IN THE MATTER OF S.B.

FINIGAN, J. The appellant ("S.B.") appeals the denial of her motion to dismiss a petition filed under G.L. c. 123, § 12(d) and her subsequent involuntary six-month civil commitment to a psychiatric hospital pursuant to G.L. c. 123, §§ 7 and 8. The appeal comes before us on the approved statement of the evidence or proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C. [Note 1]

On May 14, 2015, a clinician at Norwood Hospital applied for the temporary involuntary hospitalization of S.B. at Pembroke Hospital (the "Hospital") pursuant to G.L. c. 123, § 12(a) and, on that same day, a designated physician at the Hospital authorized such hospitalization pursuant to G.L. c. 123, § 12(b). Pursuant to the statutory scheme, that commitment was scheduled to expire in three business days, namely May 19, 2015.

Nonetheless, S.B. remained at the Hospital past that date, and on May 20, 2015, the Hospital filed a petition to commit S.B. further for a period of six months pursuant to G.L. c. 123, §§ 7 and 8. A hearing on the petition was scheduled to occur at the Hospital at 2 P.M. on May 27, 2015. Prior to the hearing, S.B.'s counsel filed a motion to dismiss the petition, arguing the petition had been filed outside of the three-day window established by G.L. c. 123, §§ 12(a) and (d). The court agreed and dismissed the petition. [Note 2]

Within minutes of the dismissal of the petition, the Hospital filed a new application for the temporary involuntary hospitalization of S.B. pursuant to G.L. c. 123, § 12(a), and shortly after that, a designated physician at the Hospital authorized such hospitalization pursuant to G.L. c. 123, § 12(b). For purposes of that temporary involuntary hospitalization, a psychiatrist (who was not S.B.'s attending psychiatrist) examined S.B. in a room at the Hospital separate from the locked ward where she had been previously residing and, after concluding that the failure to hospitalize S.B. would create a likelihood of serious harm by reason of mental illness, applied for her readmission to the Hospital. S.B.'s attending psychiatrist, a designated physician of

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the Hospital, then authorized S.B.'s readmission pursuant to G.L. c. 123, § 12(b) within the hour of the judge's dismissal of the original petition. [Note 3] At all relevant times, S.B. remained at the Hospital.

On the following day, the Hospital filed a second petition to commit S.B. further for a period of six months pursuant to G.L. c. 123, §§ 7 and 8. A hearing on the petition was scheduled for 2 P.M. on June 3, 2015, again to be heard at the Hospital where S.B. remained.

On the day of the hearing on the second petition, S.B.'s counsel again filed a motion to dismiss the petition, this time arguing the Hospital's failure to discharge S.B. after the court's allowance of the prior motion to dismiss was improper and the subsequent "administrative" discharge and readmission was the Hospital's attempt to evade the court's ruling. The judge assigned to hear the second petition (who was not the judge who had allowed the previous motion to dismiss) denied the motion, and the hearing proceeded as scheduled. After the hearing on the merits, the court allowed the petition to commit S.B. involuntarily to the Hospital for a period of six months pursuant to G.L. c. 123, §§ 7 and 8. The order of commitment has now expired, and the case is moot. However, because the issues presented involve the commitment and treatment of mentally ill persons, which are matters generally considered of public importance and are capable of repetition, yet evading review, we exercise our discretion and decide the matter. Guardianship of Doe, 391 Mass. 614, 618 (1984).

General Laws c. 123 addresses the involuntary civil commitment of persons with mental illness. At issue here are certain provisions of § 12 of G.L. c. 123. Section 12 permits any physician to detain a person and apply for the hospitalization of such person at a psychiatric hospital where the physician has reason to believe that the failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness. See G.L. c. 123, § 12(a). Upon arrival, such a person is to be given a psychiatric examination by a "designated" physician (i.e., a psychiatrist with admitting privileges to the facility). See G.L. c. 123, § 12(b). If, after examining the person, the designated physician has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness, the physician may admit such person to the facility for care and treatment, for a period not to exceed three days. See G.L. c. 123, § 12(d).

Recognizing the "massive curtailment" of liberty that such involuntary commitments represent, the Legislature provided such persons with a number of procedural protections. See Commonwealth v. Nassar, 380 Mass. 908, 917 (1980), quoting Lessard v. Schmidt, 349 F. Supp. 1078, 1093 (E.D. Wis. 1972). Among the procedural safeguards of Chapter 123 is that the strict time requirements of the statute must be met. See Matter of C.D., 2015 Mass. App. Div. 29, 31. At issue here is the requirement that before the expiration of the three-day period, a facility must either file a petition for a six-month involuntary civil commitment of the person or, failing that, discharge the person. See G.L. c. 123, § 12(d). [Note 4]

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Here, there is no dispute the Hospital failed to file its petition for an involuntary six-month commitment of S.B. before the expiration of the three-day time limit. When confronted with its error (by virtue of the filing of S.B.'s first motion to dismiss), the Hospital made effort to correct its mistake. Despite the well-intentioned efforts, though, we do not find those steps elevated S.B.'s continuing involuntary confinement to a discharge and subsequent readmission of the sort contemplated by the Supreme Judicial Court in Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 784 n.14 (2008).

To its credit, the Hospital did not attempt to fix the oversight by simply deeming S.B. "administratively" discharged and then readmitting her for a new three-day period pursuant to G.L. c. 123, § 12(b). See Matter of C.D., supra at 31 (reversing decision to deny request for discharge where facility administratively discharged patient and then readmitted him after expiration of three-day period provided by G.L. c. 123, § 12(d)). Instead, a Hospital physician completed a one-page discharge summary, making reference to the court's dismissal of the petition. Hospital staff then escorted S.B. to a different area of the Hospital where she was examined by a physician (who was not her treating physician). A designated physician then readmitted S.B. pursuant to G.L. c. 123, § 12(b).

Chapter 123 does not define "discharge," but in any event, we do not find the hospital's efforts amounted to a discharge of S.B. [Note 5] The record is silent as to whether S.B. was ever told of her change in status, given a copy of the discharge summary, or allowed to discuss its implications with counsel. Further, it appears S.B.'s family members, who are referenced in the discharge summary, were never notified of her change in status, brief as it might have been. Likewise, there is nothing to reflect whether S.B.'s primary care clinician (if she had one) or her outside psychiatric care providers were consulted in connection with her planned discharge. Lastly, the record indicates the motion to dismiss the petition was allowed sometime after 2 P.M., the subsequent exam and application for readmission made at 2:15 P.M., and the readmission completed by 2:30 P.M.

Finding that S.B.'s readmission to the Hospital on the compressed timetable described above satisfied the statute would render the court's allowance of the first motion to dismiss a mere nullity. See Magrini, supra at 781-782 (hospital ignored court order to discharge patient following expiration of applicable time limit). This case is factually similar to Matter of B.F., 2016 Mass. App. Div. 18, where a designated physician of a facility filed a second application and authorization for a three-day commitment after realizing the prior petition had expired a day earlier. The facility then sought a six-month commitment under G.L. c. 123, §§ 7 and 8, and a hearing on that petition was held within the five-day time period required. The patient was subsequently committed for six months under G.L. c. 123,§§ 7 and 8. Matter of B.F., supra at 19.

Despite the fact that the hearing on the petition to commit the patient for six months was held within the time period that would have been required had the facility timely filed before the initial three-day commitment expired, the Western District of the Appellate Division nonetheless held the District Court had no jurisdiction to hear the petition. Id. at 21. In reaching that result, the Division relied on Hashimi v. Kalil,

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388 Mass. 607 (1983), where the Supreme Judicial Court stated that because G.L. c. 123, § 7(c) requires a commitment hearing to be commenced within fourteen days of the filing of a petition, a hearing commenced on the fifteenth day is a violation of the statute and deprives the District Court of jurisdiction. Hashimi, supra at 609-610. The sole distinguishing feature in this case, as opposed to Matter of B.F., is that here, S.B. was escorted a short distance away from her locked ward for a matter of minutes and given a brief examination for the purpose of deeming her "discharged." Because we do not agree those steps amounted to a discharge, we reach the same result as in Matter of B.F. and Hashimi, that the District Court lacked jurisdiction to hear the six-month petition pursuant to G.L. c. 123, §§ 7 and 8.

The court's denial of S.B.'s second motion to dismiss is reversed, and the order of commitment is vacated.