IN THE MATTER OF M.A.

MCGILL, J. M.A. appeals from a District Court order of involuntary civil commitment under G.L. c. 123, §§ 7 and 8. Although we determine that this case is moot as to M.A., we exercise our discretion to address the issues raised, and we affirm the order of commitment.

On November 20, 2015, M.A. applied for admission at Providence Behavioral Health Hospital (the "Hospital") as a conditional voluntary patient pursuant to G.L. c. 123, §§ 10 and 11. A designated physician at the Hospital diagnosed M.A. with mental illness and believed M.A. was in need of care and treatment. He also determined that M.A. understood that she was agreeing to stay and receive treatment at the Hospital; that she would be required to sign a three-day notice of her intention to leave; and that she might or might not be allowed to leave the Hospital without a court hearing. The physician found that M.A. was competent to apply for a conditional voluntary status, and her application was accepted that same day.

A short time thereafter, M.A. was found to be grossly disorganized in her thought and unable to attend to activities of daily living. She was experiencing auditory hallucinations, refusing food, and refusing medications. On November 27, 2015, the physician who was treating M.A. gave her a written notice that her conditional voluntary status had been revoked and that the Hospital was taking steps to obtain an order of civil commitment pursuant to G.L. c. 123, §§ 7 and 8. The notice cited 104 Code Mass. Regs. § 27.11(4)(a), and stated that the Hospital's medical director had found that M.A. was "no longer competent to accept/refuse treatment" and that she remained "in need of continued hospitalization." On that same date, a petition for involuntary civil commitment was filed in the Holyoke District Court.

The hearing on the Hospital's petition for involuntary commitment was held on December 3, 2015, and on that date M.A., through her attorney, filed a motion to dismiss the petition. M.A. pointed out that she had not given the Hospital three days notice of her intention to leave. Citing Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101 (2000), M.A. argued that she could not be involuntarily committed unless her conditional voluntary status had first been lawfully revoked.

M.A. put forth two arguments in support of her position that her conditional voluntary status was not lawfully revoked. She argued that she was not given prior

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written notice that the Hospital intended to reevaluate her legal competency before it unilaterally revoked her conditional voluntary status on November 27, 2015. She asserted that, as a result, she was unlawfully deprived of any meaningful opportunity to be heard in opposition to a change in her status. In addition, M.A. asserted that the revocation was deficient because the Hospital's stated reason for revocation was that M.A. was no longer competent to accept or refuse treatment, not that she did not have the capacity to understand the criteria for being a conditional voluntary patient. The motion judge determined that M.A.'s conditional voluntary status had been properly revoked and denied the motion to dismiss. The judge then conducted a hearing on the petition for involuntary commitment, and ordered commitment pursuant to G.L. c. 123, §§ 7 and 8. This appeal followed.

As noted above, this case is moot as to M.A. The clinical findings of the attending psychiatrist are specific to M.A. and unique to this particular case. See In Re: Commitment of K.R., 2012 Mass. App. Div. 229. In addition, the parties have informed us that M.A. has been discharged from hospitalization. The legal issues presented, however, are not unique to M.A. Alleged violations of rights of those admitted to mental health hospitals are "classic examples of issues that are 'capable of repetition, yet evading review.'" Acting Supt. of Bournewood Hosp., supra at 103, quoting Hashimi v. Kalil, 388 Mass. 607, 609 (1983). The issues presented in this case potentially affect all persons admitted on a conditional voluntary basis to a mental health hospital in Massachusetts. Therefore, we exercise our discretion to review this case.

The statutory framework concerning conditional voluntary admissions allows a hospital to "receive and retain on a voluntary basis any person providing the person is in need of care and treatment and providing the admitting facility is suitable for such care and treatment." G.L. c. 123, § 10(a). Before accepting a person's application for voluntary admission where three days written notice of intention to leave may be required, the admitting physician is required by statute to "assess the person's capacity to understand that: (i) the person is agreeing to stay or remain at the hospital; (ii) the person is agreeing to accept treatment; (iii) the person is required to provide the facility with three days written advance notice of the person's intention to leave the facility; and (iv) the facility may petition a court for an extended commitment of the person and that he may be held at the facility until the petition is heard by the court. If the physician determines that the person lacks the capacity to understand these facts and consequences of hospitalization, the application shall not be accepted." G.L. c. 123, § 11.

Generally speaking, subject to some restrictions that are not relevant here, persons who are voluntarily admitted are free to leave the facility "at any time," although they may be required to give the facility three days written notice of their intent to do so. G.L. c. 123, § 11. "Where persons . . . are required to give three days notice of intention to leave . . ., an examination of such persons may be conducted to determine their clinical progress, their suitability for discharge and to investigate other aspects of their case including their legal competency and their family, home or community situation in the interest of discharging them from the facility. Such persons may be retained at the facility beyond the expiration of the three day notice if, prior to the expiration of the said three day notice period, the superintendent files with the district court a petition for the commitment of such person at the said facility." G.L. c. 123, § 11.

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The Department of Mental Health has promulgated regulations concerning conditional voluntary admissions. The Code of Massachusetts Regulations states, "Every facility shall conduct a periodic review of each inpatient upon admission, and for patients whose hospitalizations are expected to be at least 90 days, during the first three months, during the second three months, and annually thereafter until discharge . . . ." 104 Code Mass. Regs. § 27.11(1).

The regulations also provide that before a periodic review is conducted, the facility is required to "give reasonable advance written notice to each patient and his or her legally authorized representative and, unless the patient knowingly objects, to the nearest relative, giving the date of such review and requesting their participation in such review." 104 Code Mass. Regs. § 27.11(2). A periodic review must include "a thorough clinical examination, which shall consist of . . . a mental status examination, including a review of the treatment plan, of response to treatment, and of medications administered." Id. at § 27.11(3)

"For each periodic review, the legal competency of the patient shall be evaluated by the senior reviewing clinician in terms of whether he or she is competent to remain on, or to apply for, conditional voluntary admission status, [or] to render informed consent to customary and usual medical care or extraordinary treatment, including administration of antipsychotic medications . . . ." 104 Code Mass. Regs. § 27.11(4).

Finally, the regulations provide that when a patient is on conditional voluntary admission status, and "is believed no longer to be competent, and the patient remains in need of continued hospitalization, then the facility director shall take reasonable steps to obtain alternate authority for continued hospitalization either by seeking an order of commitment pursuant to M.G.L. c. 123, §§ 7 and 8, or a guardianship with authority to admit the ward to a psychiatric facility." 104 Code Mass. Regs. § 27.11(4)(a).

In this case, M.A. did not give the Hospital a three-day notice of her intention to leave. Therefore, as stated in Acting Supt. of Bournewood Hosp. v. Baker, as long as she was a conditional voluntary patient, the Hospital had no authority to petition for M.A.'s involuntary commitment under G.L. c. 123, §§ 7 and 8, and the District Court would be without jurisdiction to hear such a commitment petition. The critical issue before us, therefore, is whether M.A. was still a conditional voluntary patient at the time the District Court judge allowed the Hospital's petition under G.L. c. 123, §§ 7 and 8. If she was, the motion to dismiss should have been allowed and the District Court judge acted without jurisdiction. If M.A.'s conditional voluntary status was properly revoked, the judge acted properly in denying the motion to dismiss and in committing M.A.

To resolve this question, we must examine the manner in which a person's conditional voluntary status may change. As noted above, G.L. c. 123, § 11 states that when a person files a three-day notice of his or her intention to leave a hospital, the hospital may retain the person beyond the three-day notice period pending a hearing on a petition for involuntary commitment. In addition, by statute and pursuant to the regulations set out above, when a senior reviewing clinician evaluates a patient at a mandatory "periodic review" and determines that the person is no longer competent, but remains in need of hospitalization, a hospital may seek a commitment order pursuant to G.L. c. 123, §§ 7 and 8. In addition, pursuant to 104 Code Mass. Regs. § 27.08(4) and (5), when a patient on conditional voluntary admission status refuses

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to be transferred to another facility, the hospital may file a petition for commitment under G.L. c. 123, §§ 7 and 8.

M.A. asserts that, short of a discharge from care, these are the only mechanisms by which a patient's conditional voluntary admission status can change. She argues that this view is supported by a recent decision from the Northern District of the Appellate Division, Matter of M.C., 2015 Mass. App. Div. 174. In that case, the Northern District addressed circumstances similar to those presented here and concluded that the patient's motion to dismiss should have been allowed. In that case, thirteen days after admission, the attending physician believed that the patient did not have the capacity to remain on conditional voluntary status. He rescinded the patient's status in writing and filed a petition for involuntary commitment. Even though the Northern District found there was "sufficient clinical reasoning for the rescission of M.C.'s conditional voluntary status," it held that the regulations cited above required the hospital to give the patient prior written notice that it intended to conduct a competency evaluation as to his ability to remain at the hospital on a conditional voluntary status before the hospital could rescind or revoke that status and petition for involuntary commitment. Id. at 176.

Matter of M.C., however, is distinguishable from the instant case. Although not explicitly stated in the decision, it appears that in that case, the Northern District determined that the evaluation that led the attending physician to believe that M.C. did not have the capacity to remain on conditional voluntary status was performed in the course of a "periodic review." In the instant case, the motion judge determined that the hospital's evaluation of M.A.'s capacity was not made in the course of a formal periodic review, and that prior written notice is not required for ongoing clinical evaluations.

We find that the motion judge was correct in this regard. To put it plainly, the regulatory scheme for civil commitments requires written notice of formal, mandatory periodic reviews. There is, however, no statute or regulation that requires prior written notice every time a physician walks into a room to evaluate and treat a patient. Moreover, there is no statute or regulation that restricts a physician to evaluating patients only in the course of formal periodic reviews. Clearly, in the course of his or her everyday duties, on an ongoing basis, a treating physician must determine whether a patient still meets the standards for conditional voluntary admission status. In those instances where a determination is made that the patient does not meet the criteria, a hospital must be able to act in a timely fashion to provide the patient with notice that his or her conditional voluntary status is being rescinded or revoked and to file a petition for civil commitment. Forcing hospitals to comply with all of the notice requirements for scheduled periodic reviews on what may amount to a daily basis would create unnecessary hurdles and delay appropriate treatment with little or no benefit to the individual patient. Concerns over a patient's right to due process, moreover, are addressed by the requirement that once a person's conditional voluntary status terminates, a hospital must obtain authorization for continued hospitalization from a court pursuant to G.L. c. 123, §§ 7 and 8.

Turning to the second argument put forth by M.A., we note that in order for a person to be admitted on conditional voluntary status, the admitting or treating physician must make a determination that the person has the capacity to understand that he or she is agreeing to accept treatment. G.L. c. 123, § 11. If a physician determines

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that a person lacks the capacity to understand this, his or her application may not be accepted. In this case, an initial determination was made that M.A. had the capacity to understand that she was agreeing to accept treatment and that she understood the consequences of hospitalization. Subsequently, M.A.'s treating physician determined that she was still in need of continued hospitalization, but that she was no longer competent to accept or refuse treatment.

These circumstances are easily distinguished from those presented in Acting Supt. of Bournewood Hosp. v. Baker, upon which M.A. once again relies. As the Court pointed out, in that case the patient did not refuse to take all medications. She only refused to take antipsychotic medications, as was her right absent appropriate court intervention. Id. at 102. Moreover, the acting superintendent of the Bournewood Hospital took no action to terminate the patient's status as a conditional voluntary patient before filing a petition for involuntary commitment. Id. The hospital was therefore bound to work within the framework of rights afforded a patient who is admitted on a conditional voluntary basis.

As stated above, in this case the Hospital took action to terminate M.A.'s status as a conditional voluntary patient based on a determination that she no longer had the capacity to understand that she was agreeing to accept treatment, one of the statutory criteria for admission under G.L. c. 123, § 11. Although the written reason the Hospital gave for revoking M.A.'s conditional voluntary status does not track exactly the terminology set forth in 104 Code Mass. Regs. § 27.06, the stated reason is in accord with the words of the applicable statute. In short, M.A. was admitted on the basis of a determination that she had the capacity to understand that she was agreeing to accept treatment. A subsequent determination that she no longer met this statutory requirement for admission on a conditional voluntary basis was sufficient justification for revocation of her status.

For these reasons, the decision to deny M.A.'s motion to dismiss and the order of commitment are affirmed.