2019 Mass. App. Div. 135

January 19, 2018 - October 31, 2019

Appellate Division Northern District

Court Below: District Court, Ayer Division

Present: Coven, P.J., Crane & Nestor, JJ.

No brief filed for the petitioner.

Roberta Mann Driscoll for the respondent.

NESTOR, J. This is an appeal from an order of the Ayer District Court civilly committing the respondent, J.O., to the Nashoba Valley Medical Center pursuant to G.L. c. 123, §§ 7 and 8. The order of commitment has expired. We nevertheless review the issues raised on this appeal. Matter of F.C., 479 Mass. 1029 (2018). The respondent argues that the petitioner violated due process where its witness's testimony at the commitment hearing differed from the allegations in the petition, and that petitioner presented insufficient evidence of patient's mental illness, likelihood of serious harm, and of no less restrictive alternative to commitment.

The petition, dated May 23, 2017 and filed by Leonid Zolotnitskiy ("Zolotnitskiy"), alleged that patient suffered from mood disorder and, by virtue of this disorder, presented a "likelihood of serious harm" under each of that term's three definitional prongs. The hearing was held on June 13, 2017. The petitioner called Dr. Zolotnitskiy, a licensed doctor with certification in general psychiatry. He was qualified as an expert witness. The respondent called her landlord as a witness.

At the hearing on June 13, 2017, there was testimony that J.O. was in a nursing home suffering from acute medical problems, including chronic obstruction pulmonary disease, a spinal cord fusion, and fibromyalgia. The pulmonary disease is a serious, imminent concern that if not treated regularly could result in death by asphyxiation. She also had a stroke on April 11, 2017.

As a result of acting out at the nursing home, she was sent to the hospital under G.L. c. 123, § 12. She was admitted to the geropsychiatric unit of the hospital on April 28, 2017.

Dr. Zolotnitskiy diagnosed J.O. as having a psychotic disorder not otherwise specified, a personality disorder not otherwise specified, and a mood disorder not otherwise specified. J.O. had threatened to harm herself by walking into traffic in the parking lot at the nursing home. She also indicated that the nursing home was an environment "with people who were killing other people."

J.O. exhibited significant paranoid thoughts and delusions while at the hospital. She accused the court of being a "marionette" in the hands of the hospital. She believed that nurses were giving her the wrong medication. She threatened to sue Dr. Zolotnitskiy for keeping her against her will without any valid reason. She put herself on the floor saying she was attacked by hospital staff. She threatened to kill patients at the nursing home. She stated that she was going to kill herself. She repeatedly banged her head against the door and the floor. She attacked the nursing station. She threatened to punch a patient if that patient entered her room. She indicated

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that "there would be bloodshed when she would be over there."

She also went into the common area without pants on with an open gown in the back.

Some days the patient was depressed; some days she was elated. J.O. needed help with daily living requirements such as bathing and dressing. She refused most medications and denied having any medical or psychological problems.

During the hearing, J.O. in an outburst called Dr. Zolotnitskiy a "baboon."

Dr. Zolotnitskiy testified that based upon the foregoing, there was no less restrictive alternative for treating J.O.

J.O.'s landlord, for her part, testified that prior to J.O.'s hospitalization, she had maintained her apartment in good order and had been timely with her rent payments.

1. For the first time on appeal, J.O. argues that the petitioner violated her right to due process in two ways: one, by alleging in the petition that she suffered from mood disorder but testifying "primarily" at the hearing that she suffered from a psychotic disorder not otherwise specified; and two, by alleging in the petition under prong 1 that she walked into traffic but testifying at the hearing to other instances of risk of harm to the patient herself not alleged in the petition. Patient relies upon Matter of S.S., 2016 Mass. App. Div. 101, in which we held that it was a violation of the respondent's right to procedural due process to order her commitment on the only ground supported by the evidence, substantial risk of serious harm to herself, when this ground was not alleged in the petition.

This issue was not raised in the trial court. Regardless, we note that Dr. Zolotnitskiy, in addition to testifying in support of other diagnoses, testified at the hearing in support of his diagnosis of mood disorder in the petition, symptoms of which he stated overlapped with his other diagnoses. Further, under prong 1 of the petition, Dr. Zolotnitskiy described the "evidence of prior behavior" to support his belief of such likelihood of serious harm not only as "[r]espondent walked into traffic in an attempt at suicide on or about May 16, 2017" but also as "[respondent] speaks of wanting to shoot herself." At the start of the hearing, petitioner's counsel clarified for the court that, after his speaking to J.O.'s counsel, patient only threatened to walk into traffic on that date. Dr. Zolonitskiy did not, in any event, testify to this particular suicide threat, but did testify that patient had threatened to kill herself and that "[s]he didn't say how she's going to kill herself, but she said it would be bloodshed." We do not read Matter of S.S. as requiring vacating the commitment order in these circumstances.

2. J.O. also argues that petitioner failed to present sufficient evidence to support the court's 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; Commonwealth v. Nassar, 380 Mass. 908 (1980). See Matter of G.P., 473 Mass. 112 (2015).

A. J.O. argues that petitioner presented insufficient evidence of mental illness, beyond a reasonable doubt, in that Dr. Zolotnitskiy failed to differentiate the patient's symptoms related to her mental illness from symptoms related to her medical condition, and failed to testify to the specific criteria upon which he made his diagnosis

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of mood disorder not otherwise specified, which no longer appears in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ("DSM-5").

At the time this commitment petition was filed and decided by the court in 2017, the Department of Mental Health defined the term "mental illness," under the authority of G.L. c. 123, § 2, as follows:

"For the purpose of involuntary commitment, mental illness is defined as a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, but shall not include alcoholism or substance abuse which is defined in M.G.L. c. 123, § 35."

104 Code Mass. Regs. § 27.05(1). [Note 1]

Mental illness under the regulation is not the same as mental disorder under the DSM-5. "In mental health proceedings, reference is often made to the diagnostic categories described in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association . . . . Although the court may find such clinical diagnoses, and the clinical observations which support them, of some value in the fact-finding process, the court should always require specific evidence of a 'substantial [mental] disorder' which 'grossly impairs' the person's functioning . . . ." Commentary to Standard 2:00 of the Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011).

Dr. Zolotnitskiy testified that J.O.'s mood disorder resulted in symptoms of "affective instabilities very significant, very impressive. She's very labile. She's moving from one extreme to another extreme, from severe depression to elated and angry and irritable hostile mood, and it could change any minute." He also referred to the psychotic symptoms previously mentioned in his testimony: "[P]atient . . . is very affectively instable, she's feeling depressed and actually prepared to die the day, a certain day, and telling people next day she was saying she's doing great and wants to dance, and she is very labile all the time, very irritable, very verbally aggressive, accusatory." "Patient is on and off paranoid. She is on and off persecutory delusions," he stated. This evidence was sufficient to support a finding of mental illness as

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defined in the regulation. Further, even if the amended regulation were to apply, see note 1, supra, although he commented that the patient's medical conditions complicated and affected her psychological functioning, we think the doctor through his testimony sufficiently tied the patient's symptoms noted above to her mental illness. [Note 2]

B. As to J.O.'s likelihood of serious harm, there was sufficient evidence at the commitment hearing under prong 1 of G.L. c. 123, § 1 to support the court's finding. Prong 1 requires "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." Further, the Supreme Judicial Court has held there must be a showing that the harm is imminent. Matter of G.P., supra at 127. "Imminent" does not mean "immediate," however. Id. at 128. The petitioner need not establish that the harm will occur immediately, but rather that it will occur in the reasonably short term. Id.; Matter of A.M., 94 Mass. App. Ct. 399, 402 (2018). "We may accept, further, that in the degree that the anticipated physical harm is serious -- approaches death -- some lessening of a requirement of 'imminence' seems justified." Matter of G.P., supra at 128, quoting Commonwealth v. Nassar, 380 Mass. 908, 917 (1980). Here, Dr. Zolotnitskiy testified that during her time on the geropsychiatric unit, J.O. had threatened suicide and had been banging her head against the floor and the door. According to the doctor, she did not express how she would kill herself, but that there would be bloodshed. We consider this behavior sufficient for the judge to find a substantial, imminent risk of harm to the patient herself.

C. Finally, J.O. argues there was insufficient evidence to support a finding that there was no less restrictive alternative to hospitalization. Specifically, she points to testimony by her landlord, who stated that the patient had an apartment with services that came to her home, including meals on wheels, hospice, and a cleaning service. Dr. Zolotnitskiy opined, however, that there was no less restrictive alternative to the locked geropsychiatric unit at the hospital, in light of patient's emotional instability, suicidal and homicidal threats, noncompliance with treatment, denial of psychiatric problems, and the resulting profound effect on her judgment. He stated that neither a skilled nursing facility nor her apartment would be viable options, and concluded that "I believe she's not able to be discharged to any place" until she is stable. We find no error in the trial court's determination that the J.O. could not be appropriately maintained in her current state outside the hospital setting.

The order of commitment is affirmed.


[Note 1] Effective February 23, 2018, this definition was amended to the following:

"For the purpose of involuntary commitment, mental illness is defined as a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life, but shall not include intellectual or developmental disabilities, autism spectrum disorder, traumatic brain injury or psychiatric or behavioral disorders or symptoms due to another medical condition as provided in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, or except as provided in 104 CMR 27.18, alcohol and substance use disorders; provided however, that the presence of such conditions co-occurring with a mental illness shall not disqualify a person who otherwise meets the criteria for admission to a mental health facility" (emphasis added).

[Note 2] On cross-examination, to J.O.'s counsel question of whether the symptoms of J.O.'s stroke would mirror mental illness, the doctor answered, "This is secondary to medical condition. Psychosis is (indiscernible), but depression is definitely became [sic] worse, and that's why she carries diagnosis NOS, which is (indiscernible)." We are not aware of any efforts by respondent to reconstruct this portion of the testimony under Dist./Mun. Cts.

R. A. D. A. 8C(c)(4). To the extent this testimony may have varied from Dr. Zolotnitskiy's earlier testimony, inconsistencies in a witness's testimony are a matter for the fact finder, who is free to accept or reject testimony in whole or in part. Commonwealth v. Fitzgerald, 376 Mass. 402, 411 (1978).