In Massachusetts, a person can be committed to mandatory substance-abuse treatment following a petition and hearing pursuant to M.G.L. c. 123, Section 35.
The petition for commitment can be made by “any police officer, physician, spouse, blood relative, guardian or court official.”
The petitioner will fill out an application for apprehension and commitment of the alleged addict. (For an example of the application click here.)
In the application, the petitioner must specify the nature of the person’s drug or alcohol use and how this person is a danger to himself or his community.
Upon submitting the application to the court, a summons will be issued (per M.G.L. c. 276, Section 25) and the accused person will be brought before a district court judge who will determine whether to order the commitment.
For a commitment to be ordered, two things must be established. First, it must be shown that the person does in fact have an alcohol or substance abuse problem. Second, it must be evident that, due to the alleged addiction, the person poses an imminent threat to himself or to others. Both of these factors must be proven by “clear and convincing evidence.”
(Alcohol and substance abuse are defined in detail by M.G.L. c. 123, Section 1. What constitutes an imminent threat of harm is discussed by the SJC in the Matter of G.P., 473 Mass. 112.)
Prior to the “Section 35” hearing, a clinician will seek to evaluate the accused person. The person facing commitment can, and often should, decline the evaluation. Refusal to submit to the clinician’s evaluation cannot be used as grounds for commitment.
Moreover, the alleged substance-abuser has the right to an attorney at all stages of the proceedings.
If the person agrees to speak with the clinician, he must be advised that anything he says to the clinician can be disclosed in open court during the commitment hearing. This advisory is known as the Lamb warning.
After the clinician’s evaluation (or after the evaluation is declined), the court will have a hearing on the matter. The hearing will be conducted according to rules laid out in Trial Court Rule XIII: Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol an Substance Use Disorders, sometimes referred to simply as the “Uniform Rules.”
During the hearing, the person’s attorney will speak against commitment. The attorney will most likely cross examine the clinician if he or she testifies. The attorney may also cross examine any other witness who speaks in favor of commitment. The accused is also permitted to speak and to present evidence in his favor during the hearing.
One likely point of contention will be the trustworthiness of the statements made in the application. Unlike a trial, hearsay evidence (such as statements made in the commitment application) is admissible during a Section 35 hearing.
However, the hearsay must be “substantially reliable.” What constitutes substantial reliability was defined by the SJC in Commonwealth v. Durling, 407 Mass. 108 (1990). These are known as the Durling factors.
After the hearing, if the judge finds grounds for commitment, the person will be brought to a designated treatment facility for up to 90 days. The person’s commitment must be reevaluated by the facility’s superintendent on days 30, 45, 60, and 75 according to how long the commitment continues.
The person will also lose his right to own a firearm for at least five years, if he is commitment pursuant to Section 35.