|||THE SUPREME JUDICIAL COURT OF THE STATE OF MASSACHUSETTS
|||January 11, 2002
|||BRUCE M. COHEN & ANOTHER *FN1
|||Diane M. Geraghty for McLean Hospital. Nadell Hill for the defendant.
|||Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, &
|||The opinion of the court was delivered by: Marshall, C.J.
|||September 7, 2001
|||Health Care Facility. Mental Health. Incompetent Person, Consent to medical
treatment. Practice, Civil, Commitment of mentally ill person.
|||Petition filed in the Cambridge Division of the District Court Department
on August 9, 2000.
|||A motion to dismiss was heard by Thomas M. Brennan, J., and the case was
heard by him.
|||The Supreme Judicial Court granted an application for direct appellate
|||We have been asked to determine whether the Massachusetts health care
proxy statute, G. L. c. 201D (proxy statute), authorizes a proxy agent to
commit a principal to a mental health facility. The question arises because
the proxy statute does not address the issue directly, and commitment to
such a facility, unless voluntary, produces a loss of freedom as well as
the stigma of mental illness. See Doe v. Doe, 377 Mass. 272, 280-281 (1979);
Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978).
|||We conclude that, absent an express limitation by the principal in the
health care proxy itself, the proxy statute does not prevent an agent from
making that treatment decision, provided the principal does not object.
If the principal objects, or if she revokes her proxy after it has been
activated, the proxy statute provides that the agent has no further authority
to make treatment decisions -- including the commitment or retention of
the principal at a mental health facility -- without a court determination
that the principal is incapacitated. See G. L. c. 201D, §6, sixth par.,
§7, second par.
|||In this case the hospital sought to commit the objecting principal under
G. L. c. 123, §7, 8, the involuntary commitment statute, whereupon a judge
in the Probate and Family Court made a determination that commitment was
in the best interests of the principal and that there was a likelihood of
serious harm if she was not committed. G. L. c. 123, §12 (d). There is therefore
no basis on which to conclude that the involuntary commitment of the principal
in this case was improper. We need not and do not decide whether, had a
judicial determination been sought and obtained that the principal was incapacitated
(G. L. c. 201D, §6), commitment by the agent over the principal's objection
would have contravened the requirements of G. L. c. 201D, G. L. c. 123,
7, 8 (involuntary commitment), or any other provision of law.
|||In 1998, Helen Bolduc, then seventy-four years old, executed a prototypical
health care proxy, in which she authorized her daughter, as her agent, to
make health care decisions on her behalf in the event she was unable to
consent to them. Bolduc's health care proxy provided, in relevant part:
|||"My Health Care Agent is granted full power and authority to consent
to any and all medical treatment which I may need in the event that I am
unable to consent to such treatment on my own including without limitation
authority to consent for medical care, hospitalization, nursing home admission,
or whatever else may in my Health Care Agent's sole judgment be in my best
interest . . . . I further state to all the world that there are no limitations
imposed upon my Health Care Agent's authority."
|||By its express terms, the proxy placed no limitations on the authority
of Bolduc's agent.
|||In June, 2000, the proxy was activated while Bolduc was a resident of
the Forestview Nursing Home in Warren. Her attending psychiatrist determined
that she was suffering from auditory hallucinations and paranoid and psychotic
thought, and that she lacked the capacity to make or communicate health
care decisions, the proxy's triggering event. She was admitted to McLean
Hospital (hospital) under the emergency hospitalization procedures specified
in G. L. c. 123, §12 (a).*fn2 Her attending
psychiatrist entered in Bolduc's record his determination that she was incapable
of making or communicating health care decisions, thereby activating the
proxy. See G. L. c.§201D, 6. On July 2, Bolduc's daughter, acting as her
health care proxy agent, converted Bolduc's status at the hospital to "conditional
voluntary" by executing on Bolduc's behalf an application for "conditional
voluntary" admission, which was accepted.*fn3
See G.§L. c. 123, 12 (c).*fn4 Under "conditional
voluntary" status there were no temporal limits on Bolduc's confinement.
See G. L. c.§123, 10.*fn5 Had her agent
not converted Bolduc's status, the hospital would have been required to
file a petition to retain Bolduc on an involuntary basis within ten (now
four) days of Bolduc's emergency admission. See G.§L. c. 123, 12 (d), inserted
by St. 1986, c.§599, 38.*fn6
|||On August 7, Bolduc executed a written revocation of her proxy, and indicated
her intention to leave the hospital.*fn7
The record does not reveal the circumstances that triggered Bolduc's action.
Two days later the hospital filed in the Cambridge Division of the District
Court Department a petition for involuntary commitment under G. L. c. 123,
§7 and 8, seeking to retain Bolduc at the hospital involuntarily.*fn8,*fn9
|||Bolduc filed a motion to dismiss the hospital's petition on the ground
that it was not timely filed. She claimed that her agent lacked the authority
under the proxy to convert Bolduc's status at the hospital to "conditional
voluntary," and that the hospital's petition for involuntary commitment
was therefore beyond the ten-day period within which to file a petition.
G. L. c. 123, §12 (d). See note 6, supra. The motion judge disagreed and,
after a hearing, found that Bolduc was mentally ill and that failure to
retain her at the hospital would create a likelihood of serious harm.*fn10
He denied Bolduc's motion to dismiss, and entered a six-month order of commitment.
Bolduc filed an expedited appeal to the Appellate Division of the District
Court Department. See Dist./Mun. Cts. Appellate Division Appeal Rule 8A
|||Prior to oral argument before the Appellate Division, Bolduc was discharged
from the hospital. The Appellate Division held that Bolduc's challenge to
the order of commitment and the issues raised by her were moot, but addressed
the merits of the claims as concerning matters of public importance "capable
of repetition, yet evading review." Acting Supt. of Bournewood Hosp.
v. Baker, 431 Mass. 101, 103 (2000), quoting Guardianship of Doe, 391 Mass.
614, 618 (1984). The Appellate Division agreed with the motion judge and
dismissed Bolduc's appeal. Bolduc appealed, and we granted her application
for direct appellate review. We affirm the order of the motion judge denying
Bolduc's motion to dismiss.
|||2. Commitment to a Mental Health Facility Where the Principal Does Not
Object to Treatment.
|||In response to advances in medical technology that have made it possible
to maintain and prolong life in circumstances previously not possible, every
State has enacted legislation permitting individuals to give advance directives
for health care decisions should they become incapable of communicating
their own wishes.*fn11 First adopted
in 1990, St.§1990, c. 332, 1, the Massachusetts proxy statute entitled,
"An Act providing for the execution of health care proxies by individuals,"
reflects one of several approaches to the subject. Written in broad terms,
it allows an appointed agent to make "any and all health care decisions"
if granted such authority by a principal.*fn12
G. L. c. 201D, 5. Advance directive statutes can apply to physical or mental
conditions, or (as in Massachusetts) to both. G. L. c. 201D, 1, 5. One aspect
of mental health treatment -- whether an advance directive should convey
the authority to commit a principal to a mental health facility -- has been
the subject of some debate among commentators,*fn13
is the subject of a uniform law promulgated by the National Conference of
Commissioners on Uniform State Laws,*fn14
and has been regulated in different ways in different States. The Massachusetts
proxy statute does not address the subject. In contrast, twenty-five other
States have enacted statutes that do. Ten States allow advance directives
for mental health treatment, but prohibit any commitment -- voluntary or
involuntary -- by the agent.*fn15§§
Three States allowing such directives prohibit only involuntary commitment.*fn16
Eight States allow commitment only if expressly authorized by the principal
in her proxy, in some cases for limited periods only.*fn17
Four other States permit a principal to authorize an agent to admit the
principal to a mental health facility provided that the authority is conferred
in a document separate from a general durable power of attorney concerning,
for example, property or financial assets.*fn18
The statutes in the last two categories (notes 17 and 18, supra) are silent
as to involuntary commitment and, to our knowledge, no court has sanctioned
indefinite involuntary commitment to a mental health facility even where
there is express statutory authorization for voluntary commitment. See note
|||Because the Massachusetts proxy statute does not address the issue, we
must determine whether authority to commit is implicit in our statutory
scheme.*fn19 Bolduc did not object to
her initial commitment to the hospital, and we consider first the agent's
authority to act, unopposed by her principal. General Laws c.§201D, 2, provides
that "[e]very competent adult shall have the right to appoint a health
care agent by executing a health care proxy." Section 5 of the statute
provides that an agent "shall have the authority to make any and all
health care decisions on the principal's behalf that the principal could
make, including decisions about life-sustaining treatment, subject, however,
to any express limitations in the health care proxy." "Health
care," in turn, is defined as "any treatment, service or procedure
to diagnose or treat the physical or mental condition of a patient"
(emphasis added). G.§L. c. 201D, §1. Bolduc argues that commitment to a
mental health facility is beyond the scope of "treatment" as defined
in the statute, and that the Legislature could not have intended to permit
such commitment without a judicial finding in every case that failure to
commit would create a likelihood of serious harm. We disagree with both
|||There is no indication in the proxy statute that the Legislature intended
the scope of "treatment" to be limited. General Laws c. 201D,
5, is sweeping in its scope -- "any and all health care decisions."
"Health care" is broadly defined, and does not limit an agent's
authority regarding any particular areas of treatment. By referring specifically
to the "mental condition" of a principal, the Legislature plainly
contemplated an agent's authorizing some mental health treatments, again
without limitation.*fn20 Other provisions
of the statute suggest that commitment to a mental health facility is indeed
within the contemplated authority of a health care agent. The conflict of
interest provision of the statute is one such indication.
|||Section 3 of the proxy statute prohibits the appointment of health care
agents who may have a conflict of interest with a principal, defined as
"operator[s], administrator[s] or employee[s]" of a "facility"
at which the principal is a patient, resident, or applicant for admission
when she executes the proxy.*fn21 G.
L. c.§201D, 3. "Facility" includes "any private, county or
municipal facility . . . which offers . . . residential or day care services
and is represented as providing treatment of persons who are mentally ill."
G.§L. c. 19, §19.*fn22 Thus, the proxy
statute explicitly restricts operators, administrators, or employees of
a facility that provides "treatment of persons who are mentally ill"
from acting as proxy agents.*fn23 The
Legislature must surely have intended treatment at mental health facilities
to come within the definition of health care "treatment," or the
conflict of interest provisions as applied to persons who are mentally ill
would be redundant. See Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977)
(statutory language principal source of insight into legislative purpose).
|||Denying a health care proxy agent the authority to commit her principal
to a mental health facility would also frustrate the evident purpose of
the proxy statute: to support and enhance patient autonomy, while ensuring
the principal's control over her health care decisions. Every person has
a "right" under the proxy statute to appoint a health care agent,
who is granted the authority to make health care decisions on her behalf
as if she had made the decisions herself. G. L. c. 201D, §2. The agent's
decisions are to be made from the principal's perspective: they must be
in accordance with an "assessment" of her "wishes,"
or, if her wishes are unknown, an "assessment" of her "best
interests." G. L. c. 201D, §5. Any decisions not expressly prohibited
by the principal have the "same priority over decisions by any other
person" as if the principal had made them. Id. The proxy statute thus
ensures that a patient's right of autonomy and self-determination with regard
to medical care is respected, even after she loses the capacity to make
and communicate her wishes.*fn24 Restricting
the range of choices available to a person who enters into a proxy arrangement
would hinder the control over medical decision-making the statute seeks
to foster. See G. L. c. 201D, 4 (iii) (health care proxy shall "describe
the limitation, if any, that the principal intends to impose upon the agent's
|||Contrary to Bolduc's claim, permitting an agent to commit her principal
to a mental health facility where the principal does not object is also
consistent with our case law concerning the rights of incompetent patients
with regard to health care decision-making.*fn25
Respect for patient autonomy does not end when a patient becomes incapable
of making her own decisions. See Superintendent of Belchertown State Sch.
v. Saikewicz, 373 Mass. 728, 746 (1977) ("To protect the incompetent
person within its power, the State must recognize the dignity and worth
of such a person and afford to that person the same panoply of rights and
choices it recognizes in competent persons"). We give effect to those
rights by using a substituted judgment standard to approximate best what
the incompetent person would have wanted were she able to communicate her
wishes. See, e.g., Rogers v. Commissioner of the Dep't of Mental Health,
390 Mass. 489, 501-502, 512 (1983) (substitute judgment determination must
be made before administration of antipsychotic drugs to incompetent patient);
Superintendent of Belchertown State Sch. v. Saikewicz, supra at 752-753
(right of incompetent person to refuse treatment for life-threatening illness
requires substituted judgment). By executing a health care proxy, a principal
determines in advance that a person of her choice (rather than a judge)
will make such medical decisions on her behalf. Reading into the proxy statute
a restriction on her agent to act in one set of circumstances -- commitment
to or retention at a mental health facility where the principal does not
object -- would contravene the principles of individual autonomy embodied
in this statute and expressed in our case law.
|||Bolduc argues that inferring an agent's authority to order treatment in
a mental facility when the principal does not object would nevertheless
effectively deprive the principal of her right not to be restrained in such
a facility without due process of law. Two provisions of the proxy statute
mitigate this legitimate concern. The Legislature has provided that, even
after a medical determination of incapacity has been made, a principal's
wishes will always prevail over those of her agent, unless a judicial determination
of her incapacity is obtained. Thus, G.§L. c. 201D, 6, specifies:
|||"Notwithstanding a determination pursuant to this section that the
principal lacks capacity to make health care decisions, where a principal
objects to a health care decision made by an agent pursuant to a health
care proxy the principal's decisions shall prevail unless the principal
is determined to lack capacity to make health care decisions by court order"
|||The statute also recognizes a principal's right to revoke the proxy, both
before and after it is activated, and the principal is "presumed to
have the capacity to revoke a health care proxy unless determined otherwise
pursuant to a court order." G. L. c.§201D, 7. Revocation is simple
and can be accomplished by "notifying the agent or a health care provider
orally or in writing or by any other act evidencing a specific intent to
revoke." Id. The principal need not know that revocation of the proxy
would prevent commitment to a mental health facility; objection by the principal
to any treatment decision of the agent -- including commitment to or retention
at a mental health facility -- requires nothing more than signifying her
objection. It is as simple as saying "no."*fn26
|||Bolduc's proxy placed no limitation on her agent's authority; it specifically
authorized her agent to hospitalize her. There is no reason to infer that
at the time she executed the proxy, Bolduc did not wish to convey to her
agent the power to commit her to a mental health facility, should the agent
deem it in her best interests. There is no indication in the record that
Bolduc protested her admission to McLean Hospital, nor any indication that
she objected to her hospitalization during the first thirty-five days of
her treatment. We would fail to respect Bolduc's own "right,"
G. L. c. 201D, 2, to make treatment decisions through a proxy of her choice
were we to read into the statute a restriction on her agent's authority
to commit her to a mental health facility. The motion judge properly determined
that a health care proxy agent does have the authority to commit a principal
to a mental health facility, provided the principal does not object.
|||3. Commitment to a Mental Health Facility Where the Principal Objects
|||The respect for individual autonomy and self-determination reflected in
the proxy statute and that has shaped our jurisprudence requires that we
honor the desires of an individual expressed in her health care proxy. The
right to refuse medical treatment is founded on those same values, and the
Legislature has made clear that a principal retains her right of self-determination
concerning medical treatment she chooses not to receive. Thus, even after
a proxy has been activated, the principal may disagree with her agent, in
which event "the principal's decisions shall prevail." G. L. c.§201D,
6. The principal may also revoke her proxy at any time. G. L. c.§201D, §7.
In both cases the agent has no further authority to make treatment decisions,
including the commitment or retention of the principal at a mental health
facility, without judicial intervention. See G.§L. c. 201D, §6, 7. Where
there is disagreement between the principal and her agent, on application
to affirm the agent's authority over the principal, the statute directs
a judge to determine whether the principal "lacks capacity to make
health care decisions." G.§L. c. 201D, §6. Where there is revocation,
the principal is "presumed" to have the capacity to revoke her
proxy "unless determined otherwise pursuant to court order." G.
L. c. 201D, §7.
|||In this case, when the hospital received Bolduc's written notice that
she had revoked her proxy and that she wanted to leave the hospital, see
note 7, supra, the hospital correctly determined, in its words, that it
had "no further legal authority to retain her at [its] facility."
It thereupon immediately filed a petition for involuntary civil commitment,
G.§L. c. 123, §7, 8, and sought judicial permission to retain Bolduc against
her will. In so doing the hospital's treating physician represented to the
court that he had determined that failure to hospitalize Bolduc would create
a likelihood of serious harm by reason of mental illness, and provided the
court with reasons for his diagnosis. See G. L. c. 123, §7. A judge in the
District Court thereafter found that Bolduc was mentally ill and that her
discharge from the hospital would create a likelihood of serious harm, as
required by G. L. c. 123, §8. See notes 9 and 10, supra.
|||In the circumstances of this case, therefore, Bolduc's argument that she
was denied due process of law in connection with her retention at the hospital
fails: she received adequate process to protect her rights to refuse medical
treatment. See Doe v. Doe, 377 Mass. 272, 280-281 (1979); Superintendent
of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 746, 752-753 (1977).
Because the hospital proceeded under the involuntary commitment statute,
there was no need for a judicial determination of Bolduc's "incapacity"
under G. L. c. 201D, §6 or 7. We therefore need not and do not decide whether
commitment over Bolduc's objection would have contravened G. L. c. 201D,§§
G. L. c. 123, §7, 8 (involuntary commitment), or any other provision of
law had the hospital not proceeded as it did.
|||The judge's order denying the motion to dismiss is affirmed.
|||*fn1 McLean Hospital.
|||*fn2 General Laws c. 123, §12 (a), provides
in pertinent part: "Any physician who is licensed pursuant to [G. L.
c. 112, 2] or qualified psychiatric nurse mental health clinical specialist
authorized to practice as such . . . or a qualified psychologist . . . who
after examining a person has reason to believe that failure to hospitalize
such person would create a likelihood of serious harm by reason of mental
illness may restrain or authorize the restraint of such person and apply
for the hospitalization of such person for a four day period at a public
facility or at a private facility authorized for such purposes by the [Department
of Mental Health]."
|||*fn3 A guardianship petition was also
filed in the Probate and Family Court Department and on July 25, 2000, a
judge appointed Bolduc's two daughters (one of whom was her health care
agent) as her temporary guardians with the authority to monitor the administration
of antipsychotic medication. The order did not authorize the temporary guardians
to admit Bolduc to a mental health facility. See G. L. c. 201, 6.
|||*fn4 General Laws c. 123, §12 (c), provides:
"No person shall be admitted to a facility under the provisions of
this section unless he, or his parent or legal guardian in his behalf, is
given an opportunity to apply for voluntary admission under the provisions
of paragraph (a) of section ten . . . ."
|||*fn5 General Laws c. 123, 10, provides
that a person "in need of care and treatment" may be voluntarily
admitted to any "facility . . . suitable for such care and treatment"
on application: "(1) by a person who has attained the age of sixteen,
(2) by a parent or guardian of a person on behalf of a person under the
age of eighteen years, and (3) by the guardian of a person on behalf of
a person under his guardianship." The regulation governing eligibility
for voluntary or conditional voluntary admission states that "a person
must be competent to apply for such admission, and desirous of receiving
treatment." 104 Code Mass. Regs. 27.06(1)(b) (1997). "[C]ompetent
means: . . . that a patient admitted on a conditional voluntary status understands
that he or she is in a facility for treatment, understands the three-day
notice provisions, and understands the facility director's right to file
a petition for commitment and thereby retain him or her at the facility."
104 Code Mass. Regs. §27.06(1)(d)(2) (1997).
|||*fn6 In June, 2000, when Bolduc was
admitted to McLean Hospital, G.§L. c. 123, 12, permitted an emergency hospitalization
for a period of up to ten days. See G. L. c.§123, §12, inserted by St. 1986,
c. 599, 38. The Legislature has since amended that section, which now limits
emergency hospitalization to four days. See G. L. c. 123, §12§(d), as amended
by St. 2000, c. 249, 5 (effective Nov. 11, 2000).
|||*fn7 The revocation consisted of two
sentences: "I, Helen Bolduc, do hereby revoke any and all Health Care
Proxies that I may have executed in the past. I want to leave the hospital."
The hospital treated Bolduc's statement as a three day notice of termination
of her "conditional voluntary" admission status. See G. L. c.§123,
11. The hospital was correct to do so. Title 104 Code Mass. Regs. 27.06
(5) (1997) provides: "The form and content of [the] three day notice
. . . shall be deemed sufficient so long as it conveys the patient's intention,
without requirement that it be on any particular form of the facility."
|||*fn8 General Laws c. 123, 7, provides
in relevant part: "The superintendent of a facility may petition the
district court .§.§. in whose jurisdiction the facility is located for the
commitment to said facility and retention of any patient at said facility
whom said superintendent determines that the failure to hospitalize would
create a likelihood of serious harm by reason of mental illness."
|||*fn9 General Laws c. 123, §8, provides
in relevant part: "After a hearing, unless such hearing is waived in
writing, the district court . . . shall not order the commitment of a person
at a facility or shall not renew such order unless it finds after a hearing
that (1) such person is mentally ill, and (2) the discharge of such person
from a facility would create a likelihood of serious harm."
|||*fn10 The judge signed a preprinted
form ordering Bolduc's commitment for six months. Implicit in his order
is a finding that failure to retain Bolduc at the hospital would present
a likelihood of serious harm, although the judge did not so indicate in
a section of the form that provides for that determination.
|||*fn11 Advance directive statutes are
intended to permit and maximize personal control over health care decision-making,
which includes permitting individuals to express their health care desires
in a manner that will be respected when they are no longer able to do so.
A helpful (but no longer current) summary of the advance directive statutes
enacted in all States is contained in Fleischner, Advance Directives for
Mental Health Care, 4 Psychol., Pub. Pol'y & L. 788, 796-804 (1998).
The advantages of such statutes have also been recognized by Congress: 42
U.S.C. §1395cc, requires all health care providers receiving Medicare or
Medicaid funds to inform all adult patients of their right to execute an
advance directive concerning medical care. The Federal law also requires
that health care providers educate their staff and the community about the
law. See id.
|||*fn12 Unlike some States, the Massachusetts
statute does not provide for instructional, as opposed to agent-delegated,
advance directives, and has no "living will" provision.
|||*fn13 See, e.g., Winick, Advance Directive
Instruments for Those with Mental Illness, 51 U. Miami L. Rev. 57, 81-85
(1996); Dresser, Ulysses and the Psychiatrists: A Legal and Policy Analysis
of the Voluntary Commitment Contract, 16 Harv. C.R.-C.L. L. Rev. 777 (1982).
|||*fn14 In 1993 the National Conference
of Commissioners on Uniform State Laws promulgated the Uniform Health-Care
Decisions Act, 9 (Part IB) U.L.A. 144 (Master ed. 1999), which some States
have adopted in whole or in part. In 1999 the Commissioners amended 13 of
the Uniform Act to provide that the Act "does not authorize an agent
or surrogate to consent to the admission of an individual to a mental health-care
institution unless the individual's written advance health-care directive
expressly so provides." Id. at 13 (e). The Commissioners added at the
same time a section providing that the Act "does not affect other statutes
of this State governing treatment for mental illness of an individual involuntarily
committed" to a mental health-care facility. Id. at 13 (f).
|||*fn15 See Cal. Prob. Code §4652 (West
Supp. 2001); Nev. Rev. Stat. §449.850(1)(a) (2000); N.H. Rev. Stat. Ann.
§137-J:2(v)(a) (West 1996); Or. Rev. Stat. §127.540(1) (1999); Tex. Health
& Safety Code Ann. §166.152(f)(1) (West 2001); Vt. Stat. Ann. tit. 14
§3453(e) (1989); Va. Code Ann. §54.1-2986(c) (Michie 1998); Wis. Stat. Ann.
§155.20(2) (West Supp. 2000); Wyo. Stat. Ann. §3-5-205(a)(i) (Lexis Nexis
2001). Although North Dakota permits commitment for up to forty-five days,
it does not allow consent to commitment for any greater period, regardless
of whether the principal expressly authorized it. See N.D. Cent. Code §23-06.5-03
(Lexis Nexis Supp. 2001).
|||*fn16 Alabama, Georgia, and Washington
expressly prohibit the agent from "involuntar[il]y" committing
the principal without following statutory procedures for involuntary commitment.
See Ala. Code §22-8A-4(2), 26-1-2 (Michie 1991); Ga. Code Ann. §31-36-10
(Lexis 2001); Wash. Rev. Code Ann. §11.92.043(5), 11.94.010(3) (West 1998).
These statutes also prohibit the agent from making certain other decisions,
for example convulsive treatment or psychosurgery. They appear implicitly
to permit an agent to admit the principal under voluntary admission procedures.
|||*fn17 See Alaska Stat. §13.26.344(l),
47.30.970 (Lexis 2000) (seventeen-day commitment permissible if expressly
authorized by principal); Ariz. Rev. Stat. §36-3283 (West Supp. 2000) (commitment
permissible if expressly authorized); Fla. Stat. Ann. §765.113(1) (West
1997) (commitment permissible if expressly authorized); Haw. Rev. Stat.
327E-13 (e) (Supp. 2000) (commitment permissible if expressly authorized);
Ill. Comp. Stat. §755/43-75 (West 2001) (seventeen-day commitment permissible
if expressly authorized), Kan. Stat. Ann. §58-629(a)(2) (1994) (authority
to "make all necessary arrangements for the principal at any hospital,
psychiatric hospital or psychiatric treatment facility" may be expressly
granted); Me. Rev. Stat. Ann. tit. 34-B, §3831(6) (West 1998 & Supp.
2000)(commitment permissible if expressly authorized); Miss. Code Ann. §41-41-227(5)
(Lexis Nexis 2001) (commitment permissible if expressly authorized).
|||*fn18 See N.C. Gen. Stat. §122C-73
(Lexis 1999) (principal may authorize "admission to and retention in
a facility for the care or treatment of mental illness" in an "advance
instruction for mental health treatment"); Okla. Stat. tit. 43A, §11-104,
11-106 (Supp. 2000) (principal may authorize "inpatient mental health
treatment" in an "advance directive for mental health treatment");
S.D. Codified Laws 27A-16-1(7), 27A-16-3 (1999) (principal may authorize
commitment of up to thirty days in a "power of attorney for mental
illness treatment"), Utah Code Ann. §62A-12-502, 62A-12-504 (Lexis
2000) (principal may authorize commitment of up to seventeen days in a "declaration
for mental health treatment"). Minnesota allows a person to designate
a "proxy" to make decisions about "intrusive mental health
treatments," which include "electroshock therapy and neuroleptic
medication." See Minn. Stat. §253B.03 (6) (2000). The statute does
not specify whether authority to commit the principal to a mental health
facility -- voluntarily or otherwise -- may be conferred.
|||*fn19 Bolduc has revoked her health
care proxy and is no longer receiving treatment at McLean Hospital. Both
the order of civil commitment and the question whether Bolduc's agent had
the authority to apply for conditional voluntary admission to McLean Hospital
on her behalf are therefore moot. Globe Newspaper Co. v. Chief Med. Examiner,
404 Mass. 132, 134 (1989). Any due process claim Bolduc may once have had
is also moot because she received a full evidentiary hearing at her involuntary
commitment proceeding pursuant to G. L. c. 123, §7, 8. We consider the issues
raised because the commitment and treatment of mentally ill persons are
matters of public importance. Involuntary commitment to a mental health
facility is often brief, and will seldom present an active controversy.
See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000);
Hashimi v. Kalil, 388 Mass. 607, 609 (1983). Because the proxy statute does
not provide explicit notice to a principal that commitment to such a facility
may be conferred by proxy, the issue is likely to arise again in similar
circumstances. See Guardianship of Weedon, 409 Mass. 196, 197 (1991); Guardianship
of Doe, 391 Mass. 614, 618 (1984).
|||*fn20 See S.M. Dunphy, Probate Law
and Practice 44.3, at 189 (2d ed. 1997 & Supp. 2001) ("[ 5] is
a broad provision authorizing the agent to make ordinary and extraordinary
medical treatment decisions for the principal including decisions about
life itself. This authority would appear to include the authority to commit
the principal to a mental health facility, to consent to the administration
of antipsychotic medication and refuse medical treatment since they are
each decisions that the principal could make").
|||*fn21 Operators, administrators or
employees of such facilities related by blood, marriage, or adoption to
the principal are exempted from the restriction. G. L. c. 201D, §3.
|||*fn22 General Laws c. 201D, 1, defines
"[f]acility" as "any facility as defined in [G. L. c. 111,
70E]." That statute, in turn, defines "facility" as "any
hospital, institution for the care of unwed mothers, clinic, infirmary maintained
in a town, convalescent or nursing home, rest home, or charitable home for
the aged, licensed or subject to licensing by the [Department of Public
Health]; any state hospital operated by the department; any 'facility' as
defined in [G. L. c. 111B, 3]; any private, county or municipal facility,
department or ward which is licensed or subject to licensing by the department
of mental health pursuant to section nineteen of chapter nineteen; or by
the department of mental retardation pursuant to [G. L. c. 19B, §15]; any
'facility' as defined in [G. L. c. 123, 1]; the Soldiers Home in Holyoke,
the Soldiers' Home in Massachusetts; and any facility set forth in [G. L.
c. 19, 1,] or [G. L. c.§19B, 1]" (emphasis added). G. L. c. 111, 70E.
|||*fn23 The "superintendent"
of a mental health facility is statutorily authorized to petition to commit
or retain a patient at a facility. See note 8, supra.
|||*fn24 Cf. prefatory note to the Uniform
Health-Care Decisions Act 9 (Part IB) U.L.A. 144 (Master ed. 1999): "[T]he
Act acknowledges the right of a competent individual to decide all aspects
of his or her own health care in all circumstances, including the right
to decline health care or to direct that health care be discontinued, even
if death ensues. An individual's instructions may extend to any and all
health-care decisions that might arise and, unless limited by the principal,
an agent has authority to make all health-care decisions which the individual
could have made. The Act recognizes and validates an individual's authority
to define the scope of an instruction or agency as broadly or as narrowly
as the individual chooses."
|||*fn25 Under our law, a determination
of incompetence means that the person in question has been found to lack
either the physical or mental capacity to make his or her own decision regarding
a particular issue. Fazio v. Fazio, 375 Mass. 394, 403 (1978). A finding
of incompetence "should consist of facts showing a [person's] inability
to think or act for himself as to matters concerning his personal health,
safety, and general welfare, or to make informed decisions as to his property
or financial interests." Id. A person may be adjudicated legally incompetent
to make some decisions but competent to make others. Matter of Moe, 385
Mass. 555, 567-568 (1982). In the context of medical treatment, we have
used incompetent to mean the "patient lacks the capacity to make treatment
decisions." Rogers v. Commissioner of the Dep't of Mental Health, 390
Mass. 489, 497, 498 (1983). Accordingly, where, as here, the medical treatment
concerns commitment to a mental health facility, we look to our decisions
in cases concerning the rights of incompetent patients, even though the
Massachusetts proxy statute concerns individuals who lack the "capacity"
to make health care decisions. See G. L. c. 201D, 6.
|||*fn26 We also note that G. L. c. 201D,
17, permits a wide range of persons, including the principal's health care
provider, members of her family, and a close friend, among others, to commence
a proceeding to override the agent's decision should any one of these persons
believe that any treatment decision, including the decision to admit or
retain the principal at a mental health facility, is made in bad faith or
is not in accordance with the principal's best interests. G. L. c. 201D,
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