IN THE MATTER OF K.T.

WELCH, J. On April 15, 2016, a petition for commitment, pursuant to G.L. c. 123, §§ 7 and 8, was filed seeking the commitment of the respondent, K.T., and authorization to administer antipsychotic medication. On April 27, 2016, a hearing was held, and it was ordered that K.T. be committed to the South Coast Behavioral Health facility ("facility") in North Dartmouth, Massachusetts for a period of six months. The bifurcated portion of the hearing regarding the administration of antipsychotic medication was held on May 3, 2016, and the treatment was allowed. [Note 1] From the decision to commit K.T., this appeal was filed, focusing on the allowance of the hospital's motion to amend the petition, after the close of the evidence, to conform to the evidence presented. [Note 2]

The ascribed error is whether K.T. was denied her right to liberty and due process of law guaranteed by the Fourteenth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights when she was civilly committed on a theory that was not alleged in the commitment petition. The second question is whether amending a petition for civil commitment after the close of the evidence to change the theory of commitment as stated in the petition (from dangerousness to the inability to care for oneself) is a violation of one's fundamental due process rights. [Note 3]

On April 15, 2016, Shalini Mansharamani, M.D. ("doctor") filed a petition in the New Bedford District Court seeking commitment of K.T., a twenty-eight year old female, who at that time was a patient in the facility. The petition for commitment sought to have K.T. committed to a Department of Mental Health ("DMH") hospital

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for a period of six months (or until such time as there was not a likelihood of serious harm by reason of mental illness, whichever was less). As referenced in note 2, supra, a preprinted form is utilized by the hospital(s) when seeking commitment of an individual. After the first section of the form, wherein a commitment is requested, the form then sets forth the basis for finding that failing to hospitalize the patient, K.T., would result in serious harm by reason of mental illness.

Although perhaps mechanically tedious, we will review the petition form, both in content and structure, as it has bearing on the manner in which the hearing was conducted and K.T.'s claims of error. The three areas of rationale, which are delineated in the form, in support of the commitment begin with the condition precedent that K.T., the respondent (as entitled in the petition), is mentally ill by reason of a "substantial disorder" within the meaning of DMH Reg. 200.01. The petitioner is to check the box indicating that there is such a mental illness. The form then contains two blank lines for the petitioner to provide an explanation of the type and severity of the mental illness as alleged. In the present case, the mental illness was defined as "Bipolar affective D/O recent mania and psychosis." [Note 4] After the question of whether the patient has a serious mental illness, the form then addresses the next criteria for commitment, whether there is a likelihood of serious harm as a result of the mental illness. A likelihood of serious harm is defined in G.L.c. 123, § 1 as follows:

"'Likelihood of serious harm', (1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community and that reasonable provision for his protection is not available in the community.

The petition for commitment tracks the language of the statute but, significantly, removes the conjunction "or" and, by doing so, requires the petitioner to choose one or more of the three criteria for commitment and explain the basis for the selection. The manner in which the form organizes the choice is to delineate the three statutory bases for a determination of likelihood of serious harm by the letters a, b, and c. [Note 5] Each letter is then accompanied by a box to check and then two lines to allow the petitioner to explain the basis for the particular box that was checked. The form is designed to give specific notice to the patient of the medical basis the petitioner is alleging for commitment. Based upon the expedited nature of the hearing, the liberty interests at stake, and the importance of counsel to prepare adequately for the hearing, it is critical that the "likelihood of serious harm" be pleaded specifically in the petition.

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The doctor seeking the commitment checked the first box, "a," and, by doing so, set forth the specific basis that K.T. was at risk, namely, that K.T. was a risk to herself (suicide). The petitioner wrote in the lines below the checked rationale that K.T. exhibited "[p]oor judgment puts her at risk of living independently." The doctor then checked the next box down, box "b," alleging that K.T. was also a substantial risk of physical harm to others manifested by homicidal or other violent behavior. In the explanation below the checked box "b," the petitioner wrote, "She was yelling at the neighbors x2 recently[.] Has charges/on probation for assaulting mother." The final box, box "c," relating to whether K.T. was unable to care for herself in the community, was not checked and, as such, was not a basis for the commitment. In reviewing the petition, which is akin to a complaint, K.T. was on notice in anticipation of the hearing that the factual issues to be tried were whether she was a harm to herself or to others and not that she lacked the ability to take care of herself in the community.

In the record supplied by K.T., the transcript of the entire hearing was not provided but only the continued cross-examination of the doctor (as it relates to the issue of commitment) and redirect examination by counsel for the hospital. Initially, the cross-examination focused on the issues of danger to others and self. Cross-examination successfully revealed that insofar as K.T. being a danger to herself or others, there was little or no evidence.

Midway through the redirect examination, the attorney for the hospital, responding to comments from the judge, stated, "Your honor, I - it's the hospital's position then - it's more so that - how she meets the harm criteria of the commitment. It's more so the third prong where she'd been unable - we're arguing she'd be unable to protect herself in the community. The history of violent behavior I don't think - I would agree with you, that it - there's probably not enough evidence to make that verdict." The hospital then went on to concede there was no history of abusive or violent behavior by K.T. At this point in the transcript, the judge and the attorney for the hospital have a dialogue wherein the judge confirmed that the stronger argument for the hospital was that K.T. could not take care of herself in the community. In the conversation, the hospital referenced facts that were not adduced during the trial, such as K.T.'s living situation: In the middle of redirect examination of the doctor, the judge started speaking with an unsworn individual, whom the hospital then called as a witness. Robert Sermis ("Sermis"), a mental health technician, recounted in his testimony K.T.'s verbal abuse of other patients. After the direct examination of Sermis by the hospital's attorney, counsel for K.T. then asked to have the doctor recalled in order to complete her cross-examination. After the cross-examination of the doctor, the court went on to opine that K.T. needed to take her medicine and was "staying here 'till she takes her medicine." At this point in the transcript, it appears that the court made its ruling on commitment of K.T., based upon the third prong of inability to care for oneself in the community, which had not been pleaded in the petition. Lodging a timely objection, counsel for K.T. objected on the grounds that the third prong was not pleaded and that there was no evidence on the bases that the hospital brought the petition, danger to self and others, and as such the petition should be dismissed. In response, the hospital argued that it was "just a form" and that the rules of civil procedure allowed amendments to conform to the evidence.

In a rather free-form hearing, which constrains this opinion to the facts of this case alone, the judge allowed the hospital, at the end of the case, to amend the theory of the

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case to conform to the evidence and commit K.T. The issue before us is whether the hospital could move to amend the petition to conform to the evidence adduced at the end of the hearing. A threshold question is whether the rules of civil procedure apply in the context of civil commitment hearings and, in the event that they do, whether an amendment was proper in this case.

As to G.L. c. 123, which governs, among many things, the procedural and substantive rules as to the conduct of civil commitment proceedings, it is silent as to the role of the rules of civil procedure. Rule 81 of the Mass. R. Civ. P., which governs the applicability of the rules of civil procedure, lists ten proceedings to which the rules do not apply; civil commitment hearings are absent from the list. The rules of civil procedure apply to all cases traditionally considered tort, contract, replevin, or equity actions, except small claims. In the Reporter's Notes to Rule 81, it is noted that "[n]o attempt is made to list the many other District Court civil proceedings to which these rules do not apply, such as ... civil commitments." A civil commitment hearing is not a tort, contract, replevin, or an action in equity. We are left with the rules of civil procedure applying in the amorphous language that such application follows the common law. [Note 6]

Although couched in the term of "civil commitment," the procedures, subject matter of the petition, burden of proof, and remedies sought involve fundamental principles of liberty. [Note 7] The petitioner must prove the case beyond a reasonable doubt, and the patient is subject both to confinement for up to six months and the potential for commitment to the Bridgewater State Hospital. In addition to the above, unlike in a civil matter, the patient is entitled to have counsel appointed to represent her in the hearing, akin to an indigent defendant in a criminal matter being appointed counsel.

There may be circumstances wherein a petition may be amended to conform to the evidence; this is not one of them. In the present circumstances, the petition for commitment allowed K.T. to have counsel appointed and the hearing commenced within five days. The petition identified the specific issues to be tried, danger to oneself and danger to others (specifically excluding the basis for which K.T. was committed). The issues of dangerousness to others (homicidal behavior) and self (suicidal behavior) are quite different from the issue of a person's ability to maintain oneself in the community. The latter would require counsel to defend and develop witness testimony and documentary evidence as to such factors as housing, treatment, medication compliance, and other factors to demonstrate that K.T. would be safe and be able to take care of herself in the community. When a petition does not specify a basis for

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commitment, it is reasonable for counsel not to address the issue in trial preparation; as such, K.T. was severely prejudiced by an unclaimed theory being the basis for commitment at the end of the hearing. The transcript of the hearing reveals that the hospital's request for an amendment to conform to the evidence occurred at the end of the cross-examination of the petitioning doctor, after the court, sua sponte, ordered K.T. held in order to conform to the as yet unheard treatment plan. Counsel for K.T. lodged a timely objection. [Note 8] It was error to allow the petition to be amended under the circumstances of this case.

The order of commitment is vacated.