2019 Mass. App. Div. 5

December 7, 2018 - February 11, 2019

Appellate Division Southern District

Court Below: District Court, Brockton Division

Present: Hand, P.J., Kirkman & Cunis, JJ.

Opinion dismissing appeal of order of commitment. Order entered in Brockton District Court by Finigan, J. [Note 1]

Edward J. O'Donnell for the petitioner.

Adriana Contartese for the respondent.

KIRKMAN, J. This is a patient's appeal from an order of civil commitment made pursuant to G.L. c. 123, § 18 and for a treatment plan made pursuant to § 8B. Although the patient has been discharged from the hospital, we consider the issues raised in his appeal. Matter of F.C., 479 Mass. 1029 (2018). The issues to be decided are (1) whether an individual held on a Federal Immigration and Customs Enforcement ("ICE") detainer in a Massachusetts county house of correction is a "prisoner" within the meaning of G.L. c. 123, § 18; and (2) whether the psychologist's testimony leading to the respondent's commitment was supported by sufficient evidence under G.L. c. 123, § 8(b).

Background. On February 28, 2018, A.E. was transferred from the Bristol County house of correction to Bridgewater State Hospital on a referral for examination pursuant to G.L. c. 123, § 18(a). A.E. had been held in a civil detention unit at the house of correction on a detainer issued by ICE since December 8, 2017. On March 21, 2018, Dr. Joshua Lapin ("Lapin"), a forensic psychologist at Bridgewater State Hospital, performed an evaluation as requested by the house of correction and wrote an extensive report recommending further hospitalization. Dr. Lapin also found that because A.E. is an "INS detainee," transfer out of custody to a Department of Mental Health facility was not an option. But, in the doctor's opinion, A.E. could receive the necessary treatment and medication (if ordered) at Bridgewater State Hospital. The next day, the hospital filed a petition in the Brockton District Court pursuant to G.L. c. 123, §§ 18 and 8B for the involuntary commitment and treatment of A.E. The commitment and treatment hearing was held on May 2, 2018, at which Dr. Lapin testified.

Prior to Dr. Lapin's testimony, the respondent argued a motion to dismiss the hearing because, as an ICE detainee, he was not a "prisoner" subject to transfer pursuant to G.L. c. 123, § 18. The court denied the motion.

After being qualified as an expert, Dr. Lapin testified that A.E. had declined to meet with him for purposes of an evaluation. The doctor stated that in performing his evaluation, he reviewed the house of correction referral, evaluations, and treatment records of A.E. from when he had previously been at Bridgewater State

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Hospital, as well as recent records. The doctor also consulted with the Bridgewater treatment team.

A.E. had been hospitalized at Bridgewater State Hospital several times in the 1990s and early 2000s for a variety of reasons. In an early evaluation, A.E. was diagnosed with a bipolar affective disorder. Later evaluations resulted in diagnoses of bipolar disorder manic type, paranoid schizophrenia, antisocial personality disorder, and schizoaffective disorder depressed type. Based on a number of hospital and institutional records, Dr. Lapin opined that A.E., at the time of the hearing, suffered from schizophrenia and that failure to hospitalize him would create a substantial risk of harm to others as demonstrated by his record of irritability, response to internal stimuli, thought disorganization, and paranoid ideation. The doctor specifically based his opinion on recent incidents contained in the hospital records since A.E.'s admission where he posed an actual threat of harm to others in the facility.

On cross-examination, the doctor recalled a clinical note, dated March 7, 2018, in the records that stated A.E. is "[b]ehaviorally in better control was this meeting. Not depressed. Not suicidal. No side effects to meds noted or reported. Will continue to follow." He also acknowledged a psychiatric comprehensive admission record from January, 2018, which noted that A.E. was generally oriented "to time, place, person and situation" and sat "calmly in the chair for the duration of the interview." When asked if he disagreed with the records regarding compliant behavior, the doctor simply replied, "I wasn't there." But the witness went on to point out that the records being referenced were from an earlier admission to the hospital.

Doctor Lapin admitted that after that earlier admission, there has been no indication that A.E. was involved in any repeated incidents of assault or homicidal or serious assaultive behavior and that the treatment staff indicated he was clean and showering. When pressed further about A.E.'s behavioral control and self-care upon the most recent admission, the doctor stated he did not know who made those notes and did not know if it "truly captures . . . the entire time." The court denied the respondent's motion to strike the doctor's testimony and for a required finding.

Discussion. 1. Subject matter jurisdiction. A.E. argues that the District Court did not have subject matter jurisdiction to hear this matter because the initial petition for a mental health examination was filed by the superintendent at the Bristol County house of correction pursuant to G.L. c. 123, § 18. He was subsequently sent to the Bridgewater State Hospital and a hearing was held, which led to his commitment and treatment, pursuant to G.L. c. 123, §§ 18 and 8B. A.E. asserts that because he was neither serving a sentence nor awaiting a criminal trial, he could not be transferred under § 18 as a "prisoner." A clear reading of the statute shows otherwise.

Section 18 of Chapter 123 allows:

"If the person in charge of any place of detention within the commonwealth has reason to believe that a person confined therein is in need of hospitalization by reason of mental illness at a facility of the department or at the Bridgewater state hospital, he shall cause such prisoner to be examined at such place of detention by a physician or psychologist, designated by the department as qualified to perform such examination" (emphasis added).

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The statute goes on to set out the process required after a preliminary examination and the location of further hearings for any necessary treatment and care. [Note 2] Generally, in interpreting a statute, the court's duty is "to effectuate the intent of the Legislature in enacting it . . . as expressed in the words of the statute and read in light of the ordinary and approved usage of the language. . . . At the same time, a statute should be read as a whole to produce an internal consistency" (citations and quotations omitted). Matter of E.C., 479 Mass. 113, 118 (2018).

Here, the respondent argues that under the statutory interpretation doctrine of ejusdem generis, G.L. c. 123, § 18 is limited only to prisoners awaiting a criminal trial or serving a criminal sentence. The respondent misapplies the interpretative tool when the statute is read in the context of its aim.

Ejusdem generis means "of the same kind or class." Black's Law Dictionary 631 (10th ed. 2014). The doctrine applies "[w]here general words follow specific words in a statutory enumeration" and "the general words are construed to embrace only

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objects similar in nature to those objects enumerated by the preceding specific words." Banushi v. Dorfman, 438 Mass. 242, 244 (2002), quoting 2A N.J. Singer, Sutherland Statutory Construction § 47.17, at 273-274 (6th ed. rev. 2000). For example, the Supreme Judicial Court in Banushi, supra at 244-245, determined, in interpreting the general word "building" in G.L. c. 143, § 51, that it was limited in meaning to the specific structures that preceded it, i.e., "a place of assembly, theatre, special hall, public hall, factory, workshop, manufacturing establishment." Id. at 243.

The present case is better served by a broader formulation [Note 3] of ejusdem generis that a general term must take its meaning "from the setting in which it is employed," Hodgerney v. Baker, 324 Mass. 703, 706 (1949), and "must be adopted if matters which might come within the letter of the enactment do not fairly come within its spirit and intent." Quincy City Hosp. v. Rate Setting Comm'n, 406 Mass. 431, 443 (1990).

In the present case, G.L. c. 123, § 18 is designed to allow the managers of particular institutions to transfer a confined person to another institution for mental health treatment. The use of the word prisoner, then, in § 18, does not refer to the detention status of people, but rather the nature of the particular place (county house of correction, jail, or prisons) in which they are confined. The Legislature drafted § 18 to provide the proper process and treatment of those who suffer from a mental illness that are lawfully confined in a penal institution, regardless of whether they ended up there on criminal process, civil contempt, or, as in this case, pursuant to a federal arrangement for civil detainees. There was no error in the District Court's denial of the motion to dismiss.

2. Sufficiency of evidence. 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). There seems to be no dispute that A.E. suffers from a mental illness. The issue remains as to whether there was sufficient proof beyond a reasonable doubt provided to the District Court that the discharge of A.E. from a secure facility would create a likelihood of serious harm in the immediate future. Nassar, supra at 916-917. [Note 4] The evidence consisted of the expert's opinion supported by his reliance on records containing hearsay.

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"Although there is no case on point in Massachusetts regarding the applicability of the hearsay rule, given the applicability of the reasonable doubt burden of proof, it is likely that it does in fact apply." R.B. Minehan & R.M. Kantrowitz, Mental Health Law § 8.36, at 278 (2007). See Matter of G.P., supra at 120-121 (contrasting rules regarding admissible evidence in G.L. c. 123, § 35 proceedings). The settled rule in Massachusetts is that an expert witness may base his opinion on unadmitted evidence that is otherwise admissible. Mass. G. Evid. § 703, at 252 (2018); Commonwealth v. Barbosa, 457 Mass. 773, 783-785 (2010); Commonwealth v. Waite, 422 Mass. 792 (1996); Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986). Cf. Matter of G.P., supra at 113.

In this case, the expert based his opinion on a number of hospital and institutional records, as well as letters from A.E. to the court. The documents and reports would be admissible pursuant to G.L. c. 233, §§ 79, 79G; Bouchie v. Murray, 376 Mass. 524 (1978). A.E.'s letters are nonhearsay, but merely useful for showing his state of mind as supporting the doctor's opinion. Thus, as the court found, the doctor's opinion was more than "mere speculation" as asserted by the respondent on this appeal. More to the point, however, is the careful and measured thought the hearing judge gave to the evidence provided that included not just the doctor's opinion, but also the respondent's correspondence, grievance, and a § 18(a) referral for the Bristol County house of correction.

While there was only one witness, that witness was candid about not knowing who drafted a certain report and the times that A.E. was well oriented, compliant, and otherwise appropriate in his behavior. But the credibility and weight of all the evidence are for the fact finder. Demoulas v. Demoulas, 428 Mass. 555, 565 (1998). How a hearing judge weighs the evidence and gauges the credibility of witnesses is entitled to deference by appellate courts. Custody of Eleanor, 414 Mass. 795, 800 (1993). The evidence was sufficient to allow the hearing judge to make the necessary findings allowing the petition for commitment.

The appeal is dismissed.

So ordered.


[Note 1] The Honorable Thomas L. Finigan recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 2] The remaining portion of G.L. c. 123, § 18(a) states:

"Said physician or psychologist shall report the results of the examination to the district court which has jurisdiction over the place of detention or, if the prisoner is awaiting trial, to the court which has jurisdiction of the criminal case. Such report shall include an opinion, with reasons therefore, as to whether such hospitalization is actually required. The court which receives such report may order the prisoner to be taken to a facility or, if a male, to the Bridgewater state hospital to be received for examination and observation for a period not to exceed thirty days. After completion of such examination and observation, a written report shall be sent to such court and to the person in charge of the place of detention. Such report shall be signed by the physician or psychologist conducting such examination, and shall contain an evaluation, supported by clinical findings, of whether the prisoner is in need of further treatment and care at a facility or, if a male, the Bridgewater state hospital by reason of mental illness. The person in charge of the place of detention shall have the same right as a superintendent of a facility and the medical director of the Bridgewater state hospital to file a petition with the court which received the results of the examination for the commitment of the person to a facility or to the Bridgewater state hospital; provided, however, that, notwithstanding the court's failure, after an initial hearing or after any subsequent hearing, to make a finding required for commitment to the Bridgewater state hospital, the prisoner shall be confined at said hospital if the findings required for commitment to a facility are made and if the commissioner of correction certifies to the court that confinement of the prisoner at said hospital is necessary to insure his continued retention in custody. An initial court order of commitment issued subject to the provisions of this section shall be valid for a six-month period, and all subsequent commitments during the term of the sentence shall take place under the provisions of sections seven and eight and shall be valid for one year."

[Note 3] See the doctrine of noscitur a sociis: "[I]t is known from its associates." Black's Law Dictionary, supra at 1224.

[Note 4] General Laws c. 123, § 1 defines "likelihood of serious harm" under three prongs:

"(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."