IN THE MATTER OF S.S.

GINSBURG, J. This is S.S.'s appeal of the trial court's order of involuntary medical treatment under G.L. c. 123, § 8B. For the reasons below, we affirm the trial court's decision.

We review the trial court's findings of fact for clear error, and "'scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.' Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004)." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).

On May 16, 2019, the Worcester Recovery Center and Hospital ("Hospital") filed a petition for authorization to administer medical treatment to S.S. pursuant to G.L. c. 123, § 8B. At the hearing on June 11, 2019, S.S. did not contest the commitment under G.L. c. 123, § 18, and the judge issued a six- month order of commitment pursuant to G.L. c. 123, §§ 18 and 6(b). At the § 8B hearing, S.S.'s treating psychiatrist testified on behalf of the Hospital regarding S.S.'s competency. Based on that uncontroverted evidence, the judge found the Hospital had met its burden with respect to competency. S.S.'s treating psychiatrist also testified for the Hospital regarding the substituted judgment determination, and S.S. testified very briefly about her concern about the side effects of medication. The judge found that the Hospital had met its burden regarding substituted judgment and approved the Hospital's proposed treatment plan. S.S. now appeals that treatment order.

General Laws c. 123, § 8B governs petitions seeking court authorization for administration of antipsychotic medications or other medical treatment of mental illness for persons committed to mental health facilities who are alleged to be incapable of giving or withholding informed consent to such treatment. Under G.L. c. 123, § 8B(d), "[T]he court shall not authorize medical treatment [with antipsychotic medication] unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan." The elements required to authorize a requested treatment order must be proved by a preponderance of the evidence, and the court must give close attention to the evidence and enter specific and detailed findings on each of the issues. See Guardianship of Doe, 411 Mass. 512, 523-524 (1992).

The court's first task in adjudicating a G.L. c. 123, § 8B petition is to determine whether the respondent is competent. See Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 498 (1983). Like all other persons, S.S. is presumed to be

Page 137

competent. See Fazio v. Fazio, 375 Mass. 394, 403 (1978). In order to overcome the presumption of competence, the court must find by a preponderance of the evidence that the respondent is incapable of making informed treatment decisions. See Guardianship of Roe, 383 Mass. 415 (1981). In making this determination, the court must consider the patient's ability to think or act for herself in matters concerning her personal health, safety, and general welfare. See Fazio, supra at 403.

Here, the record reflects sufficient evidence to support the judge's determination that S.S. was incompetent. In the competency part of the hearing, the only evidence was the treating psychiatrist's testimony. The psychiatrist testified that because of S.S.'s inability to appreciate that she had a mental illness, she was unable to appreciate the benefits of receiving any type of antipsychotic medication or appreciate the risks of refusing. The psychiatrist further testified that it was her opinion, with reasonable medical certainty, that S.S. was unable to make a reasoned decision with respect to refusing or accepting antipsychotic medication. The psychiatrist also testified that S.S. had been successfully treated with antipsychotic medication during her last admission to the hospital. The judge also observed that the patient was talking to herself throughout the hearing, and the psychiatrist testified that she had observed the patient doing that every day throughout her hospitalization. We find no error in the court's determination that S.S. was incompetent.

If a mentally ill patient has been deemed to be incompetent to make treatment decisions for himself or herself, a judge must determine "what the patient would choose if he were competent." Guardianship of Weedon, 409 Mass. 196, 199 (1991). The substituted judgment determination is the means by which the judge determines what the incompetent person would choose if he or she were competent. Id. In a substituted judgment proceeding, the "court dons 'the mental mantle of the incompetent' and substitutes itself as nearly as possible for the individual in the decision-making process ...[T]he court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent" (citations omitted). Matter of Moe, 385 Mass. 555, 565 (1982). In order to do this, the judge assesses several factors, including: the respondent's expressed preferences regarding treatment; the respondent's religious convictions; the impact on the respondent's family; the probability of adverse side effects; and the prognosis with and without treatment. See Rogers, supra at 505-506; Guardianship of Roe, supra at 444.

Here, the judge weighed the relevant factors and appropriately concluded that S.S., if competent, would choose to take antipsychotic medication. The psychiatrist testified that with treatment the patient had a fair prognosis and that without the medication the patient would likely continue to be psychotic and that her mental illness would deteriorate. The psychiatrist also testified that the patient had been treated with at least one of the proposed medications previously with no side effects noted. There was evidence that the patient had twice attempted to assault individuals during her hospital stay, and there was concern that if untreated the patient could assault others. In addition, there was evidence that due to her mental illness, the patient was not cooperating with treatment for an eye condition she had that if left untreated could cause permanent eye damage.

The trial judge did consider that S.S. expressed a preference not to take the antipsychotic medication. Even though S.S. is incompetent, her preference is "entitled

Page 138

to serious consideration." Guardianship of Linda, 401 Mass. 783, 786 (1988), quoting Guardianship of Roe, supra at 445. After considering S.S.'s stated preference, however, the judge found that because of her mental illness, S.S.'s decision regarding treatment was not informed. The judge further found that the use of antipsychotic medications can involve side effects, but that there was no report of any side effects experienced by the patient here. Additionally, the judge balanced S.S.'s prognosis with and without treatment with antipsychotic medication. The judge found it was anticipated that S.S. would have a favorable response to consistent treatment with antipsychotic medication and would become less disorganized and psychotic. Further, the judge found that with ongoing treatment the patient's discharge from the hospital would become a possibility. The judge found that without treatment S.S. would continue to suffer from the symptoms she was currently experiencing, and as a result, she would remain with impaired judgment and insight and continue to pose risk of harming others and herself. The judge's decision regarding substituted judgement was supported by the evidence.

Finally, S.S. claims the treatment order is invalid because there was no date set for periodic review. There is no evidence that S.S. was prejudiced by a lack of periodic review as counsel acknowledged at oral argument that S.S. was released after a one-month period of commitment. Accordingly, this argument is without merit.

For the foregoing reasons, we affirm the order of treatment.