2019 Mass. App. Div. 154

April 13, 2018 - November 14, 2019

Appellate Division Western District

Court Below: District Court, Pittfield Division

Present: Hadley, P.J., McGill & D'Angelo, JJ. [Note 1]

Revised January 9, 2020.

Jennifer G. Carpenter and Diane M. DeGiacomo for the petitioner.

Melanie S. Lewis for the respondent.

PER CURIAM. The respondent, M.S., appeals from orders of the Pittsfield District Court committing M.S. to the Berkshire Medical Center ("Berkshire") and authorizing the administration of antipsychotic medication pursuant to G.L. c. 123, §§ 7, 8, and 8B.

M.S. asserts that the hearing judge erred by allowing her treating psychiatrist to state the basis for his opinion and by allowing the petitioner to introduce inadmissible hearsay on direct examination. The respondent also asserts that the judge erred when he purportedly invited the respondent to leave the hearing room and then proceeded with the G.L. c. 123, § 8B hearing in the respondent's absence. M.S. further argues that during the § 8B hearing, the judge allowed the respondent's communications to be disclosed without any indication that M.S. had made a knowing and voluntary waiver of her right to confidentiality. Finally, the respondent maintains that the court's ruling on the question of competence in the context of the § 8B hearing was against the weight of the evidence and was clearly erroneous. [Note 2]

We have considered the record below and each of the respondent's arguments and have determined that the psychiatrist's testimony did include inadmissible hearsay, and that the petitioner's expert was asked to state the basis for his opinion. The respondent, however, waived her right to appeal on these grounds by failing to make timely objections. We find, moreover, that even without those portions of the evidence that might have been ruled inadmissible, the remaining evidence was sufficient to support the orders for involuntary commitment and medication. We also find that the respondent's rights were not compromised as the respondent asserts. For these reasons, as set forth in more detail below, we affirm the orders for commitment and treatment.

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In December, 2016, M.S. was hospitalized at Berkshire on an emergency basis pursuant to G.L. c. 123, § 12(a) and (b). At the hearing that gives rise to this appeal, the petitioner relied entirely upon testimony from a board-certified adult psychiatrist (the "psychiatrist") who had been treating M.S. for three years. No medical records or any other documents were introduced.

When the psychiatrist was asked about M.S.'s previous hospitalizations at other facilities, the respondent's attorney voiced a one-word objection of "foundation." In response to the objection, the judge asked the psychiatrist to identify the source of his information on this subject. He stated that he had reviewed the records from the respondent's prior hospitalizations and that he had spoken with M.S. and her father. The respondent's objection was overruled, and the psychiatrist went on to state that M.S. first was hospitalized in 2003 or 2004 when she was diagnosed with bipolar disorder, psychotic features. The respondent's attorney objected again, stating that some of this information was based on statements provided by the respondent's father, and was inadmissible. She asked for clarification of the source of the information the psychiatrist was relating. In response, the judge directed the witness to limit his testimony to what he had learned "from the medical records" and from direct interviews with the respondent.

Without any further objection, the psychiatrist reported that M.S. had been admitted to a hospital in Brooklyn, New York in 2014, after she had been living in a subway. He stated that she was taken to a hospital by the police after she told officers she had been shot and had been pursued by gang members. He testified that M.S. had been hospitalized in New York from November, 2014 through April, 2015, when she was transferred to a long-term facility in New York. He stated that M.S. remained at that facility until January, 2016, when she was discharged to her father. He stated that thereafter M.S. was admitted to a psychiatric hospital in Albany, New York, where she remained until October, 2016.

The psychiatrist was then asked to state the circumstances under which M.S. came to be a patient at Berkshire in October, 2016. He testified that M.S. had left her home in the middle of the night and had gone to a neighbor's house, and that the neighbor had called the police. The respondent's attorney objected, citing a lack of foundation. Once again, the judge directed the psychiatrist to identify the source of the information, and he stated that it was an ambulance run report contained in the respondent's medical records. The objection was then overruled, and without any further objection the psychiatrist testified that on October 29, 2016, M.S. had left her home in the middle of the night and had gone to a neighbor's house, and that the neighbor had called the police. The psychiatrist testified that police officers, using dogs, subsequently found M.S. in some woods and brought her to Berkshire. He said she was discharged on November 16, 2016.

The psychiatrist was then asked about the circumstances of M.S.'s next admission to Berkshire on November 22, 2016. Without objection, the psychiatrist testified that M.S. had called the police asking for help and the police brought her to the hospital. He described the treatment she received and reported she was discharged on December 8, 2016.

The psychiatrist also described discharge plans that were provided to M.S. at that time. When asked whether M.S. had followed through with these plans upon discharge, her attorney objected, once again citing a lack of foundation. Over this

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objection, the psychiatrist was allowed to testify that the psychiatrist knew M.S. did not follow through with discharge plans because she returned to Berkshire a third time in December, 2016.

The psychiatrist was asked to explain the circumstances of the third Berkshire admission. He began to describe a call M.S.'s mother reportedly made to the police, when M.S.'s attorney objected to the admission of what the respondent's mother had said. The judge permitted the psychiatrist to testify that the mother had made a call to the police; that M.S. was taken to the hospital by the local police on an emergency basis; and that she was admitted pursuant to G.L. c. 123, §§ 12 (a) and (b). The psychiatrist did not relate the substance of the mother's concerns.

With regard to the most recent admission, the psychiatrist reported that M.S. was confused and could not discern what was real and what was not. M.S. claimed that her parents had raped her. She also claimed that hospital staff or patients at Berkshire raped her. In the hospital, she defecated on top of a toilet seat and preserved the feces, contending that the material contained evidence of the alleged rapes.The psychiatrist reported that while hospitalized, M.S. was at times belligerent and verbally aggressive. She slammed a door; she moved suddenly in a manner that made people think she might hurt them; and she was found jumping up and down on her bed and running into a hallway without pants.

The psychiatrist testified to a diagnosis of schizoaffective disorder, bipolar type. During the hospitalization, he had observed episodes of mania characterized by an inability to sleep and disorganized thought. He also observed instances when M.S. exhibited grandiosity, paranoia, and delusions, and he testified that M.S. had experienced auditory hallucinations. The psychiatrist also stated that M.S. had refused medications that were offered by the petitioner during her hospitalization.

Finally, the psychiatrist offered his opinion that because of M.S.'s mental illness, a failure to hospitalize her would present a likelihood of serious harm to her. Without objection, he opined that because of her ongoing grandiose delusions and auditory hallucinations, if she were released immediately, she likely would either end up living in the woods or in a New York City subway, without any money or food, waiting to be found or to die. When asked to state the basis for this opinion, without objection, the psychiatrist said it was based on the respondent's "current symptoms and past eight years."

M.S. also testified at the hearing. She expressed concern that no one was investigating the rapes that she had reported. She maintained that Berkshire staff had been forcing her to take intravenous medications without doctor's orders. She stated that medications made her uneasy and unable to sleep and caused her to experience hallucinations. She complained that gang members were allowed into the hospital and were taking evidence from her. She also testified that she was a musical composer, and that she had recorded music in various states and countries. She reported that her father had raped her and prepared her to be a prostitute. She also reported that she had been raped by a gang of fifteen men who were looking to go after her quarter of a trillion dollars in musical and intellectual property. She reported that she had undergraduate degrees in music and music journalism and had studied at the Music Conservatory in Boston, at the Massachusetts College of Liberal Arts, at Williams College, Carnegie Mellon, and the University of Pittsburgh.

After the evidence closed, the judge made a finding that the petitioner had met

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its burden with regard to the criteria for commitment, the likelihood of harm and a very substantial risk of physical impairment or injury to M.S. based on her lack of judgment and her inability to protect herself in the community. He also found that reasonable provisions for M.S.'s safety were not available in the community, and stated that an order of commitment would issue.

Immediately after issuing that order orally, the court addressed M.S., stating, "[M.S.], we have more to do, if you'd like to remain. You're welcome to leave if you wish. All right. Thank you very much. For the record, she's left the room." Nothing in the record explains the circumstances under which these comments were made, and no objection was made by the respondent's attorney. The court then asked the attorney representing the petitioner if she wished to proceed with the G.L. c. 123, § 8B hearing, and the attorney responded in the affirmative. The § 8B hearing then commenced.

Without objection, the psychiatrist described a proposed treatment plan and provided testimony on the benefits and risks of various medications. He indicated that M.S. previously had been administered some of the proposed medications, and said that with medication her prognosis for a safe return to the community was optimistic. The psychiatrist opined that without medication M.S. would likely be unable to function in society. He said that M.S. had not expressed any religious convictions that inhibited her willingness to accept medication, and he reported that previously M.S. had voluntarily agreed to take one or more of the proposed medications.

When the testimony concluded, neither attorney made any argument. The judge stated that he found that M.S. did not have the current ability to make rational decisions regarding her treatment and that the proposed treatment plan was appropriate. The hearing was then concluded, and a written order approving the proposed treatment plan, including findings of fact, issued. With regard to the issues raised in this appeal, we begin with the respondent's argument that the orders issued here must be vacated because inadmissible hearsay relating to the respondent's psychiatric history and previous hospitalizations was introduced.

As noted above, the respondent's attorney on several occasions stated "foundation" or "lack of foundation" as the basis for her objection to parts of the psychiatrist's testimony. In response to those objections, the judge appropriately asked the psychiatrist to identify the foundation, i.e., the source, of his knowledge. The psychiatrist did so each time, and thereafter his testimony was essentially limited to what he represented was contained in the respondent's treatment records, and no further objection was made.

Under Department of Youth Servs. v. A. Juvenile, 398 Mass. 516 (1986), an expert is allowed to present an opinion based "on facts or data not in evidence if the facts or data are independently admissible" and are "of the sort that experts in that specialty reasonably rely on." Id. at 531. The facts that the psychiatrist testified to were potentially admissible, and there was nothing improper in the expert's reliance on them. Therefore, the claimed lack of foundation for the expert's opinion was not a proper basis for the objection. See Commonwealth v. McNickles, 434 Mass. 839 (2001). Although such evidence arguably should not have been admitted during direct examination, there was a foundation for the testimony. Similarly, when the psychiatrist was asked to state the basis for his opinion that the failure to hospitalize

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the respondent would create a likelihood of serious harm, no objection was made. [Note 3]

In both trials and commitment hearings, the rules of evidence apply, but attorneys have an obligation to make timely objections. Counsel for the parties, moreover, "should state the specific ground of the objection unless it is apparent from the context." Commonwealth v. Marshall, 434 Mass. 358, 365 (2001), quoting P.J. Liacos, Massachusetts Evidence § 3.8.3, at 85 (7th ed. 1999). An overruled objection on one ground does not preserve an objection to another ground on appeal. See Commonwealth v. Fowler, 431 Mass. 30, 41 n.19 (2000).

Here, M.S. had an obligation to alert the hearing judge through a hearsay objection that she was contesting the admissibility of the psychiatrist's recitation of the respondent's psychiatric history from medical or hospital records. Had the respondent objected, the petitioner could have sought to introduce the records that were available to him as the respondent's treating psychiatrist. To the extent that the psychiatrist's testimony about the substance of the respondent's medical records was inadmissible hearsay, M.S. waived her right to appeal the admission of those statements on that basis by failing to make timely objections during the hearing. Hearsay that is admitted without objection, moreover, is admitted for all purposes.

M.S. also had an obligation to object when the psychiatrist was asked to give the basis for his opinion. The right to appeal the admission of his response to this question was also waived, as this objection is also being made for the first time on appeal.

Where an objection was not made, an appellate court may still consider an issue, but it does so under a limited standard of review. In essence, the appellate court determines whether an unpreserved trial error created a substantial risk of miscarriage of justice. See R.B., petitioner, 479 Mass. 712, 717 (2018); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). This standard requires us to consider broadly whether we have a serious doubt whether the result of the hearing might have been different had the alleged error not been made. We consider the strength of the case that was presented by the petitioner, the nature of the alleged error, the significance of the error in the context of the hearing, and the possibility that the absence of an objection was the result of "a reasonable tactical decision." Commonwealth v. Azar, 435 Mass. 675, 687 (2002).

In this instance, even if the introduction of hearsay evidence emanating from the respondent's medical records was objectionable because the records themselves were not introduced, we do not find that this changed the outcome of the hearing. Without repeating the evidence the judge heard, we particularly note that the psychiatrist had treated M.S. through three recent hospitalizations. He testified to his own experience with M.S., which was not hearsay. Even without testimony concerning the respondent's experiences in New York and her hospitalizations in that state, there was sufficient evidence to support the order of commitment based on the psychiatrist's personal experience with M.S. at Berkshire and his expert opinion. Considering the testimony he provided, including his diagnosis, his observation of delusions and auditory hallucinations, and M.S.'s inability to differentiate between

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what was real and what was not, we conclude that there was sufficient evidence to support a finding that due to mental illness M.S. could not safely interact with others outside a controlled environment.

In short, the introduction of hearsay was not a lynchpin of the judge's commitment order, and its admission did not create a substantial risk of a miscarriage of justice. The judge had sufficient nonhearsay evidence to support a finding that due to her lack of insight and judgment and her inability to understand what was real and what was not, M.S. presented a very substantial risk of harm to herself, and that the risk was imminent.

In addition, we cannot determine whether the respondent's decision not to object to the psychiatrist's hearsay testimony concerning prior hospitalizations was a tactical one. The appellate record does not provide the details of everything that is contained in those records. Depending on their content, the absence of medical records (that were presumably available to the parties) in evidence may have been considered a benefit to the respondent's case.

On a related note, the petitioner should not have inquired as to the basis for the psychiatrist's expert opinion on direct examination. The response to that inquiry, however, came without objection and was "current symptoms and eight past years." This statement lacked content or detail, and it did not cause a substantial risk of a miscarriage of justice. Department of Youth Servs. v. A Juvenile, supra, is instructive on this issue. In that decision, the Court expanded the permissible basis of expert testimony to include "facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion." Id. at 531. [Note 4] However, while an expert witness may formulate an opinion from these facts or data, he or she may not testify to the contents of that information on direct examination. This does not preclude the opposing party on cross- examination, as a matter of trial strategy, from eliciting from the expert witness the facts or data that aided the expert in forming his or her opinion. Commonwealth v. Barbosa, 457 Mass. 773, 784 (2010). See also Commonwealth v. Markvart, 437 Mass. 331, 338 (2002). Once the door is opened by the opposing party during cross-examination, the expert witness may on redirect examination introduce details surrounding the source of the expert's opinion into evidence. [Note 5] Commonwealth v. Chappell, 473 Mass. 191, 203-204 (2015). See Commonwealth v. Piantedosi, 478 Mass. 536, 543-544 (2017), citing Mass. G. Evid. § 705 (2017).

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Turning to the respondent's argument that a substantial risk of a miscarriage of justice occurred when the judge purportedly "invited" the respondent to leave the hearing, we again note that no objection was made at the time of the hearing. This is likely due to the fact that the record does not in any way support the respondent's claim on appeal that the respondent's departure from the hearing room was "invited" or caused by the judge. Indeed, based on the transcript of the hearing, it appears that the trial judge was likely responding to conduct by the respondent when he addressed her, rather than unilaterally suggesting that M.S. leave the room. It is beyond question that a respondent who is represented by counsel may choose to attend or not attend a commitment or treatment hearing. The respondent, moreover, provides no legal basis that suggests that a colloquy is required before a respondent leaves a G.L. c. 123, § 8B hearing or indeed waives his or her right to appear in person at all. In any event, after M.S. left, the respondent's attorney participated in the hearing on her behalf and her due process rights were protected.

M.S. also claims it was error to allow the psychiatrist to testify to a privileged communication during the G.L. c. 123, § 8B hearing without evidence of a so-called Lamb warning and a proper waiver, and that this caused a substantial risk of a miscarriage of justice. See Commonwealth v. Lamb, 365 Mass. 265 (1974). In this regard, the respondent correctly points out that pursuant to the plain language of G.L. c. 123, § 8B(h), the patient-psychotherapist privilege applies to hearings of this type. In addition, in Matter of Laura L., 54 Mass. App. Ct. 853 (2002), the Appeals Court indicated that if there is no evidence regarding a warning and a waiver of the privilege, a judge should make a sua sponte inquiry in this regard. Here, there is nothing in the record to indicate whether M.S. received the warning described in § 8B(h), as there was no inquiry.

Ordinarily, the petitioner would be the party seeking to introduce potentially objectionable privileged statements. Here, however, the respondent complains about testimony elicited by her own attorney during her cross-examination of the psychiatrist, who reported that M.S. said she did not want to take Clozaril because she did not want her blood drawn. It is doubtful that in these circumstances, the judge should have made a sua sponte inquiry. We need not reach this issue, however, as the right to appeal this question was not properly preserved. In addition, there is nothing to support the respondent's argument that the judge relied on this bit of information in making his decision regarding treatment. We do not find that a substantial risk of a miscarriage of justice was created.

Lastly, the respondent asserts that the evidence presented at the G.L. c. 123, § 8B hearing was insufficient to support a determination that M.S. was incapable of making informed decisions about medical treatment. In this regard, she points out that the judge, in the context of the §§ 7 and 8 hearing, had found that M.S. was mentally ill and that her discharge would create a likelihood of serious harm. Following that determination, however, the evidence that was introduced in the course of the § 8B hearing dealt solely with the adjudication of substituted judgment and potential treatment. No evidence was introduced at that time regarding the question of whether M.S. was incapable of making informed decisions about proposed medical treatment. In these circumstances, it appears that on the issue of M.S.'s capacity to make informed decisions about treatment, the § 8B order was based on evidence that was introduced during the just-completed §§ 7 and 8 hearing. The respondent asserts

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that this was error because G.L. c. 123, § 8B(b) states that petitions filed under that section "shall be separate from any pending petition for commitment and shall not be heard or otherwise considered by the court unless the court has first issued an order of commitment on the pending petition for commitment."

The issue before us therefore is whether a judge who issues an order for commitment following a hearing under G.L. c. 123, §§ 7 and 8 may consider the evidence he or she just heard in a § 8B hearing that immediately follows. We answer this question in the affirmative.

These hearings are separated because a person who is determined to be mentally ill and committed to a facility does not lose the right to make treatment decisions and a person's competency can change over time. A distinct and separate adjudication of incapacity to make treatment decisions must be made. The factual issues to be determined in a §§ 7 and 8 hearing and in a § 8B hearing, however, are clearly related, and it would be a tremendous waste of judicial and other resources to require a judge to disregard all of the testimony he or she has heard literally moments ago and compel the parties to present much of the same evidence a second time to the same fact finder. [Note 6]

In this case, when all of the evidence that was introduced in the two hearings, which were conducted within moments of each other, is considered in its totality, we cannot say that the judge's distinct and separate adjudications that M.S. was both mentally ill and incapable of making informed decisions regarding her treatment were against the weight of the evidence.

For all these reasons, the orders of commitment and treatment are affirmed.


[Note 1] The Honorable Paul L. McGill participated in the review of this case but completed his Appellate Division service prior to the issuance of this opinion.

[Note 2] Although the respondent's commitment order has ended, this appeal as to the commitment order is not moot. The Supreme Judicial Court has stated that "[a]ppeals from expired or terminated commitment . . . orders . . ., like appeals from expired harassment prevention orders (G.L. c. 258E) or expired abuse prevention orders (G.L. c. 209A), 'should not be dismissed as moot where the parties have a continuing interest in the case.' At the very least, a person who has been wrongfully committed . . . has 'a surviving interest in establishing that the order[] w[as] not lawfully issued'" (citations omitted). Matter of F.C., 479 Mass. 1029, 1029-1030 (2018).

[Note 3] Only when it appeared that the psychiatrist was about to relate something he had learned from the respondent's mother or father was a hearsay objection made. With regard to those hearsay objections, we discern no error in the manner which the judge addressed them.

[Note 4] Presumably, the petitioner could have properly introduced all of the records the psychiatrist reviewed on direct examination pursuant to G.L. c. 233, §§ 79 or 79G. (Indeed, parties to a proceeding conducted pursuant to G.L. c. 123, §§ 7 and 8 might be well advised to admit such records at all hearings. The records could perhaps be admitted on a thumb drive so that they could all be made part of the record and available for appellate review.) In addition, if there is a discrete part of a record to which the opponent objects, the issue can be raised through a motion in limine and decided by a judge before testimony is taken.

[Note 5] See generally Commonwealth v. Garcia, 470 Mass. 24, 36 (2014), quoting Commonwealth v. Hoffer, 375 Mass. 369, 375 (1978) (purpose of redirect examination is to "explain or rebut adverse testimony or inferences developed during cross examination").

[Note 6] In order to avoid any possibility of confusion, it may be advisable for a judge who orders commitment and then immediately commences a G.L. c. 123, § 8B hearing to affirmatively state that he or she will consider the evidence that was just introduced in the §§ 7 and 8 hearing.