IN THE MATTER OF K.M.

KARSTETTER, J. Holy Family Hospital (the "Hospital") petitioned to commit K.M. pursuant to G.L. c. 123, §§ 7 and 8. The petition was denied and K.M. ordered discharged. On receiving the order, the Hospital restrained him pursuant to G.L. c. 123, § 12(a). K.M. filed a request for an emergency hearing and an order of discharge pursuant to G.L. c. 123, § 12(b), alleging an abuse or misuse of the involuntary admission procedure because his discharge was illusory. After an evidentiary hearing, the judge denied K.M.'s request. We reverse.

Facts. A hearing on the Hospital's petition to commit K.M. pursuant to G.L. c. 123, §§ 7 and 8 took place on August 14, 2018. The judge took the matter under advisement. Three days later, on August 17, 2018, the judge denied the petition, finding that the Hospital had failed to meet its burden of proving beyond a reasonable doubt that there was a likelihood of serious harm and no less restrictive alternative to hospitalization. [Note 1] After learning that K.M. was to be discharged, the Hospital's witness, Dr. John Sebastianelli ("Sebastianelli"), completed and signed a new petition pursuant to G.L. c. 123, § 12(a) authorizing K.M.'s restraint.

When K.M. stepped out of the Hospital, Methuen police officers, who were waiting outside, blocked him from leaving and then accompanied K.M. to the emergency department. Within hours, K.M. was taken to the same room in the Hospital's psychiatric unit he had left only a few hours before.

On August 20, 2018, K.M. filed a request for an emergency hearing and an order of discharge based on the "abuse or misuse" of the involuntary admission procedure provision of G.L. c. 123, § 12, Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777 (2008), and the argument that the "discharge" had been illusory. An evidentiary hearing was held the next day, August 21, 2018, before a different judge.

Dr. Sebastianelli again testified on behalf of the Hospital. Asked on direct examination what his concerns were after the August 14, 2018 hearing, Dr. Sebastianelli testified that K.M.'s symptoms had abated from admission to the hearing date, but then returned between August 15 and August 17 (the period after the original hearing but before the petition had been denied). Specifically, he testified to three

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new facts that had arisen during this period, which the Hospital argued justified its restraint and readmission of K.M. pursuant to G.L. c. 123, § 12: first, K.M. was floridly psychotic and grandiose; second, he made threats to staff; and third, his family would not allow his return home. [Note 2]

As to the first of the three new facts, Dr. Sebastianelli testified that K.M. claimed that he knew people in the mafia, he claimed that his grandfather was worth $350 million, and he "mentioned something about propane tanks." Dr. Sebastianelli opined that if K.M. were in the community, his interactions with other people in his then current state could subject him to physical harm. Dr. Sebastianelli also testified that no restraints had been used on K.M., and that K.M. had been allowed a razor to shave during this period. As to the second new fact, Dr. Sebastianelli described K.M. as "scary," but conceded on cross-examination that the "threats" were not threats of physical harm, but of the medical and nursing licenses of hospital personnel, and that K.M. had raised his voice with him. As to the third, the judge found that the Hospital learned that K.M.'s family would not permit him to return home.

K.M. also testified at the emergency hearing, and on his request, the G.L. c. 123, § 12(a) application and § 12(b) admission paperwork were admitted into evidence. The judge denied without delay K.M.'s requested discharge and then, in her later findings and order, approved the Hospital's restraint and readmission of K.M., concluding that "due to the intervening factors, the hospital was well within its discretion to file a new petition."

Analysis. Although K.M. is no longer confined at the Hospital and his appeal therefore moot, we review the merits of his appeal because the issues it presents are capable of repetition, yet evading review and are a matter of public importance given the significant liberty interest at stake. Pembroke Hosp. v. D.L., 482 Mass. 346, 351 (2019). In addition to providing for an involuntary three-day commitment, [Note 3] G.L. c. 123, § 12(b) provides:

"Any person admitted under the provisions of this subsection, who has reason to believe that such admission is the result of an abuse or misuse of the provisions of this subsection, may request, or request through counsel an emergency hearing in the district court in whose jurisdiction the facility is located, and unless a delay is requested by the person or through counsel, the district court shall hold such hearing on the day the request is filed with the court or not later than the next business day" (emphasis added).

Use of G.L. c. 123, § 12 to continue to restrain a patient after a petition to commit him pursuant to G.L. c. 123, §§ 7 and 8 has been denied is an abuse or misuse of § 12 when no actual discharge occurs. Pembroke Hosp. v. D.L., supra. In Pembroke Hosp. v. D.L., the Supreme Judicial Court held that a "discharge" occurs only when

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the individual is set at liberty from involuntary restraint and not when released from care. Id. at 352. Without the restoration of liberty, the statutory requirement of discharge would be "impermissibly weakened, if not rendered meaningless." Id. Due process requires judicial review of commitments pursuant to § 12. See generally Marybeth Walsh, Due Process Requirements for Emergency Civil Commitments: Safeguarding Patients' Liberty without Jeopardizing Health and Safety, 40 B.C. L. Rev. 673 (1999). See also Matter of N.L., 476 Mass. 632, 636, citing District Court Committee on Mental Health and Retardation, Report of the Ad Hoc Committee to Review G.L. c. 123, § 12, at 1, 4 (Oct. 21, 1997) ("These amendments [to G.L. c. 123, § 7] make it clear that the Legislature intended to protect the individual's due process rights by minimizing the length of time for which he or she could be involuntarily committed prior to judicial review.").

We note that Pembroke Hosp. v. D.L. had not been decided when K.M.'s emergency hearing was conducted and decided. Because this case requires an interpretation of statutory language, we review it de novo. Id. at 351. There is no question of retroactive application of its holding as it merely clarified the meaning of a statute and did not announce new legal principles. Commonwealth v. Dorisca, 88 Mass. App. Ct. 776, 777 n.2 (2015).

In Pembroke Hosp. v. D.L., the hospital's petition to commit the respondent under G.L. c. 123, §§ 7 and 8 was denied; the judge found that the hospital had not met its burden of proving the required danger prong (see n.1, supra). In the hours following the denial, the hospital did not allow the respondent to leave and instead arranged to have him transported without his consent to a different hospital for an evaluation pursuant to § 12. As a result of that evaluation, the respondent was rehospitalized involuntarily. Pembroke Hospital's justification for the § 12 was that staff members were unable to secure housing for the respondent with his family members and he continued to be dangerously mentally ill (despite the hearing judge's finding that the evidence of danger was insufficient). Id. at 349- 350. The Court concluded, however, that the hospital was not in compliance with the requirement of discharge. In essence, the hospital had "substituted its judgment for that of the judge," which "constituted an 'abuse or misuse' of the authority afforded to facilities and health care professionals under § 12." Id. at 353-354.

Similarly in this case, the Hospital restrained K.M. pursuant to G.L. c. 123, § 12 without having discharged him, that is, without having set him at liberty -- he was blocked at the door by Methuen police and escorted to the emergency department. Also similar to the facts in Pembroke Hosp. v. D.L., the Hospital justified its continued restraint of K.M. based upon factors related to his housing and continued mental illness. Inasmuch as there was no discharge, Pembroke Hosp. v. D.L. would seem to require a conclusion that there was a misuse or abuse of § 12 requiring allowance of K.M.'s emergency motion. Where the facts diverge, however, is that in this case, there were three days between the petition hearing and the order of discharge, during which, the Hospital argued and the judge found, there were intervening factors.

There may often be intervening factors that arise while a petition judge has a petition under advisement. The Supreme Judicial Court noted that the statutory scheme does not prohibit recommitting a person on a temporary basis in dictum in Newton-Wellesley Hosp. v. Magrini, supra at 784 n.14 ("This is not to say that a hospital could never recommit a person on a temporary basis. The statutory scheme does not prohibit such action, but that issue is not before us."). Importantly however, in Newton- Wellesley Hosp. v. Magrini, the petition was dismissed as untimely where in both this case and Pembroke Hosp. v. D.L., there was a full hearing on the merits of the petition; the dictum in footnote 14 of Newton- Wellesley Hosp. v. Magrini does not compel our review of the intervening factors in this case, but we review them nevertheless.

In reviewing the hearing evidence, we conclude that the three intervening factors relied on by the Hospital in its opposition to K.M.'s motion failed to constitute the "harm" or danger required by the statute. First, there was evidence of concern that K.M.'s delusions and grandiosity could be a cause of harm being done to him were he to be at liberty in the community. It is true that in this tumultuous world, people who suffer with mental illness may be at greater risk of harm from others who do not understand their illness or worse. While it is certainly possible that K.M.'s mental illness could be the cause of harm to him from some member of the public, that possibility was in the realm of speculation. Second, there was testimony that K.M. had been threatening, scary, and raised his voice. For K.M. to be a danger to others, the evidence would have required behavior manifesting (or statements of) homicidal ideation, violent behavior, or threats of serious physical harm. See Matter of G.P., 473 Mass. 112, 126 (2015). The evidence that K.M. had threatened professional licenses of hospital personnel, was "scary," and had raised his voice does not support a reasonable fear of violent behavior or serious physical harm necessary to justify deprivation of liberty. Third, the evidence was that K.M. would not be able to return to his family. Continued mental illness and an inability to return to family were an insufficient basis to restrain the respondent in Pembroke Hosp. v. D.L.; the same is true, therefore, of K.M.'s restraint. In reaching this conclusion, we also note that except for the three days between the petition hearing and decision, the facts in this case are very similar to those in Pembroke Hosp. v. D.L.

In light of the holding in Pembroke Hosp. v. D.L., it may be the better practice for petitioners like the Hospital to bring any new evidence that may have a bearing on their petitions to the petition judge before entry of an order of discharge (or commitment) entering. Upon receiving an order of discharge, the holding of Pembroke Hosp. v. D.L. requires that the respondent be set at liberty and that the discharge not be illusory or a mere release from care. To allow otherwise would be to allow petitioners to substitute their judgment for that of the courts and so doing, extirpate due process.

K.M.'s request should have been allowed because he was not properly discharged and because the evidence of intervening factors in opposition to his request was insufficient to support his continued commitment. The court's order denying K.M.'s request for discharge is reversed.