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.
Patients who are involuntarily committed suffer from serious mental illness, and many experience anosognosia—a symptom that impairs their awareness of their own condition–leading them to refuse treatment. In Massachusetts, such patients cannot be treated until the conclusion of a Rogers hearing, in which a judge first determines whether they are legally competent to refuse care, and if they are deemed incompetent, whether to approve the psychiatrist’s proposed treatment plan.
However, the resolution of Rogers hearings are often prolonged—with an average 41-day delay from admission to treatment—thus preventing timely treatment for involuntarily committed psychiatric patients. While the 99% approval rate of these treatment plans might suggest that the lengthy delay allows for careful formulation of the perfect plan, this rubber stamp-like approval may instead render the delays essentially meaningless.
Intended to protect patient autonomy and ensure due process rights are upheld, Rogers hearings may instead unnecessarily impose delays that worsen mental health outcomes. Even Massachusetts’ highest court recently highlighted that Rogers hearings “may adversely affect a patient’s medical situation.” Despite these concerns, no meaningful research has examined whether the hearings are fulfilling their purpose.
Currently, the process relies on district court judges and attorneys from the Committee for Public Counsel Services (CPCS), which is Massachusetts’ public defender. However, this system may not be the most effective, given the lengthy delays, and it may also be ineffective given the “rubber stamp” approval rate. In this post, I explore two reforms that case law supports to improve efficiency and effectiveness: (1) allowing Administrative Law Judges (ALJs) to oversee Rogers hearings and (2) replacing CPCS-appointed attorneys with mental health professionals as patient advocates.
ALJs as a Viable Alternative to Trial Court Judges
Trial court bottlenecks may perhaps be a factor causing the lengthy delays to the conclusion of Rogers hearings. Massachusetts judges already handle a high caseload, which might exacerbate delays. ALJs may alleviate these delays and promote judicial efficiency, ensuring patients receive not only access to justice but also access to treatment.
By way of comparison, the Federal Bureau of Prisons requires an administrative hearing before involuntarily treating a federal inmate with a psychiatric illness, except in certain emergency situations. Notably, the hearing officer in these cases is a psychiatrist who determines whether psychiatric medication is warranted. To ensure impartiality, this psychiatrist cannot have been involved in the inmate’s diagnosis or treatment. This set-up is reminiscent of how many states—including Massachusetts—allow patients to request independent psychiatric evaluations during hearings to verify the accuracy and objectivity of the attending psychiatrist’s assessment. Some states, like New Jersey, go a step further by requiring two psychiatrists—both the attending and an independent psychiatrist—to approve a treatment petition. Appointing an independent psychiatrist as a hearing officer may serve as an additional safeguard, offering an unbiased medical opinion on the necessity of involuntary treatment. Additional procedural protections include 24-hour notice of a hearing along with the rights to present evidence, call witnesses, and obtain representation by a “qualified staff member.”
The precedent of using administrative hearings in complex medical cases—both in the situation explained above and in Social Security Disability hearings—demonstrates that such matters can be effectively handled outside trial courts. And similar to appeals of Social Security Disability administrative decisions, individuals could seek recourse through the court system if necessary. These facts suggest that administrative hearings could replace Rogers hearings in trial courts, yet no effort has been undertaken to explore the possibility of extending this practice to the states.
Support in Case Law for ALJs Overseeing Rogers Hearings
Rogers v. Commissioner states:
“Competency and substituted-judgment determinations may take place in the Probate Courts, Mass. Gen. Laws ch. 215, § 6; in the Superior Court, Mass. Gen. Laws ch. 214, § 1; or in the Juvenile Courts or juvenile sessions of the District Courts, Mass. Gen. Laws ch. 119, § 24.”
The court’s use of may instead of shall suggests that Rogers hearings could be conducted in other forums, such as administrative hearings. Although the court later states that “the parties ‘must be given…an opportunity to be heard in the trial court,’” this assertion relies on In re Moe, a case concerning forced sterilization rather than psychiatric treatment. The court’s comparison of the two likely stems from the principle explained in Skinner v. Oklahoma that even a small risk of unjustified, irreparable harm outweighs competing interests. However, modern psychiatric treatments no longer carry the irreversible risks that were troubling these courts: procedures like lobotomies have been abandoned, and electroconvulsive therapy (ECT) is now considered a last resort. Given the harm caused by delays in psychiatric treatment, as discussed in my last blog post, the dicta in In Re Moe should not affect the holding I rely on here.
Mental Health Professionals as Patient Advocates
CPCS attorneys may not be the most effective advocates for patients. Attorneys are trained in adversarial litigation, which inadvertently creates an atmosphere that pits the patient against the treating psychiatrist. The patient’s morphed, negative perception of the psychiatrist possibly undermines the patient’s trust in the same psychiatrist during future care.
Moreover, attorneys may be more likely than mental health professionals to seek continuances, which delay treatment. As Biswas et al. noted, “the frequency of hearing continuances suggests key court personnel may not be aware of the repercussions of delays of medical care.” Given the fact that no reason permissible under district court guidelines were provided for 25% of continuances granted, perhaps both the attorney and the judge contribute to delays.
In contrast, a mental health professional supporting patients as counsel might be more attuned to the medical aspects of the case. Such an advocate would therefore have greater capacity to focus on patient welfare, presenting arguments grounded in clinical evidence. This shift could possibly improve the quality of representation and decrease the “rubber stamp” approval rate of 99% for Rogers treatment plans. Patients need advocacy support as much as they need assistance in understanding psychiatric testimony, since not only judges but also lawyers may subconsciously defer to the attending psychiatrist’s arguments.
Support in Case Law for Mental Health Professionals
In 1980, the Supreme Court case Vitek v. Jones held that prisoners’ due process rights are undermined when, absent a hearing, they are involuntarily transferred to a mental health facility. Justice Powell’s concurrence emphasized that the most relevant skill in such cases is not adversarial legal argumentation, which supports the idea of appointing a mental health professional over a CPCS attorney unequipped to navigate complex medical evaluations:
“The resolution of factual disputes will be less important than the ability to understand and analyze expert psychiatric testimony that is often expressed in language relatively incomprehensible to laymen.”
Moreover, in advancing his argument, Justice Powell cited Gagnon v. Scarpelli. This case held that appointed counsel are not always necessary in probation revocation hearings because they “significantly” alter “the nature of the proceeding” by rendering it more “adversary.” Instead, the Gagnon court advanced a case-by-case right to counsel that is determined based on two key factors:
- Are there complex factual disputes? → If yes, a lawyer may be needed.
- Can the individual speak for themselves? → If no, then alternative assistance may be more appropriate.
Again, because the key issue in Rogers hearings are similarly not factual disputes but rather interpreting psychiatric evaluations, mental health professionals are better suited than CPCS attorneys to advocate for their patients.
Conclusion
To substantiate the effectiveness of these reforms—allowing ALJs to oversee Rogers hearings and replacing CPCS-appointed attorneys with mental health professionals—a randomized controlled trial (RCT) measuring time-of-delay and approval rate outcomes could be conducted with the following design:
| Control | Experimental #1 | Experimental #2 | Experimental #3 | |
| Type of Treatment Hearing | Traditional Court | Administrative | Traditional Court | Administrative |
| Type of Counsel | Attorney | Attorney | Mental Health Professional | Mental Health Professional |
ALJs, with their experience in overseeing complex medical cases such as federal inmates’ involuntary treatment hearings and Social Security Disability hearings, could reduce delays and improve outcomes for involuntarily committed patients. Meanwhile, mental health professionals as advocates would improve, not weaken, patient representation. Better equipped than attorneys to interpret and advocate for patients’ psychiatric needs, they would ensure that representation acknowledges clinical realities of adversarial litigation. In conclusion, by leveraging ALJs’ expertise in complex adjudication and incorporating mental health professionals as advocates, Massachusetts might be able to create a system that prioritizes both timely treatment and meaningful patient representation.
If you’re interested in more on this topic, listen to our Proof Over Precedent podcast episode.