Home IN THE MATTER OF M.C.

2016 Mass. App. Div. 140

September 16, 2016 - November 23, 2016

Appellate Division Northern District

Court Below: District Court, Lowell Division

Present: Coven, P.J., Crane & Nestor, JJ.

Catherine B. Correia and Barbara Gavins Jones for the petitioner.

Devorah A. Borenstein for the respondent.


COVEN, P.J. This case involves an appeal on the record of proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C, challenging an order of the Lowell District Court authorizing a modified treatment plan for M.C. that allowed for antipsychotic medication pursuant to G.L. c. 123, § 8B, while M.C. was subject to a Probate and Family Court treatment plan that authorized the use of medication.

This case presents a substantial issue of law concerning medical treatment authorization from both the Probate and Family Court and District Court. While a decision will not impact M.C., the issue presented is capable of repetition, and, particularly when an issue involves the rights of the mentally ill, discretionary review is appropriate. Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101 , 103 (2000).

M.C. has been the subject of a Probate and Family Court treatment plan authorizing treatment with antipsychotic medication since 2004. On March 4, 2015, the Probate and Family Court amended the treatment plan to replace Clozaril with Seroquel and Haldol because of M.C.'s low white blood cell count and side effects. A review of the treatment plan was ordered for March 2, 2016.

M.C. was committed to BayRidge Hospital pursuant to G.L. c. 123, §§ 7 and 8, on July 1, 2015, but the petition to treat M.C. with antipsychotic medication was denied because it was not found that there existed an "immediate need." M.C. voluntarily agreed to a transfer to Tewksbury State Hospital on September 30, 2015.

On October 7, 2015, the Department of Mental Health ("DMH") filed in the Probate and Family Court a contested motion to amend the existing treatment plan to reintroduce Clozaril medication. A hearing was ordered for October 22, 2015. The motion was withdrawn on October 14, 2015. On November 13, 2015, DMH filed with the Lowell District Court a petition under G.L. c. 123, § 8B to authorize the reintroduction of Clozaril as the principal antipsychotic medication. The petition did not disclose the Probate and Family Court plan.

A hearing on the petition occurred on November 20, 2015. M.C. sought the dismissal of the petition based upon the existing Probate and Family Court case and asked the Lowell District Court to refer the matter to the Probate and Family Court. M.C. also argued that there did not exist an immediate need for the amended treatment plan. The court held an evidentiary hearing and authorized treatment with Clozaril, finding that "based upon the testimony of the treating psychiatrist, . . . [M.C.'s] psychiatric and physical condition has seriously decompensated so that immediate action is necessary to prevent further decompensation."

Page 141

In support of this conclusion, the hearing judge was presented with evidence from M.C.'s treating psychiatrist who had been treating M.C. for approximately forty days, and working at Tewksbury State Hospital for only about a week at the time of the October, 2015 Probate and Family Court filing. This individual testified that the "chief concerns" regarding the immediacy of need for Clozaril was M.C.'s threatening other patients and staff members "regularly, multiple times per week," and that M.C. was consuming liquids "so much that he [wa]s physically ill to the point of a life-threatening level." In this latter context, there was evidence presented that M.C., as a condition of his psychosis (polydipsia), was drinking excessive fluids "to the point of drinking detergent or ketchup," and that the excessive consumption was diluting M.C.'s sodium level to a dangerous level. Further, M.C.'s treating psychiatrist testified that M.C. had previously been administered Clozaril over a ten-year period, the reintroduction of the Clozaril would improve M.C.'s condition, and the medication was a "go-to" medicine for persons suffering from polydipsia.

The parties focus upon the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011) and, in particular, Standard 7:01: Related Probate and Family Court proceedings. While lacking the force of law or rules, these Standards are "administrative regulations promulgated by the Chief Justice of the District Court that [are] treated as statements of desirable practice" to be followed in the District Courts. Commonwealth v. Clerk-Magistrate of the W. Roxbury Div. of the Dist. Court Dep't, 439 Mass. 352 , 357 (2003).

Standard 7:01 provides, in relevant part, as follows:

"Before commencing the hearing on a § 8B petition to authorize medical treatment for mental illness, the court should determine from the petitioner whether there is any prior or pending involvement by the Probate and Family Court regarding the respondent's medical treatment for mental illness.

"If there was a prior Probate and Family Court determination regarding the same respondent and the same or related issues of competency and treatment, the District Court should be informed of and give careful consideration to that earlier decision.

"If there is a Probate and Family Court treatment plan currently in effect, the District Court should refer the petitioner seeking to change that plan back to the Probate and Family Court that issued it, unless immediate action is necessary."

Commentary to Standard 7:01 also addresses the balance between District Court and Probate and Family Court proceedings. It states that "[w]here a § 8B petition is filed solely to modify a treatment plan authorized by the Probate and Family Court that is currently in effect, jurisdiction should be declined and the petitioner directed to the Probate and Family Court that issued that treatment plan, unless circumstances require immediate action." [Note 1]

Page 142

Neither the Standards themselves nor the commentary to the Standards addresses the issue of what quantum of evidence is necessary for circumstances to be deemed to require "immediate action." However that quantum need be established, in this case, we are confident that the evidence supported the finding of the judge. The evidence presented established that M.C., as a condition of his psychosis, suffered from polydipsia, which caused M.C. to consume liquids to a "life-threatening level." In this latter context, there was evidence presented that M.C. was drinking excessive fluids "to the point of drinking detergent or ketchup," and that the excessive consumption was diluting M.C.'s sodium level to a dangerous level. The judge also was presented with evidence that the medication sought to be reintroduced, Clozaril, was a "go-to" medicine for persons suffering from polydipsia.

Both the Standards and the commentary make clear that the preferred action in a case where there exists a Probate and Family Court medical treatment plan is for a judge to refer a case seeking a modification of the treatment plan to the Probate and Family Court. But we cannot say that the authorization issued by the judge in this case was an abuse of discretion. [Note 2] We add, however, that while we have assessed the judge's decision to hear the petition and issue the treatment order on an abuse of discretion standard, and generally we give "great deference" to a judge's decision, L.L. v. Commonwealth, 470 Mass. 169 , 185 n.27 (2014), the Standards reflect that the discretion be balanced against the preferred "reasonable alternative[]," Commonwealth v. Kolenovic, 471 Mass. 664 , 672 (2015), quoting L.L., supra, of referral to the Probate and Family Court.

The appeal is dismissed.


FOOTNOTES

[Note 1] We suggest that where a District Court judge is confronted with a petition for treatment where there exists a Probate and Family Court treatment plan, the more prudent course of direction is for the court to require the petitioner to make an offer of proof on the need for "immediate action." The purpose and spirit of the Standards is diluted where, as in this case, the determination of immediate need is intertwined with the evidentiary hearing. It would also be prudent for counsel of the respondent to inform the District Court judge of any efforts to secure an immediate hearing in the Probate and Family Court.

[Note 2] Commentary to Standard 7:01 also cautions judges to be cognizant of forum shopping. This Division is concerned that there was a failure of communication between the counsel at Tewksbury State Hospital and the lawyers from the Department of Mental Health who were involved in the Probate and Family Court proceedings. This was not a case of forum shopping but, rather, the manifestation of a failure of communication in the same legal department.