2017 Mass. App. Div. 157

August 18, 2017 - October 31, 2017

Appellate Division Northern District

Court Below: District Court, Cambridge Division

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

Diane M. Geraghty Hall for the petitioner.

Roberta Mann Driscoll for the respondent.

FLYNN, J. This is an appeal from an order of the District Court authorizing commitment of the appellant, D.S., to McLean Hospital (the "hospital") pursuant to G.L. c. 123, §§ 7 and 8. The hospital filed a petition for civil commitment of D.S. on January 11, 2017. After hearing on January 19, 2017, the trial court granted the petition for commitment. On January 26, 2017, D.S. filed a notice of appeal pursuant to G.L. c. 123, § 9(a), challenging the sufficiency of the evidence for the finding of mental illness and the ultimate order of commitment.

On February 1, 2017, D.S. was discharged from the hospital.

At the time of his hospitalization on January 7, 2017, D.S. was twenty-four years old. He was involuntarily admitted to the hospital after setting two fires in his home, one burning a Bible and another attempting to melt copper in the fireplace. One filled the house with smoke while his thirteen year old sister was in the home at the time. Petitions for civil commitment and authorization for treatment were filed on January 11, 2017, and hearings were held on January 19, 2017. At the hearing on the commitment petition, Dr. Elizabeth Liebson ("Liebson"), the attending psychiatrist and the only witness providing testimony at the hearing for the hospital, testified on evaluation that she found D.S. to have difficulty putting together a coherent narrative of

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recent events, to have vague speech, and to be guarded about psychiatric symptoms with no insight into his psychiatric illness. She indicated he expressed a belief that he could heal others and had to be told not to touch other patients. His speech was very repetitive, and he was often mute. He was also found with a telephone cord in his bag, which had been missing from one of the telephones on the unit. He was unable to give an explanation as to why he took the cord and what his intentions were with the cord. He was also unable to explain why he set the fires but did acknowledge poor judgment in doing so and claimed he would not do it again.

Dr. Liebson testified she was of the opinion that D.S. suffered from a mental illness and had diagnosed him with a psychotic illness that she labeled as schizophreniform disorder. She described symptoms of bizarre behavior, disordered thinking, delusions, and possibly hallucinations.

Dr. Liebson was not concerned about risk of harm by reason of suicide or homicide. She was concerned, however, about his judgment being impaired as evidenced by lighting fires at home and his behaviors on the unit, including taking and hiding the telephone cord. She further opined on several occasions during the hearing that his impaired judgment would put him at risk of harm outside of the hospital given that his condition had not changed during the course of the hospitalization. Dr. Liebson stated the family was not sure it would take him back home currently, as family members felt unsafe with him and their other children in the home. She thought he would be homeless if he left the hospital.

D.S. himself testified that setting the Bible on fire in his home was "a stupid and dangerous thing to do." He claimed that he was not a danger to himself or others, and he stated that he was mentally healthy. He further explained that he did not want to throw away his torn Bible and tried to get rid of it in the most ethical way he could and he realizes that it was a stupid thing to do.

"[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 134 (1989), quoting Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). "The general rule is that courts ordinarily will not decide moot questions." Norwood Hosp. v. Munoz, 409 Mass. 116, 121 (1991). Courts have considered moot cases only when the matter is "capable of repetition, yet evading review." Kane v. Commissioner of Correction, 395 Mass. 1002 (1985), quoting Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984). See Globe Newspaper Co., supra.

D.S. has been discharged from the hospital and is no longer subject to the orders of the District Court. As such, he no longer has a stake in the outcome of this case, and the matter is moot.

Cases involving commitment and treatment of mentally ill persons are generally considered matters of public importance and are capable of repetition and evading review. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 782 (2008); Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000). However, this finding has not been interpreted to mean that all cases involving issues on mental illness are never moot. Matter of L.C., 2015 Mass. App. Div. 98, 100. This Division has stated that issues of legal sufficiency of the evidence have been found to be unique to particular cases, unlikely to arise in similar circumstances, and would have little or no precedential value and therefore have been deemed moot. Matter of K.M., 2017 Mass. App. Div. 93,

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94; Matter of L.C., supra at 100-101; In Re: Commitment of K.R., 2012 Mass. App. Div. 229; Bayridge Hosp. v. Jackson, 2010 Mass. App. Div. 12.

D.S. has not stated how the facts present in this case are not unique to this matter and therefore are capable of repetition and merit review despite it being moot. He is merely disagreeing with the sufficiency of the evidence and the ultimate findings of the court as they apply to D.S.

D.S. further argues, however, that in the absence of written findings of fact and conclusions of law, it is impossible to ascertain whether the trial judge applied the requisite standard of proof and how she concluded that the evidence presented met the standard. There are no statutory mandates for a trial judge hearing a commitment matter to issue written findings, nor has D.S. specified any other legal requirement for the trial judge to do so. The trial judge in the instant matter clearly relied on the opinion testimony of the attending psychiatrist and issued the order based on that reliance. The credibility and weight of the evidence are certainly for the fact finder. Demoulas v. Demoulas, 428 Mass. 555, 565 (1998).

It should be noted that the evidence presented by the hospital in the instant matter was clearly sufficient to support the court's order of commitment. Dr. Liebson stated that D.S. suffered from a mental illness; she indicated that he had a psychotic illness and diagnosed him with a schizophreniform disorder. She indicated that he had difficulty putting together a coherent narrative about recent events, his speech was vague, he was guarded, had no insight into his mental illness, and had delusional thoughts about being able to heal others. She testified that she was clearly concerned about his judgment being impaired, affecting his ability to keep himself safe outside of the hospital. She specifically discussed her concerns with the fires prior to the hospital, his disordered thinking, and behaviors on the unit, including taking and hiding the telephone cord. She also testified that there was no less restrictive alternative setting available or appropriate for him and that his family did not feel safe with him at home at this time. She believed that he would be homeless if he left the hospital.

There was no evidence from any other clinical personnel to contradict the doctor's testimony on the presence of a mental illness and an imminent risk of harm. The evidence was sufficient to allow the trial court to make the necessary findings allowing the petition for commitment.

The appeal is dismissed as moot.