HOUSE . . . . . . . . . . . . . . . No. 4279
Message from His Excellency the Governor recommending legislation relative to reforming the delivery of forensic mental health services. |
The Commonwealth of Massachusetts
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In the Year Two Thousand Fourteen
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An Act reforming the delivery of forensic mental health services.
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 7 of Chapter 19, as appearing in the 2012 Official Edition, is hereby amended by inserting after the first paragraph the following paragraphs:–
Subject to appropriation, the commissioner shall establish and designate one or more state facilities, or units thereof, as an enhanced security facility to be operated in accordance with section 16A of this chapter, the provisions of chapter 123 and regulations of the department. An enhanced security facility shall provide forensic services for individuals committed for evaluation or treatment pursuant to sections 15 through 18 of chapter 123, as well as continuing care inpatient services for individuals determined to require enhanced security in accordance with the regulations of the department. An enhanced security facility shall have the capacity to provide a secure treatment environment for adults and adolescents, and shall include provisions for the appropriate separation of patient populations according to age and gender. An enhanced security facility shall provide appropriate levels of security to provide for public safety as well as the safety of patients and staff therein as determined by the department, provided, however, that an enhanced security facility is not a strict security correctional facility.
The department shall adopt regulations for the operation of an enhanced security facility.
SECTION 2. Chapter 19 of the General Laws, as so appearing, is hereby amended by inserting after section 16 the following section:–
Section 16A. The department shall develop and maintain, subject to appropriation and in accordance with its standards, a division of forensic mental health services to provide forensic services that shall include, but shall not be limited to: court-ordered evaluations of competence to stand trial, criminal responsibility, and aid-in-sentencing; programs and services for restoration of competence for individuals who have been adjudicated incompetent to stand trial; evaluations of need for care and treatment for individuals who have been adjudicated incompetent to stand trial, not guilty by reason of mental illness or who are being held in correctional facilities or places of detention; the setting of standards for and certification of clinicians qualified to perform evaluations; and specialized risk assessment evaluations; and the establishment and maintenance of court clinics for the performance of clinical consultations and court-ordered evaluations. Forensic services may also include, but shall not be limited to: programs and services for police and pre-trial diversion; post adjudication alternatives to incarceration, including specialty court services; and re-entry.
The division shall give major consideration to the development of forensic health services that can be provided in the community or in settings other than an inpatient facility.
SECTION 3. Chapter 123 of the General Laws is hereby amended by striking out section 1, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:–
Section 1. The following words as used in this section and sections two to thirty-seven, inclusive, shall, unless the context otherwise requires, have the following meanings:
“Commissioner”, the commissioner of mental health.
“Department”, the department of mental health.
“Dependent funds”, those funds which a resident is unable to manage or spend himself as determined by the periodic review.
“District court”, the district court within the jurisdiction of which a facility is located, and shall include the Boston municipal court and juvenile court as applicable.
“Enhanced security facility”, a public facility, or units within a public facility, for the care and treatment of persons with mental illness, except for the Bridgewater State Hospital, designated by the department to provide forensic services and continuing care services for individuals determined to require enhanced security in accordance with the regulations of the department. An enhanced security facility provides appropriate levels of security to provide for the public safety and the safety of persons, including patients and staff, therein, as determined by the department; provided, however, that an enhanced security facility is not a strict security correctional facility.
“Facility”, a public or private facility for the care and treatment of persons with mental illness, specifically including any enhanced security facility and specifically excluding the Bridgewater State Hospital.
“Fiduciary”, any guardian, conservator, trustee, representative payee as appointed by a federal agency, or other person who receives or maintains funds on behalf of another.
“Forensic Services”, include but are not limited to: court ordered evaluations of competence to stand trial, criminal responsibility, and aid-in-sentencing; programs and services for restoration of competence for individuals who have been adjudicated incompetent to stand trial; and evaluations of need for care and treatment for individuals who have been adjudicated incompetent to stand trial, not guilty by reason of insanity or who are being held in correctional facilities awaiting trial.
“Funds”, all cash, checks, negotiable instruments or other income or liquid personal property, and governmental and private pensions and payments, including payments pursuant to a Social Security Administration program.
“Independent funds”, those funds which a resident is able to manage or spend himself as determined by the periodic review.
“Licensed mental health professional”, any person who holds himself out to the general public as one providing mental health services and who is required pursuant to such practice to obtain a license from the commonwealth.
“Likelihood of serious harm”, (1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons 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 (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.
“Patient”, any person with whom a licensed mental health professional has established a mental health professional-patient relationship.
“Psychiatric nurse”, a nurse licensed pursuant to section seventy-four of chapter one hundred and twelve who specializes in mental health or psychiatric nursing.
“Psychiatrist”, a physician licensed pursuant to section two of chapter one hundred and twelve who specializes in the practice of psychiatry.
“Psychologist”, an individual licensed pursuant to section one hundred and eighteen to one hundred and twenty-nine, inclusive, of chapter one hundred and twelve.
“Qualified physician”, a physician who is licensed pursuant to section two of chapter one hundred and twelve who is designated by and who meets qualifications required by the regulations of the department; provided that different qualifications may be established for different purposes of this chapter. A qualified physician need not be an employee of the department or of any facility of the department.
“Qualified psychiatric nurse mental health clinical specialist”, a psychiatric nurse mental health clinical specialist authorized to practice as such under regulations promulgated pursuant to the provisions of section eighty B of chapter one hundred and twelve who is designated by and meets qualifications required by the regulations of the department, provided that different qualifications may be established for different purposes of this chapter. A qualified psychiatric nurse mental health clinical specialist need not be an employee of the department or of any facility of the department.
“Qualified psychologist”, a psychologist who is licensed pursuant to sections one hundred and eighteen to one hundred and twenty-nine, inclusive, of chapter one hundred and twelve who is designated by and who meets qualifications required by the regulations of the department, provided that different qualifications may be established for different purposes of this chapter. A qualified psychologist need not be an employee of the department or of any facility of the department.
“Reasonable precautions”, any licensed mental health professional shall be deemed to have taken reasonable precautions, as that term is used in section thirty-six B, if such professional makes reasonable efforts to take one or more of the following actions as would be taken by a reasonably prudent member of his profession under the same or similar circumstances:--
(a) communicates a threat of death or serious bodily injury to the reasonably identified victim or victims;
(b) notifies an appropriate law enforcement agency in the vicinity where the patient or any potential victim resides;
(c) arranges for the patient to be hospitalized voluntarily;
(d) takes appropriate steps, within the legal scope of practice of his profession, to initiate proceedings for involuntary hospitalization.
“Restoration Services”, education and treatment provided by the department to assist an individual who has been found incompetent to stand trial attain or regain the skills necessary to become competent to stand trial.
“Restraint”, bodily physical force, mechanical devices, chemicals, confinement in a place of seclusion other than the placement of an inpatient or resident in his room for the night, or any other means which unreasonably limit freedom of movement.
“Social worker”, an individual licensed pursuant to sections one hundred and thirty to one hundred and thirty-two, inclusive, of chapter one hundred and twelve.
"Strict security correctional facility”, a public facility for the evaluation, care and treatment of persons committed pursuant to section 15(e) or 18 of this chapter operated by the department of corrections that provides a level of security equivalent to at least a medium security prison.
“Superintendent”, the superintendent or other head of a public or private facility.
SECTION 4. Chapter 123 of the General Laws is hereby amended by striking out section 3, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:–
The department may transfer any person from any facility, including an enhanced security facility, to any other facility which the department determines is suitable for the care and treatment of such person; provided that no transfer to a private facility shall occur except with the approval of the superintendent thereof; and provided further that no person may be transferred to an enhanced security facility unless the commissioner or designee has determined in accordance with regulations of the department that, considering the safety of the person, other patients, staff or the public, the person requires treatment in a setting of enhanced security. At least six days before a transfer from a facility occurs, the superintendent shall give written notice thereof to the person and to the nearest relative, unless said person knowingly objects, or guardian of such person; provided, however, if the transfer must be made immediately because of an emergency, such notice shall be given within twenty-four hours after the transfer. Except in emergency cases, no person who at any time prior to transfer has given notice of his intention to leave a facility under the provisions of section eleven shall be transferred until a final determination has been made as to whether such person should be retained in a facility.
SECTION 5. Chapter 123 is hereby amended by striking out section 6, as appearing in the 2012 Official Addition, and inserting in place thereof the following section:–
(a) No person shall be retained at a facility or at the Bridgewater state hospital except under the provisions of paragraph (a) of section ten, the provisions of paragraphs (a), (b), and (c) of section twelve, paragraph (e) of section sixteen and section thirty-five or except under a court order or except during the pendency of a petition for commitment. A court order of commitment to a facility or to the Bridgewater state hospital shall be valid for the period stipulated in this chapter or, if no such period is so stipulated, for one year. A petition for the commitment of a person may not be issued except as authorized under the provisions of this chapter.
(b) Following the filing of a petition for commitment to a facility or to the Bridgewater state hospital, a hearing shall be held unless the hearing is waived in writing by the person after consultation with his counsel and the waiver is accepted by the court. In the event the hearing is waived, the person may request a hearing for good cause shown at any time during the period of commitment.
SECTION 6. Section 7 of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out, in line 2, the words “or the division of the juvenile court department.”
SECTION 7. Section 7 of chapter 123 of the General Laws, as so appearing, is hereby amended by striking out paragraph (b) and inserting in place thereof the following paragraph:–
(b) The medical director of the Bridgewater state hospital, the commissioner of mental health, or with the approval of the commissioner of mental health, the superintendent of a facility, may petition the court in whose jurisdiction the facility or hospital is located for the commitment to the Bridgewater state hospital of any male patient at said facility or hospital, who is at the time of the petition convicted of a crime and committed pursuant to paragraph (e) of section 15 or convicted of a crime and serving a sentence and committed pursuant to section 18, when it is determined that the failure to hospitalize in a strict security correctional facility would create a serious risk to the safety of the person, other patients, staff or the public.
SECTION 8. Chapter 123 is hereby amended by striking out section 8, as appearing in the 2012 Official Addition, and inserting in place thereof the following section:–
Section 8. (a) After a hearing, unless such hearing is waived in writing, the court shall not order the commitment of a person at a facility or shall not renew such order unless it finds after a hearing that (1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm.
(b) After a hearing on a petition filed pursuant to section 18, unless such hearing is waived in writing, the district court shall not order the commitment of a person at the Bridgewater state hospital or shall not renew such order unless it finds that such person: (1) is serving a criminal sentence; (2) has a mental illness; (3) would create a likelihood of serious harm if discharged from a facility; (4) is not a proper subject for commitment to any facility of the department, including an enhanced security facility; and (5) would create a serious risk to the safety of the person, other patients, staff or the public if not retained in a strict security correctional facility. If the court is unable to make the findings required by this paragraph, but makes the findings required by paragraph (a), the court shall order the commitment of the person to a facility designated by the department.
(c) The court shall render its decision on the petition within ten days of the completion of the hearing, provided, that for reasons stated in writing by the court, the administrative justice for the district court department may extend said ten day period.
(d) The first order of commitment of a person under this section shall be valid for a period of six months and all subsequent commitments shall be valid for a period of one year; provided that if such commitments occur at the expiration or termination of a commitment under any other section of this chapter, other than a commitment for observation, the first order of commitment shall be valid for a period of one year; and provided further, that the first order of commitment to the Bridgewater state hospital of a person under commitment to a facility shall be valid for a period of six months. If no hearing is held before the expiration of the six months commitment, the court may not recommit the person without a hearing.
(e) In the event that the hearing is waived and on the basis of a petition filed under the authority of this chapter showing that a person is mentally ill and that the discharge of the person from a facility would create a likelihood of serious harm, the court which has jurisdiction over the commitment of the person may order the commitment of the person to such facility.
(f) In the event that the hearing is waived and on the basis of a petition filed under the authority of 18 of this chapter showing that a person: (1) is serving a criminal sentence; (2) has a mental illness; (2) would create a likelihood of serious harm if discharged from a facility; (3) such person is not a proper subject for commitment to any facility of the department, including an enhanced security facility; (4) is not a proper subject for commitment to any facility of the department, including an enhanced security facility; and (5) would create serious risk to the safety of the person, other patients, staff or the public if not retained in a strict security correctional facility, the court with jurisdiction over the criminal case, or a facility, as applicable, or the Brockton district court if a person is retained in the Bridgewater state hospital, may order the commitment of the person to said hospital.
SECTION 9. Section 9 of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out paragraph (b) and inserting in place thereof the following paragraph:–
(b) Any person may make written application to a justice of superior court at any time in the county with jurisdiction over the facility 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, 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 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 hearing to be given to the superintendent or medical director and to such other persons as he considers proper; and such hearing shall be given promptly before a justice of the superior court with jurisdiction over the facility. 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. 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 by reason of mental illness, said person shall be discharged. If the justice decides that a patient at the Bridgewater state hospital has a mental illness and that failure to retain the person in a facility would create a likelihood of serious harm by reason of mental illness, but does not require treatment in a strict security correctional facility, he shall be transferred to a facility designated by the department. If the justice decides that a person who is the subject of a medical treatment order issued pursuant to section 8B should not be treated in accordance with such order, 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 8B.
SECTION 10. Section 12 of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:–
(a) Any physician who is licensed pursuant to section 2 of chapter 112 or qualified psychiatric nurse mental health clinical specialist authorized to practice as such under regulations promulgated pursuant to the provisions of section 80B of said chapter 112 or a qualified psychologist licensed pursuant to sections 118 to 129, inclusive, of said chapter 112, or a licensed independent clinical social worker licensed pursuant to sections 130 to 137, inclusive, of chapter 112 who, after examining a person, has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness may restrain or authorize the restraint of such person and apply for the hospitalization of such person for a 3-day period at a public facility or at a private facility authorized for such purposes by the department; provided however that no person shall be admitted to a public facility under this section unless such admission is authorized by the commissioner or designee. If an examination is not possible because of the emergency nature of the case and because of the refusal of the person to consent to such examination, or in an emergency situation where an examination cannot be accomplished within a reasonable period of time, but the facts and circumstances are conveyed by a licensed mental health professional who has personally observed the person,, the physician, qualified psychologist, qualified psychiatric nurse mental health clinical specialist or licensed independent clinical social worker on the basis of the facts and circumstances may determine that hospitalization is necessary and may apply therefore. In an emergency situation, if a physician, qualified psychologist, qualified psychiatric nurse mental health clinical specialist or licensed independent clinical social worker is not available, a police officer, who believes that failure to hospitalize a person would create a likelihood of serious harm by reason of mental illness may restrain such person and apply for the hospitalization of such person for a 3-day period at a public facility or a private facility authorized for such purpose by the department. An application for hospitalization shall state the reasons for the restraint of such person and any other relevant information which may assist the admitting physician or physicians. Whenever practicable, prior to transporting such person, the applicant shall telephone or otherwise communicate with a facility to describe the circumstances and known clinical history and to determine whether the facility is the proper facility to receive such person and also to give notice of any restraint to be used and to determine whether such restraint is necessary.
SECTION 11. Section 12 of chapter 123, as so appearing, is hereby amended by striking out paragraph (e) and inserting in place thereof the following paragraph:
(e) Any person may make application to a justice of the district court for a three day commitment to a facility of a mentally ill person whom the failure to confine would cause a likelihood of serious harm. The court shall appoint counsel to represent said person. After hearing such evidence as he may consider sufficient, the justice may issue a warrant for the apprehension and appearance before him of the alleged mentally ill person, if in his judgment the condition or conduct of such person makes such action necessary or proper. Following apprehension, the court shall have the person examined by a physician designated to have the authority to admit to a facility or examined by a qualified psychologist in accordance with the regulations of the department. If said physician or qualified psychologist reports that the failure to hospitalize the person would create a likelihood of serious harm by reason of mental illness, the court may order the person committed to a public facility or to a private facility authorized for such purposes by the department for a period not to exceed 3 days; provided however that no person shall be admitted to a public facility under this section unless such admission is authorized by the commissioner or designee; and provided further that the superintendent may discharge him at any time within the three day period. The periods of time prescribed or allowed under the provisions of this section shall be computed pursuant to Rule 6 of the Massachusetts Rules of Civil Procedure.
SECTION 12. Section 13 of chapter 123 of the General Laws is hereby repealed.
SECTION 13. Chapter 123 of the General Laws is hereby amended by striking out section 14, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:–
Whenever the medical director of the Bridgewater state hospital certifies that the failure to retain any person in a strict security facility would not create an serious risk to the safety of the person, other patients, staff or the public, but that such person is in need of further care and treatment in a facility, he shall bring the matter before the court for a determination of whether the person should be transferred to a facility designated by the commissioner or designee.
SECTION 14. Chapter 123 of the General Laws is hereby amended by striking out section 15, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:–
(a) Whenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial or is criminally responsible by reason of mental illness or mental defect, it may at any stage of the proceedings after the return of an indictment or the issuance of a criminal complaint against the defendant, order an examination of such defendant to be conducted by one or more qualified physicians or one or more qualified psychologists. Whenever practicable, examinations shall be conducted at the court house or place of detention where the person is being held and determinations of competence to stand trial made following this initial examination. When an examination is ordered, the court shall instruct the examining physician or psychologist in the law for determining mental competence to stand trial and criminal responsibility.
(b) If, after the examination described in paragraph (a), the court has reason to believe that further observation and examination are necessary in order to determine whether mental illness or mental defect have so affected a person that he is not competent to stand trial or not criminally responsible for the crime or crimes with which he has been charged, the court may order that the person undergo further examination to be conducted by one or more qualified physicians or psychologists: (1) in the community as a condition of recognizance or at the place of detention if the person is held in lieu of bail or following a determination of dangerousness, such examination to be completed within 20 days or such longer period as the court may order; (2) in a facility for a period not to exceed 20 days for observation and further examination; provided however that no person shall be hospitalized unless the examining physician or psychologist reports that the failure to hospitalize the person would create a likelihood of serious harm by reason of mental illness or provides a substantial basis for a finding that hospitalization is necessary to further examine the defendant and determine whether he has a mental illness. Copies of the complaints or indictments and the physician’s or psychologist’s report under paragraph (a) shall be delivered to the qualified physician or psychologist conducting the examination or to the facility with the person. If, before the expiration of such 20 day period, an examining qualified physician or an examining qualified psychologist believes that examination and observation for more than 20 days is necessary, he shall so notify the court and shall request in writing an extension of the 20 day period, specifying the reason or reasons for which such further period of time is necessary. Upon the receipt of such request, the court may extend said observation period, but in no event shall the period exceed 40 days from the date of the initial court order of for evaluation; provided, however, if a person who has been hospitalized pursuant to this section requests continued care and treatment during the pendency of the criminal proceedings against him and the superintendent or medical director agrees to provide such care and treatment, the court may order the further hospitalization of such person at a facility designated by the department.
(c) At the conclusion of the examination or the observation period, the examining physician or psychologist shall forthwith give to the court written signed reports of their findings, including the clinical findings bearing on the issue of competence to stand trial, the basis for any opinion regarding the defendant’s competence to stand trial and findings relating whether there is a substantial probability that the defendant can be restored to competence within a reasonable period of time, or criminal responsibility. Such reports shall also contain an opinion, supported by clinical findings, as to whether the defendant is in need of treatment and care offered by the department.
(d) If on the basis of such reports the court is satisfied that the defendant is competent to stand trial, the case shall continue according to the usual course of criminal proceedings; otherwise the court shall hold a hearing on whether the defendant is competent to stand trial; provided that at any time before trial any party to the case may request a hearing on whether the defendant is competent to stand trial. A finding of incompetency shall require a preponderance of the evidence. If the defendant is found incompetent to stand trial, trial of the case shall be stayed until such time as the defendant becomes competent to stand trial, unless the case is dismissed. Restoration services shall be delivered until a determination by the court with input from a qualified psychologist or psychiatrist who has examined the person’s competence to stand trial, that there is no substantial likelihood that the person is able to attain the skills necessary for competence to stand trial. Such restoration services shall not exceed one year unless a the court finds, based on a clinical opinion, that the person has made progress towards restoration and that there continues to be a substantial likelihood that the person can be restored to competence within a reasonable period of time. For individuals for whom restoration is not obtained, dismissal of the matter should be considered consistent with paragraph (f) of section 16.
(e) After a finding of guilty on a criminal charge, and prior to sentencing, the court may order a psychiatric or other clinical examination to be conducted at the court or place of detention and, after such examination, it may also order a period of observation in an enhanced security facility, or at the Bridgewater state hospital, but only if such person is male, the court determines that failure to retain him in a strict security correctional facility would create a serious risk to the safety of the person, other patients staff or the public. The purpose of such observation or examination shall be to aid the court in sentencing. Such period of observation or examination shall not exceed forty days. During such period of observation, the superintendent or medical director may petition the court for commitment of such person. The court, after imposing sentence on said person, may hear the petition as provided in section eighteen, and if the court makes necessary findings as set forth in section eight, it may in its discretion commit the person to a facility designated by the department or the Bridgewater state hospital. Such order of commitment shall be valid for a period of six months. All subsequent proceedings for commitment shall take place under the provisions of said section eighteen in the district court which has jurisdiction of the facility or hospital. A person committed to a facility or Bridgewater state hospital pursuant to this section shall have said time credited against the sentence imposed as provided in paragraph (c) of said section eighteen.
(f) In like manner to the proceedings under paragraphs (a), (b), (c), and (e) of this section, a court may order a psychiatric or psychological examination or a period of observation for an alleged delinquent; provided, however, that no such alleged delinquent shall be hospitalized at the Bridgewater state hospital. A period of hospitalization ordered pursuant to this section shall not exceed 40 days.
SECTION 15. Chapter 123 of the General Laws is hereby amended by striking out section 16, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:–
(a) (1) The court having jurisdiction over the criminal proceedings may order that a person who has been found incompetent to stand trial or not guilty by reason of mental illness or mental defect in such proceedings be hospitalized at a facility for a period of 40 days for observation and examination. The observation and examination shall be for the purpose of determining the person’s need for further care and treatment; and provided that the combined periods of hospitalization under the provisions of this section and paragraph (b) of section 15 shall not exceed 50 days.
(2) The court having jurisdiction over the criminal proceedings may order that a person who has been found incompetent to stand trial, who does not provide a likelihood of serious harm by reason of mental illness, receive restoration services in the community as a condition of recognizance or at a place of detention if the person is held in lieu of bail.
(b) During the period of observation of a person believed to be incompetent to stand trial or within 60 days after a person is found to be incompetent to stand trial or not guilty of any crime by reason of mental illness or other mental defect, the district attorney, the superintendent of a facility, or the medical director of the Bridgewater state hospital may petition the court having jurisdiction of the criminal case for the commitment of the person to a facility or, if the person is serving a criminal sentence arising from other criminal proceedings, to the Bridgewater state hospital. However, the petition for the commitment of an untried defendant shall be heard only if the defendant is found incompetent to stand trial, or if the criminal charges are to be dismissed after commitment; provided, however, that the dismissal of criminal charges shall not require dismissal of the petition or of an order of commitment entered under this section. If the court makes the findings required by paragraph (a) of section 8 it shall order the person committed to a facility; if the court makes the findings required by paragraph (b) of section 8, it shall order the commitment of the person to the Bridgewater state hospital; otherwise the petition shall be dismissed and the person discharged. An order of commitment under the provisions of this paragraph shall be valid for 6 months. In the event a period of hospitalization under the provisions of paragraph (a) has expired, or in the event no such period of examination has been ordered, the court may order the temporary detention of such person in a jail, house of correction, facility or, if the person is serving a criminal sentence arising from other criminal proceedings, the Bridgewater state hospital until such times as the findings required by this paragraph are made or a determination is made that such findings cannot be made.
(c) After the expiration of a commitment under paragraph (b) of this section, a person may be committed for additional one year periods under the provisions of sections seven and eight of this chapter, but no untried defendant shall be so committed unless in addition to the findings required by sections seven and eight the court also finds said defendant is incompetent to stand trial. If the person is not found incompetent, or if the court determines that there is a substantial probability that the person will not attain competence in a reasonable period of time, the court shall notify the court with jurisdiction of the criminal charges, which court shall thereupon order the defendant returned to its custody for the resumption of criminal proceedings, which shall include consideration of dismissal of the criminal charges in accordance with the interests of justice. All subsequent proceedings for the further commitment of a person committed under this section shall be in the court which has jurisdiction of the facility or hospital.
(d) The district attorney for the district within which the alleged crime or crimes occurred shall be notified of any hearing conducted for a person under the provisions of this section or any subsequent hearing for such person conducted under the provisions of this chapter relative to the commitment of the mentally ill and shall have the right to be heard at such hearings.
(e) Any person committed to a facility under the provisions of this section may be restricted in his movements to the buildings and grounds of the facility at which he is committed by the court which ordered the commitment. If such restrictions are ordered, they shall not be removed except with the approval of the court. In the event the superintendent communicates his intention to remove or modify such restriction in writing to the court and within fourteen days the court does not make written objection thereto, such restrictions shall be removed by the superintendent. If the superintendent or medical director of the Bridgewater state hospital intends to discharge a person committed under this section or at the end of a period of commitment intends not to petition for his further commitment, he shall notify the court and district attorney which have or had jurisdiction of the criminal case. Within thirty days of the receipt of such notice, the district attorney may petition for commitment under the provisions of paragraph (c). During such thirty day period, the person shall be held at the facility or hospital. This paragraph shall not apply to persons originally committed after a finding of incompetence to stand trial whose criminal charges have been dismissed.
(f) If a person is found incompetent to stand trial, the court shall send notice to the department of correction which shall compute the date of the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted. For purposes of the computation of parole eligibility, the minimum sentence shall be regarded as one half of the maximum sentence potential sentence. Where applicable, the provisions of sections one hundred and twenty-nine, one hundred and twenty-nine A, one hundred and twenty-nine B, and one hundred and twenty-nine C of chapter one hundred and twenty-seven shall be applied to reduce such period of time. If the charges for which the person is incompetent to stand trial are still open, on the final date of such period, the court shall dismiss the criminal charges against such person, or the court in the interest of justice may dismiss the criminal charges against such person prior to the expiration of such period.
SECTION 16. Section 17 of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out paragraph (a) and inserting in place thereof the following paragraph:
(a) The periodic review of a person found incompetent to stand trial shall include a clinical opinion with regard to the person's competence to stand trial, including whether there is a substantial likelihood that the person can be restored to competence within a reasonable period of time, which opinion shall be noted in writing on the patient's record. If any person found incompetent to stand trial is determined by the superintendent of the facility or the medical director of the Bridgewater state hospital to be no longer incompetent or that there is not a substantial probability that the person will be restored to competence within a reasonable period of time, the superintendent or medical director shall notify the court, which shall without delay hold a hearing on the person's competency to stand trial or on the probability that the person will be restored to competence within a reasonable period of time. Any person found incompetent to stand trial may at any time petition the court for a hearing on his competency. Whenever a hearing is held and the court finds that the person is competent to stand trial, his commitment, if any, to a facility or to the Bridgewater state hospital shall be terminated and he shall be returned to the custody of the court for trial. However, if the person requests continued care and treatment during the pendency of the criminal proceedings against him and the superintendent or medical director agrees to provide such care and treatment, the court may order the further hospitalization of such person at the facility or the Bridgewater state hospital.
SECTION 17. Chapter 123 of the General Laws is hereby amended by striking out section 18, as appearing in the 2012 Official Edition, and inserting in place thereof the following section:–
Section 18. (a) If the person in charge of any place of detention within the commonwealth has reason to believe that a person confined therein is in need of hospitalization by reason of mental illness at a facility of the department or, if he is serving a criminal sentence, at the Bridgewater state hospital, he shall cause such prisoner to be examined at such place of detention by a physician or psychologist, designated by the department as qualified to perform such examination. Said physician or psychologist shall report the results of the examination to the district court which has jurisdiction over the place of detention or, if the prisoner is awaiting trial, to the court which has jurisdiction of the criminal case. Such report shall include an opinion, with reasons therefore, as to whether such hospitalization is actually required. The court which receives such report may order the prisoner to be taken to a facility or, if a male who is serving a criminal sentence, to the Bridgewater state hospital to be received for examination and observation for a period not to exceed 30 days. After completion of such examination and observation, a written report shall be sent to such court and to the person in charge of the place of detention. Such report shall be signed by the physician or psychologist conducting such examination, and shall contain an evaluation, supported by clinical findings, of whether the prisoner is in need of further treatment and care at a facility or, if a male and serving a criminal sentence, the Bridgewater state hospital by reason of mental illness. The person in charge of the place of detention shall have the same right as a superintendent of a facility and the medical director of the Bridgewater state hospital to file a petition with the court which received the results of the examination for the commitment of the person to a facility or to the Bridgewater state hospital; provided, however, that, notwithstanding the court's failure, after an initial hearing or after any subsequent hearing, to make a finding required for commitment to the Bridgewater state hospital, the prisoner shall be confined at said hospital if the findings required for commitment to a facility are made and if the commissioner of correction certifies to the court that confinement of the prisoner at said hospital is necessary to insure his continued retention in custody. An initial court order of commitment issued subject to the provisions of this section shall be valid for a six-month period, and all subsequent commitments during the term of the sentence shall take place under the provisions of sections seven and eight and shall be valid for one year.
(b) Notwithstanding any contrary provision of general or special law, a prisoner who is retained in any place of detention within the commonwealth and who is in need of care and treatment in a facility may, with the approval of the person in charge of such place of detention apply for voluntary admission under the provisions of paragraph (a) of section ten.
(c) At the commencement of hospitalization under the provisions of paragraph (a) or paragraph (b) the department of correction shall enter in the patient record of such prisoner the date of the expiration of the sentence of the prisoner. Where applicable, the provisions of sections one hundred and twenty-nine, one hundred and twenty-nine A, one hundred and twenty-nine B and one hundred and twenty-nine C of chapter one hundred and twenty-seven may be applied to reduce such sentence, and on such date the prisoner shall be discharged; provided, however, that if the superintendent or other head of a facility or the medical director of the Bridgewater state hospital determines that the discharge of the prisoner committed subject to the provisions of paragraph (a) would create a likelihood of serious harm by reason of mental illness, he shall petition the district court having jurisdiction over the facility prior to the date of expiration to order the commitment of such person to a facility under the provisions of this chapter other than paragraph (a); and provided, further, that any prisoner resident in a facility subject to the provisions of paragraph (b) shall be free to leave such facility subject to the provisions of section eleven.
(d) In the event the provisions of this chapter require the release of a prisoner from a facility or from the Bridgewater state hospital prior to the date of expiration of his sentence calculated under the provisions of paragraph (c), such prisoner shall be forthwith returned to the place of detention from which he was transferred to such facility or to said hospital.
SECTION 18. Section 18A of chapter 123 of the General Laws is hereby repealed.
SECTION 19. Section 21 of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out the twelfth paragraph and inserting in place thereof the following paragraph:–
A copy of the restraint form and any such attachments shall become part of the chart of the patient. The Commissioner of mental health, or with respect to Bridgewater state hospital, the commissioner of correction, shall receive restraint data no less frequently than monthly, in a form and manner that will permit the respective commissioner or senior-level clinical designee to analyze and, if appropriate, request corrective action regarding, the use of restraint in facilities under their supervision and control, and in the case of the department, facilities licensed by it. Such data, excluding patient identification, shall be made available to the general public.
SECTION 20. Section 21 of chapter 123 of the General Laws, as so appearing, is hereby amended by inserting after the word “from”, in line 2, the following words:- , or within,.
SECTION 21. Section 21 of chapter 123 of the General Laws, as so appearing, is hereby amended by striking out the word “by”, in line 80, and inserting in place thereof the following word:– be.
SECTION 22. Section 21 of chapter 123 of the General Laws, as so appearing, is hereby amended by striking out the word “of”, in line 93, and inserting in place thereof the following word:– or
SECTION 23. Section 23 of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out the third paragraph of subsection (e), at lines 71 to 81, and inserting in place thereof the following paragraph:
For any such persons over the age of 18, any right set forth in clauses (a) and (c) may be temporarily suspended, but only for such person in an inpatient facility and only by the superintendent, director, acting superintendent or acting director of such facility upon such person; concluding, pursuant to standards and procedures set forth in department regulations that, based on experience of such person's exercise of such right, further such exercise of it in the immediate future would present a substantial risk of serious harm to such person or others and that less restrictive alternatives have either been tried and failed or would be futile to attempt. The suspension shall last no longer than the time necessary to prevent the harm and its imposition shall be documented with specific facts in such person's record; provided, however that an enhanced security facility may impose reasonable restrictions on the exercise of any right set forth in clauses (a) and (c), but only if and to the extent such restrictions are necessary to ensure safety and security within the facility. For any such person who is a minor under the age of 18, who is a patient or resident of an inpatient or residential facility or program, the exercise of the rights provided in paragraphs (a) through (c) may be limited but only upon a determination by the superintendent, director, acting superintendent or acting director of such inpatient or residential facility or program that failure to so limit would pose a risk of serious physical or psychological harm to the resident or others. In making such a determination, the superintendent, director, acting superintendent or acting director shall take into consideration the developmental level of such minor, as well as family and cultural factors relevant to his or her treatment, and may rely on information supplied by the patient’s or resident’s parent or guardian, records and information from prior treatment providers, or other sources of reliable information. Any such limitation of the rights shall last for no longer than necessary to accomplish the purpose thereof, and its imposition shall be documented with specific facts in such person's record
SECTION 24. Section 33 of chapter 123 of the General Laws is hereby repealed.
SECTION 25. Section 36 of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the word “persons”, in line 2, the following words:– approved for services pursuant to chapter 19 or.
SECTION 26. Section 36A of chapter 123 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by inserting after the word “court”, in line 3, the following words:– ; provided, however, that the department shall retain copies of such reports which may be reviewed for the purpose of risk assessment activities conducted by the department but shall not be considered part of the treatment record unless released by the court.
SECTION 27. This Act shall be effective upon the filing of a certification by the department of mental health with the respective clerk of the house and the senate that the enhanced security facility is prepared to receive inpatient commitments and, in any event, no later than July 1, 2015.
