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Massachusetts' Commitment Law Is Reformed
Editor's Note: Jennifer Honig is a staff attorney with the Mental Health Legal Advisor’s Committee (MHLA). The MHLA is a state funded advocacy organization of attorneys. MHLA’s mission is the protection and enhancement of your rights as a consumer of mental health services in the Commonwealth of Massachusetts. This group has done a lot of good work around protecting and securing the human and legal rights of those of us with psychiatric conditions. In this article Jennifer describes the recent MHLA campaign to rewrite the laws regarding involuntary commitment to locked psychiatric units. As she explains in the article the campaign took time and effort, however, the efforts of the attorneys at MHLA have paid off for the people of Massachusetts. On August 13, 2000, House 4216, "An Act to Reform the Civil Commitment Process for Persons with Mental Illness," was signed into law. Thus, completes, at least for now, a four year expedition across phone lines, newspapers, committee meeting rooms, and legislators and governor's desks of civil commitment reform proposals. This entire journey was actually fairly swift, thanks to the work of many interested parties and particularly thanks to the work of Representative Michael Cahill and Senator Therese Murray. The need for civil commitment reform was highlighted through the recounting—in the Mental Health Legal Advisors Committee’s Publication, “Advisor” and The Boston Globe Spotlight Series— of the experiences of a few remarkable individuals. These articles, by pointing to the traumatic and jaw dropping experiences of a few representative individuals in psychiatric hospitals and emergency rooms around the state, provided powerful evidence for the need for reform. And this evidence ultimately was persuasive! This victory should be a celebration of the power of the advocacy movement. For, the telling, by these individuals of their despair at being hospitalized, not only inspired advocates to push legislation to remedy flaws in the civil commitment system, but also inspired these previous victims to become leaders in the mental health consumer movement. There has never been and still is no good remedy for a violation of rights in the process of civil commitment. (Giving up on the inclusion of a legal remedy was one of the compromises advocates made in pushing this legislation.) However, this very lack of remedy may have reinforced the burning effect of the experience for the victims and fostered the need to take action in response. Diane Daria was one of the four women whose emergency admission was highlighted in both the “Advisor” and the Boston Globe Spotlight Series. Despite becoming a press catalyst for civil commitment reform, Diane has never found specific relief for the emergency admission she experienced as described in the articles. The lack of relief has not meant that the experience did not have a lasting effect on her. Even today, Diane remembers the barriers to relief: "It still really frustrates me that they can get away with that. There was no redress whatsoever." However, Diane has found other ways to respond to this lack of direct relief. Soon after her emergency hospitalization, Diane re-activated her previous involvement in the consumer/survivor movement. She became involved as an advocate with the Department of Mental Health (DMH) and the legal services community serving people with mental health issues. She has participated with consumer/ survivor movement on the national level. Judene Shelley was similarly highlighted in the Spotlight Series. Before her hospitalization, she had never been labeled mentally ill. Her ordeal raised in her "a feeling of incredible injustice." "How could it happen in America in the '90s," she asked. Concerned with others left behind the hospital walls after her own release, Judene became an articulate activist, testifying before the Legislature on important mental health legislation. Like Diane, she joined the DMH Human Rights Advisory Committee. Diane and Judene's experience and reactions were not unique. Advocates including some with mental health experiences and some without sought legislation to remedy the inadequate legal protections for those involuntarily committed to psychiatric facilities. They found strong support in sponsors Senator Therese Murray and Representative Michael Cahill, Joint Human Services and Elder Affairs Co-Chairs, and in DMH. The Act offers a number of new protections. It reduces from 10 calendar days to 4 business days the period prior to which a hospital may file a petition for civil commitment. It also reduces from 14 calendar days to 4 business days the maximum period between the filing of a commitment petition and the holding of a hearing. The Act also requires facilities to inform each individual at the time of admission that the facility will, upon the person's request, notify the Committee for Public Counsel Services (CPCS) of the admission. In those cases in which CPCS is notified, CPCS will "forthwith" appoint an attorney to meet with and, absent a voluntary and knowing waiver, represent the person. Additionally, if a confined person believes that "an abuse or misuse" of the admission process has occurred, the person or his or her counsel may seek emergency judicial review in the district court; unless the individual seeks a delay, the hearing must be held no later than the day after the request for a hearing. Further, the Act puts into statute the conditional voluntary admission process. It is now state law that facilities may only accept an application for conditional voluntary admission after the treating physician determines that the patient has the capacity to understand the process. Finally, the Act requires an initial and subsequent quarterly reports to the Joint Human Services and Ways & Means Committees from the Administrative Chief Justice, CPCS, and DMH regarding the implementation and impact of the legislation. The Act, Chapter 249 of the Acts of 2000, will take effect ninety days from the date of signing, November 11, 2000. Until that date, much work needs to be done to prepare for the changes. (In one six month period in 1998, DMH counted 29,000 psychiatric admissions!!) Some plans have already been made. CPCS (instead of the courts) will handle all appointments in civil commitment cases beginning in November. DMH has issued a one page memo informing people of the new law. In the memo, DMH reports that its licensing division will be issuing, before November 11, the documents regarding the new law to the hospitals it licenses and operates. The District Court system is gearing up for the changes as well. Advocates believe that patients will need clear information about the new law and their right to an attorney upon admission and not just from the hospitals. Therefore, advocates will be urging DMH to issue regulations (not just licensing standards) requiring DMH licensed and operated facilities to provide patients upon admission with information about how to access an attorney from CPCS. Over time, advocates will also need to monitor the law. Particularly, advocates should consider carefully the reports that must be submitted to the Legislature, by all parties, pursuant to the Act.
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