Advocates say Baker trying to gut prison mental health law
Governor ‘s proposal seeks to limit transfers to psychiatric facilities
THE MASSACHUSETTS prison system has long faced criticism for its inability to provide adequate mental health treatment to incarcerated people. A mental health bill that Gov. Charlie Baker signed into law this summer aimed to improve the situation by giving inmates in crisis the opportunity to transfer to a mental health treatment facility. However, advocates for prisoners say Baker is now trying to “gut” that process through a new bill, and they are urging lawmakers to reject his proposal.
“This is just another example of senior officials in the governor’s office being very resistant to any independent oversight or review outside of the Department of Correction,” said Sen. Jamie Eldridge, an Acton Democrat who introduced the provisions authorizing the transfers along with Democratic Rep. Brandy Fluker Oakley of Boston.
Phillip Kassel, executive director of the Mental Health Legal Advisors Committee, in a letter to legislators called Baker’s proposal “wrongheaded,” and said it “would validate and preserve current abhorrent treatment of self-harming incarcerated people.”
The governor, however, maintains that he is simply making the law consistent with existing laws related to involuntary confinement and ensuring there is a clinical assessment by a medical professional before someone is committed.
When a prisoner is deemed a suicide risk, they are placed on mental health watch and confined to their cells in restrictive conditions. A correction officer regularly checks on them to make sure they do not harm themselves. But the US Justice Department alleged in a 2020 review that the Department of Correction has routinely failed to provide adequate mental health care and supervision, and has placed people on mental health watch for extended periods of time – leading many people to harm themselves.
The law Baker signed in August, part of a broader mental health bill, says if someone is on mental health watch for 72 hours or if they pose a danger to themselves or others, they can petition the court and a judge can grant a transfer to an inpatient psychiatric facility. In limited circumstances – for example, where an inmate needs to be maintained under tighter security to avoid serious harm – the person could be sent to Bridgewater State Hospital, a Department of Correction-run facility for people with mental illness. But generally, the law requires the person be transferred to a facility operated or licensed by the Department of Mental Health. The person will be notified of their rights to a transfer after 48 hours, and every 24 hours afterward.
Eldridge said the goal of the law was to make sure a person gets professional care at a psychiatric facility. He said medical personnel employed by the prisons “are often just an echo chamber of the DOC,” and the Legislature’s goal was to have a doctor from outside the facility decide whether to transfer a patient and how to treat them.
Baker introduced a supplemental budget on August 31, which is pending before the House Ways and Means Committee, that would amend the new law. Baker’s language would allow a transfer after 48 hours, rather than 72 hours, but only in a case when the person “is in need of hospitalization by reason of mental illness.” It lets a prison official avoid notifying the inmate of their transfer rights if notice is “clinically contraindicated.”
If someone is hospitalized, Baker’s legislative language says, the hospitalization must conform with an existing process for involuntary commitments of prisoners with mental illness, in which a judge orders someone held for treatment involuntarily for 30 days, with potential extensions for six months and a year.
State health and human services officials say Baker signed the provision with the intent of allowing these types of transfers under an involuntary commitment procedure, and his language would ensure that there is a thorough clinical assessment by a qualified medial health professional before petitioning the court for transfer of a prisoner to a psychiatric inpatient facility.
Baker officials say their approach would make the transfer process consistent with other types of requests for involuntary treatment under existing laws, and would ensure a judge has all necessary information, a clear standard, and the benefit of a clinical professional’s assessment to make an informed determination.
Elizabeth Matos, executive director of Prisoners’ Legal Services, wrote in a letter to legislators that Baker’s proposal is “a procedurally inappropriate maneuver to water down language only just passed.” The idea of the new law is to offer voluntary treatment for a period of time determined by the treatment facility, she said.
“Governor Baker’s proposed modifications would effectively undermine the intention of the law — to provide persons on mental health watch for an extended period with a process to voluntarily request transfer to an appropriate inpatient mental health setting,” Matos wrote. She said turning a voluntary process into an involuntary one “is antithetical to the underlying intention to allow incarcerated persons the ability to voluntary request intervention from the court to obtain treatment.”
Matos said the standard of commitment only “if someone is in need of hospitalization,” which is the standard currently used for involuntarily commitment, is a higher standard than the new law envisions. And the determination about whether someone meets that standard would be made by the same correctional clinician who already declined to transfer the person under the existing involuntary commitment law. Adopting Baker’s language, she said, would “simply perpetuate the status quo” rather than create a new process for letting someone obtain psychiatric treatment.
Kassel wrote similarly: “Petitioning for potentially life-long civil commitment is very different than what is envisioned in Section 48: transfer to a therapeutic setting for likely short-term stabilization.” He said the only purpose in authorizing the possibility of long-term mental hospital confinement “is to keep them from seeking relief, which is the clear intent of the governor’s outside budget sections.”
Danna Mauch, president and CEO of the Massachusetts Association for Mental Health, voiced similar concerns in a letter to legislators. She said having Department of Correction physicians or psychologists recommending whether to transfer someone would not provide a fully independent analysis to the court.“It is highly unlikely that such clinicians – particularly those working in smaller facilities ‐‐ will contradict the decisions of a colleague or colleagues who have already decided that mental health watch is a sufficient response to the prisoner’s condition and who have not pursued transfer,” Mauch wrote.
Mauch added that allowing a prison to withhold notification of someone’s rights to a transfer in cases when it is “clinically contraindicated” would “eviscerate the very right that the Act establishes.”