by Beau Kealy and Carrie Domzalski
On July 24, 2025, the President issued an Executive Order entitled “Ending Crime and Disorder on America’s Streets,” sanctioning long-term institutionalization of unhoused people living with mental illness. Explicitly touting the President’s goal of promoting public safety and overturning civil rights jurisprudence, the Order urges states to expand civil commitment laws.1 Based on our perspective as practitioners who regularly defend against involuntary commitment petitions and in light of this Order, we provide this brief overview of involuntary commitment law in Massachusetts,2 and address some reasons why expansion of the reach of civil commitment laws is problematic.
The Elements and Burden of Proof for Involuntary Commitment
Involuntary commitment proceedings in Massachusetts reflect its parens patriae authority to protect citizens from harm allegedly resulting from mental illness. Balancing this power against one’s Constitutional guarantee of freedom requires “the least burdensome or oppressive controls over the individual that are compatible with the fulfilment of the dual purposes of our statute, namely, protection of the person and others from physical harm and rehabilitation of the person.” Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980). The following statutory elements necessary for involuntary commitment, and the high burden of proof, strive to reflect this guidance.
Mental Illness. The first required element is that the person lives with a substantial mental illness, as provided for in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5),3 that impairs judgment, behavior, perceived reality or ability to meet life’s ordinary demands. The definition specifically excludes alcohol/substance use disorders, intellectual/developmental disabilities, autism spectrum disorders, traumatic brain injuries or psychiatric symptoms caused by another medical condition unless co-occurring with a mental illness.
Likelihood of Harm. The second required element is that there must be evidence that the mental illness presents an imminent risk of physical harm. This “likelihood of harm” element can be satisfied by any of three distinct “prongs.” See G.L. c. 123, §1; see also In the Matter of G.P., 473 Mass. 112, 125 (2015).
- Prong 1: Substantial risk of physical harm to self from suicidal ideation, as evidenced by specific threats and/or attempts at self-harm.
- Prong 2: Substantial risk serious physical harm to others (or one’s reasonable fear of it) from homicidal ideation, as evidenced by violent conduct.
- Prong 3: Very substantial risk of harm, to self or others, as evidenced by highly impaired judgment that cannot be mitigated in the community. Examples include the failure to appreciate the risk of untreated diabetes and concerns that someone in the community will victimize a person based on unusual behaviors or statements. Homelessness alone is insufficient, and while it may be considered with other evidence, courts should do so only “with extreme caution.” , 486 Mass. 117, 124-25 (2020).
Because of the liberty and bodily integrity issues at stake, the Supreme Judicial Court recognized long ago that any of the alleged risks of harm must be imminent, “to assure that the individual’s potential for doing harm, to himself or to others, is great enough to justify such a massive curtailment of liberty.” Nassar, 380 Mass. at 916-917 (emphasis added). In this context, “imminent” means “that the harm will materialize in the reasonably short term — in days or weeks rather than in months.” Matter of G.P., 473 Mass. at 128.
No Less Restrictive Alternative. The third and final element is proof that no less restrictive alternative can keep the person (or others) safe. This is necessary to justify the infringement of one’s liberty, where no crime has been committed, in accordance with the strict scrutiny analysis of law. According to Matter of a Minor, 484 Mass. 295, 310 (2020), “a less restrictive alternative need not eliminate all risk to a respondent. Rather, the proper focus is on whether there are any viable, plausibly available options that bring the risk of harm below the statutory thresholds that define a likelihood of serious harm.” Such options could include, fFor example, a family member who is willing to assist with one’s care and/or having outpatient psychiatric providers could be such options.
Burden of Proof. The burden of proof is beyond a reasonable doubt. See Sup’t of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978). This recognizes the grave liberty deprivation: an initial order may last six months, with successive one-year renewals sought indefinitely.4 Though civil in nature, involuntary commitment proceedings deviate greatly from other civil proceedings. Evidentiary rules apply, but hearings are not governed by the rules of civil procedure.5 Some procedural safeguards that are otherwise reserved for criminal matters, however, do apply – e.g., respondents are entitled to an appointed attorney and funds for an independent medical examiner.
Safeguards Exist, But Discrimination Persists Creating Unjust Results For Respondents
Despite the due process protections that exist for civil commitment proceedings, all that is required to justify detaining and restraining a person from the community is a highly subjective standard: “reason to believe that failure to hospitalize such person would create a likelihood of serious harm,” which can be based solely on a preliminary diagnosis and/or unverified third party reports.
Where a person has committed no crime,6 § 12(a) authorizes their initial detainment in an emergency room/department for an indefinite period, without any process, right to counsel, or meaningful treatment. A person may then be transferred to a facility for formal psychiatric evaluation, for no more than three business days, pursuant to § 12(b). This process is not well communicated and problematic, for various reasons. For example, a person admitted to a facility on the Friday before a holiday weekend can be held against their will for nearly two weeks without judicial intervention. A risk is that challenging this legal reality is often pathologized, can result in forced chemical restraints and, ultimately, be misperceived as evidence establishing likelihood of harm.
Caselaw reflects the historic discrimination against persons with alleged mental illness, with only recent recognition of fundamental rights. See Matter of N.L., 476 Mass. 632 (2017) (finding that respondents have a right to an initial continuance to prepare a meaningful defense); Matter of F.C., 479 Mass. 1029 (2018) (holding that appeals should not be mooted out due to discharge, in light of the continued stigma after discharge).
Courts often commit people based solely on their mental illness without the requisite nexus to harm. This is most evident after a person has been committed, when a facility may request authorization to forcibly medicate them while hospitalized. Despite valid reasons for rejecting diagnoses and/or treatment with antipsychotic medication, courts often find that committed respondents are incompetent to make medical decisions.
Defending against an involuntary commitment petition is uniquely challenging. Unlike criminal defendants who may post bail, respondents facing commitment must remain hospitalized while their case is pending. In addition, continuances, when permitted, are typically too short to allow for prudent discovery. Evidence is routinely limited to expert testimony offered by the petitioning facility, as well as medical notes from various staff on the unit who regularly pathologize emotion or disagreement.
In Closing
Proponents of involuntary commitment may view the adversarial nature of such proceedings, and its constitutional safeguards, as obstacles to care, but this perspective fails to appreciate the core values of our legal system. A compelling state interest can only justify the deprivation of a fundamental right in narrow terms, and in the least restrictive manner. Massachusetts provides respondents with protections when threatened with involuntary commitment. But the subjective nature of psychiatry and risk prediction allows overly paternalistic results rarely deemed clear error upon review. Lastly, the loss of autonomy and trauma caused by involuntary commitment and forcible treatment impacts the person’s future decisions to choose suggested medications and treatment after discharge and creates a distinct distrust of medical providers.
Carrie Domzalski resides in Northampton, MA, where she works as Attorney in Charge of the Western Mass unit of the Mental Health Litigation Division, for the Committee for Public Counsel Services. She has spent the last decade defending against involuntary commitment petitions on behalf of her clients. In addition to her trial work, Attorney Domzalski is an Adjunct Clinical Professor of the Mental Health Litigation Practicum at Boston University School of Law.
Beau Kealy is the Training Director for the Mental Health Litigation Division, (MHLD), at the Committee for Public Counsel Services. She trains staff attorneys and private counsel to zealously defend clients facing civil commitment and adult guardianship petitions. Previously a criminal defense attorney, Attorney Kealy became a mental health litigator when she joined MHLD in 2016 as a trial attorney litigating commitment trials and appeals out of the Roxbury commitment unit. Together with Attorney Domzalski, she teaches and supervises student attorneys participating in the BU School of Law’s Mental Health Litigation Practicum which she co-founded in 2023.
End Notes
1 It is unconstitutional for any state to involuntarily commit someone with mental illness if they do not pose a danger to themselves or others. O’Connor v. Donaldson, 422 U.S. 563 (1975).
2 The relevant legal principles are codified in G.L. c. 123 and the procedural standards of 104 C.M.R. 27.00. While G.L. c. 123 governs all civil commitments, including those as a result of alleged alcohol and substance use disorder (§ 35), this article focuses on civil commitment based on mental illness, and briefly addresses forcible treatment petitions filed as a result of an alleged mental illness.
3 See 104 C.M.R. 27.05(1) for the full definition of mental illness.
4 Often petitions for the authorization of medical treatment under G.L. c. 123, § 8B, accompany petitions for civil commitment, but they can only be adjudicated if the commitment order is allowed and involve a different burden of proof and evidentiary analysis. We do not address those proceedings here, other than to flag the significant and separate issues of bodily integrity and autonomy triggered by forcible treatment.
5 The exception, Mass. R. Civ. P. 6, applies for time calculations.
6 Forensic civil commitment petitions do involve underlying criminal matters which are initiated after evaluation for competency to stand trial and/or criminal responsibility per G.L. c. 123, §§ 15, 16; as well as § 18 petitions for pretrial defendants or those serving sentences.
