2017 Mass. App. Div. 139

April 28, 2017 - August 29, 2017

Appellate Division Northern District

Court Below: District Court, Cambridge Division

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

Diane M. Geraghty Hall for the petitioner.

Alice W. Wiseberg for the respondent.

NESTOR, J. This case involves an appeal from the Cambridge District Court authorizing commitment of the appellant, T.M., to McLean Hospital (the "hospital") pursuant to G.L. c. 123, §§ 7 and 8, as well as authorizing medical treatment pursuant to G.L. c. 123, § 8B.

T.M. was admitted to the hospital on August 7, 2016, pursuant to G.L. c. 123, § 12. He presented with suicidal ideation and self-isolation. On August 10, 2016, the hospital filed a petition for commitment of T.M. under G.L. c. 123, §§ 7 and 8 and a petition for determination of incompetency and for authorization of medical treatment for mental illness under G.L. c. 123, § 8B. The hearing was scheduled for August 16, 2016.

On the morning of the hearing, T.M. applied for conditional voluntary status. The hospital denied the request. At the start of the hearing, counsel for T.M. made an oral motion to continue the hearing because she had just received updated medication administration records. Counsel indicated that she needed time to go through the records and for her expert to review the updated records. After argument, in which counsel for the hospital objected to the continuance by averring that T.M. remained "very suicidal" and that, over the weekend, T.M. had asked staff for a noose and a gun, the trial judge denied the request for a continuance on the G.L. c. 123, §§ 7 and 8 portion of the hearing. She indicated that she would withhold making a decision whether the § 8B hearing would be continued until after the §§ 7 and 8 hearing concluded.

There was only one witness at the hearing: Dr. Stephanie Valcourt ("Valcourt"). She was T.M.'s attending psychiatrist upon his admission to the hospital. Dr. Valcourt had previously treated T.M. on two prior occasions in September of 2015 and from January to April of 2016. Dr. Valcourt is board certified in psychiatry and a medical director on the unit. The parties stipulated to her as an expert witness.

At the time T.M. was involuntarily admitted to the hospital on August 7, 2016, he was twenty-four years old. T.M. was diagnosed with schizoaffective disorder, depressed. He had gone to Massachusetts General Hospital with his mother on that same date after stopping his psychiatric medications. His failure to comply with his medication regimen produced a worsening depression and suicidal ideation. He was transferred to McLean Hospital pursuant to G.L. c. 123, § 12.

Dr. Valcourt evaluated T.M. upon his admission at McLean Hospital. She determined that he had a depressed affect, no eye contact, and slowed speech with limited responses. She also found that he was hearing voices, a male and a female, telling

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him "negative context." T.M. admitted to her that he had suicidal thoughts prior to being hospitalized and that he wanted to get a gun. He reported that he had been researching guns and that he did, in fact, ask his mother for a gun.

Those symptoms did not change during the course of his hospitalization beginning on August 7, 2016 until the hearing date of August 16, 2016. During that time period, T.M. asked staff for a gun, asked staff for a noose, made a fist as if to punch his own face, punched a pillow, banged his head against a window, and swore at staff. During a prior hospitalization, T.M. made a noose out of a sheet and attempted to throw it over a door when staff stopped him. Dr. Valcourt further testified that during his current stay at the hospital, he described suicide as an escape from pain and that he could not see any alternatives. He also indicated that he was hopeless about his future.

Based upon the foregoing, Dr. Valcourt testified that T.M. was at "an extremely elevated risk of suicide."

Dr. Valcourt also determined from talking with T.M. that his father committed suicide. She indicated that there is some medical literature that supports the fact that there is a 600% elevated risk of suicide when a first-degree relative has committed suicide.

During this current hospitalization, August 7, 2016 until the hearing on August 16, 2016, T.M. had inconsistently taken the prescribed medication Ativan. He had refused two antipsychotic medications: Invega and Clozapine. Two days prior to the hearing, he began taking Invega and the night before the hearing, he took his first dose of Clozapine (or Clozaril -- the record is unclear).

On the morning of the hearing, T.M. applied for conditional voluntary status. [Note 1] That request was denied by Dr. Valcourt. [Note 2] T.M. urged the trial judge to make a finding that the hospital should have accepted T.M. on conditional voluntary status and that was, in fact, a less restrictive alternative. [Note 3] The court disagreed and allowed the petition for commitment. The court then commenced the G.L. c. 123, § 8B hearing, denied T.M.'s renewed motion to continue, and adopted the hospital's amended treatment plan.

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On appeal, T.M. argues that the trial court violated his right to due process and opportunity to mount a meaningful defense by denying his motions to continue the G.L. c. 123, §§ 7 and 8 and G.L.c. 123, § 8B hearings in order to review medication administration records that the hospital provided on the day of the hearings. T.M. also argues that because he met the legal and clinical prerequisites for a conditional voluntary admission, the hospital was required to accept that application, and the court erred in ordering commitment where there was a less restrictive setting to involuntary commitment.

T.M. has been discharged. The appeal is therefore moot. "[I]t is within our discretion to decide an issue which is [moot], where the question is one 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." Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000), quoting Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380 (1988). "[I]ssues which involve the rights of the mentally ill are classic examples of issues that are ‘capable of repetition, yet evading review.'" Guardianship of Doe, 391 Mass. 614, 618 (1984), quoting Hashimi v. Kalil, 388 Mass. 607, 609 (1983). Additionally, there is no question that "[i]ssues involving the commitment and treatment of mentally ill persons are generally considered matters of public importance." Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 782 (2008), quoting Acting Supt. of Bournewood Hosp., supra.

On the issue of the court's denial of T.M.'s motions to continue, the Supreme Judicial Court has recently stated that the "grant of a first request for a continuance pursuant to G.L. c. 123, § 7(c) or 8B(c), is mandatory where a denial thereof is reasonably likely to prejudice a person's ability to prepare a meaningful defense," and that a court's denial is to be reviewed under an abuse of discretion standard. Matter of N.L., 476 Mass. 632, 637-638 (2017). In Matter of N.L., where the patient had been discharged prior to the Court's review, it dismissed the appeal as moot. We do likewise on that issue here.

On the issue of whether the court erred in allowing the petition for commitment where T.M. had applied for, and was denied, admission on conditional voluntary status, T.M.'s argument is premised on the legal sufficiency of evidence regarding his competency under G.L. c. 123, § 11, which is necessarily unique to this case, unlikely to arise in similar circumstances, and would have little or no precedential value. See Matter of K.R., 2012 Mass. App. Div. 229. [Note 4]

The appeal is dismissed as moot.


[Note 1] Section 11 of G.L. c. 123 clearly sets forth the criteria and process for a patient to be on a conditional voluntary admission status. "Before accepting an application for voluntary admission where the superintendent may require three days written notice of intention to leave or withdraw, the admitting or treating physician shall assess the person's capacity to understand that (i) the person is agreeing to stay or remain at the hospital; (ii) the person is agreeing to accept treatment; (iii) the person is required to provide the facility with three days written advance notice of the person's intention to leave the facility; and (iv) the facility may petition a court for an extended commitment of the person and that he may be held at the facility until the petition is heard by the court. If the physician determines that the person lacks the capacity to understand these facts and consequences of hospitalization, the application shall not be accepted." Id.

[Note 2] Dr. Valcourt rejected T.M.'s request for a number of reasons. T.M. had not clearly demonstrated that he agreed to stay in the hospital. T.M. had acknowledged that there were some benefits to being hospitalized, but in her opinion, he had not consistently demonstrated a willingness to remain. Dr. Valcourt also pointed to his refusal of medication as evidence that T.M. was not willing to accept treatment.

[Note 3] "When hospitalization becomes an involuntary matter at the initiative of government, the result is ‘a massive curtailment of liberty' . . . ." Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 105 (2000), quoting Commonwealth v. Nassar, 380 Mass. 908, 917 (1980). As a result, in this Commonwealth, a person may be confined to a mental health facility at the hands of the government under G.L. c. 123, §§ 7 and 8, only upon proof beyond a reasonable doubt that 1) the person is mentally ill, 2) discharge of the person from a locked psychiatric facility would create the likelihood of serious harm, and 3) there is no less restrictive alternative. G.L. c. 123, §§ 1, 7 and 8; Commonwealth v. Nassar, supra at 918; Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 272 (1978).

[Note 4] Further, where a conditional voluntary admission is denied, the record should be clear as to the basis of the denial.