| Date: | 02/23/2007 |
|---|---|
| Organization: | District Court |
| Referenced Sources: |
G.L. c. 123 § 7 G.L. c. 123 § 8 G.L. c. 123, §12(b) |
To: District Court Judges and Clerk-Magistrates
From: Hon. Lynda M. Connolly, Chief Justice
Subject: Scheduling Civil Commitment Hearings (G.L. c. 123, §§ 7-8) and Emergency Hearings (§ 12[b])
Clerk-Magistrates: Please distribute the additional copies of this memorandum to the court’s designated mental health scheduling coordinator and to his or her backup coordinator.
This memorandum describes the procedures to be followed in scheduling civil commitment hearings in mental health matters pursuant to G.L. c. 123, §§ 7-8. It also describes the procedures for emergency hearings requested by patients who allege that “abuse or misuse” of the provisions of G.L. c. 123, §12(b) resulted in their involuntary admission to a facility without court involvement.
This memorandum brings together in one place information previously distributed in a series of earlier memoranda from 2000-2005. (See Trans. 752, 754, 756, 757, 766, 800 and 878.) This memorandum consolidates and replaces those earlier transmittals; it does not include any new or different information.
The procedures below apply only to initial civil commitment proceedings under §§ 7-8. These may follow a court commitment under § 12(e), often after service of a warrant of apprehension. Alternately, they may follow an emergency admission without court involvement, either involuntarily under § 12(a) or (b), or as a “conditional voluntary” admission under §§ 10-11 or 12(c)-(d).
These procedures do not apply to:
The chart appended to this memorandum summarizes the hearing deadlines for each of the various types of civil commitment petitions.
When the court receives petitions for mental health commitments, it must act promptly to fulfill its statutory obligation to schedule timely hearings on those petitions. Those employees at each court who receive such commitment petitions, schedule hearings, and send notices of the hearings are key to that court’s ability to meet these obligations. Failure to perform these responsibilities properly may result in the release of persons who may be mentally ill and dangerous, but whose release is required by law if the hearings to which they are entitled are not timely provided.
Each court’s First Justice is responsible for designating a mental health scheduling coordinator (and a back-up) to coordinate the process. If the coordinator and back-up are employees of the Clerk’s Office, the designation decision should be coordinated with the ClerkMagistrate. A current list of these mental health scheduling coordinators is available to court personnel in the “Clerks” section of the District Court’s intranet website. This list is also provided to the Department of Mental Health and to Bridgewater State Hospital, private mental health facilities, and the Committee for Public Counsel Services (CPCS) Mental Health Litigation Unit by Regional Administrative Judge Rosemary B. Minehan, Chair of the District Court Committee on Mental Health and Substance Abuse. Please notify Faith L. Shannon at the Region 1 regional office (508-295-9100) of any corrections or changes to the list of mental health scheduling coordinators.
A mental health facility may hold a person involuntarily for a maximum of three business days before filing a petition for initial commitment under G.L. c. 123, §§ 7-8. G.L. c. 123, §§ 11 (voluntary conditional admissions), 12(d) (emergency admissions), 12 (e) (court-ordered commitments).
Civil commitment hearings must be commenced within five business days from the date of the filing of the petition for an initial commitment under G.L. c. 123, §§ 7-8. Failure to comply with this time limit requires that the respondent be discharged, unless the delay has been requested by the respondent or his or her counsel. Hashimi v. Kalil, 388 Mass. 607, 446 N.E.2d 1387 (1983).
As indicated above, the 5-day hearing deadline applies only to initial commitment petitions under §§ 7-8. It does not apply to subsequent recommitment hearings under §§ 7-8, which may result in a one-year commitment. Nor does it apply to hearings that arise in the context of criminal cases under G.L. c. 123, §§ 15(e), 16(b) and (c), or 18(a). Both recommitment hearings and hearings in the context of criminal matters are subject to a 14-day hearing deadline, unless an extension is requested by the person or his or her counsel. G.L. c. 123, § 7(c).
In order to comply with the 5-day time limit, each court must complete the following steps:
The mental health facility may file the petition by fax. The fax will be expressly directed to the mental health scheduling coordinator at the court. It is essential that an arrangement be in place to notify the scheduling coordinator of incoming faxed petitions immediately so that no time is lost while the petition remains in the fax in-basket. It is the responsibility of the scheduling coordinator (or the back-up coordinator) to receive faxed petitions and take the required actions. Receipt of the fax at the court constitutes “filing” for the purpose of beginning the 5-day time limit.
In addition to the information required to be set forth on the form “Petition for Commitment pursuant to G.L. c. 123, §§ 7-8,” mental health facilities have been requested to include two other items of information with the petition:
General Laws c. 123, § 7(c) provides that the 5-day time limit for commencing the hearing is determined in accordance with Mass. R. Civ. P. 6, which excludes the day on which the petition was filed and any intervening Saturday, Sunday and legal holiday. If the fifth day is a Saturday, Sunday or legal holiday, it too is excluded from the computation; the next business day is then considered the fifth day.
The first responsibility of the scheduling coordinator receiving the faxed petition is to determine the hearing date. There is a 2-day minimum period that must be allowed between the filing of a commitment petition and the hearing date in order to permit counsel for the respondent to prepare for the hearing. G.L. c. 123, § 5.
These time requirements are reflected in the following chart:
| 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 (Week 1) | Thursday (Week 1) | Tuesday (Week 2) | Thursday (Week 2) |
| Tuesday (Week 1) | 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 (Week 1) | Wednesday (Week 2) | Monday (Week 2) | Wednesday (Week 3) |
| Saturday (Week 1) | Wednesday (Week 2) | Monday (Week 2) | Wednesday (Week 3) |
| Sunday (Week 1) | Wednesday (Week 2) | Monday (Week 2) | Wednesday (Week 3) |
A court may fulfill both the 2-day minimum period and the 5-day maximum period by scheduling these hearings on the same two days of each week. Any of the following five combinations of days will satisfy both statutory requirements:
As indicated above, the 5-day hearing deadline applies only to initial §§ 7-8 commitment petitions. It does not apply to subsequent recommitment hearings, nor to hearings that arise in the context of a criminal case, which are subject to a 14-day hearing deadline.
The selection of a hearing date is dependent on when a judge will be available in that court for such hearings. Scheduling coordinators should consult with their court’s First Justice, who should in turn determine with the Regional Administrative Judge how much judge-time will be available for these hearings on particular dates.
Hearings under §§ 7-8 are normally held at the petitioning mental health facility. With the approval of the Regional Administrative Judge, hearings may be held at the court when circumstances require. First Justices should communicate with their Regional Administrative Judge on this issue as the need may arise.
After determining the date and place of the hearing, the scheduling coordinator must prepare a “Notice of Hearing on Petition(s) for Mental Health Commitment and/or Medical Treatment.” An interactive version of this notice is available to court personnel on the District Court intranet website. The notice should indicate the docket number and case caption (using the respondent’s name), the petitioner’s name, the name of respondent’s counsel (if one has already been appointed; this should appear on the information received from the facility), and the scheduled hearing date, time and location. The notice may be signed with a facsimile signature of the Clerk-Magistrate or an assistant clerk. G.L. c. 218, § 14; G.L. c. 221, § 17. Use only this Notice of Hearing form for scheduling the hearing. Do not use any other form for this notice.
Do not use this Notice of Hearing form to schedule “reviews.” If the court schedules a subsequent “judicial review” of an already-ordered commitment, another form of notice should be used, not the Notice of Hearing form.
When the Notice of Hearing form has been filled out, the scheduling coordinator must immediately send copies to:
The notice to CPCS and, if possible, to the petitioning facility must be sent by fax. Include a copy of the commitment petition with the copy faxed to CPCS. This is the most effective way to ensure that the respondent’s counsel receives a copy of the petition as soon as possible.
If the commitment petition arises in the context of a pending criminal case (and therefore involves a 14-day limit for the hearing date), a copy of the Notice of Hearing should also be sent to the respondent’s criminal defense attorney and to the District Attorney involved, if that information is known.
Complete and fax the notice as soon as possible on the same day the petition is received. Do not wait until the end of the day to fax the Notice of Hearing. Send the notice out as soon as the hearing date is assigned. Waiting until the end of the day is unfair and unworkable for CPCS personnel, because they have to make the individual attorney assignments as soon as possible, and they receive many such notices daily. If the notices are not faxed until the end of the day, CPCS staff must work into the evening to avoid losing a day in notifying counsel.
Scheduling coordinators must regard this responsibility as a priority. Back-up coordinators must also act on petitions promptly on any day that the regular scheduling coordinator is not at work. Delay in completing the notice form and sending it out can have serious legal consequences, including mandatory discharge of the respondent.
When the CPCS Mental Health Litigation Unit receives its copy of the Notice of Hearing by fax, it will then appoint and notify counsel for the respondent, in accordance with G.L. c. 211D, § 6(b). As noted above, where counsel has previously been appointed to represent the respondent on this petition (e.g., at the time of admission or at a previous § 12[e] hearing), the previously-appointed attorney should be sent a copy of the Notice of Hearing, and an additional copy should be faxed to CPCS.
The scheduling coordinator is responsible for adjusting the schedule when notified by the facility that a petition has been withdrawn or when the respondent requests a continuance of the hearing date.
When hearings are held at the petitioning facility, the scheduling coordinator’s final task is to ensure that the case files and hearing list are available for transportation to the facility on the day of the hearing. This will require coordination with the person responsible for bringing them to the facility on the hearing date.
When hearings are conducted at the courthouse, the scheduling coordinator should ensure that the appropriate person in the clerk’s office has the case files and hearing list in advance of that court session.
Any person who has been involuntarily admitted to a mental health facility by a physician under G.L. c. 123, § 12(b), and thus without prior court authorization, may request a prompt “emergency hearing” to determine whether his or her admission resulted from an “abuse or misuse” of the provisions of § 12(b).
In pertinent part, G.L. c. 123, § 12(b) provides:
“Any person admitted [involuntarily] under the provisions of this subsection, who has reason to believe that such admission is the result of an abuse or misuse of the provisions of this subsection, 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” (emphasis added).
There are several important features of this statute:
. . .
The focus of an emergency hearing is not on whether the admitting mental health professional made the “right” decision, but on whether the patient’s admission resulted from an “abuse or misuse” of the provisions of §12(b). Often the hearing will turn on whether there was a breach of the statutory procedural requirements. The hearing does not involve the issue of probable cause unless the patient’s claim is that the “abuse or misuse” of § 12(b) was that there was no reasonable basis for the admission decision.
The burden is on the patient to request (or to have counsel, if any, request) an emergency hearing.
The emergency hearing must be held in the district court in whose jurisdiction the facility is located and it must be held on the day the hearing is requested or not later than the next business day. The hearing may also be held at the facility. G.L. c. 123, § 5.
The following procedures for emergency hearings are recommended by the District Court Committee on Mental Health and Substance Abuse, and I request that you adhere to them.
A request for an emergency hearing under G.L. c. 123, § 12(b) shall be made on the “Request for Emergency Hearing after Involuntary Admission to Mental Health Facility (G.L. c. 123, § 12[b])” form, which is available in the “Forms” area of the District Court internet website. The completed request form should be filed by the patient or his or her attorney], if any, by fax or delivery to the District Court in whose jurisdiction the facility is located. The request shall
At the time of the filing of the request, a copy thereof shall be provided to the appropriate person at the admitting facility. The facility shall forthwith file with the court, by fax or delivery, a copy of the application for hospitalization, a copy of the admitting physician’s admission notes indicating the grounds for the admission decision and the time that the psychiatric examination was conducted, and an affidavit, signed under the pains and penalties of perjury, supporting any factual response to the allegations made by the patient in the request.
. . .
An emergency hearing must be conducted on the day the request is filed, if possible, or on the next business day. Unless the court orders otherwise, the hearing will be conducted at the court, and the patient must be transported thereto by the facility unless he or she waives the right to be present. The hearing may be conducted at the facility if the court is able to do so.
. . .
If the court finds that the admission resulted from abuse or misuse of one or more of the provisions of § 12(b), as alleged in the hearing request, the court should order the patient discharged forthwith. If the court does not so find, the patient will remain in the custody of the admitting facility for further proceedings, in accordance with applicable law.
If the court sustains the patient’s allegations in the emergency hearing, it appears that nothing would prevent the patient again being admitted under § 12(a) or (b), with the new admission process conducted in such a way as to cure whatever “abuse or misuse” had occurred during the earlier admission.
This chart summarizes the hearing deadlines for each of the various types of civil commitment petitions.
| Section of G.L. c. 123 | Type of commitment | Hearing deadline after filing of petition |
|---|---|---|
| §§ 7-8 | First (6 month) Petition for Civil Commitment | Within 5 days |
| §§ 7-8 | Subsequent (1 year) Petition for Civil Commitment | Within 14 days |
| § 8B(c) | Petition for Authorization to Treat Patient with Antipsychotic Medication | If coupled with commitment petition under §§ 7-8, 15, 16 or 18, same as commitment hearing. Otherwise, within 14 days. |
| § 11 | Petition for Civil Commitment under §§ 7 & 8 after “conditional voluntary” admission under § 10-11 | Within 5 days |
| § 12(b) | Emergency Petition by hospitalized person“who has reason to believe that such admission is the result of an abuse or misuse” of a 3 day admission under § 12(b) by a facility’s designated physician | “On the day the request is filed with the court or not later than the next business day” |
| § 12(d) | Petition for CivilCommitment under §§ 7 &8 after 3-day admission under § 12(a)-(b), or 3-day commitment under § 12(e) | Within 5 days |
| § 12(e) | Request for Warrant of Apprehension | Heard immediately when applicant is before court |
| § 12(e) | Petition for 3-Day Civil Commitment | Heard immediately when respondent is before court and examined |
| § 15(e) | Petition for Civil Commitment of Prisoner after Aid-in-Sentencing Examination | Within 14 days |
| § 16(b) | First Petition for Civil Commitment of Criminal Defendant found Incompetent or Not Guilty by Reason of Insanity | Within 14 days |
| § 16(c) | Subsequent Petition for Civil Commitment of Criminal Defendant found Incompetent or Not Guilty by Reason of Insanity | Within 14 days |
| § 18(a) | Initial Petition for Civil Commitment of Prisoner or Pretrial Detainee | Within 14 days |
| § 18(a) | Subsequent Petition for Civil Commitment of Prisoner or Pretrial Detainee | Within 14 days |
| § 35 | Commitment of Alcoholic or Substance Abuser | Heard immediately when respondent is before court and examined |
