Home IN THE MATTER OF D.K.

2017 Mass. App. Div. 129

April 28, 2017 - August 28, 2017

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Coven, P.J., Singh & Crane, JJ. [Note 1]

Leah D. Amrhein for the petitioner.

Tamara A. Barney for the respondent.


COVEN, P.J. This is an appeal from the order of the Worcester District Court [Note 2] allowing a petition for involuntary civil commitment filed by Worcester Recovery Center and Hospital pursuant to G.L. c. 123, § 16(b). The issue we address in this case is whether the evidence of third-prong "likelihood of serious harm," G.L. c. 123, § 1, [Note 3] was sufficient after the holding of In the Matter of G.P., 473 Mass. 112 (2015). Specifically, D.K. argues that the evidence supporting the finding was based upon the remote past and the evidence did not support a finding of the necessary imminence of harm.

Although the order of D.K.'s commitment has since expired, [Note 4] it is in our discretion to review a moot issue where the issue is of public importance, capable of repetition, yet evading review. Commonwealth v. McCulloch, 450 Mass. 483 , 487 (2008). Discretionary review is particularly apt in the context of the commitment and treatment of mentally ill persons. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777 , 782 (2008).

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We affirm. At the time of the order, D.K. was a thirty-one year old homeless women. The designated forensic psychologist diagnosed D.K. with schizophrenia. The psychologist sought the petition on the basis that D.K. presented a likelihood of serious harm by a very substantial risk to herself as manifested by her refusal to shower and change her clothing, resulting in significant body odor, and for her refusal to take prescribed psychiatric medication. The petition also noted D.K.'s past history of medical compromise (including conditions related to her refusal to eat and hydrate) when she stopped psychiatric medication. [Note 5]

At the hearing, the psychologist acknowledged viewing sources of information collateral to the hospital records that were generated in the two months prior to the hearing. The psychologist stated that, although these collateral sources were reviewed, it was the hospital documentation that formed the opinion of D.K.'s current mental state. The psychologist, who did not interview D.K. because of her refusal, informed the court that D.K. had expressed delusions of persecution. The records contained examples of her impairments in the manner of her thinking, how she thinks, the slowness with which she thinks, and her apparent thought blocking. According to the psychologist, the records also documented instances of D.K. being observed to appear internally preoccupied and laughing inappropriately as if responding to internal stimuli. Additionally, the court was informed of D.K. complaining of perceptual disturbances.

The psychologist informed the court that, as to D.K.'s ability to meet ordinary demands of life because of D.K.'s gross impairment, the records of her hospitalization reflected ten references to D.K.'s being unable to care for her hygiene and grooming, despite attempts by staff to assist her in showering and changing clothes. Additionally, it was reported to the court that D.K. was refusing psychiatric treatment and this refusal resulted in D.K.'s lack of insight into her condition and need for treatment.

At issue in this appeal is the evidence presented that, in the fall of 2014, D.K. stopped consuming foods and fluids for a period of two weeks and this abstinence resulted in emergency hospitalization. This hospitalization occurred shortly after D.K.'s discharge from a seven-month psychiatric hospitalization and resulting "asymptomatic" stabilization at the Worcester Recovery Center and Hospital to the Department of Mental Health and her almost immediate discontinuance of psychiatric medication. It was opined that this discontinuance was connected to D.K. being found in a shelter having not eaten or consumed fluids and urinating on her linens and vomiting in cups in her room. The psychologist also informed the court that, as of the date of the hearing, D.K. had refused to accept an offer from a nurse practitioner to prescribe Haldol, although D.K. was taking fluids and eating.

We now turn to the issue of past conduct. The Supreme Judicial Court recently considered this issue in the context of a civil petition to commit an individual under G.L. c. 123, § 35 as a result of alcoholism or substance abuse. In Matter of G.P., the Court stated:

"It is neither possible nor appropriate to try to establish a set of definite temporal boundaries for such evidence; the assessment of risk is a

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probabilistic one, and necessarily must be made on the basis of the specific facts and circumstances presented. (Citation omitted.) But as a matter of experience and logic, the more recent the evidence . . ., the more weight that evidence should carry in supporting a determination that there is a significant risk . . . ."

Id. at 125-126.

Although the Court in Matter of G.P. addressed the issue of past conduct in the context of the first two prongs of a "likelihood of serious harm," [Note 6] we find no principled reason why the connection would be any less applicable to the third prong. Indeed, the Court made expressly clear its concern was tied to a resulting "curtailment of liberty." Id. at 126.

Apart from D.K.'s refusal to eat or hydrate in 2014, the records were more than sufficient to establish "a very substantial risk of physical impairment or injury to the person [herself] as manifested by evidence that such person's judgment is so affected that [s]he is unable to protect [herself]." G.L. c. 123, § 1. D.K. was diagnosed with schizophrenia. She expressed delusions of persecution, appeared internally preoccupied, and was observed laughing inappropriately as if responding to internal stimuli. The court heard testimony that her manner of thinking and how she thinks were impaired. Further, the court was informed of D.K. complaining of perceptual disturbances. This evidence alone convincingly supports the required finding beyond a reasonable doubt that D.K.'s judgment was affected by her mental status.

A further required finding that this affected judgment would compromise D.K.'s ability to protect herself also exists and conforms to Matter of G.P. As the Court stated, "the reliability of an assessment of a substantial risk of harm diminishes the farther out one projects as to when the harm is likely to materialize." Id. at 127. "In our view, 'imminent' here does not mean 'immediate' -- the petitioner need not establish a substantial risk that the anticipated harm will occur immediately. Rather, what must be shown is a substantial risk that the harm will materialize in the reasonably short term -- in days or weeks rather than in months." Id. at 128. Here, the court was presented with evidence that it was repeatedly documented in the hospital record that, during the two months prior to the hearing, D.K. was unable to care for her hygiene and grooming, despite attempts by staff to assist her in showering and changing clothes. A failure to meet such basic needs self-demonstrates the imminence and inability to protect oneself.

The court's order of commitment is affirmed, and the appeal is dismissed.


FOOTNOTES

[Note 1] The Honorable Sabita Singh participated in the hearing, review, and decision of this case, but was appointed to the Appeals Court prior to the issuance of this opinion.

[Note 2] Jurisdiction of the petition for commitment under G.L. c. 123, § 16(b) lies with the court having jurisdiction of the criminal charge, here the Cambridge Division of the District Court Department. See Appendix A to District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011). Nevertheless, pursuant to G.L. c. 218, § 43A, the Worcester Division of the District Court Department is authorized to sit as the division of the District Court Department having jurisdiction of the criminal case.

[Note 3] General Laws c. 123, § 1 defines "likelihood of serious harm" under three prongs: "(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community."

[Note 4] The commitment order issued on August 25, 2016 and expired on February 22, 2017. D.K. was discharged on January 6, 2017.

[Note 5] The issue of whether there existed a less restrictive alternative to the hospitalization order is not at issue.

[Note 6] See note 3, supra.