In January, 2023, the Massachusetts legislature announced proposed bills for the current legislative session. Among them was S.1246/H.1994, An Act to Provide More Timely Treatment (then referred to as SD.1122/HD.832 before it was given official bill numbers).
The bill was primarily aimed at speeding up the process of getting a Rogers Order assigned to someone being held inpatient in a locked psychiatric facility by removing options to request delays in the hearing process. Wildflower flagged it at the time as a bill of significant concern. (See the original notice HERE).
Rogers Orders stem from a class action lawsuit led by Ruby Rogers and other plaintiffs seeking to establish that being held involuntarily in a psychiatric facility does not automatically mean that someone is incompetent to determine whether or not they should take psychiatric drugs. The case was won, and the Rogers decision included the determination that 1) If someone was found to be competent – regardless of being held inpatient – they retain the right to make decisions about treatments; and 2) If found not to be competent to make those decisions in the moment, the court would be responsible for a ‘substituted judgement’ which meant attempting to determine what that person would do if they were competent (based on what was known about their preferences, religious beliefs, likelihood that the treatment would work and so on). More is available about the Rogers Order HERE.
However, in May, the bill was rewritten so significantly that it was given an entirely different bill number (S.2785). Instead of removing options to delay the Rogers hearing, the new bill essentially guts both key elements of the Rogers Decision in the event that, due to a “serious mental illness,” failure to treat is likely to lead to “Immediate, substantial and irreversible deterioration.”
Even more shocking than this sudden rewrite was the fact that it was quickly voted favorably out of the Joint Committee on Mental Health, Substance Use and Recovery, moving it one step closer to becoming law almost before anyone knew it was a proposal at all. It now sits with the Joint Committee on Health Care Financing.
There are many reasons why this bill is extremely problematic.
These include (but are not limited to):
| ▪ | Such a dramatic change at this stage completely bypasses the opportunity for comment via a public hearing. The original bill was part of a public hearing, but again, it was so substantially different than the current bill that it would not be reasonable to claim that a public hearing has been had for the current proposal. |
| ▪ | There is no clear scientific basis for the claim that “untreated mental illness” leads to “irreversible deterioration”. Although this claim has repeatedly been made, For example, some researchers have more recently pointed out that brain damage previously attributed to a disease process is actually more strongly associated with the impact of psychiatric drugs. Others point to the ways in which Open Dialogue, Soteria and other innovative programs that minimize psychotropic treatment contradict the theory that drugs are necessary to prevent decline. |
| ▪ | Even if it were possible that deterioration without treatment were likely (which again, doesn’t appear to be a well-founded theory scientifically), the idea that that decline would occur in 72 hours or even a matter of weeks is absurd. Even if we were to assume the claim of deterioration were true, it is being completely misused here in an attempt to convince people that something is in the individual’s best interests, when in fact it is for another reason entirely. |
| ▪ | This law would gut the already minimal protections from unjustified use of force that are currently afforded to people being held against their will in psychiatric facilities. The loss of power experienced by someone being forcibly contained on a locked psychiatric unit is substantial and often traumatic. The Rogers decision at least attempts to require the hospital to prove that a) someone is not able to make an informed decision about their own treatment; and b) that if they were able to make an informed decision, they’d agree to the treatment the hospital is recommending. There is no real justification for taking away these limited protections. |
| ▪ | There are already two exceptions to force psychiatric drugs without awaiting the Rogers Hearing making this new proposal unnecessary. Exceptions include the “police power exception” which basically boils down to okay’ing the use of chemical restraint (forced drugging) if there is “imminent risk to self or others” and there is no other less restrictive option available. The other is the “parens patriae” exception which does allow for use of forced psychiatric drugs in the event of a condition that would cause “immediate and irreversible harm” provided the doctor also initiates the process for a substituted judgement hearing at the same time. While this sounds very similar to the current proposed bill, the current bill separates the reason of “immediate and irreversible harm” from the substituted judgement piece which would be a very significant change. Ultimately, advocates of this bill either need to acknowledge their proposal is unnecessary given the already existing exceptions or they will need to admit that their goal is in fact to bypass the “substituted judgement” principle and substantially broaden the ways in which psychotropics (and potentially other treatments) can be forced. |
| ▪ | This bill is essentially trying to rewrite a supreme court decision which isn’t constitutional. Legislation isn’t meant to be used to dismantle supreme court decisions. One would need to take an issue back to the supreme court to make a change of this nature. Some may argue that this is an attempt to “codify” (organize various legal decisions and laws into an orderly and formal format) rather than change. However, the Massachusetts Department of Mental Health has regulations that essential serve to “codify” the Rogers decision already, and again, the proposal as written presents as dismantling and not an effort to formalize. |
| ▪ | The treatments that would be forced do not have a good track record of success and sometimes cause real harm. In fact, in other countries (such as Norway.)) there must be a “high probability” (generally well over 50%) that something will help if it is going to be legally forced, and because the drugs classed as ‘antipsychotics’ don’t meet that criteria, some have found that it is not legal to force them. |
| ▪ | Bizarrely, the new version of the bill also suggests that providers can’t be held liable for damages. Again, this represents a dangerous erosion of patient rights and perpetuates an extreme devaluation of the lives and wellbeing of people who would be held and treated involuntarily. |
| ▪ | All other points aside, there is no reason to believe that providers would be able to implement this change ethically. There are already countless examples of providers stretching, manipulating and misusing laws (including Rogers orders) and legal principles in the Commonwealth. This includes providers telling individuals that they can be brought to the hospital involuntarily simply for refusing their psychiatric drugs if they have a community Rogers Order, providers having private meetings about how to create conditions that would agitate someone to the point that they can be hospitalized, providers keeping pre-signed section 12 paperwork on hand and more. The Massachusetts Disability Law Center’s report on ongoing ethical breaches and abuses at Bridgewater is an excellent example of why we should be concerned about further eroding patient rights. |
The Massachusetts Disability Law Center has prepared a letter detailing these and other concerns. It can be viewed HERE.
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