EDWARD E. LEAVITT & another [Note 1] vs. MCLEAN HOSPITAL CORPORATION & others. [Note 2]

BROWN, J. After conviction of certain criminal offenses (see 17 Mass. App. Ct. 585 [1984]), Regina Leavitt fled the jurisdiction prior to sentencing. She was later apprehended at McLean Hospital, a private mental hospital in the Commonwealth, where on March 29, 1982, she had voluntarily committed herself. See G. L. c. 123, Section 10. Following a hearing

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before a Superior Court judge, she was committed to McLean Hospital for twenty days. Regina stayed at McLean Hospital for a total of 110 days. The hospital sought and received reimbursement from Regina's insurer for sixty days -- the maximum benefit payable under the policy. Regina's husband, Edward, also made a partial payment. After the hospital obtained an execution against them for the balance due, the Leavitts brought this action, seeking a declaration that the costs attributable to the commitment should be paid for by the Commonwealth. The Commonwealth has taken an appeal from the judgment of a second Superior Court judge ordering the Commonwealth to pay McLean Hospital an amount of money representing the costs associated with Regina's stay and treatment at that facility during the period April 1, 1982, to April 22, 1982.

The Commonwealth denies liability, asserting instead that the obligation is Regina's. Resolution of that issue requires a rather detailed examination of the proceedings. The record indicates that the Commonwealth initially sought to have Regina held without bail until the sentence could be imposed. Regina's attorney, on the other hand, argued for continuation of commitment to McLean Hospital. Representing that Regina was suicidal and in need of "intensive ongoing treatment," the attorney requested of the judge, "just cutting through the legalities for one moment, . . . to regard this case as an emergency situation, to recognize the fact that she is in a locked ward under a ten-day order of commitment, [Note 3] allow that to continue undisturbed." Responding to the Commonwealth's position that she be in a "secure facility," Regina's attorney pointed out that under G. L. c. 123, Section 1, McLean Hospital was such a facility, and he reiterated the concern that she be in McLean Hospital. "We take no position as to whose custody she need be under, so long as the result is that she be in McLean Hospital. . . . All we're asking is a ten-day preservation of the status quo." Regina's attorney

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also pointed out that, if the judge preferred, she could be committed pursuant to G. L. c. 123, Section 15(e), since "her medical condition . . . renders her incompetent for purposes of sentencing." [Note 4]

When the judge indicated a willingness to order a twenty-day commitment under Section 15, however, Regina's attorney indicated that it was "unclear at this point whether McLean can accept a patient solely on a Section 15. I think it would avoid problems if we could have, in effect, a double commitment; that is, the pink paper [Section 12] commitment, which would result in McLean accepting her, and then the order that she be examined while under the pink paper commitment at McLean." The judge agreed to the double commitment and arranged for the commitment papers to be drawn up. [Note 5] The psychiatrist in charge of the short-term treatment unit at McLean Hospital was present at the hearing and was thus privy to the arrangements. Typed on the commitment form, presumably to explain the reason for the commitment, was the following: "Further evaluation and treatment for suicidal tendencies and depression needed."

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Relying on G. L. c. 123, Section 33, [Note 6] the second judge concluded that the Commonwealth was liable for the expenses incurred during the twenty-day commitment at McLean Hospital. In his memorandum of decision, the second judge stated that, "[w]hile the statute [Section 33] acknowledges that certain commitments will not be paid for by the Commonwealth, this does not apply to a commitment made pursuant to G. L. c. 123, Section 15(e). . . . Such commitments forward the administration of public justice and any benefit to the person committed is only incidental. The commitment . . . clearly represents a commitment designed to aid the court in sentencing Leavitt. Until her alleged suicidal behavior could be more fully evaluated and, if found to exist, stabilized, she was in no condition to be sentenced."

To a certain extent, our reading of the statute comports with that of the second judge: Section 33 merely sets forth the procedures to be followed when payment is to be made by the Commonwealth and does not impose an obligation to pay the expenses in every case. This is made clear by the fourth sentence of Section 33, which provides: "If application is made for the commitment of a person whose expenses and support are not to be paid by the commonwealth, said expenses shall be paid by the applicant or by a person in his behalf." See also G. L. c. 123, Section 32.

It does not necessarily follow, however, that the Commonwealth should pay for every commitment that has a Section 15(e)

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component. Recall that this was supposedly a "double commitment." The record shows that, as a result of the first judge's order, Regina was able to avoid being incarcerated or transferred to a less costly State institution and was able to continue receiving psychiatric treatment for her depression and suicidal tendencies. The commitment also had the effect of postponing sentencing. These results all benefited Regina, and any aid to the court for purposes of sentencing under G. L. c. 123, Section 15(e), was, at best, secondary. [Note 7]

We think it implicit in Section 33 that those costs directed primarily to the immediate benefit of the individual patient, rather than to the public interest, should be charged to the patient. [Note 8] As we have indicated, it fairly may be said that Regina's commitment to McLean Hospital, rather than to a less costly State institution, was effected at the behest of Regina's attorney as an accommodation to her and may even have been a strategy to avoid incarceration. It follows that the commitment was primarily for the benefit of the patient rather than for any public interest, and no liability accordingly may attach to the Commonwealth. The judgment on Count I of the second substitute complaint is vacated, and a new judgment is to enter declaring the parties' rights in accordance with this opinion.

So ordered.