2019 Mass. App. Div. 16

December 14, 2018 - February 22, 2019

Appellate Division Northern District

Court Below: District Court, Natick Division

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

Andrew D. Black and Barbara H. Buell for the petitioner.

Steven A. Ciulla for the respondent.

COVEN, P.J. R.H. appeals from civil commitment and treatment orders pursuant to G.L. c. 123, §§ 7, 8, and 8B. The appeal raises questions concerning certain pretrial rulings, evidentiary trial issues, and the sufficiency of the evidence. Specifically, R.H. alleges error in the court's denial of a pretrial motion for expedited discovery and a subsequent motion for a continuance. As to the trial, R.H. argues that the order of commitment was erroneous where it was based upon stale evidence and conjecture and the trial judge failed to consider adequately expert testimony and improperly applied a best interest standard. It is also argued that the court, in error, allowed a social worker to testify as an expert without a proper foundation and allowed that individual to testify as to hearsay regarding the foundation of her opinion.

R.H. was admitted to the MetroWest Medical Center ("MetroWest") pursuant to G.L. c. 123, § 12(b) on January 3, 2018. A petition for commitment and treatment was filed on January 8, 2018, and a trial was scheduled for January 16, 2018. On January 10, 2018, the trial was continued to January 23, 2018, after allowance of R.H.'s motion to continue and motion for funds for an independent examination. On January 18, 2018, R.H. filed a motion for expedited discovery (interrogatories and admissions) and requested that the court order discovery to be provided no more than twenty-four hours before the trial date. Proposed discovery was not attached. That motion was denied for the reason, as stated in MetroWest's opposition, that no discovery was attached and that R.H.'s treatment team would be available for informal discovery, a routine procedure in commitment matters. A second motion for a continuance was filed on January 22, 2018, requesting a postponement of the hearing to January 30, 2018. R.H. cited his treating psychiatrist's acquiescence to a continuance on the condition that R.H. accept the intramuscular form of the antipsychotic drug Invega. MetroWest opposed the continuance disputing that it had agreed to the continuance and also stated that the guardianship treatment plan approved by the Probate Court did not allow for treatment with Invega. That motion was denied. R.H. sought reconsideration on the trial date. That motion, too, was denied.

On the merits, the following evidence was presented. Immediately prior to admission at MetroWest, R.H. was admitted to North Shore Medical Center ("North Shore") for treatment of cellulitis of his nasal area, an infection that, if picked at, can become subdermal and epidermal and result in bacteremia, which, itself, can cause death if it were to travel to the brain. R.H. picked at the infection

Page 17

and, on his own, was unable to care for the infection. Treatment for the cellulitis required intravenous antibiotics.

R.H. was transferred to MetroWest and admitted on January 3, 2018. R.H. denied having mental illness and believed he was transferred because North Shore was trying to poison him. The treatment team for R.H. included Dr. Fauzia Wali Khan ("Khan") and social worker Keely Campbell. R.H. was diagnosed with schizophrenia of the chronic paranoid type.

Dr. Khan reported that R.H. was observed laughing hysterically, mumbling, and self-dialoguing. It was learned from R.H.'s parents that R.H. had a long history of such behavior and was a client of the Department of Mental Health for many years. The parents informed Dr. Khan that they did not want R.H. to return home. There was also evidence that R.H.'s uncle did not want R.H. to reside with him, even though that was where R.H. had wanted to go.

Dr. Khan testified that R.H. avoided contact with her and the social worker and that when plans of discharge were discussed, R.H. was unable to assist. Dr. Khan did report that R.H. would not have a place to go if discharged and discharge to a shelter would create a risk of harm to R.H. Further, there was no plan in place for money, food, or clothing if he were discharged. And Dr. Khan testified that R.H. refused to take the medication necessary to place him in a position for discharge.

R.H.'s father testified that R.H. was inconsistent and noncompliant with treatment from March of 2017 through October of 2017 and was hospitalized four times within the year preceding the commitment. The father also testified that R.H. self-medicated with fentanyl patches, ate wild mushrooms, and smoked marijuana.

We find no error in the denial of the request for expedited discovery. Standard 3:08 of the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011), provides for court-ordered discretionary discovery "when the requested information appears to be relevant." [Note 1] Without the identity of the information sought, there exists no manner to gauge relevance. R.H.'s boilerplate statement that the discovery sought was "necessary . . . to prepare for the hearing, [to] avoid undue surprise, and to insure fundamental fairness" falls far too short of a meaningful appearance that could be weighed by the court. [Note 2] Stated otherwise, by reference to Standard 3:08, it is "[b]ona fide discovery motions seeking relevant information not currently available to respondent [that] should usually be allowed." This was not.

We also find no error in the court's denial of R.H.'s second motion to continue based upon the asserted position that R.H. would submit to intramuscular treatment

Page 18

with Invega. [Note 3] The Probate Court found that R.H. was incapable of making medical decisions, issued a court-ordered treatment plan, and that plan did not provide for intramuscular treatment with the antipsychotic medicine, at issue.

We turn to the sufficiency of evidence to support the commitment order. We are guided by Matter of G.P., 473 Mass. 112 (2015). Although Matter of G.P. involved a civil commitment under G.L. c. 123, § 35, this Division has recently held that the principles of Matter of G.P. are equally applicable to commitment under G.L. c. 123, §§ 7 and 8, because the three-prong definition of "likelihood of serious harm," see G.L. c. 123, § 1, [Note 4] is applicable to each type of commitment. Matter of J.C., 2018 Mass. App. Div. 63, 66. In this case, it is the third prong at issue. [Note 5]

Under the third prong, the "likelihood of serious harm" is defined as "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 to protect himself in the community and that reasonable provision for his protection is not available in the community." On the one hand, mental illness, by itself, is insufficient; on the other hand, it is not required that a commitment order be based upon "proof that an individual is unable to sustain himself or herself even marginally in society." Matter of G.P., supra at 128. Rather, as stated in Matter of G.P., the harm is

"'physical impairment or injury' to the respondent, and the 'very substantial risk' of such harm is to be shown by evidence that (1) the respondent's judgment is so adversely affected by [mental illness] that the respondent cannot protect himself or herself from physical harm, and (2) the respondent's community does not include any reasonably available external

Page 19

source of adequate protection. G.L. c. 123, § 1. The focus of the evidence, then, must be on the respondent's degree of impaired judgment due to [mental illness]; the degree of likelihood that, as a direct consequence, the respondent will sustain or inflict injury (for example, by failing to take care of an existing medical condition that is exacerbated by [mental illness], or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent's community to provide protection against such risks. Finally, because a 'very substantial' risk of harm must be shown in connection with this third prong, G.L. c. 123, § 1, 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 128-129.

It is clear that the evidence supported a commitment under this third prong. The following factors easily satisfy the commitment standard under Matter of G.P. R.H. (1) suffered from a mental illness (schizophrenia/paranoia), (2) was actively psychotic at the time of the commitment hearing with a degree of paranoia, (3) would not take medication and there existed no plan to access proper medication if released, (4) was not welcome to stay with his uncle, with whom he wanted to reside, or with his own family, (5) would be living homeless, perhaps on the street, in the month of January, of which we take judicial notice could be life threatening, (6) could be victimized at a homeless shelter, (7) had picked at an infection that resulted in potentially life threatening cellulitis, and (8), perhaps more importantly on the issue of probabilistic imminency, he was subject to four hospitalizations within a year of the hearing. [Note 6]

We make clear that, independently examined, no one factor would support a commitment of R.H. under the standard of Matter of G.P. However, the test of Matter of G.P. is not defined by independence, but rather it is a collective view of relevant factors. Further, our review is not as to whether the evidence compelled a finding of commitment. In this case, it is whether sufficient and competent evidence existed to support the order issued. It did. [Note 7]

The appeal is dismissed.


[Note 1] The Massachusetts Rules of Civil Procedure do not apply to commitment proceedings. See Mass. R. Civ. P. 81(a)(2). Because of the inadequacy of the discovery request discussed infra, we need not address whether G.L. c. 231, §§ 61-69, which address discovery in cases to which the rules of civil procedure do not apply, embody principles of discovery apart from the considerations of Standard 3:08.

[Note 2] While in these circumstances we find no error, we do note that counsel for R.H. and his expert witness reviewed all medical records and had a "long meeting" with R.H.'s treating psychiatrist and nurses prior to trial. See Standard 3:08 ("Informal discovery arrangements should be encouraged.").

[Note 3] The Supreme Judicial Court in Matter of N.L., 476 Mass. 632 (2017), held that a first request for continuance is mandatory unless a judge specifically states why a denial will not prejudice a person's ability to mount a defense. Id. at 637.

[Note 4] General Laws c. 123, § 1 provides as follows:

"'Likelihood of serious harm', (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 to protect himself in the community and that reasonable provision for his protection is not available in the community."

[Note 5] There was evidence before the trial judge that R.H. had twice broken into his father's locked gun closet to use the firearms and drove recklessly in the past and was issued speeding tickets. We agree with R.H. that that evidence was stale and would not support a finding that R.H. was a harm to himself. R.H.'s treating psychiatrist also testified that there was no evidence that R.H. was violent.

[Note 6] R.H. presented evidence through his own expert. That expert suggested that R.H. was no sicker than hundreds and hundreds of persons living on the streets of Boston, and that a commitment should not be ordered based upon a belief that persons with residual symptoms of mental illness, who will live in a shelter, should be committed. The evidence goes far beyond a cavalier approach.

[Note 7] We reject the challenge by R.H. that the trial judge used a "best interest" standard in ordering commitment. The transcript makes clear that the judge used the appropriate standard: "I find that there is a very substantial risk of injury or harm to [R.H.] if he were to be released today to the community." We also find that R.H.'s objection to the trial judge allowing R.H.'s social worker to testify as an expert, and allowing the social worker to testify to hearsay that formed the basis of her opinion, without merit. The social worker never gave an opinion. Any hearsay testimony was cured when R.H.'s own expert testified to the exact same statement from the uncle.