IN THE MATTER OF A.G.

PER CURIAM. This is an appeal from an order of the Worcester District Court committing the appellant, A.G., to the Worcester Recovery Center ("WRC") pursuant to G.L. c. 123, §§ 7 and 8. The order of commitment has expired and A.G. has been discharged, making this a moot case. Nonetheless, 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," we exercise our discretion and will decide the matter. Hashimi v. Kalil, 388 Mass. 607, 609 (1983). For the reasons set forth below, we affirm the denial of A.G.'s motion to dismiss and for immediate discharge.

On January 12, 2015, A.G. was arraigned in the Springfield District Court on a charge of assault and battery on a family or household member. A District Court judge ordered that A.G. be evaluated at Bridgewater State Hospital for competency to stand trial and for criminal responsibility. The judge also ordered A.G. held without bail, without prejudice. On February 3, 2015, A.G. was again before the Springfield District Court, and he was determined to be competent to stand trial. He was held on $1,000.00 cash bail. The case was continued to February 10, 2015.

On February 10, 2015, A.G. tendered a change of plea and a sentencing hearing commenced. The hearing was suspended, however, to give the judge an opportunity to review A.G.'s record and forensic reports. On February 12, 2015, the judge ordered an evaluation pursuant to G.L. c. 123, § 15(e) as an aid in sentencing. The case was continued, and A.G. was held until March 23, 2015.

On March 23, 2015, Dr. Welli Yeh ("Yeh"), a designated forensic psychologist, evaluated A.G. at the request of the sheriff for the Hampden County house of correction pursuant to G.L. c. 123, § 18(a). Dr. Yeh recommended further hospitalization. The District Court judge acted on the recommendation and ordered A.G. committed to WRC for thirty days observation pursuant to § 18(a). A.G.'s criminal case was continued to April 27, 2015.

Dr. Denise Mumley ("Mumley") conducted the G.L. c. 123, § 18(a) evaluation at WRC, and filed a report stating her opinion that A.G. required further hospitalization. Accordingly, on April 21, 2015, WRC filed a petition pursuant to § 18(a) for commitment

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of A.G. for a period not to exceed six months. WRC also filed a motion to change the venue for the commitment hearing. The motion to change venue was allowed, and a commitment hearing was scheduled for April 29, 2015, in the Worcester District Court.

A.G. was to be returned to the Springfield District Court, however, on April 27, 2015 to address his criminal case. Anticipating that A.G. might be sentenced on that date, Dr. Mumley submitted a letter to the court outlining her opinion that A.G. continued to need psychiatric hospitalization to prevent a likelihood of serious harm to others by reason of mental illness. In her letter, she outlined options available to the court depending on whether A.G. was placed on probation or incarcerated. To address the possibility that A.G. might be released on April 27, Dr. Mumley submitted a petition for a three-day commitment pursuant to G.L. c. 123, § 12(e) with her letter. In conjunction with that application, she asked the court to have A.G. evaluated by the court clinic in the event that he was to be released from custody on the criminal case.

The hearing on A.G.'s change of plea was completed in the Springfield District Court on April 27, 2015. A.G. was sentenced to one year in the house of correction, with three months to serve, the balance suspended until October 27, 2016. By that time, A.G. had already been held for more than three months. He therefore had served the direct portion of his sentence. At the conclusion of the plea hearing, however, A.G. was not released. Instead, the judge, stating that he had been informed that WRC had filed a petition under G.L. c. 123, § 18(a), ordered that A.G. be returned to WRC under § 18(a). (For reasons that are not set out in the record on appeal, Dr. Mumley's § 12(e) petition was never docketed and was not acted upon by the court.) A.G. was then transported to WRC, where he arrived without documentation from the Springfield District Court. WRC personnel, however, were told verbally by the director of the Springfield District Court clinic that A.G. was sent back to WRC pending a § 18(a) commitment hearing.

The next day, April 28, 2015, A.G., through counsel, filed a motion to dismiss and for immediate discharge. The motion was supported by an affidavit from A.G.'s criminal defense attorney, in which the attorney stated that a G.L. c. 123, § 12(e) hearing had not been conducted. WRC, which had received no order from the Springfield District Court formally documenting A.G.'s legal status, had a hospital physician examine A.G. The physician admitted him to WRC under the provisions of G.L. c. 123, § 12(b). The next day, WRC received a fax from the Springfield District Court that included both the order returning A.G. to WRC pursuant to § 18(a) and a copy of the docket sheet setting forth the sentence A.G. had received.

On April 29, 2015, A.G. filed a "Request for Emergency Hearing after Involuntary Admission to Mental Health Facility," challenging the validity of the § 12(b) commitment of April 28. The Worcester District Court allowed this request and immediately held an emergency hearing. At the hearing, A.G. argued that the Springfield District Court had no authority to commit him under § 18(a) on April 27, 2015, because following sentencing he was no longer a prisoner in a place of detention. A.G. also maintained that he could not have been lawfully committed to WRC under § 12(e), as he was not examined by a qualified psychologist or afforded a hearing as required by that statute prior to commitment. He argued that WRC should have recognized that the court order for his commitment was unlawful, and should have immediately discharged him.

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At the conclusion of the hearing, the court determined that WRC had not abused or misused G.L. c. 123, § 12(b) and found that even if the order of commitment issued by the Springfield District Court under § 18(a) was improper, it was appropriate for WRC to obey the order of that court. Ultimately, the Worcester District Court denied A.G.'s request for an order of dismissal and for his immediate discharge.

A.G. continued to be held at WRC and on May 1, 2015, WRC filed a petition seeking an order for his commitment pursuant to G.L. c. 123, §§ 7 and 8. On July 1, 2015, the Worcester District Court, after a hearing, allowed the petition and issued an order of civil commitment pursuant to §§ 7 and 8 for a period not to exceed six months.

At the outset, we agree with A.G. that following the imposition of the sentence he received on April 27, 2015, he was no longer subject to commitment under G.L. c. 123, § 18(a). The purpose of § 18(a) is to enable a person in charge of a place of detention to initiate the process by which a prisoner may receive mental health services. That section applies only to a person confined in a place of detention. A.G. was sentenced to one year in the house of correction, with three months to serve, the balance suspended for eighteen months. He received credit for the three months he was held. Once this sentence was imposed, A.G. was no longer a prisoner. Therefore, the order of April 27, 2015 to hold A.G. and transport him to WRC was issued in error.

We also agree with A.G. that if the court were concerned that he was mentally ill and that the failure to confine him would cause a likelihood of serious harm, the procedures set out in G.L. c. 123, § 12(e) should have been followed. Had that been done, the court would have appointed counsel for A.G., and A.G. would have been examined to determine whether he should be committed for a period not to exceed three days. As stated above, WRC sent the Springfield District Court a petition pursuant to § 12(e), but there is nothing in the record that explains what happened to that document or whether that petition was considered by the judge who sentenced and committed A.G. In any event, the order of commitment that was issued by the Springfield District Court clearly did not comply with the requirements of § 12(e) because A.G. was not committed pursuant to that statute.

With our determination that A.G. should not have been committed to WRC pursuant to G.L. c. 123, § 18, the remaining issues to be decided are whether WRC acted lawfully in holding A.G. once he arrived at the facility and in committing him the next day on an emergency basis pursuant to G.L. c. 123, § 12(b), and whether the subsequent commitment issued pursuant to §§ 7 and 8 was lawful. In this regard, A.G. asserts that his motion for an order of dismissal and for his immediate discharge should have been allowed and that there never should have been a commitment hearing under §§ 7 and 8 because he was deprived of his right to due process, which the procedures mandated by G.L. c. 123, § 12(e) safeguard.

A.G. relies primarily on Newton-Wellesley Hospital v. Magrini, 451 Mass. 777 (2008) (Magrini) to support his position. In that case, the patient was temporarily committed to the hospital under G.L. c. 123, § 12(b). The hospital failed to file a petition for the patient's commitment within three business days after his admission as required by the statute. The patient moved to dismiss the petition for this reason, and a District Court judge allowed the motion and ordered the patient discharged. The hospital, however, held the patient without any valid order authorizing commitment; filed a new petition pursuant to § 12(a) in order to retain the patient for evaluation; and later discharged the patient from the earlier commitment. Id. at 781-782.

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The Supreme Judicial Court found that the hospital had abused the admissions procedures under §§ 12(a) and (b) and improperly confined the patient despite a clear order of discharge from a District Court judge. The Court found that the hospital's failure to comply with a court order resulted in the patient's confinement for eleven days without a hearing and that by effectuating a second § 12(b) commitment, the hospital had rendered the court order directing the patient's discharge illusory. Id. at 784.

In this case, WRC did not ignore a court order as the hospital in effect did in Magrini. Here, the hospital accepted A.G. pursuant to what it was told was a commitment order issued by a District Court judge. Unlike Magrini, here A.G. was immediately provided with legal counsel who was able to file a motion to dismiss and for discharge within one day of A.G.'s arrival at WRC. On that same day, having received no written order from the Springfield District Court, WRC had a physician examine A.G. The designated physician determined that by reason of A.G.'s mental illness, failure to hospitalize him would create a likelihood of serious harm. Without delay, commitment proceedings were initiated under § 12(b), and an emergency hearing was held the very next day. Once again, here, A.G., unlike Magrini, was provided with legal counsel and an immediate and meaningful review followed. No court order was rendered illusory, and the statutory mechanism for the timely resolution of A.G.'s challenge to his initial improper commitment was followed. As the Supreme Judicial Court noted in Magrini, the statutory scheme established to address mental health concerns does not prohibit a hospital from recommitting a person on a temporary basis in every instance. Id. at 784 n.14. Finally, there is no challenge to the Worcester District Court judge's determination that A.G. met the criteria for commitment pursuant to §§ 7 and 8.

Accordingly, we find no error in the Worcester District Court judge's denial of A.G.'s motion to dismiss and for immediate discharge, and we affirm the decision to commit A.G. pursuant to G.L. c. 123, §§ 7 and 8.