Amendment #18 to H4725

Alternative Pathways to Treatment

Mr. Jones of North Reading moves to amend the bill by adding 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) A clinical professional, 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 for transportation to an appropriate treatment facility authorized for such purposes by the department of public health or the department of mental health.  For the purposes of this section, the term “clinical professional” shall include a  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; provided, however, that the department may through regulation identify other persons who because of training and credentials shall be included within the definition of “clinical professional.”

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 clinical professional on the basis of the facts and circumstances may determine that treatment is necessary and may restrain or authorize the restraint of such person for transportation to an appropriate treatment facility authorized for such purposes by the department of public health or the department of mental health through regulation.

If a clinical professional 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 or authorize the restraint of such person for transportation to an appropriate treatment facility authorized for such purposes by the department of public health or the department of mental health through regulation.

The clinical professional or police officer shall communicate to the facility receiving a person transported under this section 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 clinical professional or police officer 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 transportation for treatment under this section is authorized 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 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 for up to 72 hours, during which time, staff of the substance use treatment facility shall attempt to engage the individual in voluntary 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 juvenile court or 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 under section 35.

(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 or guardian, is first given an opportunity to apply for voluntary admission under section 35B.

(d) A person shall be discharged at the end of the 72-hour period unless the person has consented to treatment under section 35B. If the superintendent determines that the failure to provide continued treatment to the person would create a likelihood of serious harm by reason of an alcohol or substance use disorder, the superintendent shall file a petition under section 35 prior to discharge.

(e) Except for an act of gross negligence or willful misconduct, a police officer or a clinical professional who, acting in good faith does not transport or authorize the transport of an individual to receive treatment under subsection (a) shall not be subject to any criminal or civil liability for failure to transport an individual under this section.

(f) The department, in coordination with the department of public health, shall promulgate regulations to implement this section and section 35B.

Section 35B. (a) Pursuant to regulations on admission procedures, the superintendent of a facility may receive and treat on a voluntary basis any person who has been transported 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. An application for voluntary treatment may be made by a person who has attained the age of 16 or by a parent or guardian 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.

(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. 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 the superintendent shall file a petition under section 35.

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 under section 35. 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 except where a parent or guardian who has applied for voluntary admission on behalf of a minor."