A guardian does not have the authority to consent to treatment with antipsychotic medication without specific court authorization.

In Rogers v. Commissioner of the Dept of Mental Health, the Supreme Judicial Court held that, except in an “emergency,” a judicial determination of incompetence must precede any effort to override a person’s objection to treatment with antipsychotic drugs. Therefore, before a person may be involuntarily treated with antipsychotic medications, whoever is seeking to have the person treated must obtain at least a limited guardianship and specifically ask the court to authorize the treatment. This applies both to people in hospitals and other facilities (for example, nursing homes) and to those living in the community.

Rogers cases can be brought either in the Probate Court as part of a guardianship case, or in the District Court as part of a civil commitment case.

Probate Court Rogers. The Probate Court process may be utilized no matter where the person resides – in a facility or in the community. It begins with the filing of a guardianship petition (or the amendment of an existing guardianship) seeking additional authority to authorized treatment with antipsychotic medication. The petition will be accompanied by an affidavit from a psychiatrist and a proposed treatment plan.

The person will be appointed an attorney if he or she cannot afford one. Often the attorney will recommend obtaining the assistance of an independent medical expert.

To obtain a treatment order, the petitioner, first, must prove that the person is not competent to make his or her own decisions about treatment with antipsychotics. If the person is competent, the petition must be dismissed. If the person is not competent, the judge must then decide what decision the person would make if he or she was competent – this is called “substituted judgment.”

If the judge decides that the person would take the medication if he or she was competent, the judge approves a treatment plan. If the judge decides the person would refuse, the petition is dismissed.

The guardian or, in the absence of a guardian, the court should monitor compliance with the approved plan. Substituted judgment orders must provide for periodic review and must have a termination date, usually no more than one year from the date of the order.

Civil commitment treatment orders. If the person is in a psychiatric hospital and there is a petition for civil commitment, and the patient is refusing treatment or is not competent to consent to treatment, the hospital may also seek authority for involuntary mental health treatment. This is often called an 8B petition, after Chapter 123 § 8B which authorized it. 

Although it is not necessary to file a guardianship petition, the process is the same as in the Probate Court. The hospital must prove that the patient is not competent and that if competent he or she would accept the proposed treatment.

An 8B order is valid only for the time the patient is in the hospital. It has no effect after discharge.