Mental Health Litigation Unit

Administrative Matters

	LEGAL CONSULTATION AND ADVICE
ASSIGNMENT OF COUNSEL:
		G.L. c. 123, § 12(b)
		G.L. c. 123, §§ 12(e) and 35
		G.L. c. 123, §§ 15-18
		Notice to Facilities
		Judicial Response System
		Assignment & Travel Policy
EXPERTS:
		Certification of Payment Voucher
		Qualifications & Payment of Independent Experts
		Affidavit of Indigency & Related Forms
	MALPRACTICE INSURANCE - CPCS POLICY
	MEMBERSHIP IN E-GROUP REQUIRED
	MENTORS

LEGAL CONSULTATION AND ADVICE
In order to enable us to better serve mental health counsel, the following primary areas of responsibility have been established:  

When  seeking advice or assistance, please contact the appropriate staff member.
 
 

MENTORS
Attorneys seeking the assistance of an experienced mental health litigator -- to discuss strategy; to walk you through your first (or second, or third, or ...) commitment, guardianship, or substituted judgment case; to brainstorm a particularly difficult issue -- please contact Karen Talley.  

EMERGENCY MENTAL HEALTH PROCEEDINGS
The Trial Court Department has established a "Judicial Response System" to handle emergency matters when the courts are closed.  In order to assist the Administrative Office of the Trial Court in this effort, we periodically provide the Administrative Office with a list of attorneys in each county from which the emergency-response judge will appoint counsel on a rotating, as-available basis when emergency mental health matters arise. 

If you would like to be added to this list, please contact Unit Coordinator Lisa Ferrari [(617) 988-8380]. Attorneys accepting such appointments will be compensated at the standard rate ($50/hour) and, in addition, will receive one (1) CLE credit-hour towards their annual mental health certification requirement for each case handled.
  

DETERMINATION OF INDIGENCY
Persons against whom are filed petitions to commit to public or private mental health facilities (including the Bridgewater State Hospital) or against whom are filed petitions seeking the authority to administer or discontinue certain forms of treatment (i.e., treatments requiring a "substituted judgment" determination -- e.g., antipsychotic medication, life-support mechanisms) are presumed to be indigent. See Supreme Judicial Court Rules, Rule 3:10(1)(f)(iii)). Therefore, immediately upon receipt of such petitions courts are to assign mental health-certified counsel.

VIOLENCE RISK ASSESSMENT STUDY
Data from the MacArthur Violence Risk Assessment Study indicate that where alcohol and substance abuse are not involved the incidence of violence among recently discharged "mental patients" is essentially the same as that of others living in the same neighborhoods! "Violence by People Discharged From Acute Psychiatric Facilities ... ." Archives of General Psychiatry , May 1998.
  

INAPPROPRIATE EXPERT TESTIMONY
The Summer 1998 edition of The Advisor (No. 48),  published by the Mental Health Legal Advisors Committee, contains an article written by Dr. Paul Appelbaum, Chair of the Department of Psychiatry at the University of Massachusetts Medical Center, concerning the inappropriateness of expert testimony as to legal, as opposed to clinical, matters (e.g., whether a person is "incompetent").  Dr. Appelbaum suggests that clinicians refrain from doing so and recommends that expert testimony as to ultimate legal issues not be admissible.  Given Dr. Appelbaum's renown, counsel may want to bring this article to an opposing expert's (or the court's) attention when seeking to exclude an opinion as to, for example, whether the risk posed by a person, if discharged, is "substantial" or "very substantial." The Advisor can be obtained from MHLAC at (617) 338-2345.
  

INFORMATION ON MEDICATION
Attorney Mark Machado, a MHLU panelist, is also a pharmacist.  He has graciously offered to provide counsel with information concerning medications and resources that may be of assistance when researching issues relating to drug therapy.  Mark can be reached by telephone at (508) 238-0025 or email.
  

"I certify that the expert or provider who submitted this bill has provided services in this case."

Additionally, all motions should reference the associated NAC number.

If you do not have a NAC number, please provide the docket number and a brief explanation.

Your assistance in notifying all experts, private investigators and social service providers whom you utilize of this requirement, and in ensuring that all such vendors are made aware of associated NAC numbers, is greatly appreciated.

ASSIGNMENTS: G.L. c. 123, § 12(e) and § 35
As a general rule, attorneys certified by CPCS to accept mental health assignments are to be assigned in proceedings under G.L. c. 123, § 12(e) [i.e., 3-day commitments to mental health facilities] and G.L. c. 123, § 35 [i.e., 30-day commitments for alcohol- and substance-abuse].  However, because this is often impracticable given the emergency nature of these cases, a bar advocate may be assigned when the court is unable to locate mental health counsel.  Where such an assignment is made, the court should indicate on the Notice of Assignment of Counsel (NAC) form that the appointment was an "emergency assignment" and either CPCS Offense Code #1017, for a § 12(e) assignment, or CPCS Offense Code #1018, for a § 35 assignment. The attorney should indicate on his/her Request for Payment (RFP) form that the appointment was an "emergency assignment."
  

MENTAL HEALTH ASSIGNMENTS IN CRIMINAL PROCEEDINGS (G.L. c. 123, §§ 15-18)
Apparently there remains some (perhaps understandable) confusion as to whether criminal defense counsel or mental health counsel is to be appointed in proceedings under the various forensic provisions of G.L. c. 123.  As a general rule, criminal defense counsel should continue to represent a defendant for whom he/she has been appointed throughout all stages of the criminal proceeding, including hearings as to whether certain forensic examinations are to be ordered and hearings as to a defendant's competence to stand trial.  However, should a petition to commit be filed subsequent to such an examination, mental health counsel should be appointed to represent the defendant, but for purposes of a commitment hearing only.  Specifically,

Criminal defense counsel should continue to represent a defendant in respect to the following issues:

§ 15(a): whether a preliminary competence to stand trial and/or criminal responsibility examination should be ordered;

§ 15(b): whether a more comprehensive competence and/or responsibility examination should be ordered; if so, whether such an examination should be conducted on an inpatient or outpatient basis; if inpatient, whether a requested 20-day extension should be granted;

§ 15(d): whether a defendant is competent to stand trial (i.e., competence hearing);

§ 15(e): whether an examination "in aid of sentencing" should be ordered;

§ 16(a): whether an examination of an incompetent defendant or insanity acquittee should be ordered;

§ 16(b) or § 16(c) : whether a defendant against whom a commitment or recommitment petition has been filed is or remains competent to stand trial (i.e., competence hearing){but see below};

§ 17(a): whether a defendant is competent to stand trial (i.e., competence hearing);

§ 17(b): whether there is sufficient evidence to support a conviction; and

§ 18(a): whether an examination of a person held in a place of detention pending trial should be ordered. [Examinations of post-trial clients also may be conducted, but criminal defense counsel typically will no longer be involved.]

[In all of the above situations, except where a hearing on competence prior to a recommitment under § 16(c) is conducted, the court having jurisdiction over the criminal proceedings will be involved.]

Mental health counsel (or bar advocate or public defender if certified or trained to accept mental health appointments, respectively) should be appointed to represent a defendant or insanity acquittee in the following proceedings or in respect to the following issues. (In all cases involving an untried defendant, mental health counsel must consult with criminal defense counsel as to their mutual client’s interests.):

§ 15(e): a hearing on a petition to commit filed as a result of an "aid in sentencing" examination;

§ 16(b) or § 16(c): a hearing on a petition to commit or recommit {but see below};

§ 16(e): a hearing on a petition to commit filed by a district attorney in response to a facility's notice of intention to discharge or notice of intention not to petition for recommitment;

§ 16(f): a hearing on a petition to commit an incompetent defendant filed by a facility subsequent to the dismissal of charges;

§ 18(a): a hearing on a petition to commit a prisoner or a defendant held at a place of detention pending trial; and

§ 18(c): a hearing on a petition to commit a previously committed prisoner whose criminal sentence has expired.

IMPORTANT MESSAGE CONCERNING MALPRACTICE INSURANCE
The requirement that all attorneys doing business with CPCS maintain malpractice insurance has now been in effect since September 1999.  See CPCS Assigned Counsel Manual, Chapter II, § 10. We have begun rejecting assignments to uninsured attorneys and to attorneys who have failed to provide us with proper evidence of insurance coverage.

Please be advised of the following CPCS policies:

1. Assignments that are rejected due to an attorney’s failure to provide proof of insurance to CPCS will not be reinstated.  Any such cases will be reassigned to another attorney.

2. An attorney may resume receiving assignments as soon as CPCS has been provided with proof of insurance coverage.

3. If an attorney’s assignments are rejected due to an error or omission by CPCS, those assignments will be reinstated.

 

March 2, 2001

Stan Goldman, Esq.
Committee for Public Counsel Services
44 Bromfield St.
Boston, MA 02114

RE: Attorney Access to Client Records

Dear Stan:

You have asked me to outline the Department’s position relative to court appointed attorneys’ access to their clients' records in DMH licensed or operated facilities. The question arises in the context of attorneys who are appointed to represent patients in commitment proceedings under General Laws chapter 123, and their need to review their clients' records.

General Laws ch. 123 §36 provides that records of facilities under DMH supervision are to be kept private, and not open to inspection, except under certain limited circumstances. The relevant exception is that the records are to be made available to the attorney for a patient if the patient or attorney so requests. DMH has interpreted this statutory requirement in our regulations at 104 CMR 27. 17(6)(b), which are applicable to licensed facilities as well as DMH operated facilities. The regulation states that “[t]he Commissioner or designee shall permit the attorney of a patient to inspect the records of said patient upon the request of the patient or attorney.” For purposes of this regulation, the Commissioner’s designee is the facility director. The regulation provides that the facility may require that the request be in writing, and that appropriate verification of the attorney-client relationship be provided. There is no requirement in the statute or in the regulation that the attorney obtain the patient’s consent or release prior to being given access to the records.

The Supreme Judicial Court has recognized DMH’s authority and expertise in its interpretation of Chapter 123. Under a prior DMH regulation, the SJC sustained DMH’s discretion to in fact require a written release by the patient before giving her records to her attorney. Doe v. Commissioner, 373 Mass 534 (1977), referring to then in effect DMH Regulation §7.03(c). While the SJC ruled that DMH’s requirement of a release was consistent with the legislative intent to protect patient privacy, it did not hold that it was required by the statute. DMH promulgated new regulations, which, as mentioned above, merely permit the facility to require a written request and verification of the attorney-client relationship.

Among the reasons for this change in regulation is a recognition that the rapid turn around required in commitment proceedings may result in cases where an attorney needs access before he or she has had the opportunity to meet with his or her client.   In addition, there may be questions of competence where clients are so impaired as to be unable to give an informed release.

With one exception noted below, it is therefore our position that a DMH licensed or operated facility must provide access to a patient’s record to the patient’s attorney, upon request of the patient or the attorney. While the facility may require a written request and verification of the attorney-client relationship, it cannot require the patient’s release before granting the attorney access.   A court appointed attorney’s Notice of Appointment of Counsel is sufficient verification of attorney-client relationship for this purpose.  [Insofar as CPCS has statutory authority to assign counsel, the Notice of Assignment of Counsel issued by CPCS should be sufficient documentation to establish the attorney’s role as counsel.]

On the other hand, neither the statute, nor the regulations, address the situation where a patient expressly refuses to allow the attorney access to his or her records. On those rare occasions we believe that an attorney probably needs to determine whether the client is effectively declining the representation that is being offered, and may need to either withdraw, or to seek a court order for access to the records. In such a case, the facility would probably be acting within its authority to deny access until the issue of representation has been clarified, or an order is obtained.

I hope this has been helpful. If you have any questions, please do not hesitate to call.
   

Very truly yours,

LESTER D. BLUMBERG
Deputy General Counsel

[Note: Attorney Blumberg is currently DMH's General Counsel]

COMPANY STRENGTHENS WARNING ON SCHIZOPHRENIA DRUG
By Lisa Richwine   WASHINGTON, Feb 21 (Reuters)

Drug maker Novartis AG on Wednesday alerted doctors to the possibility of a potentially fatal heart problem in patients treated with the company's drug Clozaril.In a letter to physicians, Switzerland-based Novartis said post-marketing data from four countries revealed 82 reports of an inflammation of the heart lining known as myocarditis in patients treated with Clozaril.The company added a caution about myocarditis to the "black box" warning on the label for the prescription drug, known generically as clozapine."Analyses of post-marketing safety databases suggest that clozapine is associated with an increased risk of fatal myocarditis, especially during, but not limited to, the first month of therapy," the warning says."In patients in whom myocarditis is suspected, clozapine treatment should be promptly discontinued," it adds.Surveillance of the drug since it hit the market has revealed 30 reports of myocarditis, 17 of them fatal, among more than 205,000 US patients treated with Clozaril, the Novartis letter said.There also were seven myocarditis cases with one fatality in Canada, 30 cases with 8 fatalities in Britain, and 15 cases with five fatalities in Australia, the letter said.Of the 82 total cases, 51, or 62%, occurred within the first month of Clozaril treatment, according to data on the updated label. Doctors should consider the possibility of myocarditis in Clozaril patients with unexplained fatigue, fever or malaise, the letter said.The company worked with the Food and Drug Administration (FDA) to develop the wording for the warning, Novartis spokesman Harry Rohme said.The black box section, the strongest type of warning for a prescription drug, was moved to the beginning of the Clozaril label, Novartis said. The boxed warnings also include previous cautions about the possibility of serious side effects such as seizures and a drop in white blood cells in patients treated with Clozaril.The FDA posted the Novartis letter on its Web site. Agency officials were not immediately available for comment.Source: Reuters

 

 

********************************************************************************************************************

Mental Health Proceedings in Massachusetts: A Manual for Defense Counsel (Fourth Edition, 2009) by Stan Goldman

TABLE OF CONTENTS

RESEARCH AS TO SAFETY & EFFICACY OF ANTIPSYCHOTIC COMBINATION TREATMENT URGENTLY NEEDED

"As a result of the frequency with which patients are exposed to the risk of newer antipsychotic agents combined with conventional neuroleptics, and because providers believe that this combination is advantageous to the patient, future studies are urgently needed to examine the effectiveness and risks of combination antipsychotic therapy." Tapp, et al.  "Combination Antipsychotic Therapy in Clinical Practice" in Psychiatric Services, Vol. 54, No. 1 (January 2003).

"Antipsychotic combination treatment clearly requires further studies before clinical recommendations can be made."  Freudenreich, O. and Goff, D.C.  "Antipsychotic Combination Therapy in Schizophrenia" in Acta Psychiatrica Scandinavica, Vol. 106, Issue 5 (November 2002).

In order to provide counsel with administrative announcements and other information relating to representation in mental health proceedings through the Committee for Public Counsel Services, membership in the Mental Health Litigation Unit E-Group is now REQUIRED of all mental health-certified attorneys.If you have not done so, please forward, without delay, your name and e-mail address.  Thank you for your cooperation.

GERIATRIC ROGERS CERTIFICATION NO LONGER REQUIRED
Several years ago the “Geriatric ‘Rogers’” panel was established within the Mental Health Litigation Unit in order to afford more effective representation to indigent geriatric persons against whom were filed petitions seeking authorization to administer antipsychotic medications. Membership on this panel had been open to attorneys who were certified to accept assignments in mental health proceedings and who attended a four-hour training program dealing with the unique issues posed by this particular clientele.  Because these issues are now adequately addressed during our expanded five-day mental health certification program, CPCS has approved the dissolution of the panel, effective October 19, 2005.

As you of course know, effective November 11, 2000, any person admitted to a mental health facility pursuant to G.L.c.123, §12(b) must be informed that, upon his or her request, the facility will contact the Committee for Public Counsel Services (CPCS) in order that an attorney may be assigned to represent him or her.  In order to facilitate the implementation of this new statutory requirement, we respectfully ask that the following procedure be followed whenever a person is admitted to your facility under §12(b):

1. A copy of the attached CPCS informational flyer (English version; Spanish version) should be given to the person as soon as the decision to admit is made.  If the person has any questions in respect to his or her right to the services of an attorney, he or she should be afforded the opportunity to contact CPCS at the telephone numbers listed on the flyer and in private.

2. If the person wishes to avail himself or herself of the services of a CPCS-appointed attorney, the facility should immediately contact CPCS by telephone at (617) 863-5171. This phone line will be utilized solely for this purpose.  An assignment clerk should be available during regular business hours (i.e., 9:00 a.m. – 5:00 p.m., Monday – Friday).  If an assignment clerk is not available or when our office is closed, please leave a voicemail message with the following information:

• the person's name,
• the time and date of his or her admission,
• the unit or ward on which he or she has been placed,
• any particular needs (e.g., interpreter) of the person, if known,
• the name and address of your facility, and
• the name, telephone number and fax number of a contact person at your facility

3. We will assign a trained mental health attorney as soon as possible.  A copy of our assignment letter will be faxed to your contact person.

4. The attorney will be expected to visit with the person no later than the next business day following his or her assignment.  Your cooperation in affording the attorney access to the person and to the person's records and treatment team will be greatly appreciated.

5. As soon as a decision is made to seek the person's commitment, pursuant to G.L. c.123, §§ 7 & 8, please so inform the person's attorney and fax a copy of the commitment petition, when available, to us at (617) 863-5185.  In most cases, the previously appointed attorney will represent the person at hearing.  However, if another attorney is appointed, or if an attorney had not previously been appointed, your contact person will be sent a copy of our assignment letter.

Should you have any questions or concerns in respect to the above, please do not hesitate to contact me.  And, thank you for your cooperation. 
 

As November 11th fast approaches, I wanted to update you as to where we stand in respect to the changes resulting from enactment of St.2000, c.249:

1. Admission assignments.  Upon a person's ("client's") admission under G.L. c. 123, § 12(b), the facility will give him or her a CPCS informational flyer (English version; Spanish version) and will, if requested by the client, contact this office (see attached memorandum to facilities).  We will immediately attempt to identify an available attorney from the appropriate court-based list – someone from this office (we are hiring 2 assignment clerks) will telephone, leaving a voicemail message if no answer, and will assign the matter to the first attorney to respond affirmatively.  Therefore, it is imperative that you check your messages periodically, even on weekends!  If you prefer to be contacted by email, please let us know.  NACs will follow by mail or fax, with a copy to the client and the facility. You will be expected to meet with your client no later than the next business day following the assignment.  If a commitment petition is subsequently filed, you will stay on the case.

2. Commitment hearing assignments.  Upon the filing of a commitment petition, the district court or the BMC (or the superior court for petitions under G.L. c. 123, § 16) will fax a copy to this office and will notify us of the hearing date.  If counsel was assigned upon admission, we will immediately fax him or her a copy – a new NAC will not be issued.  If counsel had not previously been assigned, we will go through the above-noted process.


3. Emergency hearings. (revised 7/2008) In Newton-Wellesley Hospital v. Magrini, the SJC held 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.

<1>

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

4. G.L. c. 123, §§ 12(e) and 35 assignments.  The assignment of counsel for petitions under G.L. c. 123, §§ 12(e) and 35 will not change – see above. I fully expect that there will be some (hopefully few and minor) glitches in our initial attempts to implement the new law.  However, with your cooperation and understanding, I am confident that we soon will be able to fully meet the challenge presented by this significant, and long-awaited, statutory revision.  Please let me know how things are going and how we may improve the process.  And, above all, thank you for your continued willingness to assist our clients!!

  

Now that we've apparently survived another winter, a few tidbits for your reading pleasure:

1. My memorandum of November 9, 2000, notwithstanding, the procedure for the assignment of counsel in admission and commitment proceedings under G.L. c. 123, with the exception of assignments involving clients at the Bridgewater State Hospital, will continue to be as follows:

Admission assignments.  Upon a person's ("client's") admission under G.L. c. 123, § 12(b), the facility will give him or her a CPCS informational flyer (English version; Spanish version) and will, if requested by the client, contact this office (see memorandum to facilities).  We will immediately attempt to identify an available attorney from the appropriate court-based list – an assignment clerk ([Curtis Bradford] or Jerry Richard) will telephone, leaving a voicemail message if no answer, and will assign the matter to the first attorney to respond affirmatively.  Therefore, it is imperative that you check your messages periodically, even on weekends!  A letter confirming the assignment, and containing a NAC number (a paper NAC will not be issued), will be faxed as soon as practicable (with a copy to the facility contact person).  If a commitment petition is subsequently filed, you will stay on the case

Commitment hearing assignments.  Upon the filing of a commitment petition, the district court or the BMC (or the superior court for petitions under G.L. c. 123, § 16) will fax a Notice of Hearing form and a copy of the petition to this office.  The hearing must be scheduled for the third or fourth court-business day following the petition's filing.   Effective March 1, 2005, commitment petitions filed under G.L. c. 123, §§ 15, 16 and 18, and petitions under G.L. c. 123, § 7 seeking a client's recommitment, must be commenced within 14 days (unless a continuance is requested by the client 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 commitment under G.L. c. 123, § 12 or after a conditional voluntary client'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).  Where a 5-day hearing is required,the hearing must be scheduled for the third, fourth or fifth court-business day following the petition's filing. <1>  If counsel was assigned upon admission, we will immediately fax him or her copies of the Notice of Hearing form and the petition (a new NAC number will not be issued).  If counsel had not previously been assigned, we will go through the process described above.

2. We have become aware of situations in which clients have not been advised of their right to counsel upon admission, and those in which facilities have delayed notifying us until after a commitment petition has been filed despite a client's request for counsel upon admission.  Counsel assigned as a result of the filing of a commitment petition against a client who had been admitted under § 12(b) should always ascertain whether either of these situations obtain.  If so, counsel should move to dismiss the commitment petition, as the client's admission was improper and, therefore, the client is not a "patient" of the facility.  See G.L. c. 123, § 7; In Re John Doe. Also, please let us know of such occurrences.

3.  Please keep in mind that as trial counsel you must, after disposition, meet with the client to explain the court's decision.  If the client is committed, you must explain his/her right to appeal, pursuant to G.L. c. 123, § 9(a), and his/her right to seek a de novo hearing in the superior court, pursuant to G.L. c. 123, § 9(b).  If the client wishes to pursue such option(s), you must file the appropriate pleadings – a notice of appeal within 10 days of the entry of judgment (§ 9(a)), or an application for discharge (§9 (b)).<3>  However, you need not represent the client in such proceeding(s).<4>  Please immediately notify us of the initiation of either a § 9(a) or § 9(b) proceeding in order that we may assign you or another attorney to the matter.

Footnotes

<1> Hearings must commence within five court-business days of the filing of the petition, with day "one" being the next business day after filing.  G.L. c. 123, § 7(c).  Counsel must be afforded at least two days to prepare.  G.L. c. 123, § 5.

<2>  Counsel "shall not agree to a continuance of the case without first consulting with the client and obtaining his/her consent."  CPCS PERFORMANCE STANDARDS GOVERNING THE REPRESENTATION OF CLIENTS IN CIVIL COMMITMENT PROCEEDINGS, Standard 2(d).  Counsel should not recommend that a client agree to a continuance without good reason (e.g., to secure the services of an independent examiner, to negotiate a "settlement" with hospital counsel).
<3> Performance Standards, Std. 15.

<4>  Mental Health Appellate certification is required for assignment in a § 9(a) appeal.