In Massachusetts, anyone with a severe alcohol or substance abuse problem can be involuntarily committed to a state-run stabilization facility for treatment pursuant to M.G.L. c. 123, Section 35.
A “Section 35” commitment can be ordered by a district court judge if, after an evidentiary hearing, it’s determined that the defendant’s drug or alcohol abuse poses an imminent threat of serious harm to the defendant or to those around him.
Prior to the Section 35 hearing, the defendant will be asked to speak with a court clinician (either a licensed social worker or a psychologist) about his history of alcohol or drug use.
The defendant has every right to refuse this evaluation. And, if the defendant does not want to be committed, it’s often best for him to remain silent when questioned by the clinician.
There are two reasons to turn down the clinician evaluation.
First, regardless of what you say to the clinician, he or she will almost always recommend that you be committed. I have represented many defendants facing Section 35 commitments and I’ve sat through several evaluations where, in my opinion, the defendant’s substance use creates no “imminent risk of harm” to anyone. Nevertheless, the clinician will still—in almost every case—advise the court that compulsory treatment is best for the defendant.
(I don’t know why this is. Perhaps the clinician is erring on the side of caution. Or maybe he or she is overly confident in the commitment process. Whatever the clinician’s reasoning, you can pretty much guarantee that he or she will advise the court to commit you whether you participate in the evaluation or not.)
Here is the second justification for refusing the Section 35 evaluation: it forces the clinician to make his or her commitment recommendation on hearsay evidence and whatever court paperwork that is readily available. At the Section 35 hearing, the clinician is usually the star witness. He or she will be forced to admit that no evaluation was done and that his or her testimony is based on less reliable sources (e.g., the applicant’s out-of-court statements, the defendant’s record, the defendant’s history of Section 35 commitments.) This, of course, makes the clinician’s assessment open to doubts and may increase the chance that the judge will refuse to commit the defendant.
Nevertheless, I must emphasize that every case is unique, every court handles proceedings differently, and judicial decisions may often seem arbitrary. Therefore, you should rely on your attorney’s advice if you ever find yourself subject to a possible substance abuse commitment.