IN THE MATTER OF K.M.

FLYNN, J. This case involves an appeal from an order of the Cambridge District Court committing K.M. to McLean Hospital ("hospital") under G.L. c. 123, §§ 7 and 8, and an order for a treatment plan made under § 8B.

Background. K.M., at the time of her hospitalization on June 20, 2017, was thirty years old. She was admitted after having self-presented to the hospital because of her fears that something was going to happen.

Dr. Robert Aranow ("Aranow"), the attending psychiatrist, testified that on evaluation he found K.M. to be neatly groomed but not coherent, with fragmented sentences that he described as self-contradictory and unreconcilable. He indicated that K.M. was not sure who her real father was, Osama bin Laden or George Bush. She told Dr. Aranow that she was bleached white as a baby because she was black. She further related that she had died from beatings by her adoptive parents. He testified that her disorganized thinking was pervasive, and that she was isolated and laughing to herself on the unit.

Dr. Aranow stated he was of the opinion that K.M. suffered from a mental illness, with a diagnosis of schizophrenia, with markedly disorganized thought content and self-contradictory statements and beliefs. He further found her to be guarded about where she would go if she left the hospital. She told Dr. Aranow that she had looked into giving away all of her property and that she did not want to return to her apartment in New Hampshire. She was very evasive about her plans when she left the hospital, talking about a hotel, then a farm, and she admitted that her credit card was no longer valid.

Dr. Aranow acknowledged that K.M. was not posing any risk of suicide or homicide. Dr. Aranow gave his opinion that K.M.'s judgment was impaired by her illness and that put her at risk of harm given her delusional beliefs. He was concerned that K.M.'s fragmented, bizarre thinking was not reality based. He described an incident in the hospital where she would not get out of bed or leave her room during "an actual fire alarm, not a drill," and that the staff had to take the covers off her head and help her out of bed. He was concerned that this type of behavior, along with her disorganized thinking, would put her at risk outside of the hospital setting. He was also worried about her safety given that she made claims that she had people who would make sure she was not harmed, but she was unable to give any details of who these people were.

Dr. Aranow was also concerned that she could not care for herself outside the hospital given that she was giving up her apartment and her belongings

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and had no place to go at this time. He was also concerned about her reliance on "her people" watching over her and making sure nothing bad happened to her, but not being able to give any details on who these people were and how they would take care of her. He was concerned that she did not have any way to feed herself and that her credit card was no longer valid. The doctor testified that K.M. had no insight into her illness and that there were no less restrictive alternative settings other than an inpatient psychiatric facility.

K.M. was not present at the hearing on the commitment petition, and no evidence was presented on her behalf. The trial court found that the petitioner had met its burden and allowed the commitment petition for up to six months. At the start of the hearing on the petition under G.L. c. 123, § 8B, K.M.'s counsel filed a motion in limine to exclude evidence based on the K.M.'s privileged communications with Dr. Aranow. Dr. Aranow testified that he had not given K.M. a warning under § 8B(h) about the privilege. Upon the hospital's request, the court continued the matter to July 18, 2017 for Dr. Aranow to give K.M. the warning under § 8B(h) and to reevaluate her.

On July 18, 2017, the trial court heard further testimony on the petition under G.L. c. 123, § 8B over K.M.'s counsel's objection. After the conclusion of the hearing, the court made the necessary findings and allowed the § 8B petition and ordered treatment with antipsychotic medications.

On August 30, 2017, K.M. was discharged from the hospital.

Discussion. Before this appeal was heard, K.M. 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 decide on the issues presented. K.M. challenges the sufficiency of the evidence to support the court's finding of a likelihood of serious harm, and she challenges both the procedural nature of the continuance of the treatment hearing and the effectiveness of the warning under G.L. c. 123, § 8B(h).

After considering the evidence and the law, we affirm the order of commitment. 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; Matter of G.P., 473 Mass. 112 (2015); Commonwealth v. Nassar, 380 Mass. 908 (1980). 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

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to protect himself in the community and that reasonable provision for his protection is not available in the community."

The Supreme Judicial Court in Matter of G.P. imposed 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 week rather than in months." Id. at 128. As to the third prong, the Court 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. 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").

This matter rests on the application of the third prong, and we find that the evidence presented by the hospital in the instant matter was sufficient to support the court's finding of a likelihood of serious harm as a result of the respondent's mental illness.

Dr. Aranow stated that K.M. suffered from a mental illness, and diagnosed her with schizophrenia with markedly disorganized thought content. He indicated that she was not sure who her father was, she was bleached white as a baby, and that her thinking was very disorganized. Dr. Aranow testified that she was very guarded about where she would go if she left the hospital, she had been clear she did not want to return to her apartment, and was looking into giving away her belongings. Dr. Aranow opined that he believed her judgment was impaired and that put her at risk given her delusional beliefs. He was concerned that her fragmented, bizarre thinking was not reality based. He was concerned that her inability to respond to true emergencies would put her at risk outside of the hospital setting as evidenced by her inability to comprehend and respond to an actual fire alarm in the hospital. He did not believe she could care for herself in her current condition given her inability to put together a plan as to where she would go and her reliance on undisclosed "her people" to keep her safe when she was unable to identify who these people were. He was also worried she did not have any resources to provide for herself, be it shelter or otherwise. Dr. Aranow opined that there was no less restrictive alternative setting available or appropriate for her. In K.M.'s delusional state and without any available support or resources, we find that the evidence was sufficient to allow the trial court to make the necessary findings allowing the petition for commitment, and we affirm.

As to the order of treatment pursuant to G.L. c. 123, § 8B, we find that we must vacate the order of treatment. K.M. challenges both the procedural nature of the continuance and the effectiveness of the warning required by § 8B(h). The record reflects that a required § 8B(h) warning was not given prior to the initial

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hearing and even after a continuance, we find the record does not reflect that K.M. properly comprehended the warning. This issue was not briefed by the hospital and is apparently conceded.

Accordingly, we affirm the order of commitment and vacate the order of treatment.