4:00 Location of hearings
General laws c. 123, § 5, authorizes a judge to conduct civil commitment hearings at the courthouse, the petitioning mental health facility or, if applicable, Bridgewater State Hospital. The language of G.L. c. 123, § 5, does not express a preference for any particular location, but, rather, a judge presiding over a civil commitment hearing retains discretion to determine the location of the hearing on a case-by-case basis.
Wherever conducted, all court hearings should be held in rooms of adequate size and appropriate condition for a dignified and impartial judicial hearing. The physical setting must be sufficient to provide for appropriate security, permit public access, and elicit the customary respect accorded court proceedings and parties before the court.
Hearings must be electronically recorded.
If held at the petitioning facility or Bridgewater State Hospital, the judge should be accompanied by a court officer who should open and conclude the hearing as they would in any courtroom setting. In addition, the facility may provide security personnel. An assistant clerk or sessions clerk should be present to maintain custody of court records and exhibits, including the audio recording of the proceedings, to swear witnesses, to docket the proceedings, and to prepare any court forms or written orders necessary.
Commentary
Commitment hearings under G.L. c. 123 may be conducted away from the courthouse and at the petitioning facility or, if applicable, Bridgewater State Hospital. G.L. c. 123, § 5. See Matter of M.C., 481 Mass. 336, 344 (2019). Wherever the hearing is held, the respondent’s potential loss of liberty is a significant matter, and the court, the respondent, counsel, and facility staff are entitled to a formal and dignified hearing.
The strict hearing deadlines set forth in G.L. c. 123 require that, upon receipt of a petition for commitment, the court must promptly “provide notice of the time and place of [the] hearing . . . to the department, the person, his counsel, and his nearest relative or guardian.” M.C., 481 Mass. at 350, citing G.L. c. 123, § 5. Irrespective of where a hearing is initially scheduled, “a judge presiding over a civil commitment hearing retains discretion to determine the location of the hearing on a case-by-case basis.” Id.
When the hearing is held at the facility or Bridgewater State Hospital, the hearing room must reflect and be conducive to the dignity of the court and the formality and impartiality of judicial proceedings. The physical setting must not convey, especially to the respondent, any suggestion that the hearing is merely an administrative proceeding in which the court is somehow subordinate to the facility’s authority rather than a neutral and independent guardian of constitutional rights. Whenever possible, the court should use the same hearing room, with an appropriate private robing area and toilet facilities, each time proceedings are held at a facility. The facility should provide adequate parking for the judge and attorneys. At minimum, the hearing room must be of adequate size, clean and properly maintained, with adequate lighting and ventilation. There should be a separate seating space for the judge, with a suitable chair, and a separate chair nearby to serve as a witness stand. The litigants and counsel should be seated separately, facing the judge. This seating arrangement should be followed even if, as is the case in some facilities, the hearing is held at a conference table. The hearing room must allow for public access, but should be in a quiet area of the facility. No other function or foot traffic, and no food or drink, is permissible in the hearing room during proceedings.
Proceedings, wherever conducted, must be electronically recorded. District Court Special Rule 211. See Standard 4:02 (Electronic Recording). If conducted away from the courthouse, the facility must provide the recording device and microphones, if necessary.
The flag of the United States and the flag of the commonwealth shall be displayed in every court of justice of the commonwealth while court is in session. G.L. c. 220, § 1. The judge must wear a robe, District Court Administrative Regulation No. 7-74 (October 1, 1974), and attorneys and witnesses should be in attire appropriate for a formal court proceeding. The judge should direct that electronic devices be silenced during court proceedings.
The purpose of such formality is not to inhibit the participants, but to remind them that a formal hearing is being conducted. Informal settings in mental health proceedings may easily foster other procedural informalities which are unacceptable in court proceedings. The court should not permit participants to dispense with proper courtroom practice because they are outside the traditional physical setting of a courtroom.
Sufficient security is essential at commitment hearings. The court must not, of course, draw any adverse inferences from extensive protective measures or perceived staff concerns, but must base its commitment decision solely on the evidence presented at the hearing.
When hearings are scheduled to be conducted at the facility, the court should give careful consideration to any reasons advanced by a party who files a motion requesting that the hearing be held at the courthouse, particularly if a legitimate concern about deficiencies in the hospital setting has been identified.
4:01 Public access to hearings
Civil commitment proceedings are presumptively open to the public.
They may be closed only if:
- the party seeking to close the proceedings shows an overriding interest that is likely to be prejudiced absent closure;
- the closure is no broader than necessary to protect that interest;
- the court considers reasonable alternatives to closure; and
- the court makes particularized findings supported by the record that are adequate to justify the closure.
Commentary
It is well established that criminal proceedings are presumptively open to the public, even when conducted outside the usual courtroom setting. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 580 n.17 (1980) (“[H]istorically both civil and criminal trials have been presumptively open”); Boston Herald, Inc. v. Superior Ct. Dept., 421 Mass. 502 (1995) (criminal arraignment held in hospital intensive care unit presumptively open).
However, most courts had a longstanding tradition of denying public access to civil commitment proceedings, except for good cause shown, out of privacy concerns arising from the highly personal nature of the subject matter and evidence at such hearings. While there is no express statutory authority for this, it was often assumed to be implicit in the requirements of G.L. c. 123, § 36A that the records of such proceedings be kept confidential and separate from other court documents.
However, Kirk v. Commonwealth, 459 Mass. 67, 75 (2011), found that § 36A:
“does not, by its terms, provide for the closure of the court room in commitment proceedings. It applies only to the privacy of reports, papers, and dockets. The absence of such a closure provision is particularly notable given that the Legislature has elsewhere provided for closure explicitly. Where the Legislature has intended to express a preference for closure, it has thus done so explicitly” (citations omitted).
Kirk held that the “long-standing presumption in Massachusetts common law that, as a general matter, the public has a right to attend civil trials” applies also to civil recommitment hearings under G.L. c. 123, § 16(c) for persons acquitted by reason of mental illness and that such hearings are presumptively open to the public.
“Early cases in the Commonwealth illustrate that civil commitment proceedings were not formerly afforded the publicity that has, as a general matter, been characteristic of civil trials in Massachusetts. It is equally clear, however, that lawmakers and courts have moved decisively away from this prior informality and now provide in commitment cases procedural protections characteristic of criminal trials and other civil trials . . . .
“The trajectory of the law as it relates to civil commitment demonstrates that commitment hearings have been increasingly clothed with the procedural protections and formality typical of other civil (and criminal) trials. As such trials are generally open to the public, this supports a conclusion that proceedings pursuant to G. L. c. 123, § 16(c), are also, as a general proposition, open to the public.
“Public access to the commitment proceedings underscores the seriousness of a potential deprivation of liberty and combats tendencies toward informality that may threaten an individual’s due process rights. Commitment hearings are a matter of public interest. Likewise, closure encourages skepticism and distrust among the public – and, indeed, among those whose commitment is sought – regarding posttrial proceedings after persons have been acquitted by reason of mental illness. We conclude that both the legal evolution of civil commitment proceedings and the likely beneficial effects of public access to such proceedings support a conclusion that civil recommitment hearings held pursuant to G. L. c. 123, § 16(c), are presumptively open to the public . . . .” Id. at 71-73 (citations omitted).
The Kirk decision is expressly limited to § 16(c) recommitment hearings, Id. at 73 n.9, and it does not discuss the privacy interests of respondents in purely civil commitments under §§ 7 & 8. However, its holding is based on the general presumption of public access to civil trials, and the opinion nowhere implies that any special considerations apply to § 16(c) petitions because such respondents have related criminal charges. While Kirk does not directly address other civil commitment hearings, the Standard suggests that the Kirk rule should be applied in all civil commitment proceedings for mentally ill persons.
Kirk offered the following guidance on how courts should determine whether the presumption of openness has been overcome in individual situations:
“Given the presumption that G. L. c. 123, § 16(c), proceedings are open to the public in Massachusetts, as they are in criminal trials, we conclude that the Waller [v. Georgia, 467 U.S. 39, 48 (1984),] standard should likewise be applied in such proceedings.
“Thus, closure may occur where four requirements are met: ‘[1] the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.’ The essence of the Waller standard is thus that a moving party’s position must be sufficiently compelling to overcome a presumption of openness. The findings required for closure must be ‘particularized and supported by the record . . . .’
“In adopting the Waller standard, we recognize that the public disclosure of medical information has the potential to prejudice the therapeutic treatment of a patient. Accordingly, in determining whether the moving party has shown an overriding interest likely to be prejudiced, the judge should take account of any alleged prejudice to a patient’s therapeutic treatment that could come about by virtue of a public proceeding. The [moving party] has the burden of demonstrating that prejudice is likely to occur. We emphasize also that it is within the judge’s discretion to close a limited portion of a proceeding if the Waller standard is satisfied as to that portion . . . .
“[Kirk] also asserts that, to succeed in the recommitment proceeding, she ‘will have to provide detailed evidence describing her progress in treatment.’ That argument, expressed as it is in general terms, would likely be true of most recommitment hearings. If sufficient, it would allow closure almost as a matter of course, and thus cannot succeed. [Her] argument that the dissemination of personal information disclosed in treatment ‘may have a devastating effect on her treatment,’ while a legitimate and serious concern, is not supported by expert opinion or any other evidence. The judge was warranted in finding these assertions insufficient to warrant closure of the proceeding.
“The final question is whether the judge was required to make findings in denying the plaintiff’s motion. Explicit in the Waller standard is a requirement that the judge make findings if he or she concludes that closure is warranted. Where a judge denies a motion for closure, findings are also necessary. The reviewing court must be able to determine the basis for the denial.” Id. at 73-76 (citations omitted).
4:02 Electronic recording
The commitment hearing must be electronically recorded on an appropriate sound recording device under court control, or alternately on a recording device under the control of a party and made available to opposing counsel. District Court Special Rule 211. Recordings must be preserved in accordance with Special Rule 211, usually for at least one year.
If a recording device is not available at the mental health facility and counsel objects, the court should conduct the hearing at a courthouse where a proper recording may be made in accordance with the rule.
Commentary
Like other court records related to civil commitment petitions, court-controlled electronic recordings of proceedings are not available for public inspection without a court order. G.L. c. 123, § 36A. They are available to the parties and their counsel. See Standard 1:02 (Privacy of Court Records).
4:03 Adversarial nature of hearings
Hearings conducted pursuant to chapter 123 are adversarial proceedings.
Counsel for both parties should be present, prepared and permitted to inquire fully into the facts of the case, cross-examine witnesses, and vigorously advocate for their clients’ positions. Respondent’s counsel must be afforded the opportunity to present independent testimony.
All witnesses must testify under oath or affirmation.
The respondent should normally be present. See Standard 4:04.
It is recommended that the judge resolve any issues of privileged communications or other preliminary matters at the commencement of the hearing, including whether there are any issues concerning any Lamb warning and waiver. See Standard 5:04.
Commentary
It is a benchmark of our jurisprudence that facts are best determined by a judge based on zealous advocacy by both attorneys. Chapter 123 ensures this adversarial approach by guaranteeing traditional safeguards such as the rights to counsel, notice and a fact-finding hearing process, to present independent testimony, and to appeal. G.L. c. 123, § 5.
Assigned attorneys are required to comply with performance standards promulgated by the Committee for Public Counsel Services to ensure competent and vigorous representation. See Standard 3:03 (Right to Counsel) and Appendices C and D.
Due process requires that all testimony be taken under oath. This includes medical professionals and other staff members as well, who should not answer questions informally without being placed under oath. This can create an atmosphere of informality which is counterproductive to sound judicial practice and respect for court proceedings.
In forensic proceedings under G.L. c. 123, § 16, the district attorney’s office that prosecuted the respondent’s criminal case, while not a party, has the right to “be notified of . . . and . . . to be heard” at the commitment hearing. G.L. c. 123, § 16(d). This apparently includes an independent right to offer evidence under usual evidentiary rules. See Adoption of Sherry, 435 Mass. 331, 338 (2001) (discussing foster parent’s statutory right “to attend . . . and to be heard” in child custody proceedings).
4:04 Respondent’s presence
The respondent has a right to attend the hearing and normally should be present. The court should inquire carefully of the facility staff and respondent’s counsel about the circumstances if the respondent absents himself or herself voluntarily, and even more carefully if it is represented to the court that the respondent is unable to attend.
The respondent’s attendance at the hearing should be strongly encouraged. If the respondent is firmly unwilling to attend, or seriously disruptive, the hearing may continue in his or her absence, although the court should do so only as a last resort. If the court proceeds without the respondent, the court should note the reason for his or her absence on the record and should have standby counsel present.
Commentary
Although the statute does not address waiver of the respondent’s presence at the hearing, if the respondent is adamantly unwilling to attend, the hearing may continue in his or her absence. This should be determined by a formal inquiry and with a finding on the record, based upon representations by respondent’s counsel, and, if possible, a colloquy with the respondent, that the respondent is knowingly and voluntarily choosing not to attend.
If the respondent is reported as involuntarily absent, the court should hear from respondent’s and petitioner’s counsel as to the situation and then take any reasonable steps to secure his or her attendance and participation. If there are medical concerns, all or part of the hearing may be moved to a suitable location so that the respondent may attend, or a continuance may be granted.
Where security is a concern, protective measures may be undertaken. However, the respondent’s right to be present may not be curtailed merely because the petitioner asserts that the respondent’s attendance would be unsafe.
“At a statutory and constitutional minimum, the court should [conduct] a hearing in which the petitioner [has] the burden of proving, subject to cross-examination, that [respondent] was incapable of attending the hearing. . . . [I]t 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.)
In extreme cases, a respondent may be so disruptive that he or she thereby forfeits the right to attend and may be excluded from the hearing. As with criminal defendants, this should be done only after explicit advance warnings. Before the respondent is removed, the court should inform the respondent that he or she may return upon giving assurances of good behavior. Periodically during the hearing, the respondent should again be brought into the hearing room and offered the opportunity to conduct himself or herself appropriately. If possible, the respondent should be able to view or hear the proceedings remotely while excluded from the hearing room.
If the hearing proceeds without the respondent, the court must not, of course, draw any adverse inferences from the respondent’s absence.
4:05 Decision and order
The court must render its decision on a petition for commitment within ten days of the completion of the hearing. The ten-day period may be extended only by the Chief Justice of the District Court “for reasons stated in writing by the court.” G.L. c. 123, § 8(c).
An order of commitment must be effective no later than the date of the court’s decision.
The petitioner, the respondent and respondent’s counsel should be notified of the court’s decision immediately after it is rendered.
Commentary
An extension of the statutory ten-day deadline may be granted only by the Chief Justice of the District Court. A judge should submit such a request and the reasons therefor in writing only where the complexity of the legal or factual issues involved requires extended consideration.
Any order of commitment must be effective no later than the date of the court’s decision. The independent authority provided by G.L. c. 123, § 6(a) for a respondent to “be retained at a facility or at the Bridgewater state hospital . . . during the pendency of a petition for commitment” ceases when the petition is no longer pending, and thereafter the respondent may be held only “under a court order.”
4:06 Judicial reviews
There are no statutory provisions authorizing judicial reviews during a term of civil commitment. A routine practice of scheduling periodic judicial reviews is inconsistent with the statutory scheme and should be avoided.
Apart from any treatment plan monitoring required by § 8B (see Standard 11:04), the court does not have any continuing supervisory role during the term of civil commitment. Instead, treatment responsibilities and the authority to release or transfer a committed person prior to the expiration of the six-month or one-year order of commitment rests with the superintendent of the facility, or in the case of Bridgewater State Hospital, its Medical Director. G.L. c. 123, §§ 3, 4 & 6(a).
There may sometimes be good reason to schedule a post-adjudication judicial review in a particular case, e.g., if any issues were identified at the hearing that require further clarification or ongoing consideration.
4:07 Appeal
Legal issues arising in civil commitment hearings and medical treatment authorization hearings may be reviewed in the Appellate Division of the District Court “in the same manner as civil cases generally.” G.L. c. 123, § 9(a). Such appeals are governed by the District/Municipal Courts Rules for Appellate Division Appeal, which require the filing of a claim of appeal with the clerk-magistrate of the applicable district court within ten days after the entry of the commitment order. Dist./Mun. Cts. R. A. D. A. 4(a).
During the period of commitment, any person may also make written application to a Superior Court judge alleging that a committed person “should no longer be so retained” or “is the subject of a medical treatment order . . . and should not be so treated.” G.L. c. 123, § 9(b).
Commentary
General Laws c. 123, § 9 offers two avenues for appeal from a civil commitment or medical treatment authorization. The first is an appeal on a matter of law to the Appellate Division under the District/Municipal Court Rules for Appellate Division Appeal pursuant to G.L. c. 123, § 9(a).
“Any person” may also challenge the propriety of a respondent’s continued commitment or medical treatment through a civil action in the Superior Court pursuant to G.L. c. 123, § 9(b). Such hearings are not de novo reviews of commitment or treatment orders. Instead, the applicant has the burden of demonstrating by a preponderance of the evidence that his or her situation has “significantly changed” since the last commitment hearing so as to justify discharge or transfer. Andrews, petitioner, 449 Mass. 587 (2007); Thompson v. Commonwealth, 386 Mass. 811 (1982). See also Standard 11:04 (Monitoring § 8B Treatment Plan).