IN THE MATTER OF J.S.

CRANE, J. This is an appeal from the denial of a first request for continuance in a proceeding for civil commitment pursuant to G.L. c. 123, §§ 7 and 8, and for treatment under § 8B. We vacate the orders for commitment and treatment because the request for continuance was denied. We also address certain evidentiary issues relating to expert testimony and whether a substituted judgment analysis must be conducted before ordering involuntary treatment with non-antipsychotic medications.

The respondent was a patient at Tewksbury State Hospital ("Tewksbury") at the time of the hearing. He was diagnosed with schizoaffective disorder. He first showed symptoms in his early twenties. At the time of hearing, he was fifty years old and blind or with significant enough vision impairment that he received services from the Commission for the Blind.

He was transferred to Tewksbury from Newton-Wellesley Hospital ("Newton-Wellesley") on April 5, 2018. He had been an in-patient at Newton-Wellesley since September, 2017. He was admitted there from a group residence in the community. His health had deteriorated because he was not taking medications as prescribed. Before that, he was an in-patient at Tewksbury beginning in 2013 and continuing until sometime in 2015 when his health had improved enough for him to be discharged to the community. He also had hypertension and hypothyroid conditions that required treatment with medications to maintain his health.

The uncontroverted evidence of the respondent's mental health history was that he improved when he took antipsychotic and mood stabilizer medications as prescribed. The improvement was significant enough to permit him to return to the community with proper support in his living arrangements. He also had a history of refusing to take either or both of these medications followed by deterioration in his mental health. When this happened, the respondent engaged in episodes of self-harm and hypersexual behavior to provoke others. During his current admission at Tewksbury, the respondent was alleged to have made hypersexual statements to female staff members that were upsetting to them and had expressed a desire to die. He was attempting to accomplish this by refusing to take medications for his hypertension and hypothyroid conditions.

The respondent was authorized to be treated with antipsychotic and other medications pursuant to G.L. c. 123, § 8B. The Newton District Court entered that order on October 20, 2017 after ordering the respondent committed pursuant to G.L. c. 123, §§ 7 and 8. Both the order for commitment and for treatment included provisions for expiration on April 20, 2018.

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The respondent contends that the hearing judge 1) abused her discretion when she denied the respondent's motions to continue the hearing; 2) admitted hearsay, with and without objection, resulting in prejudicial error that amounts to a miscarriage of justice; and 3) committed clear error by authorizing treatment with mood stabilizers, particularly Lithium, pursuant to G.L. c. 123, § 8B without conducting a "substituted judgment" analysis of whether the respondent, if competent, would decide to be treated with mood stabilizers, including written findings.

1. Procedural and factual background. When the hearing commenced, the respondent insisted upon representing himself. Counsel was appointed to represent the respondent the day after the petition was filed on April 20, 2018. The respondent and counsel consulted several days before the hearing commenced. The respondent wanted to represent himself and did not want appointed counsel. Nevertheless, appointed counsel was present and participated as standby counsel for the respondent during the hearing.

At the outset of the scheduled hearing on May 4, 2018, the respondent moved to continue the hearing for thirty days. The respondent wanted the continuance because he was blind, and no one had read the petition to him. He also wanted to subpoena his case manager from a group residence where he had lived. The petitioner opposed the continuance because the previous court order pursuant to G.L. c. 123, § 8B authorizing treatment of the respondent with antipsychotic and other medications had expired on April 20, 2018.

The judge conducted a preliminary hearing on the question of whether to continue the hearing in chief. She heard testimony from the respondent's treating psychiatrist about the respondent's mental health history and treatment, his responses to treatment, and the challenges that other treatment providers had encountered in treating the respondent. There was no objection to this testimony. The respondent then testified that he had decided not to take antipsychotic medication to improve his ability to represent himself at the hearing and refused to take mood stabilizing medication at all. The respondent asserted that he would voluntarily resume antipsychotic medication after the impending hearing. The court then denied the motion to continue.

The hearing on the petition under G.L. c. 123, §§ 7 and 8 was then commenced with the respondent continuing to represent himself. During the testimony of the respondent's treating psychiatrist, the judge suspended the proceedings and terminated the respondent's self-representation and conducted the remainder of the hearing with appointed counsel representing the respondent. At this point, the respondent renewed his motion to continue the hearing, asserting that he needed time to confer with counsel if he was not going to represent himself. That motion was denied, and the hearing continued. The respondent's treating psychiatrist then largely repeated [Note 1] his testimony about the respondent's mental health history and treatment, his responses to treatment, and the challenges that other treatment providers had encountered in treating the respondent. The respondent and his counsel objected

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only once to this testimony on the ground that it was hearsay. To that objection, the judge ruled that it was admitted for purposes of diagnosis only. The respondent now seeks review of the admission without objection of all of this hearsay testimony under a miscarriage of justice standard of review.

After concluding the hearing on the petition under G.L. c. 123, §§ 7 and 8, the court heard the parties on the petition for treatment with antipsychotic medications pursuant to § 8B. Except for suspending antipsychotic medications to be more capable to participate in the hearing, the respondent testified that he would take them voluntarily. Still, he had a history of being noncompliant in taking them. However, he did not want to take medications to stabilize his mood. He believed that Lithium increased his risk for renal failure and that he had previously experienced Lithium toxicity because his Lithium levels were not adequately monitored while at Tewksbury.

At the conclusion of the hearing, the court authorized that he be administered both as part of a medication treatment plan. The court's order included a substituted judgment analysis in support of the order for treatment with antipsychotic medication. G.L. c. 123, § 8B(d); Guardianship of Roe, 383 Mass. 415, 435-436 (1981). It did not include any substituted judgment analysis in support of the order for any mood stabilizing or antianxiety medication. The respondent asserts that it was error to order the other medications without a substituted judgment analysis. The petitioner asserts that medications other than antipsychotics could be administered involuntarily based upon the best interests of the patient, and did not require a substituted judgment analysis to support authorization of administration of these medications.

2. Continuance. It is mandatory to grant a respondent's first request for a continuance in a proceeding pursuant to G.L. c. 123, §§ 7 and 8, where a denial thereof is reasonably likely to prejudice a person's ability to prepare a meaningful defense. G.L. c. 123, § 7(c); Matter of N.L., 476 Mass. 632, 636 (2017). "Where a judge denies the requested continuance she must state with particularity the reasons why the denial is not reasonably likely to prejudice a person's ability to prepare a meaningful defense on the record. Because the denial of a continuance will require the careful balancing of the due process rights of the person against any countervailing factors, these findings will be reviewed under an abuse of discretion standard." Matter of N.L., supra at 637.

The hearing judge did not state any reasons for denying the request for continuance, although she did inquire about whether certain records referred to by the respondent's treating psychiatrist were available to the respondent and when. She properly heard and considered the respondent's treating psychiatrist's testimony about the likely effect of delaying the hearing on the respondent's health and safety. [Note 2] It was within her discretion to grant a continuance as long as reasonably necessary to protect the respondent's right to prepare a meaningful defense, made solely with the patient's interests in mind. Id. The hearing judge also properly asked the respondent's treating psychiatrist how long it would be before he began to decompensate

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after he refused to take Prolixin, the respondent's antipsychotic medication. The psychiatrist testified that it would be two to three days. It would have been reasonable to grant a continuance for a matter of hours or days to permit standby counsel to read the petition to the respondent and any records that were to be offered [Note 3] with a statement of reasons. Still, it was an abuse of discretion and error to deny the request for continuance without stating reasons therefor with particularity where the respondent was attempting to represent himself with standby counsel, and especially where the respondent was blind or substantially visually impaired. See Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 846-849 (2019). Consequently, the orders for commitment and treatment will be vacated.

3. Evidentiary issues. There was no error in admitting the respondent's statement to his treating psychiatrist that he wanted to die and that he refused to take medications for hypertension and hypothyroidism. These were admissions by a party. Mass. G. Evid. § 801 (2018). The respondent also asserts that his treating psychiatrist was not qualified to give an opinion that the respondent's refusal to take medications for these conditions was life threatening. The judge conducted voir dire of the treating psychiatrist's qualifications as a licensed physician with over twenty-five years' experience treating psychiatric patients and found him to be qualified. The respondent then stipulated to his qualifications. It is within the discretion of the hearing judge to determine whether a witness is qualified to provide an opinion on the consequences of his patient's refusal to take medications under these circumstances. Commonwealth v. Frangipane, 433 Mass. 527, 533 (2001). There was no abuse of discretion in receiving the witness's opinion that refusing to take these medications was life threatening to the respondent and done to attempt to accomplish his stated desire to die.

The respondent also contends that it was error to admit testimony from his treating psychiatrist on direct examination concerning the reasons for the respondent's previous hospital admissions. We agree. It is well established that an expert witness may not testify on direct examination concerning the contents of records or other information that may be admissible upon proper foundation but which is not in evidence. Commonwealth v. Chappell, 473 Mass. 191, 203-204 (2015); Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531-532 (1986). The records from which the treating psychiatrist obtained this information may have been in the hearing room, but they were never offered or admitted into evidence. For the same reason, any allegedly hypersexual statements to the staff or other conduct on the unit at Tewksbury should not have been admitted through the treating psychiatrist's direct testimony unless he directly heard or observed them. We do not address whether the admission of this evidence constituted reversible error or created a substantial risk of a miscarriage of justice because the order of commitment will be vacated for the previously stated reasons.

4. Standard of proof for mood stabilizers. The hearing judge authorized treatment

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of the respondent with Lithium and other mood stabilizers over the respondent's express objection without conducting a substituted judgment analysis. The respondent contends this was error and that if a substituted judgment analysis were conducted, the evidence was insufficient to overcome the respondent's objection. The petitioner concedes that the hearing judge did not conduct a substituted judgment analysis concerning involuntary treatment of the respondent with Lithium but contends that none was necessary since it was not an antipsychotic. Instead, it contends that the applicable standard for treatment with mood stabilizers like Lithium is the best interests of the patient and that the judge heard sufficient evidence to support involuntary treatment with mood stabilizers under this standard.

We also note that respondent never requested that the hearing judge conduct a substituted judgment analysis concerning any order for medication with Lithium or other mood stabilizers. Under these circumstances, we are not obliged to review this issue because the respondent failed to raise it below. It is raised for the first time in his brief on appeal. Kennie v. Natural Resource Dep't of Dennis, 451 Mass. 754, 760 n.13 (2008). Nevertheless, because the order will be vacated for the reasons previously stated, and this issue is likely to arise in future proceedings in this matter and the parties have fully briefed and argued the issue, we will provide guidance to the parties and the court for those proceedings. Board of Health of Sturbridge v. Board of Health of Southbridge, 461 Mass. 548, 561 (2012).

We start with the pertinent provisions of G.L. c. 123, § 8B that authorizes involuntary treatment. "With respect to any patient who is the subject of a petition for a commitment or an order of a commitment for care and treatment . . ., the superintendent of a facility . . . may further 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 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." G.L. c. 123, § 8B(a). There is no dispute that the respondent was incapable of making informed decisions about medical treatment and that the hearing judge properly made a substituted judgment analysis that he be treated with antipsychotic medications. Where Lithium is not an antipsychotic medication but is part of the treatment plan required by G.L. c. 123, § 8B(d), the question that remains is what is the applicable legal standard that a court must apply pursuant to § 8B(a)(iii) before ordering a mood stabilizer to which the respondent expressly objects.

The petitioner acknowledges that there are treatments and procedures that are not antipsychotics that require a substituted judgment analysis. [Note 4] Mood stabilizers and other medications that are not antipsychotics are not among these treatments

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and procedures that have been identified as requiring substituted judgment analysis. We reject the petitioner's argument that since G.L. c. 123, § 8B(a)(ii) and (d) require "substituted judgment" only for antipsychotics that the Legislature intended to exclude any other medications. If we were to accept this argument, it would ignore the provisions of § 8B(a)(iii) and that medical providers may only administer or conduct such treatments and procedures in nonemergency situations following substituted judgment analysis.

We look to the following principles to determine whether a "substituted judgment" analysis is required to determine whether the respondent should be required to take mood stabilizers over his objection:

"The basic conclusions we reach are that a committed mental patient is competent and has the right to make treatment decisions until the patient is adjudicated incompetent by a judge. If a patient is adjudicated incompetent, a judge, using a substituted-judgment standard, shall decide whether the patient would have consented to the administration of antipsychotic drugs. Guardianship of Roe, 383 Mass. 415, 443-448 (1981). Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 750-755 (1977). No State interest justifies the use of antipsychotic drugs in a nonemergency situation without the patient's consent. . . . A patient may be treated with antipsychotic drugs against his will and without prior court approval to prevent the 'immediate, substantial, and irreversible deterioration of a serious mental illness.' If a patient is medicated in order to avoid 'immediate, substantial, and irreversible deterioration of a serious mental illness,' and the doctors expect to continue to treat the patient with antipsychotic medication over the patient's objection, the doctors must seek adjudication of incompetency, and, if the patient is adjudicated incompetent, the court must formulate a substituted-judgment treatment plan."

Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 490-491(1983).

We apply these principles as well as the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011) [Note 5] to determine whether the administration of mood stabilizers to the respondent over his objection requires a substituted judgment analysis in the current circumstances. Standard 7:04 states:

"7:04 Authorizing Treatments Other than Antipsychotic Drugs

"If a § 8B petition requests authorization for medical treatment for mental illness other than by antipsychotic drugs, and the court finds the respondent

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incompetent, the court should then decide whether it must apply a substituted judgment standard. This should be determined based on the following factors:

1. the intrusiveness of the proposed treatment,

2. the possibility of adverse side effects,

3. the presence or absence of an emergency precluding a judicial determination,

4. the nature and extent of prior judicial involvement, and

5. the likelihood of conflicting interests. . . .

"The court may authorize medical treatments that are ancillary to treatments for mental illness, such as drugs that are prescribed to prevent or treat side effects of antipsychotic drugs."

Id.

Taking these factors in order, we observe the following.

Intrusiveness of proposed treatment. The respondent's treating psychiatrist proposed to administer both antipsychotic and mood stabilizing medication to him. The first was to address the psychotic symptoms of the respondent's schizoaffective disorder. The mood stabilizers were to improve the respondent's aggressiveness or violence towards others so that he is no longer hypersexual or grandiose. These medications are to be administered by injection if the respondent will not take them by mouth. During past admissions when these medications have been administered together, the respondent has improved to the point where he could be discharged to the community with proper outpatient care continuing. Under these circumstances, where the mood stabilizers are to be administered in conjunction with antipsychotics to accomplish a change in the respondent's mental processes to alter his behavior, the administration of mood stabilizers is no less intrusive than antipsychotic medications.

Possibility of adverse side effects. The treating psychiatrist testified that possible side effects from Lithium or other mood stabilizers include tremors, hair loss, and gastrointestinal symptoms. He also identified kidney, liver, and thyroid functions would require monitoring with blood tests. Because the respondent had hypothyroidism, he would also need to take a thyroid supplement. The treating psychiatrist also conceded that Lithium toxicity could be a problem but stated that any risk could be adequately monitored through blood tests. The respondent also expressed concerns about his liver function or renal failure as a result of taking Lithium or another mood stabilizer. Again, these potential adverse side effects would require the same or similar monitoring as potential side effects from antipsychotic medications.

Presence or absence of emergency precluding judicial determination. There was no emergency precluding judicial determination.

Nature and extent of prior judicial involvement. The court heard the then current evidence to conduct a substituted judgment analysis for both antipsychotic medications and mood stabilizers. The only additional action was to make findings and rulings that reflected a substituted judgment analysis on the administration of mood stabilizers in addition to the one it made before ordering antipsychotic medications.

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Likelihood of conflicting interests. "The fact that a patient has been institutionalized and declared incompetent brings into play the factor of the likelihood of conflicting interests." Rogers, supra at 503.

We conclude that when a party objecting to taking a non-antipsychotic medication being administered in conjunction with an antipsychotic medication requests that the court conduct a substituted judgment analysis concerning involuntary administration of the non-antipsychotic, the hearing judge must conduct a substituted judgment analysis for both the antipsychotic and non-antipsychotic medications before ordering the respondent to be administered any non-antipsychotic medication that he expressly opposes as part of a treatment plan that includes antipsychotic medications.

The respondent also urges that the hearing judge committed clear error in her substituted judgment findings made in support of the order for antipsychotic medication. The respondent alleges it was clear error to find, "The respondent accepts prescribed medications and is currently accepting the antipsychotic medication Prolixin." The hearing judge's marginal comment was, "Not so, respondent agree [sic] to take it now -- he discontinued for one day -- today." There was no error. It is clear that the hearing judge only considered the administration of antipsychotics in her substituted judgment analysis, and not mood stabilizers. The evidence supported this finding about the respondent taking Prolixin, an antipsychotic medication. The hearing judge ordered the respondent to take a mood stabilizer in the treatment plan entered pursuant to G.L. c. 123, § 8B(d) over the respondent's objection. Since the hearing judge did not conduct a substituted judgment analysis of whether the respondent would accept mood stabilizers if competent, and the parties may present additional evidence to meet the standard of substituted judgment analysis, we express no view concerning whether the evidence was sufficient to support an order that he would have accepted mood stabilizers if competent.

The trial court's allowance of the commitment petition is reversed, and an order is to enter vacating the orders of commitment and treatment.