2018 Mass. App. Div. 164

September 21, 2018 - November 16, 2018

Appellate Division Northern District

Court Below: District Court, Salem Division

Present: Coven, P.J., Nestor & Flynn, JJ.

Joseph C. Correnti and Kristin E. Kolick for the petitioner.

Adriana Contartese for the respondent.

NESTOR, J. This is a patient's appeal from an order of civil commitment made pursuant to G.L. c. 123, §§ 7 and 8 and for a treatment plan made pursuant to § 8B. Although the patient has been discharged from the hospital, we consider the issue raised in her appeal. Matter of F.C., 479 Mass. 1029 (2018).

On November 22, 2017, Salem Hospital filed with the Salem District Court a petition for commitment pursuant to G.L. c. 123, §§ 7 and 8 and a petition for the determination of incompetency and for authorization of medical treatment for mental illness pursuant to § 8B. The hearing was held on December 14, 2017 at the Salem Hospital. The patient's attending physician, Dr. Zeina El Chemali, and the patient testified. The hearing judge allowed the petition, and the patient was involuntarily committed to the Salem Hospital for a period not to exceed six months.

There was evidence that the patient had earned undergraduate and graduate degrees in elementary education and is certified as a teacher. She completed her master's degree in 2013. She had been employed for six years by Educational Testing Service grading standardized exams, such as the English as a Foreign Language Examination. She moved frequently in the recent past living in various states. She has a three-year old son who is cared for by her parents and her sister. As a result of not having custody of her son, the patient acknowledged that she has had an acrimonious relationship with her parents.

The patient originally arrived at Massachusetts General Hospital ("MGH") on or about October 31, 2017. She came to the hospital complaining that she had received a shot that she believed would sterilize her. She was examined and released. She came back to MGH approximately thirty-six hours later indicating that she had been on a bus and that other MGH personnel had been on the bus and indicated to her that she had, in fact, been sterilized. MGH subsequently transferred her to Salem Hospital.

The patient on the unit was generally loud, intrusive, overly talkative, and paranoid. At times, she chose to participate in group meetings and at other times declined and remained in her room, either reading, writing, or on the telephone. The patient was "loud and irritable" and had "a lot of arguments with other patients," but she was not physically assaultive to anyone on the unit. However, she was overheard on the phone threatening to kill her mother. She initially accepted a small daily dose of Abilify, but then refused all medication due to a fear of weight gain. The patient was able to care for herself throughout the time she was on the unit.

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The patient had attempted suicide on two occasions approximately thirty years prior.

Before a patient may be committed involuntarily, the petitioner is required to prove beyond a reasonable doubt that 1) the patient suffers from a mental illness; 2) there is a likelihood of serious harm if the patient is not committed; and 3) there is no less restrictive alternative. G.L. c. 123, §§ 7 and 8; Commonwealth v. Nassar, 380 Mass. 908 (1980). See Matter of G.P., 473 Mass. 112 (2015). General Laws c. 123, § 1 defines "likelihood of serious harm" under three prongs:

"(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."

In this case, in addressing the ultimate issue in the matter, the doctor was asked:

"[Question:] Doctor, what would be your concerns for the patient if the patient were discharged today?

"[Answer:] I would be very concerned for other people, because of the behavior that is erratic and disorganized because of her past history of talking and threats.

"But I am also very concerned about [L.G.] putting herself in harm's way because she has no insight and judgment into what's happening, and that actually -- those behaviors that she is doing, she cannot do because otherwise she will get into more problems as well."

The hearing judge in finding for the petitioner indicated, inter alia:

"But really my concern is is that you would put yourself in a position where, through manifestation of the behavior that you have at this time, that someone would either take advantage of you or be assaultive to you . . . ."

Matter of G.P., 473 Mass. 122 (2015), imposes a requirement for the first prong (harm to self) and the second prong (harm to others) that the harm must have a real prospect of occurring; it cannot be speculative, and it cannot be far into the future. Rather, what must be shown is a substantial risk that the anticipated harm will materialize in the reasonably short term -- "in days or weeks rather than in

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months." Id. at 127-128. As to the third prong, the Court in Matter of G.P. stated that 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. See also Matter of A.M., Mass. App. Ct., No. 18-P-1182, slip op. (Nov. 2, 2018). There is nothing in the statute or Matter of G.P., which involved a petition for commitment under G.L. c. 123, § 35, to suggest that the same standard of imminence should not be applied to the third prong (unable to protect oneself in the community) on a petition for commitment under G.L. c. 123, §§ 7 and 8. See Matter of J.C., 2018 Mass. App. Div. 63, 66 (holding that "all of the requirements for 'likelihood of serious harm' announced in Matter of G.P. are applicable in any petition under §§ 7 and 8"); Matter of S.J., 2018 Mass. App. Div. 128 (17-ADMH-76WE, September 17, 2018) (applying imminence requirement in Matter of G.P. to petition for commitment under G.L. c. 123, §§ 7 and 8).

We can certainly envision a hypothetical set of facts where a patient's conduct was so outrageous and offensive that it would give rise to being attacked or injured imminently. The facts set out in this case do not rise to such a level.

The orders of commitment and for involuntary treatment are vacated.