2017 Mass. App. Div. 185

April 14, 2017 - December 14, 2017

Appellate Division Southern District

Court Below: District Court, Plymouth Division

Present: Hand, P.J., Welch & Finigan, JJ.

Michael T. Porter for the petitioner.

Devorah A. Borenstein for the respondent.

HAND, P.J. This case arises out of a series of mental health commitment proceedings involving the appellant, D.L. D.L. was admitted to Pembroke Hospital ("Pembroke") for mental health evaluation pursuant to G.L. c. 123, § 12 on December 16, 2015. The following day, Pembroke petitioned timely for D.L.'s involuntary commitment and treatment under G.L. c. 123, §§ 7 and 8 on the grounds that D.L. suffered from a qualifying mental illness and that as a result of his disorder, he posed both a substantial risk to himself, evidenced by "multiple suicidal statements," and a very substantial risk of injury to himself based on "not eating or drinking for several days." After hearing, the court denied Pembroke's petition at approximately 4:00 P.M. on December 30, 2015, finding that D.L. had been eating and drinking something. [Note 1]

Immediately following denial of the petition, and in keeping with its obligation to engage in discharge planning for its patients, see 104 Code Mass. Regs. § 27.09(1)(a) & (b) ("A facility shall make every effort to avoid discharge to a shelter or the street. The facility shall take steps to identify and offer alternative options to a patient and shall document such measures . . . ."), Pembroke contacted two members of D.L.'s family to arrange a place for D.L. to go: neither D.L.'s grandmother, with whom he had lived before his temporary commitment, nor his aunt was willing to take D.L. to live with her, based on their concerns about D.L.'s safety in the community. Pembroke also tried, unsuccessfully, to reach D.L.'s father. D.L.'s attending psychiatrist noted in the medical record that he remained concerned for D.L.'s safety and that he continued to believe that D.L.'s insight and judgment were impaired by his psychotic condition such that D.L. was unable to take care of himself. Pembroke determined that D.L. could not safely be discharged to a shelter, and had apparently exhausted the known family resources willing to provide D.L. with safe housing on his release. Accordingly, at 5:40 P.M. on December 30, 2015, approximately ninety minutes after the court's denial of Pembroke's petition under G.L. c. 123, §§ 7 and 8, Pembroke applied for D.L.'s temporary commitment to South Shore Hospital ("South Shore") under § 12(a). Pembroke released D.L. to be transferred by ambulance directly to South Shore pursuant to § 12(a). [Note 2]

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In keeping with the procedure outlined in G.L. c. 123, § 12(a), D.L.'s attending psychiatrist and a member of Pembroke's administration telephoned South Shore before D.L. was transported from Pembroke. [Note 3] Once at South Shore, D.L. was evaluated by members of South Shore's clinical staff, who, according to the medical record, [Note 4] had no prior experience with D.L. South Shore ultimately authorized D.L.'s temporary involuntary hospitalization at Pembroke under § 12(b).

D.L. was readmitted to Pembroke on December 31, 2015. On January 6, 2016, Pembroke filed a new petition for D.L.'s commitment pursuant to G.L. c. 123, §§ 7 and

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8. On the scheduled hearing date, January 13, 2016, D.L. moved to dismiss the petition on the ground that the December 30, 2015 commitment under § 12(a) was improper. Specifically, D.L. argued that despite the court's denial of Pembroke's petition under §§ 7 and 8 on December 30, 2015, Pembroke had failed to actually discharge D.L. as it was required to do, and that D.L.'s discharge was merely "illusory." After hearing, a different judge denied the motion to dismiss, went forward with the hearing on the merits of Pembroke's petition under §§ 7 and 8, and ultimately ordered D.L.'s involuntary commitment to Pembroke. D.L. appeals his January 13, 2016 commitment to Pembroke on the grounds that (1) his discharge from Pembroke on December 30, 2015 was merely an "administrative" discharge, and was an abuse of the admission procedure under G.L. c. 123, § 12(b); and (2) South Shore's authorization of D.L.'s temporary involuntary commitment under § 12(a) and Pembroke's involuntary admission of D.L. under § 12(b) were likewise improper.

D.L. was discharged from his commitment before argument on this appeal. Because we see the issues on appeal here as capable of repetition, we exercise our discretion to consider them. See Matter of L.C., 2015 Mass. App. Div. 98 , 100, citing Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101 , 103 (2000), and Scheibel v. Cohen, 2004 Mass. App. Div. 153 ("It is within the court's discretion to decide issues that are moot where the question is (1) unlikely to obtain appellate review before the question would again be moot, (2) one of public importance, and (3) very likely to arise again in similar circumstances.").

For the reasons below, we affirm the denial of the motion to dismiss and find no abuse of the admission procedure under G.L. c. 123, § 12(b). First, we conclude that where Pembroke had ongoing safety concerns based on D.L.'s mental illness and had learned for the first time after the court's denial of the petition for commitment under §§ 7 and 8 that D.L. no longer had a safe place to live on discharge, Pembroke acted permissibly in discharging D.L. from its facility while simultaneously restraining him to be transported to a different hospital for examination under § 12(a). While we recognize that D.L. did not regain his liberty between the time the court denied Pembroke's petition for commitment under §§ 7 and 8 and the time D.L. was transported to South Shore on the § 12(a) petition, in our view, the discharge was not "illusory," Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777 , 784 (2008), given the fact that D.L. was taken to a separate facility that was required to, and did, conduct its own evaluation of D.L.'s condition. Pembroke's relinquishment of control over D.L. was an actual "discharge" from the original § 12(b) commitment to Pembroke, despite the fact that D.L. was subject to further temporary restraint on a new petition under § 12(a).

We begin by noting that "[t]he statutory scheme [for civil commitment pursuant to G.L. c. 123] does not prohibit" a hospital's temporary recommitment of a discharged patient. Magrini, supra at 784 n.14. Turning to the case law cited by the parties, we find meaningful differences between the facts of this case and the facts of the cases D.L. cites on the issue of "actual" versus "illusory" discharge: Newton-Wellesley Hosp. v. Magrini; Matter of C.D., 2015 Mass. App. Div. 29 ; and Matter of B.F., 2016 Mass. App. Div. 18 . In Magrini, the Supreme Judicial Court held that a hospital abused the admissions procedures under § 12(a) and (b) where, having failed to petition timely for the patient's commitment under §§ 7 and 8, and having held the patient for several days without any valid order authorizing commitment, the hospital first filed a new § 12(a) petition in order to retain the patient for evaluation by its own medical staff,

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and only later discharged the patient from the earlier commitment. Id. at 781-782. The facts of Matter of C.D. are similar: after the patient's initial temporary commitment under § 12(b) had expired, the hospital continued to hold him for several days without authority. Id. at 29. When C.D.'s counsel requested from hospital's counsel the immediate discharge of C.D., the hospital administratively discharged C.D. and immediately readmitted him to its own facility under § 12(a) and (b), and C.D. requested an immediate hearing under § 12(b). Id. In Matter of B.F., the hospital to which B.F. had been committed under § 12(b) missed the filing deadline for its petition under §§ 7 and 8, although the hearing on the late-filed petition was heard within the five-day period permitted for the hearing itself, and without any suggestion that the patient was discharged in the interim. Id. at 19. In each of these cases, the hospital to which the patient had been involuntarily committed missed statutory deadlines, and attempted to use a recommitment as a form of "cure" for those oversights. In each case, the reviewing court found the subsequent commitment orders invalid. See Magrini, supra at 784; Matter of C.D., supra at 31; Matter of B.F., supra at 21.

Our decision in Matter of S.B., 2017 Mass. App. Div. 123 , issued after oral argument in this case, is consistent with our decision here. In Matter of S.B., the patient was involuntarily committed to the hospital under G.L. c. 123, § 12(a) and (b). Id. The hospital missed the filing deadline for its petition for further commitment pursuant to G.L. c. 123, §§ 7 and 8; the court dismissed the petition. Id. Within minutes of that dismissal, the hospital filed a new petition for commitment pursuant to § 12(a) and then under § 12(b). Id. For the purposes of the new commitment order, the hospital moved the patient out of the locked ward in which she had previously been housed and had S.B. examined by a psychiatrist other than her treating doctor, although S.B. never left the hospital during these events. Id. at 123-124. The court denied S.B.'s motion to dismiss the second petition and ordered S.B. committed pursuant to §§ 7 and 8. Id. at 124. Relying on Matter of B.F., we reversed the denial of the motion to dismiss, and vacated the order of commitment, on the grounds that the hospital's actions did not amount to a "discharge" of the patient for the purposes of G.L. c. 123, and that as a result, the court lacked jurisdiction to hear the second petition under §§ 7 and 8. [Note 5] Id. at 125-126.

This case is different from each of these cases in two significant respects: first, Pembroke's G.L. c. 123, § 12(a) petition on December 30, 2015 was made in response to new information obtained after the court's denial of its petition to commit D.L. under §§ 7 and 8, specifically, the fact that D.L. had no safe place to live after his discharge from Pembroke. This factor, which went directly to "the likelihood of serious harm" presented by a failure to hospitalize D.L., see G.L. c. 123, § 12(a) and (b), puts this case on a different footing than the cases discussed above, in which the only trigger for the serial commitment petitions was the hospital's failure to meet the deadlines established under the statutory commitment scheme. Second, the December 30, 2015 petition for temporary commitment was made by Pembroke's staff to another hospital, severing Pembroke's control over D.L., effecting an actual discharge from D.L.'s commitment at Pembroke, and giving D.L. the protection of an independent evaluation

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by a separate medical staff. The fact that Pembroke's staff communicated with South Shore in connection with the December 30, 2015, § 12 petition -- communication which, as we note above, is contemplated and encouraged under c. 123 -- does not lead us to conclude that South Shore or its clinicians abdicated their obligation to use their independent clinical judgment in assessing D.L. once he arrived at South Shore's emergency department. See, e.g., Kelley v. Rossi, 395 Mass. 659 , 662 (1985), citing Pearl v. West End St. Ry., 176 Mass. 177 , 179 (1900) (noting, in context of independent contractor analysis, that although potentially subject to control by supervising doctors, physicians are obligated to use independent judgment in patient care).

Accordingly, we affirm the denial of D.L.'s motion to dismiss the January 6, 2016 petition for commitment under G.L. c. 123, §§ 7 and 8, and find no abuse of the commitment procedure set out in § 12(b).


[Note 1] The record includes only a single page of transcript from the commitment hearing on December 30, 2015. We do not know if or how the suicidal statements identified in the petition for commitment were addressed at the hearing on that petition.

[Note 2] Before signing the § 12(a) application, D.L.'s attending psychiatrist noted these events in D.L.'s medical record, first writing, "I am going to discharge [D.L.] to the nearest ER on a section 12," then striking out the word "discharge" and substituting the word "send." Although D.L. argues that this change demonstrates that D.L. was not "discharged" for the purposes of the statute, we do not give the wording change the same significance.

[Note 3] The communication between Pembroke and South Shore in connection with the G.L. c. 123, § 12(a) petition was of a type contemplated by the statute: "Whenever practicable, prior to transporting [a person subject to a § 12(a) petition for temporary commitment], the applicant shall telephone or otherwise communicate with a facility to describe the circumstances and known clinical history and to determine whether the facility is the proper facility to receive such person and also to give notice of any restraint to be used and to determine whether such restraint is necessary." § 12(a).

[Note 4] We gather this information from the "ESP Adult Comprehensive Assessment" form ("ESP Assessment") completed in connection with D.L.'s evaluation at South Shore on December 30, 2015, and attached to Pembroke's brief as Exhibit 1. After the parties briefed this matter, and before oral argument on the case, D.L. moved to strike Exhibit 1 of Pembroke's brief and all factual assertions based on that exhibit, arguing that Exhibit 1 is a supplemental appendix that Pembroke was not authorized to file without seeking and obtaining this Division's advance permission. Exhibit 1 is a complete copy of the nine-page ESP Assessment. Page one of that document is included in the record appendix incorporated into D.L.'s brief. It is clear from the transcript of the January 13, 2016 hearing on D.L.'s motion to dismiss the then-pending request for commitment under G.L. c. 123, §§ 7 and 8 that the court had reviewed, in addition to the first page of the form, at least page six of that document, and that the court relied on the information included in that document in denying D.L.'s motion to dismiss the petition for commitment. To the extent that the complete copy of the ESP Assessment document constitutes a supplemental appendix, we use our discretion to relieve Pembroke of its obligation to seek advance leave to file it. See Dist./Mun. Cts. R. A. D. A. 2 ("In the interest of expediting decision, or for other good cause shown, the Appellate Division may, except as otherwise provided in Rules 4(c) and 14(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. Such a suspension may be on reasonable terms."); Rule 18(a) ("The fact that parts of the record are not included in the appendix shall not prevent the parties or the Appellate Division from relying on such parts, provided that the Appellate Division may decline to permit the parties to refer to portions of the record omitted from the appendix unless leave be granted prior to argument."). The motion to strike Exhibit 1 is denied.

[Note 5] The issue of jurisdiction is not an obstacle in this case, where Pembroke met the statutory deadlines at each stage of the commitment process.