5:00 Standard of proof
Each of the requirements for civil commitment must be proved by the petitioner beyond a reasonable doubt.
Commentary
In Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978), the Supreme Judicial Court held that proof “beyond a reasonable doubt” is the appropriate standard of proof in a civil commitment proceeding. The traditional “preponderance of the evidence” civil standard of proof is constitutionally inadequate where such a significant deprivation of liberty is at stake. See also Commonwealth v. Nassar, 380 Mass. 908 (1980) (rejecting adequacy of “clear and convincing” standard permissible under Addington v. Texas, 441 U.S. 418 [1979]).
5:01 Rules of evidence
Formal rules of evidence should be applied in commitment and medical treatment authorization hearings.
Commentary
Chapter 123 proceedings are formal judicial determinations in which a substantial deprivation of liberty is at stake and there are no statutory provisions or case decisions suspending the rules of evidence.
The next three Standards concern some of the more common evidentiary issues encountered in commitment hearings: hearsay (Standard 5:02), expert opinion testimony (Standard 5:03), and privileged communications (Standard 5:04).
5:02 Hearsay
The hearsay rule and its exceptions should be applied in civil commitment and medical treatment authorization hearings. Absent a recognized evidentiary exception, an out-of-court statement offered to prove the truth of the matter asserted is inadmissible hearsay.
Commentary
Two of the most common exceptions to the hearsay rule encountered in civil commitment proceedings are:
Statements by a party-opponent
An out-of-court statement made by the respondent, when offered as evidence by the petitioner, is not inadmissible as hearsay.
“(d) Statements Which Are Not Hearsay. The following statements are not hearsay and are admissible for the truth of the matter asserted: . . . . “
(2) Admission by Party-Opponent. The following statements offered against a party are not excluded by the hearsay rule:
“(A) The party’s own statement.
“(B) A statement of which the party has manifested an adoption or belief in its truth . . . .” Massachusetts Guide to Evidence § 801(d)(2) (2011 ed.).
Hospital records
An entry in a hospital record relating to a patient’s treatment and medical history is admissible in evidence as an exception to the hearsay rule, if it is otherwise admissible. However, information that is otherwise inadmissible is not made admissible merely by inclusion in a hospital record.
The hospital records statute (G.L. c. 233, § 79) applies to the patient records of all “[h]ospitals or clinics subject to licensure by the department of public health or supported in whole or in part by the commonwealth.” G.L. c. 111, § 70. A “hospital” is an institution that offers “diagnosis, medical, surgical or restorative treatment”; a “clinic” is an entity that offers “ambulatory medical, surgical, dental, physical rehabilitation, or mental health services.” G.L. c. 111, § 52.
The hospital records statute “in effect provides an exception to the hearsay rule, allowing hospital records to be admitted to prove the truth of the facts contained therein, in so far as those facts pertain to treatment and medical history.” Commonwealth v. Copeland, 375 Mass. 438, 442 (1978). This dispenses with the need for the author of that entry to appear and testify. The exception is justified by “the presumption of reliability which attaches to statements relating to treatment and medical history in these records [arising] primarily from the fact that entries in these records are routinely made by those charged with the responsibility of making accurate entries and are relied on in the course of treating patients.” Bouchie v. Murray, 376 Mass. 524, 528 (1978).
This does not automatically make everything in the record admissible. An entry in a patient’s hospital record is admissible only if the entry pertains to the patient’s treatment or medical history and the author, if called as a witness, would be permitted to testify to the contents of that entry.
The Supreme Judicial Court has suggested that judges use the following approach:
“[W]e recommend that the following analysis be employed at trial to determine the admissibility of material contained in a hospital record. First, the document must be the type of record contemplated by G. L. c. 233, § 79. Second, the information must be germane to the patient’s treatment or medical history. Third, the information must be recorded from the personal knowledge of the entrant or from a compilation of the personal knowledge of those who are under a medical obligation to transmit such information. Fourth, voluntary statements of third persons appearing in the record are not admissible unless they are offered for reasons other than to prove the truth of the matter contained therein or, if offered for their truth, come within another exception to the hearsay rule or the general principles discussed supra.” Bouchie v. Murray, 376 Mass. at 531.
The Massachusetts Guide to Evidence § 803 (2011 ed.) summarizes the hospital records rule as follows:
“The following are not excluded by the hearsay rule, even though the declarant is available as a witness: . . . . “
(6) Business and Hospital Records . . . . “
(B) Hospital Records. Records kept by hospitals pursuant to G. L. c. 111, § 70, shall be admissible as evidence so far as such records relate to the treatment and medical history of such cases, but nothing contained therein shall be admissible as evidence which has reference to the question of liability. Records required to be kept by hospitals under the law of any other United States jurisdiction may be admissible.
“(C) Medical and Hospital Services . . . .
“(ii) Admissibility of . . . Records, and Reports. In any civil or criminal proceeding, . . . records, and reports of an examination of or for services rendered to an injured person are admissible as evidence of . . . the necessity of such services or treatments, the diagnosis, prognosis, opinion as to the proximate cause of the condition so diagnosed, or the opinion as to disability or incapacity, if any, proximately resulting from the condition so diagnosed, provided that
“(a) the party offering the evidence gives the opposing party written notice of the intention to offer the evidence, along with a copy of the evidence, by mailing it by certified mail, return receipt requested, not less than ten days before the introduction of the evidence;
“(b) the party offering the evidence files an affidavit of such notice and the return receipt is filed with the clerk of the court after said receipt has been returned; and
“(c) the itemized bill, record, or report is subscribed and sworn to under the penalties of perjury by the physician, dentist, authorized agent of a hospital or health maintenance organization rendering such services . . . .”
5:03 Expert opinion testimony
A witness may offer an expert opinion only if the court finds:
- that specialized knowledge will assist the court to understand the evidence or to determine a fact in issue;
- that by knowledge, skill, experience, training, or education, the witness is qualified as an expert on the issue in question;
- that the testimony is based upon sufficient facts or data;
- that the testimony is the product of reliable principles and methods;
- that the witness has applied those principles and methods reliably to the facts of the case; and
- that the facts or data upon which the witness bases an opinion either:
- are in the witness’s direct personal knowledge, or
- are evidence in the case, or
- are hypothetically assumed to be true upon the party’s representation that they will be offered in evidence; or
- are not in evidence but are independently admissible in evidence and are, or constitute, a permissible basis for an expert to consider in formulating an opinion.
Commentary
The Standard is based on the Massachusetts Guide to Evidence §§ 702 (Testimony by Experts) and 703 (Bases of Opinion Testimony by Experts) (2011 ed.).
Qualifications as an expert
A witness may be qualified as an expert, and therefore proffer an opinion, if the court finds that he or she possesses sufficient skill, knowledge and experience in the professional discipline within whose purview the specific issue in question lies. Commonwealth v. Boyd, 367 Mass. 169 (1975). The fact that a witness practices within a particular discipline (e.g., psychiatry or psychology) does not in itself establish his or her expertise regarding the specific issue in question. Rather, a putative expert’s professional qualifications must be examined, both as to his or her standing in general within the discipline, and as to his or her particular expertise regarding each issue for which his or her opinion is proffered. He or she may be permitted to offer an opinion only within the scope of his or her expertise.
Opinion on ultimate issue
In the course of a proper expert opinion, an expert witness may offer an opinion as to an ultimate factual issue (e.g., whether the patient is mentally ill). Massachusetts Guide to Evidence §§ 704 (2011 ed.). See, e.g., Commonwealth v. Gomes, 355 Mass. 479, 482–483 (1969) (opinion that defendant was sexually dangerous person).
Validity of expert's methodology
Where proffered opinion testimony is challenged, the judge must determine “whether the reasoning or methodology underlying the testimony is scientifically valid and . . . whether that reasoning or methodology properly can be applied to the facts in issue.” Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 459 U.S. 579, 593 (1993). The methodologies used by experts in professional disciplines that rely on personal observations and clinical experience are also subject to such Lanigan/Daubert challenges. Once challenged, the proponent of the opinion testimony has the burden of establishing its methodological validity. Canavan’s Case, 432 Mass. 304, 313 (2000) (physician).
Foundation of opinion
An opinion is admissible only if based upon information that has been admitted into evidence or would be admitted into evidence if proffered, and that is of a type typically relied on by an expert in the witness’s professional discipline. Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986). In formulating his or her opinion, an expert may rely on information that has not been admitted into evidence but would be admissible if proffered, but the information itself may not be admitted substantively through the direct testimony of the expert. See, e.g., Commonwealth v. Boyer, 58 Mass. App. Ct. 662 (2003).
Massachusetts has not fully adopted Proposed Mass. R. Evid. 703, which would permit opinions based on inadmissible evidence if it is of a type reasonably relied upon by experts in the relevant field. Massachusetts Guide to Evidence §§ 703, Note (2011 ed.)
5:04 Privileged communications to clinicians
The respondent has the right to refuse to disclose, and to prevent any other witness from disclosing, the respondent’s communications to a psychotherapist or social worker concerning diagnosis or treatment of the respondent’s mental or emotional condition that were made under circumstances in which the respondent had a reasonable expectation of privacy, unless a statutory exception applies or the respondent has made a knowing, intelligent and voluntary waiver. G.L. c. 233, § 20B (communications to psychotherapists); G.L. c. 112, § 135B (communications to social workers).
The privilege includes communications in a hospital record. The privilege belongs to the respondent. It is not self-executing and must be timely claimed by the respondent or respondent’s counsel or it is waived.
The privilege does not extend to the clinician’s observations or diagnosis or the facts, dates or purpose of hospitalization or treatment if they do not implicate communications between the respondent and the clinician.
The exception to the psychotherapist privilege set out in G.L. c. 233, § 20B(b) is available in proceedings under G.L. c. 123, §§ 7 & 8 and 8B. That exception provides that the privilege does not apply to communications made by the respondent about his or her mental or emotional condition during a court-ordered psychiatric exam after an appropriate Lamb warning was given (i.e., the respondent was informed that such communications would not be confidential) and the respondent made a voluntary and knowing waiver. G.L. c. 233, § 20B(b). The court is required to inquire sua sponte and make appropriate findings if it appears that the respondent may not have understood the Lamb warning or that his or her waiver of rights may not have been knowing and voluntary.
As yet there is no dispositive appellate decision whether the additional exception to the psychotherapist privilege found in § 20B(a) is available in proceedings under G.L. c. 123, §§ 7 & 8 and 8B, but it appears from the case law that it does not.
It is recommended that the judge resolve any issues concerning privileged communications at the commencement of the hearing, including any concerning any Lamb warning and waiver.
Commentary
See Commonwealth v. Clancy, 402 Mass. 664, 667 (1988) (“communications” included in psychotherapist privilege include “conversations, correspondence, actions, occurrences, memoranda, or notes relating to diagnosis or treatment,” but not “the fact of a hospital admission, the dates of hospitalization or even the purpose of the admission, if such purpose does not implicate communications between the witnesses and the psychotherapist”); Commonwealth v. Kobrin, 395 Mass. 284, 294 (1985) (psychotherapist privilege extends to portions of records that “reflect patients’ thoughts, feelings, and impressions, or contain the substance of the psychotherapeutic dialogue”); Three Juveniles v. Commonwealth, 390 Mass. 357, 361 (1983) (psychotherapist privilege applies to communications made under circumstances where patient had a reasonable expectation of privacy); Usen v. Usen, 359 Mass. 453, 456 (1971) (hospital records hearsay exception [G.L. c. 233, § 79] does not abrogate psychotherapist privilege for communications made part of hospital record); Adoption of Abigail, 23 Mass. App. Ct. 191, 198 (1986) (psychotherapist privilege does not extend to conclusions based on objective indicia rather than on communications from patient).
The privilege is not self-executing or a disqualification; it must be claimed by the patient and is waived absent timely objection. Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002) (communications to psychotherapists); G.L. c. 112, § 135B (communications to social workers).
“Psychotherapists” include physicians who devote a substantial portion of time to the practice of psychiatry, licensed psychologists, doctoral students under the supervision of a licensed psychologist, and psychiatric nurse mental health clinical specialists. G.L. c. 233, § 20B. A physician with a practice in pain management is a psychotherapist, since pain management is a subspecialty of psychiatry as well as neurology and internal medicine. Board of Registration in Medicine v. Doe, 457 Mass. 738, 743-745 (2010)
“Social workers” include licensed certified social workers and licensed social workers (G.L. c. 112, § 132) as well as government-employed social workers. G.L. c. 112, § 135B.
“Communications” include conversations, correspondence, actions and occurrences relating to diagnosis or treatment before, during or after institutionalization, regardless of the patient’s awareness of such conversations, correspondence, actions and occurrences, and any records, memoranda or notes of the foregoing. G.L. c. 233, § 20B; G.L. c. 112, § 135.
General Laws c. 123, § 8B(h), G.L. c. 233, § 20B and G.L. c. 112, §§ 129A and 135B list a number of exceptions when the privilege does not apply, but the two discussed below are particularly pertinent in civil commitment and medical treatment authorization proceedings.
General Laws c. 233, § 20B reads as follows (G.L. c. 112, § 135B is identical for social workers):
“The privilege granted hereunder shall not apply to any of the following communications:–
“(a) [To place or retain a patient in a mental health facility.] If a psychotherapist, in the course of his diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided however that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities.
“(b) [To conduct a court-ordered psychiatric exam after Lamb warning.] If a judge finds that the patient, after having been informed that the communications would not be privileged, has made communications to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt . . . .”
General Laws c. 123, § 8B(h) also sets out for medical treatment authorization proceedings a separate statement of the § 20B(b) exception to the psychotherapist privilege:
“Any privilege established [for communications to social workers] by [G.L. 112, § 135] or [for communications to psychotherapists] by [G.L. c. 233, § 20B], relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this section, for the purpose of obtaining treatment of a patient, provided that such patient has been informed prior to making such communications that they may be used for such purpose and has waived the privilege.”
The section 20B(a) exception for placing or retaining a person in a mental health facility
There are no appellate decisions interpreting the application of the G.L. c. 233, § 20B(a) exception to the psychotherapist privilege in civil commitment proceedings under G.L. c. 123, §§ 7 & 8 or 8B. However, case law in other types of proceedings has apparently limited this exception to situations where the patient is (or is about to be) at large and is not before the court or in State custody, and therefore the § 20B(a) exception is probably not available in civil commitment and §8B proceedings.
“[E]xception (a) . . . is intended to apply to a situation in which the patient is not institutionalized or is about to be discharged from an institution. It is not, we think, applicable to the case where the patient is already in the custody of State officials and where there has commenced a deliberate, orderly, judicially-supervised proceeding for determining whether he shall be committed. Exception (a) . . . also [applies when disclosure] is made for the purpose of placing the patient under arrest or under the supervision of law enforcement authorities. These three permitted purposes show the Legislature’s intention to dispense with the privilege when there is an imminent threat that a person who should be in custody will instead be at large. For any other purpose the privilege is to be maintained. The proviso indicates that after the patient is in a hospital the privilege is ordinarily to continue.” Commonwealth v. Lamb, 365 Mass. 265, 268 (1974) (in sexually dangerous person commitment proceedings under G.L. c. 123A, exception § 20B[a] not available, and only exception § 20B[b], which requires a Lamb warning, is available).
The § 20B(a) exception was also held unavailable in Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 526 (1986) (proceeding to extend juvenile commitment to Department of Youth Services past age 18 under G.L. c. 120, §§ 16-20), as well as in Matter of Laura L., 54 Mass. App. Ct. 853, 860 (2002) (3-day emergency mental health commitment under G.L. c. 123, § 12[e]). The Appeals Court noted in that case:
“We see no reason why similar safeguards should not apply here [in § 12(e) proceedings] . . . . Lamb puts to rest any doubts . . . and places all court-ordered examinations under the ambit of G. L. c. 233, § 20B(b) . . . . [A] valid disclosure at the ultimate commitment hearing may come only after Lamb warnings are given and the judge finds a knowing and voluntary waiver of the privilege. In this way, we read G. L. c. 233, § 20B, harmoniously with the involuntary commitment proceedings specified in G. L. c. 123, § 12(a) and (e), and avoid the constitutional difficulties posed when a person is examined and subsequently committed and deprived of liberty without due process based on otherwise privileged statements.” Id. at 858- 861 (citations and footnotes omitted).
See also Board of Registration in Medicine v. Doe, 457 Mass. at 745-746 (court lacks authority to create new exceptions to statutory privileges).
The § 20B(a) exception would additionally be unavailable in § 8B proceedings if the psychotherapist’s testimony does not meet the statutory prerequisite that it be “for the purpose of placing or retaining the patient in such hospital.”
The section 20B(b) exception for court-ordered examinations after a Lamb warning and waiver
The § 20B(b) exception to the psychotherapist privilege requires a patient notification and waiver that is commonly referred to as a “Lamb warning.”
“The policy of exception (b) is to permit a court to utilize expert psychiatric evidence by ordering an examination. In that situation, however, the statute recognizes that such court-initiated interviews entail certain risks for the person to be examined. It provides the procedural protection that notice is to be given if the privilege is not to apply in those circumstances. This protection seems particularly suitable for cases such as this where the patient runs the risk of commitment . . . depending on what he says in an interview which in the normal course of affairs would be accorded confidentiality. If we were to hold that this protection was denied patients because [court-ordered, custodial] psychiatric examinations . . . also were covered by exception (a), we would render nugatory the important policy objective of the statute evinced by the notice requirement in exception (b). Such an interpretation is to be avoided . . . .
“We construe G. L. c. 233, Section 20B, as preserving a patient’s rights to keep privileged any communications made to a court-appointed psychotherapist in the case of a court-ordered examination, absent a showing that he was informed that the communication would not be privileged and thus, inferentially, that it would be used at the commitment hearing. In so doing we avoid considering whether the use of such statements in the absence of such warnings infringes upon the rights of due process guaranteed by the Fourteenth Amendment of the United States Constitution.” Commonwealth v. Lamb, 365 Mass. at 269-270.
Giving a Lamb warning is effective to waive the psychotherapist privilege only if the respondent also makes a knowing and voluntary waiver of the privilege:
“Attendant to the requirement of warnings . . . is that any waiver be knowing and voluntary. When applied to a court-ordered examination pursuant to G. L. c. 123, § 12(e), subsequent to the issuance of a warrant of apprehension, a valid disclosure at the ultimate commitment hearing may come only after Lamb warnings are given and the judge finds a knowing and voluntary waiver of the privilege . . . .” Matter of Laura L., 54 Mass. App. Ct. at 858-861.
The court must inquire sua sponte and make findings if it appears that the respondent’s understanding of the Lamb warning may have been impaired or that his or her waiver of rights may not have been knowing and voluntary. Id. See also Adoption of Carla, 416 Mass. 510, 515 n.5 (1993) (doubtful that waiver valid where examiner refused to score tests or write report unless patient agreed to waiver).
It appears that the § 20B(b) exception to the psychotherapist privilege is applicable even to examinations that are not court-ordered if a Lamb warning was given and a knowing and voluntary waiver obtained. See Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986) (DYS psychiatrist). It should also be noted that certain mental health practitioners are separately required, either by statute or professional ethical standards, to inform a patient of any limitations upon the confidentiality accorded patient communications, such as in a subsequent judicial proceeding. See, e.g., G.L. c. 112, §§ 129A (psychologists) and 135A (social workers); American Psychological Association, Ethical Principles of Psychologists and Code of Conduct §§ 3.10, 4.02 and 10.01; American Psychiatric Association, Principles of Medical Ethics Applicable to Psychiatry § 4.
The following excerpt from the Massachusetts Guide to Evidence (2011 ed.) summarizes the law in this area as follows:
“Section 503. Psychotherapist-Patient Privilege
“ . . . . (b) Privilege. Except as hereinafter provided, in any court proceeding and in any proceeding preliminary thereto, and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist relative to the diagnosis or treatment of the patient’s mental or emotional condition. This privilege shall also apply to patients engaged with a psychotherapist in marital therapy, family therapy, or consultation in contemplation of such therapy. If a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his or her behalf under this section. A previously appointed guardian shall be authorized to so act.
“(c) Effect of Exercise of Privilege. Upon the exercise of the privilege granted by this section, the judge or presiding officer shall instruct the jury that no adverse inference may be drawn therefrom.
“(d) Exceptions. The privilege granted hereunder shall not apply to any of the following communications:
“(1) Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity. A disclosure made by a psychotherapist who, in the course of diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or that there is a threat of imminently dangerous activity by the patient against himself or herself or another person, and on the basis of such determination discloses such communication either for the purpose of placing or retaining the patient in such hospital, provided, however, that the provisions of this section shall continue in effect after the patient is in said hospital, or placing the patient under arrest or under the supervision of law enforcement authorities;
“(2) Court-Ordered Psychiatric Exam. A disclosure made to a psychotherapist in the course of a psychiatric examination ordered by the court, provided that such disclosure was made after the patient was informed that the communication would not be privileged, and provided further that such communications shall be admissible only on issues involving the patient’s mental or emotional condition but not as a confession or admission of guilt . . . .”