Probate and Family Court Rules  Probate and Family Court Standing Order 4-11: Administrative process for uncontested Rogers reviews and extensions

In order to provide for the orderly and efficient administration of uncontested Rogers review cases and extensions, and for the convenience of Incapacitated Persons (hereinafter "IP") and other interested parties, all requests for review and/or extension of court orders authorizing the use of antipsychotic medications may be submitted to the Court for administrative allowance without a hearing where the requests are uncontested.

Unless otherwise ordered by the Court and subject to the terms and conditions stated below, uncontested requests for reviews and extensions of Rogers Orders shall be considered by Judicial Case Managers, Assistant Judicial Case Managers, or other designees of the First Justice of each Probate and Family Court Division (hereinafter collectively referred to as "judicial designees"). See Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983).

Initial petitions for guardianship seeking authority to administer antipsychotic medication to an IP shall be heard by a judge. Initial petitions and all annual reviews for wards (minors) shall also be heard by a judge.

The Administrative Process for Uncontested Rogers Reviews and Extensions shall be as follows:

An uncontested Motion to Extend and/or Amend an existing Treatment Order for a period not to exceed twelve (12) months may be allowed without a judicial hearing provided the following court-approved pleadings and documents have been filed, and are in proper order. The documents listed below shall constitute a completed package.

a. Motion to Extend and/or Amend Treatment Plan.

b. Motion to Waive Appearance of the IP brought by counsel for the IP.

c. Clinician's Affidavit and Treatment Plan completed by the IP's treating physician, certified psychiatric nurse clinical specialist, or other person(s) so authorized by law. The Clinician's Affidavit shall include any proposed changes in medication or dosage, the reasons therefore, and any possible side effects. No more than four (4) alternative and different class antipsychotic medications shall be permitted absent judicial approval. The affidavit must indicate that the examination of the IP was completed within sixty (60) days of the filing of the pleadings for administrative review.

d. Rogers Monitor's Report in accordance with the terms of the Appointment of Rogers Monitor. The Rogers Monitor is to meet with the IP a reasonable time prior to the review date. The Rogers Monitor is to provide a copy of the report to Petitioner and/or counsel, and to the IP's counsel, at least thirty (30) days prior to the review date.

e. Representations of Respondent's (IP's) Counsel indicating that counsel has met with the Respondent, reviewed the Clinician's Affidavit and the Monitor's Report, and that Respondent does not object to the proposed Order and Treatment Plan. Respondent's counsel shall list the date(s) s/he has seen the IP within the last 12 months. The lack of objection by Respondent's counsel to a proposed Treatment Plan shall not constitute a waiver or partial waiver of the attorney-client privilege.

f. A proposed Review Order which shall include the new treatment plan.

g. A Motion for Fees pursuant to Rudow v. Commissioner of the Division of Medical Assistance, 429 Mass. 218 (1999) may be presented for services, provided there is an Affidavit supporting the fees, and provided the Motion is assented to by Counsel for the IP.

Proposed changes to medication or dosage that offer increased treatment options for the IP, and that are assented to by the IP's counsel, may be considered by the judicial designee at the time of the extension of the Order without a judicial hearing.

If no changes to the original Treatment Plan are proposed other than those permitted in this standing order, and there is no contest, the treatment plan may be allowed as amended, or the previous treatment plan may be extended administratively, for up to twelve (12) months. The review date shall be the same as the expiration date of the Order. The newly approved Treatment Plan will expire twelve (12) months from the date of allowance, unless extended before then.

Upon completion of the review by the judicial designee, the filings will be submitted to the judge with a recommendation for allowance, or a recommendation that the matter be scheduled for a hearing before a judge.

If a completed uncontested package is filed within sixty (60) days of the expiration of a Treatment Plan Order, the matter may be considered for administrative allowance.

Any requests for renewal, extension, or amendment of a Treatment Plan Order filed more than sixty (60) days after the review date set in the most recent Order may be initiated by a Motion to Reinstate Rogers Authority, and must be presented to a judge.

Any interested party may seek judicial review at any time should circumstances warrant a hearing.

When deemed appropriate to do so, Orders may be entered nunc pro tunc; however, nunc pro tunc Orders shall only be issued at the discretion of a judge.