IN THE MATTER OF T.P.

HADLEY, P.J. On September 14, 2015, the respondent, T.P., completed an application for care and treatment at St. Vincent Hospital Center for Psychiatry (the "facility") on a conditional voluntary basis pursuant to G.L. c. 123, §§ 10 and 11. A designated physician at the facility determined that T.P. had been diagnosed with mental illness; was in need of hospitalization for mental illness; and that the facility was suitable for such care and treatment. He also determined that T.P. understood that he was agreeing to stay and receive treatment at the facility; that he would be required to sign a three-day notice of his intention to leave the facility; and that he might not be allowed to leave without a court hearing. The physician accepted the application for conditional voluntary hospitalization.

On September 16, 2015, the petitioner, the Chief of Psychiatry for Behavioral Health at the facility, noted that T.P. was refusing treatment, and was making repeated demands to leave the facility, but was too disorganized to sign a three-day notice of his intention to leave.

On September 17, 2015, the petitioner filed a petition for T.P.'s involuntary commitment under G.L. c. 123, §§ 7 and 8 in the Worcester District Court. The petition stated that T.P. was a patient at the facility pursuant to G.L. c. 123, § 12B. An accompanying affidavit stated that T.P. initially had been admitted pursuant to G.L. c. 123, §§ 10 and 11, but that his "current status" was "an involuntary admitted patient pursuant to M.G.L. c. 123 Sections 7&8, petition pending."

A hearing on the petition was held on September 23, 2015. Before any evidence was introduced, the hearing judge asked the parties' attorneys whether there were any preliminary matters to be addressed. Both attorneys said there were none, and opening statements were waived. The judge then heard testimony in support of the petition from T.P.'s treating psychiatrist. T.P. introduced no evidence. Counsel then made closing arguments addressing the question of whether the petitioner had met its burden of proof under G.L. c. 123, §§ 7 and 8. The judge allowed the petition and issued an order for involuntary commitment. He then heard additional testimony and authorized medical treatment. After five weeks of treatment, T.P. was discharged.

Almost three years later, in June, 2018, T.P. filed a motion for relief from the 2015 orders for commitment and medical treatment. In his motion, T.P. did not challenge the judge's findings of fact regarding T.P.'s mental illness, his lack of competence,

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and his need for hospitalization and medication pursuant to G.L. c. 123, § 8B. T.P. asserted, however, that the orders that were issued were void because the court lacked subject matter jurisdiction. T.P.'s motion was denied, and this appeal followed. For the following reasons, we affirm the 2018 order denying T.P.'s motion for relief from the 2015 orders for involuntary commitment and treatment.

In Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101 (2000) (Bournewood), the Supreme Judicial Court held that an involuntary commitment pursuant to G.L. c. 123, §§ 7 and 8 may not be maintained against a conditional voluntary patient who has not provided the three-day notice described in § 11. Id. at 104-105. The Court, moreover, stated that a facility is without authority to pursue such a petition and the District Court is "without jurisdiction to hear the commitment petition." Id. at 105.

More recently, the Northern District of the Appellate Division has noted that pursuant to regulations promulgated by the Department of Mental Health, specifically, 104 Code Mass. Regs. § 27.11(4), a facility does have the authority to pursue a petition against a conditional voluntary patient pursuant to G.L. c. 123, §§ 7 and 8 when, following notice to the patient and a periodic review, a patient is believed no longer to be competent. Matter of M.C., 2015 Mass. App. Div. 174. Similarly, in another case involving the commitment of a conditional voluntary patient under §§ 7 and 8, this Western District of the Appellate Division affirmed an order of commitment where there was no periodic review, but where steps had been taken to revoke the patient's conditional voluntary status before the §§ 7 and 8 petition was filed. Matter of M.A., 2017 Mass. App. Div. 8, 11.

In this case, no evidence was introduced at the commitment hearing to demonstrate that, prior to the filing of the G.L. c. 123, §§ 7 and 8 petition, T.P. gave a three-day notice of his intention to leave the facility. There was no evidence indicating that a periodic review was conducted; nor was there any evidence that T.P. was provided prior notice of the facility's intent to conduct a competency evaluation on his ability to remain at the facility on a conditional voluntary status.

On this record, T.P. may be correct in his claim that the facility, like the hospital in Bournewood, failed to follow the procedural requirements set out in the regulations of the Department of Mental Health and was without authority to petition for T.P.'s commitment. If so, following Bournewood, the District Court judge may have been without jurisdiction to hear the commitment petition or order medication.

As stated above, however, T.P. did not raise this issue at the commitment hearing and did not file a timely notice of appeal to challenge the trial judge's determination that his orders could properly be entered. In Harris v. Sannella, 400 Mass. 392 (1987), the Supreme Judicial Court said in the context of a Mass. R. Civ. P. 60(b) motion, "While absence of subject matter jurisdiction may make a judgment void, such total want of jurisdiction must be distinguished from an error in the exercise of jurisdiction. A court has the power to determine its own jurisdiction, and an error in that determination will not render the judgment void. Only in the rare instance of a clear usurpation of power will a judgment be rendered void. An error in interpreting a statutory grant of jurisdiction is not . . . equivalent to acting with total want of jurisdiction and does not render the judgment a complete nullity" (internal quotations and citations omitted). Id. at 395.

In Sarin v. Ochsner, 48 Mass. App. Ct. 421 (2000), the Appeals Court stated, "Whether the facts of a given case meet the standard for exercising jurisdiction . . .

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has been termed a 'quasi-jurisdictional' determination." Id. at 424, quoting Lubben v. Selective Serv. Sys., 453 F.2d 645, 649 (1st Cir. 1972). "These facts do not go to the subject matter of jurisdiction, but to a preliminary fact necessary to be proven to authorize the court to act. While such a quasi-jurisdictional determination can be challenged on appeal, unless it is a clear usurpation of power, it is immune from attack under rule 60(b)" (emphasis in original; internal quotations and citations omitted). Id.

In conclusion, the 2015 orders may or may not have been lawful (a point that we need not decide), but they were not void, and a Mass. R. Civ. P. 60(b) motion is not a proper alternative to a timely appeal.See Harris, supra at 395. The judge's decision denying T.P.'s motion for relief from these orders is affirmed and the request that the 2015 orders for involuntary commitment and medication be vacated is denied.