HOUSE DOCKET, NO. 3355        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3722

The Commonwealth of Massachusetts

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PRESENTED BY:

Kay Khan

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To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act to expand the role of nurses in psychiatric facilities.

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PETITION OF:

HOUSE DOCKET, NO. 3355        FILED ON: 1/18/2019

HOUSE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 3722

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 to expand the role of nurses in psychiatric facilities.

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 inserting after the definition of “Psychologist” the following definition:-

“Qualified nurse practitioner”, a licensed nurse practitioner or equivalent licensed nurse, authorized to practice as such under regulations promulgated pursuant to the provisions of section 80B of chapter 112 who is designated by and meets qualifications required by regulations of the department provided that different qualifications may be established for different purposes of this chapter. A qualified nurse practitioner need not be an employee of the department or any facility of the department.

SECTION 2. Section 11 of said chapter 123, as so appearing, is hereby amended, in line 22 and in line 29, by inserting after the word “physician” the following words:- or qualified  nurse practitioner.

SECTION 3. Said chapter 123, as so appearing, is hereby further amended by striking out section 12 and inserting in place thereof the following section:-

Section 12. (a) Any physician who is licensed pursuant to section 2 of chapter 112 or qualified nurse practitioner 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. 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 nurse practitioner 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 nurse practitioner 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 or qualified nurse practitioner. 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.

(b) Only if the application for hospitalization under the provisions of this section is made by a physician, or a qualified nurse practitioner 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, or a qualified nurse practitioner, such person shall be given a psychiatric examination by a designated physician, or a qualified  nurse practitioner immediately after his reception at such facility. If the physician, or a qualified nurse practitioner 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 that it 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 subsection, 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, or a qualified nurse practitioner 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, qualified nurse practitioner 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 4. Said chapter 123 is hereby further amended by striking out section 21 and inserting in place thereof the following section:-

Section 21. Any person who transports a mentally ill person to or from a facility for any purpose authorized under this chapter shall not use any restraint which is unnecessary for the safety of the person being transported or other persons likely to come in contact with him.

In the case of persons being hospitalized under the provisions of section six, the applicant shall authorize practicable and safe means of transport, including where appropriate, departmental or police transport.

Restraint of a mentally ill patient may only be used in cases of emergency, such as the occurrence of, or serious threat of, extreme violence, personal injury, or attempted suicide; provided, however, that written authorization for such restraint is given by the superintendent or director of the facility or by a physician or qualified nurse practitioner designated by him for this purpose who is present at the time of the emergency or if the superintendent or director or designated physician or qualified nurse practitioner is not present at the time of the emergency, non-chemical means of restraint may be used for a period of one hour provided that within one hour the person in restraint shall be examined by the superintendent, director or designated physician or qualified nurse practitioner. Provided further, that if said examination has not occurred within one hour, the patient may be restrained for up to an additional one hour period until such examination is conducted, and the superintendent, director, or designated physician or qualified nurse practitioner shall attach to the restraint form a written report as to why the examination was not completed by the end of the first hour of restraint.

Any minor placed in restraint shall be examined within fifteen minutes of the order for restraint by a physician or qualified nurse practitioner or, if a physician or qualified nurse practitioner is not available, by a registered nurse or a certified physician assistant; provided, however, that said minor shall be examined by a physician or qualified nurse practitioner within one hour of the order for restraint. A physician or qualified nurse practitioner or, if a physician or qualified nurse practitioner is not available, a registered nurse or a certified physician assistant, shall review the restraint order, by personal examination of the minor or consultation with ward staff attending the minor, every hour thereafter.

No minor shall be secluded for more than two hours in any twenty-four hour period; provided, however, that no such seclusion of a minor may occur except in a facility with authority to use such seclusion after said facility has been inspected and specially certified by the department. The department shall issue regulations establishing procedures by which a facility may be specially certified with authority to seclude a minor. Such regulations shall provide for review and approval or disapproval by the commissioner of a biannual application by the facility which shall include (i) a comprehensive statement of the facility’s policies and procedures for the utilization and monitoring of restraint of minors including a statistical analysis of the facility’s actual use of such restraint, and (ii) a certification by the facility of its ability and intent to comply with all applicable statutes and regulations regarding physical space, staff training, staff authorization, record keeping, monitoring and other requirements for the use of restraints.

Any use of restraint on a minor exceeding one hour in any twenty-four hour period shall be reviewed within two working days by the director of the facility. The director shall forward a copy of his report on each such instance of restraint to the human rights committee of that facility and, in the event that there is no human rights committee, to the appropriate body designated by the commissioner of mental health. The director shall also compile a record of every instance of restraint in the facility and shall forward a copy of said report on a monthly basis to the human rights committee or the body designated by the commissioner of mental health.

No order for restraint for an individual shall be valid for a period of more than three hours beyond which time it may be renewed upon personal examination by the superintendent, director, authorized physician or qualified nurse practitioner or, for adults, by a registered nurse or a certified physician assistant; provided, however, that no adult shall be restrained for more than six hours beyond which time an order may be renewed only upon personal examination by a physician or qualified nurse practitioner. The reasons for the original use of restraint, the reason for its continuation after each renewal, and the reason for its cessation shall be noted upon the restraining form by the superintendent, director or authorized physician or qualified nurse practitioner or, when applicable, by the registered nurse or certified physician or qualified nurse practitioner assistant at the time of each occurrence.

When a designated physician or qualified nurse practitioner is not present at the time and site of the emergency, an order for chemical restraint may be issued by a designated physician or qualified nurse practitioner who has determined, after telephone consultation with a physician or qualified nurse practitioner, registered nurse or certified physician assistant who is present at the time and site of the emergency and who has personally examined the patient, that such chemical restraint is the least restrictive, most appropriate alternative available; provided, however, that the medication so ordered has been previously authorized as part of the individual’s current treatment plan.

No person shall be kept in restraint without a person in attendance specially trained to understand, assist and afford therapy to the person in restraint. The person may be in attendance immediately outside the room in full view of the patient when an individual is being secluded without mechanical restraint; provided, however, that in emergency situations when a person specially trained is not available, an adult, may be kept in restraint unattended for a period not to exceed two hours. In that event, the person kept in restraints must be observed at least every five minutes; provided, further, that the superintendent, director, or designated physician or qualified nurse practitioner shall attach to the restraint form a written report as to why the specially trained attendant was not available. The maintenance of any adult in restraint for more than eight hours in any twenty-four hour period must be authorized by the superintendent or facility director or the person specifically designated to act in the absence of the superintendent or facility director; provided, however, that when such restraint is authorized in the absence of the superintendent or facility director, such authorization must be reviewed by the superintendent or facility director upon his return.

No “P.R.N.” or “as required” authorization of restraint may be written. No restraint is authorized except as specified in this section in any public or private facility for the care and treatment of mentally ill persons including Bridgewater.

No later than twenty-four hours after the period of restraint, a copy of the restraint form shall be delivered to the person who was in restraint. A place shall be provided on the form or on attachments thereto, for the person to comment on the circumstances leading to the use of restraint and on the manner of restraint used.

A copy of the restraint form and any such attachments shall become part of the chart of the patient. Copies of all restraint forms and attachments shall be sent to the commissioner of mental health, or with respect to Bridgewater state hospital to the commissioner of correction, who shall review and sign them within thirty days, and statistical records shall be kept thereof for each facility including Bridgewater state hospital, and each designated physician or qualified nurse practitioner. Furthermore such reports, excluding patient identification, shall be made available to the general public at the department’s central office, or with respect to Bridgewater state hospital at the department of correction’s central office.

Responsibility and liability for the implementation of the provisions of this section shall rest with the department, the superintendent or director of each facility or the physician or qualified nurse practitioner designated by such superintendent or director for this purpose.

SECTION 5. Section 22 of said chapter 123, as so appearing, is hereby amended by inserting, in line 1, after the word “physicians” the following words:- , qualified nurse practitioners.

SECTION 6. Said section 22 of said chapter 123, as so appearing, is hereby further amended by inserting, in line 6, after the word “physician” the following words:- qualified nurse practitioner.