IN THE MATTER OF R.R.

POEHLER, J. This appeal arises from the involuntary civil commitment of R.R. pursuant to G.L. c. 123, §§ 7 and 8 and an order authorizing the administration of antipsychotic medication pursuant to G.L. c. 123, § 8B. R.R. appeals on five grounds: 1) that the court erred in allowing the hospital's motion for a continuance over R.R.'s objection; 2) that R.R.'s trial counsel was ineffective by failing to object to inadmissible hearsay; 3) that the admissible evidence was insufficient to prove beyond a reasonable doubt that the discharge of R.R. would create a likelihood of serious harm; 4) that there was insufficient evidence as a matter of law to support a finding that R.R. was incompetent to make medical decisions; and 5) that the evidence was insufficient as a matter of law to support a finding that if R.R. were competent he would accept the proposed treatment. Because we agree with R.R.'s argument regarding the allowance of the hospital's motion for a continuance, it is not necessary for us to reach the other issues involving R.R.'s trial counsel's failure to object to hearsay and his arguments regarding the insufficiency of the evidence to support the court's findings as to likelihood of harm, competency, and substituted judgment.

On March 1, 2016, the Worcester Recovery Center and Hospital ("hospital") filed a petition pursuant to G.L. c. 123, §§ 7 and 8 for commitment of R.R. as well as a petition pursuant to G.L. c. 123, § 8B for a determination of incompetency and for authorization of medical treatment for mental illness. A hearing on the petitions was originally scheduled for March 8, 2016, but at the request of the court, the hearing was continued until March 9, 2016 to accommodate the court's schedule of having commitment hearings heard at the hospital on particular days. On March 9, 2016, the parties appeared before the court. The hospital explained that it was not prepared to go forward with the hearing because R.R.'s treating psychiatrist, Dr. Madelyn Hicks ("Hicks"), was unable to be present due to an illness in her family. The hospital then proposed that it would "commence" the hearing with the testimony of Dr. Paul Noroian ("Noroian"), chief of psychiatry. The hospital indicated that Dr. Noroian would testify to some general information and then the hospital would request a continuance to another day. [Note 2] R.R. objected and requested dismissal, arguing that the

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hospital was attempting to circumvent the procedural requirements of G.L. c. 123 by "commencing" the hearing with a witness who had no particular information about him. The judge allowed the hospital to go forward.

Dr. Noroian testified that he was a psychiatrist at the hospital and also the director of psychiatry; that he knew generally that R.R. was a patient but had no responsibility for R.R.'s direct care; that he had not met with R.R. or reviewed his medical records, although he had attended rounds where his care was discussed; and that he had reviewed the petition for commitment and was in agreement with it. [Note 3] He further testified that Dr. Hicks was unavailable due to the illness of a family member. The hearing was then suspended over R.R.'s objection so that Dr. Noroian could meet with R.R. and review the medical records.

On March 11, 2016, Dr. Hicks was still unavailable so the hearing continued with further testimony from Dr. Noroian. The doctor proceeded to testify based on his review of the medical records and his conversations with other staff and a forensic evaluator. [Note 4] He recommended commitment. Ultimately, after testimony by R.R., the judge found that the hospital had met its burden and ordered commitment. Thereafter, on April 6, 2016, the G.L. c. 123, § 8B hearing was held before a different judge. On April 11, 2016, that judge issued an order finding R.R. incompetent and ordering medication under the substituted judgment standard. [Note 5]

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The hospital makes two arguments in support of its position that the hearing was timely commenced. First, it argues that the hearing was "commenced" within the meaning of the statute when Dr. Noroian testified, even though his testimony consisted of only general information. Second, it argues that R.R. waived his right to object to the timeliness of the commencement of the hearing by agreeing to the continuance from March 8 to March 9.

The analysis of this issue must begin with the overarching principles behind G.L. c. 123. Those principles were articulated most recently in the case of Matter of E.C., 479 Mass. 113 (2018). In that case, the Supreme Judicial Court recognized that "[t]he provisions of G.L. c. 123 balance the rights of and protections for incompetent persons with the Commonwealth's interest in protecting the public from potentially dangerous persons who may be unable to control their actions because of their mental condition" (internal quotations and citations omitted). Id. at 119. Notwithstanding the need to strike that balance, the Court emphasized that "[t]he right of an individual to be free from physical restraint is a paradigmatic fundamental right," and affirmed that "laws in derogation of liberty . . . must be strictly construed, in order to comply with the requirements of substantive due process" (internal quotations and citations omitted). Id. This strict construction applies to the time limits mandated by G.L. c. 123, § 7. See id. at 122 n.8, where the Court noted that G.L. c. 123, § 7 imposes "strict limits on the time during which a petition may be pending before a hearing must be conducted, and any violation of those limits would risk running afoul of due process protections."

General Laws c. 123, § 7(c) provides that when a petition for commitment like the one at issue here is filed, "the hearing shall be commenced within 5 days of the filing of the petition, unless a delay is requested by the person or his counsel." The time requirement is mandatory, not directory, and is jurisdictional. Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983). A hearing is not commenced within the meaning of § 7 by the act of the clerk in calling the case; there must be evidence taken or witnesses sworn. Melrose-Wakefield Hosp. v. H.S., 2010 Mass. App. Div. 247, 250. Nor is a hearing "commenced" within the spirit of § 7 with a witness who offers "immaterial or nonsubstantive or potentially cumulative testimony merely to meet a time requirement." Matter of K.P., 2017 Mass. App. Div. 4, 7.

Dr. Noroian's testimony did not provide any meaningful information regarding the petition for commitment. His familiarity with R.R. was extremely limited. While he knew R.R. was a patient and he had been on rounds where R.R.'s care was discussed, he had neither treated R.R. nor reviewed R.R.'s medical records. We recognize that the time requirements can produce a friction between a hospital's concerns and the rights of its patients. However, in light of the "massive" curtailment of liberty involved in a commitment, Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 105 (2000), quoting Commonwealth v. Nassar, 380 Mass. 908, 917 (1980), the time frames must be strictly construed and applied. The testimony of a witness with no information regarding the grounds for the commitment does not suffice to "commence" the hearing.

The hospital next argues that by agreeing to the continuance from March 8 to March 9, 2016, R.R. waived his right to have the hearing commenced within five days. The five-day requirement is mandatory "unless a delay is requested by the person or his counsel." G.L. c. 123, § 7(c). A judge must allow a patient's first request for a continuance where "a denial thereof is reasonably likely to prejudice a person's

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ability to prepare a meaningful defense." Matter of N.L., 476 Mass. 632, 636 (2017). It would put the patient in an untenable position if a request for a continuance to prepare a meaningful defense were taken as a waiver of all time requirements. Additionally, such an interpretation would conflict with the Legislature's intention "to protect the individual's due process rights by minimizing the length of time for which he or she could be involuntarily committed prior to judicial review." Id. Moreover, in this case, R.R. did not request the continuance. He acceded to the request of the court to continue the hearing for one day to accommodate the court's schedule. We do not take that to be a waiver of his right to a timely hearing.

R.R.'s motion to dismiss should have been allowed when the hospital was unable to commence the hearing on March 9, 2016. The order of commitment is vacated, and the petition for commitment is dismissed.