6:00 Emergency 3-day commitments
Any person may file an application requesting the District Court to commit an allegedly mentally ill person to a mental health facility for a maximum of three days, if the failure to do so would cause a likelihood of serious harm by reason of mental illness. G.L. c. 123, § 12(e).
See Standards 1:01 and 2:00 for the definitions of “mental illness” and “likelihood of serious harm.” Mental illness is a substantial disorder of thought, mood, perception, orientation or memory that grossly impairs a person’s behavior, judgment, ability to recognize reality, or ability to meet the ordinary demands of life. (It does not include alcoholism or substance abuse.)
In general, “likelihood of serious harm” requires a finding that failure to hospitalize would pose a substantial risk of physical harm to the respondent or others, or a very substantial risk of physical harm to the respondent himself or herself because of his or her inability to protect himself or herself in the community.
Upon receipt of a § 12(e) application, the court must appoint counsel to represent the respondent.
If the respondent is not before the court and is unlikely to appear voluntarily, the judge may issue a warrant of apprehension to bring the respondent before the court “[a]fter hearing such evidence as [the judge] may consider sufficient . . . if in [the judge’s] judgment the condition or conduct of such person makes such action necessary or proper.”
When the respondent is before the court, the judge must have the person examined by a Designated Forensic Psychiatrist or Designated Forensic Psychologist. See Standard 1:01 for the definitions of those two terms.
If the Designated Forensic Psychiatrist or Designated Forensic Psychologist reports that the failure to hospitalize the respondent would create a likelihood of serious harm by reason of mental illness, the court may after hearing order the respondent committed to a mental health facility for a period not to exceed three days. The three-day period begins on the day after the order issues and does not include any intervening Saturday, Sunday or legal holiday. If the third day is a Saturday, Sunday or legal holiday, the next business day is considered the third day. G.L. c. 123, § 12(e); Mass. R. Civ. P. 6.
The superintendent of the facility may discharge the respondent at any time within the three-day period. G.L. c. 123, § 12(e).
Commentary
Apart from the emergency commitment procedure with court involvement (G.L. c. 123, § 12[e]) described in this Standard, in emergencies there are two additional admission procedures to mental health facilities, discussed below, that do not require court involvement: conditional voluntary admission (§§ 10 & 11) and involuntary admission by a medical or mental health professional or police officer (§ 12[a]-[b]).
Conditional voluntary admission (sections 10 and 11)
A person 16 years or older, or the parent of a minor, or certain persons or state agencies on a person’s behalf, may apply to the director of a mental health facility for admission on a voluntary basis. After an opportunity for consultation with an attorney, the application may be accepted if the applicant has the capacity to understand that he or she is voluntarily entering a psychiatric facility for treatment (but may refuse any particular treatment offered), and that he or she must give three days written notice in order to leave.
A person admitted on a voluntary basis may leave at any time upon giving written notice.
However, most facilities will only admit voluntary patients on a conditional basis under G.L. c. 123, §§ 10 & 11. These are commonly referred to as “conditional voluntary admissions” or “conditional voluntaries.” If the person is admitted on a conditional voluntary basis, the director may require three days written notice of intent to leave. During that three-day period, the director may petition the court to civilly commit the person involuntarily pursuant to §§ 7 & 8 and the person then may be retained at the facility until the petition is heard. G.L. c. 123, §§ 10-11. No person may be involuntarily admitted under § 12 unless he or she is first given an opportunity to apply for voluntary admission. § 12(c).
Involuntary admission by medical or mental health professional or by police officer (section 12[a]-[b])
Any licensed physician, psychiatric nurse mental health clinical specialist, psychologist, or independent clinical social worker who examines a person and has reason to believe that failure to hospitalize that person would create a likelihood of serious harm by reason of mental illness may restrain that person (or authorize his or her restraint) and apply for his or her hospitalization for a three-day period at a public mental health facility, or at a private mental health facility authorized by the Department of Mental Health for that purpose. If it is impossible to examine the person “because of the emergency nature of the case and because of the refusal of the person to consent to such examination,” the determination may be made “on the basis of the facts and circumstances.” Whenever practicable, the applicant must consult with the facility before transporting the person.
In an emergency situation in which none of the medical or mental health professionals listed above is available, a police officer who believes that failure to hospitalize a person would create a likelihood of serious harm by reason of mental illness may restrain the person and apply for his or her hospitalization for up to three days. G.L. c. 123, § 12(a); 104 Code Mass. Regs. § 33.02. If the application for admission is made by a Designated Physician (i.e., one who has been designated by a mental health facility with authority to admit to that facility) after a psychiatric examination, the person will be admitted immediately upon reception at the mental health facility. Otherwise, immediately upon reception at the facility, the person must be given a psychiatric examination by a designated physician, who may admit the person. § 12(b). See Standard 1:01 for the definition of the term “Designated Physician.”
6:01 Emergency hearings on whether 3-day admission resulted from abuse or misuse
A person who has been involuntarily admitted to a mental health facility for three days pursuant to G.L. c. 123, § 12(b):
“who has reason to believe that such admission is the result of an abuse or misuse of the provisions of [§ 12(b)], may request, or request through counsel an emergency hearing in the district court in whose jurisdiction the facility is located, and unless a delay is requested by the person or through counsel, the district court shall hold such hearing on the day the request is filed with the court or not later than the next business day.” G.L. c. 123, § 12(b), third par.
As long as the written request for an emergency hearing makes a minimal showing which is not patently frivolous that the person’s three-day admission may have resulted from misuse or abuse of the § 12(b) process, the court must hold an immediate hearing on the request on the same or the next court day. The hearing does not necessarily have to be an evidentiary one, depending on the abuse or misuse alleged, but the person is entitled to be present and to be heard. The court need not hold a hearing on a claim that is patently frivolous because facially irrelevant or undercut by firmly established law or undisputed facts.
The scope of the “abuse or misuse” that may be raised in an emergency hearing is not limited to denial of the specific procedural rights listed in § 12(b). That broad phrase serves as “a catch-all provision to include other circumstances that have resulted in a wrongful § 12(b) admission.”
It does not, however, encompass a challenge to the substance of the underlying clinical decision:
“These other circumstances do not include a challenge to the substance of the designated physician’s actual ‘determin[ation] that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness’ . . . . because the Legislature has already established an appropriate time to challenge that determination, namely, at the hearing afforded to a person when the hospital is seeking the person’s continued commitment beyond the three-day hospitalization.”
See Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 784-785 & n.13 (2008).
Commentary
The Magrini case developed from a hospital’s attempt to obtain a civil commitment under G.L. c. 123, §§ 7 & 8 for a person who had been subject to a three-day emergency admission under § 12. The District Court properly denied the petition because it was not timely filed within the three days, and ordered the patient discharged. Without ever releasing the patient, the hospital readmitted the patient under § 12. The patient then requested an emergency hearing, asserting that the hospital had used § 12 “to effectively countermand a court order [of] discharge.”
The Supreme Judicial Court agreed that the patient was entitled to a hearing and that the hospital’s actions were an “abuse or misuse” of § 12 because it had “never complied with the court order.” However, the opinion left open the substantive issue whether some form of immediate readmission after a discharge based on a procedural error is permissible, noting:
“This is not to say that a hospital could never recommit a person on a temporary basis. The statutory scheme does not prohibit such action, but that issue is not before us.” Id., 451 Mass. at 784 n.14.