2019 Mass. App. Div. 31

February 8, 2019 - March 20, 2019

Appellate Division Southern District

Court Below: District Court, Dedham Division

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

No brief filed for the petitioner.

Mikaela A. McDermott for the respondent.

HAND, P.J. This is W.C.'s appeal of his commitment, pursuant to G.L. c. 123, §§ 7 and 8, to the Steward Norwood Hospital ("Norwood" or "the hospital"). For the reasons below, we affirm both the order of commitment and the court's authorization of Norwood's administration of antipsychotic medication, pursuant to G.L. c. 123, § 8B.

We review the trial court's findings of fact for clear error, and "'scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.' Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004)." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).

W.C. was initially committed to Norwood on a conditional voluntary basis, pursuant to G.L. c. 123, §§ 10 and 11. In response to W.C.'s intent to leave the hospital, Norwood filed a timely petition for commitment pursuant to G.L. c. 123, §§ 7 and 8. As grounds for its petition, Norwood indicated that W.C.'s psychosis put W.C. himself at a very substantial risk of harm based on his impaired judgment and consequent inability to protect himself in the community, and that there was no less restrictive alternative to hospitalization. Norwood's petition for commitment was accompanied by a petition, pursuant to G.L. c. 123, § 8B, for authorization to treat W.C. using antipsychotic medications. The matter was heard on July 17, 2018; after hearing, the court found that W.C. met the criteria for commitment and ordered him committed for six months. [Note 1] On appeal, W.C. challenges the sufficiency of the evidence supporting the court's finding that W.C.'s discharge from Norwood would create a very substantial risk of harm to W.C.; the imminence of any such harm; and the lack of any less restrictive alternative to hospitalization in W.C.'s case. W.C. also argues that if his commitment were invalid, the medication order pursuant to G.L. c. 123, § 8B is necessarily also invalid. We address these arguments in turn, first summarizing the relevant evidence.

Dr. Larisa Kouperschmidt ("Kouperschmidt") testified as Norwood's sole witness. An attending psychiatrist at Norwood, Dr. Kouperschmidt saw W.C. when W.C. arrived in the emergency department on July 5, 2018, for his fifth inpatient admission. W.C. had been discharged from his previous admission less than a week

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earlier. According to Dr. Kouperschmidt, W.C. was a highly-educated twenty-nine year old man with a degree in computer science. Although W.C. had previously worked in the computer science field, a fact W.C. corroborated during the course of the hearing, he had lost his most recent job after he stopped taking his antipsychotic medications and decompensated to the point that he could no longer work. At the time of admission on July 5, 2018, W.C. was "very needy, very intrusive, and extremely disorganized." According to Dr. Kouperschmidt, W.C. was agitated and "in everybody's face" and "getting very close to other patients" in the emergency department. Ultimately, W.C. had to be restrained by emergency room staff based on his inability to follow staff directives and his overall level of disorganization.

According to Dr. Kouperschmidt, throughout his Norwood admission, W.C.'s thoughts had remained so disorganized that he could not follow a discussion. Additionally, he responded to internal stimuli, talked to himself, repeated the same questions over and over again, and expressed paranoia that people were talking about him. Despite his level of education, W.C. was too disruptive to participate as part of a group on the inpatient unit and was asked to leave several groups as a result. Dr. Kouperschmidt testified that although W.C. had acknowledged that, in the past, taking medications had given him the ability to work and to stay in the community, during this admission, W.C. refused to accept that he suffered from mental illness and did not want to accept medications prescribed for him, including long-acting antipsychotic injections.

Dr. Kouperschmidt testified that she had prescribed a medication for W.C. that he had taken in the past with success, but that during the course of the July 5 admission, W.C. was only intermittently compliant with that medication order. Although Dr. Kouperschmidt testified that W.C. had made marked improvements since admission on even the limited doses of the medication that he did take, she was clear that W.C. had not improved to the point that he could function independently. She noted that W.C. continued to deny his mental illness. Although less intrusive than he was at the outset of the commitment, W.C. continued to engage in obsessive thinking: as an example, after hearing staff order a medical test for another patient, W.C. repeatedly insisted that staff order the same test for him, despite any medical indication that the test was needed in his case. W.C.'s family provided context for Dr. Kouperschmidt's concerns: according to family, W.C. was making threats against a neighbor that had prompted the neighbor to call the police, and had so frightened his brother with his anger and threats against him that his brother had decided not to attend the commitment hearing. [Note 2] Dr. Kouperschmidt testified that W.C. had burned his own blanket when he was upset, but did not indicate when that incident had occurred.

Dr. Kouperschmidt testified that W.C. had been living with his brother at the time of admission to Norwood; her testimony about W.C.'s brother's fear of W.C. clearly indicated that W.C. would not have been welcome to return there if discharged

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on the hearing date. Although the court heard evidence that W.C. had placement pending through the Department of Mental Health, W.C. himself testified that his housing situation was in flux. [Note 3] According to Dr. Kouperschmidt, however, even if W.C. had a stable place to live, his inability to interact with others and to control either his thinking or his anger made it unsafe for him to return to the community. Dr. Kouperschmidt observed that W.C.'s rapid decompensation following his release from his prior hospitalization, six days before the admission at issue on appeal, highlighted the fragility of W.C.'s condition if he were to discontinue his medications, and strengthened her opinion that W.C. would pose a very substantial risk of harm to himself if he were not committed. [Note 4] Ultimately, while Dr. Kouperschmidt agreed that W.C.'s condition had improved during his inpatient stay at Norwood, her testimony was clear that he was not able to function in even the structured Norwood setting. She testified clearly that as of the date of the hearing, there was no less restrictive alternative to hospitalization for W.C.

W.C. also testified at the hearing. He admitted that he suffered from mental illness, and told the court that although he had left his most recent hospitalization with an appointment for follow-up with a treater familiar to him, by the date scheduled for follow-up, he had already readmitted himself to Norwood [Note 5] and had, as a result, missed the appointment. In contrast with his spotty medication compliance as an inpatient, W.C. testified that he would take medications if he were released to the community, knowing that he would need to take the medications in order to return to work. While admitting that he was dependent on his family for help, including management of his living arrangements, he testified that his contact with his family could be unpredictable, and that his relationship with his only siblings was sometimes rocky.

W.C.'s testimony generally confirmed that the police had been involved in both his interactions with his brother and his relationship with his neighbors, although his account of that involvement differed from the information provided by Dr. Kouperschmidt. With respect to his brother, W.C. testified he had called the police to report that he and his brother "might have gotten into some type of physical -- we might have gotten into some kind of physical altercation" after a verbal argument. According to W.C., when the police arrived, they asked if W.C. "wanted to go to the hospital." W.C. testified that he declined to go to Norwood that night, but that the

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next morning, his brother returned with the police and "put him in the hospital." [Note 6] As to his relationship with his neighbors, W.C. testified that he was not sure whether he could return to his former apartment on discharge from Norwood "[b]ecause there have been reports to the police because of that apartment for various reasons. . . . I'm going to say that because I made threats. I never made any threats to any neighbors. There might've been misunderstandings when it comes to like certain things, like maybe smoking a cigarette like in the hallway . . . ." W.C. testified that as far as he was aware, the police had been called by his neighbors two or three times.

We find no error in the court's determination that W.C. met the criteria for commitment.

"Sections 7 and 8 of G. L. c. 123 address the long-term commitment of persons with mental illness. Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility. . . . Section 8(a) provides that no person shall be committed unless the District Court finds after a hearing that '(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm.'" Matter of N.L., 476 Mass. 632, 634 (2017). Additionally, the petitioner must show that there is no less restrictive alternative to hospitalization. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 780 n.8 (2008), citing Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980).

Chapter 123 defines "likelihood of serious harm" in three ways: 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." G.L. c. 123, § 1. Under any of the statutory definitions included in § 1, the petitioner must show that the risk of harm is imminent, that is, "that the harm will materialize in the reasonably short term -- in days or weeks rather than in months." Matter of G.P., 473 Mass. 112, 128 (2015). Here, the sole basis for Norwood's petition to commit W.C. was Norwood's concern about W.C.'s very substantial risk of physical harm to himself, based on his impaired judgment and resulting inability to protect himself in the community. See id. In order to justify commitment under these sections, the petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. Id. at 119, citing Abbott A. v. Commonwealth, 458 Mass. 24, 40-41 (2010).

W.C. argues that the court heard insufficient evidence of W.C.'s risk of harm to himself to support its order of commitment. In light of the evidence describing W.C.'s behavior before and during the commitment at issue here, we disagree.

In considering both Dr. Kouperschmidt's testimony and the testimony of W.C. himself, the court could have found that within six days of being released from a prior commitment, and before W.C. could participate in planned follow-up treatment, the police had been needed to intervene in an altercation between W.C. and his

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brother. W.C.'s behavior on that occasion triggered his return to Norwood for evaluation and treatment, but when W.C. arrived in the emergency room on July 5, 2018, he had decompensated to the point that he was unable to sit still, was physically intrusive as to both other patients and staff, was not sleeping properly, and was acting in such an agitated way that he ultimately had to be physically restrained. Over the twelve days of his admission to Norwood before the commitment hearing on July 17, 2018, W.C. was not compliant with his medications. Although W.C.'s symptoms showed some response to the limited doses of medication that he was willing to take, W.C. remained so limited in his ability to interact with others, even in a controlled setting, that he had to be excluded from treatment groups on his unit.

In addition to this description of W.C.'s provocative behavior in Norwood, the court heard evidence that immediately before his admission to Norwood, W.C.'s behavior in the community had drawn the attention of the police and included threats to neighbors and to his brother. Although the evidence about the timing of those threats was not explicit, the court could have inferred from W.C.'s own chronology of events that at least his conduct toward his brother was very recent. Although there was no evidence that W.C.'s lack of self-control and disorganized, intrusive behavior had precipitated a violent response before the commitment at issue here, the court heard detailed evidence of W.C.'s presentation during this hospitalization and of W.C.'s pattern of accelerating decompensation. The court was not required to blind itself to the likely consequences of releasing W.C. back into the community without additional treatment. See Commonwealth v. Liebenow, 470 Mass. 151, 161 (2014) (fact finder not "required to divorce [itself] of common sense, but rather should apply to facts which [it] find[s] proven such reasonable inferences as are justified in the light of [fact finder's] experience as to the natural inclinations of human beings" [citation omitted]). On this evidence, the court acted reasonably in concluding that if W.C. were released into the community without the buffers available within Norwood, W.C.'s inability to appreciate the abrasive and offensive impact of his intrusive behavior, coupled with his inability to think in an organized way or to control his anger, would inevitably antagonize those around him, putting him at very real risk of a physically dangerous response from others. [Note 7] See Matter of D.K., 2017 Mass. App. Div. 129, 131 (holding that respondent's failure to maintain basic need for hygiene demonstrated a lack of judgment and an imminent inability to protect oneself).

We also find adequate support for the trial court's conclusion that as of the time of the commitment hearing, there was no less restrictive alternative to hospitalization

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for W.C. Magrini, supra at 780 n.8, citing Nassar, supra at 917-918. Although, as W.C. argues, Dr. Kouperschmidt testified that, since his admission to Norwood, W.C.'s condition had improved, and that W.C. did not suffer from any particular medical problems, this was not the sole evidence before the court. To the contrary, at the hearing, Dr. Kouperschmidt testified that W.C. did not acknowledge his mental illness and that his voluntary acceptance of prescribed medication was limited to one drug, which he accepted only intermittently. Dr. Kouperschmidt testified that during his admission to Norwood, he remained disorganized in his thinking, unable to control his anger, was responding to internal stimuli and talking to himself, and continued to be very intrusive in his contact with others. Here, too, it is significant that even in the hospital setting, W.C.'s behavior was so disruptive that he was asked to leave several treatment groups. Although, at the commitment hearing, W.C. testified that he would follow up with outpatient treatment and take medications prescribed for him, his lack of medication compliance during the twelve days of his stay at Norwood did not lend credibility to that testimony. Likewise, W.C.'s testimony about his plans to live at a group home in Quincy, Massachusetts, if discharged was at odds with his testimony that he was unsure whether he could return to his former apartment. In both instances, the court was permitted to consider the evidence, but in neither instance was the court required to credit it. Matter of A.D., 2017 Mass. App. Div. 183, 184. In combination with W.C.'s paranoia and his disruptive behavior, we find no error in the trial court's determination that W.C. could not be appropriately maintained in his current state outside a hospital setting.

Finally, W.C. challenges the legality of the court's order, pursuant to G.L. c. 123, § 8B, authorizing Norwood to treat W.C. with antipsychotic medications. The sole ground for this argument is W.C.'s challenge to the validity of the underlying commitment order. As we affirm the validity of the commitment order, we do not disturb the § 8B medication order.

For the foregoing reasons, we affirm the orders of commitment and treatment.


[Note 1] In fact, W.C. was discharged on October 26, 2018. In light of the ongoing interests of an individual subject to a past commitment order in the lawfulness of that order, Matter of F.C., 479 Mass. 1029, 1030 (2018), we nonetheless consider the merits of this appeal. Id. & n.1.

[Note 2] While the evidence did not specifically identify the timing of these threats, both Dr. Kouperschmidt's explanation that W.C. "has been making threats to his neighbor" and her statement that W.C.'s brother was "afraid of [W.C.], to the point that he decided not to come to this Court . . . [t]hat's the level of his fear," clearly support the inference that W.C.'s threatening behavior was an ongoing, current concern.

[Note 3] W.C. testified that at the time of the hearing, he was "between living situations," and that with his family's assistance, he was leaving his apartment and moving into "another room in a different town somewhere." On cross-examination, W.C. testified that if discharged immediately, someone had told him that he would be living in a group "respite" room in Quincy, Massachusetts.

[Note 4] Dr. Kouperschmidt testified that W.C.'s history of rapid decompensation after discharge from Norwood was part of a predictable pattern in which the patient's ability to maintain mental health in the absence of treatment is reduced, and the need for additional hospitalization is accelerated.

[Note 5] W.C. testified that his follow-up appointment had been scheduled for July 9, 2018. W.C. entered Norwood on a conditional voluntary basis on July 5, 2018, and submitted notice of his intent to leave the facility on July 6, 2018. He remained hospitalized on July 9, 2018, pending action on his notice of intent to leave.

[Note 6] This, despite the fact that, as noted above, hospitalization at issue had begun as a conditional voluntary admission. G.L. c. 123, §§ 10 and 11.

[Note 7] While, as W.C. notes, Dr. Kouperschmidt also testified to a concerning report of W.C.'s burning a blanket when upset, we agree that in the absence of any evidence of when that incident occurred, the weight of that evidence is difficult to assess. See Matter of G.P., supra at 126 (evidence that threat of harm was recent increases weight of that evidence). Additionally, while we consider the evidence that W.C.'s threatening behavior led to his being unwelcome to return to a prior apartment, and that at the time of the hearing, it was unclear where W.C. would live when discharged from Norwood, the evidence did not suggest that W.C. would be homeless. Accordingly, we do not consider whether W.C.'s risk of harm included the additional risks inherent in homelessness.