2019 Mass. App. Div. 162

May 3, 2019 - November 14, 2019

Appellate Division Southern District

Court Below: District Court, Dedham Division

Present: Finnerty, P.J., Finigan & Cunis, JJ.

Richard F. Ready for the petitioner.

Melanie S. Lewis for the respondent.

CUNIS, J. This is an appeal from orders of involuntary civil commitment and the administration of antipsychotic medication pursuant to G.L. c. 123, §§ 7, 8, and 8B. [Note 1] The respondent, V.G., argues that evidence at the hearing was insufficient to support the order of commitment, along with an argument that counsel was ineffective for declining to object to hearsay evidence. Because we agree that the evidence was insufficient, we vacate the orders of commitment and medication, and decline to address the ineffective assistance of counsel issue.

At the time of the hearing on July 27, 2016, V.G. was a retired sixty-four year old male who initially had been admitted to Westwood Lodge Hospital ("hospital") pursuant to G.L. c. 123, § 12. [Note 2] The petitioner, the hospital's medical director, alleged that V.G. suffered from schizophrenia and that failure to hospitalize him would result in a likelihood of serious harm. Testifying for the petitioner at the hearing was V.G.'s psychiatrist, Dr. Ashish Gupta ("Gupta"), who had been treating him since June 30, 2016.

Dr. Gupta testified as follows. Prior to his admission, V.G. had been living alone in an apartment located in a three-unit apartment building. V.G.'s daughter, her husband, and her three year old son (V.G.'s grandson) lived in one of the other apartments in the same building. V.G. was a frequent guest in his daughter's apartment and was involved in caring for his grandson while his daughter worked. V.G. had been experiencing delusional thoughts at home, stating that there was evil in the house and that he had killed three snakes in his bed. He accused his son-in-law and grandson of being evil, and was upset with his daughter for not believing him and for causing him to be hospitalized. Dr. Gupta expressed "some concern about some aggression at home," because V.G. apparently once grabbed his daughter's hair in anger. [Note 3] V.G. told Dr. Gupta that the Devil -- visible only to V.G. -- had been appearing in photographs he was taking of his young grandson. V.G. complained that no one else understood him or believed his visions of the Devil because of a lack of "cultural" understanding. V.G.'s concerning behavior and his habit of photographing his grandson "just in diapers, scantily clad," triggered an investigation by the Department of Children and Families.

V.G. had no prior history of treatment with antipsychotic medications. While in the hospital, he initially displayed an "irritable" deportment, but he never exhibited any violent behavior toward others, made no attempts to harm himself, and generally kept to himself. His "ADLs" (activities of daily living involving selfcare, such as eating and maintaining good hygiene) were normal. He denied that he was mentally

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ill, and insisted that he was only having problems with his daughter that the two of them could resolve together. He planned to return to his apartment following his release from the hospital. On cross-examination, Dr. Gupta agreed that V.G. might benefit from a neurological workup to determine whether there might be a physiological explanation for his delusional behavior.

Dr. Gupta diagnosed V.G. with "Psychosis NOS," which he characterized as a substantial mental disorder. [Note 4] V.G. refused to take antipsychotic medications, and since his hospitalization his condition was "essentially the same" and would not improve without medication. Dr. Gupta also expressed concerns about V.G.'s reported occasional use of marijuana, which he believed could exacerbate his mental health condition. He opined that there was no less restrictive alternative than for V.G. to remain hospitalized.

V.G. himself testified. He denied seeing the Devil in photographs, but rather something that appeared to be an "animal" or perhaps a "shadow." He further denied that he believed his grandson and son-in-law were evil, and expressed love for his grandson. He described his relationship with his daughter as "fine" and "perfect." He testified to a certain medical problem involving his esophagus that precluded him from working outside the home, but acknowledged that he helped to take care of his grandson and cleaned his daughter's apartment while she worked. He described an incident where he expressed concern about marks on his grandson's arms. His daughter brought the boy to a doctor. The record is not clear about what these marks were, what caused them, or whether V.G. had anything to do with causing them.

V.G. argues that the evidence was insufficient to support the judge's conclusion that he was mentally ill. [Note 5] Although Dr. Gupta's testimony was brief and lacking in detail on this score, we nevertheless disagree that it was insufficient on the question of mental illness. Dr. Gupta, a board-certified psychiatrist whose competency to testify was not challenged by V.G.'s counsel at the hearing, testified to what he characterized as V.G.'s delusional thinking, including V.G.'s belief that he killed three snakes in his bed, that his grandson and son-in-law were evil, and that he could see the Devil in photographs of his grandson. While hospitalized, V.G.'s delusional thinking remained unabated. V.G. denied that he was mentally ill and showed no insight into his condition. Dr. Gupta testified that V.G. suffered from psychosis NOS and that he would benefit from the antipsychotic medications that he was refusing to take. This evidence was sufficient for the judge to find beyond a reasonable doubt that V.G. was mentally ill.

Proof of mental illness alone, however, is not enough to justify a commitment. Matter of R.H., 2019 Mass. App. Div. 16, 18. See also Matter of G.P., 473 Mass. 112, 128 (2015) (proof of chronic alcohol or substance abuse, by itself, is insufficient to support commitment under G.L. c. 123, § 35). The petitioner must also prove beyond a reasonable doubt that the respondent's mental illness creates a likelihood

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of serious harm. On that question, we agree with V.G. that the evidence here was insufficient.

General Laws c. 123, § 1 sets forth a three-prong definition of "likelihood of serious harm." [Note 6] Our analysis is governed by the principles set forth in Matter of G.P., supra at 126-129, a case involving a civil commitment under G.L. c. 123, § 35, because the three-prong "likelihood of serious harm" definition applies in both § 35 and G.L. c. 123, §§ 7 and 8 civil commitments. Matter of R.H., supra at 18; Matter of J.C., 2018 Mass. App. Div. 63, 66. Only the third prong is at issue in this case.

Under this third prong, "likelihood of serious harm" means not merely an inability to care for oneself in the community, but rather "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" (emphasis added). G.L. c. 123, § 1. "[A] 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Matter of G.P., supra at 128. "The focus of the evidence . . . 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 129.

Applying these principles here, we conclude that the evidence fell short of supporting a commitment under the third prong. There was no evidence that V.G. would suffer physical impairment or injury as a result of his mental illness. If released, he would not be homeless and vulnerable, but rather would return to his apartment. There was no evidence that his mental illness would interfere with his ability to attend to his daily needs, such as eating regularly and personal hygiene. Indeed, the evidence showed that his "ADLs" were normal.

To the extent that V.G. may have had a significant medical issue -- he described it as a problem with his esophagus -- there was no evidence that he was not attending to this medical problem or that his mental illness increased the risk that he would

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not attend to it if released. Cf. Matter of R.H., supra at 19 (very substantial risk of harm found where mentally ill respondent faced homelessness and lifethreatening effects of serious illness if released); Matter of S.J., 2018 Mass. App. Div. 128, 130 (very substantial risk of harm found where mentally ill respondent had history of multiple prior hospitalizations, rapid decompensation, and failure to take care of his diabetes). There was no evidence that the sixty-four year old V.G. had been hospitalized in the past for mental illness, or had any history of taking antipsychotic medications.

Finally, there was no evidence that V.G. lacked "reasonable provision for his protection" in the community. G.L. c. 123, § 1. He had a home to return to and family nearby to assist him. Although the record shows that his daughter, who lived in a neighboring apartment with her family, was concerned about her father's mental health condition, there is nothing in the record to suggest that she could not, or would not, assist in providing for his well-being if necessary.

Because the evidence on the "likelihood of serious harm" question was insufficient, we decline to address the ineffective assistance claim and any other claims pertaining to the sufficiency of the evidence. Accordingly, the decision of the trial court is reversed, and this case is returned for entry of an order vacating the order of commitment and the order for treatment with antipsychotic medication.


[Note 1] This is the second time this appeal has been before us. This Division dismissed the first appeal as moot because the respondent had been discharged from the hospital (on August 10, 2016), only two weeks after the order of commitment and well before the appeal was heard. Matter of V.G., 2017 Mass. App. Div. 173. The respondent appealed to the Appeals Court. After the case was docketed in the Appeals Court, the Supreme Judicial Court decided Matter of F.C., 479 Mass. 1029 (2018), ruling that appeals from civil commitment orders are not rendered moot simply because the order of commitment has expired or the respondent has been otherwise discharged. In an unpublished Rule 1:28 decision, the Appeals Court accordingly vacated our decision and remanded the matter for consideration on the merits. Matter of V.G., No. 18-P-96 (Mass. App. Ct. Jan. 2, 2019).

[Note 2] The date and circumstances of V.G.'s admission to Westwood Lodge Hospital are not precisely clear, but it is evident from the record that he was initially brought to a hospital emergency room on or about June 30, 2016, pursuant to a G.L. c. 123, § 12 petition, after his daughter expressed concerns about his behavior at home.

[Note 3] The petition does not allege that V.G. presented a risk of harm to others.

[Note 4] We note that the petition alleges that V.G. suffers from schizophrenia and not "psychosis NOS." V.G. does not argue the import, if any, of this discrepancy.

[Note 5] Beyond a reasonable doubt is the standard of proof that applies to civil commitment hearings under G.L. c. 123, §§ 7 and 8. Matter of E.C., 479 Mass. 113, 121 (2018).

[Note 6] General Laws c. 123, § 1 defines "likelihood of serious harm" as:

"(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."