2019 Mass. App. Div. 77

April 19, 2019 - June 5, 2019

Appellate Division Northern District

Court Below: District Court, Waltham Division

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

Opinion affirming order of commitment. Order entered in Waltham District Court by Flynn, J. [Note 1]

Diane M. Geraghty Hall for the petitioner.

Shain M. Neumeier for the respondent.

COVEN, P.J. In this appeal, we primarily address whether the Department of Mental Health exceeded its statutory authority under G.L. c. 123 by promulgating 104 Code Mass. Regs. § 27.08(3)(b), permitting a hospital to treat a conditional voluntary patient's objection to a proposed transfer as a three-day notice of intention to leave the facility in the context of a civil commitment proceeding under G.L. c. 123, §§ 7 and 8. We conclude that C.C. failed to sustain her burden of proof and affirm the order of commitment.

In February of 2018, C.C., a female who had received care at Walden Behavioral Care ("Walden"), self-presented at the emergency room of Good Samaritan Hospital in Brockton suffering from a relapse in both her eating and substance abuse disorders as well as depression. [Note 2] From that hospital, C.C. was sent to Walden where she applied for and was admitted on a conditional voluntary admission status. See G.L. c. 123, §§ 10 and 11. On March 13, 2018, C.C. was presented with a notification of transfer to a Department of Mental Health facility. C.C. was informed that the transfer was requested because of her inability to care for herself independently in the community related to significant depression, substance abuse, and eating disorder. C.C., on the same date, objected to the transfer. [Note 3] On March 16, 2018, a petition for commitment pursuant to G.L. c. 123, §§ 7 and 8 was filed. After a full hearing, the petition was allowed. [Note 4]

The Department of Mental Health ("DMH") has promulgated regulations, pursuant to its authority under G.L. c. 123, § 2, governing the transfer of patients at licensed DMH facilities. Pursuant to 104 Code Mass. Regs. § 27.08(3):

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"Any patient admitted to a facility may be transferred from that facility to any other facility, provided that . . . (b) Patients on conditional voluntary status under 104 C.M.R. 27.06 may refuse transfer. Such refusal may be considered equivalent to submission of the patient's three day written notice of his or her intention to leave or withdraw from the facility. Upon such refusal, the facility director may file a petition for commitment under the provisions of M.G.L. c. 123, §§ 7 and 8 if the person meets the criteria for commitment . . . ."

C.C. argues that DMH has exceeded its grant of authority in promulgating this regulation or, at the least, acted inconsistently with the statutory scheme. More focused, C.C. argues that the clear statutory preference for treatment is voluntary treatment rather than involuntary hospitalization. We agree on this point. Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 105 (2000).

In Massachusetts Fed'n of Teachers v. Board of Educ., 436 Mass. 763 (2002), the Supreme Judicial Court recited the applicable standard to evaluate C.C.'s claim. There, the Court stated:

"A properly promulgated regulation has the force of law . . . and must be accorded all the deference due to a statute. A party challenging the validity of a regulation must prove that the regulation is illegal, arbitrary, or capricious. Such plaintiff must establish the absence of any conceivable grounds upon which [the regulation] may be upheld. That burden cannot be carried by arguing that the record does not affirmatively show facts which support the regulation. Rather, we must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.

"In reviewing a regulation, a court cannot substitute [its] judgment as to the need for a regulation, or the propriety of the means chosen to implement the statutory goals, for that of the agency, so long as the regulation is rationally related to those goals . . . .

". . .

"An agency's powers to promulgate regulations are shaped by its organic statute taken as a whole and need not necessarily be traced to specific words. When the Legislature delegates to an administrative agency a broad grant of authority to implement a program of reform or social welfare, the administrative agency generally has a wide range of discretion in establishing the parameters of its authority pursuant to the enabling legislation" (internal quotations and citations omitted).

Id. at 771-774.

Through G.L. c. 123, § 2, DMH was charged with "establish[ing] procedures and the highest practicable professional standards for the reception, examination,

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treatment, restraint, transfer and discharge of mentally ill persons in departmental facilities." The regulation at issue accomplished, in the context at issue in this case, this directive. Importantly, imbedded within the regulation is due process. An involuntary transfer cannot be accomplished absent the filing of a commitment petition and its allowance. C.C. has failed to put forward an argument on how a legislatively recognized occurrence of "transfer" has been exceeded or is inconsistent with the acknowledged fact that transfers are a component of G.L. c. 123.

We now turn to the other issues raised by C.C.: (a) is the signature of the designee of the medical director of Walden on the G.L. c. 123, § 7 petition fatal to the petition, and (b) was the evidence sufficient for involuntary commitment. We conclude that the petition was not defective and the evidence was sufficient.

An offer of proof was made, to which C.C. agreed, that Walden's medical director was not available on the date that the petition was signed, and the person designated as authorized to sign petitions was the person who, in fact, signed the petition for commitment of C.C. Although acknowledging Matter of B.L., 2016 Mass. App. Div. 119, in which the Western District of the Appellate Division addressed the issue of a designee, C.C. argues that Matter of B.L. is not controlling in this District [Note 5] and, in any event, is distinguishable.

Even accepting that Matter of B.L. is not controlling, this District has previously held that a medical director of a unit within a facility was "a statutory 'superintendent' of a 'facility,' . . . [and] had the authority under G.L. c. 123, § 7(a) to sign [a] petition for commitment" for a patient within the unit. BayRidge Hosp. v. Jackson, 2010 Mass. App. Div. 12, 14.

"Superintendent" is defined in G.L. c. 123, § 1 as "the superintendent or other head of a public or private facility." The regulations contained in 104 Code Mass. Regs. §§ 25.02 and 27.02, and adopted by the Department of Mental Health pursuant to G.L. c. 123, § 2, contain the following definitions:

"Facility Director or Director of a Facility. The superintendent, chief operating officer, or other head of a facility, who may petition the district or juvenile court for commitment . . . , and who may take such other action as is authorized or required of the superintendent pursuant to M.G.L. c. 123."

104 Code Mass. Regs. § 25.02.

"Facility Director. The superintendent, chief executive officer, program director, or other administrator designated by the facility to have administrative oversight of a facility or his or her designee."

104 Code Mass. Regs. § 27.02.

We agree with the observation in Matter of B.L. that "the superintendent or other head of a facility is not always present and available. Given the time frame in which petitions for commitment must be signed and filed, i.e., within three days

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of an admission under G.L. c. 123, § 12 or a notice of intent to leave under § 11, it is reasonable for the medical director to designate someone to act as a temporary head of the facility in his absence." Id. at 120. In this case, that is what the evidence shows: a designation by the medical director to the person, who in administrative oversight, signed C.C.'s petition in the medical director's absence. [Note 6] Both BayRidge Hosp. v. Jackson and Matter of B.L. recognize that a petition for commitment may be signed by a person other than the top executive of a facility. We find no error in this case on the issue of designation. We also reject the argument that for the petition to be authorized through a designee, there must be proof presented that the medical director was unavailable at any time during the three-day period in which Walden had to file the petition once it treated the refusal of transfer as an intent to leave.

No merit exists in C.C.'s claim that the evidence was insufficient for the commitment of C.C. While ultimately a judicial decision, we highlight that C.C.'s expert acknowledged that it would have been unsafe for C.C. to be discharged. When asked whether C.C. "would be safe if she were to leave the hospital," C.C.'s expert responded, "No, I think she's commita[ble]."

Our review of the record supports the judicial finding of likelihood of serious harm. A likelihood of serious harm is defined in G.L. c. 123, § 1 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."

There was evidence of significant risk of suicide, [Note 7] that her judgment was impaired by her mental illness and this impairment prevented her from being safe outside of a hospital setting, and her disorder of purging five to six times a day resulted in life threatening electrolyte abnormalities.

On the issue of less restrictive setting, the judge was presented with evidence that there did not exist services available in the community and remaining at Walden was, obviously, not an option for continuing care.

Order of commitment affirmed. Appeal dismissed.


[Note 1] The Honorable Gregory C. Flynn recused himself from this appeal, and did not participate in its hearing, review, or decision.

[Note 2] C.C. had previously been diagnosed with depression, posttraumatic stress disorder, substance abuse, and anorexia nervosa with purging behaviors.

[Note 3] The notice informed C.C. that if there was an objection to the transfer, Walden would (1) keep C.C. at the facility, (2) her objection would be treated as a three-day notice to leave and C.C. would be discharged to the community, or (3) her objection would be treated as a three-day notice to leave and Walden would file a commitment petition.

[Note 4] We do not deem this appeal moot even though C.C. has been discharged from Walden. See, e.g., Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274 (1978) (issue of importance raised).

[Note 5] There is support for the principle that stare decisis "is not applicable among the several Appellate Division Districts." Chickel v. Massachusetts Bay Transp. Auth., 2001 Mass. App. Div. 241, 242.

[Note 6] Section 27.06(5) of 104 Code Mass. Regs. directs the facility director to act in conformity with § 27.09(4) when a three-day letter of intent to leave is submitted. The latter regulation permits the facility director, and by definition his designee, to file commitment petitions.

[Note 7] Suicidal risk was not listed in the petition. However, there was no objection to this evidence.