Bill H.1553

HOUSE DOCKET, NO. 2252 FILED ON: 1/17/2019

HOUSE . . . . . . . . . . . . . . . No. 1553

By Mr. Scaccia of Boston, a petition (accompanied by bill, House, No. 1553) of Angelo M. Scaccia relative to mental illness civil commitments. The Judiciary.

The Commonwealth of Massachusetts

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In the One Hundred and Ninety-First General Court
(2019-2020)

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An Act relative to civil commitments.

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 1 of Chapter 123 of the General Laws, as appearing in the 2016 Official Edition is hereby amended by striking the section and inserting the following section:-

Section 1. Definitions

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.

“Facility”, a public or private facility for the care and treatment of mentally ill persons, except for 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.

“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.

“Place of Detention”, an institution, or any part thereof, for the detention or confinement of persons accused or convicted of crime, including, but not limited to, jails, prisons, houses of correction and correctional institutions. A place of detention shall not include Bridgewater State Hospital or the Massachusetts Alcohol and Substance Abuse Center.

“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;

(d) takes appropriate steps, within the legal scope of practice of his profession, to initiate proceedings for involuntary hospitalization.

“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.

“Superintendent”, the superintendent or other head of a public or private facility.

SECTION 2. Section 6 of Chapter 123 of the General Laws, as appearing in the 2016 Official Edition is hereby amended by striking the section and inserting the following section:-

Section 6. Retention of persons; validity of orders; hearing trial

(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, section thirteen, 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 or to the pendency of a request under section fourteen. 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 a commitment to a facility or to the Bridgewater state hospital, a trial shall be held unless waived in writing by the person after consultation with his counsel. In the event the trial is waived, the person may request a trial at any time during the period of commitment.

SECTION 3. Section 8 of Chapter 123 of the General Laws, as appearing in the 2016 Official Edition is hereby amended by striking the section and inserting the following section:-

Section 8. Proceedings to commit dangerous persons; notice; trial; orders; jurisdiction

(a) After a trial, unless such trial is waived in writing pursuant to section 6 of this chapter, the district court or the division of the juvenile court department shall not order the commitment of a person at a facility or shall not renew such order unless it finds, beyond a reasonable doubt and on the record, (1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm as defined by this chapter and the regulations of the department.

(b) After trial and a finding on the record, unless such trial is waived in writing, the district court or the division of the juvenile court department shall not order the commitment of a person at the Bridgewater state hospital or shall not renew such order unless it finds that (1) such person is mentally ill; (2) such person is not a proper subject for commitment to any facility of the department; and (3) the failure to retain such person in strict custody would create a likelihood of serious harm. 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 seven days of the completion of the trial, provided prior to the expiration of the seven days, that for reasons stated in writing by the court, the administrative justice for the district court department may extend said seven day period.

(d) The first order of commitment of a person under this section shall be valid for a period of ninety days and all subsequent commitments shall be valid for a period of six months provided that if such commitments occur at the expiration 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 six months 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 trial is held before the expiration of the six months commitment, the court may not recommit the person without a trial.

(e) In the event that the trial 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 district court or the division of the juvenile court department 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 trial is waived and on the basis of a petition filed under the authority of this chapter showing that a person is mentally ill, that the person is not a proper subject for commitment to any facility of the department and that the failure to retain said person in strict security would create a likelihood of serious harm, the district court or the division of the juvenile court department which has jurisdiction over a facility, 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.

(g) The court may retain jurisdiction over the case after trial either on its own or at the request of the respondent or respondent’s counsel to determine that a person is mentally ill and that the discharge of the person from a facility would create a likelihood of serious harm.

SECTION 4. Section 10 of Chapter 123 of the General Laws, as appearing in the 2016 Official Edition is hereby amended by striking the section and inserting the following section:-

Section 10. Voluntary admissions; consultation with attorney; discharge; outpatients; veterans

(a) Pursuant to departmental regulations on admission procedures, the superintendent may receive and retain on a voluntary basis any person providing the person is in need of care and treatment and providing the admitting facility is suitable for such care and treatment. The application may be made (1) by a person who has attained the age of sixteen, (2) by a parent or guardian of a person on behalf of a person under the age of eighteen years, and (3) by the guardian of a person on behalf of a person under his guardianship. Prior to accepting an application for a voluntary admission, the superintendent shall inform the person, in writing, the person making the application that the person has the right to consult with an attorney, or with a person who is working under the supervision of an attorney, concerning the legal effect of a voluntary admission and the right to appointed counsel pursuant chapter 211D, if the person is indigent. The facility shall provide to the person and post in a prominent location the contact information, including phone numbers for lawyer referral programs, the Committee for Public Counsel Services and Mental Health Legal Advisors Committee. The superintendent may discharge any person admitted under the provisions of this paragraph at any time he deems such discharge in the best interest of such person, provided, however, that if a parent or guardian made the application for admission, fourteen days’ notice shall be given to such parent or guardian prior to such discharge.

(b) Pursuant to departmental regulations, the superintendent of a facility may treat persons as outpatients providing application for outpatient treatment is made in accordance with the application provisions of paragraph (a). The superintendent may, in the best interest of the person, discontinue the outpatient treatment of a person at any time.

(c) The chief officer of any facility of the Veterans Administration within the commonwealth may admit eligible veterans under the provisions of this chapter and thereupon shall be vested with the same powers as the department has under this chapter with respect to retention or discharge.

SECTION 5. Section 11 of Chapter 123 of the General Laws, as appearing in the 2016 Official Edition is hereby amended by striking the section and inserting the following section:-

Section 11. Voluntary admissions; withdrawal; notice; examination; retention

Any person retained in a facility under the provisions of paragraph (a) of section ten shall be free to leave such facility at any time, and any parent or guardian who requested the admission of such person may withdraw such person at any time, upon giving written notice to the superintendent. The superintendent may restrict the right to leave or withdraw to normal working hours and weekdays and, in his discretion, may require persons or the parents or guardians of persons to give three days written notice of their intention to leave or withdraw. Where persons or their parents or guardians are required to give three days notice of intention to leave or withdraw, an examination of such persons may be conducted to determine their clinical progress, their suitability for discharge and to investigate other aspects of their case including their legal competency and their family, home or community situation in the interest of discharging them from the facility. Such persons may be retained at the facility beyond the expiration of the three day notice period if, prior to the expiration of the said three day notice period, the superintendent files with the district court a petition for the commitment of such person at the said facility. Before accepting an application for voluntary admission where the superintendent may require three days written notice of intention to leave or withdraw, the admitting or treating physician shall assess the person’s capacity to understand that: (i) the person is agreeing to stay or remain at the hospital; (ii) the person is agreeing to accept treatment; (iii) the person is required to provide the facility with three days written advance notice of the person’s intention to leave the facility; (iv) the person has been informed of the right to retain and consult with an attorney or with a person or with a person who is working under the supervision of an attorney, concerning the legal effect of a voluntary admission and the right to appointed counsel pursuant chapter 211D, if the person is indigent and (v) the facility may petition a court for an extended commitment of the person and that he may be held at the facility until the petition is heard by the court. If the physician determines that the person lacks the capacity to understand these facts and consequences of hospitalization, the application shall not be accepted.

SECTION 6. Section 12 of Chapter 123 of the General Laws, as appearing in the 2016 Official Edition is hereby amended by striking the section and inserting the following section:-

Section 12. Emergency restraint and hospitalization of persons posing risk of serious harm by reason of mental illness

(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 shall immediately 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. 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, 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 with specificity why failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness 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. No restraint under this section shall last longer than 12 hours from the initial restraint. Any person restrained for more than 12 hours after their initial restraint shall be advised, in writing, of the right to institute a petition for writ of habeas corpus pursuant to chapter 248, sections 35-40 and of their right to the assignment of counsel, if indigent. If the person requests an attorney, the Committee for Public Counsel Services shall be immediately notified and shall appoint counsel.

(b) Only if the application for hospitalization under the provisions of this section is made by a physician specifically designated to have the authority to admit to a facility in accordance with the regulations of the department, shall such person be admitted to the facility immediately after his reception. If the application is made by someone other than a designated physician, such person shall be given a psychiatric examination by a designated physician immediately after his reception at such facility. If the physician determines that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness he may admit such person to the facility for care and treatment.

Upon admission of a person under the provisions of this subsection, the facility shall inform the person, in writing, of the right to retain and consult with an attorney or with a person or with a person who is working under the supervision of an attorney, concerning the legal effect of a voluntary admission and the right to appointed counsel pursuant chapter 211D, if the person is indigent, and the facility shall, upon such person’s request, notify the committee for public counsel services of the name and location of the person admitted. Said committee for public counsel services shall forthwith appoint an attorney who shall meet with the person. If the appointed attorney determines that the person voluntarily and knowingly waives the right to be represented, or is presently represented or will be represented by another attorney, the appointed attorney shall so notify said committee for public counsel services, which shall withdraw the appointment.

Any person admitted 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 chapter, 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.

(c) No person shall be admitted to a facility under the provisions of this section unless he, or his parent or legal guardian in his behalf, is given an opportunity to apply for voluntary admission under the provisions of paragraph (a) of section ten and unless he, or such parent or legal guardian has been informed (1) that he has a right to such voluntary admission, and (2) that the period of hospitalization under the provisions of this section cannot exceed three days. At any time during such period of hospitalization, the superintendent may discharge such person if he determines that such person is not in need of care and treatment.

(d) A person shall be discharged at the end of the three day period unless the superintendent applies for a commitment under the provisions of sections seven and eight of this chapter or the person remains on a voluntary status.

(e) Any person may make application to a district court justice or a justice of the juvenile court department 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, a district court justice or a justice of the juvenile court department 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 facility for a period not to exceed three days, but 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 7. Section 18 of Chapter 123 of the General Laws, as appearing in the 2016 Official Edition is hereby amended by striking the section and inserting the following section:-

Section 18. Hospitalization of mentally ill prisoners; examination; reports; hearing; commitment; voluntary admission; reduction of sentence; discharge

(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 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, to the Bridgewater state hospital to be received for examination and observation for a period not to exceed thirty 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, 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. 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 may 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 or to the Bridgewater state hospital 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.

Name:	District/Address:	Date Added:
Angelo M. Scaccia	14th Suffolk	1/17/2019