Massachusetts General Hospital v. C.R.

NOTICE: All slip opinions and orders are subject to formal

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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.