2017 Mass. App. Div. 173

July 21, 2017 - November 8, 2017

Appellate Division Southern District

Court Below: District Court, Dedham Division

Present: Hand, P.J., Finnerty & Kirkman, JJ.

Richard F. Ready for the petitioner.

Melanie S. Lewis for the respondent.

KIRKMAN, J. On July 7, 2016, Westwood Lodge Hospital filed a petition for commitment of the respondent-appellant pursuant to G.L. c. 123, §§ 7 and 8. A hearing was held on July 27, 2016. The next day, the court issued written findings and an order for commitment. The court found the appellant incapable of making informed medical decisions and allowed for the administration of antipsychotic medication pursuant to G.L. c. 123, § 8B. On August 4, 2016, the appellant filed a notice of appeal. He was discharged from the hospital the following week on August 10, 2016.

The appellant complains that his legal counsel was ineffective by not objecting to the admission of hearsay relied upon by the court in making its findings. He also asserts there was insufficient evidence supporting the court's orders for involuntary commitment and the administration of antipsychotic medication. [Note 1] The hospital claims otherwise, but, more to the point, argues that the issues raised by the appellant should not be considered because they are moot. The hospital's argument has some merit.

In Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101 (2000), the Supreme Judicial Court set the standard by stating:

"Litigation ordinarily is considered moot when the party claiming to be aggrieved ceases to have a personal stake in its outcome. . . . Nonetheless, it 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. Issues involving the commitment and treatment of mentally ill persons are generally considered matters of public importance . . . [and] are classic examples of issues that are capable of repetition, yet evading review" (citations and internal quotations omitted).

Id. at 103.

In Baker, the Court was required to interpret the statutory scheme under which the superintendent of the hospital had wrongfully committed and held the appellant. Specifically, the Court was required to read Sections 7, 8, and 11 of Chapter 123

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together because of the circumstances of the appellant who initially entered the hospital voluntarily. Id. at 104-105. Without the benefit of such exegesis, there was a possibility that the statute would be misread in the future with regard to similarly situated patients. See also Hashimi v. Kalil, 388 Mass. 607, 609 (1983) (interpretation of statute establishing time within which hearing under G.L. c. 123, § 7(c) should be held, necessary to avoid future error). In the present case, there is no such claim.

Here, the appellant does not claim any misconstruction of the statutes governing his commitment that could be repeated as a matter of policy or practice. Rather, he insists that the District Court judge impermissibly (without objection) allowed inadmissible hearsay, and then relied on it in rendering a decision. [Note 2] The evidence that is challenged involved the appellant's delusional behavior, as reported by his daughter to the doctor who testified. Coupled with the admissions of such behavior by the appellant to the doctor, the latter offered his opinion that the appellant suffered from a mental illness, that discharge would likely lead to serious harm, and there was no less restrictive facility for him. The judge credited the opinion in finding that the statutory criteria had been met. But the evidence, which included more than the challenged hearsay, supporting the judge's decision is completely unique to this case, not warranting review by this Division. See Matter of L.C., 2015 Mass. App. Div. 98, 100-101; In re: Commitment of K.R., 2012 Mass. App. Div. 229. Cf. Guardianship of Weedon, 409 Mass. 196, 197 (1991) (appellant's prior history of involuntary hospitalizations suggest likelihood of repetition). Therefore, we exercise our discretion in declining to address more fully the merits of this appeal.

Appeal dismissed.


[Note 1] Prior to the argument of this case, the appellant filed a motion to amend his brief to correct a misstatement of the law. The motion is allowed.

[Note 2] As referenced above, the appellant also asserts that his counsel was ineffective for not objecting to the hearsay at issue. But given that the expert testified to an opinion based, in part, on hearsay ordinarily relied upon by experts in his field, it is understandable why there was no objection. See Commonwealth v. Markvart, 437 Mass. 331, 336-338 (2002); Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986).