Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness: Standard 10

Standards 10:00 through 10:04 of the District Court's Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness - Civil Commitment for Mental Illness.

10:00 Standard of proof in § 8B hearings

The petitioner must prove all elements of the petition by a preponderance of the evidence. The court must give close attention to the evidence and enter specific and detailed findings on each of the issues. Guardianship of Doe, 411 Mass. 512, 523-524 (1992). 

Those issues are: 

1. Whether the respondent is competent to make an informed decision concerning the proposed medical treatment;
2. If the respondent is incompetent, whether, applying the substituted judgment standard, the respondent would accept such treatment if competent;
3. If the respondent is incompetent and, applying the substituted judgment standard, would refuse the proposed medical treatment if competent, whether there is any State interest sufficient to override such refusal; and
4. If the proposed medical treatment is to be authorized, whether it is adequately and specifically described and limited in the written treatment plan.

Commentary

“[F]act-finding is enhanced by requiring that it be done in writing and in meticulous detail. This rationale clearly applies to substituted judgment determinations. We are confident that judges, mindful of the serious consequences following entry of substituted judgment orders, will enter such orders only after carefully considering the evidence and entering specific findings on each factor and then balancing the various interests. What we require is careful work and reflection on the part of the judge before entering a substituted judgment order.” Doe, 411 Mass. at 524 (citations and internal quotes omitted). 

Thus, after careful inquiry and specific evidentiary findings by the court, the treatment should be authorized only if the petitioner has shown by a preponderance of evidence 

1. that the respondent is incapable of making informed treatment decisions;
2. if respondent is found incapable, that the respondent’s judgment would be to accept treatment, or
3. if the respondent’s judgment would be to refuse treatment, that there is a State interest sufficient to override the respondent’s refusal; and (4) if the proposed medical treatment is to be authorized, that it is properly set out in the proposed treatment plan. 

If the respondent is competent to make an informed decision and refuses the proposed medical treatment, § 8B does not give the District Court authority to consider whether there is any State interest sufficient to override that refusal. Such a determination would have to be sought by a Rogers petition in the Probate and Family Court.

10:01 Rules of evidence in § 8B hearings

The legal requirements and District Court standards that apply to civil commitment proceedings in this area also apply to G.L. c. 123, § 8B proceedings. See Standard 5:01.

10:02 Hearsay in § 8B hearings

The legal requirements and District Court standards that apply to civil commitment proceedings in this area also apply to G.L. c. 123, § 8B proceedings. See Standard 5:02.

10:03 Lay and expert witnesses in § 8B hearings

Both lay witnesses and expert witnesses, if properly qualified, may testify in § 8B proceedings.

Lay witnesses may testify as to relevant facts personally known or observed by them.

For the prerequisites for expert opinions, see Standard 5:03 (Expert Opinion Testimony).

Commentary

Lay witnesses

Lay witnesses may be of particular assistance to the court in § 8B proceedings in making a substituted judgment on behalf of the respondent. Determining what the respondent’s judgment would be, if he or she were competent, does not require testimony by a mental health professional. “No medical expertise is required in such an inquiry, although medical advice and opinion is to be used for the same purposes and sought to the same extent that the incompetent individual would, if he were competent.” Guardianship of Roe, 383 Mass. 415, 435 (1981). Anyone with a significant relationship with, or sufficient knowledge about, the respondent to know “the values and desires of the affected individual,” Guardianship of Doe, 411 Mass. 512, 518 (1992), that are relevant to the medical treatment in question may be qualified to testify on this issue. 

In weighing the witness’s testimony, the court must of course consider whether any potential conflict of interest may exist between the witness and the respondent regarding the treatment decision. 

See Standards 7:03 (Substituted Judgment for Treatment with Antipsychotic Drugs) and 7:04 (Authorizing Treatments Other than Antipsychotic Drugs).

Expert witnesses

Some factors in a § 8B hearing require expert testimony. Medical diagnosis or medical treatment issues normally warrant a physician’s testimony. 

The issue of capacity to make informed treatment decisions generally requires the testimony of an expert witness, but not necessarily that of a physician, because capacity to make informed decisions is a legal rather than a medical determination. A psychologist, social worker, or other witness with sufficient skill and knowledge about how people make medical treatment decisions may be qualified to testify. See Standard 7:02 (Competency to Make Informed Treatment Decisions).

10:04 Privileged communications to clinicians in § 8B hearings

The same legal requirements and District Court standards that apply to civil commitment proceedings in this area also apply to § 8B proceedings. See Standard 5:04.