By Aarushi Solanki, J.D. candidate, Harvard Law School
STUDENT VOICES: The views expressed below are those of the student author and do not necessarily reflect the position of the Access to Justice Lab.
Access to justice is about ensuring that legal processes serve the needs of those they affect most. In Massachusetts, involuntarily committed psychiatric patients with schizophrenia often face systemic barriers to timely treatment from procedural inefficiencies that prioritize legal formalities over patient well-being.
A Primer on Involuntary Commitment
In Massachusetts, an individual can be involuntarily hospitalized after a psychiatrist:
- determines the individual (a) has a serious mental illness and (b) poses a likelihood of serious harm to themselves or others (the “dangerousness” standard), and
The judge evaluates the petition during a commitment hearing to determine whether the patient meets the legal standard to be involuntarily hospitalized for longer than an initial emergency 72-hour hold. However, being committed does not mean the patient will receive treatment.
Public safety and patient welfare justify civil commitment in Massachusetts. It is an exercise of the state’s police power and parens patriae authority. If the committed patient refuses treatment, which is common due to anosognosia (a symptom in 50% of those with schizophrenia in which a person is unaware of their own mental illness), the psychiatrist must request a treatment hearing (a “Rogers” hearing) to obtain court approval for medication. This process is adversarial, with the psychiatrist effectively arguing against the patient and their attorney. At a Rogers hearing, the judge first evaluates whether the patient is legally competent to make their own medical decisions. If the patient is deemed incompetent, the judge does not determine treatment based on whether medication is medically in the patient’s best interest or on the likelihood of restoring the patient to competence. Instead, the judge applies the substituted judgment standard, deciding what the patient would choose if competent—based on past behavior and preferences. This standard often excludes family input, distancing the decision from those who know the patient’s interests best.
Although this process theoretically protects patient autonomy, in practice it rarely leads to rejection of treatment plans. One study found that judges approved psychiatrist-submitted treatment plans in 99.1% of 2,000 cases, while another found a 99.2% approval rate for the 296 cases it examined. These figures raise a troubling question: If judges nearly always approve medication, why require an adversarial, months-long (see below) legal process before treatment can begin?
How an Access to Justice Problem Denies Access to Treatment
A process supposed to protect patient rights is denying access to timely treatment. The most harmful consequence of separating commitment and treatment hearings is the average 61-day delay from admission to treatment, during which the patient is held in a locked setting. Given that most Rogers hearings end in treatment approval, this delay not only prolongs suffering but also increases the use of chemical and physical restraints, worsens symptoms, and leads to longer hospital stays and higher rates of hospitalization.
Ironically, while autonomy concerns delay psychiatric treatment, similar concerns in end-of-life care are addressed through Advance Directives. If patients can preemptively refuse life-saving interventions, why can’t they authorize future psychiatric treatment under current Massachusetts law?
To address this access to justice challenge, Massachusetts could implement reforms to streamline the legal process while preserving patient rights. Reforms can address the procedural or the substantive; here are three examples of possible improvements in each category.
Procedural Reforms
1. Monitoring Reasons Underlying Continuances Granted: Under Massachusetts law, courts are not supposed to grant a continuance unless it states a reason permissible under district court guidelines, yet a study shows that 25% of granted continuances did not meet this requirement. Unjustified continuances increase delays that can be harmful to patients.
2. Simultaneous Commitment and Treatment Hearings: Instead of separating hearings for commitment and treatment, Massachusetts courts should conduct combined hearings, in which a judge can rule on the need for both involuntary hospitalization and medication at the same time. This reform could eliminate the need for redundant court proceedings, reducing delays in treatment while still allowing legal oversight.
3. Alternative Dispute Resolution: Instead of using a court process that pits the psychiatrist against the patient, Massachusetts courts could adopt an ADR approach to foster collaboration, similar to the eviction diversion program in Philadelphia or the family law mediation program in New Hampshire.
Substantive Reforms
1. Reinstating the “Need-for-Treatment” Standard with an Increased Number of Decision-Makers: Under the current “dangerousness” standard, access to care is compromised for non-dangerous individuals who need but are refusing treatment. This fact “forces relatives to watch their loved ones go through progressive stages of psychiatric decompensation before they can get them any help at all.” In contrast, Italy—considered a leader in mental health reforms—uses the “need-for-treatment” standard in addition to the “dangerousness” standard. To commit an individual involuntarily, five people—the initiator, the doctor who creates the proposal, the doctor who confirms the proposal, the mayor, and the magistrate—must confirm the decision. By coupling the “need-for-treatment” standard with this confirmation process, individuals can receive the care they need while being protected from unnecessary interferences with their bodily autonomy.
2. Limiting the Substituted Judgment Standard: The substituted judgment standard should not be the sole basis for treatment decisions. Instead, judges should be required to consider the likelihood of symptom relief, the risk of long-term impairment from delayed treatment, and whether the patient’s past refusal was made while competent or during active psychosis. Additionally, family members often have valuable insights into what the patient would want if they were well. Courts should expand their involvement in treatment hearings to create a more accurate and compassionate decision-making process.
3. Presumptive Treatment Authority for Psychiatrists in Certain Cases: In cases in which a patient lacks insight due to anosognosia and presents an immediate risk of deterioration, psychiatrists should have temporary authority to begin treatment before a Rogers order is finalized. A bill was proposed this session in the state legislature that would allow treatment in situations where the patient would experience “substantial, immediate, and irreversible” harm due to a delay. While the standard may be impossible to define without over- or under-inclusion, such attempts are first steps toward substantive justice for individuals with schizophrenia in inpatient psychiatric care.
Due Process
Many of these proposed solutions would require assessment for consistency with constitutional due process requirements. Here, the legal and the scientific interact. The state of psychiatric care in the mid-1900s necessitated the requirement for separate commitment and treatment hearings. Public exposés of psychiatric facilities such as Danvers State Hospital in Massachusetts and the Willowbrook State Development Center in New York led to multiple Supreme Court cases “that set important [due process] precedents for humane and ethical treatment of committed individuals.” At the time, the only available psychiatric treatments—including lobotomies, ECT, and the early antipsychotic Thorazine—produced extreme side effects, and hospitals often responded to understaffing and a desire for convenience by overmedicating patients. In response to these scandals, states shifted involuntary commitment laws from a “need-for-treatment” standard to a “dangerousness” standard. Supposedly, separate legal standards for commitment versus treatment necessitated the separate hearings.
While essential at the time, this legal safeguard now creates delays difficult to justify for those experiencing schizophrenia. Advances in psychiatric medications and the scientific understanding of schizophrenia should prompt reforms that balance patients’ due process rights with their need for timely treatment. If the public unites, as it did in the 1970s to address mistreatment, the state and federal government may once again recognize the urgent need to increase funding for hospitals to ensure proper staffing for psychiatric patients and for community programs to support reintegration. Of course, merely reacting to crises is not ideal; a truly effective system would proactively intervene to treat individuals before their symptoms escalate to the point of involuntary treatment.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.