What is Massachusetts General Law Chapter 123, Section 35?
Section 35 is a Massachusetts law that allows a qualified person to request a court order requiring someone to be civilly committed and treated involuntarily for an alcohol or substance use disorder.
Is a Section 35 a good first treatment option?
No. Involuntary commitment should be the last option for treatment. If an individual is willing to enter treatment voluntarily, there are many private and public programs that are available that can provide treatment. If an individual feels they are part of making the decision to enter treatment, they often will be more receptive to it. Outcomes are often better if an individual is motivated and willing to engage in treatment, in the least restrictive environment. Often, just the threat of being committed will influence an individual to enter treatment voluntarily.
What are some other options?
There are many programs that can help family or friends learn more about addiction, the process of recovery, and how to best intervene. It is helpful for families, friends, and loved ones to learn about addiction and to understand the process of recovery. Many of the individuals that are committed return to their family and continue their treatment. Awareness of one’s role is a vital component of supporting their loved one’s recovery.
Can I have someone committed?
Only a qualified petitioner may request the court to commit someone to treatment under Section 35.
- Police officer
- Blood relative
- Court official
The petitioner must go to the local court and file a written petition or affidavit for an order of commitment. Petitions may be filed at any District or Juvenile Court, regardless of home residence of the person being petitioned.
What happens once a petition is filed with the court?
The court reviews the facts and decides whether to issue either a summons or a warrant of apprehension. If there are reasonable grounds to believe the person subject to the petition won’t appear voluntarily for a hearing, and that further delay would present an immediate physical danger to the person, a judge may issue a warrant for that person.
If summonsed, the person subject to the petition will receive an order to appear in court before a judge. If a warrant is issued, police officers will attempt to locate the person, take the person into custody, and deliver the person to the court for a commitment hearing. The warrant is valid for up to five consecutive days, excluding Saturdays, Sundays, and legal holidays, or until the person appears in court, whichever occurs first.
Once the person is at the court, they have the right to be represented by an attorney. If the court finds that the person cannot afford a lawyer, the court will immediately appoint an attorney.
At the court hearing, the court shall order an examination by a qualified physician, psychologist, or social worker. The person has a right to refuse the examination. The person’s attorney may present independent expert testimony or other testimony from family, friends, employers, and others concerned.
The court will hear the testimony and evidence from the exam and other evidence that relates to the case and then decide if the person meets the criteria for commitment.
After testimony and argument, the judge will decide if there is clear and convincing evidence that:
- The person has an alcohol or substance use disorder; and
- There is a likelihood of serious harm to self or others as a result of their substance use disorder
If both criteria are met, the person will be involuntarily committed. If one (or both) criteria are not met, the person will be released. A judge should order a commitment under Section 35 only when less restrictive alternatives are unavailable.
What is likelihood of serious harm?
The statute defines “likelihood of serious harm” as:
- A substantial risk of physical harm to the person himself/herself as manifested by evidence of threats of, or attempts at suicide or serious bodily harm; OR
- A substantial risk of physical harm to others as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; OR
- A very substantial risk of physical impairment or injury to the person himself/herself as manifested by evidence that such person’s judgment is so affected that he/she is unable to protect himself/herself in the community and that reasonable provision for his/her protection is not available in the community.
The “likelihood of serious harm” must be directly related to the substance use and must be a current or imminent threat.
What happens if the court orders the commitment?
If the judge grants the petition and orders the commitment, the individual will be returned to a holding cell to await transportation by the local Sheriff’s Department to the commitment facility. Transportation typically does not occur until after the courts close so the individual may wait several hours depending on what time their hearing was held.
Where may a person be civilly committed to?
The evaluator will make a recommendation to the judge as to which facility will provide the most appropriate level of services based on individual need and bed availability.
The following programs are approved to treat civil commitments:
- Men’s Addiction Treatment Center (MATC)
- Massachusetts Alcohol and Substance Abuse Center (MASAC)
- Stonybrook Stabilization and Treatment Centers (SSTC)
- Women’s Addiction Treatment Center (WATC)
- Women’s Recovery from Addictions Program – Taunton (WRAP)
- And, in some cases, designated public 24-Hour Diversionary Withdrawal Management
Will the commitment be for 90 days?
The statute states the commitment may be up to, but not exceed 90 days. The commitment may be less than the 90 days depending on the individual’s clinical needs and if they cease to meet the criteria for likelihood of serious harm to themselves.
If an individual no longer meets commitment criteria, can they remain in the program on a voluntary basis for continued treatment?
Yes. Length of commitment shouldn’t be confused with length of treatment episode, although if the individual does not meet the criteria for involuntary commitment, they may meet the criteria for continued care. All admissions are encouraged to continue in the treatment episode in the appropriate service setting.
Can one be transferred from one facility to another if a bed opens?
Individuals admitted to a facility will typically complete the commitment at that facility. Under certain circumstances, Section 35 programs may transfer patients to other programs based on their medical or psychiatric needs.
If an individual has court cases, will the programs hold them for the court appearance date?
The programs will not hold individuals specifically for court dates. If the individual ceases to meet commitment criteria, they must be released.
DPH programs do not have the statutory authority to hold individuals that have bail set by the courts.
The programs are not secure to the level required for custody for public safety reasons and are not intended to be an alternative sentence option.
If I don’t want the commitment to occur in a correctional facility, can I withdraw the petition?
Once the petition has been filed, it cannot be withdrawn without the permission of the court. If the commitment has been granted, it must occur regardless of what facility is designated.
Are there any other consequences to a commitment?
Yes. Section 35 of Chapter 123 now requires the courts to provide a commitments’ name, social security number, and date of birth to the department of criminal justice information services and the person will be prohibited from being issued a firearms identification card. This may be appealed under certain circumstance after 5 years.
Can the programs handle all kinds of medical needs?
No. Some individuals may have complicated medical conditions that cannot be appropriately treated in a civil commitment facility. They may require admission to a hospital-based program.
Can programs handle co-occurring mental health problems?
Yes. However, an individual with a psychiatric disorder requiring stabilization and/or management to enable treatment of the substance use disorder will be referred to a psychiatric hospital or committed under MGL Chapter 123 Section 12.
What kind of help will an individual receive?
Once admitted to a facility, an assessment will be completed regarding the person's need for withdrawal management. The length of time in a withdrawal management unit varies depending on the substance the individual is using, the amount of use, the time since their last use, and their overall health. Once withdrawal is complete, the individual will receive clinical support services and learn more about addiction, sobriety, and how to prevent relapse. Counselors and case managers will work with individuals to help them recognize the consequences of their addiction and hopefully motivate them to accept aftercare plans to continue their treatment.
The goal of the program is to have every client remain in treatment for as long as necessary. The level of care and length of stay is determined by an individual’s treatment needs and their progress in each level.
Will the Section 35 commitment make the individual stop using?
Recovery is a process and withdrawal is a start. It is important to understand that addiction is defined as a chronic, relapsing brain disease that is characterized by compulsive drug seeking and use despite harmful consequences. For some individuals, a civil commitment to treatment begins their recovery. Others do not see a need or have a willingness to address their alcohol or other drug use disorders. As with all behavior changes, they cannot be simply ordered, so the programs will work to provide education on substance use disorders, relapse prevention, and aftercare resources. Hopefully this will motivate the individual to want to take the next step in recovery.
- Recovery Resources
- Section 35: The Law (MGL 123, Section 35)
- Section 35 court forms
- The Massachusetts Substance Use Helpline
- The Substance Abuse and Mental Health Services Administration
- Committee for Public Counsel Services
- Massachusetts Organization for Addiction Recovery (MOAR)
- Mental Health Legal Advisory Committee
- Learn to Cope
- Allies in Recovery