In Massachusetts General Hospital v. C.R. (slip opinion 4/14/20, SJC-12844), the Supreme Judicial Court recently grappled with the extensive crisis of “ED boarding,” detaining a patient at a hospital Emergency Department (“ED”) pursuant G.L. c. 123, § 12(a) while seeking an appropriate placement at a psychiatric facility pursuant to G.L. c. 123, § 12(b). The practice of ED boarding has become increasingly common in Massachusetts given the shortage of available placements at psychiatric facilities.

Although § 12(b) provides for a three-day period of involuntary hospitalization while medical professionals evaluate a patient and determine whether “the failure to hospitalize [the patient] would create a likelihood of serious harm by reason of mental illness,” § 12(a) does not include any time limitation. § 12(a) provides that a qualified medical professional or clinical social worker, or in emergency situations a police officer, may restrain an individual where that person has “reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness.” In Massachusetts General Hospital v. C.R., the SJC recognized that the standard for restraint under § 12(b) is certainly more stringent than that imposed by § 12(a), but declined to impose a specific time period under § 12(a), noting that the Legislature is aware of the crisis and is taking steps to rectify it. Until the Legislature does so, patient detainments at ED’s across the Commonwealth will undoubtedly continue without any time restrictions in place.

The patient in question, C.R., was brought to the ED of Massachusetts General Hospital (“MGH”) by police at Logan Airport after manifesting dangerous behaviors as a result of mental illness and was detained at the ED for five days pursuant to G.L. c. 123, § 12(a) while an appropriate placement was sought for her in a psychiatric facility pursuant to G.L. c. 123, §12(b). In particular, doctors at MGH concluded that a private room was needed for C.R. due to the level of her agitation. The SJC discerned no constitutional violation in this five-day period of preliminary confinement given the difficulty in finding her an appropriate placement at an inpatient psychiatric hospital.

In holding that there was no constitutional violation, the SJC noted that the Legislature had apparently failed to foresee the increasing complexity of the admissions process when it 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.” The admissions process is particularly complicated for patients with aggressive behavioral outbursts or significant comorbidities, as well as those who are minors, who exhibit dangerous behavior, or otherwise exhibit behavior requiring a private room, such as C.R. The SJC further reasoned that there is no realistic alternative to ED boarding, as releasing a dangerous patient poses a risk of serious harm to the patient and the public, and taking the patient and into police custody is a worse alternative. The SJC thus implicitly acknowledged that the practice of taking patients with mental illness into police custody railroads individuals with disability into the criminal justice system as if mental illness itself were criminal behavior, which it is not.

The executive branch is engaged in addressing the length of time for ED boarding, and the Department of Mental Health of the Massachusetts government (“DMH”) has imposed deadlines under the Expedited Psychiatric Inpatient Admission Protocol (“EPIA”), including a requirement that, if a placement has not been identified for a patient within twenty-four hours, the ED must formally request assistance from the insurance carrier, which must respond to the request within a set timeframe. Thereafter, if a patient has been in the ED for ninety-six hours, the ED and insurance carrier must notify DMH that the patient has not yet been placed. The SJC noted that the Legislature is clearly aware of the problem. The SJC noted that there is a bill pending 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. It is unclear how this will work out if there simply are insufficient in-patient beds for youngsters who are dangerous to themselves and others, due to mental illness.

In consideration of the above, as well as the absence of realistic alternatives to ED boarding, the SJC held that § 12(a) passed strict scrutiny constitutional standards in that it is “narrowly tailored to further a legitimate and compelling governmental interest and be the least restrictive means to vindicate that interest.” The “compelling government interest” in question is the patient’s health and safety and that of the public, and the record revealed no indication that the five-day period of restraint imposed upon C.R. was any longer than was necessary to find her an appropriate facility for evaluation.

Nevertheless, the SJC referred to the “widespread problem of ED boarding” as a “crisis” and “strongly encourage[d] 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.” Ultimately, the time-line issue and deprivation of liberty issue cannot be resolved, until there are more plentiful in-patient placements available for individuals who exhibit dangerous and unsafe behaviors from mental illness.

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