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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE II EXECUTIVE AND ADMINISTRATIVE OFFICERS
    OF THE COMMONWEALTH
  • CHAPTER 12 DEPARTMENT OF THE ATTORNEY GENERAL, AND THE DISTRICT ATTORNEYS
  • Section 11L Unlicensed mental health and unlicensed health professionals; sexual contact with patients or clients; temporary restraining order, injunction; violation; penalty

Section 11L. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:—

“Former patient”, any person who obtained a professional consultation, diagnostic or therapeutic service from an unlicensed health professional or unlicensed mental health professional within one year prior to sexual contact with the unlicensed health professional or unlicensed mental health professional.

“Health services”, shall include the rendering or offering to render services for the purpose of treating or diagnosing physical disorders or distress.

“Mental health services”, shall include the rendering or offering to render services for the purpose of treating, diagnosing or assessing mental or emotional disorders or distress, modifying behaviors, or alleviating problems pertaining to interpersonal relationships, work and life adjustment, and personal effectiveness which are caused by mental or emotional disorders or distress.

“Patient”, any person who obtains a professional consultation, diagnostic, or therapeutic service from an unlicensed health professional or unlicensed mental health professional.

“Sexual contact”, shall include the following, whether or not occurring with the consent of a patient or former patient:

(1) sexual intercourse, cunnilingus, fellatio, anal intercourse or any intrusion, however slight, into the genital or anal openings of the patient’s or former patient’s body by any object used by the unlicensed health professional or unlicensed mental health professional for that purpose, or any intrusion, however slight, into the genital or anal openings of the body of the unlicensed health professional or unlicensed mental health professional by any part of the patient’s or former patient’s body or by any object used by the patient or former patient for that purpose, if consented to by the unlicensed health professional or unlicensed mental health professional;

(2) sustained kissing of the mouth or kissing or intentional touching by the unlicensed health professional or unlicensed mental health professional of the patient’s or former patient’s genital area, groin, inner thigh, buttocks, or breast or the clothing covering any of these body parts; or sustained kissing of the mouth or kissing or intentional touching by the patient or former patient of the unlicensed mental health professional’s or unlicensed health professional’s genital area, groin, inner thigh, buttocks or breast or the clothing covering any of these body parts if the unlicensed mental health professional or unlicensed health professional consents to the kissing or intentional touching. The term sexual contact, shall not include conduct described in the definition of sexual contact that is in accordance with practices generally recognized as legitimate by the health or mental health professions, casual social contact not intended to be sexual in character, or inadvertent or unintentional touching.

“Unlicensed health professional”, a person who is not licensed or registered to provide health services by a board of registration duly authorized to grant licenses or registration to persons engaged in the practice of providing health services or whose license or registration to provide health services has been returned or revoked by such board.

“Unlicensed mental health professional”, a person who is not licensed or registered to provide mental health services by a board of registration duly authorized to grant licenses or registration to persons engaged in the practice of providing mental health services or whose license or registration to provide mental health services has been returned or revoked by such board.

(b) Whenever the attorney general has probable cause to believe that an unlicensed mental health professional or unlicensed health professional is having or has had sexual contact with one or more patients or clients while such health professional or mental health professional was licensed or unlicensed, or former patients or clients, and that said unlicensed health professional or unlicensed mental health professional poses a threat to the health, safety, or welfare of members of the public who are or may be patients or clients of the unlicensed health or unlicensed mental health professional, the attorney general may bring an action in the name of the commonwealth against said unlicensed health professional or unlicensed mental health professional to restrain by temporary restraining order or preliminary or permanent injunction said unlicensed health professional or unlicensed mental health professional from providing, offering to provide, or representing himself as being able to provide health services or mental health services.

At least five days prior to the commencement of any action brought under this section, except when a temporary restraining order is sought, the attorney general shall notify the unlicensed health professional or unlicensed mental health professional of his intended action, and give said unlicensed health professional or unlicensed mental health professional an opportunity to confer with the attorney general or his representative in person or by counsel or other representative as to the proposed action.

Such notice shall be given by mail, postage prepaid, to his usual place of business, or if he has no usual place of business, to his last known address.

(c) The action may be brought either in the superior court for the county in which the conduct complained of occurred or in the superior court for the county in which the unlicensed health professional or unlicensed mental health professional resides or has his principal place of business.

Said court may issue temporary restraining orders or preliminary or permanent injunctions and make such other orders or judgments as it may deem appropriate.

(d) No injunction shall be issued pursuant to this section unless the court finds that the defendant has had an opportunity for an evidentiary hearing as to all contested material issues of fact. Issues decided in a prior evidentiary hearing in a court or in an administrative proceeding may be applied to a proceeding pursuant to this section in compliance with the Massachusetts Civil Rules of Procedure.

The court issuing an injunction against an unlicensed health professional or unlicensed mental health professional pursuant to this section shall retain jurisdiction, and the cause shall be continued. Any unlicensed health professional or unlicensed mental health professional who is restrained as a result of an action brought pursuant to this section may petition the court for a modification or termination of the injunction, upon ten days notice to the attorney general.

(e) Any district attorney or other law enforcement office receiving notice of any alleged violation of this section or violation of an injunction or order issued in an action brought under this section shall immediately forward written notice of the same together with any information that he may have to the office of the attorney general.

(f) In an action brought pursuant to this section, whenever the court issues a temporary restraining order or a preliminary or permanent injunction, ordering a defendant to refrain from certain conduct or activities, the order issued shall contain the following statement:

VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.

The clerk shall transmit two certified copies of each such order issued under this section to each appropriate law enforcement agency having jurisdiction over locations where such defendant is alleged to have committed the act giving rise to the action, and such law enforcement agency shall serve one copy of the order upon the defendant. Unless otherwise ordered by the court, service shall be by delivering a copy in hand to the defendant.

After any such order has been served upon the defendant, any violation of such order shall be punishable by a fine of not more than twenty-five thousand dollars or by imprisonment for not more than two and one-half years in a house of correction, or both such fine and imprisonment.

Law enforcement agencies shall establish procedures adequate to ensure that all officers responsible for the enforcement of the order are informed of the existence and terms of such order. Whenever any law enforcement officer has probable cause to believe that such defendant has violated the provisions of this section, such officer shall have the authority to arrest said defendant.

Whenever the court vacates a temporary restraining order or a preliminary or permanent injunction issued under this section, the clerk shall promptly notify in writing each appropriate law enforcement agency which has been notified of the issuance of the order and shall direct each such agency to destroy all record of such vacated order, and such agency shall comply with such directive.

(g) Nothing contained herein shall prohibit the attorney general in his discretion from beginning an action for civil contempt rather than seeking criminal charges for an alleged violation of an order issued under this section. A court making a finding that an unlicensed health professional or unlicensed mental health professional is in civil contempt by reason of an alleged violation of an injunction or the order entered under this section shall assess a civil penalty of not more than ten thousand dollars for each such violation found.