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SJC-12844
MASSACHUSETTS GENERAL HOSPITAL vs. C.R.
Suffolk. January 9, 2020. - April 14, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
Mental Health. Incompetent Person, Commitment. Practice,
Civil, Commitment of mentally ill person. Due Process of
Law, Commitment.
Petition for involuntary civil commitment filed in the
Central Division of the Boston Municipal Court Department on
August 16, 2018.
The case was heard by Robert J. McKenna, Jr., J.
The Supreme Judicial Court granted applications for direct
appellate review.
Emily Kanstroom Musgrave for the petitioner.
Karen Owen Talley, Committee for Public Counsel Services,
for the respondent.
The following submitted briefs for amici curiae:
Steven J. Schwartz, Robert Fleischner, Kathryn L. Rucker,
Anna Krieger, Phillip Kassel, Jennifer Honig, & Tatum A.
Pritchard for Center for Public Representation & others.
Lester D. Blumberg, Special Assistant Attorney General,
Jeffrey MacKenzie, & John DiPietrantonio for Department of
Mental Health.
2
Matthew E. Sroczynski for Massachusetts Health & Hospital
Association & others.
Thomas F. Schiavoni, pro se.
KAFKER, J. After exhibiting signs of a mental illness at
Logan Airport, C.R. was brought to the emergency department (ED)
of Massachusetts General Hospital (MGH) by police pursuant to
G. L. c. 123, § 12 (a). She was detained at the ED for five
days while an appropriate placement was sought for her in a
psychiatric facility pursuant to G. L. c. 123, § 12 (b). C.R.
was ultimately admitted to a psychiatric facility, which in this
case was a separate unit at MGH. The day after she was admitted
to a psychiatric facility, but six days after she was initially
brought to the ED, MGH filed a petition for commitment pursuant
to G. L. c. 123, §§ 7 and 8.
The issue on appeal focuses on the time allowed to perform
the different activities required under G. L. c. 123, § 12 (a)
and (b). During the § 12 (a) period, the patient is
preliminarily evaluated and an application is made to an
appropriate psychiatric facility. The statute contains no
specific time period for § 12 (a). In contrast, § 12 (b)
provides for a more thorough evaluation of the patient that must
be conducted within three days. The issue is whether the three-
day window under G. L. c. 123, § 12 (b), begins running when the
patient is initially restrained under G. L. c. 123, § 12 (a), as
3
the Appellate Division of the Boston Municipal Court concluded,
such that MGH's petition was untimely, or whether that three-day
period only begins when a patient is admitted to a facility for
purposes of § 12 (b). We conclude that the activity governed by
G. L. c. 123, § 12 (a), is separate from the three-day
involuntary hospitalization period established under G. L.
c. 123, § 12 (b), and therefore reverse the decision of the
Appellate Division of the Boston Municipal Court. The three-day
period under G. L. c. 123, § 12 (b), is necessary to fully
evaluate the patient, and was not intended by the Legislature to
be shortened by the § 12 (a) time period.
We also conclude, however, that the time encapsulated by
G. L. c. 123, § 12 (a), was intended by the Legislature to be an
expedited emergency process, during which time the patient would
be stabilized and preliminarily evaluated by a qualified medical
professional, who would then apply for the hospitalization of
the patient at a facility authorized to further evaluate and
care for such patient. Due to many complicating factors
discussed infra, however, the time for application to and
acceptance by an authorized facility has extended well beyond
original expectations, particularly for the most vulnerable
patients. The record and briefing, however, also establish that
there is a concerted effort by the executive branch to address
this crisis, including the establishment of specific time frames
4
for hospitals and insurance providers to initiate escalation
steps for placement searches within the § 12 (a) period, and
ongoing communication between the executive branch and the
Legislature regarding this effort. 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.
Although her argument is primarily statutory, C.R. suggests
that her rights to due process may be violated if § 12 (a) is
not time defined. Based on the record before us, we discern no
constitutional violation with regard to C.R.'s confinement given
the difficulty of finding her an appropriate placement. We also
consider the larger questions of the constitutionality of
§ 12 (a) and ED boarding times more generally to be premature at
this time, as this case was not brought as a class action or a
declaratory judgment, nor did C.R. contend that § 12 (a) was
unconstitutional on its face. Our decision to decline to
consider these additional constitutional questions is also
informed and influenced by the urgent efforts being made on the
part of the executive branch to specify and shorten permissible
ED boarding times, and its active engagement with the
5
Legislature. As we perform our responsibilities of judicial
review, we recognize and show due respect for the diligent
efforts made by the other branches of government responsible for
performing the functions we are reviewing, particularly when
they involve complicated policy choices. Finally, we do,
however, strongly encourage the Legislature to identify a
§ 12 (a) time deadline to clarify the statute and avoid future
constitutional difficulties and to do so as expeditiously as
possible.1
1. Background. C.R. was admitted to MGH's ED on Friday,
August 10, 2018, after experiencing symptoms of a mental illness
at Logan Airport. C.R. was agitated and screaming at the
airport, which led to police restraining her and bringing her to
the ED pursuant to G. L. c. 123, § 12 (a).2 After arriving at
the hospital, C.R. was agitated and was yelling, screaming, and
threatening staff. C.R. was administered antipsychotic
1 We acknowledge the amicus briefs submitted by the
Department of Mental Health; Center for Public Representation,
Disability Law Center, and Mental Health Legal Advisors
Committee; Massachusetts Health & Hospital Association,
Massachusetts Association of Behavioral Health Systems,
Massachusetts Psychiatric Society, and Massachusetts College of
Emergency Physicians; and Thomas F. Schiavoni.
2 The facts giving rise to the police officer's initiation
of the G. L. c. 123, § 12 (a), application process are not a
part of the record before us; nor is the G. L. c. 123, § 12 (a),
application that was filled out that same day by a doctor at
MGH, as MGH was unable to locate these documents.
6
medication, secluded, and put in four-point restraints. Medical
professionals at MGH decided to apply for C.R.'s hospitalization
at an authorized psychiatric facility pursuant to G. L. c. 123,
§ 12 (b). Doctors concluded that C.R. required a private
facility room due to the level of her agitation when she
presented at the ED and throughout her stay there. For that
reason, C.R. remained in the ED at MGH until a bed in a private
facility room became available on Wednesday, August 15, 2018.
On that day, C.R. was admitted to MGH's inpatient
psychiatric department (Blake 11), which is a psychiatric unit
licensed by the Department of Mental Health (DMH).3 A new G. L.
c. 123, § 12 (a), application was completed on August 15 by the
same doctor who authorized C.R.'s admission to the facility that
day. When she arrived at the facility, C.R. remained agitated;
she shouted and gestured in a threatening manner. On August 16,
MGH filed a petition for commitment pursuant to G. L. c. 123,
§§ 7 and 8. In the petition, MGH stated that, "because of her
florid mania and delusional thinking, [C.R.] appears unable to
take care of her basic needs in the community."
Also on August 16, C.R. filed a pro se petition for an
emergency hearing pursuant to G. L. c. 123, § 12 (b), which a
Unlike Blake 11, MGH's ED is not a DMH-licensed facility.
3
To obtain a license from DMH, a facility must meet certain
requirements and submit an extensive application, as discussed
infra. See 104 Code Mass. Regs. § 27.03(10)(c) (2019).
7
judge in the Boston Municipal Court denied without a hearing.
Counsel was appointed for C.R. and filed a second request for an
emergency hearing on August 17. An emergency hearing was held
on August 20. The court denied C.R.'s request for immediate
release.
On August 23, C.R., through counsel, filed a motion to
dismiss MGH's petition for lack of jurisdiction, arguing that
MGH filed its petition for commitment outside the three-day
window provided under G. L. c. 123, § 12. The court denied the
motion on the same day at a hearing on MGH's petition for C.R.'s
commitment pursuant to G. L. c. 123, §§ 7 and 8. At that
hearing, the court heard testimony from Dr. Stuart Beck, a staff
psychiatrist at Blake 11. Beck articulated C.R.'s symptoms for
the court and testified that C.R. suffers from bipolar affective
disorder type 1. He also explained how patients brought to the
hospital's ED under G. L. c. 123, § 12 (a), often wait for an
available bed before being involuntarily admitted to a facility
pursuant to § 12 (b), and why there are often multiple § 12 (a)
forms for the same patient before he or she is admitted:
"[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 . . . . [S]ometimes there's new information that
comes up or the clinical situation changes and the previous
[§ 12 (a) application] doesn't seem relevant or appropriate
and they [(MGH medical professionals)] sometimes write new
ones."
8
When individuals in need of inpatient psychiatric
hospitalization wait in hospital EDs for extended periods of
time, as described supra, it is known as ED boarding. Executive
Office of Health and Human Services & Executive Office of
Housing and Economic Development, Expedited Psychiatric
Inpatient Admission Protocol 2.0 (Nov. 14, 2019) (EPIA 2.0).
See Matter of the Detention of D.W. v. Department of Social &
Health Servs., 181 Wash. 2d 201, 204 (2014) ("Such overcrowding-
driven detentions are often described as 'psychiatric
boarding'").
After denying C.R.'s motion to dismiss the petition, the
judge allowed MGH's petition for commitment and ordered that
C.R. be civilly committed for a period not to exceed two weeks.
C.R. timely filed her notice of appeal on August 29, appealing
from both the denial of her motion to dismiss and the court
order involuntarily committing her pursuant to G. L. c. 123,
§§ 7 and 8.
On September 5, 2019, the Appellate Division of the Boston
Municipal Court reversed the lower court's denial of C.R.'s
motion to dismiss the petition for lack of jurisdiction. The
Appellate Division acknowledged that G. L. c. 123, § 12 (a), "is
silent on whether the three day detention period begins when a
patient arrives at an emergency department, or if the period
9
does not begin until a patient is admitted to a psychiatric
facility." The court nevertheless concluded that the three-day
detention period under § 12 (b) "begins when a patient arrives
at an emergency department or a psychiatric facility." Because
the facility superintendent in this case filed the G. L. c. 123,
§§ 7 and 8, petition one day beyond the three-day period under
this calculus, MGH failed to timely file the petition and was
required to discharge C.R. at that point under G. L. c. 123,
§ 12 (b).4,5 MGH filed a timely notice of appeal, and we granted
both parties' applications for direct appellate review.
2. G. L. c. 123, § 12. General Laws c. 123, § 12, governs
the emergency restraint, evaluation, care, and hospitalization
of persons posing a risk of serious harm due to mental illness.
It contains multiple sections with different purposes,
procedures, and evaluators, and, most importantly for our
purposes, different time deadlines. Those deadlines are tightly
tailored to the tasks at hand. Although time is of the essence
4 For the reasons stated in Pembroke Hosp. v. D.L., 482
Mass. 346, 351 (2019), we address the issue of the timeliness of
the filing even though C.R. had been discharged from the
hospital before the order of the Appellate Division had been
issued. We do so given the stigma associated with involuntary
commitment and because the issue of the timeliness of the filing
is of the classic type capable of repetition yet evading review.
See id.
5 The Appellate Division did not address the merits, as
opposed to the timeliness, of the commitment petition, and that
issue is not before us on appeal.
10
in all sections, different time periods are necessary to
accomplish the different purposes of each section. At issue in
the instant case is the time allowed to perform the tasks set
out in § 12 (a). Unfortunately, this is one section without a
specific deadline.
Section 12 (a) provides:
"[Any mental health professional qualified under G. L.
c. 112] 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 [three]-day period at a public facility or at a private
facility authorized for such purposes by [DMH]. 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, qualified psychiatric nurse mental health
clinical specialist or licensed independent clinical social
worker on the basis of the facts and circumstances may
determine that hospitalization is necessary and may apply
therefore."
The statute also provides that, in an emergency situation where
a qualified medical professional or a clinical social worker is
unavailable, "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 [three]-day period
at a public facility or a private facility authorized for such
purpose by the department." Id. The statute further provides:
"Whenever practicable, prior to transporting such person,
the applicant shall telephone or otherwise communicate with
11
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."
Id.
A "facility" is defined by G. L. c. 123, § 1, as "a public
or private facility for the care and treatment of mentally ill
persons, except for the Bridgewater State Hospital." DMH
further defines "facility" as a "[DMH]-operated hospital,
community mental health center with inpatient unit, or
psychiatric unit within a public health hospital; a [DMH]-
licensed psychiatric hospital; a [DMH]-licensed psychiatric unit
within a general hospital; or an intensive residential treatment
program for adolescents that is either designated as a facility
under the control of [DMH] or licensed by [DMH]." 104 Code
Mass. Regs. § 27.02 (2019).
Facilities are heavily regulated for the particular mental
health services they provide. To obtain a license from DMH, a
facility must submit an extensive application including written
plans for delivery and supervision of clinical services by
qualified personnel, its plan for assuring adequate and
appropriate staffing, and plans for physical adaptations, such
as provision of single-occupancy bedrooms when necessary for
patients with high behavioral acuity, such as the patient in the
instant case. See 104 Code Mass. Regs. § 27.03(10)(c) (2019).
12
Facilities are required to have sufficient trained staff and to
maintain staffing to meet the operational capacity of the
facility at levels deemed appropriate by DMH. 104 Code Mass.
Regs. § 27.03(11) (2019).
DMH has also identified specific qualifications for
facility directors, physicians, and nurse leaders to be hired at
licensed facilities. Id. DMH conducts a survey at least every
two years of each licensed facility to ensure each facility
complies with Massachusetts law and DMH regulations. 104 Code
Mass. Regs. § 27.03(20) (2019). Although DMH and these licensed
facilities make it their objective to meet the mental health
needs of the Commonwealth, as further explained infra, a
patient's application and admission into a facility has become
an increasingly complicated task.
Once the patient has been transported to a facility for
admission, the procedures and time deadlines set out elsewhere
in G. L. c. 123, § 12, apply. General Laws c. 123, § 12 (b),
states:
"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 [DMH], 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
13
of mental illness he may admit such person to the facility
for care and treatment."
A person admitted under § 12 (b) "is entitled to legal
representation and may request an emergency hearing in the
District Court if he or she has reason to believe that the
admission is the result of an 'abuse or misuse' of § 12."
Pembroke Hosp. v. D.L., 482 Mass. 346, 348 (2019), quoting G. L.
c. 123, § 12 (b). The court must hold that hearing on the day
the request is filed with the court, or not later than the next
business day. G. L. c. 123, § 12 (b).
The statute further provides that "[a] person shall be
discharged at the end of the three day period unless the
superintendent applies for a commitment under the provisions of
[§§ 7 and 8] of this chapter or the person remains on a
voluntary basis."6 G. L. c. 123, § 12 (d). See 104 Code Mass.
Regs. § 27.09(7) (2019). The time periods prescribed or allowed
6 General Laws c. 123, § 7 (a), permits the superintendent
of a facility to petition the court for the commitment of a
patient at the facility if the superintendent "determines that
the failure to hospitalize would create a likelihood of serious
harm by reason of mental illness." The statute requires a
hearing on these petitions; when a superintendent brings a
commitment petition for a patient initially hospitalized
pursuant to G. L. c. 123, § 12 (b), to extend the involuntary
commitment period, the G. L. c. 123, § 7, hearing must be
commenced within five days from when the superintendent filed
the petition. G. L. c. 123, § 7 (c). General Laws c. 123, § 8,
governs court orders for commitment petitions filed under G. L.
c. 123, § 7.
14
under G. L. c. 123, § 12, are computed pursuant to Mass. R. Civ.
P. 6, 365 Mass. 747 (1974).7 G. L. c. 123, § 12 (e).
The three-day time period established in § 12 (b) was
intended for qualified medical professionals to evaluate a
patient and make a determination as to what treatment that
patient may or may not require, and how long that prospective
treatment may last. The three-day window carved out by the
Legislature in § 12 (b) provides a facility with the appropriate
time frame to assess and monitor a patient, and to determine
whether commitment pursuant to a court order is appropriate for
that patient. Shortening this time period risks jeopardizing
7 Rule 6 (a) of the Massachusetts Rules of Civil Procedure,
365 Mass. 747 (1974), provides:
"In computing any period of time prescribed or allowed by
these rules, by order of court, or by any applicable
statute or rule, the day of the act, event, or default
after which the designated period of time begins to run
shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, a
Sunday, or a legal holiday, in which event the period runs
until the end of the next day which is not a Saturday, a
Sunday, or a legal holiday. When the period of time
prescribed or allowed is less than [seven] days,
intermediate Saturdays, Sundays, and legal holidays shall
be excluded in the computation."
Thus, in computing the three-day period for purposes of G. L.
c. 123, § 12, we have recognized that the day on which the
person is admitted to a facility does not count toward the
three-day time limit of that person's hospitalization under
G. L. c. 123, § 12 (b). See Newton-Wellesley Hosp. v. Magrini,
451 Mass. 777, 780 n.6 (2008); 104 Code Mass. Regs. § 25.04
(2016).
15
the careful evaluation of patients requiring treatment, and
limits the ability of qualified medical professionals to
accurately determine whether the "failure to hospitalize [the
patient] would create a likelihood of serious harm by reason of
mental illness." G. L. c. 123, § 12 (b). As explained by the
ad hoc committee tasked with reviewing G. L. c. 123, § 12, prior
to a 2000 legislative amendment, the Legislature "spent a great
deal of time in seeking to determine what would constitute the
most efficient and effective time lines to accomplish the
purposes of the statute while minimizing the length of any
involuntary hospitalization periods for the patients involved."
District Court Committee on Mental Health and Retardation,
Report of the Ad Hoc Committee to Review G. L. c. 123, § 12, at
2 (Oct. 21, 1997). It also concluded that "a three business day
period is necessary to make a valid clinical determination of a
patient's need for continued psychiatric hospitalization" under
G. L. c. 123, § 12 (b). Id. at 4.
Shortening this time period in any way would not only
violate the express terms of the statute, but would contradict
the statutory purpose. The determination here is difficult and
designed to protect the interests of both the patient and the
public. It must be done thoroughly and deliberately. See,
e.g., Williams v. Steward Health Care Sys., 480 Mass. 286, 293
(2018).
16
After a patient has been evaluated during the three-day
time period established under § 12 (b), other provisions of the
statute come into play that also contain particular time
deadlines. If the superintendent of a facility moves for
commitment of the patient before the end of the three-day time
period, a court generally has five days to commence a hearing.
G. L. c. 123, § 7 (c). The court then generally has ten days
from the completion of the hearing to render its decision.
G. L. c. 123, § 8 (c). Under this framework, a patient may thus
be hospitalized in a licensed facility for as long as eighteen
days before a decision on his or her commitment is made. G. L.
c. 123, §§ 7 (c), 8 (c), 12 (b).
A comprehensive reading of G. L. c. 123, § 12 (a) and (b),
thus demonstrates that these subsections describe different
tasks by different evaluators applying different standards. For
example, a qualified medical professional or clinical social
worker, or in emergency situations a police officer, may
restrain an individual and apply for his or her hospitalization
if the medical professional or clinical social worker "has
reason to believe that failure to hospitalize such person would
create a likelihood of serious harm by reason of mental illness"
(emphasis added). G. L. c. 123, § 12 (a). To admit a patient,
however, a physician qualified and designated to admit patients
to a psychiatric facility must determine "that failure to
17
hospitalize such person would create a likelihood of serious
harm by reason of mental illness" (emphasis added). G. L.
c. 123, § 12 (b). See Newton-Wellesley Hosp. v. Magrini, 451
Mass. 777, 779 & n.4 (2008) (determination of whether "failure
to hospitalize such person would create a likelihood of serious
harm by reason of mental illness" is "quite different from the
'reason to believe' standard . . . required for restraint and
application for hospitalization" [citation omitted]); Reida v.
Cape Cod Hosp., 36 Mass. App. Ct. 553, 556 (1994) ("The
admitting physician has the role of determining whether, in
fact, a failure to hospitalize would create a likelihood of
serious harm, in contrast to the applying physician, whose
function is only to determine whether there is reason to believe
that such may be the case").8
In sum, G. L. c. 123, § 12 (a) and (b), reflects distinct
phases that should not be collapsed into one. We also respect
the legislative determination that three days may be required to
correctly perform the § 12 (b) evaluation process. That leaves
unresolved the question of how long the Legislature allowed the
8 Relatedly, a court may only commit an individual pursuant
to G. L. c. 123, §§ 7 and 8, if it finds beyond a reasonable
doubt that a person has a mental illness, that his or her
discharge would create an imminent likelihood of serious harm,
and that there is no less restrictive alternative to the
continued involuntary hospitalization. Pembroke Hosp., 482
Mass. at 348-349.
18
§ 12 (a) process to last, and whether such process as currently
employed violates constitutional due process standards.
Where a statute "is simply silent on a particular issue," -
- as is the case here with the undefined time period of
restraint under § 12 (a) -- "we interpret the provision in the
context of the over-all objective the Legislature sought to
accomplish" (quotations and citation omitted). Wing v.
Commissioner of Probation, 473 Mass. 368, 373 (2015).
With regard to the period of restraint of patients under
G. L. c. 123, § 12 (a), our review of the statutory language and
legislative history reveals that the Legislature envisioned an
expedited, emergency process that took no longer than was
necessary to transport the patient to an ED, conduct a
preliminary evaluation necessary to determine whether further
evaluation and hospitalization in a licensed facility was
necessary, and apply to such a facility for admission.9 What the
Legislature apparently failed to foresee was the increasing
9 The statute also contemplates that a patient may be
brought directly to a licensed facility. G. L. c. 123, § 12 (a)
("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").
19
complexity and difficulty of the application and admission
process.
3. ED boarding and the reality of the admissions process.
The most significant problem the Legislature failed to foresee
when it contemplated a short period of restraint under G. L.
c. 123, § 12, was the difficulty of placing patients with high
behavioral acuity or significant comorbidities. See
Commissioners of Insurance, Mental Health, and Public Health,
Bulletin 2018-01, Prevention of Emergency Department Boarding of
Patients with Acute Behavioral Health and/or Substance Use
Disorder Emergencies (Jan. 3, 2018) (Bulletin 2018-01).
Although facilities are required to have a plan in place to
provide single occupancy bedrooms when necessary to address
behavioral acuity in their patient population, see 104 Code
Mass. Regs. § 27.03(10)(c), it remains especially difficult to
find placement for certain patients, i.e., minor patients, or
patients with comorbidities requiring extensive care outside of
psychiatric care, exhibiting dangerous behavior, or otherwise
exhibiting behavior requiring a private room, like the plaintiff
here. See Bulletin 2018-01, supra. In addition to a shortage
of beds or single-occupancy rooms, there also might be a
shortage of psychiatrists or other physicians who staff
inpatient facilities with resources for these types of patients.
Where there might be an open bed, there may not always be the
20
appropriate staff to treat the patient. Insurance company
approvals further complicate this process. See, e.g., Bulletin
2018-01, supra at 2-3. See also G. L. c. 176O, § 16 (b).
These problems have unexpectedly extended the period of
time necessary to apply to a facility for admission. Thus,
there is some disconnect between the intent of the Legislature
to provide for a short period of restraint, preliminary
evaluation, and application to an appropriate facility pursuant
to § 12 (a), and the reality medical professionals face when
trying to find a placement for psychiatric patients,
particularly the most vulnerable ones.
Although there is disagreement about the time permitted for
ED boarding, the record presented to this court reveals no
realistic alternative to ED boarding itself. A physician,
qualified mental health professional, or, in an emergency, a
police officer has made a preliminary determination that there
is reason to believe that failure to hospitalize such person
would create a likelihood of serious harm by reason of mental
illness. G. L. c. 123, § 12 (a). Thus, releasing the patient
poses a risk of serious harm to the patient or the public.
Compare Pembroke Hosp., 482 Mass. at 353 (after judge found
patient's mental illness did not create likelihood of serious
harm, inappropriate to confine him). Taking the patient into
police custody is clearly a worse alternative. EDs are thus the
21
only identified alternative, and one clearly contemplated by the
Legislature, albeit for a short period of time.10
The EDs themselves have no choice in the matter, and no
incentive to prolong the patient's stay there. EDs are legally
obligated to accept patients with emergency medical conditions
-- including emergency psychiatric conditions -- and are not
able to turn patients away in anticipation that ED staff will
not find a facility bed right away. See 42 C.F.R.
§ 489.24(d)(1) (2013) (mandating that hospitals must provide
treatment or ensure appropriate transfer of patient who arrives
with emergency medical condition). As explained in the record
and briefing, ED boarding causes overcrowding and strains
hospital resources.
10We note that the Legislature appeared to be aware when
enacting G. L. c. 123, § 12, that patients are often first
brought to EDs before they are admitted to facilities. See,
e.g., Minority Report of the Ad Hoc Committee to Review G. L.
c. 123, § 12, at 1 n.1 (Oct. 21, 1997) (identifying "the role of
the police in restraining and transporting persons to
hospitals"); Testimony of Robert D. Fleischner to Subcommittee
on Involuntary Commitment and Mental Health Services, at 3 (Oct.
21, 1997) ("after being seen by an emergency service team[],
individuals may be admitted to a private hospital"). See also
National Center for State Courts, Guidelines for Involuntary
Civil Commitment, 10 Mental & Physical Disability L. Rep. 409,
445 (1986) (guideline allowing police officers to leave after
screening application of patient is complete "protect[s] against
misuse of the no-decline policy and 'dumping' of troublesome
individuals at the emergency room door"). However, our review
of the legislative history suggests that the practice of ED
boarding was not expressly contemplated by the Legislature at
the time.
22
Nothing in the record suggests that hospitals have any
incentive to perpetuate ED boarding unnecessarily; rather, they
have every incentive to place a psychiatric patient requiring
treatment in a facility as soon as possible, and are trying to
do so. They are also understandably concerned about simply
releasing such patients, as they fear being sued if harm befalls
such patients or the public. Cf. Williams, 480 Mass. at 293-297
(discussing potential theories of liability of hospitals and
their personnel subsequent to release of psychiatric patients
who present likelihood of serious harm). At the very least, EDs
ensure that patients in psychiatric crisis are being cared for
and can do no physical harm to themselves or to others during
the application process. Matter of E.C., 479 Mass. 113, 119
(2018) ("The provisions of G. L. c. 123 balance the rights of
and protections for incompetent persons with the Commonwealth's
interest in protecting the public from potentially dangerous
persons who may be unable to control their actions because of
their mental condition" [quotation and citation omitted]).
The record also demonstrates that the executive branch of
the Commonwealth is actively engaged in addressing the length of
time of ED boarding, imposing numerous deadlines during the ED
boarding process. See Testimony of Commissioner of Mental
Health, Joint Hearing of the House and Senate Committees on Ways
and Means (Mar. 11, 2019) (Commissioner Testimony). As a part
23
of its initiative, the Commissioner of Insurance, the
Commissioner of Mental Health, and the Commissioner of Public
Health issued Bulletin 2018-01, supra. Among other things,
Bulletin 2018-01 -- subsequently updated by Bulletin 2019-08
(Nov. 13, 2019) -- described its expedited psychiatric inpatient
admission protocol (EPIA), aimed at reducing ED boarding times.
The EPIA provides that twenty-four hours "is the maximum
threshold for initiating escalation steps to obtain placement
for a patient who is boarding in an ED." EPIA 2.0, supra at 1.
If placement has not been identified within twenty-four hours
from when a patient arrives to the ED, the ED must make a formal
request for assistance to the insurance carrier, which must help
ED staff members gauge availability in facilities when a patient
requires accommodation for his or her admission under G. L.
c. 123, § 12 (b). Id. at 3. The insurance carrier must respond
within two hours of the submission of a request for assistance
during normal business hours; when a request for assistance is
made outside of normal business hours, the carrier must
acknowledge receipt of the request no later than the morning of
the next calendar day after the request is made. Id. If a
patient has been in the ED for ninety-six hours, the ED and the
insurance carrier must notify DMH that the patient has not yet
been placed. Id. at 5. The protocols give detailed "play-by-
play" information and a timeline of what steps must be taken by
24
the insurance carrier to assist in identifying a placement for
the patient, and are evidence of the extensive efforts DMH and
other entities have made to solve problems and shorten ED
boarding times with the resources they have available.11
The record before us also shows that the Legislature has
been made aware of ED boarding times and the actions DMH has
taken to address them since at least March 2019, when the
Commissioner of Mental Health (commissioner) testified at a
joint hearing of the House and Senate Committees on Ways and
Means. During that testimony, the commissioner discussed the
initiative to improve ED boarding times. Commissioner
Testimony, supra at 8. According to the commissioner, the EPIA
"establishes clear steps and responsibility when placement [of a
patient] has not been achieved in a reasonable period of time
11Relatedly, DMH has promulgated regulations making it
unlawful for a facility to create "exclusion criteria that would
result in the refusal to admit a patient." 104 Code Mass. Regs.
§ 27.03(5)(c) (2019). A facility may only deny admission if it
would result in the facility operating beyond its operational
capacity or its licensed capacity. 104 Code Mass. Regs.
§ 27.05(3) (2019). See Bulletin 2019-08, supra at 1 ("inpatient
psychiatric facilities are expected to admit all [G. L. c. 123,
§ 12 (b),] patients, so long as they have the capacity [an
available bed] and the capability [ability to meet the clinical
needs of the patient]"). Facilities operating below their
licensed capacities must specify the reasons why and provide a
plan to meet staffing requirements to operate at full licensed
capacity. 104 Code Mass. Regs. § 27.03(11) (2019). When
denying admission, a facility must show that, "despite its best
efforts, it is unable to accommodate the additional capacity."
104 Code Mass. Regs. § 27.05(3)(b).
25
and a protocol for escalating cases to senior clinical
leadership at insurance carriers, inpatient psychiatric units,
and ultimately to DMH in order to achieve placements for the
most difficult to place patients." Id. The commissioner
acknowledged that EDs were acting to reduce boarding times, but
that, during the first twelve months of the EPIA's
implementation, DMH received 481 requests for assistance for
patients who had waited at least ninety-six hours.12 Id.
It is thus apparent to us that the Legislature understands
that the period of restraint and application under § 12 (a)
makes at least temporary ED boarding a necessity for at least
the most difficult-to-place patients. However, the Legislature
has not yet amended G. L. c. 123, § 12 (a), to reflect that the
application process is taking more time than what was originally
envisioned because of a number of complex developments regarding
mental health care. The March 2019 testimony of the
12As the EPIA and DMH bulletins make clear, those for whom
it is most difficult to find a bed in a facility are often those
the most in need of one. See EPIA 2.0, supra at 1. This is
why, if we were to apply the three-day time limit in G. L.
c. 123, § 12 (b), to patients in ED boarding -- as the Appellate
Division has done -- the individuals most vulnerable in the
Commonwealth would be the ones released after just three days.
Such vulnerable individuals include children; the poor,
including the homeless; and those with special needs, high
behavioral acuity, or intellectual disabilities. These patients
will decidedly not benefit from being released from an ED after
just three days before receiving the treatment and evaluation
they need.
26
commissioner provided to us in the record illustrates that the
Legislature has become aware of this problem, as well as the
ensuing concerted effort by the executive branch, through DMH,
to address this problem by enlisting all relevant actors,
including medical professionals, EDs, hospitals, and insurance
carriers. The Legislature has also been informed that DMH has
established specific time frames that initiate escalation steps
to be taken by hospitals and insurance carriers. For example,
DMH has identified the time period of ninety-six hours after a
patient has entered an ED as the time when the ED and insurance
carrier must request assistance from DMH in placing a patient.13
See EPIA 2.0, supra at 5.
Despite this effort, the Legislature has not yet taken any
action to impose a specific time period on § 12 (a) as it
further evaluates the complex problem of ED boarding. It has
not done so, even though it has amended G. L. c. 123, § 12,
multiple times over the decades to, among other things, revise
deadlines in the commitment process without ever specifying the
length of time a person may be restrained under § 12 (a). See,
13This also makes clear that, contrary to the decision of
the Appellate Division in this case, neither the Legislature nor
DMH understands the period of restraint under § 12 (a) to be the
same as, or collapsed into, the three-day period of evaluation
and hospitalization under § 12 (b), as ninety-six hours exceeds
the three-day time period established in § 12 (b), yet was
tacitly accepted by the Legislature when DMH issued its
protocols.
27
e.g., St. 2000, c. 249, §§ 4-6 (reducing initial period of
evaluation and hospitalization without court order from ten to
four days); St. 2004, c. 410, § 2 (further reducing same period
to three days); St. 2010, c. 278, § 1 (adding social workers to
list of individuals who may restrain patient if they have reason
to believe patient presents risk of harm).
We are also aware that the issue of ED boarding is being
actively considered in the current legislative session. The
Senate passed a mental health bill on February 13, 2020, that
includes an amendment to that bill that would put a forty-eight
hour cap on the amount of time patients younger than twenty-two
years old may spend in an ED before admission to a facility. A
bill is, of course, not law, but is nevertheless reflective of
the Legislature's active consideration of the problem. As
explained infra, such consideration informs our approach to the
constitutional questions ED boarding raises.
In these circumstances, absent constitutional violations,
we will not impose a specific time deadline into a statute where
no such deadline has been included. In so concluding, we
recognize that the time period for the application and
acceptance process has been greatly enlarged beyond original
expectations through complex developments. However, we also
recognize that the executive branch is actively engaged in
addressing the problem, imposing numerous time deadlines that
28
trigger escalation steps in the process of placing patients, and
the Legislature is aware of the problem and has not yet sought
to impose its own more specific time requirements, even in an
area that it has closely monitored and for which it has
tightened time deadlines in the past.
4. Constitutional questions. "The right of an individual
to be free from physical restraint is a paradigmatic fundamental
right," Pembroke Hosp., 482 Mass. at 347, quoting Matter of
E.C., 479 Mass. at 119, and those who are involuntarily
committed, even on a temporary basis, experience "a massive
curtailment of their liberty" (quotation and citation omitted),
Newton-Wellesley Hosp., 451 Mass. at 784. We have previously
recognized that the Legislature, in enacting and subsequently
amending G. L. c. 123, § 12, "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." Matter of N.L., 476 Mass. 632, 636-637 (2017)
("It is illogical that the Legislature would shorten the period
for conducting [civil commitment and medical treatment] hearings
and have it inure to the detriment of the individual's due
process right to prepare a meaningful defense"). In this vein,
we have previously recognized that G. L. c. 123 provides for
tight time limits, "and any violation of those limits would risk
running afoul of due process protections." Matter of E.C., 479
29
Mass. at 122 n.8. See Hashimi v. Kalil, 388 Mass. 607, 610
(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").
We do not, however, decide constitutional questions
unnecessarily or prematurely. See Beeler v. Downey, 387 Mass.
609, 613 n.4 (1982) (this court must "fulfill[] its duty to
avoid unnecessary decisions of serious constitutional issues,"
and "[t]he question whether this court should use its power to
declare a statute unconstitutional is of wide public importance
and extends far beyond the bounds of the instant case"). The
instant case is also not a class action or a declaratory
judgement action. C.R.'s primary argument is statutory.
Although in making that statutory argument, she contends that
there must be an outer constitutional time limit to § 12 (a),
she does not argue that § 12 (a) is unconstitutional on its
face, nor does she fully develop the argument that § 12 (a) is
unconstitutional as applied to her. In this context, we decide
only the constitutional questions necessary to resolve this case
and to provide required guidance to the governmental and
nongovernmental actors involved in resolving the ED boarding
crisis.
First, we recognize the grave impairment of liberty for
C.R. C.R. was deemed to be so agitated as to require four-point
30
restraints. While in that condition, she was restrained in an
ED 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 [C.R.] would create a likelihood of
serious harm by reason of mental illness." See G. L. c. 123,
§ 12 (a). Her restraint here for five days clearly raises
constitutional concerns.
We also emphasize that the important constitutional liberty
interests at stake require that the involuntary restraint
pursuant to § 12 (a), including the time period allowed for that
restraint, must be narrowly tailored to serve a compelling
governmental interest. The law must also be the least
restrictive means available to vindicate that interest. See
Matter of a Minor, 484 Mass. 295, 309 (2020) ("Laws that
directly infringe on fundamental rights, such as liberty from
constraint, are subject to strict scrutiny. To pass the strict
scrutiny standards, the [law] must be narrowly tailored to
further a legitimate and compelling governmental interest and be
the least restrictive means to vindicate that interest"
31
[quotation and citations omitted]); Commonwealth v. Weston W.,
455 Mass. 24, 35 (2009). See also Pembroke Hosp., 482 Mass. at
347 ("General Laws c. 123 governs involuntary civil commitment
due to mental illness, and thus may curtail that freedom, but
only in particular circumstances, and by way of specified
procedures designed to protect due process rights").
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.
In the instant case, however, there is no indication in the
record that the period of restraint was any longer than was
necessary to find the patient an appropriate facility for
evaluation. Her intense agitation and the requirement of
finding her a single room lengthened the process. Nothing in
the record indicates any lack of effort on the part of MGH to
identify an appropriate placement for C.R. Nor did MGH have any
incentive to keep her in the ED any longer than was necessary.
Finally, no suitable, less restrictive location than an
32
emergency room was identified for the restraint and application
process to occur. In these circumstances, we discern no
constitutional due process violation in the instant case.
We also recognize that the record indicates that the
boarding time here was not exceptional. Rather, the record
describes a widespread problem of ED boarding exceeding ninety-
six hours. We recognize that the scale and scope of the problem
may very well present a different set of constitutional
questions. That being said, we follow the precautionary
principle of not deciding constitutional questions unnecessarily
or prematurely for a number of interrelated reasons in the
instant case.
Our precautionary approach is also informed and influenced
by the concerted, ongoing efforts on the part of the
Commonwealth to address the ED boarding crisis, including the
time frames established by DMH for hospitals and insurance
carriers to escalate steps in the placement process pursuant to
the EPIA, and the active engagement of the executive branch with
the Legislature to attempt to address the problem. The issue of
widespread ED boarding has thus generated a concerted response
by the Commonwealth. As we perform our responsibilities of
judicial review, we must also recognize and demonstrate due
respect for the diligent efforts made by the other branches of
government responsible for performing the functions we are
33
reviewing, particularly when they involve complicated policy
choices. Hancock v. Commissioner of Educ., 443 Mass. 428, 457
(2005) (Marshall, C.J., concurring) ("Here, the independent
branches of government have shown that they share the court's
concern, and that they are embracing and acting on their
constitutional duty . . ."). See Sunstein, Foreword: Leaving
Things Undecided, 110 Harv. L. Rev. 4, 38 (1996) ("[A] broad,
early ruling may have unfortunate systemic effects. It may
prevent the kind of evolution, adaption, and argumentative give-
and-take that tend to accompany lasting social reform"). For
this combination of reasons, we consider it premature to decide
these larger constitutional questions at this time. See McDuffy
v. Secretary of the Executive Office of Educ., 415 Mass. 545,
621 (1993) ("No present statutory enactment is to be declared
unconstitutional," but court will continue to monitor planned
legislative and executive actions).
We do, however, strongly encourage the Legislature to
identify a time period capping the time of ED boarding to
clarify the over-all § 12 (a) time deadline and avoid future
constitutional difficulties, and to do so as expeditiously as
possible. Cf. Jean W. v. Commonwealth, 414 Mass. 496, 499 & n.3
(1993) (Liacos, C.J., concurring) (announcing court's intention
to abolish public duty rule "at the first available opportunity
after the conclusion of the 1993 session of the Legislature" and
34
"inviting the Legislature to consider the forthcoming change in
decisional law, and to make any preparations for the change that
it deems appropriate"); Whitney v. Worcester, 373 Mass. 208,
210-213 (1977) (urging Legislature to take action to abrogate
sovereign immunity and refine formulation and principles
stressed in court's opinion). Establishing such a cap within a
reasonable time frame is necessary to ensure the protection of
the important liberty interests at stake.
5. Conclusion. We reverse the decision of the Appellate
Division dismissing the petition as untimely. The time period a
patient is restrained pursuant to G. L. c. 123, § 12 (a), is
distinct from the time period a patient may be hospitalized
pursuant to § 12 (b). The three-day period under G. L. c. 123,
§ 12 (b), is necessary to properly evaluate the patient, and was
not intended by the Legislature to be shortened by the
activities undertaken during the § 12 (a) period. Although the
§ 12 (a) time period for application to and acceptance by an
authorized facility has extended beyond the Legislature's
original expectations, the Legislature has not yet chosen to
include a specific deadline despite its recognition of the
issue. Absent demonstrated constitutional violations, we will
not impose such a specific requirement ourselves. As applied to
C.R., we conclude that the statute did not violate due process,
as the § 12 (a) period of confinement was no longer than
35
necessary given the difficulty of finding her an appropriate
placement. We also conclude that any additional constitutional
ruling regarding § 12 (a) or ED boarding times generally is
premature in the instant case, which has not been brought as a
facial challenge to the statute or as a class action or request
for declaratory judgment. Our decision that any further
constitutional ruling is premature is informed and influenced by
our recognition that the executive branch has engaged in a
concerted effort to address and resolve the crisis, including
developing time frames for hospitals and insurance providers to
initiate escalation steps for facility placement searches during
the § 12 (a) period, and so informed and engaged the
Legislature, which continues to evaluate the problem. We do,
however, encourage the Legislature to include a time deadline
for the § 12 (a) evaluation process as expeditiously as possible
to clarify the statute and ensure the protections of the
important liberty interests at stake.
So ordered.