuant to G.L. c.123 §§ 12(e), 15-19, and 35 and prepares reports of such examinations. 104 C.M.R. 33.04.

FACILITY

A facility is “a public or private facility for the care and treatment of mentally ill persons, except for the Bridgewater State Hospital. “ G.L.c. 123, §1.

GUARDIAN

A guardian is a surrogate decision-maker who “has qualified as a guardian of a minor or incapacitated person pursuant to court appointment and includes a limited guardian, special guardian and temporary guardian, but excludes one who is merely a guardian ad litem.” G.L. c. 190B, §5-101(5).

INCAPACITATED PERSON

A person may be deemed incapacitated if he or she,

For reasons other than advanced age or minority, has a clinically diagnosed condition that results in an inability to receive and evaluate information or make or communicate decisions to such an extent that [he or she] lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance. G.L. c. 190B, §5-101(9).

LICENSED INDEPENDENT CLINICAL SOCIAL WORKER (LICSW)

An individual licensed by the board to practice independent clinical social work and who meets the qualifications set forth G.L.c. 112, §131. G.L.c. 112, §130. An LICSW must have a minimum of a master’s degree in social work from a graduate school of social work accredited by the Council on Social Work Education, or a degree from a foreign educational institution which is equivalent as well as evidence of supervised clinical experience. 258 CMR 9.03

LIKELIHOOD OF SERIOUS HARM

For purposes of civil commitment, likelihood of serious harm is means:

(i) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm;

(ii) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or; or

(iii) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person’s judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.

G.L.c. 123, §1.

MENTAL ILLNESS

For the purpose of involuntary commitment, a mental illness is:

A substantial disorder of thought, mood, perception, orientation or memory which grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, but shall not include alcoholism or substance abuse as defined in G.L. c. 123, §35; 104 CMR §27.05.

A developmental or intellectual disability is not a mental illness. G.L. c. 123B, §1.

MENTALLY RETARDED PERSON

Under the Uniform Probate Code:

An individual who has a substantial limitation in present functioning beginning before age 18, manifested by significantly sub average intellectual functioning existing concurrently with related limitations in 2 or more of the following applicable adaptive skills areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functioning academics, leisure, and work. G.L. c. 190B, §5-105.

NOT CRIMINALLY RESPONSIBLE – (Commonwealth v. McHoul)

A person is not criminally responsible:

If at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.

Commonwealth v. McHoul, 352 Mass. 544, 546-47 (1967).

NURSING FACILITY

For purposes of guardianship proceedings, a nursing facility is:

An institution or a distinct part of an institution which is primarily engaged in providing to residents: (i) skilled nursing care and related services for residents who require medical or nursing care; (ii) rehabilitation services for the rehabilitation of injured, disabled or sick persons; or (iii) on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services, above the level of room and board, which can be made available to that individual only through institutional facilities that are not primarily a mental health facility or developmentally disabled facility; provided however, that the term nursing facility shall not apply with regard to the placement or transfer of a patient to a facility that is (i) licensed by the department of public health, under section 51 of chapter 111, as a long term acute care hospital or inpatient rehabilitation facility; (ii) licensed by the department of public health, under section 71 of chapter 111, as a rest home; or (iii) licensed or certified as an assisted living residence by the executive office of elder affairs under 651 CMR 12.00 et seq.G.L. c. 190B, §5-101(15).

PERSON WITH AN INTELLECTUAL DISABILITY

A person with an intellectual (or developmental) disability is

A person who has an intellectual disability, characterized by significant limitations in both intellectual functioning and adaptive behavior as expressed in conceptual, social and practical adaptive skills and beginning before age 18, and consistent with the most recent definition provided by the American Association on Intellectual and Developmental Disabilities; provided, that in applying this definition the following shall be considered: (i) limitations in present functioning within the context of community environments typical of the individual’s age, peers and culture; (ii) cultural and linguistic diversity and differences in communication, sensory, motor and behavioral factors; (iii) limitations often coexist with strengths within an individual; (iv) an important purpose of describing limitations is to develop a profile of needed supports; and (v) with appropriate personalized supports over a sustained period, the life functioning of a person with an intellectual disability will generally improve; and provided further, that a person who has an intellectual disability may be considered to be mentally ill; provided, however, that no person with an intellectual disability shall be considered to be mentally ill solely by reason of the person’s intellectual disability. G.L. c. 123B, §1.

QUALIFIED PHYSICIAIN

For purposes of civil commitment a qualified physician is:

A physician who is licensed pursuant to section two of chapter one hundred and twelve who is designated by and who meets qualifications required by the regulations of the department [of mental health]; provided that different qualifications may be established for different purposes of [G.L. c. 123]. A qualified physician need not be an employee of the department or of any facility of the department.  G.L.c. 123, §1.

QUALIFIED PSYCHOLOGIST

For purposes of civil commitment, a qualified psychologist is:

A psychologist who is licensed pursuant to sections one hundred and eighteen to one hundred and twenty-nine, inclusive, of chapter one hundred and twelve who is designated by and who meets qualifications required by the regulations of the department [of mental health], provided that different qualifications may be established for different purposes of [G.L. c. 123]. A qualified psychologist need not be an employee of the department or of any facility of the department. G.L. c. 123, § 1.

QUALIFIED NURSE MENTAL HEALTH CLINICAL SPECIALIST

For purposes of civil commitment, a qualified psychiatric nurse mental health clinical specialist is:

A psychiatric nurse mental health clinical specialist authorized to practice as such under regulations promulgated pursuant to the provisions of section eighty B of chapter one hundred and twelve who is designated by and meets qualifications required by the regulations of the department [of mental health], provided that different qualifications may be established for different purposes of [G.L. c. 123]. A qualified psychiatric nurse mental health clinical specialist need not be an employee of the department or of any facility of the department. G.L. c. 123, § 1.

RESTRAINT

For the purposes of civil commitment, restraint is:

The application of bodily physical force, mechanical devices, chemicals, confinement in a place of seclusion other than the placement of an inpatient or resident in his room for the night, or any other means which unreasonably limit freedom of movement. G.L.c. 123, §1. Restraint may only be administered in accordance with G.L.c. 123, §21 and 104 CMR 27.12

SOCIAL WORKER

For the purposes of civil commitment as an alcoholic or substance abuser under G.L.c. 123, § 35, a social worker is an individual licensed pursuant to G.L.c. 112, §§ 131 & 132. A Licensed Social Worker, as distinguished from a Licensed Independent Clinical Social Worker, may have as little education as a high school diploma; however, such individuals need 17,500 hours of experience over not less than 10 years working under the supervision of a licensed social worker who has at least a baccalaureate degree from an approved social work program. 248 CMR 9.05(1)(f) and (2).

SUBSTANCE ABUSER

For the purposes of civil commitment, a substance abuser is:

A person who chronically or habitually consumes or ingests controlled substances or who intentionally inhales toxic vapors to the extent that: (i) such use substantially injures his health or substantially interferes with his social or economic functioning; or (ii) he has lost the power of self-control over the use of such controlled substances or toxic vapors. G.L.c. 123, §35.

SUPERINTENDENT

For purposes of civil commitment, superintendent is “the superintendent or other head of a public or private facility.” G.L.c. 123, § 1.

VOLUNTARY ADMISSION STATUSES

Voluntary Admissions: Overview

A person may be admitted voluntarily to a mental health facility on either of two statuses:                         voluntary or conditional voluntary. In either case, the person must be in need of inpatient care and treatment, and the facility must be suitable to provide such care and treatment. 104 C.M.R. § 27.06(1)(a).

Such admission may be applied for by:

  • the person, if he or she is 16 or older;
  • the parent or legal guardian of a minor; or
  • the legal guardian subsequent to an order of the Probate Court after a due process hearing

Before admission, the applicant must be afforded the opportunity to consult with an attorney, or a person working under the supervision of an attorney, regarding the legal effect of such an admission.

Voluntary Admission – Although rare, a person may be admitted on a truly voluntary basis. A person who applies for a voluntary admission, may only be admitted if the person understands that the facility is for treatment and that they may leave at any time. A person on a voluntary admission must be discharged upon their written request or that of the person who had applied for the admission. The superintendent may restrict the person’s right to leave to normal working hours and weekdays.

Conditional Voluntary Admission – A person also may be admitted on a “conditional voluntary” status. If the person applies for admission, they may be admitted only if the admitting or treating physician, after examination, determines that the person has been informed of, has the capacity to understand the following:

  • they are agreeing to stay or remain at the hospital;
  • they are agreeing to accept treatment;
  • they cannot leave until they give a three-day notice prior to leaving;
  • that a petition for civil commitment may be filed prior to the expiration of the three days; and
  • they may be detained at the facility beyond the three-day period pending a hearing on any petition.

Special rules apply to the admission of children and adolescents.

INVOLUNTARY ADMISSIONS

Pursuant to G.L. Ch. 123, sec. 7/8 a person may be detained only at a properly authorized mental health facility. Such a facility may be: a DMH-operated hospital;a DMH-operated community mental health center with an inpatient unit;a DMH-operated psychiatric unit within a DPH hospital; a DMH-licensed psychiatric hospital; a DMH-licensed psychiatric unit within a general hospital; a secure intensive residential treatment program for adolescents designated as a facility under DMH control; or a DMH-licensed secure intensive residential treatment program for adolescents.

Emergency Involuntary Psychiatric Admissions pursuant to G.L. c. 123, § 12. A person may be involuntarily admitted to a properly licensed facility for a period not to exceed three days upon application of:

  • A designated physician who, after examination, determines that the failure to hospitalize a person will create a likelihood of serious harm by reason of mental illness. This commonly referred to as a “pink paper” and authorizes the restraint and transport of the person to a facility. Upon arrival, the person may be admitted without any further psychiatric evaluation.
  • A physician, a qualified psychologist, a qualified psychiatric nurse mental health clinical specialist , or a licensed independent clinical social worker (LICSW) who, after examination, may authorize the restraint and transport of a person to an authorized facility, if the clinician has reason to believe that the failure to hospitalize the person would create a likelihood of serious harm by reason of mental illness.  In this case, the “pink paper” is an application for admission.  Within two hour of arrival at the facility, a psychiatric assessment must be conducted by a designated physician.
  • In an emergency a police officer, if a physician, qualified psychologist, LICSW, or psychiatric nurse is not available, who has reason to believe that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness, may restrain and transport a person to a mental health facility to apply for admission. Within two hour of the persons arrival at the facility, a psychiatric assessment must be conducted by a designated physician.

Upon admission, the facility must inform the person that it will, upon the person’s request, notify the Committee for Public Counsel Services (CPCS) of his or her admission in order that counsel may be appointed. The person, their legal guardian, parents, if a minor, must be informed that their is a right to apply for be admitted on, a voluntary or conditional voluntary basis. G.L. c. 123, § 12(c)

If the person admitted upon such an application or an attorney representing such person, has reason to believe that the admission is the result of an abuse or misuse of the section 12 process, they may request an emergency hearing in district court. The court must hear the matter not later than the next business day following the request’s filing, unless a delay is requested by the person or his or her counsel.

Anyone who believes that a person is mentally ill and that failure to confine the person would cause a likelihood of serious harm, may apply to a district or juvenile court for the three-day commitment of . The court must immediately appoint counsel for the person.  If, after the initial presentation of evidence, the court determines confinement may be necessary or proper, it may issue a warrant of apprehension authorizing the police to apprehend the person and bring them to court where the person can be examined. The examination must be  y a designated forensic psychiatrist or a qualified forensic psychologist. If the clinician determines that the failure to hospitalize the person would create a likelihood of serious harm by reason of mental illness, the court may, after a due process hearing, order commitment for three-day. The purpose of the commitment is to conduct a further evaluation to determine if further confinement is necessary. The person must be informed of the right to apply for

Discharge:

A person admitted under G.L. c. 123, § 12, paragraph (b), must be discharged if, at any time during the three-day period [See Manual, § 3.2(b)], the superintendent determines that he or she is no longer in need of care and treatment at the facility.  A person committed pursuant to an order the district court under G.L. c. 123, § 12, paragraph (e), may be discharged if, at any time during the three-day period [See Manual, § 3.2(b)], the superintendent determines that he or she is no longer in need of care and treatment at the facility. G.L. c. 123, § 12(c), (e); 104 C.M.R. § 27.09(7)(a).

If the person has not converted his or her admission or commitment under Section 12 to a voluntary or conditional voluntary admission, he or she must be discharged upon the expiration of the three-day period [See Manual, § 3.2(b)], unless a petition for commitment is filed by the superintendent with the district court in whose jurisdiction the facility is located. G.L. c. 123, § 12(d). If a commitment petition is filed, the client may be retained pending a hearing on that petition. G.L. c. 123, § 6(a).

Involuntary Admissions: Commitment for Alcoholism or Substance Abuse [G.L. c. 123, § 35; see Manual, § 3.3]

A person found to be an alcoholic or substance abuser may be committed by a justice of the district court or juvenile court for up to 30 days if the court finds that there exists a likelihood of serious harm by reason of the alcoholism or substance abuse.The petition to commit may be filed by a police officer, physician, spouse, blood relative, guardian or court official. The court must immediately schedule a hearing and cause the person to be served with a summons and a copy of the petition. Should the person fail to appear, an arrest warrant may issue. If, at the time of filing of the petition, the court has reasonable grounds to believe that the person will not appear and that delay would present an immediate danger to his or her physical well-being, the court may issue a warrant of apprehension. However, the person may not be arrested pursuant to a warrant unless he or she may be presented immediately before the judge.  Upon arrival, the court will order the person to be examined by a “qualified physician” (i.e., one who meets the criteria established at either 104 C.M.R. § 33.04(2) (“designated forensic psychiatrist”) or 104 C.M.R. § 33.04(5)(b)) or a “qualified psychologist” (i.e., one who meets the criteria established at 104 C.M.R. § 33.04(3)). The person has the right to counsel, and if he or she is indigent, the court must appoint counsel immediately. The person also has the right to present expert and other testimony at trial.

If, after hearing, the court finds that the person is an alcoholic or substance abuser, and that there is a likelihood of serious harm as a result thereof [See Manual, § 3.3(a), Requisite Findings, and § 3.3(a), Standard of Proof], he or she may be committed for a period not to exceed 30 days to a public or private inpatient facility approved by DPH for the care and treatment of alcoholism or substance abuse. If necessary to ensure the person’s or others’ safety, males may be committed to the Massachusetts correctional institution at Bridgewater, and females may be committed to the Massachusetts correctional institution at Framingham. If the person is committed to Bridgewater or Framingham, however, he or she must be housed and treated separately from convicted criminals.

The person may be discharged at any time during the 30-day period upon a determination by the director of the facility that discharge would not pose a likelihood of serious harm. The court need not approve of such discharge. While the person is to be “encouraged” to consent to further treatment beyond the 30-day period, and must be allowed to remain at the facility if he or she agrees to do so, no provision is made for continued involuntary commitment.

Involuntary Admissions: Criminal Justice Admissions/Evaluations [See Manual, Part 3]

Defendants in criminal proceedings whose competence to stand trial or criminal responsibility is in question may be evaluated at a DMH or private psychiatric facility licensed to perform “forensic” evaluations.  If “strict security” is required, male defendants may be evaluated at Bridgewater State Hospital, a Department of Correction facility. Such an admission will be for 20 days, but may be extended at the facility’s request for an additional 20 days.  G.L. c. 123, § 15(b); DMH Forensic Report Writing Guideline Checklist; see Manual, § 12.After a finding of guilty on a criminal charge, and prior to sentencing, a person may be evaluated “in aid of sentencing” at a DMH or private psychiatric facility licensed to perform such evaluations.  If “strict security” is required, males may be so evaluated at Bridgewater State Hospital. Such an admission will be for 40 days.  G.L. c. 123, § 15(e); see Manual, § 15.2.

A person confined in a place of detention may ordered to undergo an evaluation at a DMH facility or, if male, at Bridgewater State Hospital to determine if hospitalization is necessary.  Such an admission will be for 30 days.  G.L. c. 123, § 18(a); see Manual, § 15.1.

Involuntary Admissions: Guardianship [See Manual, § 23]

Where the admission or commitment of a ward to a mental health (or mental retardation) facility is sought, the guardian must obtain specific authorization from the Probate and Family Court to consent thereto. G.L. c. 201, §§ 6(b) (guardianship of person with mental illness), 6A(b) (guardianship of person with mental retar-dation), 14(b) (temporary guardianship of person with either mental illness or retardation). If the ward objects, the court may authorize the guardian to consent to the ward’s “commitment” only upon a finding that the ward is committable, applying the same substantive criteria and procedural requisites as those for commitment under G.L. c. 123 (see below). Doe v. Doe, 377 Mass. 272 (1979). [See Manual, § 23.1, Practice Advocacy]

If the ward does not object, the court may authorize the guardian to consent to the ward’s “admission” only upon a finding that admission would be in the ward’s “best interests.”  G.L. c. 201, §§ 6, 6A, 14. The standard to determine “best interest” has yet to be determined.  [See Manual, § 23.1, Practice Advocacy]

A legal guardian may no longer be authorized to consent to admission. G.L. c. 190B, § 5-309(f). (effective 7/1/2009).

COMMITMENTS TO PSYCHIATRIC FACILITIES

Civil Commitments: Introduction [See Manual, § 4]

A person may not be involuntarily confined at a psychiatric facility merely because he or she suffers from a mental illness or because he or she may benefit from the treatment available at such a facility. Rather, the court hearing a commitment petition must find, beyond a reasonable doubt, that the criteria for commitment have been met.  Except for commitments under G.L. c. 123, § 12(e) (see above) and § 35 (see above), these criteria and the burden and standard of proof, as discussed in this section, apply generally to commitments under G.L. c. 123, including commitments emanating from the criminal justice system (see above).

Initiating the Commitment Process [See Manual, § 5]

In order to retain beyond three days a conditional voluntary admittee who has submitted a notice of his or her intention to leave or a person admitted or committed under G.L. c. 123, § 12 (see above), or beyond six months or one year a previously committed person (see below), the superintendent of a facility must file, before the expiration of the applicable period [SeeManual, § 5.1, Practice Advocacy], a commitment petition in the district court or juvenile court that has jurisdiction over the facility. G.L. c. 123, § 7(a).After an evaluation as described above, a commitment petition may be filed against a defendant in a criminal proceeding who has been found incompetent to stand trial or not guilty by reason of mental disease or defect (G.L. c. 123, § 16(b)), against a person found guilty and evaluated in aid of sentencing (G.L. c. 123, § 15(e)), or against a person confined in a place of detention (G.L. c. 123, § 18(a)).

A person against whom a petition seeking his or her involuntary confinement in a mental health facility or Bridgewater is filed is entitled to the assistance of counsel. G.L. c. 123, § 5. [See Manual, § 26, The Role of Assigned Counsel. See CPCS Performance Standards.] Counsel, or an unrepresented person, must be afforded at least two days to pre-pare for the hearing. G.L. c. 123, § 5.

Commencement of Hearings [See Manual, § 6]

Commitment petitions filed under G.L. c. 123, §§ 15, 16 and 18, and petitions under G.L. c. 123, § 7 seeking a person’s recommitment, must be commenced within 14 days (unless a continuance is requested by the person or his/her counsel).Petitions filed under G.L. c. 123, § 7 seeking a client’s initial (i.e., 6-month) commitment — after a 3-day admission or commitment under G.L. c. 123, § 12, or after a conditional voluntary admittee’s submission of a 3-day notice of intention to leave — must be commenced within 5 days (again, unless a continuance is requested by the client or his/her counsel). See G.L. c. 123, § 7(c). [See Manual, § 6.1(a) and § 6.1(b), Waiver of Hearing.]

Commitment Criteria [See Manual, § 7]

Mental Health Facility [G.L. c. 123, § 8(a)].  Commitment to a public or private mental health facility (see above) requires that the court find the following:

      • that the person is mentally ill [see Manual, § 8.1(a), Practice Advocacy, Mental Illness];
      • that the failure to retain him or her in such a facility would create a likelihood of serious harm as a result of his or her mental illness [see Manual, § 8.1(c), Practice Advocacy, Likelihood of Serious Harm]; and
      • that there is no appropriate setting that is less restrictive of his or her liberty than the facility [Commonwealth v. Nassar, 380 Mass. 908 (1980); see Manual, § 8.1(d), Practice Advocacy, Least Restrictive Alternative].

Bridgewater State Hospital [G.L. c. 123, § 8(b)].  In order for a male to be committed to Bridgewater State Hospital, the court must find the following:

    • that the person is mentally ill [see Manual, § 8.1(a), Practice Advocacy, Mental Illness];
    • that he is not a proper subject for commitment to any facility of the Department of Mental Health; and
    • that the failure to retain him in strict custody would create a likelihood of serious harm [see Manual, § 8.1(c), Practice Advocacy, Likelihood of Serious Harm].

Burden & Standard of Proof [See Manual, § 8]

The entity seeking commitment must prove, beyond a reasonable doubt, that the criteria for commitment are met. Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978).

Disposition [See Manual, § 9].

The court must render its decision within 10 days of the completion of the hearing, unless the time period is extended by the Chief Justice of the District Court Department. G.L. c. 123, § 8(c).

Length of Commitment Orders [See Manual, § 9.1]

The first order of commitment will be valid for a period of six months, while any subsequent, consecutive commitment will be valid for a period of one year. G.L. c. 123, § 8(d); see Manual, § 9.2, Practice Advocacy.

Discharge [See Manual, § 9.1]

Except where the person is also a defendant in a criminal proceeding, or has been found not guilty by reason of mental disease or defect, he or she must be discharged if “no longer in need of care as an inpatient.” G.L. c. 123, § 4.Where the person is also a defendant in a criminal proceeding, or has been found not guilty by reason of mental disease or defect, the superintendent must notify the court and the district attorney of his or her intention to discharge the person or of his or her intention not to petition for further commitment. The district attorney may, within 30 days of the receipt of such notice, petition for the person’s continued or further commitment. The person must be retained at the facility during this 30-day period and, if a petition is filed, pending hearing.  G.L. c. 123, § 16(e).

Treatment and Restrictions Within the Facility  [See Manual, § 9.3 and § 19.5]

A committing court’s authority is limited to ordering a person’s commitment if the requisite findings are made, or ordering his or her discharge if they are not. Thus, except regarding “medical treatment for mental illness” ordered pursuant to G.L. c. 123, § 8B (see below), the court may not order a specific treatment regime or retention at a particular facility. Bradley v. Commissioner of Mental Health, 386 Mass. 363 (1982).The court may not restrict a person’s movements within a facility, unless the person is also a defendant in a criminal proceeding or has been found not guilty by reason of mental disease or defect, in which case, the court may restrict the person’s movements to the buildings and grounds of the facility. G.L. c. 123, § 16(e); Taunton State Hospital v. Carrara, 58 Mass.App.Ct. 86 (2003).  Should the superintendent wish to remove or modify such restrictions, he or she must notify the court of his or her intention to do so. The restrictions may be removed or modified unless the court objects, in writing, within 14 days. G.L. c. 123, § 16(e).

Appeals [See Manual, § 10]

There are two procedures by which an order of commitment may, in the first instance, be reviewed:

    • at any time during a period of commitment, the person or anyone on his or her behalf may petition the Superior Court Department to determine whether the criteria for commitment (or for the administration of medical treatment for mental illness under G.L. c. 123, § 8Bsee below) as found by the district or juvenile court, continue to exist. G.L. c. 123, § 9(b); see sample petition.  A full hearing on the merits will be held. Thus, a “Section 9(b)” is not, strictly speaking, an “appeal.”  In a § 9(b) proceeding, the petitioner bears the burden of proving by a fair preponderance of the evidence that his/her situation has significantly changed since the last commitment hearing so as to justify his/her discharge. Andrews, petitioner. [See Manual, § 10.1 Practice Advocacy]

Independent Clinical Examinations [See Manual, § 27]

In all but the most frivolous of cases, the court must permit a person subject to a commitment petition to retain (and, if indigent, at the commonwealth’s expense) the services of an independent psychiatrist or psychologist. [See Manual, § 27.1 Practice Advocacy; see list of independent clinicians.]Counsel always should discuss with his or her client the benefits and consequences of examination by, and testimony of, an independent clinician. [See Manual, § 27.1 Practice Advocacy.]  Where the services of an independent clinician will be sought on behalf of an indigent client, counsel should move for funds under G.L. c. 261, § 27B as soon as possible (see sample motion, affidavit in support of motion, Affidavit of Indigency & Related Forms).  Counsel should ask that the motion be heard immediately and on an ex parte basis. See Commonwealth v. Dotson, 402 Mass. 185 (1988); accord United States v. Abreu, 202 F.3d. 386 (1st Cir. 2000).

The information gathered and the opinions formed by an independent clinician “belong” to the client and are not discoverable by the petitioner (or to be shared with the court) unless and until counsel decides to use the information and opinions at trial. Thompson v. Commonwealth, 386 Mass. 811 (1982).  And, the court is not to draw any adverse inferences from counsel’s decision not to use the testimony of the clinician or his or her report at trial.  [See Manual, § 27.1 Practice Advocacy.]

Misc. Litigation Topics

See Manual for an indepth review of such litigation topics as:

      • the role of defense counsel [§ 26]
      • discovery [§ 28] [See, also, attorney access to clients and to client records]
      • hearsay & medical records [§ 29.1]
      • expert witnesses and opinion testimony [§ 29.2], including
        • qualification as an “expert”
        • purpose of opinion testimony
        • foundation & basis of opinion
        • scientific validity of expert’s methodology
        • predicting “dangerousness” and assessing risk
      • patient/psychotherapist privilege [§ 30]

 

 

 

 

 

 

Emergency hearings. In Newton-Wellesley Hospital v. Magrini, the SJC held (re emergency hearings under G.L. c. 123, § 12(b)) that :

      • “abuse or misuse” of § 12(b), may result not only from a denial of one or more of the specifically enumerated rights provided in its first and second paragraphs;<1> “the broad language serves as a catch-all provision to include other circumstances that have resulted in a wrongful § 12(b) admission.”
      • “unless a request for an emergency hearing on its face is patently frivolous, the obligation to hold an emergency hearing is mandatory.“
      • the client “has the right to be present at the hearing and may be heard. The hearing, however, does not necessarily have to be an evidentiary one. The judge conducting the hearing will have the discretion to decide whether evidence should be required in light of the abuse or misuse alleged.”

The court also, albeit in dictum, stated that “[t]hese other circumstances [noted above in the first bullet] do not include a challenge to the substance of the designated physician’s actual ‘determin[ation] that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness,’ G.L. c. 123, § 12 (b ), first par., because the Legislature has already established an appropriate time to challenge that determination, namely, at the hearing afforded to a person when the hospital is seeking the person’s continued commitment beyond the three-day hospitalization.” See Magrini, n.13.

Despite the court’s assertion, discharge is constitutionally required where an erroneous determination is made.  It is well established that a person admitted against his/her will to a mental health facility for whatever duration (here, 3 days) suffers a substantial deprivation of liberty and, therefore, must be afforded significant and meaningful due process protections.  An admission under § 12(b) is analogous to, and at least as onerous as, a warrantless arrest.  The admission results from a private citizen’s (i.e., the designated MD’s) professional assessment of the client’s clinical circumstances, much as a warrantless arrest is the result of a police officer’s professional assessment of relevant circumstances.  It is appropriate, therefore, that in the commitment context, the same factor (i.e., the MD’s exercise of professional judgment) be at issue and the same quantum of proof be applied by a reviewing court as are applicable in the warrantless arrest context.  Thus, at an emergency hearing under § 12(b), the hospital must show, by a preponderance of the evidence, that at the time of admission the facts and circumstances known to the designated MD were sufficient to warrant a reasonable designated MD to conclude that the failure to hospitalize the client would create a likelihood of serious harm by reason of mental illness.  Cf. Commonwealth v. Bruno, et al, 432 Mass. 489, 513 (2000)(loss of liberty when temporarily committed tantamount to infringement of arrest; probable cause finding required).

If you represent a client whom a court finds did not, at the time of his or her admission, meet the commitment criteria, but whose admission is nevertheless allowed to stand, or if a court refuses even to hear argument as to whether your client met the criteria, please let me know immediately.  I, with whatever assistance you wish to offer, will bring the issue up for appellate consideration.

The above notwithstanding, it is clear that there must be “reason to believe” that an abuse or misuse occurred, or that the criteria for admission were not present.  Counsel should discuss with the client the grounds for filing for an emergency hearing, and strongly discourage the filing of clearly frivolous requests.

August 22, 2008
District Court Chief Justice Connolly issues revised “Request for Emergency Hearing” form and memorandum to judges in light of Magrini decision.

 

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I.e., (i) no exam by designated MD, in community or at hospital
(ii) exam not conducted “immediately” (i.e., within 2 hours – see 104 CMR 27.07(2))
(iii) insufficient information re counsel given to client
(iv) no notice to CPCS despite client’s request for counsel
(v) improper finding of commitment criteria