Section 5-306A
(a)
No guardian, temporary guardian or special guardian of a minor or an incapacitated person shall have the authority to consent to treatment for which substituted judgment determination may be required, provided that the court shall authorize such treatment when it (i) specifically finds using the substituted judgment standard that the person, if not incapacitated, would consent to such treatment and (ii) specifically approves and authorizes a treatment plan and endorses said plan in its order or decree. The court shall not authorize such treatment plan except after a hearing for the purpose of which counsel shall be provided for any indigent minor or incapacitated person. Said hearing shall be held as soon as is practicable; provided, however, that if the petitioner requests a temporary order on the grounds that the welfare of the minor or person alleged to be incapacitated requires an immediate authorization of treatment, the court shall act on such request in accordance with the procedures set forth in section 5–308. When approving and authorizing an antipsychotic medication treatment plan by order or decree, the court shall consider the testimony or affidavit of a licensed physician or certified psychiatric nurse clinical specialist regarding such plan.
(b)
The court may delegate to a guardian the authority to monitor the treatment process to ensure that a treatment plan is followed, provided a guardian is readily available for such purpose. Approval of a treatment plan shall not be withheld, however, because a guardian is not available to serve as monitor. In such circumstances, the court shall appoint a suitable person to monitor the treatment process to ensure that the treatment plan is followed. Reasonable expense incurred in such monitoring may be paid out of the estate of such person, by the petitioner, or, subject to appropriation, by the commonwealth, as may be determined by the court.
(c)
Each order authorizing a treatment plan pursuant to this section shall provide for periodic review at least annually to determine whether the minor's or incapacitated person's condition and circumstances have substantially changed such that, if competent, the minor or incapacitated person would no longer consent to the treatment authorized therein. Each such order shall further provide for an expiration date beyond which the authority to provide treatment thereunder shall, if not extended by the court, terminate.
(d)
A minor 14 or more years of age or an incapacitated person shall be required to attend any hearing relative to authority to consent to treatment for which a substituted judgment determination is required, unless the court finds that there exist extraordinary circumstances requiring the absence of the minor or incapacitated person in which event the attendance of his counsel shall suffice; provided that the court may base its findings exclusively upon affidavits and other documentary evidence if it (1) determines after careful inquiry and upon representations of counsel, that there are no contested issues of fact and (2) includes in its findings the reason that oral testimony was not required.
(e)
Any privilege established by section 135A of chapter 112 or by section 20B of chapter 233 relating to confidential communications shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this part, for the purposes of obtaining treatment of a person alleged to be incapacitated; provided, however, that such person has been informed prior to making such communication that they may be used for such purpose and has waived the privilege.
Massachusetts comment
The types of treatment for which a substituted judgment procedure may be required are not listed as they may vary depending on the invasiveness of the particular proposed procedure or because of advancements which reduce side effects, etc., see In Matter of Spring, 380 Mass. 629, 405 N.E.2d 115 (1980). Treatments for which Court authorization may be required include antipsychotic medication, sterilization, abortion, electro-convulsive therapy, psychosurgery and removal of artificial maintenance of nutrition or hydration. Subsection (b) codifies the annual review of treatment plans established by Guardianship of Weedon, 409 Mass. 196, 565 NE2d 432 (1991).
Authority for a guardian to commit a person to a mental health or retardation facility by the Probate Court under G.L. c. 201 is repealed. See § 5-309(f). Guardians may, however, proceed under G.L. c. 123 in the District Court.
Subsection (e) preserves the protections of G.L. c. 201, § 6A(g). See also Comm. v. Lamb, 365 Mass. 265 (1974).
Chapter 140 of the Acts of 2012 added “When approving and authorizing an antipsychotic medication treatment plan by order or decree, the court shall consider the testimony or affidavit of a licensed physician or certified psychiatric nurse clinical specialist regarding such plan.” to subsection (a), added the words “minor or” before the words “incapacitated person” twice in subsection (c), and by changing the first clause of subsection (d) to also apply to minors 14 or more years of age.