Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness: Standard 2

Standard 2:00 of the District Court's Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness - Civil Commitment for Mental Illness.

2:00 Requirements for civil commitment

A person may not be committed to a mental health facility under chapter 123 unless the evidence establishes beyond a reasonable doubt that: 

1. the person is mentally ill;
2. failure to retain such person in a facility would create a likelihood of serious harm to that person or others by reason of mental illness; and
3. there is no less restrictive alternative to hospitalization by which to treat the person. 

A person may not be committed to Bridgewater State Hospital unless such person is a male and the evidence establishes beyond a reasonable doubt that: 

1. he is mentally ill;
2. failure to retain him in strict custody would create a likelihood of serious harm by reason of mental illness; and
3. he is not a proper subject for commitment to any facility of the Department of Mental Health.

Commentary

The law is clear that a person cannot be involuntarily civilly committed merely because the person is mentally ill or may benefit from treatment. The Due Process Clause permits involuntary civil commitment only if the respondent is shown to be both mentally ill and dangerous as a result. O’Connor v. Donaldson, 422 U.S. 563 (1975). In Massachusetts, a person may be committed to a mental health facility only if the petitioner proves each of three elements beyond a reasonable doubt: 

1. that the person is mentally ill;
2. that failure to retain the person in a facility would create a likelihood of serious harm by reason of mental illness; and
3. that there is no less restrictive alternative by which to treat such person. 

The first two of these requirements are set forth in G.L. c. 123, § 8(a), the third in Commonwealth v. Nassar, 380 Mass. 908 (1980). 

There is an even higher standard for commitment to Bridgewater State Hospital, which is operated by the Massachusetts Department of Correction and provides enhanced security. The respondent must be male and the petitioner must prove beyond a reasonable doubt: 

1. that he is mentally ill;
2. that failure to retain the respondent in strict custody would create a likelihood of serious harm by reason of mental illness; and
3. that no Department of Mental Health facility is suitable. G.L. c. 123, § 8(b). 

If the criteria for commitment to Bridgewater State Hospital are not met, but those required for commitment to a facility are proved beyond a reasonable doubt, the court is to order commitment to a facility designated by the Department of Mental Health. Id.

Mental illness

As authorized by G.L. c. 123, § 2, the Department of Mental Health has defined “mental illness” for the purpose of involuntary commitment 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 as defined in G.L. c. 123, § 35.” 104 Code Mass. Regs. § 27.05(1). 

In mental health proceedings, reference is often made to the diagnostic categories described in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association, and now in its fourth edition (DSM-IV-TR [2000]). Although the court may find such clinical diagnoses, and the clinical observations which support them, of some value in the fact-finding process, the court should always require specific evidence of a “substantial [mental] disorder” which “grossly impairs” the person’s functioning, as set out in the above statutorily-authorized definition of mental illness. 

As noted in Standard 1:00, a person with an intellectual disability may not be committed under G.L. c. 123 unless he or she also suffers from mental illness. A respondent with such a “dual diagnosis” may be involuntarily committed under G.L. c. 123 only if the requisite likelihood of serious harm results from the respondent’s mental illness. Commonwealth v. Delverde, 401 Mass. 447 (1988).

“Substantial” or “very substantial” likelihood of physical harm

Even if proven to be mentally ill, a person may not be committed unless the petitioner proves beyond a reasonable doubt that there is a likelihood of serious harm because of the person’s mental illness. “Likelihood of serious harm” is defined as: 

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 statute requires proof of a “substantial” risk of harm when the asserted danger is based on potential physical harm to self (G.L. c. 123, § 1[1]) or others (§ 1[2]). If the asserted 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 (§ 1[3]). In all three situations, the statute requires risk of physical harm. 

To satisfy this element, the petitioner must present factual evidence sufficient to warrant a finding beyond a reasonable doubt that a substantial (or very substantial) risk of physical harm exists by reason of the person’s mental illness. This determination will often involve a balancing of the probability, gravity and imminence of the potential harm. 

Recent dangerous overt acts or omissions are relevant in showing the risk of harm. See, e.g., Commonwealth v. Nassar, 380 Mass. 908 (1980) (respondent’s decision to stop feeding child who later died of malnutrition and neglect was “homicidal” behavior within meaning of G.L. c. 123, § 1). However, some recent manifestation of dangerous behavior is not a requisite element of proof. Commonwealth v. Rosenberg, 410 Mass. 347, 363 (1991) (no requirement that “likelihood of serious harm” be established by evidence of recent overt dangerous act). 

The risk of harm must be immediate, since “the forecast of events tends to diminish in reliability as the events are projected ahead in time,” although “in the degree that the anticipated physical harm is serious – approaches death – some lessening of a requirement of ‘imminence’ seems justified.” Nassar, 380 Mass. at 917. The court may also take into account any recent restrictions on the respondent’s opportunity to cause harm. See Delverde, 401 Mass. at 451 (prisoner found to offer substantial risk if released in light of past medical and social records, facts of crime, and violent behavior while incarcerated). Traditional evidentiary principles should guide the court’s determination as to whether the evidence is sufficiently current to demonstrate present risk.

Least restrictive alternative

As a prerequisite to any civil commitment, the petitioner must prove beyond a reasonable doubt that there is no less restrictive alternative to hospitalization. The statute expressly requires this only in the third branch of the definition of “likelihood of serious harm,” but case law has determined that it is required under the other two branches as well: 

“Regardless of the constitutional place of such a doctrine, either in general or in the particular context, we think it natural and right that all concerned in the law and its administration should strive to find the least burdensome or oppressive controls over the individual that are compatible with the fulfillment of the dual purposes of our statute, namely, protection of the person and others from physical harm and rehabilitation of the person.” Nassar, 380 Mass. at 917-918.

Nassar indicates that the petitioner must consider “all possible alternatives to continued hospitalization” (citing G.L. c. 123, § 4) and this is also the standard that the court must apply. Id. See also Gallup v. Alden, 57 Mass. App. Dec. 41 (1975). The petitioner is not required to develop as part of its case the factual basis for any expert opinions it proffers about alternatives to hospitalization; that may be explored on cross-examination. Siddell v. Marshall, 1987 Mass. App. Div. 3 (psychiatrist’s unchallenged opinion that hospitalization was only appropriate alternative sufficient to support court’s conclusion that no less restrictive alternative was available). 

As a practical matter, this inquiry will often turn on whether hospitalization is the only available setting in which the respondent may be safely and appropriately treated. If the petitioner can initially establish beyond a reasonable doubt that this is the case, the inquiry will normally be at an end.

Strict custody

As noted above, a male respondent may be committed to Bridgewater State Hospital upon a finding beyond a reasonable doubt that he is mentally ill, that failure to hospitalize him in strict custody would create a likelihood of serious harm by reason of mental illness, and that he is “not a proper subject” for commitment to any Department of Mental Health facility. G.L. c. 123, § 8(b).