Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness: General, Standard 1

Standards 1:00 through 1:02 of the District Court's Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness.

1:00 Introduction to District Court mental health and addiction proceedings

The District Court is responsible for conducting sixteen separate types of mental health or addiction proceedings under G.L. c. 123. They fall into five groups: 

1. Civil commitment of mentally ill persons. Civil commitment of persons alleged to be mentally ill (G.L. c. 123, §§ 7 & 8, 12, 13);
2. Medical treatment of civilly committed persons. Authorization for medical treatment of mental illness for incompetent persons who have been civilly committed (G.L. c. 123, § 8B);
3. Forensic examination and commitment of criminal defendants. Forensic mental health examinations and commitments of persons involved in the criminal justice system (G.L. c. 123, §§ 15-18);
4. Examination of witnesses or civil litigants. Examination of the mental condition of witnesses or civil litigants (G.L. c. 123, § 19); and
5. Civil commitment of alcoholics and substance abusers. Civil commitment of persons alleged to be alcoholics or substance abusers (G.L. c. 123, § 35). 

These Standards address only the first two of these five types of proceedings. They have been promulgated to provide guidance in applying the law and to promote uniformity of procedure in such cases in the District Court.

The Standards describe the legal requirements and recommended practices for adjudicating petitions seeking any of the following: 

1. Emergency involuntary civil commitment of a person alleged to be mentally ill to a public or private mental health facility for three days on petition of any person and after examination by a designated physician or forensic psychologist. Where necessary, these proceedings may also involve the issuance of a warrant of apprehension to bring the person before the court. (G.L. c. 123, § 12[e].) See Standard 6:00.
2. Involuntary civil commitment of a person alleged to be mentally ill to a public or private mental health facility or Bridgewater State Hospital, initially for six months and on subsequent recommitments for one year, on petition of a mental health facility director or Bridgewater State Hospital’s medical director, after a “conditional voluntary” admission (G.L. c. 123, §§ 10-11), an involuntary emergency admission (§ 12[b]), or a prior court commitment under §§ 7 & 8, 12(e), 13, 15, 16 or 18. (G.L. c. 123, §§ 7 & 8). See Standards 2:00 through 5:04.
3. Authorization to administer medical treatment for mental illness (usually antipsychotic drugs) to a putatively incompetent civilly committed person, on petition of a facility director or Bridgewater State Hospital’s medical director (G.L. c. 123, § 8B). See Standards 7:00 through 11:04.
4. An emergency hearing on an application by an involuntarily hospitalized person to determine whether his or her admission resulted from abuse or misuse of the § 12(b) admission or commitment procedure (G.L. c. 123, § 12[b]). See Standard 6:01.
5. Involuntary civil commitment to Bridgewater State Hospital of a patient transferred from a mental health facility, on petition of the Commissioner of Mental Health, a facility director, or the medical director of Bridgewater State Hospital (G.L. c. 123, §§ 7[b] or 13). The Department of Mental Health is limited by a 1987 consent decree and by St. 1988, c. 1, § 5 to filing such petitions only for respondents with criminal charges. 

Chapter 123 and these Standards do not apply to persons with an intellectual disability but who are not mentally ill.

Commentary

For an outline of all sixteen types of mental health or addiction proceedings conducted by the District Court under G.L. c. 123, see Appendix A. For a section-by-section outline of G.L. c. 123, along with the statutory text, court forms, and links to leading cases, see R. B. Minehan, Mental Health Proceedings under Chapter 123: A Benchbook for Trial Court Judges (Judicial Institute, 2011 ed.). See also 53 R. B. Minehan & R. M. Kantrowitz, Mental Health Law (2007 & Supp. 2011). 

Note that the Uniform Probate Code (G.L. c. 190B, § 5-309[f]), unlike prior G.L. c. 201, § 6(b), no longer permits the Probate and Family Court to grant a court-appointed guardian the authority to admit the ward to a mental hospital. Instead, commitment proceedings must be initiated in the District Court under G.L. c. 123, §§ 7 & 8.

Consent decree on transfers to Bridgewater State Hospital

In 1987, the Department of Mental Health agreed that it would henceforth seek to transfer patients already committed to a mental health facility to Bridgewater State Hospital only if they had criminal charges. In a consent decree, DMH agreed that it would no longer petition under G.L. c. 123, §§ 7(b) or 13 for court approval to transfer already-committed patients to Bridgewater State Hospital if they “neither have a pending criminal charge against them nor are serving a criminal sentence nor are awaiting sentencing, except for persons found not guilty by reason of mental illness or mental defect.” Shawn P. O’Sullivan v. Michael S. Dukakis, C.A. No. 87-3881 (Suffolk Supr. Ct.), Interim Settlement Agreement at 8-9 (1987). The consent decree was subsequently ratified by St. 1988, c. 1, § 5, which directed DMH to implement a plan to end such transfers unless required by G.L. c. 123. Note that the consent decree and statute do not affect the court’s authority to commit or transfer respondents to Bridgewater State Hospital pursuant to G.L. c. 123, § 7(b) or § 13.

Intellectually disabled persons

“[A] person with an intellectual disability may be considered mentally ill; provided further, that no person with an intellectual disability shall be considered mentally ill solely by virtue of the person’s intellectual disability.” G.L. c. 123B, § 1. A person with an intellectual disability is “a person who, as a result of inadequately developed or impaired intelligence, as determined by clinical authorities as described in the regulations of the [Department of Developmental Services], is substantially limited in the person’s ability to learn or adapt, as judged by established standards available for the evaluation of a person’s ability to function in the community.” Id. Admission procedures for facilities for persons with an intellectual disability are set out in G.L. c. 123B, §§ 5-7 and do not involve the court. 

Intellectual disabilities were sometimes formerly referred to as developmental disabilities or mental retardation, but that terminology was eliminated from the General Laws by St. 2010, c. 239.

1:01 Definitions

Designated forensic psychiatrist

A psychiatrist who has been designated by the Department of Mental Health to conduct examinations and make reports pursuant to G.L. c. 123, §§ 12(e), 15-19 and 35. To qualify for such designation, a psychiatrist must

1. be licensed to practice medicine in Massachusetts;
2. either be certified or eligible to be certified by the American Board of Psychiatry and Neurology or have completed at least three years of post-graduate medical training, two years of which were in an accredited psychiatric residency training program;
3. submit at least two letters attesting to his or her professional capabilities from licensed mental health professionals;
4. have completed a written examination on knowledge relevant to performing such evaluations;
5. have conducted such evaluations or completed approved training in conducting such evaluations, and have completed at least two kinds of forensic reports;
6. have completed training visits to Bridgewater State Hospital, a DMH adult inpatient facility, a court clinic, a county or state correctional facility, the Massachusetts Alcohol and Substance Abuse Center at Bridgewater, and at least one other substance abuse treatment facility that accepts § 35 admissions; and
7. be employed in a setting in which he or she will be performing such evaluations or related forensic mental health work. 

Such examinations and reports may also be done by psychiatrists who have been accepted by DMH as Designated Forensic Psychiatrist Candidates and are supervised by a Forensic Mental Health Supervisor, and psychiatic residents in a DMH-approved training program. 104 Code Mass. Regs. § 33.04(2)-(6).

Designated forensic psychologist

A psychologist who has been designated by the Department of Mental Health to conduct examinations and make reports pursuant to G.L. c. 123, §§ 12(e), 15-19 and 35. To qualify for such designation, a psychologist must 

1. be licensed by the Board of Registration of Psychologists and certified as a Health Service Provider;
2. have obtained under the supervision of a licensed mental health professional, during graduate training or beyond, at least 2,000 hours of clinical experience in a setting with adult mentally ill psychiatric patients, or 1,000 hours of clinical experience in an inpatient psychiatric hospital for mentally ill adults, or other significant clinical experience working with mentally ill adults;
3. submit at least two letters attesting to his or her professional capabilities from licensed mental health professionals;
4. have completed a written examination on knowledge relevant to performing such evaluations;
5. have conducted such examinations or completed approved training in conducting such evaluations, and have completed at least two kinds of forensic reports;
6. have completed training visits to Bridgewater State Hospital, a DMH adult inpatient facility, a court clinic, a county or state correctional facility, the Massachusetts Alcohol and Substance Abuse Center at Bridgewater, and at least one other substance abuse treatment facility that accepts § 35 admissions; and
7. be employed in a setting in which he or she will be performing such evaluations or related forensic mental health work. 

Such examinations and reports may also be done by psychologists who have been accepted by DMH as Designated Forensic Psychologist Candidates and are supervised by a Forensic Mental Health Supervisor, or who have been approved as provisional Designated Forensic Psychologist Candidates, or who are post-doctoral psychology fellows participating in an approved forensic psychology postdoctoral training program. 104 Code Mass. Regs. § 33.04(7)-(11).

Designated physician

A physician who has authority to admit a person to a mental health facility for up to three days pursuant to G.L. c. 123, § 12(b). Any public or private facility which admits patients under § 12 may so designate any licensed physician on its medical staff with admitting privileges who is certified or eligible to be certified by the American Board of Psychiatry and Neurology or has had six months accredited residency training in psychiatry or is enrolled in and working at an accredited psychiatry residency training site, and who has demonstrated an understanding of the legal and clinical requirements for hospitalization under § 12(b). 104 Code Mass. Regs. § 33.03.

Facility

“[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. “Facility shall mean a Department-operated hospital, community mental health center with inpatient unit, or psychiatric unit within a public health hospital; a Department-licensed psychiatric hospital; a Departmentlicensed psychiatric unit within a general hospital; or a secure intensive residential treatment program for adolescents that is either designated as a facility under the control of the Department or licensed by the Department.” 104 Code Mass. Regs. § 25.03.

Facility director

“Facility Director or Director of a Facility shall mean the superintendent or other head of a facility who is responsible for the admission, discharge, and treatment of patients in the facility, who may petition the district or juvenile court for commitment pursuant to M.G.L. c. 123; and who may take such other action as is authorized or required of the superintendent or other head of a facility pursuant to M.G.L. c. 123.” 104 Code Mass. Regs. § 25.03.

Likelihood of serious harm

1. “(1) 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; or
2. “(2) 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 or serious physical harm to them; or
3. “(3) 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. 

Note that the definition requires a “substantial” risk of harm when the danger is based on potential physical harm to self or others. If the danger is based on the person’s alleged inability to protect himself or herself in the community, a “very substantial” risk of harm is required. In all three situations, the potential risk must involve physical harm or impairment.

Mental illness

“For the purpose of involuntary commitment, mental illness is defined as 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 which is defined in M.G.L. c. 123, § 35.” 104 Code Mass. Regs. § 27.05(1). “The [Department of Mental Health] shall . . . adopt regulations consistent with this chapter which . . . shall define the categories of mental illness for the purpose of this chapter . . . .” G.L. c. 123, § 2.

Psychiatrist

“[A] physician licensed pursuant to [G.L. c. 112, § 2] who specializes in the practice of psychiatry.” G.L. c. 123, § 1.

Psychotherapist

For purposes of the testimonial privilege concerning confidential communications to a psychotherapist, “psychotherapists” include physicians who devote a substantial portion of their time to the practice of psychiatry (including pain management), licensed psychologists, doctoral students under the supervision of a licensed psychologist, and psychiatric nurse mental health clinical specialists. G.L. c. 233, § 20B; Board of Registration in Medicine v. Doe, 457 Mass. 738, 743-745 (2010).

Qualified physician

“[A] physician who is licensed pursuant to [G.L. c. 112, § 2] 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 of Mental Health] or of any facility of the [Department of Mental Health].” G.L. c. 123, § 1.

Qualified psychiatric nurse mental health clinical specialist

“[A] psychiatric nurse mental health clinical specialist authorized to practice as such under regulations promulgated pursuant to the provisions of [G.L. c. 112, § 80B] 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 of Mental Health] or of any facility of the [Department of Mental Health].” A psychiatric nurse is “a nurse licensed pursuant to [G.L. c. 112, § 74] who specializes in mental health or psychiatric nursing.” G.L. c. 123, § 1.

Qualified psychologist

“[A] psychologist who is licensed pursuant to [G.L. c. 112, §§ 118-129, inclusive,] 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 of Mental Health] or of any facility of the [Department of Mental Health].” A psychologist is “an individual licensed pursuant to [G.L. c. 112, §§ 118-129, inclusive].” G.L. c. 123, § 1.

Social worker

For purposes of the testimonial privilege concerning confidential communications to a social worker, “social workers” include licensed certified social workers, licensed social workers, and government-employed social workers. G.L. c. 112, § 135B.

1:02 Privacy of court records

Petitions, dockets, notices, examination reports, orders and other documents, and electronic recordings of civil commitment proceedings are not available for public inspection without a court order. They remain available to the parties and their counsel, and in most instances to the prosecutor in any pending criminal cases against the respondent, except for any materials impounded by the court. G.L. c. 123, § 36A. 

An expert’s report of a court-ordered examination for competence or criminal responsibility is not available to the prosecutor unless a judge has determined that it has been redacted to contain nothing that falls within the scope of the privilege against selfincrimination. Seng v. Commonwealth, 445 Mass. 536, 539-548 (2005) (competence); Blaisdell v. Commonwealth, 372 Mass. 753, 768 (1977) (criminal responsibility); Mass. R. Crim. P. 14(b)(2)(B) (same). 

The dockets and case files of civil commitment proceedings must be kept separate from other court records so as to ensure properly restricted access.

Commentary

Commitment proceedings involve not only restraint of the respondent’s liberty, but also an inquiry into highly personal matters. General Laws c. 123, § 36A requires that records and other information related to commitment proceedings be kept separate from other court documents and, except on court order, away from public inspection. 

Section 36A provides that “any person who is the subject of an examination or a commitment proceeding, or his counsel, may inspect all reports and papers filed with the court in a pending proceeding, and the prosecutor in a criminal case may inspect all reports and papers concerning commitment proceedings that are filed with the court in a pending case.” However, if the respondent has pending criminal charges, the Supreme Judicial Court has held that Mass. R. Crim. P. 14(b)(2)(B) applies to any competency or criminal responsibility evaluations, and that prosecutors are not automatically entitled to view competency evaluation reports. The judge may inspect such evaluation reports in camera with defense counsel to determine if there are any statements that fall within the defendant’s privilege against self-incrimination. Commonwealth v. Seng, 445 Mass. 536, 546-547 (2005). 

Section 36A also states that, as a matter of discretion, the court may allow others access to such court records for good cause. Normally this should be done only after the respondent has been provided with notice of the request and an opportunity to be heard. Because such restrictions on public access are generally for the benefit of the respondent, his or her consent to such access is an important but not controlling factor in the judge’s determination. With appropriate guarantees of confidentiality for individual cases, legitimate institutional concerns may also be weighed, such as the need of the Committee for Public Counsel Services or the Department of Mental Health to monitor the performance of their attorneys or clinicians, or requests for access by qualified researchers.

Clerk-magistrates must take care to protect the privacy of such documents and court records, storing them either in a locked room or file. Some courts keep such documents in the judicial lobby, but such an arrangement should be adopted only in consultation with the clerkmagistrate of the court, who remains legally responsible for the custody and security of all court records. G.L. c. 218, § 12.