3:00 Filing the petition
A petition for involuntary commitment of a current patient at a public or private mental health facility may be filed by the superintendent or other head of that facility. G.L. c. 123, § 7(a).
A petition for involuntary commitment to Bridgewater State Hospital of a current male patient may be filed by the Medical Director of Bridgewater State Hospital, by the Commissioner of Mental Health, or (with the approval of the Commissioner) by the superintendent of a public or private mental health facility. G.L. c. 123, § 7(b).
The petition must be filed in the District Court division with jurisdiction over the facility (or Bridgewater State Hospital) where the patient is located. G.L. c. 123, § 7(a) & (b).
The petition must allege that the person meets each of the criteria for commitment to a facility or to Bridgewater State Hospital. Since the filing of a petition authorizes the facility to retain the patient during the pendency of the petition (G.L. c. 123, § 6[a]), any petition must be based on a good faith belief that there is credible evidence that will satisfy these criteria. A petition may not be filed merely for administrative convenience or delay.
The traditional petition form used by most district courts additionally requests the petitioner to specify the respondent’s mental illness and risk of harm. If there is objection at the hearing that the evidence does not conform to these specifications and a resulting motion to amend the petition is offered, the court must consider whether the respondent has been prejudiced in preparing for the hearing and determine the most appropriate remedy.
The petition should include brief but specific factual assertions that demonstrate that each of the criteria for commitment is met.
If known at the time of filing, the petitioner should inform court staff if the respondent will require a translator or other language or hearing assistance in order to participate meaningfully in the hearing. Non-English speaking respondents are legally entitled to the assistance of trained interpreters. G.L. c. 123, § 23A (psychiatric hospitals must offer “competent interpreter services” by trained interpreters); G.L. c. 221C, § 2 (courts must use Federally- or Trial Court- “certified” interpreters).
If the respondent is presently a conditional voluntary patient, a petition may be filed only if the respondent
- has given a three-day notice of intent to leave, or
- has refused an authorized transfer to another facility, or
- is no longer competent to remain as a conditional voluntary patient.
Commentary
The “superintendent or other head of a facility who is responsible for the admission, discharge, and treatment of patients in the facility” (104 Code Mass. Regs. § 25.03, “Facility Director”) is the only person authorized to file a petition for commitment to a facility. The term includes the head of a psychiatric unit within a general hospital or other subsidiary psychiatric unit within a larger institution. Bayridge Hosp. v. Jackson, 2010 Mass. App. Div. 12 (N. Dist.). The Bridgewater State Hospital’s Medical Director is a physician appointed by the Commissioner of Correction, with the approval of the Commissioner of Mental Health, to have overall responsibility for the clinical care of Bridgewater patients. G.L. c. 125, § 18.
After a petition is filed, some respondents may waive a hearing pursuant to G.L. c. 123, § 6(b). The court may then allow the commitment if the petition shows on its face that each of the criteria for commitment is met. G.L. c. 123, § 8(e) (commitment to a facility) or (f) (commitment to Bridgewater State Hospital). For that reason, a petitioner should include in the petition, in the space provided on the form or in appended pages, brief but specific factual assertions in support of the petition, demonstrating that each commitment criterion is met.
This should normally include a summary description of the symptoms or behaviors exhibited by the respondent which support the allegation that the respondent is mentally ill (under the definition in 104 Code Mass. Regs. § 27.05), and of the behavior supporting a conclusion that the person is likely to seriously harm himself or herself or others if not committed. The petitioner should also briefly explain why no less restrictive alternative is appropriate (or available) for the respondent.
A petition may not be filed concerning a conditional voluntary patient (i.e., one accepted by the superintendent on a voluntary basis under G.L. c. 123, §§ 10 & 11), unless the respondent has given a three-day notice of intent to leave (Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 103-106 [2000]), or has refused an authorized transfer to another facility (G.L. c. 123, § 3; 104 Code Mass. Regs. § 27.08[4] & [5]), or has been determined on periodic review to lack the competence to remain as a conditional voluntary patient (104 Code Mass. Regs. § 27.11(4)(a)).
3:01 Time limits for filing petition
Any petition for the involuntary civil commitment of a person (G.L. c. 123, §§ 7 & 8) must be filed prior to the expiration of any three-day emergency admission (§ 12[d]), three-day emergency court-ordered commitment (§ 12[e]), three-day notice of intent to leave under a conditional voluntary admission (§§ 10-11), or other commitment order under G.L. c. 123 for evaluation or care and treatment.
Upon the timely filing of a petition, the respondent may be retained at the facility until a timely court hearing. If the petition is not timely filed, the respondent must be discharged at the end of the three-day period or the expiration of any other commitment order. G.L. c. 123, §§ 6, 11 & 12(d).
The clerk-magistrate’s office must time-stamp and docket all petitions upon receipt.
Commentary
The time limits established by G.L. c. 123 for filing a petition are mandatory. Hashimi v. Kalil, 388 Mass. 607, 609 (1983). See also Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777 (2008) (time limit for § 12[b] emergency hearing). The court must allow a respondent’s motion to dismiss any commitment petition that was not timely filed.
3:02 Right to a hearing
A person who is the subject of a petition for involuntary civil commitment must have a timely hearing on the petition unless he or she waives the hearing in writing after consultation with counsel.
If the hearing is waived, the court may adjudicate the petition if it shows on its face that each of the criteria for commitment is met. G.L. c. 123, § 8(e) (commitment to a facility) or (f) (commitment to Bridgewater State Hospital).
Commentary
General Laws c. 123, § 6 requires a hearing unless the respondent waives that right in writing after consultation with counsel. G.L. c. 123, § 5 mandates that at all hearings required under chapter 123 the respondent must be afforded the opportunity to present independent testimony. See also Standards 3:04 (Time Limits for Hearing) and 3:06 (Continuances).
A respondent who decides to waive the hearing “may request a hearing for good cause shown at any time during the period of commitment.” G.L. c. 123, § 6(b).
3:03 Right to counsel
A person who is the subject of a petition for involuntary civil commitment or a § 8B petition to authorize medical treatment has a constitutional and statutory right to be represented by counsel to defend against that petition.
The clerk-magistrate’s office should always notify the Committee for Public Counsel Services immediately upon the filing of the petition so that counsel may be assigned to represent the respondent, unless the court subsequently finds that the respondent is not indigent, is represented by private counsel, or has voluntarily and intelligently waived the right to counsel.
The clerk-magistrate’s office should determine if there are criminal charges pending against the respondent, and if so, also should notify criminal defense counsel, who should be afforded the opportunity to be heard at any hearing on the petition. If the respondent refuses counsel, he or she should appear before the court so that the court may determine if the refusal constitutes a waiver of counsel that is voluntarily and intelligently made.
If the respondent who refuses counsel also declines or is unable to appear, counsel or temporary counsel should report to the court on whether the court should visit the respondent or continue the case until the respondent can attend. Counsel or temporary counsel should also report on the respondent’s capacity to refuse counsel voluntarily and intelligently. Generally, if counsel is refused, the court should appoint standby counsel to be available to assist the respondent, if necessary, in the preparation and presentation of his or her case. Standby counsel should attend the hearing whether or not the respondent chooses to attend.
Commentary
General Laws, c. 123, § 5 provides a statutory right to counsel whenever a hearing is required pursuant to G.L. c. 123, and directs the court to appoint counsel for respondents found to be indigent. The court does this by “assign[ing] the Committee for Public Counsel Services to provide representation for the party.” Supreme Judicial Court Rule 3:10, § 5. See also G.L. c. 211D, § 5. The Committee for Public Counsel Services (CPCS) is, in turn, responsible to “establish, supervise and maintain a system for the appointment or assignment of counsel” in particular cases, “which shall include . . . a mental health unit” (G.L. c. 211D, § 6).
Unless the respondent is represented by retained counsel, immediately upon the filing of a commitment petition, the court should notify, by facsimile, the CPCS Mental Health Litigation Division in order that appropriate counsel may be identified and assigned.
Indigency
Pursuant to Supreme Judicial Court Rule 3:10, § 1(f)(iii), persons who are the subject of commitment proceedings or proceedings seeking a substituted judgment determination concerning treatment are presumed to be indigent and entitled to appointed counsel.
The rule qualifies this presumption of indigency with a proviso that “where the judge has reason to believe that the party is not indigent, a determination of indigency shall be made in accordance with” the rule, but “for purposes of such determination ‘available funds’ shall not include the liquid assets or disposable net monthly income of any member of the party’s family.”
Subsequent revocation of indigency finding
If, subsequent to the assignment of counsel by CPCS, the court determines that the respondent is not indigent, the court should proceed as follows:
“If [that determination is made] prior to the commencement of [the] hearing . . . , assigned counsel may be dismissed, and, if so, the [respondent] shall be advised to retain private counsel without delay; provided, however, that if the interests of justice so require in such proceedings, the judge shall authorize the continued services of appointed counsel at public expense. The interests of justice may require such appointment if, for example, the party is incompetent to obtain counsel, incapable of obtaining access to funds, or incapable of locating or contracting with a lawyer. If, subsequent to the commencement of [the] hearing . . . , the judge determines that the [respondent] is not indigent, assigned counsel shall continue to represent the [respondent] and the [respondent] may be ordered to reimburse the Commonwealth therefor.” Supreme Judicial Court Rule 3:10, § 5.
Waiver of counsel & appointment of standby counsel
As in any judicial proceeding, the respondent may elect to waive his or her right to the assistance of counsel. Prior to allowing such a waiver, however, the judge:
“shall specifically determine whether the [respondent] is competent to waive counsel. Notwithstanding such waiver, if the judge determines that the [respondent] is not competent to waive counsel or is otherwise unable effectively to exercise [his or her] rights at a hearing, the judge shall appoint standby counsel pursuant to [Supreme Judicial Court Rule 3:10,] Section 6.” Supreme Judicial Court Rule 3:10, § 3.
Competence to waive counsel requires not only competence to understand the proceedings but also a subjective understanding of the decision to waive counsel and its consequences, including “the seriousness of the [petition], the magnitude of his undertaking, the availability of advisory counsel, and the disadvantages of self-representation.” Commonwealth v. Barnes, 399 Mass. 385, 391 (1987) (internal quotes omitted). See Indiana v. Edwards, 554 U.S. 164 (2008) (criminal defendant may be required to accept representation by counsel if mentally incompetent to conduct own defense).
Standby counsel should also be appointed if the respondent refuses to attend the hearing. See Standard 4:04.
Withdrawal by counsel
CPCS-assigned counsel may move to withdraw his or her appearance if he or she is unable or unwilling to represent the respondent. If the court allows counsel’s motion to withdraw, CPCS should be immediately notified in order that it may assign successor counsel. Supreme Judicial Court Rule 3:10, § 10(b).
Appointed counsel may not withdraw from representation except with the court’s permission. If the respondent wishes to discharge his or her court-appointed attorney, the attorney should bring the respondent’s statement to the court’s attention, together with any reason the attorney can ascertain, taking care to avoid disclosure of secrets or confidences of the client or prejudice to his or her case. Massachusetts Bar Ass’n Comm. on Prof. Ethics, Opinion No. 80-4 (May 21, 1980).
CPCS-assigned counsel should be permitted to withdraw from the case if the respondent has retained private counsel and that attorney understands the nature of the chapter 123 proceedings and will competently represent the respondent’s interests.
Pending criminal charges
Persons who are the subject of a civil commitment or medical treatment petition may also have criminal charges pending against them. In such cases, the person will usually have appointed or private defense counsel in the criminal proceeding. Since the effectiveness of respondent’s criminal defense strategy may be affected by the civil proceedings, the clerkmagistrate’s office should immediately notify the person’s criminal defense counsel of the filing of any such petitions, and the court should afford him or her the opportunity to be heard at any subsequent hearing. See also Standard 3:05 (Notice of Hearing). While coordination of representation strategies is the responsibility of counsel, the court should be alert to any apparent lack of coordination between mental health counsel and criminal defense counsel.
Attorney performance standards
Representing a person with impaired mental capacity poses many professional challenges for an attorney. Many of these are discussed in Rule 1.14 (Client with Diminished Capacity) of the Massachusetts Rules of Professional Conduct, Supreme Judicial Court Rule 3:07.
The general rule in this situation is that:
“Even if a client with diminished capacity has not made an adequately considered decision, counsel must advocate the client’s position if it does not put the client in jeopardy. The mere fact that the lawyer believes the client is wrong is not a sufficient reason for not following the client’s directions; clients are allowed to make bad decisions.
“Where [an incompetent] client’s expressed preferences do put the client at risk of substantial harm, the lawyer’s task is more complicated. As a first step, if practicable and in the manner least intrusive to the client, the lawyer should determine whether it would help to consult family members or other appropriate persons or entities as allowed by Rule 1.14(b) and Comment 5. But if that tactic is not feasible or does not suffice to protect the client, [Comment 7] gives the lawyer four choices.”
Bar Counsel Constance V. Vecchione, Representing Clients with Diminished Capacity (July, 2009). The four options, and the circumstances under which each is available, are further discussed in Bar Counsel’s article.
Assigned counsel must comply with performance standards promulgated by the Committee for Public Counsel Services for representing respondents in civil commitment proceedings (see Appendix C) and in medical treatment authorization proceedings (see Appendix D). Judges should be generally familiar with the CPCS standards and should inform CPCS’ Mental Health Litigation Division when there is significant noncompliance. These standards are also available on the CPCS internet website.
3:04 Time limits for hearing
For an initial commitment petition under G.L. c. 123, §§ 7 & 8, the hearing must be commenced within five days after the date of filing, unless a continuance is granted at the request of the respondent or respondent’s counsel. G.L. c. 123, § 7(c).
For a subsequent recommitment petition under G.L. c. 123, §§ 7 & 8, the hearing must be commenced within 14 days after the date of filing, unless a continuance is granted at the request of the respondent or respondent’s counsel. Id.
For purposes of these time limits, a hearing is not “commenced” when the court and parties gather and the case is called, but only when a witness is sworn or some evidence taken. The statute does not require that the hearing be concluded within the specified five or 14 days.
In scheduling the hearing, the clerk-magistrate’s office must allow the respondent and his or her counsel at least two days after the appearance or assignment of counsel to prepare for the hearing. G.L. c. 123, § 5.
Commentary
Persons involuntarily held in psychiatric facilities pending a hearing suffer a significant loss of liberty. For that reason, the time requirements set out in G.L. c. 123, § 7(c) are mandatory, and a petition for commitment must be dismissed if the hearing is not commenced within the 5-day or 14-day period. See Hashimi v. Kalil, 388 Mass. 607, 609 (1983); Matter of Molina, 2007 Mass. App. Div. 21, 22 (N. Dist.); Myers v. Saccone, 1999 Mass. App. Div. 305 (Boston Mun. Ct.). The mere calling of a case in court does not constitute “commencement” for purposes of this time limit, but only when a witness is sworn or some evidence taken. MelroseWakefield Hosp. v. H.S., 2010 Mass. App. Div. 247, 250 (N. Dist.)
For criminal defendants and sentenced prisoners, hearings on both initial or subsequent forensic commitment petitions filed under G.L. c. 123, §§ 15(e), 16 or 18 must be commenced within 14 days after the date of filing, unless a continuance is granted at the request of the respondent or respondent’s counsel. G.L. c. 123, § 7(c).
Although the Massachusetts Rules of Civil Procedure are not generally applicable to civil commitment proceedings (see Mass. R. Civ. P. 81), G.L. c. 123, § 7(c) provides that the period of time within which the hearing on a petition for commitment must be commenced shall be computed in accordance with Mass. R. Civ. P. 6. This means that the day on which the petition is filed is excluded from the computation, and (for time periods of less than seven days) intermediate Saturdays, Sundays and legal holidays as well, but the day of hearing is included. If the deadline falls on a Saturday, Sunday or legal holiday, the hearing must be held on the next court business day.
The Administrative Office of the District Court has provided courts with the charts below to determine how to schedule initial §§ 7 & 8 hearings, which are subject to the 5-day limit:
Time limits for 3-day petitions and 5-day civil commitment hearings
| Involuntarily hospitalized on | Petition must be filed no later than | Earliest date when hearing can be scheduled (if filed on date in column 2) | Latest date when hearing can be scheduled (if filed on date in column 2) |
|---|---|---|---|
| Monday (Week1) | Thursday (Week 1) | Tuesday (Week 2) | Thursday (Week 2) |
| Tuesday (Week1) | Friday (Week 1) | Wednesday (Week 2) | Friday (Week 2) |
| Wednesday (Week 1) | Monday (Week 2) | Thursday (Week 2) | Monday (Week 3) |
| Thursday (Week 1) | Tuesday (Week 2) | Friday (Week 2) | Tuesday (Week 3) |
| Friday (Week1) | Wednesday (Week 2) | Monday (Week 2) | Wednesday (Week 3) |
| Saturday (Week1) | Wednesday (Week 2) | Monday (Week 2) | Wednesday (Week 3) |
| Sunday (Week 1) | Wednesday (Week 2) | Monday (Week 2) | Wednesday (Week 3) |
Courts may observe both the 2-day minimum period and the 5-day maximum period by scheduling commitment hearings on the same two days of each week. Any of the following five combinations of days will satisfy both statutory requirements:
Potential court schedules for 5-day civil commitment hearings
Hearings held on Monday and Wednesday
- on Mondays, court may hear petitions filed on Monday, Tuesday or Wednesday of prior week
- on Wednesdays, court may hear petitions filed on Wednesday, Thursday or Friday of prior week
Hearings held on Monday and Thursday
- on Mondays, court may hear petitions filed on Monday, Tuesday or Wednesday of prior week
- on Thursdays, court may hear petitions filed on Thursday or Friday of prior week, or Monday of this week
Hearings held on Tuesday and Friday
- on Tuesdays, court may hear petitions filed on Tuesday, Wednesday or Thursday of prior week
- on Fridays, court may hear petitions filed on Friday of prior week, or Monday or Tuesday of this week
Hearings held on Tuesday and Thursday
- on Tuesdays, court may hear petitions filed on Tuesday, Wednesday or Thursday of last week
- on Thursdays, court may hear petitions filed on Thursday or Friday of prior week, or Monday of this week
Hearings held on Wednesday and Friday
- on Wednesdays, court may hear petitions filed on Wednesday, Thursday or Friday of prior week
- on Fridays, court may hear petitions filed on Friday of prior week, or Monday or Tuesday of this week
See Appendix B, Excerpt from District Court Transmittal No. 945, Scheduling Civil Commitment Hearings (G.L. c. 123, §§ 7-8) and Emergency Hearings (§ 12[b]) (February 23, 2007).
Hearings beyond the statutory time limit
No appellate decision has held that the court has any inherent authority to conduct the hearing beyond the 5-day or 14-day limit, over objection, even if delay is unavoidable due to a significant weather, medical or similar emergency. In two decisions, the District Court Appellate Division recognized that possibility but found that no such emergency had been shown. In the first, the hearing was scheduled for one day before the end of the maximum fiveday period; when respondent’s counsel became ill, it was rescheduled for two days later. The Appellate Division observed:
“Clearly, the judge could have granted a continuance for one day . . . to afford Petitioner’s counsel an opportunity to recover from his illness or to seek substitute counsel from his law firm or elsewhere. However appropriately sympathetic the judge was to counsel’s request for a continuance based on illness, the court was not authorized to continue the commitment hearing past the deadline prescribed by G.L. c. 123, § 7(c). The plain language of the statute limited the judge’s discretion . . . . [D]ismissal is the appropriate remedy for any violation of the . . . deadline, absent extraordinary circumstances that would justify a very brief delay.1 “
- A state of emergency at the federal or state level resulting in court closings or preventing the holding of a court session would, for example, constitute such extraordinary circumstances. The illness of counsel would not.”
Matter of Molina, 2007 Mass. App. Div. 21, 22 & n.1 (N. Dist.).
In its second decision, the Appellate Division commented:
“Nor need we address in this case whether the rescheduling of a hearing because of some extraordinary circumstances, which may provide an exception to the statutory requirement that would comport with the statute and constitutional due process, was permissible. The petitioner herein claimed that [respondent] was unable to attend the hearing because the ‘hospital d[id] not feel that it [was] safe to bring her as the doctor isn’t [present].’ Yet no evidence was taken on the issue of whether the hospital’s unilateral action was justified. At a statutory and constitutional minimum, the court should have conducted a hearing in which the petitioner had the burden of proving, subject to cross-examination, that [respondent] was incapable of attending the hearing. And the court should have stated its reasons for determining that the petitioner’s unilateral action was justifiable.8 “
- Hypothetically, a hospital’s position as to the mental or physical stability of a patient could, in some extraordinary circumstance, warrant a finding that a delay in the hearing is justifiable. But we think that it would be extremely rare that circumstances involving only the ability of the hospital itself to comply with the statutory requirement, e.g., staffing or transportation, would justify the continuation of a hearing beyond the five days required under the statute.”
Melrose-Wakefield Hosp. v. H.S., 2010 Mass. App. Div. 247, 250 & n.8 (N. Dist.).
See also Commonwealth v. Parra, 445 Mass. 262, 267 n.6 (2005) (“[t]here may be extraordinary circumstances that would excuse brief violations” of statutory filing deadline for seeking sexually dangerous person commitment).
If the court concludes that it may invoke its inherent powers in a true emergency beyond the control of the court and the parties, the statutory goal should be respected by postponing the hearing no longer than absolutely necessary.
3:05 Notice of hearing
Immediately upon the filing of a petition for commitment or an § 8B petition for authorization for medical treatment, the clerk-magistrate’s office must send notice of the petition and of the time and place of the hearing to the respondent, to respondent’s nearest relative or guardian, to the Committee for Public Counsel Services’ Mental Health Litigation Division, to respondent’s counsel (if known), to the petitioner, and to petitioner’s counsel.
Because of the short lead time for such hearings, notice to CPCS’ Mental Health Litigation Division, and to other recipients as appropriate, should be given by facsimile transmission.
If there is a criminal complaint or indictment pending against the respondent, the clerk-magistrate’s office should also notify criminal defense counsel.
Commentary
The standard court Notice of Hearing form should be used to provide notice to “the [Department of Mental Health], the person, his counsel, and his nearest relative or guardian,” as required by G.L. c. 123, § 5. Notice should also be given (and a copy of the petition sent) to any current criminal defense counsel.
If a hearing is scheduled or rescheduled in open court with the parties present, written notice to those present is not required. However, such oral notice should be given on the record and entered on the docket, and the parties should be informed orally that no written notice will be issued.
3:06 Continuances
The court may not allow a continuance that prevents the hearing from commencing within the required 5-day or 14-day period unless the request is made by or agreed to by the respondent or respondent’s counsel. G.L. c. 123, § 7(c). See Standard 3:04 (Time Limits for Hearing).
Requests for continuances and notice to the opposing party should be made as soon as possible after the need for a continuance becomes known. Because many hearings are held in mental health facilities, requests for continuances should be made in advance of the hearing date if at all possible.
Even when respondent or respondent’s counsel consents, the court should carefully examine all continuance requests to determine that they are based on good cause. When the court grants a continuance, it should be for the minimum amount of time necessary, and the court should make every effort to reschedule the hearing for the earliest possible date.
Any court authorization of funds for an independent clinical evaluation should include a definite time limit to avoid unnecessary delay.
Commentary
Aside from emergencies beyond the parties’ control, some discretionary continuances may be in the respondent’s best interests – for example, if time is needed to gather additional information or investigate a less restrictive placement, or if a respondent’s rapidly improving condition suggests that a short continuance might result in withdrawal of the petition.
However, given the important liberty interests involved, the court should grant a continuance only when there is good cause, even if requested or agreed to by the respondent or respondent’s counsel.
3:07 Independent clinical examination
The court may provide an indigent respondent in a mental health commitment or treatment authorization proceeding with expert clinical assistance at the Commonwealth’s expense. Authorization for an independent clinical examiner, expert witness, or other litigation-related services and items may be sought by a motion for funds under the Indigent Court Costs Act (G.L. c. 261, §§ 27A-27G) along with the official Affidavit of Indigency form.
The court may allow a request without a hearing, but may not deny a request without first holding a hearing within five days of the request. G.L. c. 261, § 27C.
In reviewing such requests, the court must first determine whether the respondent is indigent and, if so, whether the requested service should be authorized at the Commonwealth’s expense. The statutory standards of indigency are outlined on the official form. The decision whether to authorize public payment depends on whether the service “is reasonably necessary to assure the applicant as effective a . . . defense . . . as he would have if he were financially able to pay.” G.L. c. 261, § 27C. If the court rules in the respondent’s favor on both issues, it must allow the motion and authorize the necessary funds on the official determination form.
When approving a request for an independent clinical examiner or expert witness, the judge should set a definite time limit for completion of the examination and report, since even essential continuances should be carefully limited and monitored. See Standard 3:06.
In reviewing any proposed hourly compensation rate, the court should consider the statutorily-authorized CPCS guidelines for such compensation. It is preferable that a judge allowing the necessary funds do so “in an amount not to exceed” a stated monetary amount.
If the court denies a request for funds, the respondent must simultaneously be notified that within seven days he or she may file with the clerk-magistrate a notice of appeal to the District Court Appellate Division. If an appeal is taken, the court must set forth its reasons for the denial in writing within three days, and may stay the proceedings or otherwise preserve the parties’ rights pending appeal. G.L. c. 261, § 27D.
An independent clinical examiner’s or expert’s report, if any, should not be filed with the court. Any information gathered and opinions developed during an independent clinical examination are for the benefit of the respondent, and may not be considered by the court or disclosed to the petitioner without the respondent’s consent unless they are offered in evidence or the independent clinical examiner or expert testifies.
Commentary
The Indigent Court Costs Act (G.L. c. 261, §§ 27A-27G) sets out a comprehensive procedure for an indigent party to obtain “waiver, substitution or payment by the Commonwealth of fees and costs” of litigation. Accordingly, a respondent in a civil commitment proceeding may request that the court determine him or her to be indigent, and then order that the Commonwealth pay for any service or item reasonably needed to oppose the petition.
The most common request in civil commitment cases is for an independent examination by a psychiatrist or psychologist. However, the statutory procedures are also applicable to requests for any other litigation-related services and items.
A motion must be accompanied by the official forms promulgated by the Supreme Judicial Court, the Affidavit of Indigency and Request for Waiver or State Assumption of Fees and Costs and, if applicable, the Supplement to Affidavit of Indigency. The court must record its decision on the official Court’s Determination Regarding Fees and Costs form. The indigency forms and instructions for their use can be found online.
Indigency
Indigency for purposes of the Indigent Court Costs Act is defined in G.L. c. 261, §27A and differs somewhat from the definition of indigency in Supreme Judicial Court Rule 3:10 for purposes of appointing counsel. Section 27A has three categories of indigency, and the Affidavit form has a check box for each of those categories. If the respondent checks the third box (claiming indigency based on inability to pay “without depriving himself or his dependents of the necessities of life”), the respondent must additionally submit the Supplement to Affidavit of Indigency, with detailed information on income and assets.
Need for independent examination
The statutory standard for state payment of an “extra cost” (such as the fee of an independent expert) turns on “whether [a party] who was able to pay would consider the particular item or service sufficiently important that he would choose to obtain it in preparation for trial.” Commonwealth v. Lockley 381 Mass. 156, 160 (1980). As the Supreme Judicial Court elaborated,
“The test is not whether a particular item or service would be acquired by a [party] who had unlimited resources, nor is it whether the item might conceivably contribute some assistance to the defense or prosecution of the indigent person. On the other hand, it need not be shown that the addition of the particular item to the defense or prosecution would necessarily change the final outcome of the case. The test is whether the item is reasonably necessary to prevent the party from being subjected to a disadvantage in preparing or presenting his case adequately, in comparison with one who could afford to pay for the preparation which the case reasonably requires.
“In making this determination under the statute, the judge may look at such factors as the cost of the item requested, the uses to which it may be put at trial, and the potential value of the item to the litigant.” Id., 381 Mass. at 160-61.
If the respondent’s motion and Affidavit are sufficient to meet this test, the court may allow the request without a hearing. Where a hearing must be held, on request the court should permit it to be conducted ex parte so that the respondent need not disclose aspects of his or her defense to the petitioner. See Commonwealth v. Dotson, 402 Mass 185 (1988) (prosecution has no role to play in defendant’s motion for funds for expert witness); Blazo v. Superior Court, 366 Mass. 141, 145 n.8 (1974) (indigent should be able to obtain witness subpoenas without informing opponent).
In appropriate circumstances, the court may order the respondent to pay a portion of the cost of the requested service (e.g., where the facility holds a respondent’s funds in a patient funds account). In determining whether partial payment is appropriate, the court should take into account both the anticipated cost of the requested service and the impact such payment will have upon the respondent. See Underwood v. Massachusetts Appeals Court, 427 Mass. 1012 (1998) (court should exercise reasonable discretion, considering totality of applicant’s economic circumstances, before ordering payment of partial fee).
Amount authorized
The Committee for Public Counsel Services has a statutory responsibility to:
“establish standards for . . . qualifications for vendors for [expert witness] services . . . and a range of rates payable for said services, taking into consideration the rates, qualifications and history of performance; provided, however, that such ranges may be exceeded with approval of the court. Payment of such costs and fees shall be in accordance with the provisions of [the Indigent Court Costs Act].” G.L. c. 211D, § 9.
CPCS has established qualifications and a range of hourly rates for 19 categories of experts, including psychiatrists, psychologists, physicians and investigators, in its Qualifications and Rates for Investigators, Social Service Providers and Expert Witnesses (June 2002, as revised). The guidelines provide that:
“no vendor may be compensated for a rate greater than the rates listed for the vendor’s area of expertise, unless (1) the higher rate is previously approved by the appropriate Deputy Chief Counsel or Director of the Mental Health Litigation Unit of CPCS, and (2) the higher rate is then approved by the Court in an allowed Motion for Funds.”
These guidelines are available on the CPCS internet website.
The forms and instructions to judges promulgated by the Supreme Judicial Court to implement the Indigent Court Costs Act anticipate that a judge, when authorizing payment by the Commonwealth, will set in advance a specific monetary limit.
“Applicants are asked to give their best estimates of the costs of the services whose waiver or state payment they are requesting . . . . Most applicants will not know the actual costs of many of these services. Therefore, courts should approve otherwise appropriate applications for waiver or state payment and insert in the approval the actual or estimated amount of the fee or service, as it is known to the court.” Instructions to Courts on the Administration of the Indigent Court Costs Law (March 25, 2003).
The Standard suggests that, in the case of an independent clinical examiner or expert witness, the best practice is for the judge to approve an expenditure “not to exceed” a specific maximum amount.
Despite some older statutes suggesting that the court system is responsible for processing payments under the Indigent Court Costs Law (see G.L. c. 123, § 33 and c. 261, § 27G), such vendor invoices (with “the dates each [service] was rendered . . . and the charge for each,” G.L. c. 261, § 27G) are now processed and paid through the Committee for Public Counsel Services after CPCS receives written certification from respondent’s counsel that the services have been rendered. In doing so, CPCS will observe any maximum amount that was set by the judge who approved the expenditure. It is no longer necessary for vendor invoices routinely to be submitted for court review prior to payment, although in particular cases a judge may order that to be done. See Commonwealth v. Matranga, 455 Mass. 45 (2009) (after allowing motion for payment of funds, “the judge has no authority over the manner in which the Committee for Public Counsel Services disburses those funds since G.L. c. 211D, §§ 3, 9, and 13 commit to CPCS rather than to the judge oversight and discretion with respect to their expenditure”).
Choice of examiner
The court should require that the examiner have the requisite training and experience; this will depend on the issue under consideration. While a respondent does not have a right to select an independent clinician of his or her choosing, the court in most instances should permit him or her to do so with the advice of counsel. See Commonwealth v. DeWolfe, 389 Mass. 120, 126 (1983) (criminal defendant “ordinarily should be allowed to select his own doctor to examine him, although we do not consider such a choice to be a matter of right”). The Committee for Public Counsel’s Mental Health Litigation Unit maintains a listing of psychiatrists and psychologists willing to serve as independent clinical examiners.
When the selection of an independent clinical examiner or other vendor is made by the respondent or respondent’s counsel, it is not a court-made appointment and therefore should not be entered on the docket of fee-generating court appointments required by Supreme Judicial Court Rule 1:07.
Results of independent clinical examination
The information gathered and the opinions formed by respondent’s independent clinician are not discoverable by the petitioner and not to be shared with the court unless the clinician will be called by respondent to testify or the clinician’s report, if any, will be offered in evidence at the hearing. Thompson, supra (facts known and opinions held by independent physician treated as if physician were hired privately). See also Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 325 n.34 (2010) (criminal defendant who intends to offer expert testimony in support of defense based on mental disease or defect or psychological impairment must disclose expert’s report to prosecution when court-appointed expert’s report is released to defense).
The court must not, of course, draw any adverse inferences if the respondent decides not to use the report as evidence in his or her case.
3:08 Discovery
In its discretion, the court may issue an order for discovery on motion by a party, with notice, made as early as practicable and prior to hearing, when the requested information appears to be relevant. This may include depositions, written interrogatories, production of documents, or requests for admissions. Orders for discovery should clearly state compliance deadlines and terms.
The availability and scope of discovery is discretionary with the court. Such discretion should be exercised liberally, since respondent and respondent’s counsel may be at a marked disadvantage prior to the hearing with respect to relevant information compared to that available to the petitioning facility. Bona fide discovery motions seeking relevant information not currently available to respondent should usually be allowed.
Informal discovery arrangements should be encouraged. The court may inquire as to whether these have been adequately pursued before allowing a formal motion for discovery.
Commentary
The types of discovery used in civil cases may be appropriate also for civil commitment cases, including depositions (see Mass. R. Civ. P. 27-31), interrogatories (see Rule 33), inspection of documents (see Rule 34), and requests for admissions (see Rule 36).
While the Massachusetts Rules of Civil Procedure are generally inapplicable to civil commitment proceedings, see Mass. R. Civ. P. 81(a)(2), civil proceedings not governed by those rules “shall follow the course of the common law, as near to these rules as may be,” Mass. R. Civ. P. 81(a)(3). See also G.L. c. 231, §§ 61-69 (authorizing interrogatories, inspection of documents, and requests for admission in civil proceedings not governed by the civil rules).
The time periods for discovery set out in the Massachusetts Rules of Civil Procedure are inconsistent with the statutory requirement to commence civil commitment proceedings within five or 14 days. Because time is of the essence in these proceedings, the court should set short discovery time limits and may hear motions ex parte as appropriate. The hearing may be continued upon agreement of the parties in order to allow for discovery. See Standard 3:06 (Continuances).