By Alexandra August
Throughout Massachusetts, facilities licensed and operated by the Department of Mental Health (“DMH”) are gripped by a “bed space crisis,” operating at such maximum capacity that beds cannot reliably be found for patients requiring either evaluation or treatment in a DMH facility. This issue is particularly pressing for patients transferring to a DMH facility from Bridgewater State Hospital (“BSH”). Such transfers occur after a court finds, beyond a reasonable doubt, that the patient presently held at BSH does not require strict security and can be treated in the less-restrictive DMH facilities, with due process mandating transfer out of BSH upon entry of the order of commitment to DMH.
Based on the lack of beds, courts routinely issue orders that stay a patient’s detention within BSH’s strict security for up to two weeks. While these orders may ease the burden on DMH to accommodate transfers, it is not a neutral waiting period for patients at BSH. This systemic delay forces vulnerable individuals to remain in a medium-security prison operated by the Department of Corrections, rather than a therapeutic mental health facility.
Bridgewater State Hospital Versus Department of Mental Health Facilities
BSH, a male-only, medium-security psychiatric facility operated by the Department of Corrections, is the “only psychiatric facility in the country overseen by a state correctional authority rather than a mental health authority.” Disability Law Center, Bridgewater State Hospital: Prison by Another Name at 2, Disability Law Center, Feb. 2026 (“BSH: Prison by Another Name”). Correctional officers manage entry and exit from the facility and stand guard during internal court proceedings, sometimes intervening with use of force. Care and treatment and internal security, up to and including physical and chemical restraint of patients, are managed by an independent contractor, Recovery Solutions.
The physical deficiencies of BSH are documented: mold contamination, lack of air conditioning during extreme heat, and general disrepair leading to unsafe conditions. Disability Law Center, Public Report: The Commonwealth’s Treatment of Individuals with Mental Health Disabilities Committed to Bridgewater State Hospital and Patient Continuity of Care at 47–50, Disability Law Center, Feb. 2026 (“Public Report”). Patients live and are locked in for hours at a time in prison cells managed by Recovery Solutions security staff permitted to use chemical restraint and force. Reports indicate that “staff verbally abuse and intimidate” patients, that “forced medication regularly involve[s] excessive force and prison tactics,” and that “BSH subjects patients to unnecessary and illegal forced psychotropic medication.” See BSH: Prison by Another Name at 6–7. Patients, in turn, describe these experiences as “‘traumatizing,’ ‘unnecessary,’ and ‘humiliating,’” and suffer consequences that “range from physical injuries to feelings of paranoia, fear, and humiliation and a reticence to ask staff for help in the future.” Id at 7.
DMH, on the other hand, houses patients in locked, but therapeutic, facilities. Reports indicate DMH’s policies and practices encourage patient participation and autonomy. Staff is described as “respectful, kind, and supportive,” therapeutic and social groups “provide more options for pursuing clinically indicated treatment goals and empowering patients,” and facilities offer “significant quality-of-life improvements compared to BSH.” See Public Report at 53. DMH maintains uniform regulations regarding patient privileges and discipline. The use of seclusion and restraint is carefully circumscribed by state regulations, with use only permitted in the case of “substantial risk of, or the occurrence of, serious self-destructive behavior, or a substantial risk of, or the occurrence of, serious physical assault.” Prevention of Restraint and Seclusion and Requirements When Used, 104 CMR 27.12.
To Maintain Patients in “Strict Security” Conditions Pursuant to DMH’s Request is a Violation of Due Process
To detain patients at BSH, following a finding they do not require strict security, is a direct violation of these patients’ due process rights. It is well established that the Commonwealth’s power to confine civil committees is limited by their “right to be deprived of [their] liberty only under circumstances representing the least restrictive alternative for each individual consistent with the needs for his treatment and security.” Gallup v. Alden, 57 Mass. App. Div. 41, 57 (1975); see also Garcia v. Commonwealth, 487 Mass. 97, 103 (2021); Matter of a Minor, 484 Mass. 295, 309 (2020). Without a finding beyond a reasonable doubt “that [the patient] is not a proper subject for commitment to any facility of the [DMH]; and . . . failure to retain such person in strict custody would create a likelihood of serious harm,” any further detention within strict security far surpasses the Commonwealth’s power to confine. Proceedings to commit dangerous persons; notice; hearing; orders; jurisdiction, G.L. c. 123, § 8(b)-(c); see also Commonwealth v. Nassar, 380 Mass. 908, 916 (1980); Superintendent of Worcester State Hosp. v. Hagburg, 374 Mass. 271, 276–77 (1978).
When strict security is no longer required, “the court shall order the commitment of the person to a facility designated by the department,” where “DMH has the obligation to provide [the] level of intermediate security that the plaintiff’s condition requires.” G.L. c. 123, § 8(b); Bradley v. Comm’r of Mental Health, 386 Mass. 363, 366 (1982). And yet, in these situations, DMH, without formally intervening, consistently asks BSH to inform the court that DMH would like the patient’s transfer out of strict security be stayed.
Conclusion
Stays of transfer extend detention in a volatile correctional setting and overwrite the explicit finding that a patient would not pose a likelihood of serious harm if transferred to a DMH facility. There is a stark difference between treatment in a DMH facility and detention at BSH, one that creates lasting impacts on patients. Although these orders may ease the burdens placed on DMH to accommodate transfers out of strict security created by the ongoing “bed space crisis,” this ostensible benefit does not outweigh the violation of constitutional due process rights created by ongoing detention within BSH.
The opinions stated in this article are those of the author and do not necessarily reflect the position of the Committee for Public Counsel Services.
Alexandra August is a trial attorney with the Brockton Commitment Defense Unit of the Mental Health Litigation Division at the Committee for Public Counsel Services, where she primarily represents indigent men admitted and committed to Bridgewater State Hospital. In addition to her work as a trial attorney, Attorney August is the chair of the Brockton MHLD intern program, supervising 3:03 certified law students over the course of a semester, and serves as an Adjunct Professor of Mental Health Litigation at both New England University School of Law and University of Massachusetts – Dartmouth School of Law.
