MASS- Civil Commitment Section 35

Feb 12

Feb 12 MASS- Civil Commitment Section 35

Please be sure to read the Feburary 28, 2019 presentation from the Massachusetts Department of Public Health: Section 35 Commission Treatment Statistics from BSAS Programs

The state provides a comprehensive explanation on Section 35 here.

The following was compiled by the folks over at Magnolia New Beginnings:

MA- Civil Commitment Section 35

The Office of State Representative Randy Hunt District

Considering Pursuing a Section 35 Civil Commitment?

Chapter 123, Section 35 of the Massachusetts General Laws authorizes state courts to involuntarily commit an individual to a facility if, after a hearing in court, a judge finds clear and convincing evidence showing that such individual suffers from an alcohol or substance use disorder, and that there is a likelihood of serious harm as a result of that disorder. A person has an “alcohol use disorder” or a “substance use disorder” if the evidence presented to the judge shows that the individual’s chronic use of alcohol and/or drugs either substantially injures the individual’s health or ability to function socially or economically, or that the person has lost the power of self-control over the use of alcohol and/or drugs. A police officer, physician, spouse, blood relative, guardian or court official may go to the district court or juvenile court to apply in writing for this type of order of commitment. In filing a petition for commitment, the filer becomes the “petitioner.” The individual whom the petitioner is asking the court to commit is called the “respondent.”

Under this section, a respondent can be involuntarily committed for substance use treatment for a period of up to 90 days. This 90-day period is the maximum period for which a respondent may be committed under this section. The court cannot set a minimum time for which the commitment must last; committed individuals are frequently discharged from commitment before the 90-day maximum commitment period has expired. Adult male respondents committed in our area of the Commonwealth may be committed to the Massachusetts Alcohol & Substance Abuse Center at Bridgewater State Hospital, to the Men’s Addiction Treatment Center in Brockton, or to the Plymouth House of Correction. Adult women in this area may be committed to High Point – Shattuck in Jamaica Plain, the Women’s Addiction Treatment Center in New Bedford, or the Women’s Recovery from Addiction Program in Taunton. Adolescents in this area may be committed to Clean & Sober Teens Living Empowered in Brockton. The facility to which a specific respondent is committed will depend in large part on which facility has an available bed at the time that the commitment is ordered.

You should consider all available options before pursuing a Section 35 civil commitment, as it is a method of last resort. If you do choose to seek a Section 35, you should visit your local district court during normal business hours and inquire with the clerk’s office about filling out a petition for commitment. You should come to the court with as much of the following information as possible:

· · Basic information about the individual (including relationship to petitioner, where the individual is likely to be found, physical description, social security number, employment and educational history, and contact information);

· · Any first-hand information you have about the individual’s current alcohol and/or substance use, including which substances you know the individual to be using now, how frequently you know the individual to be using that substance, and the quantities of the substances that the individual is using;

· · Medical and mental health history (including health insurance information and history of substance use);

· · Information regarding the last date and location of contact the petitioner last had with the respondent;

· · And the present risk of harm the respondent poses to his/her self and others.

This summary of the Section 35 statute was compiled by the Office of State Representative Randy Hunt, and is not in any way a document produced or sponsored by the Massachusetts Trial Court. The information contained herein does not constitute formal legal advice.

The Office of State Representative Randy Hunt 5th Barnstable District

Keep in mind that the court must assess the respondent’s current use of alcohol or drugs, as well as the current risk of harm that the respondent’s use disorder presents.

If, after review of the petitioner’s application materials, the court finds a basis to go forward with the petition, the court will issue a warrant of apprehension. That warrant gives the police authority to place the respondent in custody during specified business hours in order to bring the respondent to court. Warrants are valid for five business days from the date that the warrant is issued.

When the respondent is brought into court on the warrant, he or she will be assigned an attorney. A court clinician will examine the respondent and interview the petitioner. The clinician will testify about his or her evaluation, and about his or her opinion about whether the respondent meets the criteria for commitment. The judge, who may take other evidence in addition to the clinician’s testimony, will decide whether the respondent meets the requirements for commitment, and will allow or deny the petition to commit the respondent. If the respondent cannot be evaluated by a clinician before the end of the court’s business day, the respondent must be released at the end of the business day.

For more information about Section 35, please visit:

Mass. Department of Public Health VOLUNTARY NON-OPIO DIRECTIVE (VNOD)

District Courts on Cape Cod: Barnstable District Court- 3195 Main Street, P.O. Box 427, Barnstable, MA 02630

Clerk’s Office: 508-375-6778 Falmouth District Court- 161 Jones Road, Falmouth, MA 02540

Clerk’s Office: 508-495-1500 Orleans District Court- 237 Rock Harbor Road, Orleans, MA 02653

Clerk’s Office: 508-255-4700

Representative Randy Hunt’s Offices Boston- Room 136, State House, Boston, MA 02133

Sandwich- 297 Quaker Meeting House Road, East Sandwich, MA 02537 Contact Information (both offices):

Phone: 617-722-2800 x8743 Email: randy.hunt@mahouse.gov

MA – Section 35 Law
Family Forum
Involuntary Commitment Laws by State
Researched and Provided by: Dina Favreau of Heroin is Killing My Town, Inc.

For inpatient*:

MASS. GEN. LAWS ANN. ch. 123, § 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.

MASS. GEN. LAWS ANN. ch. 123, § 1.

"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.

* Massachusetts does not have an assisted outpatient treatment law.

Although This was written for MA. It can be used for every state with looking up your codes, and inserting PROPER code numbers for YOUR STATE

What is a Section ?
Section is a part of General Laws and allows someone to seek an involuntary commitment for drug and alcohol abuse..

Who can seek a Section ?
Any police officer, physician, spouse, blood relative, guardian or court official may petition in writing any district court or any division of the juvenile court department for an order of commitment of a person whom he has reason to believe is an alcoholic or substance abuser.

Do I need both parents present to seek a warrant of apprehension?
The answer is NO.

How long is the application process?
The process in which a section is sought can take a significant amount of time. In my personal experience, it is a 2 day process. First, with petitioning the court and second, executing the warrant of apprehension. Both of these require hearings and meetings with the court doctor.

If you are lucky, it could take only one day, but be prepared to be at the court first thing in the morning and know exactly where your loved one is located once the warrant of apprehension issues in order for it to cut down the processing time.

Is a section a criminal proceeding?
No. While a section is sought in the district court, a section is a civil commitment and the warrant of apprehension is also civil in nature. Those subject to a warrant of apprehension are NOT under arrest.

When can a person be picked up on a Section 3 Warrant of Apprehension?
Because the process is civil in nature, a warrant of apprehension can only be served upon the respondent during open court hours. The respondents of such proceedings will not be picked up at any time in which the courts are closed, e.g. after hours, weekends or holidays.

When does a Warrant of Apprehension expire under a Section ?
There is some confusion on this issue as many families report different times allowed by different judges.
Trial Court Uniform Rules for Civil Commitment Procedures for Alcohol and Substance Abuse

Rule 3 of the Civil Commitment Procedure:
Issuance of Warrant or Summons; Execution of Warrant
(a) If the judge determines that there are reasonable grounds to believe that the respondent will not appear at the hearing and that any further delay in the proceeding would present an immediate danger to the physical well-being of the respondent, the court may issue a warrant for the apprehension and appearance of the respondent.

(b) If the court does not issue a warrant pursuant to Rule 3(a), the court shall cause a summons and a copy of the petition to be served on the respondent in the manner provided in G.L, c. 276, § 25. Following such service, if the respondent fails to appear at the time summoned, the court may issue a warrant for the apprehension and appearance of the respondent. The issuance of such a warrant shall not require a determination of immediate danger to the physical well-being of the respondent.

(c) The judge shall determine how long the warrant shall be effective, but shall not make any warrant effective for more than three business days. A warrant issued under this rule shall provide that it may be executed only when the respondent may be presented immediately after apprehension before a judge pursuant to Rule 4 or Rule 10.

(d) If the judge determines that the case should be heard in another Division or Department, because of the respondent's age or location or for other good reason, the judge may, in the exercise of discretion, make the warrant or summons returnable to an appropriate court in another Division or Department. The clerk shall notify the return court of the warrant or summons and transmit the papers listed in Rule 10(a) to the return court.

What happens if the Warrant of Apprehension expires before my loved one is picked up?
You will have to start the process over. That is why it is best to have everything lined up prior to seeking the order. Prepare for the intervention days in advance and make sure that your loved one doesn’t find out ahead of time.

What does the court doctor do?
The court doctor meets with the family members seeking the Section to go over the history of the respondent’s drug use. During this meeting you will be given the opportunity to verbally explain the situation. Again, just like the application for the petition, you want to keep it fact based, and I recommend telling them everything, e.g. Family history of addiction, mental illness, the destructive patterns of behavior, overdoses, arrests, etc.

Keeping your emotions in check during this meeting is nearly impossible, especially the first time, so go easy on yourself. Again, try not to take the Doctor’s demeanor or questions personal, they are just trying to gather all of the facts in order to do their job and are overwhelmed with the number of people seeking a Section.

The court doctor will then enter the info into their records, call to determine if there are beds, and then send the case to the court for the first set of hearings.

If there aren’t any beds at the treatment facilities, the court doctor will advise you that there is a possibility that your loved one could go to Bridgewater or Framingham, and it is at that time you will have to make hard choices.

Side note: Jail vs. Death – it was always a no brainer for me, but, understandably, some of you will have a hard time with this choice. Just trust that you are making the best decisions you can based on what you can do in that particular moment.

Once your loved one is brought to the court, the doctor will meet with them and make an assessment based any number of things. They are trained in signs of addiction and will recognize signs of abuse and/or withdrawal. Once that occurs a second hearing will be held where the doctor will testify to the judge regarding what you have told the doctor, their observations and assessment of your loved one. You may or may not be called to testify. If so, continue to stick to the facts listed in your petition.

Does my loved one get a say on whether or not they receive treatment?
The respondent of any Section will be assigned an attorney to represent them at the hearing. Any good lawyer will represent their client to the fullest extent, so try not to take anything that is said personal.

However, if the court doctor testifies that there is evidence that the respondent is abusing drugs and is in need of treatment, then the judge will adjudicate the Section 35 and your loved one will be transported to the treatment facility.

How long will my loved one be in treatment?
Each state is different.

However, as many of us are aware and have experienced, many are released much sooner than that depending on availability of beds and willingness to continue treatment.

HOW TO WRITE A PETITION

1. Keep it fact based, clear and concise and in reverse chronological order; First Paragraph/Sentence should be structured as follows:

a. Example: My son or daughter, Insert (Name) is (insert method of use: injecting, smoking, snorting, etc.) (insert drug of choice) and has been using since (insert date of first use).

2. Next state what has happened most recently;

a. Example: On or about the following dates my (son or daughter) has: i. (Insert Date) overdosed;
ii. (Insert Date) has been hospitalized for (insert medical info);
iii. (Insert Date) been making threats (Describe the threats: suicidal or violent towards others –intentionally OD, going to burn the house down, etc.);
iv. (Insert Date) been physically abusive;
v. (Insert Date) been arrested for, etc.

[List out their destructive behaviors here by date: Most recent to oldest.]
DATES DO NOT HAVE TO BE EXACT: If you can’t remember the date, put month/year.

3. Closing Statement: Always close your request with:

“Based on the above reasons, I fear for my child’s safety and life. I believe that there is significant likelihood and imminent threat of death and/or harm to self and/or others. I hereby request the court order a warrant of apprehension in order to save my (son or daughter’s) life, pursuant to MGL. Chapter 123, Section ; Chapter , section and STATE Rules of Civil Procedures: Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse G. L. c.123 s.35, Rule ; for a minimum of 3 business days in order for me to successfully locate (him or her) and present (him or her) to the court for an Order of Examination Under Rule 5.”
4. Signing the Petition: Always end with the following Closing Salutation:

a. Respectfully, Jane. A. Doe

(Insert your contact info under your name)