Home IN THE MATTER OF B.L.

2016 Mass. App. Div. 119

July 17, 2015 - October 5, 2016

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Noonan & Poehler, JJ.

Dennis G. Yeaw for the petitioner.

Nathan E. Frommer for the respondent.


POEHLER, J. This appeal involves the question of whether the trial court had jurisdiction to hear a civil commitment petition where the petition for commitment was not signed by the superintendent of the facility.

On November 21, 2014, the UMass Memorial Medical Center Adult Mental Health Unit 8-East ("facility") filed with the Worcester District Court a petition to commit B.L. pursuant to G.L. c. 123, §§ 7 & 8 ("petition for commitment"). The petition for commitment was dated November 21, 2014, and signed by Serge Botsaris, M.D. ("Botsaris"), identified in the petition as the associate medical director of the facility. Filed with the petition for commitment was a petition for authorization of medical treatment for mental illness pursuant to G.L. c. 123, § 8B ("petition for treatment"). The petition for treatment was also dated November 21, 2014. It was signed by Dr. Botsaris, identified as a staff psychiatrist treating B.L., as well as by Cezar Cimpeanu, M.D., the facility's medical director. A hearing was scheduled for November 26, 2014. On November 24, 2014, B.L. filed a motion to dismiss the petition for commitment on the ground that it was not signed by the superintendent or medical director of the facility.

On November 26, 2014, a hearing on the motion to dismiss was held at the facility. Dr. Botsaris was the only witness at that hearing. He testified that he is the associate medical director of the facility and, as such, is authorized to assume administrative duties if the medical director is absent or unavailable. He did not delineate the nature of those administrative duties. Dr. Botsaris also testified that he had signed petitions for commitment in the past in the absence of the medical director. At the conclusion of this hearing, the trial judge found that Dr. Botsaris had the authority as associate medical director to sign the petition and denied the motion to dismiss. The hearing on the petition for commitment then proceeded, after which B.L. was committed for a six-month period.

B.L. has appealed the commitment, maintaining that the lack of the superintendent's or medical director's signature on the petition for commitment deprived the trial court of jurisdiction to hear that petition.

The order for commitment at issue here has expired, and the issue is now moot. Despite that fact, we choose to decide the issue. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101 , 103 (2000), quoting Attorney Gen. v. Commissioner of Ins., 403 Mass. 378 , 380 (1988) ("Litigation ordinarily is considered moot when the party claiming to be aggrieved ceases to have a personal stake in its outcome. . . . Nonetheless, it is within our discretion to decide an issue which is [moot], where the question is one

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of public importance, is very likely to arise again in similar circumstances, and where appellate review could not be obtained before the question would again be moot.").

General Laws c. 123, § 7(a) provides as follows:

"The superintendent of a facility may petition the district court or the division of the juvenile court department in whose jurisdiction the facility is located for the commitment to said facility and retention of any patient at said facility whom said superintendent determines that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness."

"Facility" is defined in G.L. c. 123, § 1 as "a public or private facility for the care and treatment of mentally ill persons, except for the Bridgewater State Hospital." "Superintendent" is defined in § 1 as "the superintendent or other head of a public or private facility." The regulations contained in 104 Code Mass. Regs. § 25.03, and adopted by the Department of Mental Health pursuant to G.L. c. 123, § 2, contain the following definition:

"Facility Director or Director of a Facility shall mean the superintendent or other head of a facility who is responsible for the admission, discharge, and treatment of patients in the facility, who may petition the district or juvenile court for commitment pursuant to M.G.L. c. 123; and who may take such other action as is authorized or required of the superintendent or other head of a facility pursuant to M.G.L. c. 123."

BayRidge Hosp. v. Jackson, 2010 Mass. App. Div. 12 (2010) established that a psychiatric unit of a hospital meets the definition of a "facility" and that the medical director of the psychiatric unit meets the definition of "superintendent or other head of a public or private facility." Id. at 13-14. B.L. does not contend otherwise. She maintains, however, that Dr. Botsaris, as the associate medical director, had no authority, statutory or otherwise, to sign the petition for commitment, and that even if he did, he could sign only in the event that the medical director was unavailable, a fact on which there was no evidence.

The procedural provisions of G.L. c. 123 have been strictly construed due to the "massive curtailment" of liberty experienced by persons involuntarily committed. See, e.g., Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777 , 784 (2008) (strictly applying requirement in G.L. c. 123, § 12(b) that court hold emergency hearing when one is requested); Acting Supt. of Bournewood Hosp. v. Baker, supra at 104-105 (holding that G.L. c. 123, §§ 7(a), 8(a), and 11 do not permit the filing of petition for commitment against conditional voluntary patient who has not given notice of intent to leave hospital); Hashimi v. Kalil, 388 Mass. 607 , 609-610 (1983) (affirming dismissal of petition where hearing was commenced one day beyond fourteen-day limit set forth in G.L. c. 123, § 7(c)).

However, the superintendent or other head of a facility is not always present and available. Given the time frame in which petitions for commitment must be signed and filed, i.e., within three days of an admission under G.L. c. 123, § 12 or a notice of intent to leave under § 11, it is reasonable for the medical director to designate someone to act as a temporary head of the facility in his absence. As Dr. Botsaris testified, he was

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authorized as associate medical director to sign petitions for commitment when the medical director was absent or unavailable. There was no evidence at the hearing on B.L.'s motion to dismiss, however, that the medical director was unavailable or absent when the petition for commitment was signed. In fact, a reasonable inference from the evidence was that the medical director was available because he had signed the petition for treatment on the same day. [Note 1]

Without evidence establishing the medical director's unavailability, Dr. Botsaris, by his own admission, was not authorized to sign petitions for commitment. For that reason, the petition was not properly signed and, therefore, the District Court lacked jurisdiction. The commitment order is vacated, and the petition for commitment is dismissed.


FOOTNOTES

[Note 1] Questioning from the trial judge brought out the fact that the medical director was on the unit at the time the motion to dismiss was being heard. However, the facility made no request to locate him and have him sign the petition.