2018 Mass. App. Div. 128

October 13, 2017 - September 17, 2018

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Noonan & Poehler, JJ. [Note 1]

No brief filed for the petitioner.

Ilana Hollenberg for the respondent.

HADLEY, P.J. On February 10, 2017, after a hearing, a judge sitting in the Worcester District Court determined that S.J. was mentally ill and that the failure to retain him at the Psychiatric Treatment and Recovery Center (the "Hospital") would create a likelihood of serious harm. She also found that there was no less restrictive alternative to hospitalization. Accordingly, the judge allowed a petition by a psychiatrist at the Hospital to commit S.J. for a period not to exceed six months pursuant to G.L. c. 123, §§ 7 and 8. On February 16, 2017, S.J. filed a notice of appeal, asserting that the evidence introduced at his commitment hearing was insufficient to prove beyond a reasonable doubt that the failure to hospitalize him presented a risk of harm to himself or to others. Before this appeal was heard, S.J. had been discharged from the Hospital and was no longer subject to the commitment order. In light of the decision in Matter of F.C., 479 Mass. 1029 (2018), however, we may not consider this appeal moot, and we must decide the issues presented. After considering the evidence and the law, we affirm the order of commitment.

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Issues of credibility and the weight of the evidence are, of course, for the fact finder. In this case, we have been provided with no written findings of fact, but the evidence was largely uncontested. A review of the record below indicates that the District Court judge could have found the following. At the time of the hearing, S.J. was sixty-one years old, and suffered from diabetes and hypertension. He also suffered from schizophrenia, which causes a gross impairment of his judgment. He has a history of psychotic episodes that rendered him unable to communicate his needs. He had been treated with various antipsychotic medications and had been hospitalized at least four times in three to four years. He had been treated in a hospital several times in the past few weeks. He has a history of not taking prescribed medications and then becoming agitated, irritable, and paranoid. He had expressed the belief that people were after him, and he had become hostile toward others on multiple occasions. During his hospitalizations, he appeared to talk to himself. On multiple occasions, these circumstances had improved greatly when S.J. took prescribed medications.

At the time of his emergency admission on January 20, 2017, prior to the subject commitment hearing, S.J. had been exhibiting paranoia and hostility toward medical personnel and was making what were characterized as intimidating gestures to others. He appeared disheveled, and his thoughts and his conversations were confused and disorganized. He was uncooperative and refused to take any medication. He would not allow medical personnel to check his vital signs, including his blood sugar levels. When he was first admitted to the Hospital, S.J. was observed roaming the hallways, pacing, and yelling, causing other people to stay out of his way. No form of physical restraint to protect him or others was required, however.

In the days immediately prior to the commitment hearing, S.J. had begun taking prescribed medication and had shown marked improvement. He was more organized in his thought and was less irritable. He was cooperating with regard to his vital signs, and he allowed medical personnel to test his blood sugar levels. He had begun to follow a diabetic diet, and his blood sugar was found to be within normal limits. He was showering and dressing himself on his own. It was his treating psychiatrist's opinion that S.J. did not present a substantial risk of harm to himself due to any form of suicidal thought or ideation.

His treating psychiatrist, however, stated his opinion that S.J. still could not conduct activities of daily living in the community without supervision. Although S.J. had never stated that he was going to hurt anyone, he was intimidating, imposing, and his body language made people fearful. His psychiatrist believed this was a "recipe for bad things to happen." He believed that by the date of the commitment hearing, S.J. had become less angry but that his psychosis was still active and he was still paranoid and disorganized in his thoughts. The psychiatrist provided his expert opinion that S.J. had improved because he had begun to take medication, but if he were released into the community, S.J. would stop taking his medications and rapidly decompensate, as he had done on prior occasions. The psychiatrist opined that there was no less restrictive placement for S.J. other than a locked psychiatric unit because S.J.'s psychosis was still active, he had poor insight and judgment, and he had no family or other support in the community.

There are three prongs to the statutory definition of a "likelihood of serious harm." That term is defined as:

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"(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."

G.L. c. 123, § 1.

In this case, there was no allegation, nor any credible evidence to support a finding under the first prong. The petitioner alleged a risk of harm existed under the second and third prongs. More specifically, the petitioner maintained that as a result of S.J.'s mental illness, he presented a substantial risk of physical harm to other persons manifested by evidence that he placed other people in reasonable fear of violent behavior and serious physical harm, and that S.J. presented a very substantial risk of physical impairment or injury to himself because his judgment was so affected that he was unable to protect himself in the community. S.J. contends that the evidence was insufficient to support either of these allegations.

With regard to the second prong, we find that S.J. is correct. In Matter of G.P., 473 Mass. 112 (2015), the Supreme Judicial Court noted that the Legislature's use of words like "homicidal" and "violent behavior" and "serious physical harm" signifies "an intent that evidence of conduct reflecting a substantial level of force and intensity be presented." Id. at 126. S.J. had no history of homicidal behavior; he had committed no act of physical violence, nor had he threatened anyone while he was hospitalized; and he had expressed no intent to hurt anyone either in the hospital or in the community. There was evidence that he would become agitated, yell, pace, and wave his arms in public. As disconcerting as S.J.'s conduct might have been to other persons, we find that his conduct falls short of that required to establish beyond a reasonable doubt the level of risk described in the second prong of the definition of "likelihood of serious harm."

As to the third prong, S.J. similarly asserts that as a matter of law there was insufficient evidence to support a finding beyond a reasonable doubt that S.J.'s illness presented a very substantial risk of physical impairment or injury to S.J. himself. In this regard, S.J. correctly points out that the third prong of the definition of "likelihood of serious harm" requires a finding of a "very" substantial risk, and that this requires more certainty that the threatened harm will occur. In addition, as stated in Matter of G.P., the "imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs." Id. at 129. In light of this, S.J. suggests that his treating psychiatrist arguably may have had valid concerns and may have believed that it was in S.J.'s best interest to remain in the Hospital. S.J. argues, however, that a concern that he might stop taking his medication at some point in the future and thereby expose himself to danger, including risks associated with his diabetes, is too general in nature and not sufficiently imminent to justify commitment.

In Matter of G.P., the Court discussed evidence of past conduct in the context of a judge's decision of the likelihood of serious harm. The Court pointed out that "as a

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matter of experience and logic," the more recent the evidence the more weight that evidence should carry in supporting a determination of whether there is a risk of self-harm. Id. at 126. It also noted that the reliability of an assessment of risk of harm diminishes the farther out one projects as to when the harm is likely to materialize. Id. at 127. Although the Court was addressing the first and second prongs of the definition in Matter of G.P. at the time, with regard to what an imminent risk is, the Court noted that "what must be shown is a substantial risk that the harm would materialize in the reasonably short term -- in days or weeks rather than in months." Id. at 128.

The Court also discussed the third prong in Matter of G.P., noting that the harm that is to be considered is "physical impairment or injury" to the respondent and a "very substantial risk" of that type of harm is shown by evidence that the respondent's judgment is so adversely affected by his mental illness that he cannot protect himself from physical harm, and that the community does not provide any reasonably available external source of adequate protection. Id. at 128-129. The focus in this context is on the respondent's degree of impaired judgment due to his illness; the degree of likelihood that he will sustain or inflict injury; and the inability of any other person or persons in the respondent's community to provide him protection against these risks. Interestingly, the Court provided as an example the risk that the respondent would fail to take care of an existing medical condition. The Court also pointed out that the imminence of the risk is a factor that is even more important to consider with regard to this third prong than it is with respect to the other prongs. Id. at 129.

In this case, with regard to the question of whether the petitioner demonstrated a very substantial risk of physical impairment or injury resulting from S.J.'s inability to protect himself in the community and avoid injury, the judge's order appears to have been based on a determination that although S.J. had recently begun taking medications and had shown signs of improvement, at the time of the commitment hearing his psychosis was still active and he was still paranoid and disorganized in his thoughts. The judge who ordered S.J.'s commitment could have properly considered S.J.'s prior hospitalizations and subsequent rapid decompensations, and could have reasonably concluded that upon discharge, S.J. would again stop taking his medications and rapidly decompensate as he had done in the past, exposing himself to an imminent and very substantial risk of physical impairment caused, at a minimum, by his diabetes.

After considering all of these circumstances and the applicable law, we do not agree with S.J.'s assertion that as a matter of law the evidence was insufficient to justify an order of commitment. We hold that the order of commitment was lawful and was supported by the evidence. For these reasons, the order granting the petition for commitment is affirmed.


[Note 1] The Honorable Mark E. Noonan participated in the hearing of this appeal, but completed his Appellate Division service prior to the issuance of this opinion.