2019 Mass. App. Div. 54

December 7, 2018 - March 29, 2019

Appellate Division Southern District

Court Below: District Court, Brookline Division

Present: Hand, P.J., Finnerty & Finigan, JJ. [Note 1]

No brief filed for the petitioner.

Craig T. Spratt for the respondent. [Note 2]

FINIGAN, J. The respondent ("D.T.") appeals her involuntary six-month civil commitment to a psychiatric hospital pursuant to G.L. c. 123, §§ 7 and 8. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

After a visit to the emergency room of a Cape Cod hospital where she displayed symptoms of possible mental illness, D.T. was transported to Bournewood Hospital ("Bournewood") in Brookline on October 10, 2017 for temporary involuntary hospitalization pursuant to G.L. c. 123, § 12(b). Pursuant to the statutory scheme, that commitment was scheduled to expire in three business days, namely October 13, 2017. Prior to the expiration of the three-day period, Bournewood filed a petition to commit D.T. for a period of six months pursuant to G.L. c. 123, §§ 7 and 8, together with an accompanying petition seeking authorization to treat D.T. with antipsychotic medication pursuant to G.L. c. 123, § 8B.

A hearing on the G.L. c. 123, §§ 7 and 8 petition was held at Brookline District Court on October 19, 2017, where D.T. appeared with counsel. After hearing testimony from a Bournewood clinician and D.T., a judge allowed the petition, and this appeal followed. The order of commitment has now expired. Nonetheless, we consider the appeal on its merits. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (appeal from expired or terminated commitment order should not be dismissed without considering the merits of appeal in light of party's surviving interest in establishing order not lawfully issued).

General Laws c. 123 addresses the involuntary civil commitment of persons with mental illness. In support of the petition, Bournewood presented the testimony from Dr. Fauzia Wali Khan ("Khan"), a psychiatrist at Bournewood who was board certified in psychiatry. Issues of credibility and the weight of the evidence are typically left to the trial judge. Tri-County Contrs. v. Diamond Collision Specialists, Inc., 2014 Mass. App. Div. 89, 92. Dr. Khan had prepared the initial G.L. c. 123, § 12 commitment

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and had met with D.T. on more than one occasion in the two days prior to the hearing, engaging in what she described as "long conversations" with D.T.

D.T. had reported to Dr. Khan that she had originally gone to the police station in Falmouth believing her cigarettes had been laced with toxin as part of a CIA conspiracy. The police had directed her to a Falmouth hospital emergency room, leading to her eventual transfer to Bournewood. Notes from the emergency room visit, reviewed by Dr. Khan, indicated D.T. had appeared "disheveled, malodorous, urine, feces on her clothes, very nervous, anxious, . . . feeling threatened and . . . feeling she might as well die, as well as . . . wanting to hurt her mother." Dr. Khan's working diagnosis was that D.T. suffered from mental illness, namely schizoaffective disorder. Among the symptoms, according to Dr. Khan, was that D.T. was paranoid, believed she had recent conversations with the Boston Marathon bomber, who had threatened her, and that her sister had turned her into a camel. D.T. also had reason to believe her mother was Medusa [Note 3] and was worth killing. She had also expressed suicidal thoughts as recently as the day prior to the hearing, and was suffering from auditory hallucinations from her brother, telling her to kill herself. D.T. recounted to Dr. Khan a past suicide attempt, where she had driven into a guardrail, but did not elaborate further. Finally, Dr. Khan testified she had concerns about D.T. posing a risk to herself because her lack of personal hygiene could result in infection or worse, noting that D.T. had refused to bathe or wash her clothes while at Bournewood.

During her testimony, D.T. claimed to be estranged from her family but denied she suffered from a mental illness. D.T. was able to provide basic biographical information to the court and stated that were she to be released, she would return to her Falmouth apartment, take a shower, and put on clean clothes. D.T. admitted she had a relationship with the Boston Marathon bomber, but attributed her recent woes to having been sold the laced cigarettes.

Upon a finding that the failure to hospitalize an individual would create a likelihood of serious harm by reason of mental illness, a judge may order the commitment of the individual for a period of six months. G.L. c. 123, § 8. The standard of proof is proof beyond a reasonable doubt. Guardianship of Roe, 383 Mass. 415, 423-424 (1981), citing Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978). There are three prongs to the statutory definition of a "likelihood of serious harm." That term is defined 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."

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G.L. c. 123, § 1.

In its petition for commitment, Bournewood asserted D.T. posed a risk under all three prongs of the statute, and at the conclusion of the testimony, the judge agreed. We find no error with the judge's decision. With respect to the first prong of the definition of "likelihood of serious harm," statements made at the Falmouth hospital emergency room, coupled with her direct statements made to Dr. Khan, suggested D.T. did harbor some suicidal thoughts. Further, she described to Dr. Khan at least one prior occasion that could be viewed as a suicide attempt -- driving into a guardrail.

Support for a finding of the second prong of risk of harm to others was also present in the testimony. D.T. expressed hostility toward her mother and indicated she wished to harm her. In Matter of G.P., 473 Mass. 112 (2015), the Supreme Judicial Court noted that the Legislature's use of words like "homicidal" and "violent behavior" and "serious physical harm" signifies "an intent that evidence of conduct reflecting a substantial level of force and intensity be presented." Id. at 126. Dr. Khan testified that D.T. suffered from command auditory hallucinations and believed her sister was telling her that D.T.'s mother was Medusa and "was worth killing." We find that thinking sufficient for the judge to find D.T. posed a risk to others, namely her mother, to establish beyond a reasonable doubt the level of risk described in the second prong of the definition of "likelihood of serious harm."

In addition, in order to meet the definition of "likelihood of serious harm" under the definition's first or second prong, the Supreme Judicial Court has held there must be a showing that the harm is imminent. Matter of G.P., supra at 127. "Imminent" does not mean "immediate," however. Id. at 128. The petitioner need not establish that the harm will occur immediately, but rather that it will occur in the reasonably short term. Id.; Matter of A.M., 94 Mass. App. Ct. 399, 402 (2018). Here, because D.T. voiced suicidal thoughts to Dr. Khan the day prior to the hearing and continued to have command hallucinations suggesting she posed a threat to her mother, we find the "imminent" requirement was satisfied.

Lastly, we hold there was sufficient evidence to establish that there was a "likelihood of serious harm" under the third prong of the definition. In Matter of G.P., the Court noted that with regard to the third prong, the harm that is to be considered is "physical impairment or injury" to the respondent and a "very substantial risk" of that type of harm is shown by evidence that the respondent's judgment is so adversely affected by her mental illness that she cannot protect herself from physical harm, and that the community does not include any reasonably available external source of adequate protection. Id. at 128-129. The focus in this context is on the respondent's degree of impaired judgment due to her illness; the degree of likelihood that she will sustain or inflict injury; and the inability of any other person or persons in the respondent's community to provide her protection against these risks. Id. at 129.

In this case, Dr. Khan testified that D.T. was mentally ill, was not taking any antipsychotic medication, and was severely lacking in personal hygiene. Khan testified further that Bournewood had learned that D.T. had not continued with her outpatient treatment in the months prior to her commitment and had not refilled her medication in several months. During her testimony, D.T. continued to blame the tainted cigarettes as the source of her ills and expressed a desire to return to

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her apartment. She admitted, however, her family did not speak to her and had only a generalized plan in terms of living arrangements, employment prospects, and further medical care. She also stated she did not eat on certain days. In our view, D.T.'s failure to care for herself, lack of family support, and a lack of a cohesive plan amounted to an imminent, very substantial risk of physical harm were she to be discharged to the community. Viewing the testimony as a whole, and mindful that it is for the trial judge to assess credibility, we find sufficient evidence to meet the standard for commitment under the third prong.

The court's order of commitment is affirmed. [Note 4]


[Note 1] The Honorable Kathryn E. Hand participated in the hearing, review, and decision of this case, but was appointed to the Appeals Court prior to the issuance of this opinion.

[Note 2] Counsel appeared for the oral argument of this matter, relying on the brief filed by prior counsel, who was forced to withdraw due to illness. The petitioner did not file a brief or appear for argument.

[Note 3] In Greek mythology, Medusa was described as a female with living venomous snakes in place of hair; those that gazed upon her face would turn to stone.

[Note 4] D.T. also challenged her commitment on the ground that while Bournewood's petition indicated that D.T. suffered from schizophrenia, Dr. Khan testified she suffered from schizoaffective disorder. Dr. Khan testified further, however, that D.T. suffered from "a thought disorder, a psychotic disorder," symptoms consistent with schizophrenia. See Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013).