DLC
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Boston, Massachusetts 02108
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Disability Law Center, Inc.
32 Industrial Drive East
Northampton, MA 01060
(413) 584-6337 Voice
(800) 222-5619 Voice
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(413) 584-2976 Fax
http://www.dlc-ma.org
email: mail@dlc-ma.org
FORCED HOSPITALIZATION:
VOLUNTARY AND INVOLUNTARY ADMISSIONS
PRESENTED BY
NANCY SVIRIDA, ESQ.
STAFF ATTORNEY
DISABILITY LAW CENTER
MARCH 7, 2006
FLORENCE CIVIC CENTER
6-8PM
Table of Contents
Definitions…...………………………….…….Page 3
A. Mental Illness
B. Likelihood of Serious Harm
C. Alcoholism/Alcoholic
D. Substance Abuse/Abuser
II. Voluntary Admissions………………...……Page 4
A. Voluntary Status
B. Conditional Voluntary Status
III. Involuntary Admissions……………….……Page 5
A. Involuntary Psychiatric Admissions: Section
12 & the “Pink Paper”
B. Involuntary Criminal Justice Admissions
IV. Involuntary Commitments…………………Page 7
A. Court Petition and Appointed Attorney
B. When is the hearing with the Judge?
C. What’s the standard for commitment?
D. Court must decide within 10 days
E. How long do commitment orders last?
V. How do you get out?…………………….….Page 8
A. Discharge
B. Appeal Process
VI. Appendix
A. Application – Conditional Voluntary
B. Notice of Rights – Conditional Voluntary
C. Application – Section 12(a)
D. Right to Counsel – Section 12(b)
E. Notice of Rights – Section 12(b)
I.
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I. DEFINITIONS
A.
Mental Illness (for involuntary commitment):



B.
a substantial disorder of thought, mood, perception, orientation or memory
which grossly impairs judgment, behavior, capacity to recognize reality or ability
to meet the ordinary demands of life,
but shall not include alcoholism or substance abuse. [note: mental retardation
is not a mental illness]
Likelihood of Serious Harm:
1.
Substantial risk of physical harm to the person him/herself as manifested
by evidence of, threats of, or attempts at, suicide or serious bodily harm; OR
2.
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.
Very substantial risk of physical impairment or injury to the person
him/herself 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.
C.
Alcoholism/Alcoholic:
a person who chronically or habitually consumes alcoholic beverages to the extent
that (1) such use substantially injures his health or substantially interferes with his
social or economic functioning, or (2) he or she has lost the power of self-control over
the use of such beverages. (Police, Dr., spouse, blood relative, guardian, court official
may petition court for commitment up to 30 days for addiction treatment.)
D.
Substance Abuse/Abuser:
a person who chronically or habitually consumes or ingests controlled substances to
the extent that (1) such use substantially injures his health or substantially interferes
with his social or economic functioning, or (2) he or she has lost the power of selfcontrol over the use of such controlled substances. (Police, Dr., spouse, blood
relative, guardian, court official may petition court for commitment up to 30 days for
addiction treatment.)
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II. VOLUNTARY ADMISSIONS



Before admission under either voluntary status or conditional voluntary status, a
person should obtain legal consult on effect of such an admission.
Upon admission, the person must be informed of his or her legal and human
rights within the facility.
Complete psychiatric and physical examination must be conducted within 24
hours of admission.
A. Voluntary Status: Truly Voluntary (Rare)
A voluntary admitee must be discharged upon his or her written request or that
of the person who had applied for the admission.
The superintendent may restrict the person's right to leave outside of regular
business hours due to the fact that doctors are rarely on premises outside of regular
business hours.
B. Conditional Voluntary Status: Not Really Voluntary
A person may be admitted on a “conditional voluntary” status if the person has
been informed of and has the capacity to understand the following facts and
consequences of hospitalization:
o
o
o
o
o
Agreement to stay at the hospital;
Agreement to accept treatment (refusal of transfer may trigger
commitment proceedings, refusal of medication may not);
No immediate release/ the three-day notice requirement;
Hospital may file commitment petition in Court; and
Admitee may be retained at the facility beyond the three-day period
pending a hearing if a petition is filed.
Three-day notice:





The person or other person who applied for admission must give written notice
of intention to leave or to withdraw the person from the facility.
After it has received the notice, the facility may retain the person for up to three
days.
The person must then be discharged unless, prior to the expiration of the threeday period, a petition seeking the person's commitment is filed with the district
court in whose jurisdiction the facility is located.
If a petition is filed, the person may be retained pending a hearing on the
petition.
The person who had submitted the three-day notice may retract it by written
notice to the superintendent.
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III. INVOLUNTARY ADMISSIONS
A. Involuntary Psychiatric Admissions: Section 12 & the “Pink Paper”
A person may be involuntarily admitted to a facility for up to 3 days upon application of:
Who?
"designated
physician"**
"qualified
psychologist" or a
"qualified
psychiatric nurse
mental health
clinical specialist"
(psychiatric
nurse)**
Police**
ANYONE
How?
Examination determines that failure to hospitalize person will create a
likelihood of serious harm by reason of mental illness. Dr. signs Section 12
form (commonly referred to as a “pink paper”), may restrain or authorize the
restraint of the person, and transport person to a facility.
Person may be admitted with no further psychiatric evaluation.
Examination gives clinician reason to believe that failure to hospitalize person
will create a likelihood of serious harm by reason of mental illness. Clinician
signs Section 12 form, may restrain or authorize the restraint of the person,
and transport person to a facility.
In this case, the “pink paper” is merely an application for admission.
Immediately after arrival at the facility, a "designated physician” must conduct
a psychiatric assessment. “Immediately” is defined as two hours.
In an emergency, if a physician, qualified psychologist or psychiatric nurse is
not available, a police officer, who has reason to believe that the failure to
hospitalize would create a likelihood of serious harm by reason of mental
illness, may restrain a person, transport him or her and apply for his or her
admission at a mental health facility.
In this case, the “pink paper” is merely an application for admission.
Immediately after arrival at the facility, a "designated physician” must conduct
a psychiatric assessment. “Immediately” is defined as two hours.
Anyone may apply to a District or Juvenile Court for the three-day
commitment of a person thought to be mentally ill and for whom the failure to
confine would cause a likelihood of serious harm. The court must appoint
counsel for the person.
If, after hearing sufficient evidence, the court determines that the person
should be evaluated, it may issue a "warrant of apprehension" authorizing the
police to get the person and bring him or her to the court or another location
where that person can be examined.
Examination is to decide whether the failure to hospitalize the person would
create a likelihood of serious harm by reason of mental illness and if the court
should order a 3-day commitment.
**If admitted on an application filed by clinician or police, and have reason to believe admission
resulted from an abuse or misuse of the process, you may request an emergency hearing in
district court. The court must hold hearing no later than next business day following request.
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Person has the right to apply for voluntary or conditional voluntary prior to involuntary
commitment order.
Upon admission, the facility must inform the person that it will, upon the person’s
request, notify the Committee for Public Counsel Services (CPCS) of the admission so an
attorney can be assigned. [See CPCS client notice.]
PERSON MAY BE DISCHARGED WITHIN THE 3-DAY COMMITMENT PERIOD:
A person admitted under section 12 as listed in chart, must be released if, at any time
during the three-day period, the superintendent determines that he or she is no longer in
need of care and treatment at the facility.
If the person has not converted his or her admission or commitment under Section 12
to a voluntary or conditional voluntary admission, he or she must be discharged upon the
expiration of the three-day period, unless a petition for commitment is filed by the
superintendent with the district court in whose jurisdiction the facility is located. If a
commitment petition is filed, the client may be retained pending a hearing on that petition.
B. Involuntary Criminal Justice Admissions and Evaluations
Defendants in criminal proceedings whose competence to stand trial or criminal
responsibility is in question may be evaluated at a DMH or private psychiatric facility
licensed to perform "forensic" evaluations. (In some cases, male defendants may be
evaluated at Bridgewater State Hospital.) Such an admission will be for 20 days, but
may be extended at the facility's request for an additional 20 days.
The same applies to after a finding of guilty on a criminal charge, and prior to
sentencing. Such an admission will be for 40 days.
A person confined in a place of detention may be ordered to undergo an
evaluation at a DMH facility or, if male, at Bridgewater State Hospital to determine if
hospitalization is necessary. Such an admission will be for 30 days.
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IV. INVOLUNTARY COMMITMENTS
A.
Court Petition and Appointed Attorney (CPCS: 800-882-2095)
In order to retain beyond three days, or beyond six months or one year a
previously committed person, the superintendent of a facility must file, before
the expiration of the applicable period, a commitment petition in the district
court or juvenile court that has jurisdiction over the facility.
After an evaluation, a commitment petition may be filed against a defendant in
a criminal proceeding who has been found incompetent to stand trial or not
guilty by reason of mental disease or defect, against a person found guilty and
evaluated in aid of sentencing, or against a person confined in a place of
detention.
A person against whom a petition seeking his or her involuntary confinement in
a mental health facility or Bridgewater is filed is entitled to the assistance of
counsel. Counsel, or an unrepresented person, must be afforded at least two
days to pre-pare for the hearing.
Counsel always should discuss with his or her client the benefits and
consequences of examination by, and testimony of, an independent clinician.
B. When is the hearing with the Judge?
Commitment petitions seeking a person's recommitment, must be commenced
within 14 days.
Petitions filed seeking a client's initial (i.e., 6-month) commitment -- after a 3day admission or commitment under § 12, or after a conditional voluntary
admittee's submission of a 3-day notice of intention to leave -- must be
commenced within 5 days.
C. What’s the standard for commitment?
Mental Health facility requires that the court find the following:
o
o
o
person is mentally ill;
failure to retain him/her in such a facility would create a likelihood of serious
harm as a result of mental illness; and
there is no appropriate setting that is less restrictive of his or her liberty than the
facility. Commonwealth v. Nassar, 380 Mass. 908 (1980).
Male commitment to Bridgewater requires the court find the following:
o
o
o
person is mentally ill;
he is not appropriate for commitment to any DMH facility; and
failure to retain him in strict custody would create a likelihood of serious harm.
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D. Court Must Decide Within 10 Days
The court must render its decision within 10 days of the completion of the
hearing, unless the time period is extended by the Chief Justice of the District
Court Department.
E. How long do commitment orders last?
The first order of commitment will be valid for a period of six months, while any
subsequent, consecutive commitment will be valid for a period of one year.
V. HOW DO YOU GET OUT?
A. Discharge:
Except where the person is also a defendant in a criminal proceeding, or has
been found not guilty by reason of mental disease or defect, he or she must be
discharged if "no longer in need of care as an inpatient."
Where the person is also a defendant in a criminal proceeding, or has been
found not guilty by reason of mental disease or defect, the superintendent must
notify the court and the district attorney of his or her intention to discharge the
person or of his or her intention not to petition for further commitment. The
district attorney may, within 30 days of the receipt of such notice, petition for the
person's continued or further commitment. The person must be retained at the
facility during this 30-day period and, if a petition is filed, pending hearing.
B. Appeal Process:
There are two procedures by which an order of commitment may, in the first
instance, be reviewed:
o
matters of law (including evidentiary rulings) may be appealed to the Appellate
Division of the District Court Department.
o
at any time during a involuntary hospitalization, the person or anyone on his or
her behalf may petition the Superior Court Department to determine whether
the criteria for commitment (or for the administration of medical treatment) for
mental illness as found by the district or juvenile court, continue to exist. A full
hearing on the merits will be held. Thus, a “Section 9(b)” is not, strictly
speaking, an "appeal."
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VI. APPENDIX
A. Application – Conditional Voluntary
B. Notice of Rights – Conditional Voluntary
C. Application – Section 12(a)
D. Right to Counsel – Section 12(b)
E. Notice of Rights – Section 12(b)