2017 Mass. App. Div. 149

October 7, 2016 - October 19, 2017

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Noonan & Despotopulos, JJ. [Note 1]

Motion considered in Worcester District Court by McGill, J. [Note 2]

No brief filed for the petitioner.

Tamara A. Barney and Nathan E. Frommer for the respondent.

HADLEY, P.J. The appellant, E.A., appeals from an order denying his motion to dismiss a petition to commit him to a mental health facility pursuant to G.L. c. 123, §§ 7 and 8. The order of commitment that issued has expired, and E.A. has been discharged, making this a moot case. Nonetheless, because the issues presented here are capable of repetition and involve "a statute which permits the Commonwealth to restrict an individual's liberty [and thus] is a matter of public importance," we exercise our discretion and will decide the matter. Hashimi v. Kalil, 388 Mass. 607, 609 (1983). After considering the record and the applicable Massachusetts law, we affirm the denial of the motion to dismiss. The relevant undisputed facts and procedural history are as follows.

On or before February 4, 2016, E.A., who suffers from chronic schizophrenia, was admitted to a hospital for medical reasons. On February 4, 2016, a physician applied for E.A.'s temporary involuntary admission to the University of Massachusetts Psychiatric Treatment and Recovery Center (the "Facility") under G.L. c. 123, § 12(a). Based on his examination of E.A., that physician believed that E.A. required hospitalization so as to avoid the likelihood of serious harm by reason of mental illness. A physician at the Facility then examined E.A. and found that he was at high risk for self-harm and needed psychiatric hospitalization.

Pursuant to G.L. c. 123, § 12(c), E.A. was given the opportunity to apply for voluntary admission under G.L. c. 123, § 10. E.A. completed an application for voluntary admission, and the physician at the Facility approved the application. The completed application included the physician's determination that E.A. met all criteria for this admission. E.A. was then admitted to the Facility on a conditional voluntary basis. The admitting physician, however, noted in his record of an examination he conducted on the same date that E.A. had no understanding as to why he was admitted.

One week later, on February 11, 2016, the Facility filed a petition in the Worcester District Court to commit E.A. pursuant to G.L. c. 123, §§ 7 and 8. On February 16, 2016,

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E.A., through counsel, filed a motion to dismiss the petition and for an order for his immediate discharge.

In the motion to dismiss, E.A. noted that G.L. c. 123, § 11 provides that a psychiatric facility may not accept an application for conditional voluntary admission if the person lacks the capacity to understand that: he is agreeing to stay in the facility; he is agreeing to accept treatment; he must provide the facility with three days written advance notice of his intention to leave; and the facility may hold him if it petitions for an extended commitment. Based on his lack of understanding, as documented in the February 4, 2016 medical record, E.A. asserted that his application for conditional voluntary admission should not have been accepted. E.A. also asserted that the only lawful mechanism by which the Facility could have held him was an involuntary three-day commitment made pursuant to G.L. c. 123, § 12(b). Under G.L. c. 123, § 12(d), persons committed under that statute must be discharged at the end of three days unless within those three days the superintendent of a facility applies for a commitment under §§ 7 and 8 (or the person remains on a voluntary basis). As no such petition was filed within the three-day period, E.A. asserted that he had to be discharged.

On February 17, 2016, a judge in the Worcester District Court found that the Facility had not demonstrated that E.A. voluntarily admitted himself, and he allowed E.A.'s motion to dismiss the voluntary admission and for immediate discharge. On that same day, the Facility learned of the judge's order, and the physician who had been treating E.A. prepared written discharge instructions. In his instructions, he stated that E.A. was confused and disorganized; was unable to care for himself; and was still in need of hospitalization. Under the heading of "Follow Up Appointments," the physician indicated that E.A. was to be evaluated at the Community Healthlink Clinic, an outpatient clinic across the street from the Facility, to determine whether he needed to be hospitalized pursuant to G.L. c. 123, § 12(a). Finally, the discharge instructions advised E.A., "You were discharged by the court with the understanding that you would be reevaluated for admission and arrangements were made for you to be evaluated by the local crisis team."

E.A. refused to sign the discharge instructions. The physician then directed the Facility's security personnel to escort E.A. out of the locked psychiatric treatment unit where E.A. had been held since February 4, 2016 and into a vestibule area that was not part of the unit, but was on the same floor in the hospital, and from which one could not exit without a key. On the physician's order, E.A. was not given a key, and he remained in the vestibule area with security personnel until a licensed clinical social worker who had treated E.A. during his conditional voluntary admission to the Facility arrived. The security officer left, and the social worker brought E.A. back into the locked unit to gather his belongings. After E.A. gathered his belongings, the social worker and another staff member at the Facility escorted E.A. across the street to the clinic for an evaluation.

At the same time, a petition to commit E.A. under G.L. c. 123, § 12(a) was being prepared by the physician at the Facility. Fifteen minutes after the order of dismissal and discharge was received by the Facility, a § 12(a) petition was signed by the physician for E.A.'s evaluation at Community Healthlink Clinic.

A social worker at Community Healthlink Clinic examined E.A., signed an application pursuant to G.L. c. 123, § 12(a) for his hospitalization at the Facility, and

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after examination at the Facility, E.A. was admitted under § 12(b). After holding E.A. for two additional days, on February 19, 2016, the Facility filed a second petition to commit E.A. pursuant to G.L. c. 123, §§ 7 and 8. On February 23, 2016, E.A. then filed a second motion to dismiss the petition and for his immediate discharge, asserting that the restraint on his liberty following the February 17 judicial order for dismissal and immediate discharge rendered that order illusory. On February 24, a hearing on E.A.'s motion was held before a different District Court judge, but it was not completed, and the matter was continued to March 9.

On March 9, 2016, the second judge noted that the first order for dismissal and discharge was not based on a determination that E.A. was not in need of hospitalization, but was based on a procedural defect. He found that pursuant to the first judge's order, E.A. was discharged on the original G.L. c. 123, §§ 7 and 8 petition, and was immediately held pursuant to a verbal order of the admitting physician under G.L. c. 123, § 12 until the physician's order of commitment could be reduced to writing. Ultimately, the judge determined that E.A. had been lawfully restrained, and he denied E.A.'s second motion to dismiss. Following a subsequent evidentiary hearing, the judge ordered E.A. committed for up to six months pursuant to G.L. c. 123, §§ 7 and 8. This appeal followed.

E.A. relies primarily on two decisions of the Supreme Judicial Court in support of his argument that his second motion to dismiss should have been allowed, Hashimi v. Kalil, 388 Mass. 607 (1983) and Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777 (2008).

In Hashimi, a psychiatrist at a hospital where the respondent had been committed filed a petition to commit the respondent for an additional year pursuant to G.L. c. 123, §§ 7 and 8. A District Court judge scheduled a hearing on the petition to take place fifteen days later. On the day of the hearing, the respondent moved to dismiss the petition, but the motion was denied and the hearing was continued for one week, over the respondent's objection. On the second hearing date, the respondent filed another motion to dismiss the petition on the ground that he had been denied his statutory right to have a hearing within fourteen days of the filing of the petition for commitment. The judge denied the motion, found that commitment was warranted, and entered an order for civil commitment for up to one year. Although the judge recognized that the hearing was not held within fourteen days as required by the statute, he believed that the requirement was not jurisdictional in nature. Id.

On appeal, the Court stated that the language of G.L. c. 123, § 7(c) is clear and unambiguous and requires that the hearing shall be commenced within fourteen days of filing the petition, unless a delay is requested by the person who is the subject of the commitment proceedings. The Court noted that the statute "provides a mechanism for a restraint on an individual's personal liberty" and affirmed a decision and order of the Appellate Division reversing the order of the District Court and ordering the petition for commitment dismissed. Id. at 610.

We do not find this decision dispositive here. Unlike the respondent in Hashimi, in this instance E.A. was provided with an opportunity to appear before a District Court judge within the time frame required by the applicable regulation that addresses voluntary commitments. That judge found that the Facility had not established that E.A.'s admission was voluntary and ordered dismissal. In short, the regulatory

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mechanism for the timely resolution of E.A.'s challenge to his initial commitment was followed. [Note 3]

In Magrini, the respondent was involuntarily restrained and temporarily committed to the psychiatric unit of a hospital pursuant to G.L. c. 123, § 12(b). The hospital filed a petition under G.L. c. 123, §§ 7 and 8 for his continued involuntary commitment for six months. The respondent moved to dismiss the petition on the ground that the hospital had not filed the petition within three business days after his admission as required by statute. The District Court allowed the motion and ordered him discharged. Id. at 781.

On receiving the court's order of discharge, the hospital restrained the respondent and admitted him a second time pursuant to G.L. c. 123, § 12 (a) and (b). The petition for commitment was signed by the attending psychiatrist fifteen minutes before the notice of discharge. During this time, the respondent remained in a locked psychiatric unit. The respondent's attorney filed a request for an emergency hearing pursuant to G.L. c. 123, § 12(b). The judge who had acted on the original motion to dismiss denied the respondent's request for an emergency hearing, and the respondent filed an appeal from the judge's denial of his request. Id. at 781-782.

The Court found that the hospital never complied with the original order, as it continued to confine the respondent against his will in a locked psychiatric unit. It determined that the respondent's request for an emergency hearing demonstrated a proper basis of a misuse or abuse contemplated under G.L. c. 123, § 12(b) to warrant an emergency hearing, and stated that the obligation to hold an emergency hearing is mandatory. The Court also stated that the hospital's conduct of effectuating a second § 12(b) commitment rendered the first order directing the defendant's discharge illusory and caused the defendant to be involuntarily confined for eleven days without a hearing, depriving him of his statutory rights, including his right to be discharged in accordance with a court order. Ultimately, the order of the District Court denying the defendant's request for an emergency hearing was vacated. Id. at 784-785 & n.14.

E.A.'s circumstances are distinguishable from those addressed in Magrini. Both cases involve an initial order of dismissal and discharge. In this case, however, E.A. was formally discharged, albeit for only a short time. In addition, the procedure required to recommit E.A. pursuant to G.L. c. 123, § 12 began after he was discharged, not before, as was the case in Magrini.

Despite these differences, E.A. argues that the Facility's actions still rendered his discharge illusory because he did not actually reenter the community, but remained in the care of a social worker and a Facility employee when he left the locked psychiatric treatment unit. To state the issue concisely, E.A. contends that, pursuant to Magrini, regardless of a patient's mental illness and any level of risk associated with his condition, once a judge orders a patient discharged, the medical record must show that the patient has been discharged; he must leave the locked unit; and

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he must be released into the community without any restriction for some undefined period of time.

In a footnote in Magrini, however, the Court stated that even if the hospital's actions rendered the District Court order of discharge illusory, "This is not to say that a hospital could never recommit a person on a temporary basis. The statutory scheme does not prohibit such action, but that issue is not before us." Id. at 784 n.14. This statement suggests that the Supreme Judicial Court recognized the danger presented in absolutely prohibiting a physician from temporarily recommitting a patient he or she diagnosed as suffering from a mental illness and whose failure to hospitalize, in the opinion of the physician, would create a likelihood of serious harm. It also suggests that the Court appreciates the often difficult balance that must be struck between protecting the sometimes competing interests of a patient's individual liberty and safety.

In this case, we find that the Facility complied with the court's order. As noted above, the initial voluntary commitment ended, and the medical record reflects that E.A. was discharged as ordered. He was removed from the locked psychiatric unit and was seen by another provider, and then he was temporarily recommitted. To require more, specifically to require the Facility not only to discharge E.A. formally but also to compel it to leave E.A. to his own devices in the community for some undefined period of time without treatment, would have needlessly created a risk to E.A. and/or the community.

For these reasons, the decision to deny E.A.'s second motion to dismiss the petition for commitment is affirmed.


[Note 1] The Honorable David P. Despotopulos participated in the hearing of this appeal, but completed his Appellate Division service prior to the issuance of this opinion.

[Note 2] The Honorable Paul L. McGill recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 3] "If a patient is on voluntary or conditional voluntary admission status, and the patient is believed no longer to be competent, and the patient remains in need of continued hospitalization, then the facility director shall take reasonable steps to obtain alternate authority for continued hospitalization either by seeking an order of commitment pursuant to M.G.L. c. 123, §§ 7 and 8, or a guardianship with authority to admit the ward to a psychiatric facility." 104 Code Mass. Regs. § 27:11(4)(a).