2018 Mass. App. Div. 51

December 8, 2017 - March 15, 2018

Appellate Division Southern District

Court Below: District Court, Brockton Division

Present: Hand, P.J., Kirkman & Finigan, JJ.

Edward J. O'Donnell for the petitioner.

Harold N. Roberston for the respondent.

HAND, P.J. Appellant W.R. appeals the September 28, 2016 denial of his motion to dismiss the G.L. c. 123, § 16(c) petition of Bridgewater State Hospital ("Hospital"). [Note 1] For the reasons below, we dismiss the appeal as moot.

The parties do not dispute that at all times relevant to this appeal, W.R. was a patient at the Hospital, having been involuntarily committed there pursuant to G.L. c. 123, § 16. On August 17, 2016, the Hospital petitioned pursuant to G.L. c. 123, § 16(c) to have W.R. committed for an additional year, based on W.R.'s incompetence to stand trial, and under § 8B of that statute for authority to treat W.R. with antipsychotic medication ("the Petition"). In the Petition, the Hospital identified W.R.'s mother as his "nearest relative or guardian," and listed an address for her in England. It is undisputed that the information concerning W.R.'s mother was provided to the Hospital by W.R., and that the Hospital had no other information about W.R.'s mother.

Once the Petition was filed, the trial court issued two notices: a "Notice of Next Event," dated August 17, 2016, identifying the next court event as "Mental Health Hearing" and providing the date and time of the hearing; and a "Notice of Mental Health Hearing For Commitment and/or Medical Treatment G.L. c. 123" ("Notice of Mental Health Hearing"), providing the same date and time, but indicating explicitly that the hearing was for "involuntary commitment . . . for a period of: . . . One year . . .

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pursuant to G.L. c. 123, . . . s. 16(c)." These notices, and the trial court's docket, are included in the record before us. According to the docket, the court sent the Notice of Mental Health Hearing to "respondent [W.R.], respondent's nearest relative or guardian, CPCS and petitioner" on the same date on which the Petition was filed.

Prior to the commitment hearing, W.R. moved to dismiss the Petition. Our record includes only the first page of W.R.'s motion to dismiss, although it also includes W.R.'s affidavit in support of the motion ("Affidavit"). The portion of the motion included in the record argues that the court did not send proper notice of the hearing to W.R., and that the notice that he did receive was insufficient. In his Affidavit, W.R. states that he "never received a copy of [the Petition] and only received a document entitled 'Notice of Next Event.'" The Affidavit also includes W.R.'s assertion that his mother was not given proper notice because her address "is out of date" and "she does not live in England . . . she currently resides in Marshfield, Massachusetts." [Note 2]

The trial court denied the motion to dismiss and, after hearing, allowed the Petition, committing W.R. for an additional year. [Note 3] According to the docket, W.R. filed requests for findings of fact and rulings of law as to the commitment petition. The docket indicates that the court's findings are "contained and set forth in the worksheet prepared by the court." That worksheet is not part of the appellate record.

W.R. appeals the denial of his motion to dismiss, arguing that the hospital failed to meet its obligation to comply strictly with the requirements of c. 123. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103-104 (2000) (strict statutory construction required where rights of mentally ill are at stake). General Laws c. 123 sets out the requirements for mental health commitments based on incompetence to stand trial. Relevant to this appeal, § 16(c) provides that where a criminal defendant has previously been committed under § 16(b), based on incompetence, "[that] person may be committed for additional one year periods under the provisions of sections seven and eight of this chapter." G.L. c. 123, § 16(c).

Section 7 of the statute authorizes individuals, including the medical director of the Bridgewater State Hospital, to petition the District Court for commitment to the Hospital of "any patient at said facility whom said superintendent determines that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness," id. at § 7(a), and further, where "it is determined that the failure to hospitalize in strict security would create a likelihood of serious harm by reason of mental illness," to petition for that person's commitment to Bridgewater State Hospital. Id. at § 7(b). Additionally, where a patient is the subject of a commitment petition under sections seven, eight, fifteen, sixteen, or eighteen, § 8B(a) of the statute authorizes the medical director of Bridgewater State Hospital, among others, to petition the District Court "(i) to adjudicate the patient incapable of making informed decisions about proposed medical treatment, (ii) to authorize, by an adjudication of substituted judgment, treatment

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with antipsychotic medications, and (iii) to authorize according to the applicable legal standards such other medical treatment as may be necessary for the treatment of mental illness." Id. at § 8B(a).

Sections 7 and 8B have very similar notice requirements: when a court receives a petition for commitment under G.L. c. 123, or for involuntary medical treatment, the court "shall notify the person, and his nearest relative or guardian" of "the receipt of such petition and of the date a hearing on such petition is to be held." G.L. c. 123, § 7(c) ("Whenever a court receives a petition filed under any provisions of this chapter for an order of commitment of a person to a facility or to the Bridgewater state hospital, such court shall notify the person, and his nearest relative or guardian, of the receipt of such petition and of the date a hearing on such petition is to be held."); G.L. c. 123, § 8B(c) ("Whenever a court receives a petition filed under the provisions of this section, such court shall notify the person, and his nearest relative or guardian of the receipt of such petition and of the date a hearing on such petition is to be held."). There is no doubt that the statutory language requiring notice is mandatory, see Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983); the statute, however, does not specify the form of the required notice.

On the limited record before us, we are unable to ascertain the facts on which the trial court relied in deciding any notice issues raised in W.R.'s motion to dismiss the Petition. For example, without findings of fact, we cannot know whether the judge credited W.R.'s statements in his affidavit about the notice provided to him about the Petition and any hearing on that Petition, or, instead, relied on the docket entry indicating that the court sent a Notice of Mental Health Hearing to W.R., his nearest relative, and his counsel, or on some other evidence. Likewise, in the absence of a more complete record, we do not know whether W.R.'s mother received notice of the hearing, or what her address was at the relevant times.

As W.R.'s commitment under the contested Petition was limited to a year, a period that has now expired, the matter is moot. While we recognize our discretion to consider even moot issues, "where the question is (1) unlikely to obtain appellate review before the question would again be moot, (2) one of public importance, and (3) very likely to arise again in similar circumstances," Matter of L.C., 2015 Mass. App. Div. 98, 100, citing Acting Supt. of Bournewood Hosp., supra at 103, and Scheibel v. Cohen, 2004 Mass. App. Div. 153, we decline to do so here, in light of the lack of a clear factual record. As the Appellate Division recently explained in Matter of A.B., 2015 Mass. App. Div. 5, "[c]ourts decline to hear moot cases because (a) only factually concrete disputes are capable of resolution through the adversary process, (b) it is feared that the parties will not adequately represent positions in which they no longer have a personal stake, (c) the adjudication of hypothetical disputes would encroach on the legislative domain, and (d) judicial economy requires that insubstantial controversies not be litigated." Id. at 7, quoting Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298 (1975). Recognizing that "'"[i]ssues involving the commitment and treatment of mentally ill persons are generally considered matters of public importance" and present "classic examples" of issues that are capable of repetition, yet evading review.' Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 782 (2008), quoting Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103," id., we, like the Northern District in Matter of A.B., conclude that "this is not a case to

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exercise this discretionary function. See In Re: Commitment of M.B., 2013 Mass. App. Div. 8, 9 (review is discretionary)." Id.

Specifically, we conclude that without factual findings on the pivotal issue of what notice the court provided to W.R. and sent to his nearest relative, we are not in an appropriate position to rule on whether the notice W.R. concedes that he did receive is sufficient for the purposes of G.L. c. 123, §§ 7 and 8, and 8B. As, "[i]n general, the Appellate Division is not vested 'with the authority to issue an advisory opinion or anything in the nature of a declaratory judgment,' Filippone v. Gatzunis, 1990 Mass. App. Div. 108, 109, and the 'scope of appellate review is limited to questions of law,' Quinn v. Dille, 1987 Mass. App. Div. 101, 103. See G.L. c. 231, § 108," id., we decline to decide the moot issues raised here.

Appeal dismissed.


[Note 1] The Hospital moved to supplement the record appendix. We allow the motion.

[Note 2] We understand, from the partial motion and the parties' arguments on appeal, that in his motion to dismiss, W.R. argued that the Hospital failed to ensure that W.R.'s nearest relative was aware of the Petition, and failed to ensure that W.R. received a Notice of Mental Health Hearing, and that those failures were independently fatal to the Hospital's Petition.

[Note 3] That commitment order had expired by the date of the hearing on this appeal.