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GENERAL LAWS OF
Last updated January 2004
PART I. – ADMINISTRATION
OF THE GOVERNMENT
TITLE XVII – PUBLIC WELFARE
CHAPTER 123 – MENTAL HEALTH
Chapter 123: Section 1 Definitions
Section 1. The following words as used in this
section and sections two to thirty-seven, inclusive, shall, unless the context
otherwise requires, have the following meanings:
"Commissioner'', the commissioner of mental health.
"Department'', the department of mental health.
"Dependent funds'', those funds which a resident is
unable to manage or spend himself as determined by the periodic review.
"District
court'', the district court within the jurisdiction of which a facility is
located.
"Facility'', a public or private facility for the care
and treatment of mentally ill persons, except for the
"Fiduciary'', any guardian, conservator, trustee,
representative payee as appointed by a federal agency, or other person who
receives or maintains funds on behalf of another.
"Funds'',
all cash, checks, negotiable instruments or other income or liquid personal
property, and governmental and private pensions and payments, including
payments pursuant to a Social Security Administration program.
"Independent funds'', those funds which a resident is
able to manage or spend himself as determined by the periodic review.
"Licensed
mental health professional'', any person who holds himself out to the general
public as one providing mental health services and who is required pursuant to
such practice to obtain a license from the commonwealth.
"Likelihood
of serious harm'', (1) a substantial risk of physical harm to the person
himself as manifested by evidence of, threats of, or attempts at, suicide or
serious bodily harm; (2) a substantial risk of physical harm to other persons
as manifested by evidence of homicidal or other violent behavior or evidence
that others are placed in reasonable fear of violent behavior and serious
physical harm to them; or (3) a very substantial risk of physical impairment or
injury to the person himself as manifested by evidence that such person's
judgment is so affected that he is unable to protect himself in the community
and that reasonable provision for his protection is not available in the
community.
"Patient'', any person with whom a licensed mental
health professional has established a mental health professional-patient
relationship.
"Psychiatric
nurse'', a nurse licensed pursuant to section seventy-four of chapter one
hundred and twelve who specializes in mental health or psychiatric nursing.
"Psychiatrist'',
a physician licensed pursuant to section two of chapter one hundred and twelve
who specializes in the practice of psychiatry.
"Psychologist'',
an individual licensed pursuant to section one hundred and eighteen to one
hundred and twenty-nine, inclusive, of chapter one hundred and twelve.
“Qualified
physician'', a physician who is licensed pursuant to section two of chapter one
hundred and twelve who is designated by and who meets qualifications required
by the regulations of the department; provided that different qualifications
may be established for different purposes of this chapter. A qualified
physician need not be an employee of the department or of any facility of the
department.
"Qualified
psychiatric nurse mental health clinical specialist'', a psychiatric nurse
mental health clinical specialist authorized to practice as such under
regulations promulgated pursuant to the provisions of section eighty B of
chapter one hundred and twelve who is designated by and meets qualifications
required by the regulations of the department, provided that different
qualifications may be established for different purposes of this chapter. A
qualified psychiatric nurse mental health clinical specialist need not be an
employee of the department or of any facility of the department.
"Qualified
psychologist'', a psychologist who is licensed pursuant to sections one hundred
and eighteen to one hundred and twenty-nine, inclusive, of chapter one hundred
and twelve who is designated by and who meets qualifications required by the
regulations of the department, provided that different qualifications may be
established for different purposes of this chapter. A qualified psychologist
need not be an employee of the department or of any facility of the department.
"Reasonable
precautions'', any licensed mental health professional shall be deemed to have
taken reasonable precautions, as that term is used in section thirty-six B, if
such professional makes reasonable efforts to take one or more of the following
actions as would be taken by a reasonably prudent member of his profession
under the same or similar circumstances:
(a) communicates a threat of death
or serious bodily injury to the reasonably identified victim or victims;
(b) notifies an appropriate law
enforcement agency in the vicinity where the patient or any potential victim
resides;
(c) arranges for the patient to be
hospitalized voluntarily;
(d) takes appropriate steps, within
the legal scope of practice of his profession, to initiate proceedings for
involuntary hospitalization.
"Restraint'',
bodily physical force, mechanical devices, chemicals, confinement in a place of
seclusion other than the placement of an inpatient or resident in his room for
the night, or any other means which unreasonably limit freedom of movement.
"Social
worker'', an individual licensed pursuant to sections one hundred and thirty to
one hundred and thirty-two, inclusive, of chapter one hundred and twelve.
"Superintendent'', the
superintendent or other head of a public or private facility.
Chapter 123: Section 2 Regulations
Section 2. The department shall, in accordance
with section two of chapter thirty A and subject to appropriation, adopt
regulations consistent with this chapter which establish procedures and the
highest practicable professional standards for the reception, examination,
treatment, restraint, transfer and discharge of mentally ill persons in
departmental facilities. Said regulations shall be adaptable to changing
conditions and to advances in methods of care and treatment of the mentally
ill. Said regulations (1) shall include, but not necessarily be limited to,
provisions for inpatient care, both during the day and at night, halfway house
services, family care, aftercare and home treatment, (2) shall define the
categories of mental illness for the purpose of this chapter, and (3) may
provide for different procedures for specific types of patients or for
particular facilities.
Chapter 123: Section 3 Transfers; notice; emergencies
Section 3. The department may transfer any person
from any facility to any other facility which the department determines is
suitable for the care and treatment of such person; provided that no transfer
to a private facility shall occur except with the approval of the
superintendent thereof. At least six days before a transfer from a facility
occurs, the superintendent shall give written notice thereof to the person and
to the nearest relative, unless said person knowingly objects, or guardian of
such person; provided, however, if the transfer must be made immediately
because of an emergency, such notice shall be given within twenty-four hours
after the transfer. Except in emergency cases, no person who at any time prior
to transfer has given notice of his intention to leave a facility under the provisions
of section eleven shall be transferred until a final determination has been
made as to whether such person should be retained in a facility.
Chapter 123: Section 4 Periodic review; notice
Section 4. Each person within the care of the
department and each person at the Bridgewater state hospital under the
provisions of this chapter relative to the mentally ill shall be the subject of
a periodic review under the supervision of the superintendent, if said person
is in a department facility, or of the medical director if said person is at
the Bridgewater state hospital, which shall include, but not necessarily be
limited to, (1) a thorough clinical examination, (2) an evaluation of the legal
competency of the person and the necessity or advisability of having a guardian
or conservator appointed or removed, (3) a consideration of all possible
alternatives to continued hospitalization or residential care including, but
not necessarily limited to, a determination of the person's relationship to the
community and to his family, or his employment possibilities, and of available
community resources, foster care and convalescent facilities, and (4) unless a
guardian or conservator has been appointed, an evaluation of each person who is
an inpatient or resident of a facility in order to determine how much of his
funds shall be designated as dependent funds and how much as independent funds,
and the formulation and maintenance of a financial plan for the use of his
dependent funds. Said periodic review shall take place at least upon admission,
once during the first three months after admission, once during the second
three months after admission and annually thereafter. Said person shall be
given a physical examination by a physician licensed under the provisions of chapter
one hundred and twelve at least once in every twelve-month period during which
he is resident in said departmental facility or at the
The
superintendent or the medical director at the
If
the mentally ill person is in need of further care and treatment, the
superintendent or said medical director shall notify him and his guardian, or,
if there is no such guardian and the mentally ill person does not knowingly
object, his nearest relative, of that fact, and of his right to leave the
facility or said hospital if he was not committed under a court order. If said
mentally ill person was not committed under a court order and does not choose
further treatment as an inpatient, within fourteen days of said notification he
shall be discharged or be made the subject of a petition for a court ordered
commitment. Following any review under the provisions of this section, or at
any other time, any patient who is no longer in need of care as an inpatient
shall be discharged or placed on interim community leave.
Chapter 123: Section 5 Commitment or retention hearings; right to
counsel; medical examination; notice
Section 5. Whenever the provisions of this
chapter require that a hearing be conducted in any court for the commitment or
further retention of a person to a facility or to the Bridgewater state
hospital or for medical treatment including treatment with antipsychotic
medication, it shall be held as hereinafter provided. Such person shall have
the right to be represented by counsel and shall have the right to present
independent testimony. The court shall appoint counsel for such person whom it
finds to be indigent and who is not represented by counsel, unless such person
refuses the appointment of counsel. The court may provide an independent
medical examination for such indigent person upon request of his counsel or
upon his request if he is not represented by counsel. The person shall be
allowed not less than two days after the appearance of his counsel in which to
prepare his case and a hearing shall be conducted forthwith after such period
unless counsel requests a delay. Notice of the time and place of hearing shall
be furnished by the court to the department, the person, his counsel, and his
nearest relative or guardian. The court may hold the hearing at the facility or
said hospital.
Chapter 123: Section 6 Retention of persons; validity of orders; hearing
Section 6. (a) No person shall be retained at
a facility or at the Bridgewater state hospital except under the provisions of
paragraph (a) of section ten, the provisions of paragraphs (a), (b), and (c) of
section twelve, section thirteen, paragraph (e) of section sixteen and section
thirty-five or except under a court order or except during the pendency of a petition for commitment or to the pendency of a request under section fourteen. A court order
of commitment to a facility or to the
(b)
Following the filing of a petition for a commitment to a facility or to the
Chapter 123: Section 7 Commitment and retention of dangerous persons;
petition; notice; hearing
Section 7. (a) 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 to
said facility and retention of any patient at said facility whom said
superintendent determines that the failure to hospitalize would create a
likelihood of serious harm by reason of mental illness.
(b)
The medical director of the Bridgewater state hospital, the commissioner of
mental health, or with the approval of the commissioner of mental health, the
superintendent of a facility, may petition the district court or the division
of the juvenile court department in whose jurisdiction the facility or hospital
is located for the commitment to the Bridgewater state hospital of any male
patient at said facility or hospital when it is determined that the failure to
hospitalize in strict security would create a likelihood of serious harm by
reason of mental illness.
(c)
Whenever a court receives a petition filed under any provisions of this chapter
for an order of commitment of a person to a facility or to the Bridgewater
state hospital, such court shall notify the person, and his nearest relative or
guardian, of the receipt of such petition and of the date a hearing on such
petition is to be held. The hearing on a petition brought for commitment
pursuant to paragraph (e) of section 15, and sections 16 and 18, or for a subsequent
commitment pursuant to paragraph (d) of section 8 shall be commenced within 14
days of the filing of the petition, unless a delay is requested by the person
or his counsel. For all other persons, the hearing shall be commenced within 4
days of the filing of the petition, unless a delay is requested by the person
or his counsel. 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.
Chapter 123: Section 8 Proceedings to commit dangerous persons; notice;
hearing; orders; jurisdiction
Section 8. (a) After a hearing, unless such
hearing is waived in writing, the district court or the division of the
juvenile court department shall not order the commitment of a person at a
facility or shall not renew such order unless it finds after a hearing that (1)
such person is mentally ill, and (2) the discharge of such person from a
facility would create a likelihood of serious harm.
(b)
After hearing, unless such hearing is waived in writing, the district court or
the division of the juvenile court department shall not order the commitment of
a person at the Bridgewater state hospital or shall not renew such order unless
it finds that (1) such person is mentally ill; (2) such person is not a proper
subject for commitment to any facility of the department; and (3) the failure
to retain such person in strict custody would create a likelihood of serious
harm. If the court is unable to make the findings required by this paragraph,
but makes the findings required by paragraph (a), the court shall order the
commitment of the person to a facility designated by the department.
(c)
The court shall render its decision on the petition within ten days of the
completion of the hearing, provided, that for reasons stated in writing by the
court, the administrative justice for the district court department may extend
said ten day period.
(d)
The first order of commitment of a person under this section shall be valid for
a period of six months and all subsequent commitments shall be valid for a
period of one year; provided that if such commitments occur at the expiration
of a commitment under any other section of this chapter, other than a
commitment for observation, the first order of commitment shall be valid for a
period of one year; and provided further, that the first order of commitment to
the Bridgewater state hospital of a person under commitment to a facility shall
be valid for a period of six months. If no hearing is held before the
expiration of the six months commitment, the court may not recommit the person
without a hearing.
(e)
In the event that the hearing is waived and on the basis of a petition filed
under the authority of this chapter showing that a person is mentally ill and
that the discharge of the person from a facility would create a likelihood of
serious harm, the district court or the division of the juvenile court
department which has jurisdiction over the commitment of the person may order
the commitment of the person to such facility.
(f)
In the event that the hearing is waived and on the basis of a petition filed
under the authority of this chapter showing that a person is mentally ill, that
the person is not a proper subject for commitment to any facility of the
department and that the failure to retain said person in strict security would
create a likelihood of serious harm, the district court or the division of the
juvenile court department which has jurisdiction over a facility, or the Brockton
district court if a person is retained in the Bridgewater state hospital, may
order the commitment of the person to said hospital.
Chapter 123: Section 8B Treatment of committed persons with antipsychotic medication; petition; notice; hearing;
guardian
Section 8B. (a) With respect to any patient who
is the subject of a petition for a commitment or an order of a commitment for
care and treatment under the provisions of sections seven, eight, fifteen,
sixteen or eighteen, the superintendent of a facility or medical director of
the Bridgewater state hospital may further petition the district court or the
division of the juvenile court department in whose jurisdiction the facility is
located (i) to adjudicate the patient incapable of
making informed decisions about proposed medical treatment, (ii) to authorize,
by an adjudication of substituted judgment, treatment with antipsychotic
medications, and (iii) to authorize according to the applicable legal standards
such other medical treatment as may be necessary for the treatment of mental
illness.
(b)
A petition filed under this section shall be separate from any pending petition
for commitment and shall not be heard or otherwise considered by the court
unless the court has first issued an order of commitment on the pending
petition for commitment.
(c)
Whenever a court receives a petition filed under the provisions of this
section, such court shall notify the person, and his nearest relative or
guardian of the receipt of such petition and of the date a hearing on such
petition is to be held. The hearing shall be commenced within fourteen days of
the filing of the petition unless a delay is requested by the person or his
counsel, provided that the commencement of such hearing shall not be delayed
beyond the date of the hearing on the commitment petition if the petition was
filed concurrently with a petition for commitment.
(d)
After a hearing on the petition regarding antipsychotic
medication treatment the court shall not authorize medical treatment unless it
(i) specifically finds that the person is incapable
of making informed decisions concerning the proposed medical treatment, (ii)
upon application of the legal substituted judgment standard, specifically finds
that the patient would accept such treatment if competent, and (iii)
specifically approves and authorizes a written substituted judgment treatment
plan. The court may base its findings exclusively upon affidavits and other
documentary evidence if it (i) determines, after
careful inquiry and upon representations of counsel, that there are not
contested issues of fact and (ii) includes in its findings the reasons that
oral testimony was not required.
(e)
The court may delegate to a guardian who has been duly appointed by a court of
competent jurisdiction the authority to monitor the antipsychotic
medication treatment process to ensure that an antipsychotic
medication treatment plan is followed, provided such a guardian is readily
available for such purpose. Approval of a treatment plan shall not be withheld,
however, because such a guardian is not available to perform such monitoring.
In such circumstances, the court shall monitor the treatment process to ensure
that the treatment plan is followed.
(f)
Any authorization for treatment that is ordered pursuant to the provisions of
this section shall expire at the same time as the expiration of the order of
commitment that was in effect when the authorization for treatment was ordered;
provided that subsequent authorizations may be ordered and any party may at any
time petition the court for modification of a medical treatment authorization
that has been ordered pursuant to the standards and procedures established in
this section.
(g)
An adjudication of competency or incompetency with respect to treatment for
mental illness by a court pursuant to this section shall be binding upon the
juvenile court department in any subsequent guardianship proceedings only with
respect to matters which were the subject of the district court or juvenile
court department adjudication.
(h)
Any privilege established by section one hundred and thirty-five of chapter one
hundred and twelve or by section twenty B of chapter two hundred and
thirty-three, relating to confidential communications, shall not prohibit the
filing of reports or affidavits, or the giving of testimony, pursuant to this
section, for the purpose of obtaining treatment of a patient, provided that
such patient has been informed prior to making such communications that they
may be used for such purpose and has waived the privilege.
Chapter 123: Section 9 Review of matters of law; application for
discharge; notice; hearing
Section 9. (a) Matters of law arising in
commitment hearings, antipsychotic medication
hearings or incompetency for trial proceedings in a district court may be
reviewed by the appellate division of the district courts in the same manner as
the civil cases generally.
(b)
Any person may make written application to a justice of superior court at any
time and in any county, stating that he believes or has reason to believe that
a person named in such application is retained in a facility or the Bridgewater
state hospital, who should no longer be so retained, or that a person named in
such application is the subject of a medical treatment order issued by a
district court or a division of the juvenile court department and should not be
so treated, giving the names of all persons interested in his confinement or
medical treatment and requesting his discharge or other relief. The justice
within seven days thereof shall order notice of the time and place for hearing
to be given to the superintendent or medical director and to such other persons
as he considers proper; and such hearing shall be given promptly before a
justice of the superior court in any county. The justice shall appoint an
attorney to represent any applicant whom he finds to be indigent. The alleged
mentally ill person may be brought before the justice at the hearing upon a
writ of habeas corpus, upon a request approved by the justice. Pending the
decision of the court such person may be retained in the custody of the
superintendent or medical director. If the justice decides that the person is
not mentally ill or that failure to retain the person in a facility or the
Bridgewater state hospital would not create a likelihood of serious harm; has
not engaged in repeated and recent incidents of serious self-destructive
behavior or assaultive behavior as an inpatient at a
facility or an inmate of a place of detention; can be properly treated in any
other facility licensed, operated or regulated by the department, said person
shall be discharged. If the justice decides that a patient at the
Chapter 123: Section 10 Voluntary admissions; consultation with
attorney; discharge; outpatients; veterans
Section 10. (a) Pursuant to departmental
regulations on admission procedures, the superintendent may receive and retain
on a voluntary basis any person providing the person is in need of care and
treatment and providing the admitting facility is suitable for such care and
treatment. The application may be made (1) by a person who has attained the age
of sixteen, (2) by a parent or guardian of a person on behalf of a person under
the age of eighteen years, and (3) by the guardian of a person on behalf of a
person under his guardianship. 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 the provisions of this paragraph at any time he deems such discharge
in the best interest of such person, provided, however, that if a parent or
guardian made the application for admission, fourteen days' notice shall be
given to such parent or guardian prior to such discharge.
(b)
Pursuant to departmental regulations, the superintendent of a facility may
treat persons as outpatients providing application for outpatient treatment is
made in accordance with the application provisions of paragraph (a). The
superintendent may, in the best interest of the person, discontinue the
outpatient treatment of a person at any time.
(c)
The chief officer of any facility of the Veterans Administration within the
commonwealth may admit eligible veterans under the provisions of this chapter
and thereupon shall be vested with the same powers as the department has under
this chapter with respect to retention or discharge.
Chapter 123: Section 11 Voluntary admissions; withdrawal; notice;
examination; retention
Section 11. Any person retained in a facility
under the provisions of paragraph (a) of section ten shall be free to leave
such facility at any time, and any parent or guardian who requested the
admission of such person may withdraw such person at any time, upon giving
written notice to the superintendent. The superintendent may restrict the right
to leave or withdraw to normal working hours and weekdays and, in his
discretion, may require persons or the parents or guardians of persons to give
three days written notice of their intention to leave or withdraw. Where
persons or their parents or guardians are required to give three days notice of
intention to leave or withdraw, an examination of such persons may be conducted
to determine their clinical progress, their suitability for discharge and to
investigate other aspects of their case including their legal competency and
their family, home or community situation in the interest of discharging them
from the facility. Such persons may be retained at the facility beyond the
expiration of the three day notice period if, prior to the expiration of the
said three day notice period, the superintendent files
with the district court a petition for the commitment of such person at the
said facility. Before accepting an application for voluntary admission where
the superintendent may require three 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 hospital; (ii) the person is agreeing to
accept treatment; (iii) the person is required to provide the facility with
three 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 and that he 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 of hospitalization, the
application shall not be accepted.
Chapter 123: Section 12 Emergency restraint of dangerous persons;
application for hospitalization; examination
Section 12. (a) Any physician who is licensed
pursuant to section two of chapter one hundred and twelve or qualified
psychiatric nurse mental health clinical specialist authorized to practice as
such under regulations promulgated pursuant to the provisions of section eighty
B of said chapter one hundred and twelve or a qualified psychologist licensed
pursuant to sections one hundred and eighteen to one hundred and twenty-nine,
inclusive of said chapter one hundred and twelve, 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 four 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 or qualified psychiatric nurse mental health clinical specialist
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 or qualified psychiatric nurse mental health
clinical specialist 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 four 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. 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 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, such person
shall be given a psychiatric examination by a designated physician immediately
after his reception at such facility. If the physician 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
four 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 four 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 four 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 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 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 four days, but the superintendent may
discharge him at any time within the four 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.
Chapter 123: Section 13 Transfer of dangerous males to
Section 13. If the superintendent of any facility
determines that failure to retain a male resident therein in strict security
would create a likelihood of serious harm by reason of mental illness and that
the person's violent behavior constitutes an emergency, he may, with the
consent of the commissioner, transfer the person to the Bridgewater state
hospital for a period not to exceed five days. At the end of the five days the
person shall be returned to the facility unless before the end of the five day
period, the superintendent of the facility or medical director of the
Chapter 123: Section 14 Transfers from
Section 14. Whenever the medical director of
the Bridgewater state hospital certifies that the failure to retain any person
in strict security would not create a likelihood of serious harm by reason of
mental illness but that such person is in need of further care and treatment in
a facility, he shall request the commission to transfer such person to a
facility designated by the commissioner. Within thirty days of the receipt of
such request the commissioner shall execute the transfer, unless within said
period he files a petition under sections seven and eight for the further commitment
of the person to the
Chapter 123: Section 15 Competence to stand trial or criminal
responsibility; examination; period of observation; reports; hearing;
commitment; delinquents
Section 15. (a) Whenever a court of competent
jurisdiction doubts whether a defendant in a criminal case is competent to
stand trial or is criminally responsible by reason of mental illness or mental
defect, it may at any stage of the proceedings after the return of an
indictment or the issuance of a criminal complaint against the defendant, order
an examination of such defendant to be conducted by one or more qualified
physicians or one or more qualified psychologists. Whenever practicable,
examinations shall be conducted at the court house or place of detention where
the person is being held. When an examination is ordered, the court shall
instruct the examining physician or psychologist in the law for determining
mental competence to stand trial and criminal responsibility.
(b)
After the examination described in paragraph (a), the court may order that the
person be hospitalized at a facility or, if such person is a male and appears
to require strict security, at the Bridgewater state hospital, for a period not
to exceed twenty days for observation and further examination, if the court has
reason to believe that such observation and further examination are necessary
in order to determine whether mental illness or mental defect have so affected
a person that he is not competent to stand trial or not criminally responsible
for the crime or crimes with which he has been charged. Copies of the
complaints or indictments and the physician's or psychologist's report under
paragraph (a) shall be delivered to the facility or said hospital with the person.
If, before the expiration of such twenty day period, an examining qualified
physician or an examining qualified psychologist believes that observation for
more than twenty days is necessary, he shall so notify the court and shall
request in writing an extension of the twenty day period, specifying the reason
or reasons for which such further observation is necessary. Upon the receipt of
such request, the court may extend said observation period, but in no event
shall the period exceed forty days from the date of the initial court order of
hospitalization; provided, however, if the person requests continued care and
treatment during the pendency of the criminal
proceedings against him and the superintendent or medical director agrees to
provide such care and treatment, the court may order the further
hospitalization of such person at the facility or the Bridgewater state
hospital.
(c)
At the conclusion of the examination or the observation period, the examining
physician or psychologist shall forthwith give to the court written signed
reports of their findings, including the clinical findings bearing on the issue
of competence to stand trial or criminal responsibility. Such reports shall
also contain an opinion, supported by clinical findings, as to whether the
defendant is in need of treatment and care offered by the department.
(d)
If on the basis of such reports the court is satisfied that the defendant is
competent to stand trial, the case shall continue according to the usual course
of criminal proceedings; otherwise the court shall hold a hearing on whether
the defendant is competent to stand trial; provided that at any time before
trial any party to the case may request a hearing on whether the defendant is
competent to stand trial. A finding of incompetency shall require a
preponderance of the evidence. If the defendant is found incompetent to stand
trial, trial of the case shall be stayed until such time as the defendant
becomes competent to stand trial, unless the case is dismissed.
(e)
After a finding of guilty on a criminal charge, and prior to sentencing, the
court may order a psychiatric or other clinical examination and, after such
examination, it may also order a period of observation in a facility, or at the
Bridgewater state hospital if the court determines that strict security is
required and if such person is male. The purpose of such observation or
examination shall be to aid the court in sentencing. Such period of observation
or examination shall not exceed forty days. During such period of observation,
the superintendent or medical director may petition the court for commitment of
such person. The court, after imposing sentence on said person, may hear the
petition as provided in section eighteen, and if the court makes necessary findings
as set forth in section eight, it may in its discretion commit the person to a
facility or the Bridgewater state hospital. Such order of commitment shall be
valid for a period of six months. All subsequent proceedings for commitment
shall take place under the provisions of said section eighteen in the district
court which has jurisdiction of the facility or hospital. A person committed to
a facility or
(f)
In like manner to the proceedings under paragraphs (a), (b), (c), and (e) of
this section, a court may order a psychiatric or psychological examination or a
period of observation for an alleged delinquent in a facility to aid the court
in its disposition. Such period shall not exceed forty days.
Chapter 123: Section 16 Hospitalization of persons incompetent to stand
trial or not guilty by reason of mental illness; examination period; commitment;
hearing; restrictions; dismissal of criminal charges
Section 16. (a) The court having jurisdiction
over the criminal proceedings may order that a person who has been found
incompetent to stand trial or not guilty by reason of mental illness or mental
defect in such proceedings be hospitalized at a facility for a period of forty
days for observation and examination; provided that, if the defendant is a male
and if the court determines that the failure to retain him in strict security
would create a likelihood of serious harm by reason of mental illness, or other
mental defect, it may order such hospitalization at the Bridgewater state
hospital; and provided, further, that the combined periods of hospitalization
under the provisions of this section and paragraph (b) of section fifteen shall
not exceed fifty days.
(b)
During the period of observation of a person believed to be incompetent to
stand trial or within sixty days after a person is found to be incompetent to
stand trial or not guilty of any crime by reason of mental illness or other
mental defect, the district attorney, the superintendent of a facility or the
medical director of the Bridgewater state hospital may petition the court
having jurisdiction of the criminal case for the commitment of the person to a
facility or to the Bridgewater state hospital. However, the petition for the
commitment of an untried defendant shall be heard only if the defendant is
found incompetent to stand trial, or if the criminal charges are dismissed
after commitment. If the court makes the findings required by paragraph (a) of
section eight it shall order the person committed to a facility; if the court
makes the findings required by paragraph (b) of section eight, it shall order
the commitment of the person to the Bridgewater state hospital; otherwise the
petition shall be dismissed and the person discharged. An order of commitment
under the provisions of this paragraph shall be valid for six months. In the
event a period of hospitalization under the provisions of paragraph (a) has
expired, or in the event no such period of examination has been ordered, the
court may order the temporary detention of such person in a jail, house of
correction, facility or the Bridgewater state hospital until such time as the
findings required by this paragraph are made or a determination is made that
such findings cannot be made.
(c)
After the expiration of a commitment under paragraph (b) of this section, a
person may be committed for additional one year periods under the provisions of
sections seven and eight of this chapter, but no untried defendant shall be so
committed unless in addition to the findings required by sections seven and
eight the court also finds said defendant is incompetent to stand trial. If the
person is not found incompetent, the court shall notify the court with
jurisdiction of the criminal charges, which court shall thereupon order the
defendant returned to its custody for the resumption of criminal proceedings.
All subsequent proceedings for the further commitment of a person committed
under this section shall be in the court which has jurisdiction of the facility
or hospital.
(d)
The district attorney for the district within which the alleged crime or crimes
occurred shall be notified of any hearing conducted for a person under the
provisions of this section or any subsequent hearing for such person conducted
under the provisions of this chapter relative to the commitment of the mentally
ill and shall have the right to be heard at such hearings.
(e)
Any person committed to a facility under the provisions of this section may be
restricted in his movements to the buildings and grounds of the facility at
which he is committed by the court which ordered the commitment. If such
restrictions are ordered, they shall not be removed except with the approval of
the court. In the event the superintendent communicates his intention to remove
or modify such restriction in writing to the court and within fourteen days the
court does not make written objection thereto, such restrictions shall be
removed by the superintendent. If the superintendent or medical director of the
(f)
If a person is found incompetent to stand trial, the court shall send notice to
the department of correction which shall compute the date of the expiration of
the period of time equal to the time of imprisonment which the person would
have had to serve prior to becoming eligible for parole if he had been
convicted of the most serious crime with which he was charged in court and
sentenced to the maximum sentence he could have received, if so convicted. For
purposes of the computation of parole eligibility, the minimum sentence shall
be regarded as one half of the maximum sentence potential sentence. Where
applicable, the provisions of sections one hundred and twenty-nine, one hundred
and twenty-nine A, one hundred and twenty-nine B, and one hundred and twenty-nine
C of chapter one hundred and twenty-seven shall be applied to reduce such
period of time. On the final date of such period, the court shall dismiss the
criminal charges against such person, or the court in the interest of justice
may dismiss the criminal charges against such person prior to the expiration of
such period.
Chapter 123: Section 17 Periodic review of incompetence to stand trial;
petition; hearing; continued treatment; defense to charges; release
Section 17. (a) The periodic review of a person
found incompetent to stand trial shall include a clinical opinion with regard
to the person's competence to stand trial, which opinion shall be noted in
writing on the patient's record. If any person found incompetent to stand trial
is determined by the superintendent of the facility or the medical director of
the
(b)
If either a person or counsel of a person who has been found to be incompetent
to stand trial believes that he can establish a defense of not guilty to the
charges pending against the person other than the defense of not guilty by
reason of mental illness or mental defect, he may request an opportunity to
offer a defense thereto on the merits before the court which has criminal
jurisdiction. The court may require counsel for the defendant to support the
request by affidavit or other evidence. If the court in its discretion grants
such a request, the evidence of the defendant and of the commonwealth shall be
heard by the court sitting without a jury. If after hearing such petition the
court finds a lack of substantial evidence to support a conviction it shall
dismiss the indictment or other charges or find them defective or insufficient
and order the release of the defendant from criminal custody.
(c)
Notwithstanding any finding of incompetence to stand trial under the provisions
of this chapter, the court having jurisdiction may, at any appropriate stage of
the criminal proceedings, allow a defendant to be released with or without
bail.
Chapter 123: Section 18 Hospitalization of mentally ill prisoners;
examination; reports; hearing; commitment; voluntary admission; reduction of
sentence; discharge
Section 18. (a) If the person in charge of any
place of detention within the commonwealth has reason to believe that a person
confined therein is in need of hospitalization by reason of mental illness at a
facility of the department or at the Bridgewater state hospital, he shall cause
such prisoner to be examined at such place of detention by a physician or
psychologist, designated by the department as qualified to perform such
examination. Said physician or psychologist shall report the results of the
examination to the district court which has jurisdiction over the place of
detention or, if the prisoner is awaiting trial, to the court which has
jurisdiction of the criminal case. Such report shall include an opinion, with
reasons therefore, as to whether such hospitalization is actually required. The
court which receives such report may order the prisoner to be taken to a
facility or, if a male, to the
(b)
Notwithstanding any contrary provision of general or special law, a prisoner
who is retained in any place of detention within the commonwealth and who is in
need of care and treatment in a facility may, with the approval of the person
in charge of such place of detention apply for voluntary admission under the
provisions of paragraph (a) of section ten.
(c)
At the commencement of hospitalization under the provisions of paragraph (a) or
paragraph (b) the department of correction shall enter in the patient record of
such prisoner the date of the expiration of the sentence of the prisoner. Where
applicable, the provisions of sections one hundred and twenty-nine, one hundred
and twenty-nine A, one hundred and twenty-nine B and one hundred and
twenty-nine C of chapter one hundred and twenty-seven may be applied to reduce
such sentence, and on such date the prisoner shall be discharged; provided,
however, that if the superintendent or other head of a facility or the medical
director of the Bridgewater state hospital determines that the discharge of the
prisoner committed subject to the provisions of paragraph (a) would create a
likelihood of serious harm by reason of mental illness, he shall petition the
district court having jurisdiction over the facility prior to the date of
expiration to order the commitment of such person to a facility or to the
Bridgewater state hospital under the provisions of this chapter other than
paragraph (a); and provided, further, that any prisoner resident in a facility
subject to the provisions of paragraph (b) shall be free to leave such facility
subject to the provisions of section eleven.
(d)
In the event the provisions of this chapter require the release of a prisoner
from a facility or from the Bridgewater state hospital prior to the date of
expiration of his sentence calculated under the provisions of paragraph (c),
such prisoner shall be forthwith returned to the place of detention from which
he was transferred to such facility or to said hospital.
Chapter 123: Section 18A Facility residents; contribution towards cost
of counsel
Section 18A. A person who is a resident in a
facility of the department of mental health or in the Bridgewater state
hospital and who has funds held in trust for him by the department of mental
health or the department of correction, shall contribute toward the cost of any
counsel appointed pursuant to chapter two hundred and eleven D to provide
representation in proceedings under this chapter, in an amount not exceeding
five hundred dollars unless a larger contribution has been ordered by a court
pursuant to sections two and five of chapter two hundred and eleven D. Whenever
the department of correction or the department of mental health holds funds in
trust for such a person, the department shall turn over such funds, but not
exceeding five hundred dollars, to the treasurer to be credited toward the cost
of providing such counsel.
Chapter 123: Section 19 Parties or witnesses; determination of mental
condition
Section 19. In order to determine the mental
condition of any party or witness before any court of the commonwealth, the
presiding judge may, in his discretion, request the department to assign a
qualified physician or psychologist, who, if assigned shall make such
examinations as the judge may deem necessary.
Chapter 123: Section 20 Extradition of mental institution escapees
Section 20. (a) The governor may upon demand
deliver to the executive of any other state any person who has escaped from an
institution for the mentally ill to which he has been committed under the laws
of such state, and who may be dangerous to the safety of the public, or may
upon application appoint an agent to demand of the executive authority of any
other state any person who has escaped from an institution in this
commonwealth. Such demand or application shall be accompanied by an attested
copy of the commitment and sworn evidence of the superintendent or manager of
the institution stating that the person demanded has escaped from such
institution, and by such further evidence as the governor requires.
(b)
If the governor is satisfied that the demand made upon him under the preceding
paragraph conforms to law and ought to be complied with, he shall issue his
warrant under the seal of the commonwealth to an officer authorized to serve
warrants in criminal cases, directing him at the expense of the agent who makes
the demand, and at a time designated in the warrant, to deliver custody of such
person to such agent.
(c)
A person arrested upon such a warrant shall not be delivered to the agent of
another state until he has been notified of the demand for his surrender and
has had an opportunity to apply for a writ of habeas corpus, if he claims such
right of the officer making the arrest. If said writ is applied for, notice
thereof and of the time and place of hearing shall be given to the attorney
general or to the district attorney for the district where the arrest is made.
An officer who delivers such person in his custody upon such warrant to such
agent for rendition without having complied with this section shall forfeit not
more than one thousand dollars. Pending the determination of the court upon an
application for said writ, the person shall be detained in custody in a
suitable facility.
Chapter 123: Section 21 Transportation of mentally ill persons;
restraint
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 designated by him for this purpose who is present at the time of the
emergency or if the superintendent or director or designated physician 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. 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 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, if a physician is not available, by a
registered nurse or a certified physician assistant; provided, however, that
said minor shall be examined by a physician within one hour of the order for
restraint. A physician or, if a physician 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, 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. 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, when
applicable, by the registered nurse or certified physician assistant at the
time of each occurrence.
When
a designated physician is not present at the time and site of the emergency, an
order for chemical restraint may be issued by a designated physician who has
determined, after telephone consultation with a physician, 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 by 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 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 of 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
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
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 designated by such superintendent or director for this purpose.
Chapter 123: Section 22 Civil liability of physicians, qualified
psychologists, qualified psychiatric nurse mental health clinic specialists and
police officers
Section 22. Physicians, qualified
psychologists, qualified psychiatric nurse mental health clinical specialists
and police officers shall be immune from civil suits for damages for
restraining, transporting, applying for the admission of or admitting any
person to a facility or the Bridgewater state hospital, if the physician,
qualified psychologist, qualified psychiatric nurse mental health clinical
specialist or police officer acts pursuant to this chapter.
Chapter 123: Section 23 Rights of persons receiving services from
programs or facilities of department of mental health
Section 23. This section sets forth the
statutory rights of all persons regardless of age receiving services from any
program or facility, or part thereof, operated by, licensed by or contracting
with the department of mental health, including persons who are in state
hospitals or community mental health centers or who are in residential programs
or inpatient facilities operated by, licensed by or contracting with said
department. Such persons may exercise the rights described in this section
without harassment or reprisal, including reprisal in the form of denial of
appropriate, available treatment. The rights contained herein shall be in
addition to and not in derogation of any other statutory or constitutional
rights accorded such persons.
Any
such person shall have the following rights:
(a) reasonable access to a telephone to make and receive
confidential telephone calls and to assistance when desired and necessary to
implement such right; provided, that such calls do not constitute a criminal
act or represent an unreasonable infringement of another person's right to make
and receive telephone calls;
(b) to send and receive sealed, unopened, uncensored mail;
provided, however, that the superintendent or director or designee of an
inpatient facility may direct, for good cause and with documentation of specific
facts in such person's record, that a particular person's mail be opened and
inspected in front of such person, without it being read by staff, for the sole
purpose of preventing the transmission of contraband. Writing materials and
postage stamps in reasonable quantities shall be made available for use by such
person. Reasonable assistance shall be provided to such person in writing,
addressing and posting letters and other documents upon request;
(c) to receive visitors of such
person's own choosing daily and in private, at reasonable times. Hours during
which visitors may be received may be limited only to protect the privacy of
other persons and to avoid serious disruptions in the normal functioning of the
facility or program and shall be sufficiently flexible as to accommodate
individual needs and desires of such person and the visitors of such person.
(d) to a humane psychological and
physical environment. Each such person shall be provided living quarters and
accommodations which afford privacy and security in resting, sleeping,
dressing, bathing and personal hygiene, reading and writing and in toileting.
Nothing in this section shall be construed to require individual sleeping
quarters.
(e) to receive at any reasonable time as defined in department
regulations, or refuse to receive, visits and telephone calls from a client's
attorney or legal advocate, physician, psychologist, clergy member or social
worker, even if not during normal visiting hours and regardless of whether such
person initiated or requested the visit or telephone call. An attorney or legal
advocate working under an attorney's supervision and who represents a client
shall have access to the client and, with such client's consent, the client's
record, the hospital staff responsible for the client's care and treatment and
any meetings concerning treatment planning or discharge planning where the
client would be or has the right to be present. Any program or facility, or
part thereof, operated by, licensed by or contracting with the department shall
ensure reasonable access by attorneys and legal advocates of the Massachusetts
Mental Health Protection and Advocacy Project, the Mental Health Legal Advisors
Committee, the committee for public counsel services and any other legal service
agencies funded by the Massachusetts Legal Assistance Corporation under the
provisions of chapter 221A, to provide free legal services. Upon admission, and
upon request at any time thereafter, persons shall be provided with the name,
address and telephone number of such organizations and shall be provided with
reasonable assistance in contacting and receiving visits or telephone calls
from attorneys or legal advocates from such organizations; provided, however,
that the facility shall designate reasonable times for unsolicited visits and
for the dissemination of educational materials to persons by such attorneys or
legal advocates. The department shall promulgate rules and regulations further
defining such access. Nothing in this paragraph shall be construed to limit the
ability of attorneys or legal advocates to access clients
records or staff as provided by any other state or federal law.
Any
dispute or disagreement concerning the exercise of the aforementioned rights in
clauses (a) to (e), inclusive, and the reasons therefor
shall be documented with specific facts in the client's record and subject to
timely appeal.
Any
right set forth in clauses (a) and (c) may be temporarily suspended, but only
for a person in an inpatient facility and only by the superintendent, director,
acting superintendent or acting director of such facility upon such person;
concluding, pursuant to standards and procedures set forth in department
regulations that, based on experience of such person's exercise of such right,
further such exercise of it in the immediate future would present a substantial
risk of serious harm to such person or others and that less restrictive
alternatives have either been tried and failed or would be futile to attempt.
The suspension shall last no longer than the time necessary to prevent the harm
and its imposition shall be documented with specific facts in such person's
record.
A
notice of the rights provided in this section shall be posted in appropriate
and conspicuous places in the program or facility and shall be available to any
such person upon request. The notice shall be in language understandable by
such persons and translated for any such person who cannot read or understand
English.
The
department, after notice and public hearing pursuant to section 2 of chapter
30A, shall promulgate regulations to implement the provisions of this section.
In
addition to the rights specified above and any other rights guaranteed by law,
a mentally ill person in the care of the department shall have the following
legal and civil rights: to wear his own clothes, to keep and use his own
personal possessions including toilet articles, to keep and be allowed to spend
a reasonable sum of his own money for canteen expenses and small purchases, to
have access to individual storage space for his private use, to refuse shock
treatment, to refuse lobotomy, and any other rights specified in the
regulations of the department; provided, however, that any of these rights may
be denied for good cause by the superintendent or his designee and a statement
of the reasons for any such denial entered in the treatment record of such
person.
Chapter 123: Section 24 Legal capacity of persons admitted or committed
Section 24. No person shall be deemed to be
incompetent to manage his affairs, to contract, to hold professional or
occupational or vehicle operators licenses or to make a will solely by reason
of his admission or commitment in any capacity to the treatment or care of the
department or to any public or private facility, nor shall departmental
regulations restrict such rights.
Chapter 123: Section 25 Guardian or conservator; appointment
Section 25. In addition to the periodic review
under section four of this chapter, whenever the superintendent has reason to
believe that a person who has been under the care of the department as an
inpatient or resident for more than six months, who is not under guardianship
or conservatorship, is unable to care for his
property, he shall promptly notify said person's nearest living relative and
recommend that the necessary steps be taken for the appointment of a guardian
or a conservator.
Chapter 123: Section 26 Deposit of funds held in trust for inpatients or
residents; unclaimed funds and personal property; fiduciaries
Section 26. (a) The superintendent may deposit
in any bank organized and existing under the laws of the commonwealth funds
belonging to persons who are inpatients or residents at such facility, funds
deposited by relatives or friends of such persons, and other funds belonging to
such persons except that independent funds shall only be deposited with the
consent of the resident. The interest earned by any funds so deposited shall be
credited to the account of such person. Such funds shall be held in trust or
used for the benefit of such persons except that such person shall have an
unrestricted right to manage and spend in his sole discretion all his
independent funds.
(b)
Any funds held in trust by the superintendent for any persons who have been
discharged from or who have otherwise left any facility of the department, or
the custody of the department, which shall have remained unclaimed for more
than seven years, shall be paid by the superintendent to the state treasurer to
be held subject to being paid to the person establishing a lawful right
thereto, with interest at the rate of five per cent per annum from the time
when it was so paid to the state treasurer to the time when it is paid by him
to such person; provided, however, that the department shall first be paid from
such funds for any sum due it for charges to the person for whom such funds
were originally deposited, and provided, further, that if such amount does not
exceed fifty dollars, the superintendent may pay such sum to the state
treasurer immediately. The balance of such funds, after six years from the date
when such funds were paid to the state treasurer, may be used as part of the
ordinary revenue of the commonwealth. Any person may, however, establish his
claim to such funds after the expiration of such six year period and any claim
so established shall be paid from the ordinary revenue of the commonwealth. Any
person claiming a right to funds deposited with the state treasurer under this
section may establish the same by a petition to the probate court; provided,
however, that in cases where claims amount to less than fifty dollars, the
claims may be presented to the comptroller who shall examine the same and allow
and certify for payment such as may be proved to his satisfaction.
(c)
Personal property belonging to or deposited for the benefit of any persons who
have been discharged from or who have otherwise left any facility or the
custody of the department, which shall have remained unclaimed for more than
one year shall be sold, or if without value, otherwise disposed of by the
superintendent; provided, however, that no less than thirty days prior to such
disposition the superintendent shall send notice of the intended sale or
disposition of such property to the person at his last known residential
address, to the nearest relative or guardian or conservator of such person or
the person with whom such person last resided. If such person, relative or
other person does not within such thirty day period object to such sale or
disposition, the department may sell or dispose of the property in accordance
with its regulations. Funds received as a result of such sale or disposition
shall be disposed of in accordance with the provisions of subsection (b) of
this section.
(d)
All fiduciaries of persons who are inpatients or residents at a departmental
facility shall register with the superintendent of such facility on a form
supplied by the department.
(e)
The department shall establish procedures to make the fiduciaries accountable
to the department for all funds belonging to such inpatients and residents.
These procedures shall require an annual report by the fiduciary to the
department on a form supplied by the department indicating the manner in which
such funds were managed or expended during the report period. The annual report
shall be submitted by the fiduciary under penalty of perjury pursuant to
sections one and one A of chapter two hundred and sixty-eight.
(f)
A fiduciary who fails to register with the department or who fails to submit an
annual report to the department shall be guilty of a misdemeanor and upon
conviction thereof shall be subject to a fine of not more than five hundred
dollars.
(g)
A fiduciary who embezzles or fraudulently converts or
appropriates money, goods, or property held or possessed by him for the use and
benefit of the resident shall be subject to penalties prescribed in section
fifty-seven of chapter two hundred and sixty-six.
(h)
A guardian, trustee, or conservator shall be removed from his duties upon his
conviction of any of the offenses enumerated in paragraphs (f) and (g). The
department shall petition the appropriate federal agency for the removal of a
representative payee from his duties upon his conviction of any of the offenses
enumerated in said paragraphs (f) and (g).
Chapter 123: Section 27 Administration of estate of deceased inpatient
or resident
Section 27. If an inpatient or resident of any
facility dies leaving an estate which does not exceed five thousand dollars in
value, the superintendent shall notify the nearest living relative of such
inpatient or resident of such fact, and if, after the expiration of thirty days
from the date of such notice, no petition for administration of said estate has
been filed, the department may provide for the administration of said estate
under the provisions of section sixteen of chapter one hundred and ninety-five.
Chapter 123: Section 28 Violent or unnatural death of patients; notice
to district attorney
Section 28. Upon the death of any person
confined to a mental institution under the control of the department, the
superintendent of such institution shall, if he is of the opinion that the
death may have resulted from violence or unnatural causes, immediately notify
the district attorney for the district in which the death occurred, giving him
the name and address of the person who died and the cause of death.
Chapter 123: Section 29 Instruction and education; work programs; sale
of work products
Section 29. (a) In cooperation with other state
departments and agencies the department shall cause to be given to persons
under its care instruction and education as may be appropriate for such persons
to undertake, especially persons who are unable to engage in programs for
patient-trainees.
(b)
In cooperation with other state departments and agencies, the department shall
cause to be established at each facility programs for persons under its care
who would be assisted by performing work in or about such facility. The
department shall pay or credit such trainee for work performed by him under
said program in accordance with payment schedules established by the department
in its regulations and approved by the commissioner of administration.
(c)
The department may permit the sale of the work products of any person under its
care on such conditions as it shall determine. The department shall also
determine the price for which said goods may be sold, and the portion, if any,
of the proceeds of each sale which shall be returned to the commonwealth to
reimburse it for its costs in connection therewith. The balance of the proceeds
of any such sale shall be held in trust in accordance with the provisions of
paragraph (a) of section twenty-six.
Chapter 123: Section 30 Unauthorized absence of patients; notification
of police, et al.; return
Section 30. If a patient or resident in a
facility of the department is absent without authorization the superintendent
of the facility shall notify the state and local police, the district attorney
of the county wherein the facility is located and the next of kin of such
patient or resident. Any patient or resident in a facility of the department
who is absent for less than six months without authorization consistent with
the provisions of this chapter, the regulations of the department, or the rules
of said facility may be returned by a police officer or other person designated
by the superintendent or the director. Said six month limitation shall not
apply to persons who have been found not guilty of a criminal charge by reason
of insanity nor to persons who have been found
incompetent to stand trial on a criminal charge.
Chapter 123: Section 31 Medicine and drugs; indigent patients
Section 31. Medicine and drugs shall be
furnished free of charge to any patient at the outpatient clinic of a facility
of the department who, in the opinion of the head of the facility or his
representatives, is indigent and requires them. For the purpose of this
section, the determination as to whether the patient is indigent shall be
final; provided, however, that all medicines and drugs furnished a patient who
meets the eligibility requirements for medical assistance under chapter one
hundred and eighteen E shall be provided in accordance with the provisions of
that chapter.
Chapter 123: Section 32 Charges for care of persons in facilities
Section 32. The department may make charges for
the care of any person in its facilities. To the extent that any person in its
facilities is eligible for third party payment of charges for care, the
department shall make said charges for care at rates established by the
division of health care finance and policy. To the extent that third party
payment is not available, or is not sufficient to pay said charges, the charges
may be recovered from said person, or from any person with a legal obligation
to support the person; provided, however, that said person shall be entitled to
retain one thousand dollars in cash or personal property; and provided,
further, that the department shall make adjustments to the charges based upon
said person's individual circumstances. The department also shall establish, by
regulation, a system of charges for care in programs funded by or under a
contract with the department which is consistent with the provisions of this
section.
Chapter 123: Section 33 Expenses of apprehension, examination, hearing,
commitment or delivery; certification; audit; payment; fees
Section 33. All necessary expenses attending
the apprehension, examination, hearing, commitment or delivery of a mentally
ill person, or an alleged alcoholic shall be allowed and certified by the judge
if said person is committed pursuant to this chapter, and presented as often as
once a year to the comptroller, who shall examine and audit the same. Necessary
expenses attending the apprehension, examination or hearing of any person
sought to be committed pursuant to this chapter but not so committed shall be
so presented, examined and audited if they have been allowed in the discretion
of the judge and certified by him. All expenses certified, examined and audited
as provided in this section shall be paid by the commonwealth. If application
is made for the commitment of a person whose expenses and support are not to be
paid by the commonwealth, said expenses shall be paid by the applicant or by a
person in his behalf. The compensation of the physicians and officers taking
part in the commitment or admission of persons to facilities in accordance with
this chapter shall be as follows: The fee for each physician making an
authorized mental examination and for making a written report thereon to the
court, or for making a medical certificate, shall be twenty-five dollars, and
twenty cents for each mile traveled one way or such other rates as may be set
by the division of health care finance and policy. Any physician required to
appear before a judge or justice in any commitment proceedings, in which such physician
has made an examination, shall receive a fee of twenty-five dollars, and twenty
cents for each mile traveled one way for such appearance before the court, or
such other rate as may be set by the division of health care finance and
policy. The fees for officers servicing process shall be the same as are
allowed by law in like cases.
Chapter 123: Section 34 Commitment or transfer to Veterans
Administration or other federal agency
Section 34. (a) The judgment or order of
commitment by a court of competent jurisdiction of another state or of the
district of Columbia, committing a person to the Veterans Administration or
other agency of the United States government for care or treatment shall have
the same force and effect as to the committed person while in this commonwealth
as in the jurisdiction in which is situated the court entering the judgment or
making the order; and the courts of the committing state, or of the District of
Columbia, shall be deemed to have retained jurisdiction of the person so
committed for the purpose of inquiring into the mental condition of such person,
and of determining the necessity for continuance of his restraint. The law of
the committing state or district shall govern with respect to the authority of
the chief officer of any facility of said Veterans Administration or of any
institution operated in this commonwealth by any other agency of the
(b)
Whenever, in any proceeding under the laws of this commonwealth for the
commitment of a person alleged to be of unsound mind or otherwise in need of
care and treatment in a facility or other institution for his proper care, it
is determined after such adjudication of the status of such person as may be
required by law that commitment to a facility for the mentally ill or other
institution is necessary for care and treatment and it appears that such person
is eligible for care or treatment by said Veterans Administration or other
agency of the United States government, the court, upon receipt of certificate
from said Veterans Administration or such other agency showing that facilities
are available and that such person is eligible for care or treatment therein,
may commit such person to said Veterans Administration or other agency. The
person whose commitment is sought shall be personally served with such notice
of the pending commitment proceedings as is required, and in such manner as is
provided, by the laws of the commonwealth; and nothing in this section shall
affect his right to appear and be heard in the proceedings. Upon commitment,
such person, when admitted to any facility operated by any such agency within
or without this commonwealth shall be subject to the rules and regulations of
said Veterans Administration or other agency. The chief officer of any facility
of said Veterans Administration or institution operated by any other agency of
the
(c)
Upon receipt of a certificate of said Veterans Administration or such other
agency of the United States that facilities are available for the care or
treatment of any person committed to any facility for the mentally ill or other
institution for the care or treatment of persons similarly afflicted and that
such person is eligible for care or treatment, the department or the committing
court may cause the transfer of such person to said Veterans Administration or
other agency of the United States for care or treatment. Upon effecting any such transfer, the committing court or proper
officer thereof shall be notified thereof by the transferring agency. No person
shall be transferred to said Veterans Administration or other agency of the
United States if he is confined pursuant to conviction of any felony or
misdemeanor or if he has been acquitted of the charge solely on the grounds of
insanity, unless prior to transfer the court or other authority originally
committing such person shall enter an order for such transfer after appropriate
motion and hearing. Any person transferred as provided in this subsection shall
be deemed to be committed to said Veterans Administration or other agency of
the
Chapter 123: Section 36 Records; inspection
Section 36. The department shall keep records
of the admission, treatment and periodic review of all persons admitted to
facilities under its supervision. Such records shall be private and not open to
public inspection except (1) upon proper judicial order whether or not in
connection with pending judicial proceedings, (2) that the commissioner shall
allow the attorney of a patient or resident to inspect records of said patient
or resident if requested to do so by the patient, resident or attorney, (3)
that the commissioner may permit inspection or disclosure when in the best
interest of the patient or resident as provided in the rules and regulations of
the department and (4) as required by section one hundred and seventy-eight C
to one hundred and seventy-eight O, inclusive, of chapter six. This
section shall govern the patient records of the department notwithstanding any
other provision of law.
Chapter 123: Section 36A Court records of examination or commitment;
privacy
Section 36A. All reports of examinations made to
a court pursuant to sections one to eighteen, inclusive, section forty-seven
and forty-eight shall be private except in the discretion of the court. All
petitions for commitment, notices, orders of commitment and other commitment
papers used in proceedings under sections one to eighteen and section
thirty-five shall be private except in the discretion of the court. Each court
shall keep a private docket of the cases of persons coming before it believed
to be mentally ill, including proceedings under section thirty-five; provided
that nothing in this section shall prevent public inspection of any complaints
or indictments in a criminal case, or prevent any notation in the ordinary
docket of criminal cases concerning commitment proceedings under sections one
to eighteen against a defendant in a criminal case. Notwithstanding the
provisions of this paragraph, any person who is the subject of an examination
or a commitment proceeding, or his counsel, may inspect all reports and papers
filed with the court in a pending proceeding, and the prosecutor in a criminal
case may inspect all reports and papers concerning commitment proceedings that
are filed with the court in a pending case.
Chapter 123: Section 36B Duty to warn patient's potential victims; cause
of action
Section 36B. (1) There shall be no duty owed by
a licensed mental health professional to take reasonable precautions to warn or
in any other way protect a potential victim or victims of said professional's
patient, and no cause of action imposed against a licensed mental health
professional for failure to warn or in any other way protect a potential victim
or victims of such professional's patient unless: (a) the patient has
communicated to the licensed mental health professional an explicit threat to
kill or inflict serious bodily injury upon a reasonably identified victim or
victims and the patient has the apparent intent and ability to carry out the
threat, and the licensed mental health professional fails to take reasonable
precautions as that term is defined in section one; or (b) the patient has a
history of physical violence which is known to the licensed mental health
professional and the licensed mental health professional has a reasonable basis
to believe that there is a clear and present danger that the patient will
attempt to kill or inflict serious bodily injury against a reasonably
identified victim or victims and the licensed mental health professional fails
to take reasonable precautions as that term is defined by said section one.
Nothing in this paragraph shall be construed to require a mental health
professional to take any action which, in the exercise of reasonable
professional judgment, would endanger such mental health professional or
increase the danger to potential victim or victims.
(2)
Whenever a licensed mental health professional takes reasonable precautions, as
that term is defined in section one of chapter one hundred and twenty-three, no
cause of action by the patient shall lie against the
licensed mental health professional for disclosure of otherwise confidential
communications.
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