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The 193rd General Court of the Commonwealth of Massachusetts

Section 21: Transportation of mentally ill persons; restraint

[See Order of the Commissioner of Public Health, dated April 3, 2020, (2019 MA EO H20-22) related to the COVID-19 State of Emergency, for potential impact on the terms of this section.]

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

In the case of persons being hospitalized under section 6, the applicant shall authorize practicable and safe means of transport including, where appropriate, departmental or police transport.

Restraint of a person with a mental illness 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 advanced practice registered nurse designated by the superintendent or director for this purpose who is present at the time of the emergency or if the superintendent, director, designated physician or designated qualified advanced practice registered nurse is not present at the time of the emergency, non-chemical means of restraint may be used for a period of not more than 1 hour; provided further, that within 1 hour the person in restraint shall be examined by the superintendent, director, designated physician or designated qualified advanced practice registered nurse; and provided further, that if the examination has not occurred within 1 hour, the patient may be restrained for an additional period of not more than 1 hour until such examination is conducted and the superintendent, director, designated physician or designated qualified advanced practice registered nurse 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 15 minutes of the order for restraint by a physician or qualified advanced practice registered nurse or, if a physician or qualified advanced practice registered nurse 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 advanced practice registered nurse within 1 hour of the order for restraint. A physician or qualified advanced practice registered nurse or, if a physician or qualified advanced practice registered nurse 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 2 hours in any 24–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 1 hour in any 24–hour period shall be reviewed within 2 working days by the director of the facility. The director shall forward a copy of the report on each such instance of restraint to the human rights committee of that facility and, if 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 3 hours beyond which time it may be renewed upon personal examination by the superintendent, director, designated physician or designated qualified advanced practice registered nurse or, for adults, by a registered nurse or a certified physician assistant; provided, however, that no adult shall be restrained for more than 6 hours beyond which time an order may be renewed only upon personal examination by a physician or qualified advanced practice registered nurse. The reason 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, designated physician or, when applicable, by the registered nurse, certified physician or qualified advanced practice registered nurse assistant at the time of each occurrence.

When a designated physician or qualified advanced practice registered nurse 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 advanced practice registered nurse who has determined, after telephone consultation with a physician or qualified advanced practice registered nurse, 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 2 hours. In that event, the person kept in restraints shall be observed at least every 5 minutes; provided, further, that the superintendent, director, designated physician or designated qualified advanced practice registered nurse 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 8 hours in any 24-hour period shall be authorized by the superintendent or director or the person specifically designated to act in the absence of the superintendent or director; provided, however, that when such restraint is authorized in the absence of the superintendent or director, such authorization shall be reviewed by the superintendent or director upon the return of the superintendent or director.

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 state hospital.

Not later than 24 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 30 days and statistical records shall be kept thereof for each facility, including Bridgewater state hospital, and each designated physician or qualified advanced practice registered nurse. Furthermore, such reports, excluding personally identifiable 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 this section shall rest with the department, the superintendent or director of each facility or the physician or qualified advanced practice registered nurse designated by such superintendent or director for this purpose.