The judge shall order an examination of the respondent to be conducted by a qualified physician, a qualified psychologist, or a qualified social worker.
July 22, 2015, effective February 1, 2016. Additional commentary added July 20, 2016, effective September 6, 2016.
(2016) The 2016 legislation amended G.L. c. 123, § 35 to add the word “qualified” before “social worker” in the list of persons who may conduct an examination. St. 2016, c. 8, § 3 . The original Rule 5 already had this requirement.
(2015) Section 35 provides that "[t]he court shall order examination by a qualified physician, qualified psychologist or a social worker." Rule 5 clarifies that the social worker must be qualified to opine on substance abuse matters. See 104 C.M.R. § 33.06 (setting forth the process for designating social workers to opine on section 35 matters); accord 104 C.M.R. § 33.04 (process for designating physicians and psychologists).
As there is no statutory provision for holding a respondent overnight pending a hearing, the examination (and the hearing) must occur as soon as practical and, in any event, no later than the end of the day on which the respondent is brought to court. Prior to the examination, a psychologist or social worker clinician must provide the respondent with the warnings required by Commonwealth v. Lamb , 365 Mass. 265, 270 (1974), regarding the unprivileged nature of communications during the examination, and the respondent must knowingly and voluntarily waive the privilege otherwise afforded by G.L. c. 233, § 20B or G.L. c. 112, § 135B . See In re Laura L. , 54 Mass. App. Ct. 853, 858-61 (2002). In deciding whether to waive the privilege and participate in the examination, the respondent may consult with counsel. See Seng v. Commonwealth , 445 Mass. 536, 548-49 (2005). As provided in Rule 7(b), if the respondent declines to participate in the examination, the clinician may nevertheless render an opinion and, in testifying at the commitment hearing, may report the respondent's refusal to participate. The judge, however, may not draw an adverse inference from the respondent's refusal to participate in the examination.