11:00 Contents of § 8B treatment plan
A treatment plan authorized by the court in a § 8B proceeding must describe with particularity those medications which are then necessary. The plan may also include alternative medications and dosages which are reasonably foreseeable as necessary during the period of treatment authorization.
Commentary
Treatment plans must reflect the dynamic nature of mental illness, in which behavioral swings and dramatic effects from treatment are common. At the same time, the treatment plan cannot be so broad as to eliminate the hospital’s responsibility to respond to changed circumstances with a revised § 8B petition and treatment plan.
For each medication listed in the plan, the petitioner must at minimum identify the name of the medication, the duration of use, and the range of dosages from zero to a maximum daily dosage. The plan may properly include a description of the medications which may be used to counteract anticipated side effects from antipsychotic medication. If medications or dosages are listed in the alternative, the plan should include a general explanation of the reasons for switching medications or dosages. Such an explanation may include, but is not limited to, the occurrence of adverse side effects, the respondent’s failure to respond in anticipated ways to the medication, or other changes in the respondent’s condition. In listing medications in the alternative, the use of the conjunction “and/or” should generally be avoided, unless the petitioner describes clearly the circumstances under which one treatment, the other, or both might be used.
The judge should not respond to concerns about any use of a particular drug by adjustments in dosage. Instead, if the judge determines that the respondent, if competent, would refuse a drug entirely, then that drug should not be authorized.
Testimony offered in support of the treatment plan may properly describe other treatments which were considered but rejected in favor of the proposed treatment. The court may also hear testimony about other, non-medical treatments which the respondent could receive, such as psychotherapy. This will assist the court in making the substituted judgment about what the respondent, if competent, would have chosen from the available treatment alternatives.
11:01 Scope and duration of authorized § 8B treatment plan
The court’s authorization of medical treatment for mental illness pursuant to G.L. c. 123, § 8B permits the administration of that treatment only as expressly described in the court’s order.
A § 8B treatment authorization expires at the same time as the commitment order that was in effect when the treatment authorization was issued. G.L. c. 123, § 8B(f). A treatment authorization may be in effect for a lesser period of time if so limited by its express terms.
An approved § 8B treatment plan is only authorized, not ordered, by the court, and therefore the petitioner may discontinue the use of any medications which are later found to be ineffective or otherwise contraindicated.
Commentary
Since a § 8B treatment authorization is limited to its express terms, the court’s findings and order should be as specific as possible regarding the medications and dosages to be administered. Medications and other treatments requiring court authorization that are not listed in the order cannot be administered until the § 8B authorization is modified by the court or another court of competent jurisdiction.
To avoid repeated court proceedings, a proposed § 8B treatment plan should include alternative medications and dosages that may be reasonably anticipated as necessary, depending on the respondent’s response to treatment. If such alternatives are included, they should be accompanied by a general explanation of the situations that would cause such a change in medications or dosages. See Standard 11:00 (Contents of § 8B Treatment Plan).
11:02 Modifying or vacating § 8B treatment authorizations
The petitioner or the respondent may request the court at any time to modify or vacate a § 8B authorization of medical treatment. G.L. c. 123, § 8B(f).
Commentary
Section 8B provides that authorizations of medical treatment for mental illness are subject to modification at the request of any party. A petition for modification or termination should normally be based on a substantial change in circumstances.
Any request to modify a treatment plan should be quickly adjudicated in order to protect the respondent’s rights and to ensure the respondent’s well-being. The court must commence the hearing and enter its order within the required time limits. To expedite this, the court may consider hearing such petition by affidavit only, if the parties agree. See G.L. c. 123, § 8B(d). See also Standards 8:02 (Right to a Hearing in § 8B Proceedings) and 9:03 (Adversarial Nature of § 8B Hearings).
As with the original authorization, the court’s order to modify or vacate the § 8B treatment authorization requires specific findings on each of the relevant issues.
11:03 Transfer of § 8B patient to different facility
A § 8B treatment authorization remains in effect when the respondent is transferred to a different mental health facility, so long as the underlying commitment order remains in effect. Until that treatment authorization expires, the District Court division that issued the treatment plan should continue to monitor it, and should hear and determine any request to modify or vacate the treatment plan.
When the commitment or treatment authorization expires, any subsequent commitment order or treatment plan should be sought from the District Court division in whose territorial jurisdiction the receiving mental health facility is located, and that court should then be responsible for monitoring the new treatment plan.
Commentary
When a person is transferred between mental health facilities, or transferred between a mental health facility and Bridgewater State Hospital, issues may arise regarding the viability of any existing § 8B treatment authorization, the monitoring of the treatment plan, and modification procedures.
A § 8B treatment authorization is dependent upon the respondent’s underlying commitment order. G.L. c. 123, § 8B(b) & (f).
When a person is transferred between two public or private mental health facilities (G.L. c. 123, § 3) or from Bridgewater State Hospital to a public or private mental health facility (§ 14), any unexpired order of commitment remains in effect, and any unexpired § 8B treatment authorization also remains in effect. The receiving facility may continue to implement the treatment plan for the remainder of its authorized period, or may request a modification from the court division that issued the treatment plan. That court division remains responsible for monitoring, modifying or vacating the treatment plan as long as it remains in effect. When the commitment or treatment order expires, subsequent proceedings should be in the court division with geographical jurisdiction over the receiving facility. See Standards 11:02 (Modifying or Vacating § 8B Treatment Authorizations) and 11:04 (Monitoring § 8B Treatment Plan).
11:04 Monitoring § 8B treatment plan
The court is required “to monitor the antipsychotic medication treatment process to ensure that an antipsychotic medication treatment plan is followed” (G.L. c. 123, § 8B).
The court may delegate this responsibility to a court-appointed guardian. Id. Absent a guardian, the court may appoint some other appropriate third party to do so. The court should explain the responsibilities of the monitor’s function, and should authorize the monitor to have access to pertinent court records and records of the facility where the respondent is located in order to determine compliance with the treatment plan.
Where no guardian or other appointee is available to the court, the court itself must monitor compliance with the treatment plan. This may be done either by requiring the facility to provide the court with detailed periodic reports documenting such compliance, or by scheduling periodic hearings for the purpose of reviewing the administration of medications to the respondent under the treatment plan, the occurrence of any side effects, and other issues deemed appropriate by the court. The purpose of such hearings is to review the implementation of the already-ordered treatment plan, not to reconsider the § 8B petition de novo.
During the monitoring process, the court does not have authority to allow the respondent funds for an independent expert under the Indigent Court Costs Law, which is limited to the “prosecution, defense or appeal” of a case (G.L. c. 261, § 27C[4]) and does not extend to postjudgment proceedings. See Commonwealth v. Davis, 410 Mass. 680 (1991) (inapplicable to motion for new trial).
The court should also initiate a formal review whenever a question is raised about compliance with the treatment authorization or the respondent’s well-being.
When the Superior Court acts under G.L. c. 123, § 9(b) to modify a District Court’s § 8B treatment authorization, the Superior Court then becomes responsible for monitoring the treatment plan it has approved.
Commentary
Apart from the statutory requirement of monitoring that the authorized treatment plan is being followed, periodic monitoring is important because the relevant factors are likely to change over time. Guardianship of Weedon, 409 Mass. 196, 200 (1991).
The court may delegate the monitoring responsibility to a guardian “duly appointed by a court of competent jurisdiction.” § 8B(e). This is normally a guardian (G.L. c. 190B, § 5-306) appointed by the Probate and Family Court, since the District Court has no statutory authority to appoint guardians for mentally ill persons.
In the absence of a guardian, the court “shall monitor the treatment process to ensure that the treatment plan is followed” (§ 8B[e]). In order to fulfill this important duty when a guardian is not available, the court may appoint an appropriate qualified person to be paid from the appropriate Trial Court account for necessary services, or may itself periodically monitor compliance with the treatment plan. Any appointment of a compensated monitor is a fee generating appointment subject to the selection and appointment docket requirements of Supreme Judicial Court Rule 1:07.
The court should not delegate the monitoring responsibility to respondent’s counsel, or to hospital staff, petitioner’s counsel or any other agent or officer of the petitioner, because of the obvious conflict of interest issues. CPCS performance guidelines do not allow respondent’s counsel to assume such a role. (See Appendix D.)
If the court conducts the monitoring function itself through periodic written reports from the facility, the court should include in its written § 8B order a requirement that the facility or a specific official of the facility (identified by title) submit such reports to the court at specified intervals, with a copy to respondent’s counsel. The report should include, at minimum, the medication and dosages actually administered to the respondent, any side effects experienced, and any other information required by the court or deemed material by the facility. The frequency of such reports should be determined by the court in relation to the potential side effects of the authorized medication and other factors deemed relevant by the court.
The Superior Court’s jurisdiction under G.L. c. 123, § 9(b) is original rather than appellate. For that reason, if pursuant to § 9(b) the Superior Court modifies a District Court’s § 8B treatment authorization, the District Court’s monitoring duties are discharged, and the Superior Court then becomes responsible for monitoring its own treatment authorization and the respondent’s condition while that authorization remains in effect.