IN THE MATTER OF K.P.

FLYNN, J. K.P. is appealing an order of the Worcester District Court entered on December 10, 2015, committing K.P. pursuant to G.L.c. 123, §16(b) to the Worcester Recovery Center and Hospital ("WRCH"), a Massachusetts Department of Mental Health facility, for up to six months.

On October 19, 2015, K.P. was arraigned in the Haverhill District Court on charges of violation of an abuse prevention order, trespass, and operating a motor vehicle with a suspended license; and, also on that date, the court removed an outstanding warrant on another matter of domestic assault and battery and destruction of property. Further, on October 19, 2015, the Haverhill District Court issued an order pursuant to G.L.c. 123, §15(b), committing K.P. to WRCH for evaluation of her competence to stand trial and her criminal responsibility. On November 13, 2015, K.P. was found not competent to stand trial by the Haverhill District Court, and immediately WRCH filed a petition to commit K.P. pursuant to the provisions of G.L.c. 123, §16(b). That petition alleged that K.P. was dangerous by reason of her mental illness and consequently posed a risk of harm to others. WRCH also filed a motion to change venue of the §16(b) hearing from the Haverhill District Court to the Worcester District Court. That motion was allowed, and the matter was set for hearing on November 25, 2015 at the WRCH sitting of the Worcester District Court. [Note 1] On November 25, 2015, the Worcester District Court commenced the hearing on the §16(b) commitment petition. After one witness was sworn and testimony given, the trial court recessed the hearing and continued the matter for further hearing on December 2, 2015.

On December 2, 2015, further hearing was held before a different judge who, after hearing and argument, took the matter under advisement. On December 10, 2015,

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the trial court issued an order committing K.P. to WRCH for a period not to exceed six months. On December 16, 2015, K.P. filed a notice of appeal, arguing that the trial court erred in denying her motion to dismiss on the ground that the court failed to adhere strictly to the time requirement for commencing a hearing under G.L.c. 123, §7(c). We agree.

1. Avanti Sadasivan, Ph.D. ("Sadasivan"), a post-doctoral fellow employed by the University of Massachusetts to conduct forensic evaluations at WRCH, was assigned to perform the §15(b) evaluation. Dr. Sadasivan was a candidate to become a "Designated Forensic Professional" and, therefore, was under supervision in her position by Denise Mumley, Ph.D. ("Mumley"), associate director of the mobile forensic evaluation service at WRCH. Dr. Sadasivan completed her evaluation as to K.P.'s competency to stand trial and recommended filing a petition to commit K.P. pursuant to G.L.c. 123, §16(b) if K.P. was found incompetent. A petition pursuant G.L.c. 123, §16(b) for commitment was filed on November 13, 2015, and scheduled for hearing on November 25, 2015.

Prior to the scheduled hearing date of November 25, 2015, WRCH's counsel became aware that Dr. Sadasivan had an obligation on November 25 that could not be rescheduled and, therefore, would be unavailable to testify on that date on the §16(b) petition she initiated. WRCH's counsel contacted K.P.'s counsel and requested her assent to a continuance; however, K.P.'s counsel refused such assent. Under the provisions of G.L.c. 123, §7(c), a hearing on the §16(b) petition "shall be commenced within 14 days of the filing of the petition." To comply with the statutory requirements to the §16(b) petition, a hearing had to be commenced by November 27, 2015. Consequently, on November 25, 2015, a hearing was commenced before the Worcester District Court. After describing to the trial court the immediate unavailability of Dr. Sadasivan, WRCH's counsel presented Dr. Sadasivan's supervisor, Dr. Mumley, to offer testimony to the court concerning the instant matter. Dr. Mumley was sworn and gave testimony regarding her qualifications, her relationship to Dr. Sadasivan, and her involvement with K.P.'s treatment and evaluation. Dr. Mumley was aware of KP. because of her supervision of Dr. Sadasivan during the §15(b) forensic evaluation. She testified that she was aware of the criminal charges that brought K.P. to WRCH, and that she had reviewed the documents that accompanied her from the Haverhill District Court, i.e., the police report, the §15 evaluation, the criminal complaint, and other paperwork. She further testified to K.P.'s recent presence at her mother's house knocking on the door in violation of her mother's active restraining order. Dr. Mumley indicated that she was supervising Dr. Sadasivan and was aware that Dr. Sadasivan had conducted several interviews with K.P. during the forensic evaluation. She indicated that she had very closely reviewed the §15(b) evaluation report that Dr. Sadasivan had prepared. She testified that she was aware that Dr. Sadasivan had also conducted interviews with collateral sources in the process of her forensic evaluation. At this point in the hearing, WRCH's counsel indicated that she had no more questions for Dr. Mumley and requested that further testimony from Dr. Sadasivan be scheduled for the following Wednesday, December 2, 2015. After cross-examination of Dr. Mumley by K.P.'s counsel and over her objection for a recess and continuance, the trial court agreed to WRCH's counsel's request.

On December 2, 2015, further hearing was held in this matter at WRCH, before a different judge. After waiving her client's presence at the hearing, K.P.'s counsel renewed her objection to the continued hearing in this matter. She also objected to

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the fact that a second judge, and not the original first judge, was present to conduct the hearing. With respect to a different judge hearing the matter, WRCH's counsel pointed out to the second judge that she had obtained a recording of the prior proceeding and that Dr. Mumley, as well as Dr. Sadasivan, was now present to give testimony if necessary.

Counsel for WRCH acknowledged to the court that since there had been no prior agreement to continue the case, the case could not have been continued earlier, so she asked that the matter be commenced with the testimony of Dr. Mumley. Counsel represented to the new trial judge that Dr. Mumley's testimony on November 25, 2015 to the prior trial judge focused on her supervision of K.P.'s assigned evaluator and her familiarity with the actual facts of the case through her supervision of Dr. Sadasivan. WRCH's counsel pointed out that Dr. Mumley's testimony was necessarily limited because if Dr. Mumley had attempted to go further into the factual evidence in the matter, such testimony would have been, arguably, objectionable hearsay, given that the basis of Dr. Mumley's knowledge was simply her review of the §15(b) evaluation report and her conversations with Dr. Sadasivan.

After listening to these arguments and noting K.P.'s counsel's objection, the trial court, treating those objections as a motion to dismiss based on the prior hearing and recess to a new date, denied the motion stating, based on the offer of proof:

Attorney Wood, your objection is noted, I'll treat it as a renewed motion to dismiss based on what happened last week, is denied. I think Dr. Mumley's - while I'm sensitive to the issue of a potential end run, if you will, around 7(c), I think Dr. Mumley had sufficient ties to the case, to the patient to be an appropriate witness, at least for a portion of the hearing.

K.P.'s counsel again objected to this matter being heard by this judge as "the hearing was commenced under another judge." The trial court decided to go ahead with the hearing and delay a decision until she had the opportunity to hear the recording of the prior hearing. On December 10, 2015, the court issued an order of commitment, effectively denying the motion to dismiss.

2. The order of commitment entered on December 10, 2015 has now expired. Therefore, the case is moot. However, 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," Hashimi v. Kalil, 388 Mass. 607, 609 (1983), we exercise our discretion and decide the matter.

In Matter of Molina, 2007 Mass. App. Div. 21, the Appellate Division overturned a trial court's allowance of a motion for a continuance of the trial of a G.L.c. 123, §§7 and 8 commitment matter where petitioner's counsel was unavailable due to illness. That motion was allowed over the objection of respondent's counsel. The Division found that this was error in that the trial court was not authorized to continue the commitment hearing past the deadline prescribed by G.L.c. 123, §7(c). Id. at 22.

Unlike the petitioner in Matter of Molina, WRCH's counsel did not ask the court for a continuance after a request to opposing counsel was denied. Rather, counsel looked to G.L.c. 123, §7(c) and requested that the trial court commence the hearing with a witness who had some familiarity with the matter at hand. The witness provided the trial court with testimony of historical information of how K.P. came to be a subject of a forensic

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exam and ultimately a commitment petition at WRCH and outlined what Dr. Sadasivan undertook to complete her work.

The conduct of this hearing could be argued to have complied with the Division's directions as to what would be required to "commence" a hearing pursuant to G.L.c. 123, §7(c). In Melrose-Wakefield Hosp. v. H.S., 2010 Mass. App. Div. 247, the Division indicated that a witness would need to be sworn or some evidence would need to be taken in order to be "commenced" within the meaning of §7(c). Id. at 250. The instant matter seems to comply with the directive in that case. The case was called by the clerk, a witness familiar with the case was sworn, and the witness gave testimony relevant to the matter before the court. This procedure was also in compliance with a literal reading of Standard 3:04 of the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011), which suggests:

For purposes of these time limits, a hearing is not 'commenced' when the court and parties gather and the case is called, but only when a witness is sworn or some evidence taken. The statute does not require that the hearing be concluded within the specified five or 14 days.

K.P. argues that what happened in this case is essentially form over substance, asserting that the Standard does not envision a situation where the sworn witness gives immaterial testimony. A review of the testimony given by Dr. Mumley does not demonstrate clearly that her testimony was relevant, material, or necessary. Dr. Mumley did not provide any evaluations or opinions. Essentially, Dr. Mumley merely recited what Dr. Sadasivan undertook in preparation for the prior §15(b) competency exam. Dr. Mumley essentially outlined exactly what Dr. Sadasivan would testify to herself. The proceedings in the instant case are in contrast to the attempt to "commence" the matter in Melrose-Wakefield Hosp. v. H.S. In that case, while the case was called, it was not clear whether a witness had been sworn, and no witness presented testimony. Id. at 247, 250.

It was Dr. Sadasivan who met with K.P. and to whom K.P. repeated her threats against her family. And ultimately, even counsel for WRCH acknowledged the nature of Dr. Mumley's testimony was not substantive. WRCH's counsel acknowledged that no substantive evidence had been taken on November 25, 2015, and that "[t]he hearing was commenced, but it was primarily for the purpose of the fact that the primary witness who had all the information relative to the commitment was unavailable due to a previously scheduled engagement." Counsel acknowledged that Dr. Mumley's testimony "wasn't anything actually substantive on the record." While this case may have been "commenced" within the meaning of G.L.c. 123 and Melrose-Wakefield Hosp. v. H.S., it was a formal commencement but not one of substance and violated the purpose and spirit of G.L.c. 123, §7(c). The Standards and the case law do not envision a situation where a sworn witness gives immaterial or nonsubstantive or potentially cumulative testimony merely to meet a time requirement. [Note 2]

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It should be noted that the required result in this case was not obviously presented in the pace of the litigation, but only fully reveals itself upon a considered after-the-fact review. It is only upon seeing and comparing all of the evidence presented and reflecting upon the procedural posture of the case, combined with the timing and the nature of the presentation of witnesses, does it become clear that the hospital's first witness was essentially unnecessary and merely presented to attempt to comply with statutory requirements so as to avoid dismissal and secure a date for the necessary but unavailable witness.

These types of cases are extremely difficult because they present intense competing interests. On the one hand, individual freedom and personal liberty are at stake; and, on the other hand, public safety or the personal safety of the individuals themselves is at risk. By definition, it is alleged these patients are dangers to themselves or to others, yet if their hearings are not held according to the strict statutory time lines, the cases must be dismissed. This dichotomy can put decision makers in very difficult, if not stressful, situations. Consciously or unconsciously, we may lean toward what we subjectively assume may be in the best interests of the patients or the community. This is an area where safety and freedom collide, maybe forcefully, but when the enabling statutes set forth unmistakable direction as to the time requirements, we are not free to ignore them or to avoid their requirements by balancing countervailing considerations and approving alternatives that may seem to serve a greater purpose.

Accordingly, the motion to dismiss should have been allowed. The order of commitment is vacated.