8:00 Filing a § 8B petition
A § 8B petition for medical treatment for mental illness of an incompetent patient may be filed only by the superintendent of a mental health facility or the medical director of Bridgewater State Hospital. G.L. c. 123, § 8B(a).
The petition must be filed in the court division in whose territorial jurisdiction the facility (or Bridgewater State Hospital) is located. Id.
The petition should be made on the appropriate District Court form and should allege:
- that the respondent has been committed, or is the subject of a petition for commitment, under G.L. c. 123, §§ 7 & 8, 15(e), 16 or 18;
- why the proposed treatment is necessary or appropriate;
- that the respondent is incapable of making an informed decision about the proposed treatment; and
- that the respondent, if competent, would accept the proposed treatment.
The petition must be accompanied by a proposed treatment plan sufficiently detailed to provide adequate notice to the respondent of the proposed medical treatment, and to enable the court to monitor the treatment if the petition is allowed.
The petition should explain the reasons for the proposed treatment and should list, briefly but specifically, the facts that support a finding that the respondent is incompetent to make an informed decision about the proposed treatment, as well as the factors that support a substituted judgment that the respondent, if competent, would agree to the proposed treatment.
Alternately, the petition may allege that the respondent, if competent, would refuse the proposed treatment, but there are State interests sufficient to override that refusal. Before the court may accept such a claim, normally an extensive hearing and careful development of both the factual record and legal precedent is essential.
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).
Commentary
As with petitions for civil commitment, the statutory term “superintendent of a facility” (§ 8B) refers to 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”), including the head of a psychiatric unit within a general hospital or other subsidiary psychiatric unit within a larger institution. See Bayridge Hosp. v. Jackson, 2010 Mass. App. Div. 12 (N. Dist.). The Medical Director of Bridgewater State Hospital 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 and the court may then “base its findings exclusively upon affidavits and other documentary evidence if it (i) determines, after careful inquiry and upon representations of counsel, that there are not contested issues of fact and (ii) includes in its findings the reasons that oral testimony was not required.” § 8B(d). For that reason, the petitioner should include in or with the petition sufficient specific factual evidence and information to support the petition if the hearing is waived.
Any petition must be based on a good faith belief that there is credible evidence that will satisfy all the criteria for allowing the petition. A petition may not be filed merely for administrative convenience. Although amendments to petitions may be allowed as a matter of judicial discretion, considerations of fairness and resources require that petitioners file only petitions that they believe to be factually sufficient. Where a deficient petition prevents the respondent from receiving adequate notice and the opportunity to prepare for the hearing, the court should dismiss the petition and require the petitioner to refile.
8:01 Time limits for filing § 8B petitions
A § 8B petition to authorize medical treatment for mental illness may be filed at the same time as a petition for commitment, or separately at any time during the respondent’s term of commitment.
If filed concurrently with a petition for commitment, the § 8B petition “shall be separate from any pending petition for commitment and shall not be heard or otherwise considered by the court unless the court has first issued an order of commitment” under G.L. c. 123, §§ 7 & 8, 15(e), 16 or 18. G.L. c. 123, § 8B(b).
The clerk-magistrate’s office must time-stamp and docket all petitions upon receipt.
8:02 Right to a hearing in § 8B proceedings
The court must hold a hearing to consider a § 8B petition to authorize medical treatment for mental illness unless the respondent waives the hearing. The hearing may not commence until the court has issued an order of commitment.
With the respondent’s consent, G.L. c. 123, § 8B(d) permits the court to “base its findings exclusively upon affidavits and other documentary evidence if it (i) determines, after careful inquiry and upon representations of counsel, that there are not contested issues of fact and (ii) includes in its findings the reasons that oral testimony was not required.” Although, with appropriate safeguards, hearings on affidavits are statutorily authorized, in most cases the court should take advantage of the additional benefits from having the parties and witnesses present before the court.
Commentary
An § 8B petition “shall not be heard or otherwise considered by the court unless the court has first issued an order of commitment.” G.L. c. 123, § 8B(b).
The court should presume that the hearing will include live testimonial evidence, unless respondent’s counsel requests that the evidence be presented by affidavit. While § 8B appears to indicate that it is in the court’s discretion whether to resolve the petition without hearing and “exclusively upon affidavits and other documentary evidence” if there are no contested issues of fact, the court’s discretion is limited by G.L. c. 123, § 5, which guarantees the respondent an opportunity to present independent testimony in all cases.
In Guardianship of Erma, 459 Mass. 801, 805 n.7 (2011), the Supreme Judicial Court declined on mootness grounds to consider whether the Probate Court’s identical statutory authority to make substituted judgments “exclusively upon affidavits and other documentary evidence” (G.L. c. 190B, § 5-306A [d]) violates due process.
A hearing by affidavit requires the court preliminarily to determine that no factual issues are contested, after consultation with counsel. § 8B(d). The court should make careful inquiry about this, so that a hearing by affidavit does not diminish the adversarial nature of the proceeding. If the court decides to resolve the petition exclusively on affidavits, it must include in its findings the reasons that oral testimony was dispensed with. Id.
A hearing by affidavit requires the same quantum and reliability of evidence as a determination on live testimony, and is subject to the same rules of evidence. See Standards 10:02 (Hearsay in § 8B Hearings), 10:03 (Lay and Expert Witnesses in § 8B Hearings) and 10:04 (Privileged Communications to Clinicians in § 8B Hearings). A hearing by affidavit must also conform to the statutory requirements governing notice (Standard 8:05), timely commencement of hearing (Standard 8:04), and other procedural matters.
While permissible, hearings on affidavits should generally be discouraged. They do not permit the court to ask questions and observe witnesses during examination and cross-examination, or readily allow follow-up questions or clarification. Some § 8B petitions, particularly those to which the respondent does not object after consultation with counsel, may be relatively straightforward and appropriate for determination on affidavits. For contested, doubtful or complex issues, however, the court should carefully consider whether devoting the additional time required for a hearing with live testimony is appropriate, given the importance of the matters at issue.
8:03 Right to counsel in § 8B proceedings
The legal requirements and District Court standards that apply to civil commitment proceedings in this area also apply to G.L. c. 123, § 8B proceedings. See Standard 3:03.
8:04 Time limits for § 8B hearings
The hearing on a § 8B petition that is filed concurrently with a petition for commitment must be commenced on the same day that the hearing on the commitment petition concludes, unless a continuance is granted at the request of the respondent or respondent’s counsel. G.L. c. 123, § 8B(c).
The hearing on a § 8B petition concerning an already committed respondent 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. In scheduling such a 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. The 14-day deadline should be calculated in accordance with Mass. R. Civ. P. 6.
A hearing is not “commenced” when the court and the parties gather, but only when a witness is sworn or some evidence taken.
Commentary
“We are certain that every judge recognizes that in any case where there is a possibility of immediate, substantial, and irreversible deterioration of a serious mental illness, even the smallest of avoidable delays would be intolerable.” Guardianship of Roe, 383 Mass. 415 , 441 (1981).
All parties benefit from swift resolution of the treatment issues presented in a § 8B proceeding. Observance of these time requirements not only furthers that interest but is required by statute.
“The hearing shall be commenced within fourteen days of the filing of the petition unless a delay is requested by the person or his counsel, provided that the commencement of such hearing shall not be delayed beyond the date of the hearing on the commitment petition if the petition was filed concurrently with a petition for commitment.” G.L. c. 123, § 8B(c). The mere “calling” of a case does not constitute “commencement” for purposes of compliance with the statutory deadline. Rather, a hearing is “commenced” only when a witness is sworn or some evidence taken. Melrose-Wakefield Hosp. v. H.S., 2010 Mass. App. Div. 247, 250 (N. Dist.)
Although the Massachusetts Rules of Civil Procedure are not generally applicable to civil commitment proceedings, see Mass. R. Civ. P. 81, the provisions of G.L. c. 123, § 7(c) require that the 5-day or 14-day time limits for hearing a petition for civil commitment “under the provisions of [§ 7] shall be computed pursuant to Rule 6 of the Massachusetts Rules of Civil Procedure.” 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. There is no comparable reference to Rule 6 in § 8B, but it is unlikely that a different rule was intended for calculating the 14-day deadline for a § 8B petition concerning an already committed respondent. See also G.L. c. 4, § 9 (when statutory deadline falls on Sunday or legal holiday, act may be done on next succeeding business day).
Since the time requirements set out in G.L. c. 123 are mandatory, a § 8B petition must be dismissed if the hearing is not commenced within the statutorily mandated deadlines for commencing the hearing. Cf. Hashimi v. Kalil, 388 Mass. 607 (1983) (§ 7[c] deadlines for commitment hearings).
Note that the urgency reflected in the statutory time limit for commencing the hearing can be subverted if the completion of a timely-begun hearing is delayed by unwarranted continuances. See Standards 3:06 (Continuances) and 8:06 (Continuances of § 8B Hearings).
8:05 Notice of § 8B hearings
The legal requirements and District Court standards applicable to civil commitment proceedings in this area also apply to G.L. c. 123, § 8B proceedings. See Standard 3:05.
8:06 Continuances of § 8B hearings
The court may not allow a continuance that prevents the hearing from commencing within the required time period unless the request is made by or agreed to by the respondent or respondent’s counsel. See Standard 8:04 (Time Limits for § 8B 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.
Commentary
“We are certain that every judge recognizes that in any case where there is a possibility of immediate, substantial, and irreversible deterioration of a serious mental illness, even the smallest of avoidable delays would be intolerable.” Guardianship of Roe, 383 Mass. 415 , 441 (1981).
Because competing interests of personal liberty and treatment for mental illness are at stake, the court must conduct its § 8B inquiry with the utmost care and expedition. Any delay in hearing or determining a § 8B petition may prevent the resolution of important treatment decisions. For that reason, the court should generally decide a § 8B petition on the same day as the hearing. If a lengthier trial is anticipated, the parties should inform the court prior to the hearing so that additional court time can be made available.
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. Apart from obvious emergencies beyond the parties’ control, some discretionary continuances may be in the respondent’s best interests – e.g., for additional discovery about side effects or alternatives to the proposed treatment, or if a respondent’s rapidly improving condition suggests that a short continuance might obviate the need for the proposed medication.
8:07 Independent clinical examination in § 8B proceedings
The legal requirements and District Court standards applicable to civil commitment proceedings in this area also apply to G.L. c. 123, § 8B proceedings. See Standard 3:07.
8:08 Discovery in § 8B proceedings
The legal requirements and District Court standards applicable to civil commitment proceedings in this area also apply to G.L. c. 123, § 8B proceedings. See Standard 3:08.