Session Laws

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

SECTION 1. Section 5 of chapter 123 of the General Laws, as appearing in the 1984 Official Edition, is hereby amended by inserting after the words "I.C.U.", in line 4, the words:- or for medical treatment including treatment with antipsychotic medication.

SECTION 2. Said chapter 123 is hereby further amended by inserting after section 8A the following section:-

Section 8B. (a) With respect to any patient who is the subject of a petition for a commitment or an order of commitment for care and treatment under the provisions of section seven, eight, fifteen, sixteen or eighteen, the superintendent of a facility or medical director of the Bridgewater state hospital may further petition the district court in whose jurisdiction the facility is located (i) to adjudicate the patient incapable of making informed decisions about proposed medical treatment, (ii) to authorize, by an adjudication of substituted judgment, treatment with antipsychotic medications, and (iii) to authorize according to the applicable legal standards such other medical treatment as may be necessary for the treatment of mental illness.

(b) A petition filed under this section 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 on the pending petition for commitment.

(c) Whenever a court receives a petition filed under the provisions of this section, such court shall notify the person, and his nearest relative or guardian of the receipt of such petition and of the date a hearing on such petition is to be held. 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.

(d) After a hearing on the petition regarding antipsychotic medication treatment, the court shall not authorize medical treatment unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan. The court may 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.

(e) The court may delegate to a guardian who has been duly appointed by a court of competent jurisdiction the authority to monitor the antipsychotic medication treatment process to ensure that an antipsychotic medication treatment plan is followed, provided such a guardian is readily available for such purpose. Approval of a treatment plan shall not be withheld, however, because such a guardian is not available to perform such monitoring. In such circumstances, the court shall monitor the treatment process to ensure that the treatment plan is followed.

(f) Any authorization for treatment that is ordered pursuant to the provisions of this section shall expire at the same time as the expiration of the order of commitment that was in effect when the authorization for treatment was ordered; provided that subsequent authorizations may be ordered and any party may at any time petition the court for modification of a medical treatment authorization that has been ordered pursuant to the standards and procedures established in this section.

(g) An adjudication of competency or incompetency with respect to treatment for mental illness by a court pursuant to this section shall be binding upon the probate court in any subsequent guardianship proceedings only with respect to matters which were the subject of the district court adjudication.

(h) Any privilege established by section one hundred and thirty-five of chapter one hundred and twelve or by section twenty B of chapter two hundred and thirty-three, relating to confidential communications, shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this section, for the purpose of obtaining treatment of a mentally ill or mentally retarded person, provided that such person has been informed prior to making such communications that they may be used for such purpose and has waived the privilege.

SECTION 3. Said chapter 123 is hereby further amended by striking out section 9, as so appearing, and inserting in place thereof the following section:-

Section 9. (a) Matters of law arising in commitment hearings, antipsychotic medication hearings or incompetency for trial proceedings in a district court may be reviewed by the appellate division of the district courts in the same manner as in civil cases generally.

(b) Any person may make written application to a justice of the superior court at any time and in any county, stating that he believes or has reason to believe that a person named in such application is retained in a facility or the Bridgewater state hospital, or the I.C.U. who should no longer be so retained, or that a person named in such application is the subject of a medical treatment order issued by a district court pursuant to section eight B and should not be so treated, giving the names of all persons interested in his confinement or medical treatment and requesting his discharge or other relief. The justice within seven days thereof shall order notice of the time and place for a hearing to be given to the superintendent or medical director or director of the I.C.U. and to such other persons as he considers proper; and such hearing shall be given promptly before a justice of the superior court in any county. The justice shall appoint an attorney to represent any applicant whom he finds to be indigent. The alleged mentally ill person may be brought before the justice at the hearing upon a writ of habeas corpus, upon a request approved by the justice. Pending the decision of the court such person may be retained in the custody of the superintendent or medical director or the director of the I.C.U. If the justice decides that the person is not mentally ill or that failure to retain the person in a facility or the Bridgewater state hospital would not create a likelihood of serious harm, or finds that the woman in the I.C.U. is not mentally ill; has not engaged in repeated and recent incidents of serious self-destructive behavior or assaultive behavior as an inpatient at a facility or an inmate of a place of detention; can be properly treated in any other facility licensed, operated or regulated by the department or a place of detention in the case of a woman under the sentence; and there is not a substantial likelihood that the woman's condition will continue to cause her to inflict serious harm upon herself or others, said person shall be discharged. If the justice decides that a patient at the Bridgewater state hospital does not require strict security, he shall be transferred to a facility. If the justice decides that a person who is the subject of a medical treatment order issued by a district court pursuant to section eight B should not be so treated, the justice shall issue an appropriate order modifying or vacating such order and, where such previous order is modified, the court shall monitor said modified order by means of a guardian or otherwise as provided in paragraph (e) of section eight B.