IN THE MATTER OF T.M.

SINGH, J. T.M. is an individual who was civilly committed to McLean Hospital (the "hospital"), a psychiatric facility, for a six-month period of time. After a determination that T.M. was not competent to give informed consent to medical treatment, the District Court approved a treatment plan, proposed by the hospital, to treat T.M. with antipsychotic medication and electroconvulsive therapy (also known as "ECT"). Five weeks later, when the hospital sought to increase the number of ECT treatments originally authorized by the court by more than double, T.M. opposed. Nevertheless, the court approved the additional ECT treatments. T.M. now appeals on the basis that the court amended the treatment plan over his objection without first making a determination that he was not competent to give informed consent and engaging in a substituted judgment analysis. Additionally, T.M. contends that the court impermissibly used privileged patient-psychotherapist communications in making its ruling. Although T.M. has since been released from his commitment, making the issues moot, we consider the issues to be of public importance and capable of repetition, yet evading review, see Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000), and so we address them.

On February 4, 2016, the District Court made a finding that T.M. was mentally ill and that failure to retain him at a facility for the care and treatment of mentally ill persons would create a likelihood of serious harm. The court committed T.M. to the hospital, pursuant to G.L. c. 123, §§ 7 and 8, for a period of up to six months. Later that same day, pursuant to G.L. c. 123, § 8B, the court determined that T.M. was incompetent to make decisions regarding his own psychiatric treatment and that, if he were competent, he would consent to the treatment plan proposed by the hospital. That treatment plan included ECT, up to a maximum of fifteen unilateral/bilateral treatments at a rate of two to three treatments a week. The court authorized the hospital to administer such treatment to T.M. during the period of his commitment.

On March 11, 2016, the hospital sought to amend the treatment plan by adding twenty additional treatments to the fifteen already authorized. The motion was scheduled to be heard on March 17, 2016. On March 16, 2016, T.M. moved to continue the hearing in order to have an independent medical expert available to testify. The hospital opposed the continuance, arguing that it had already administered all of the authorized ECT treatments, and that T.M. would be endangered if

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he did not receive further treatments. After hearing from T.M.'s treating psychiatrist at the hospital, the court, on March 17, 2016, allowed the motion to continue and authorized two additional ECT treatments in the interim. On March 22, 2016, after hearing from T.M.'s treating psychiatrist, as well as the independent medical expert proffered by T.M., the court amended the treatment plan by authorizing the hospital to administer eighteen additional ECT treatments.

1. Need for finding of incompetency and substituted judgment determination. Both at the March 17, 2016 hearing on the motion to continue and at the March 22, 2016 hearing on the motion to amend the treatment plan, T.M.'s counsel maintained that T.M. was competent to make his own treatment decisions. At each hearing, the court accepted the hospital's position that competency was no longer at issue because T.M. had been found to be incompetent on February 4, 2016 at the hearing on the hospital's initial petition to authorize medical treatment pursuant to G.L. c. 123, § 8B. It is true that the treatment order following that February 4, 2016 finding of incompetency was to remain in effect for the six-month period of T.M.'s commitment. It is not true, however, that the issue of T.M.'s competency was therefore foreclosed for that period of time. Rather, the parties were free to petition the court for modification of the treatment plan at any time "pursuant to the standards and procedures established in [G.L. c. 123, § 8B]." G.L. c. 123, § 8B(f).

Those standards and procedures prohibit a court from authorizing medical treatment unless it "specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment." G.L. c. 123, § 8B(d). This is consistent with the well-recognized fact that a person's competency can change over time. See Guardianship of Zaltman, 65 Mass. App. Ct. 678, 688 (2006). Thus, the crucial issue at such a proceeding is whether the person is currently incapable of making informed treatment decisions. See id. at 689, citing Guardianship of Pamela, 401 Mass. 856, 858 (1988). "[A] distinct adjudication of incapacity to make treatment decisions (incompetence) must precede any determination to override patients' rights to make their own treatment decisions" (emphasis added). Lane v. Fiasconaro, 1995 Mass. App. Div. 125, 127, quoting Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 498 (1983). Indeed, a finding of competency would result in automatic termination of the treatment plan then in effect. Guardianship of Weedon, 409 Mass. 196, 200 (1991).

On the other hand, if a finding of incompetency is made, the standards and procedures governing § 8B proceedings require the court to apply the legal substituted judgment standard in authorizing any medical treatment. See G.L. c. 123, § 8B(d). See also Guardianship of Doe, 411 Mass. 512, 519 (1992) (discussing five factors that must be considered). As with the issue of competency, the factors utilized in determining a person's substituted judgment also may change over time. Guardianship of Zaltman, supra at 688-689. See Guardianship of Roe, 383 Mass. 415, 432 n.8 (1981) (substituted judgment determination will become more precise as it approaches time at which it will be implemented because person's choice might change as his medical condition and other circumstances change).

The hospital nevertheless argues that there is no guidance in either the statute governing medical authorization proceedings or the case law as to how a motion to amend a previously authorized treatment plan should be determined. It contends that the issues of competency and substituted judgment, having been decided only

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weeks ago, need not be revisited, [Note 1] especially given the fact that the hospital was "merely" seeking to add additional ECT treatments. [Note 2] The hospital suggests that the court should simply use its discretion. Yet if the court is making no determination regarding competency or substituted judgment in ruling on a motion to amend a treatment plan, it is unclear how a judge's discretion is to be guided.

In fact, the decision to accept or reject proposed medical treatment is not a matter committed to the sound discretion of the court; rather, it is an individual right, a matter of personal choice. See Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 739 (1977) (law recognizes individual interest in preserving "inviolability of his person"). This right of a person to make his own decision regarding medical treatment is secured in the law by the doctrine of informed consent, which essentially "protects the [person's] status as a human being." Id. The court gets involved only if there is a question that a person lacks the capacity to give informed consent; it is only this finding of incompetency that allows the court to make any determination regarding medical treatment, and that determination must be based on substituted judgment. See Guardianship of Weedon, supra at 200 (judicial finding of incompetency is "necessary precondition to any substituted judgment treatment order" [emphasis added]). Thus, prior to authorizing medical treatment, even on a motion to amend a previously authorized treatment plan, the court must engage in the competency/substituted judgment analysis. See Commentary to Standard 11:02 of the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011) ("As with the original authorization, the court's order to modify or vacate the § 8B treatment authorization requires specific findings on each of the relevant issues."). The findings must be made by a preponderance of the evidence with specific findings of fact after a careful review of the evidence; this is to give an "extra measure of evidentiary protection," given the significant interests involved. [Note 3] See Guardianship of Doe, supra at 523.

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2. Applicability of patient-psychotherapist privilege. Both at the March 17, 2016 hearing on the motion to continue and at the March 22, 2016 hearing on the motion to amend the treatment plan, T.M.'s counsel objected to the court receiving testimony from T.M.'s treating physician involving privileged patient-psychotherapist communications without any indication that T.M. had waived the privilege. At each hearing, the court overruled the objection, indicating that the privilege was inapplicable to a motion to amend a treatment plan. On appeal, T.M. points to the plain language of G.L. c. 123, § 8B(h) in support of his position that the patient-psychotherapist privilege applies to a proceeding to amend a treatment plan previously authorized pursuant to G.L. c. 123, § 8B. The hospital offers no competing analysis, except to assert its position that the motion to amend was an "extension" of the initial February 4, 2016 hearing on its petition for authorization of medical treatment.

There is no question that the hospital's motion to amend the treatment plan was brought pursuant to G.L. c. 123, § 8B. See G.L. c. 123, § 8B(f) (providing for subsequent modification of medical treatment authorization). Section 8B provides that the patient-psychotherapist privilege, established by G.L. c. 233, § 20B, "shall not prohibit the filing of reports or affidavits, or the giving of testimony, pursuant to this section, for the purpose of obtaining treatment of a patient, provided that such patient has been informed prior to making such communications that they may be used for such purpose and has waived the privilege." G.L. c. 123, § 8B(h). See In re: Commitment of M.B., 2013 Mass. App. Div. 8, 11 ("unambiguously clear" that patient-psychotherapist privilege applies to proceedings under § 8B). Even under the hospital's theory, that the motion to amend was simply an extension of the initial hearing, it was still a proceeding under § 8B in which the privilege applies. Thus, the court should not have received privileged patient-psychotherapist communications absent evidence of T.M.'s waiver of such privilege. The objections should have been sustained. Because T.M. is no longer a patient at the hospital, the issue of relief is moot.

T.M.'s appeal is dismissed as moot.

So ordered.