Protecting the Rights of People With Mental Illness Ch 1

NOTES THE STARKEST MADNESS: MASSACHUSETTS’ FAILURE TO PROTECT THE RIGHTS OF PEOPLE WITH MENTAL DISABILITIES ABSTRACT Section 12 of Massachusetts’ mental health laws fails to limit the detainment period for individuals suspected to be having a mental health crisis. As part of the state’s commitment procedure, section 12 detainments often serve as preludes to civil commitments, but involve reduced or no process. This Note explores how every branch of Massachusetts’ government has contributed to the construction and preservation of this facially unconstitutional law. Furthermore, it addresses why section 12 is indicative of a much larger problem in Massachusetts commitment legislation. AN UNPLEASANT BEGINNING Imagine you are at an airport. Any airport with long lines and unaffected personnel will do, so long as the mental image fills you with the appropriate amount of forlorn impatience that goes hand-in-hand with solo air travel on a tight schedule. Additionally, you have been having an extraordinarily bad day. Whatever cocktail of tragic and disillusioning events constitutes your worst-case scenario, it has unfortunately come to pass, and now you are stuck in a modernday purgatory located somewhere between a Cinnabon and a screaming toddler waving a dead iPad. It is in this exhausted, perhaps emotionally unstable, state that you are confronted with yet another ill-fated event. It could be anything really—your phone screen cracks, you lose your passport, you forgot something at the hotel—it ultimately matters quite little. All that matters is that one last, cruel happenstance has pushed your thoughts past any concern for social propriety and deep into an unyielding spiral of panic and desperation. You are in a moment of crisis. It is important to note that people with mental disabilities do not monopolize mental health crises, but in this specific instance, I want you to imagine you have a history of mental illness. For twenty percent of Americans, this will require no imagination at all.1 But I want you to understand that for you, as someone whose brain chemistry is predisposed to escalate moments of distress, this cataclysm could manifest in any number of ways—likely none of which you get to make a conscious choice about. Whether you start screaming, or stomping on your belongings strewn on the ground, or rocking back and forth in a free spot of floor next to the airport pub, your actions start to draw concerned glances. It is not long thereafter that you are brought to your feet by a few burly men and promptly escorted to their vehicle, where fewer people will be inconvenienced by your anguish. Now that “I missed my flight” has been forcefully added to your list of woes, you decide to voice your discontent. Maybe under normal circumstances you would choose your words with a bit more diplomacy. But, given the pain you Mental Health Facts, NAT’L ALL. ON MENTAL ILLNESS, https://www.nami.org/nami/media/nami-media/infographics/generalmhfacts.pdf (last visited Nov. 12, 2021). 1 are in, combined with the blank looks you receive in return, you end up filling your words with as much acid and spite as you can muster so that these strangers might begin to get an idea of the type of day you are having. Your ill-conceived taunts come off a bit too much like threats, and, almost as soon as you arrive at the emergency room, there is a needle in your arm. One dream sequence later, your limbs are strapped to a table. A serious-looking man with a clipboard glares at you disapprovingly. As your memories of what happened return, so does your frustration with not being understood. You are livid for being treated so callously. You make the man aware of that fact. The cycle repeats itself. Questions pop into your weary and frightened brain as a doctor administers yet another sedative. When am I going to get an opportunity to explain myself? When are they going to let me go home? If you happen to be in Massachusetts, then the answer to both may as well be: when we get around to it. 2 INTRODUCTION TO AN IMPERFECT SYSTEM Civil commitment is a unique area of the law in which significant deprivations of liberty hinge on the limited process afforded to civil litigation. It toes the line between paternalistic and authoritarian as it prescribes what are, in effect, criminal penalties to civil defendants based purely on the manifestations of their mental disability.3 The “massive curtailment of liberty”4 resulting from commitment is deemed appropriate for an entire class of people, supposedly for their own good, based on flawed systems of determining risk.5 Concededly, civil 2 See MASS. GEN. LAWS ch. 123, § 12(a) (2021) (allowing unlimited emergency room detainment prior to evaluation at mental health facility); Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 560 (Mass. 2020) (holding that prolonged, involuntary emergency room detainment of woman experiencing mental health crisis was not unconstitutional because the “period of confinement was no longer than necessary given difficulty of finding her an appropriate placement”). 3 See Donald H. Stone, There Are Cracks in the Civil Commitment Process: A Practitioner’s Recommendations to Patch the System, 43 FORDHAM URB. L.J. 789, 796 (2016) (“[T]he civil commitment process became remarkably similar to a criminal proceeding through considering the potential loss of liberty as well as the negative impact on one’s reputation (i.e., ‘stigma’).”); ch. 123, § 12(a) (allowing restraint of person where qualified examiner “has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness”). 4 Vitek v. Jones, 445 U.S. 480, 491 (1980). 5 See James W. Hicks, Ethnicity, Race, and Forensic Psychiatry: Are We Color-Blind?, 32 J. AM. ACAD. PSYCHIATRY & L. 21, 23 (2004) (“Although risk assessment has improved, there remains imprecision and ample room for the clinician’s bias to influence decisions, with serious consequences.”); Michael L. Perlin & Heather Ellis Cucolo, “Tolling for the Aching Ones Whose Wounds Cannot Be Nursed”: The Marginalization of Racial Minorities and Women in Institutional Mental Disability Law Policing Rape Complaints, 20 J. GENDER RACE & JUST. 431, 439–41 (2017) (describing processes by which African Americans are disproportionately deemed “dangerous” behaviors not labeled dangerous in their white counterparts). commitment is a necessary mechanism of the state’s inherent interest in the health and safety of its citizenry.6 Certainly, some individuals in crisis benefit from involuntary treatment, and this Note does not endeavor to diminish the importance of the work being done to provide treatment to individuals in crisis. However, treatment is different than confinement, and the problem with mental health litigation is the pervasive and generally accepted practice of winnowing away defendants’ procedural protections, even though they are at risk of losing their freedom as a result.7 Regardless of whether a defendant should get treatment for their symptoms, it is unconstitutional to assume that simply because an individual has, or appears to have, a psychiatric disability, that they should be subjected to involuntary commitment.8 In O’Connor v. Donaldson, the Supreme Court found that “[a] finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.”9 Perhaps for the first time, the ground floor for constitutional treatment of people with mental disabilities facing commitment had been clearly established.10 In a practice area rife with tough questions and moral quandaries, the confinement principle set forth in Donaldson serves as a bright-line rule maintaining an unflinching expectation of liberty for non-dangerous individuals with mental disabilities.11 The question is: what happens when that line is objectively crossed, and freedom is denied without process? 6 See C.R., 142 N.E.3d at 559. See Stone, supra note 3, at 809 (“Where other due process protections are severally limited or even completely lacking, at the very least the decision to deprive a person of his freedom should be based on reliable evidence that possesses adequate guarantees of trustworthiness and accuracy.”); Parham v. J.R., 442 U.S. 584, 609 (1979) (suggesting that procedural protections of adversarial civil commitment hearings may, in practice, be “more illusory than real”). 8 O’Connor v. Donaldson, 422 U.S. 563, 575 (1975). 9 Id. 10 Id.; see Cooper v. Oklahoma, 517 U.S. 348, 368 (1996) (citations omitted) (“Although we have not had the opportunity to consider the outer limits of a State’s authority to civilly commit an unwilling individual . . . our decision in Donaldson makes clear that due process requires at a minimum a showing that the person is mentally ill and either poses a danger to himself or others or is incapable of ‘surviving safely in freedom.’”). 11 Every federal and state bench in the United States recognizes and follows the constitutional baseline for commitment requirements set by Donaldson. See, e.g., Project Release v. Provost, 722 F.2d 960, 971 (2d Cir. 1983) (citing Donaldson, 422 U.S. at 575); Poree v. Collins, 866 F.3d 235, 248 (5th Cir. 2017) (citing Donaldson, 422 U.S. at 575); Montin v. Moore, 846 F.3d 289, 294 (8th Cir. 2017) (citing Donaldson, 422 U.S. at 576); Jensen v. Lane Cnty., 312 F.3d 1145, 1147 (9th Cir. 2002) (citing Donaldson, 422 U.S. at 575); Lynch v. Baxley, 744 F.2d 1452, 1459 (11th Cir. 1984) (citing Donaldson, 422 U.S. at 575); Garcia v. Commonwealth, 164 N.E.3d 862, 869 (Mass. 2021) (citing Donaldson, 422 U.S. at 575). 7 One might expect that the prolonged imprisonment of people with disabilities—for little more than the asserted existence of their disability— would be met with outrage, protest, and a general unwillingness to accept that sort of treatment as fair. However, in Massachusetts, it happens time and time again, and is met, not with passionate dissent, but with clamorous apathy and shirking platitudes.12 In 2019, 839 people were detained in emergency rooms in Massachusetts for days, and sometimes weeks, without placement in a Department of Mental Health (“DMH”) facility, without a hearing, without a formal evaluation, and without the appointment of an attorney. 13 Massachusetts is the only state in the country that allows for the indefinite detainment of people with mental disabilities, by law.14 This is not a mistake. This is not an oversight.15 It is a blatant refusal to adhere to due process, and it is indicative of much more than misplaced priorities.16 This Note begins in Part I with an exploration of the immediate and surrounding legislative, judicial, and administrative history of chapter 123, section 12 of the Massachusetts General Laws. Then, Part II argues that section 12 is unconstitutional, as written and as practiced, because the Supreme Court has established that indefinite mental health detainments without process are unconstitutional. This analysis delves into the meaning and ramifications of Massachusetts’ deeply troubling timeline of documented acknowledgement that its mental health laws are unfair, and their subsequent failure to act on that knowledge. Finally, Part III explains that in order to set clear limits to mental health detainments and guarantee basic due process rights to individuals facing civil commitment, the legislature must amend section 12 and reassess Massachusetts’ civil commitment process as a whole. Furthermore, this Note explores what could be done to address the insufficient due process Massachusetts affords civil commitment defendants. Section 12, the Massachusetts mental health law permitting the indeterminate emergency room detainment of supposedly mentally ill individuals, is facially unconstitutional, 12 See infra Part II (discussing how different branches of the Massachusetts government have identified the problem but failed to act); COMMONWEALTH OF MASS. EXEC. OFF. OF HEALTH AND HUM. SERVS., PRESENTATION ON EXPEDITED PSYCHIATRIC INPATIENT ADMISSION PROTOCOL 2.0, 5–12 (Jan. 22, 2020) [hereinafter EPIA PRESENTATION], https:/ /www.mass.gov/doc/expedited-psychiatric-inpatient-admission-presentation/download (breaking down outcomes of 839 emergency room detainments that occurred in Massachusetts in 2019). 13 See EPIA PRESENTATION, supra note 12; MASS. GEN. LAWS ch. 123, § 12(b) (2021) (instructing that counsel only be appointed after admission under this subsection); C.R., 142 N.E.3d at 547 (finding that section 12(b) is not limited or modified by § 12(a), and therefore, process afforded by section 12(b) does not begin until individual is admitted to Department of Mental Health facility). 14 See ch. 123, § 12; infra Table 1. 15 See infra Part II. 16 See id.; infra Part I (explaining why chapter 123, section 12 of Massachusetts General Laws violates due process). and Massachusetts’ failure to amend it demonstrates the conscious deprioritization of the liberty interests of people with mental disabilities.17 I. THE HISTORY OF M.G.L. CH. 123, § 12 The Constitution guarantees that a state shall not “deprive any person of life, liberty, or property, without due process of law.”18 However, until the late twentieth century, this guarantee was an empty promise for people with mental disabilities, who were regularly subjected to huge curtailments of liberty at the behest of one or two physicians.19 Several states did not require hearings prior to commitment, and those that did often left a great deal to the judge’s discretion—including the decision of whether or not to inform the patient of the hearing in the first place.20 In 1967, California passed the Lanterman-PetrisShort Act, which provided much-needed clarification on the due process requirements in commitment hearings, thus beginning a trend of reform favoring the liberty interests of people with mental disabilities.21 Over the course of the next two decades, the Supreme Court ruled in several landmark decisions that established baseline constitutional requirements of due process for civil commitments.22 As a result, many states adopted new criteria that required a finding of “dangerousness” or “grave disability” to justify an involuntary commitment.23 However, states have ultimately used the inclusion of “grave disability” and broad constructions of “dangerousness” to erode the limits on civil commitments.24 Turning to the idiosyncrasies of Massachusetts’ mental health legislation, it is crucial to understand where section 12 came from to identify the problems with how it is currently drafted. An account of the legal history surrounding 17 See ch. 123, § 12(a). U.S. CONST. amend. XIV, § 1. 19 See PAUL S. APPELBAUM, ALMOST A REVOLUTION: MENTAL H EALTH LAW AND THE LIMITS OF CHANGE 21 (1994). 20 See id. 21 See id. at 26. 22 See, e.g., Addington v. Texas, 441 U.S. 418, 433 (1979) (establishing standard of proof for civil commitment cases as “clear and convincing”); O’Connor v. Donaldson, 422 U.S. 563, 575 (1975) (establishing that “[a] finding of ‘mental illness’ alone” is constitutionally insufficient to justify civil commitment); Jackson v. Indiana, 406 U.S. 715, 729, 731–33, 738 (1972) (holding that indefinite commitment of criminal defendant incompetent to stand trial was unconstitutional). 23 Stone, supra note 3, at 792. 24 See id. (noting that states have “expand[ed] the definition of ‘dangerousness’ back to the dark ages prior to the 1960s . . . . Forty-two states provide criteria broader than dangerousness that often include either a ‘grave disability’ or a ‘need for treatment,’” thus broadening the types of situations that justify involuntary commitment and bypassing constitutional limits on civil commitments.); see also APPELBAUM, supra note 19, at 28. . 18 section 12 should begin with the mental health law revolution of the sixties and seventies to provide the context under which the detention statute itself came into being. After that, the discussion follows the Supreme Court precedent that set the sparse limits that currently exist for mental health detainments. Penultimately, an analysis of Massachusetts v. C.R. will bring into frame the problem inherent with section 12, by clarifying that the section permits indefinite detainment of people with mental disabilities.25 Part I concludes with a reflection on the efforts of the Massachusetts executive branch to address prolonged detainments through a streamlined process of communication with insurers. A. Legislative History of § 12 Every state legislature in the United States has passed an emergency detainment statute along with their civil commitment procedures.26 Statutory language surrounding detainment varies from state to state, but for the purposes of this Note, “emergency detainment” means the period of time during which an individual may be held prior to the filing of any formal commitment petition. Several states allow for “emergency commitments” that are usually limited to three to ten days, and follow an evaluation and petition that often take place during the patient’s emergency detainment.27 Emergency commitments at least have the meager procedural protections of an application, evaluation, and hearing.28 Emergency detainments, on the other hand, are not afforded any significant process; their purpose is merely one of “restraint” while the administrative machine spins its gears in preparation for a formal evaluation. 29 Nearly half of all states have chosen seventy-two hours as their maximum detainment period.30 One Wisconsin appellate court reasoned that “[t]he purpose of the seventy-two-hour limit is to prevent individuals from being detained any longer than necessary before holding a hearing to determine probable cause.”31 Although several other states opt for limitations even shorter than seventy-two hours, a few allow for emergency detainments as long as seven 25 See Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 558–59 (Mass. 2020). See infra Table 1. 27 See N.H. REV. STAT. ANN. § 135-C:28 to :32 (2019) (limiting detainment for evaluation to six hours but permitting petition for ten-day emergency commitment if deemed necessary by evaluation); MASS. GEN. LAWS ch. 123, § 12(e) (2021) (permitting petition for three-day emergency commitment). 28 See N.H. REV. STAT. A NN. § 135-C:31 (2019) (requiring probable cause hearing within three days of involuntary emergency admission). 29 See ch. 123, § 12(a) (permitting restraint of mentally ill person without prior examination). 30 See infra Table 1 (listing twenty-two states that limit mental health detainments to seventy-two hours). 31 In re Mental Commitment of Ryan E.M., 642 N.W.2d 592, 595 (Wis. Ct. App. 2002). 26 days.32 There is no clear constitutional requirement for detainment limitation, but the Supreme Court has indicated that there must be some clear end point and guarantee of process.33 Generally, there must be procedural due process such that all practicable safeguards are implemented to prevent undue deprivations of liberty.34 Massachusetts, however, is the only state that allows for emergency detainment but fails to administer a time limit for custody.35 In 1986, Massachusetts passed procedures that have remained, for the most part, intact as the legal standards for civil commitment in the Bay State. 36 Chapter 123 of the Massachusetts General Laws, entitled “Mental Health,” contains a number of legal idiosyncrasies that separate it from other state commitment frameworks.37 Perhaps most notably, section 12, detailing emergency detainment procedures, leaves the permissible timeframe of an emergency room detainment ambiguous.38 At first glance, section 12 seems to set a three-day limit for detainments.39 However, section 12(b) suggests that the three-day limit only applies once the individual has been admitted to a facility “in accordance with the regulations of the department.”40 Massachusetts’ Department of Mental Health (“DMH”) has “specifically designated” physicians and facilities that satisfy the requirements of admittance to a mental health facility for the purposes of section 12. 41 However, section 12(a) permits detainment in anticipation of the individual being admitted to a pre-approved facility.42 Given the limited number of mental 32 See infra Table 1. Compare ARIZ. REV. STAT. ANN. § 36-527(A) (2021) (twenty-four hours), and 405 ILL. COMP. STAT. 5/3-607 (2010) (twenty-four hours), with IDAHO CODE § 66329(4) (2021) (five days), and ALA. CODE § 22-52-8(a) (2021) (seven days). 33 See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249 (1972); see also Lessard v. Schmidt, 349 F. Supp. 1078, 1091 (E.D. Wis. 1972), vacated on other grounds, 414 U.S. 473 (1974) (“[I]t follows that no significant deprivation of liberty can be justified without a prior hearing on the necessity of the detention.”). 34 See Zinermon v. Burch, 494 U.S. 113, 132–36 (1990). 35 See MASS. GEN. LAWS ch. 123, § 12(a)–(b); Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 547 (Mass. 2020). 36 See ch. 123, §§ 1–36C. 37 See id. (naming the chapter “Mental Health”); TREATMENT ADVOC. CTR., GRADING THE STATES: AN ANALYSIS OF INVOLUNTARY PSYCHIATRIC TREATMENT LAWS 74–75 (2018), https://www.treatmentadvocacycenter.org/storage/documents/2018_Grading_the_States.pdf (finding that Massachusetts is one of only three states that do not have an outpatient option for involuntary commitment). 38 C.R., 142 N.E.3d at 547. 39 See ch. 123, § 12(a) (authorizing qualified practitioner to “restrain or authorize the restraint of [a designated at-risk] person and apply for the hospitalization of such person for a 3-day period”). 40 See ch. 123, § 12(b). 41 Id.; see 104 MASS. CODE REGS. 33.02 (2020). 42 See ch. 123, § 12(a). health facility beds,43 section 12(a) authorizes a designated professional who “has reason to believe that failure to hospitalize [a] person would create a likelihood of serious harm by reason of mental illness”44 to hold that person in an emergency room for an indefinite period of time while they await an open bed at an approved facility.45 Although section 12(d) requires that the person be released if no commitment petition is filed within three days of the evaluation, the period between initial detainment and evaluation is not defined by law. 46 The Massachusetts legislature has amended section 12 three times in the past two decades.47 In 2000, the legislature made three significant changes: (1) the mandatory cut-off for admission for purposes of evaluation was reduced from ten days to four days; (2) an added provision gave individuals admitted under section 12(b) a right to an attorney; and (3) admitted individuals were allowed to call for an emergency hearing if their admittance resulted from an abuse or misuse of section 12.48 Although provision of counsel to defendants in commitment cases was an important step, to this day, the language of 12(b) only provides for appointment of counsel after the individual has been admitted to a mental health facility—rendering any promise of counsel impotent for individuals subjected to a prolonged detainment.49 Then, in 2004, the permissible evaluation period was again reduced, this time from four to three days.50 Finally, in 2010, the language of section 12(a) was superficially changed.51 Although these amendments ushered in some positive change to post-admission procedures, they have done nothing to address the absence of a detention limit. Massachusetts introduced another proposed amendment in the summer of 2020 but the proposed amendment does very little to change the substance of the law.52 The Massachusetts judiciary and executive have both flagged emergency 43 See TREATMENT ADVOC. CTR., GOING, GOING, G ONE: TRENDS AND C ONSEQUENCES OF ELIMINATING STATE PSYCHIATRIC BEDS 7, tbl.1 (2016), https:/ /www.treatmentadvocacycenter.org/storage/documents/going-going-gone.pdf (finding that number of psychiatric beds in Massachusetts decreased from 696 in 2010 to 608 in 2016). 44 See ch. 123, § 12(a). 45 See id.; Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 547 (Mass. 2020). 46 See ch. 123, § 12(a)–(b), (d). 47 See 2010 Mass. Legis. Serv. 278 (West); 2004 Mass. Legis. Serv. 410 (West); 2000 Mass. Legis. Serv. 249 (West). 48 2000 Mass. Legis. Serv. 249 (West). 49 See ch. 123, § 12(b). 50 2004 Mass. Legis. Serv. 410 (West). 51 2010 Mass. Legis. Serv. 278 (West) (changing the word “three” to the number “3”). The legislature also recently proposed another amendment to section 12 that, although introducing language that would limit detainments for violent or homicidal individuals, would ultimately leave the current, problematic language unchanged and in effect for individuals who are accused of being a danger to themselves. Mass. S.B. 1269, 192nd Gen. Ct. (Mass. 2021). 52 See Mass. S.B. 2796, 191st Gen. Ct. (Mass. 2020). The proposed amendment fixes some of the grammar and replaces masculine pronouns with gender neutral language. Id. room detainments as an important issue in need of review, but the legislature has repeatedly amended the statute without addressing the issue of unlimited detainment.53 B. Precedent for Commitment Due Process Requirements At present, there is minimal controlling precedent that specifically addresses the due process issue for individuals subjected to a mental health detainment. However, the closest thing to a clear statement on this topic is found in the dictum of Lessard v. Schmidt: “[I]t follows that no significant deprivation of liberty can be justified without a prior hearing on the necessity of the detention.”54 Although the Supreme Court vacated Lessard on other grounds,55 the District Court’s opinion has persisted as a rallying point for advocates of mental health reform, and has been cited in several jurisdictions as support for striking down state commitment laws.56 Despite the Lessard court’s call to action, only nine states guarantee any sort of pre-detention hearing.57 Similarly, there is no nationally mandated limitation for mental health detainments; although the Supreme Court has recognized that there must be some limit on detainment, there has not been a clear articulation of what that limit is.58 Exceptions to due process may be appropriate for emergency detainments amounting to a “short-term confinement with a limited purpose,” but “the duration of the confinement must be strictly limited.”59 Detainment Additionally, it replaces “psychiatric nurse mental health clinical specialist” with “advanced practice registered nurse.” Id. The legislature also recently proposed another amendment to section 12 that, although introducing language that could limit detainments for violent or homicidal individuals, would ultimately leave the current, problematic language unchanged and in effect for most individuals. Mass. S.B. 1269, 192nd Gen. Ct. (Mass. 2021). 53 See Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 547, 556 (Mass. 2020) (“Furthermore, the Legislature has not yet amended G. L. c. 123, § 12 (a), despite the unexpected enlargement of time spent in EDs, often referred to as ‘ED boarding,’ even as the Legislature has amended other provisions of the statute to tighten other time frames. Absent constitutional violations, we will not impose such a time deadline, when the Legislature has chosen not to do so.”); EPIA PRESENTATION, supra note 12, at 2, 4, 6 (establishing one of the purposes of the Massachusetts executive office’s EPIA Initiative as gathering baseline information, such as ED boarding frequency, for “policy purposes”). 54 Lessard v. Schmidt, 349 F. Supp. 1078, 1091 (E.D. Wis. 1972), vacated on other grounds, 414 U.S. 473 (1974). 55 See Schmidt v. Lessard, 414 U.S. 473, 477 (1974). 56 See APPELBAUM, supra note 19, at 28. 57 Leslie C. Hedman et al., State Laws on Emergency Holds for Mental Health Stabilization, 67 PSYCHIATRIC SERVS. 529, 533 fig. 1 (2016), https://ps.psychiatryonline.org /doi/full/10.1176/appi.ps.201500205. 58 See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249 (1972). 59 Id. at 249–50. periods of seventy-two hours have repeatedly been upheld as constitutional.60 However, the upper limit of constitutional detainments has not been set. In Zinermon v. Burch,61 the Supreme Court “makes clear that to determine whether a procedural due process violation has occurred, courts must consult the entire panoply of predeprivation and postdeprivation process provided by the state.”62 The Zinermon Court also held that a patient facing civil commitment has a right to a hearing, notice, an opportunity to present evidence, and counsel.63 In Massachusetts, individuals subjected to an emergency commitment are entitled to a hearing, notice, an attorney, and adversarial presentation of evidence.64 Moreover, the state must prove the necessity of commitment “beyond a reasonable doubt,” 65 a higher bar than the federal standard of “clear and convincing” proof.66 Massachusetts common law also has robust precedent for limiting detainment. Echoing the doctrine of Vitek v. Jones, the Supreme Judicial Court has stated that a patient’s right “to be free from physical restraint is a paradigmatic fundamental right.”67 Massachusetts courts have regularly interpreted commitment statutes with an understanding of “the intent of the Legislature to extend further procedural protections” to individuals subjected to commitment proceedings.68 Furthermore, the Supreme Judicial Court has previously construed amendments to section 12 as “intended to protect the individual’s due process rights by minimizing the length of time for which he or she could be involuntarily committed prior to judicial review.”69 Finally, the Supreme Judicial Court has characterized the limits on hearing delays in chapter 123 mental health laws as integral parts of the state’s public duty.70 Though there may be gaps in the specifications for constitutional detainment limits, precedent is clear that detainments must be strictly limited. 71 60 See Project Release v. Provost, 722 F.2d 960, 974 (2d Cir. 1983) (listing detainment statutes which require a hearing within seventy-two hours that have been upheld as constitutional). 61 Zinermon v. Burch, 494 U.S. 113, 125 (1990). 62 Fields v. Durham, 909 F.2d 94, 97 (4th Cir. 1990) (citing Zinermon, 494 U.S. at 125). 63 See Zinermon, 494 U.S. at 131. 64 See MASS. GEN. LAWS ch. 123, § 12(b), (e). 65 Superintendent of Worcester State Hosp. v. Hagberg, 372 N.E.2d 242, 243 (Mass. 1978). 66 Addington v. Texas, 441 U.S. 418, 433 (1979). 67 Matter of E.C., 92 N.E.3d 724, 730 (Mass. 2018) (quoting Commonwealth v. Knapp, 804 N.E.2d 885, 891 (Mass. 2004)); see Vitek v. Jones, 445 U.S. 480, 491 (1980). 68 Newton-Wellesley Hosp. v. Magrini, 889 N.E.2d 929, 935 (Mass. 2008). 69 Matter of N.L., 71 N.E.3d 476, 480 (Mass. 2017). 70 See Hashimi v. Kalil, 446 N.E.2d 1387, 1390 (Mass. 1983) (“That the statute imposes a restraint on liberty also compels the conclusion that the time limit on the holding of the hearing goes to the essence of the public duty.”). 71 See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249–50 (1972). Furthermore, any significant deprivation should be preceded by procedural safeguards, including a hearing, to avoid unjust deprivations of liberty.72 C. Massachusetts General Hospital v. C.R. The constitutionality of section 12 was tested in early 2020 in Massachusetts General Hospital v. C.R., in which the Supreme Judicial Court ruled that C.R.’s six-day detainment was constitutional because C.R. was only detained for as long as it took to find an open bed at a DMH facility.73 The C.R. court avoided addressing the statute’s constitutionality by noting that C.R. failed to bring a facial challenge of the statute in her complaint.74 C.R., a woman with bipolar disorder, was admitted to the emergency department of Massachusetts General Hospital (“MGH”) in August 2018 after experiencing a mental health crisis at Logan Airport.75 C.R. was detained and transported to the emergency room by the police who acted under the authority of section 12(a).76 When she arrived at MGH, she was “agitated and was yelling, screaming, and threatening staff,” at which point employees administered antipsychotics, secluded C.R., and placed her in a four-point restraint.77 Doctors at MGH decided to apply for C.R.’s admission to a DMH facility and to hold C.R. in a room in the emergency department until a DMH facility bed became available.78 She waited five days before being transferred to MGH’s psychiatric department, a DMH-licensed facility.79 One day after C.R.’s transfer, MGH filed a petition pursuant to sections 7 and 8 to have C.R. civilly committed.80 MGH’s commitment petition stated that “because of her florid mania and delusional thinking, [C.R.] appears unable to take care of her basic needs in the community.”81 C.R. filed a pro se petition for an emergency hearing under section 12(b), which the Boston Municipal Court denied.82 After C.R. was appointed counsel, she filed a second petition for emergency hearing.83 The court heard arguments three days after it received the petition, but again denied C.R.’s request for release.84 72 73 74 75 76 77 78 79 80 81 82 83 84 See Zinermon v. Burch, 494 U.S. 113, 131 (1990). 142 N.E.3d 545, 547–48 (Mass. 2020). Id. Id. Id. Id. at 548. Id. Id. at 547 Id. at 548. Id. Id. Id. at 548–49. Id. at 549. On August 23, 2018, C.R. filed a motion to dismiss MGH’s petition on the grounds that MGH filed it outside of the three-day period set forth in section 12(a).85 At C.R.’s commitment hearing, one of C.R.’s treating physicians, Dr. Beck, testified for the petitioner: “[W]hen people come into the emergency room or they’re on the medical floor and there’s a thought about them going to an inpatient [psychiatric] unit, they institute a [§ 12(a) application]. They [(the patients)] can sit there for days to weeks . . . .”86 The trial judge denied C.R.’s motion to dismiss and ordered C.R. to be involuntarily committed.87 C.R. appealed both the court’s commitment order and its denial of her motion to dismiss.88 The Massachusetts Appeals Court reversed the trial court’s denial of C.R.’s motion to dismiss.89 However, the Supreme Judicial Court reversed the appeals court, reaffirming the trial court’s denial.90 In doing so, Massachusetts’ highest court determined that the three-day period mentioned in sections 12(a) and 12(b) only applies after admission to a DMH facility for evaluation.91 The court specified that their decision “leaves unresolved the question of how long the Legislature allowed the § 12 (a) process to last, and whether such process as currently employed violates constitutional due process standards.”92 Although the court noted that section 12(a)’s lack of a detainment limit raised a due process concern, it chose to leave the question unanswered because C.R.’s appeal did not challenge the facial constitutionality of the law. 93 Instead, the court limited its constitutional analysis to the process provided in the instant case.94 The court characterized the detainment in this case as a “grave impairment of liberty for C.R.”95 C.R. was deemed to be so agitated as to require four-point restraints. While in that condition, she was restrained in an [emergency department] for five days while qualified medical personnel applied for her admission to a licensed psychiatric facility. The application process was complicated by the fact that she was deemed to require a private room in a facility. During this time period she had no right to counsel or other procedural protections beyond the original preliminary determination by a qualified medical professional that there was “reason to believe that failure to hospitalize 85 86 87 88 89 90 91 92 93 94 95 Id.; see MASS. GEN. LAWS ch. 123, § 12(a). C.R., 142 N.E.3d at 549 (alterations in original). Id. Id. Id. Id. at 547. Id. at 552. Id. at 553. Id. at 560. Id. Id. at 558. [C.R.] would create a likelihood of serious harm by reason of mental illness.”96 The court acknowledged that the government interest must be particularly strong to overcome the patient’s significant liberty interest.97 Here, that compelling interest is the patient’s health and safety and the safety of the public. The restraint must be narrowly tailored to protect that compelling patient and public safety interest, employing the least restrictive means possible to accomplish that objective. Restraint here is only justified long enough to find an appropriate facility to evaluate the patient. Any unnecessary delay is unconstitutional. The suitability of the location of that restraint must also be considered.98 However, this dismissal was not without warning, as Justice Kafker “encourage[d]” the Legislature to identify a time period capping the time of [emergency department] boarding to clarify the over-all § 12 (a) time deadline and avoid future constitutional difficulties, and to do so as expeditiously as possible.”99 Justice Kafker also lauded the legislative and executive branches for their “diligent efforts” to combat the detainment crisis. 100 Conveniently, this identifies the next area in need of scrutiny: executive action. D. Administrative Action Related to § 12 On November 14, 2019, several departments within Massachusetts’ Executive Office of Health and Human Services (“EOHHS”)—including DMH and the Department of Public Health—announced new protocols for emergency room “boarding” and treatment escalation.101 The announcement presented the collaboration as the culmination of a year and a half of information gathering conducted by the Emergency Psychiatric Inpatient Admission (“EPIA”) Task Force on emergency-room detainments in Massachusetts.102 The product of the administrative branch’s attempt at “understanding the problem,” is a procedure 96 Id. Id. 98 Id. at 559. 99 Id. at 559–60. 100 Id. at 548, 559. 101 EPIA PRESENTATION, supra note 12. 102 See EXEC. OFF. OF HEALTH AND HUM. SERVS., EXPEDITED PSYCHIATRIC INPATIENT ADMISSIONS (EPIA) POLICY, MASS.GOV [hereinafter EPIA POLICY], https://www.mass.gov /info-details/expedited-psychiatric-inpatient-admissions-epia-policy#related (last visited Nov. 12, 2021); EPIA PRESENTATION, supra note 12, at 1 (“The Executive Office of Health and Human Services (EOHHS), its Department of Mental Health (DMH), Department of Public Health (DPH) and Office of MassHealth and the Executive Office of Housing and Economic Development (EOHED) and its Division of Insurance (DOI), are committed to addressing the ongoing crisis of ED boarding in the Commonwealth and supports this Protocol that identifies and resolves barriers to psychiatric admission.”). 97 for communications between the detaining hospital, the patient’s insurance carrier, and DMH to coordinate placement efforts for each involuntarily detained mental health patient.103 The requisite steps for the EPIA protocols depend on how long the patient has spent in the emergency room, with “escalation steps” triggered at arrival, after twenty-four hours, and after ninety-six hours.104 The final step in the new EPIA procedures, which begins after the patient has been held for ninety-six hours, requires that the insurance carrier request assistance from DMH and participate in a “Standard Bed Search.”105 In its protocols, the EOHHS states that the aforementioned bed search is still a “work . . . in progress.”106 The EOHHS also released some of the data that the task force considered after the implementation of the first version of EPIA. 107 The data reveals that 839 patients were referred to DMH for escalated placement procedures in 2019, and that bed availability and a lack of insurance were the causes of most prolonged detainments.108 In his opinion in C.R., Justice Kafker applauds the state administration for being “actively engaged in addressing the length of time of ED boarding,” and “imposing numerous deadlines during the ED boarding process.”109 The deadlines that Justice Kafker refers to are, of course, the communication escalations discussed above.110 However, Justice Kafker also acknowledges that “DMH received 481 requests for assistance for patients who had waited at least ninety-six hours” during the first year of the EPIA’s implementation.111 Section 12 was, and still is, an outlier of a detainment statute.112 Every branch of the state government has recognized that the statute creates abnormal circumstances for patients, providers, and the courts.113 Despite precedent being settled that indefinite mental health detainments are unconstitutional, section 12 nonetheless survived the scrutiny of the Massachusetts Supreme Judicial Court.114 This Note thus identifies why indefinite detainments have survived in Massachusetts for so long, and what must be done to rectify the situation. 103 EPIA POLICY, supra note 102; EPIA PRESENTATION, supra note 12, at 1. EPIA PRESENTATION, supra note 12, at 3–6. 105 Id. at 5. 106 Id. 107 Id. at 3–13. 108 Id. at 12. 109 Mass. Gen. Hosp. v. C.R., 142 N.E.3d 545, 555 (Mass. 2020). 110 See EPIA PRESENTATION, supra note 12, at 1–6. 111 C.R., 142 N.E.3d at 556. 112 See infra Table 1. 113 See C.R., 142 N.E.3d at 547–48 (acknowledging the problem posed by section 12 detainments and the other branches’ efforts to fix the problem). 114 See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 249–50 (1972) (holding unconstitutional any detainment allowing for indefinite holding without process). 104