2019 Mass. App. Div. 87

December 14, 2018 - June 10, 2019

Appellate Division Northern District

Court Below: District Court, Cambridge Division

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

Diane M. Geraghty Hall for the petitioner.

Richard Padykula for the respondent.

NESTOR, J. McLean Hospital ("hospital") filed a petition for civil commitment of P.K. on March 22, 2018 in accordance with G.L. c. 123, §§ 7 and 8. A petition was also filed at the time requesting authorization for medical treatment pursuant to G.L. c. 123, § 8B. Hearings on these petitions were originally scheduled for March 29, 2018. P.K. requested a continuance to April 5, 2018 to obtain the services of an independent medical evaluator.

P.K.'s mother and Dr. Stephanie Valcourt ("Valcourt") testified at the hearing. During the testimony on the G.L. c. 123, § 8B petition, P.K. had an episode where he lost consciousness. He was evaluated by a doctor, cleared, and the hearing continued at his request. The trial court allowed the petition for commitment and also authorized treatment with medication pursuant to section § 8B.

P.K. was twenty-five years old at the time of his hospitalization on March 19, 2018. He was admitted to the hospital because his mother had become increasingly concerned about his behavior at home. P.K. had not been in any mental health treatment for the previous ten years. In recent months, his behaviors had worsened. He regularly isolated himself in his room. He would emit loud, horrifying noises. He smashed glasses and dishes in both his room and the hallway. P.K. also punched a "gigantic" hole in his bedroom wall. P.K. was so angry and hostile that his mother was afraid to be in the house with him. His mother took pictures of his bedroom, which she presented to the hospital on his admission. Dr. Valcourt described the photographs as depicting spit all over the walls, broken dishes, and glass strewn over the floor, with hair clippings on the floor and solvents and chemicals that P.K. had mixed. Dr. Valcourt also indicated that P.K. had been delusional about being poisoned by lead paint.

Dr. Valcourt further testified that P.K. was suspicious of the staff and that his daily interactions with staff were filled with anger. Dr. Valcourt testified that after evaluating P.K., she diagnosed him as suffering from Unspecified Schizophrenia and Other Psychotic Disorder. Dr. Valcourt testified she believed that P.K. was at risk of harming others and that P.K. would be unable to care for and protect himself in the community and, thus, would be in danger. Dr. Valcourt also testified that there was no less restrictive alternative than the hospital setting.

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,

Page 88

380 Mass. 908 (1980). See Matter of G.P., 473 Mass. 112 (2015). 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 judgement 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."

Matter of G.P. imposes a requirement for the first prong (harm to self) and the second prong (harm to others) that the harm must have a real prospect of occurring; it cannot be speculative, and it cannot be far into the future. Rather, what must be shown is a substantial risk that the anticipated harm will materialize in the reasonably short term -- "in days or weeks rather than in months." Id. at 127-128. As to the third prong, the Supreme Judicial Court in Matter of G.P. stated that 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. See also Matter of A.M., 94 Mass. App. Ct. 399, 402 (2018). There is nothing in the statute or Matter of G.P., which involved a petition for commitment under G.L. c. 123, § 35, to suggest that the same standard of imminence should not be applied to the third prong (unable to protect oneself in the community) on a petition for commitment under G.L. c. 123, §§ 7 and 8. See Matter of J.C., 2018 Mass. App. Div. 63, 66 (holding that "all of the requirements for 'likelihood of serious harm' announced in Matter of G.P. are applicable in any petition under §§ 7 and 8"); Matter of S.J., 2018 Mass. App. Div. 128, 129-130 (applying imminence requirement in Matter of G.P. to petition for commitment under G.L. c. 123, §§ 7 and 8).

The evidence was sufficient to allow the trial court to make the necessary findings allowing the petition for commitment and treatment.

In the petition for commitment, the hospital asserted that P.K. posed a risk of harm under the second and third prongs of the statute. Support for a finding under the second prong of risk of harm to others was present in the testimony. In Matter of G.P., the 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. Here, there was testimony from P.K.'s mother that he treated her with anger, hostility, and contempt; smashed glasses and dishes; punched a hole in the wall; and that his behavior frightened her and that she was afraid to be in her home when he was living there. Dr. Valcourt testified that P.K. acknowledged smashing cups and punching holes in the wall. She also testified that his anger, agitation, and physically aggressive behavior presented a risk of harm to others. We find no error in the court's determination, beyond a reasonable doubt, that P.K. presented a risk of harm, both substantial and imminent, to others.

Page 89

There was also sufficient evidence to support a finding of likelihood of serious harm under the third prong. The court additionally heard evidence that P.K. had no insight into his mental illness, refused treatment in the hospital, including participating in groups, and would not allow the hospital to make referrals to outside treaters or residential programs. Further, there was evidence that P.K. had grown more withdrawn in the two months prior to his commitment, locking himself into his bedroom at his mother's house, and making loud, horrifying noises at night that did not sound human. Finally, the court heard evidence that P.K. was unemployed and was not welcome back to his mother's house. Although there was evidence that P.K. had some cash, there was no evidence on the amount or whether he had access to it in his mother's house if he were released; and though there was evidence, through the mother's testimony, that P.K. had relatives in Michigan who offered, in the past, for P.K. to live with them, there was no evidence on whether P.K. could live with them at present. His mother testified, without objection, that there "was nowhere for him to go" if released.

P.K. also argues there was insufficient evidence to support a finding that there was no less restrictive alternative to hospitalization. Specifically, P.K. highlights the evidence that he had cash at his disposal and family in Michigan that were willing to help him. For the above reasons, we disagree. Further, Dr. Valcourt testified that P.K. had no insight into his mental illness, had no desire to engage in treatment inside or outside of the hospital, and that P.K. would not be able to care for himself outside of the hospital in light of his agitation, aggression, potential for dangerousness, and disorganized thinking.

Finally, P.K. argues that the hospital provided insufficient evidence to support the court's authorization of involuntary treatment with antipsychotic medication (Risperidone) under G.L. c. 123, § 8B. P.K. argues that the evidence established that he has consciously and deliberately declined any type of medical treatment or psychiatric services since he was a child and that the hospital failed to produce evidence that would belie this expressed preference, which is a critical factor in the court's substituted judgment analysis, or to produce evidence that P.K. was not competent since he has been a child. P.K. appears to rely on testimony during the commitment hearing from his mother that P.K. saw a therapist as a child but refused to keep seeing the therapist at age fourteen or fifteen and that P.K. has not "seen anybody" or been "in treatment" since that time, despite his mother's persuading. Even if this could be considered an expressed preference by P.K. against antipsychotic treatment, none of this was raised at the treatment hearing. At most, Dr. Valcourt testified during the treatment hearing that she learned, in speaking with P.K.'s mother, that P.K. "was likely" treated with Risperidone at seven years old, with no further trials. Dr. Valcourt's testimony at the treatment hearing was directed to P.K.'s present lack of competency and his present preference against treatment at a time, according to Dr. Valcourt, that P.K. denied having a mental illness and was not competent to make medical decisions.

The orders for commitment and treatment are affirmed.