Mass. R. Evid. 1117

As amended through February 29, 2024

Section 1117 - Civil Commitment Hearings for Mental Illness

(a)Mental Health Commitment Hearings. In order to commit or retain a person in a mental health facility or in Bridgewater State Hospital, the petitioner must prove beyond a reasonable doubt that

(1) the respondent is mentally ill;

(2) by reason of that illness, the failure to commit or retain the respondent in a facility would create a likelihood of serious harm to the respondent or another; and

(3) if the respondent is already committed to a mental health facility or to Bridgewater State Hospital, discharge of the patient from said facility is imminent.

(b)Law of Evidence. The law of evidence applies in commitment hearings for persons with mental illness.

(c)Expert Opinion Testimony. Expert opinion testimony, whether by a treating psychiatrist or any other witness, is admissible if

(1) the expert witness testimony will assist the trier of fact;

(2) the witness is qualified as an expert in the relevant area of inquiry;

(3) the facts or data in the record are sufficient to enable the witness to give an opinion that is not merely speculation;

(4) the expert opinion is based on a body of knowledge, a principle, or a method that is reliable; and

(5) the expert has applied the body of knowledge, the principle, or the method in a reliable manner to the particular facts of the case.

(d)Basis for Expert Opinion. The facts or data upon which an expert witness may base an opinion or inference include

(1) facts observed by the witness or otherwise in the witness's direct personal knowledge;

(2) evidence already in the record or that will be presented during the course of the proceedings, which facts may be assumed to be true in questions put to the witness; and

(3) facts or data not in evidence if the facts or data are independently admissible in evidence and are a permissible basis for an expert to consider in formulating an opinion.

(e)Psychotherapist-Patient and Social Worker-Client Privileges. A patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between that patient and a psychotherapist or between that patient and a social worker relative to the diagnosis or treatment of the patient's mental or emotional condition.

(1) The privilege does not apply to a disclosure made by a psychotherapist or social worker who, in the course of diagnosis or treatment of the patient, determines that the patient is in need of treatment in a hospital for mental or emotional illness or presents an imminent threat of dangerous activity, and who, on the basis of that determination, discloses such communication for the purpose of either placing or retaining the patient in such hospital, provided, however, that the provisions of this section shall continue in effect after the patient is in that hospital, or after placing the patient under arrest or under the supervision of law enforcement authorities.

(2) Whenever a psychiatrist, psychologist, or social worker interviews a patient on behalf of the Commonwealth with the purpose of preparing for a hearing, whether or not the interview was ordered by the court, the patient must be warned before the interview begins that everything said during the interview is not subject to privilege and may be presented against the patient in the hearing.

(A) The privilege must be knowingly and willfully waived for the contents of the conversation to be admissible at the hearing.

(B) No statement shall be admitted if such statement constitutes a confession or admission of guilt to the crime charged.

(f)Hospital Records. Records kept by hospitals pursuant to G. L. c. 111, § 70, and by mental health facilities pursuant to G. L. c. 123, § 36, shall be admissible as evidence if such records relate to the treatment and medical history of such cases. Records required to be kept by hospitals under the law of any other United States jurisdiction may be admissible.

(g)Medical Bills, Records, and Reports. Records and reports of an examination and itemized bills for services rendered are admissible as

(1) evidence of the necessity of such services or treatments;

(2) the diagnosis, prognosis, or opinion as to the proximate cause of the condition so diagnosed; or

(3) the opinion as to disability or incapacity, if any, proximately resulting from the condition so diagnosed.

Mass. Guid. Evid. 1117

This Guide was last amended effective 1/1/2023.

Subsection (a). This subsection is derived from G. L. c. 123, §§ 7, 8; Commonwealth v. Nassar, 380 Mass. 908, 912-914 (1980); and Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978). A judge may, but is not required to, make written findings of fact. See Matter of P.R., 488 Mass. 136, 148-149 (2021).

Subsection (a)(2). "Likelihood of serious harm" is defined in G. L. c. 123, § 1, as

"(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community."

G. L. c. 123, § 1. The type of "serious harm" proven at the hearing must be the same as the type alleged in the petition. Matter of S.S., 2016 Mass. App. Div. 101, 103, citing Blixt v. Blixt, 437 Mass. 649, 665-666 (2002).

Subsection (a)(3). This subsection is derived from Acting Supt. of Bournewood Hosp. v. Baker , 431 Mass. 101, 105 (2000).

Subsection (b). This subsection is derived from the District Court's Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness, Standard 5:01 (2011) ("[G. L. c.] 123 proceedings are formal judicial determinations in which a substantial deprivation of liberty is at stake and there are no statutory provisions or case decisions suspending the rules of evidence").

Where a hearing regarding the authorization for the administration of antipsychotic medication pursuant to G. L. c. 123, § 8B, immediately follows the civil commitment hearing under G. L. c. 123, §§ 7, 8, the expert witness need not duplicate the testimony regarding the adjudication of substituted judgment, potential treatment, and the respondent's capacity to make informed decisions. However, while the psychotherapist-patient privilege does not apply in the commitment hearing, it does apply to the hearing regarding administration of medication. Matter of M.S., 99 Mass. App. Ct. 247, 251-252(2021).

Subsection (c). This subsection is derived from Commonwealth v. Lanigan, 419 Mass. 15, 26 (1994), adopting the rule from Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). See Matter of P.R., 488 Mass. 136, 142-143 (2021).

Subsection (d). This subsection is derived from Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531-532 (1986), and Section 703, Bases of Opinion Testimony by Experts. Because expert testimony plays a crucial role in almost all proceedings under G. L. c. 123, §§ 7, 8, and 35, the most important evidentiary questions in such proceedings often arise from the basis of the expert's opinion. A testifying expert will usually review the patient's medical records, raising the same issues of reliable hearsay and privilege that would constrain the admission of those records into evidence. Adoption of Seth, 29 Mass. App. Ct. 343, 352(1990); Section 1118(a), Civil Commitment Hearings for Alcohol and Substance Use Disorders: Civil Commitment Proceedings Pursuant to G. L. c. 123, § 35, for Individuals with Alcohol and Substance Use Disorders (commitment proceedings pursuant to G. L. c. 123, § 35, "shall include expert testimony"). Experts may also want to interview caregivers, family members, and other clinicians about the patient's history and behaviors. The contents of such conversations are not a permissible basis for an expert's opinion in hearings pursuant to G. L. c. 123, §§ 7 and 8 (unless they are subject to an exception to the rule against hearsay or are otherwise independently admissible), but may form the basis for an expert opinion in a hearing under G. L. c. 123, § 35, as long as the contents of the conversations are substantially reliable. Matter of G.P., 473 Mass. 112, 120-122 (2015); Department of Youth Servs. v. A Juvenile, 398 Mass. at 527, 531; Matter of J.W., 2016 Mass. App. Div. 74, 77-78. "If a party believes that an expert is basing an opinion on inadmissible facts or data, the party may request a voir dire to determine the basis of the expert opinion." Department of Youth Servs. v. A Juvenile, 398 Mass. at 532. If a party requests a voir dire on the expert's basis for opinion, the facts and data used to form that opinion should be evaluated as though they were themselves being admitted into evidence. Id. at 531; Adoption of Seth, 29 Mass. App. Ct. at 352. Although an expert may state an opinion based on unadmitted but independently admissible evidence, the expert may not testify about this evidence on direct examination; the expert may discuss such evidence only if asked about it on cross-examination. Matter of P.R., 488 Mass. 136, 142-144 (2021).

Bases for Expert Opinion in Mental Health Hearings. The following is a list of common bases for expert opinion testimony in mental health hearings that are permissible as a foundation for expert opinion:

- Objective observations, whether made by the expert themselves or by nurses, doctors, or other treatment professionals recording them in hospital records. Adoption of Abigail, 23 Mass. App. Ct. 191, 199(1986); G. L. c. 233, § 79. See also P.W. v. M.S., 67 Mass. App. Ct. 779, 787(2002) (privilege does not preclude admission of conclusions based on objective indicia rather than on patient's statements).

- Medical history, including prior hospitalizations and diagnoses, if such diagnoses do not imply or contain privileged communications between a psychotherapist and patient, and such history is recorded in the medical records from a source with firsthand knowledge, meriting a presumption of reliability. Bouchie v. Murray, 376 Mass. 524, 531 (1978); Adoption of Saul, 60 Mass. App. Ct. 546, 552(2004). See also Commonwealth v. Kobrin, 395 Mass. 284, 294 (1985); Section 803(6)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Hospital Records, and the accompanying note; Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services, and the accompanying note.

- Conversations with the respondent, subject to prior notice and waiver of the psychotherapist-patient privilege. Commonwealth v. Barboza, 387 Mass. 105, 108 (1982); Commonwealth v. Lamb, 365 Mass. 265, 270 (1974); Matter of Laura L., 54 Mass. App. Ct. 853, 857(2002).

- Facts or data that may be hearsay but are otherwise independently admissible such as conversations about direct observations made by other clinicians, if not privileged, or by family members. See Commonwealth v. Markvart, 437 Mass. 331, 336-337 & n.4 (2002) (holding expert opinion may be based on hearsay if facts or data contained therein would be admissible if presented in another form).

The following is a list of common bases for expert opinion testimony in mental health hearings that are impermissible as a foundation for expert opinion:

- Hospital records or medical reports that contain or reference the contents of privileged communications. Adoption of Seth, 29 Mass. App. Ct. 343, 352(1990).

- Diagnoses or other information that necessarily imply the contents of privileged communications. Adoption of Saul, 60 Mass. App. Ct. 546, 552 n.8 (2004); Adoption of Seth, 29 Mass. App. Ct. at 352.

- Conversations with the respondent not subject to prior warnings and a waiver of privilege. Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531-532 (1986); Commonwealth v. Lamb, 365 Mass. 265, 270 (1974).

- Other evidence that would be inadmissible if offered in the proceeding, including hearsay not noted above as permissible. Department of Youth Servs. v. A Juvenile, 398 Mass. at 531. See also Section 801, Definitions; Section 802, The Rule Against Hearsay.

Subsection (e). This subsection is taken nearly verbatim from G. L. c. 233, § 20B, and G. L. c. 112, § 135B. Objective observations by a psychotherapist are admissible if not accompanied by any communication. Matter of Laura L., 54 Mass. App. Ct. 853, 861(2002), citing Sheridan, petitioner , 412 Mass. 599, 605 (1992), and Adoption of Abigail, 23 Mass. App. Ct. 191, 198-199(1986).

Subsection (e)(1). This subsection is taken nearly verbatim from G. L. c. 233, § 20B(a). The rule does not apply where the patient is already in the custody of the State or in an ordinary judicial proceeding. Commonwealth v. Lamb, 365 Mass. 265, 268 (1974). "The legislature's intention was to dispense with the privilege only when there is an imminent threat that a person who should be in custody will instead be at large." Id. A treating psychiatrist may disclose the contents of privileged communications under this exception even if the conversation occurred during the course of an involuntary commitment under a section of G. L. c. 123. Walden Behavioral Care v. K.I., 471 Mass. 150, 157 (2015). The exception for G. L. c. 233, § 20B(a), is met as long as there is "an imminent threat that a person who should be in custody will instead be at large," the examination was conducted "to determine the care and treatment" needed by the patient, and the examination was not specifically ordered by a court or sought by the Commonwealth "for the purpose of supporting a petition seeking [the respondent's] involuntary commitment." Id. at 159.

Subsection (e)(2). This subsection is derived from Commonwealth v. Lamb, 365 Mass. 265, 270 (1974), and Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 526 (1986). This exception only applies when an examination is conducted by or for the Commonwealth or under a court order and is conducted pursuant to, or in anticipation of, a future proceeding. Walden Behavioral Care v.

K.I., 471 Mass. 150, 159-160 (2015); Commonwealth v. Seabrooks, 433 Mass. 439, 450-451 (2001).

Regarding communications that occur during any court-ordered examination, the privilege applies unless the Lamb warning was given and the privilege waived, even if the communications are proffered as evidence of imminent harm. Matter of Laura L., 54 Mass. App. Ct. 853, 858-859(2002).

Any examination for the involuntary administration of medication pursuant to the provisions of G. L. c. 123, § 8B, requires the provision of the Lamb warning. See G. L. c. 123, § 8B(h) (The psychotherapist-patient privilege, established by G. L. c. 233, § 20B, "shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this section, for the purpose of obtaining treatment of a patient, provided that such patient has been informed prior to making such communications that they may be used for such purpose and has waived the privilege."); Matter of T.M., 2017 Mass. App. Div. 99, 102 (hospital's motion to amend treatment plan was still a proceeding under G. L. c. 123, § 8B, in which the psychotherapist-patient privilege applies); In re Commitment of M.B., 2013 Mass. App. Div. 8, 11 ("unambiguously clear" that psychotherapist-patient privilege applies to proceedings under G. L. c. 123, § 8B).

Appointment of Guardian. If a patient cannot knowingly and voluntarily waive the statutory privilege, then a guardian should be appointed to act on the patient's behalf. G. L. c. 233, § 20B. A person may not be competent to waive the privilege if that person does not have "sufficient present ability to consult with his attorney with a reasonable degree of rational understanding" and does not have "a rational as well as factual understanding of the proceedings." Commonwealth v. Vailes, 360 Mass. 522, 524 (1971), quoting Dusky v. United States, 362 U.S. 402, 402 (1960). Where there is some doubt, the court should make an inquiry as to whether an individual is capable of making a knowing and voluntary waiver of the privilege. Commonwealth v. DelVerde, 401 Mass. 447, 451 n.8 (1988); Matter of Laura L., 54 Mass. App. Ct. at 857; Adoption of Kirk, 35 Mass. App. Ct. 533, 539(1993).

Subsection (f). This subsection is derived from G. L. c. 233, § 79, and Bouchie v. Murray, 376 Mass. 524, 527-529 (1978). In the case of hospital admissions for psychiatric reasons, the fact and dates of such admissions are admissible as part of the medical record, and the reasons for such admissions are admissible if such reasons do not implicate any communications between a psychotherapist and patient. Commonwealth v. Clancy, 402 Mass. 664, 667 (1988). Privileged communications between a patient and psychotherapist or patient and social worker are not admissible under the hospital records exception. Usen v. Usen, 359 Mass. 453, 457 (1971). Records containing privileged information must be thoroughly redacted before they can be submitted into evidence. Clancy, 402 Mass. at 669. Records clearly within the privilege are not ordinarily open for examination by counsel because "the purpose of [G. L. c. 233, § 20B,] is to protect justifiable expectations of confidentiality." Id. at 667, citing Usen, 359 Mass. at 457; Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. 279, 286 (1987). If a hospital record contains notations relating to psychiatric treatment by doctors and nurses who are not psychotherapists, it may be reviewed by counsel and admitted into evidence, as long as it is redacted to exclude communications or notes of communications between the patient and a psychotherapist. Petitions of the Dep't of Social Servs. to Dispense with Consent to Adoption, 399 Mass. at 288. Objective observations by a psychotherapist, social worker, nurse, or other party, recorded in the medical records, are admissible as long as they do not imply the contents of any privileged communication. Adoption of Abigail, 23 Mass. App. Ct. 191, 198-199(1986).

Subsection (g). This subsection is derived from G. L. c. 233, § 79G, and Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services.

Reports from a psychologist or psychiatrist are admissible by statute under G. L. c. 233, § 79G, but similar to the hospital records exception (see Subsection[f], above), a report by a treating psychotherapist may not contain or imply the contents of any privileged communication. G. L. c. 233, § 79G; Adoption of Seth, 29 Mass. App. Ct. 343, 353(1990). These reports are admissible even if prepared in anticipation of litigation. O'Malley v. Soske, 76 Mass. App. Ct. 495, 498(2010). The limit contained in G. L. c. 233, § 79, that information contained in medical records must be germane to the patient's treatment to be admissible, is expressly overridden in G. L. c. 233, § 79G, which permits the doctor's opinion on proximate cause, diagnosis, and prognosis, as well as treating information. Commonwealth v. Schutte, 52 Mass. App. Ct. 796, 799-800(2001). Psychiatric diagnoses contained in medical reports are therefore admissible, but only as long as such diagnoses do not disclose the contents of any privileged communication. See Adoption of Saul, 60 Mass. App. Ct. 546, 552-553 n.8 (2004) (finding that diagnostic terms "schizophrenia" and "schizoaffective disorder" were not themselves privileged where such terms do not reveal the contents of privileged communications, while diagnoses of kleptomania, pathological gambling, or pedophilia, among others, may inherently convey some contents of privileged communication).

Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services.

Section 702, Testimony by Expert Witnesses (including Note "Five Foundation Requirements"); Section 703, Bases of Opinion Testimony by Experts.

Section 703, Bases of Opinion Testimony by Experts.

Section 503, Psychotherapist-Patient Privilege; Section 507, Social Worker-Client Privilege.

Section 503(d)(1), Psychotherapist-Patient Privilege: Exceptions: Disclosure to Establish Need for Hospitalization or Imminently Dangerous Activity; Section 507(c)(1), Social Worker-Client Privilege: Exceptions.

Section 503(d)(2), Psychotherapist-Patient Privilege: Exceptions: Court-Ordered Psychiatric Exam.

Section 803(6)(B), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Hospital Records.

Section 803(6)(C), Hearsay Exceptions; Availability of Declarant Immaterial: Business and Hospital Records: Medical and Hospital Services.