Amendment #3 to H3944

72 Hour Medical Hold

Representatives Lyons of Andover and O'Connell of Taunton move to amend the bill by inserting the following new section:- 

SECTION XX. Chapter 123 of the General Laws is hereby amended by inserting after section 35 the following 2 sections:-

Section 35A. (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 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 commit such person for treatment would create a likelihood of serious harm by reason of an alcohol or substance use disorder may restrain or authorize the restraint of such person and apply for the treatment of such person for a 3-day period at a facility authorized for such purposes by the department of public health or the department of mental health.

If an examination is not possible because of the emergency nature of the case or 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 treatment 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 treat a person would create a likelihood of serious harm by reason of an alcohol or substance use disorder may restrain such person and apply for the treatment of such person for a 3-day period at a facility authorized for such purpose by the department of public health or the department of mental health.

An application for treatment shall state the reasons for the restraint of such person and any other relevant information which may assist the admitting clinician. 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 treatment under 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 of mental health or department of public health shall the person be admitted to the facility immediately after the person’s reception. If the application is made by someone other than a designated physician, the person shall be given an examination by a designated physician within a reasonable amount of time after the person’s reception at such facility. If the physician determines that failure to treat the person would create a likelihood of serious harm by reason of an alcohol or substance use disorder the physician may admit the person to the facility for care and treatment.

Upon admission of a person under this subsection, the facility shall inform the person that, upon the person’s request, the facility will notify the committee for public counsel services of the name and location of the person admitted. The 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 the committee for public counsel services, which shall withdraw the appointment.

Any person admitted under this subsection, who has reason to believe that such admission is the result of an abuse or misuse of this subsection, may request, or request through counsel an emergency hearing in the juvenile court or 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. The superintendent of the facility, if he or she seeks to retain the person for treatment, shall at the time of the hearing file a petition for commitment pursuant to subsection (e).

(c) No person shall be admitted to a facility under this section unless the person, or if the person is a minor, the person’s parent, is given an opportunity to apply for voluntary admission under section 35B.

(d) A person shall be discharged at the end of the 3-day period unless the superintendent applies for a commitment order under subsection (e) or the person remains on a voluntary status.

(e) The superintendent of a facility may petition the district court or the division of the juvenile court department in whose jurisdiction the facility is located for the commitment of a person to the facility if the superintendent determines that the failure to provide continued treatment would create a likelihood of serious harm by reason of an alcohol or substance use disorder.

(f) Whenever a court receives a petition filed under subsection (e) for an order of commitment of a person to a facility, the court shall notify the person and, if under 18, the person’s parent or guardian of the receipt of the petition and of the date a hearing on the petition is to be held. Except where a person has requested an emergency hearing under subsection (b), the hearing shall be commenced within 5 days of the filing of the petition, unless a delay is requested by the person or the person’s counsel. The periods of time prescribed or allowed under this section shall be computed pursuant to Rule 6 of the Massachusetts Rules of Civil Procedure.

(g) After a hearing which shall include expert testimony and may include other evidence, the district court or the division of the juvenile court department shall order the commitment of the person to a facility for continued treatment if the court finds that (1) the person has an alcohol or substance use disorder, and (2) the discharge of the person from the facility would create a likelihood of serious harm as a result of the person’s alcohol or substance use disorder.  A person who is the subject of a petition under subsection (e) may waive the right to a hearing, in which case the court may make its finding based on the credible evidence offered in support of the petition filed pursuant to subsection (e).  A waiver of the right to a hearing must be made in writing.

(h) The court shall render its decision on the petition filed under subsection (e) within 10 days of the completion of the hearing or within 10 days of the court’s receipt of a written waiver of the right to a hearing by the person who is the subject of the petition; provided, that for reasons stated in writing by the court, the administrative justice for the district court department may extend the 10 day period.

(i) Upon making the finding required under subsection (g), the court may order such person to be committed for a period not to exceed 90 days, followed by the availability of case management services provided by the department of public health for up to 1 year; provided, however, that a review of the necessity of the commitment shall take place by the superintendent on days 30, 45, 60 and 75 as long as the commitment continues; and provided further, that combined periods of treatment under this section shall not exceed 90 days. A person so committed may be released prior to the expiration of the period of commitment upon written determination by the superintendent of the facility that release of that person will not result in a likelihood of serious harm. Such commitment shall be for the purpose of inpatient care for the treatment of an alcohol or substance use disorder in a facility licensed or approved by the department of public health or the department of mental health; provided further, that subsequent to the issuance of a commitment order, the department of public health and the department of mental health may transfer a patient to a different facility for continuing treatment.

If the department of public health informs the court that there are no other suitable facilities available for treatment, or if the court makes a specific finding that the only appropriate setting for treatment for the person is a secure facility, then the person may be committed to a secure facility for women approved by the department of public health or the department of mental health, if a female; or to the Massachusetts correctional institution at Bridgewater, if a male; provided, however, that any person so committed shall be housed and treated separately from persons currently serving a criminal sentence. Such person shall, upon release, be encouraged to consent to further treatment and shall be allowed voluntarily to remain in the facility for such purpose.

The court, in its order, shall specify whether such commitment is based upon a finding that the person is a person with an alcohol use disorder, substance use disorder, or both. The court, upon ordering the commitment of a person found to be a person with an alcohol use disorder or substance use disorder pursuant to this section, shall transmit the person's name and nonclinical identifying information, including the person's social security number and date of birth, to the department of criminal justice information services. The court shall notify the person that such person is prohibited from being issued a firearm identification card pursuant to section 129B of chapter 140 or a license to carry pursuant to sections 131 and 131F of said chapter 140 unless a petition for relief pursuant to section 35 is subsequently granted.

Section 35B. (a) (1) Pursuant to regulations on admission procedures, the superintendent of a facility may receive and treat on a voluntary basis any person who has been temporarily restrained under subsection (a) of section 35A; provided, that the person is in need of care and treatment for an alcohol or substance use disorder; and provided further, that the admitting facility is suitable for such care and treatment and approved or licensed by the department of public health or the department of mental health. The application for treatment may be made by a person who has attained the age of 16 or by a parent of a person under the age of 18 years. Prior to accepting an application for a voluntary admission, the superintendent shall afford the person making the application the opportunity for consultation with an attorney, or with a person who is working under the supervision of an attorney, concerning the legal effect of a voluntary admission. The superintendent may discharge any person admitted under this subsection at any time the superintendent deems the discharge in the best interest of the person; provided, however, that if a parent made the application for admission, 14 days’ notice shall be given to the parent prior to discharge.

(2) Pursuant to regulations, the superintendent of a facility may treat a person as an outpatient; provided that the application for outpatient treatment is made in accordance with paragraph (1). The superintendent may, in the best interest of the person, discontinue the outpatient treatment of a person at any time.

(b) A person admitted to a facility under subsection (a) shall be free to leave such facility at any time, and any parent who requested the admission of such person may withdraw such person at any time, upon giving written notice to the superintendent; provided, however, that the superintendent may restrict the right to leave or withdraw to normal working hours and weekdays and, in the superintendent’s discretion, may require the person or the person’s parent to give 3 days’ written notice of his or her intention to leave or withdraw. If a person or the person’s parent provides a notice of intention to leave or withdraw, the superintendent may require an examination of the person to determine the person’s clinical progress, the person’s suitability for discharge and to investigate other aspects of the person’s case including the person’s legal competency and family, home or community situation. Such person may be retained at the facility beyond the expiration of the 3 day notice period if, prior to the expiration of the 3 day notice period, the superintendent files a petition for commitment under subsection (e) of section 35A.

Before accepting an application for voluntary admission where the superintendent may require 3 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 facility; (ii) the person is agreeing to accept treatment; (iii) the person may be required to provide the facility with 3 days written advance notice of the person’s intention to leave the facility; and (iv) the facility may petition a court for an extended commitment of the person under section 35A and that the person 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, the application for voluntary admission shall not be accepted.