2020 Mass. App. Div. 142

June 28, 2019 - September 30, 2020

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Poehler & D'Angelo, JJ. [Note 1]

Nathan Frommer for the petitioner.

Susan Stefan for the respondent.

HADLEY, P.J. These appeals arise from the involuntary civil commitment of J.T. pursuant to G.L. c. 123, §§ 7 and 8 and an order authorizing the administration of antipsychotic medication pursuant to G.L. c. 123, § 8B.

Procedural history. On December 18, 2017, J.T. executed an application for care and treatment on a conditional voluntary basis at the Worcester Recovery Center and Hospital ("WRCH" or the "hospital"). Her application was accepted by a designated physician, and she was hospitalized.

On March 23, 2018, J.T. signed a three-day notice form, informing WRCH of her intention to leave the facility. Shortly thereafter, J.T. signed a retraction notifying WRCH that she was withdrawing the notice of her intent to leave the facility. Her treating psychiatrist, however, rejected the retraction, and subsequently the hospital filed a petition to commit J.T. involuntarily pursuant to G.L. c. 123, §§ 7 and 8.

On March 29, 2018, J.T. filed a second application for care and treatment on a conditional voluntary basis. This application was rejected by her treating psychiatrist. The stated reason for the rejection was the psychiatrist's opinion that J.T. was not agreeing to receive treatment and that she "displays lack of understanding of her illness and behavior."

On April 2, 2018, J.T. filed a motion to dismiss the hospital's petition for commitment, asserting that the retraction of her notice to leave the facility should have been accepted, and that because J.T. was willing to continue her conditional voluntary hospitalization, the District Court had no jurisdiction to hear a petition for involuntary commitment.

A hearing on the motion to dismiss was held on April 4, 2018, in the Worcester District Court. On April 11, 2018, the motion judge issued written findings of fact and a memorandum and order denying the motion. The judge determined that the District Court had jurisdiction to hear the petition for involuntary commitment. A commitment hearing was held in June, 2018, and an order of involuntary commitment issued. An order for treatment followed. That order is the subject of a separate appeal.

Hearing and decision on motion to dismiss. At the hearing, records relating to J.T.'s hospitalization were introduced and J.T.'s treating psychiatrist and J.T. testified. The records indicated that J.T. was admitted to the hospital "with major depressive

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disorder, severe, with psychotic features." On March 6, 2018, J.T. was described as "dysthymic and lethargic." A progress note dated March 12, 2018, reported "[d]epression, lack of motivation, isolation, mild thought disorganization, anhedonia, guarded, hopeless, possible auditory hallucinations, irritability."

Her treating psychiatrist testified that he rejected J.T.'s retraction because he held the opinion that although she had participated in some therapy sessions, J.T. did not understand she was agreeing to stay and receive treatment at WRCH. With regard to J.T.'s second application for treatment on a conditional voluntary basis, he testified that when she completed that application J.T. understood that she would be required to sign a three-day notice of her intention to leave the facility and that she might not be allowed to leave the hospital without a court hearing. Once again, however, it was his opinion that J.T. did not understand that she was agreeing to stay at WRCH and receive treatment.

There was also evidence from which the motion judge could have found that J.T. had at one point refused to allow hospital personnel to take a photograph of her for a hospital identification badge that was required in order for her to move about the facility; that she was irritable and angry with staff at times; and that she was at times agitated, argumentative, and oppositional. The evidence supported a finding that throughout her hospitalization, J.T. selectively participated in therapy. Progress notes that were introduced reflected that J.T. had little motivation to be involved in therapy and an unwillingness to accept recommended treatment, including medication. Records also indicated that J.T. found some treatment programs complicated and that she had trouble understanding them. Her treating psychiatrist believed J.T. showed poor insight into her need for medication, and reported that she was at times loud and that she isolated herself in her room.

The psychiatrist testified that beginning in early March, 2018, J.T.'s behavior raised a question whether she was suffering from some form of psychotic thought process. On March 6, 2018, the record reflects that J.T. stated that WRCH was a place to live when she had nowhere else to go. The progress notes also reflect that J.T. had difficulty calming herself without restraints and medications and that providers thought she had a high degree of difficulty dealing with the rules, the structure, and the lack of privacy inherent in hospitalization. J.T. also "reported that she has a bed and a sink here and nowhere to go in the community, so thinking about her goals feels like a bad idea." On March 9, 2018, after a verbal altercation with WRCH staff, J.T. broke a chair in her room.

Her treating psychiatrist reported that the day before J.T. gave her notice of her intent to leave the hospital she had to be placed in restraints for "aggressive behavior." At that time, J.T. was told that she was in a hospital; that people went there to get help; and that if she did not want treatment, the hospital was not the place to be. She responded by stating that she wanted to sign a three-day notice to leave. On March 23, 2018, J.T. held a door closed against hospital staff, complaining about her right to privacy.

A March 23, 2018, note in the treatment record stated that "[p]reviously [J.T.] did not want therapy but was unwilling to be discharged." Her treatment team "wondered whether there was some secondary gain for [J.T.] to be here -- either avoiding some consequence in the community, hiding out from someone, wanting respite until warmer weather or just having no other plan about where to live."

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The March 23, 2018, treatment record described J.T.'s judgment and insight as being "impaired." On the same date, at or about the time, J.T. gave written notice to leave the hospital and then attempted to retract the notice; however, the treatment records stated that J.T. showed no obvious delusions or paranoia. Her memory, attention, and concentration were described as being intact, and it was reported that there were no signs of obvious psychosis. It was also reported that her "thoughts have been organized." In addition, the record stated that she had agreed to have her photograph taken for a new badge.

The hearing judge explained her decision to deny the motion in a memorandum, stating that the evidence supported the psychiatrist's opinion that J.T. lacked the capacity to retract her three-day notice and apply for conditional voluntary status "insomuch as she is selectively engaging in treatment, at times requiring prompting by staff to participate in treatment, and at times declines to participate all together. Additionally, Respondent consistently declines antipsychotic medications." The judge also wrote that J.T.'s treating psychiatrist began to question J.T.'s capacity in early March, 2018, when she began showing a pattern of angry and oppositional behavior and that J.T. had to be restrained for this behavior. In her decision on the motion to dismiss, the hearing judge also stated that she credited the psychiatrist's testimony and the medical records that were introduced.

Discussion. Procedures for conditional voluntary admissions to and departures from facilities such as WRCH are set out at G.L. c. 123, §§ 10 and 11, and at 104 Code Mass. Regs. § 27.06. Pursuant to statute, the superintendent of a facility may receive an individual on a conditional voluntary basis only upon a determination by the admitting physician that the patient has the capacity to apply for such status. This means that the patient has the capacity to understand that: "(i) the person is agreeing to stay or remain at the hospital; (ii) the person is agreeing to accept treatment: (iii) the person is required to provide the facility with three days written advance notice of the person's intention to leave the facility; and (iv) the facility may petition a court for an extended commitment of the person and that he may be held at the facility until the petition is heard by the court. If the physician determines that the person lacks the capacity to understand these facts and consequences of hospitalization, the application shall not be accepted." G.L. c. 123, § 11.

Section 27.06(1)(a) of 104 Code Mass. Regs. similarly provides that a person may be admitted on a conditional voluntary basis if, in the opinion of the facility's director, the person "has the capacity to apply for such admission and is desirous of receiving treatment." With regard to a person admitted on a conditional voluntary basis, "capacity to apply" means: that a patient "understands that he or she is in a facility for treatment, understands the three-day notice provisions, and understands the facility director's right to file a petition for commitment and thereby retain him or her at the facility." 104 Code Mass. Regs. § 27.06(1)(c)(2).

Additionally, 104 Code Mass. Regs. § 27.06(5)(b) provides that a three-day notice of a patient's intent to leave a facility can be retracted. The notice "may only be retracted by written notice to the facility director; provided however, that such retraction shall only be accepted upon a determination by the facility director or designee that the patient has the capacity to apply for conditional voluntary status pursuant to 104 CMR 27.06(1)(c)."

At the hearing in this case, the parties agreed that when she gave her notice to

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leave the hospital and when she retracted it, J.T. had the capacity to understand the three-day notice requirement and the hospital's right to pursue involuntary commitment if she filed a three-day notice. The issue remaining to be decided in regard to J.T.'s motion to dismiss was whether J.T. understood that she was "in a facility for treatment" when she submitted the retraction of her three-day notice of intent to leave the facility.

On appeal, in summary, J.T. asserts that the court erred in equating capacity to understand she was in a hospital for treatment with a willingness to follow all of her psychiatrist's recommendations. She asserts she had the right to accept or reject different forms of treatment and, for example, could refuse medication even if this was strongly recommended by her treating psychiatrist. Not wishing to participate in a particular form of treatment or take medication, she argues, is not the same as not having the capacity to understand where she is and why she is there. She maintains that the hospital should have performed cognitive testing aimed at measuring J.T.'s capacity to understand and that both the hospital and the court improperly focused on what were perceived as unwise choices instead of cognition.

Again in summary, WRCH asserts that there is nothing that requires specific testing for cognition in these circumstances. It contends J.T.'s diagnosis, her actions, and all of the circumstances supported the doctor's opinion and the judge's determination that J.T. did not understand she was in the hospital for treatment and not, for example, simply to escape the challenges of life outside the hospital. WRCH also argues that allowing a motion to dismiss in a case such as this would be tantamount to an unreasonable order that a facility accept and keep a patient on a conditional voluntary basis even when the patient refuses to be treated and others are waiting for services.

In our consideration of this appeal, we note that "[i]t is within the purview of the judge to weigh the evidence, assess credibility of witnesses, and make findings of fact, which we must accept unless clearly erroneous." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018), citing G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). We, however, generally "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." Id., quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005). In this case, J.T. does not challenge the judge's subsidiary findings. She maintains that the evidence and the subsidiary findings simply were insufficient to support the conclusion that J.T. did not understand she was in a facility for treatment.

In addressing these arguments, it is important to recognize that the standard for admitting a patient to a facility on a conditional voluntary basis is a lenient one. It is intentionally so, as it favors allowing and encouraging individuals to voluntarily choose hospitalization when needed to address serious mental health issues. Toward this end, conditional voluntary patients are afforded some level of protection from involuntary commitment, as long as the standard is met.

We also note that when an individual is admitted to a facility on a conditional voluntary basis, she maintains the right to refuse any particular treatment that is offered if she meets the low bar of understanding the basic facts that she is in a hospital for treatment. See, e.g., Commentary to Standard 6:00 of the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011). See also Acting Supt. of Bournewood Hosp. v. Baker,

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431 Mass. 101 (2000). Only when a patient loses the capacity to understand this is she potentially exposed to an order for involuntarily commitment. This statutory and regulatory scheme balances the sometimes competing interests of encouraging voluntary admissions and promoting individual autonomy and the interests of protecting a patient's safety and the safety of the public.

Finally, given the nature of these proceedings, in particular the fact that the rejection of J.T.'s retraction of her notice of intent to leave the facility is what made an involuntary commitment possible, the hospital had the burden of proof with regard to the issue of her alleged lack of capacity to understand.

It is against this framework that we have considered the parties' positions and have reviewed the record before us. Having done so, we do not agree with J.T.'s contention that the court's use of the words "inasmuch as" means the judge simply equated J.T.'s refusal to take psychiatric medications and her selective treatment attendance with a lack of capacity. As noted above, in her decision the hearing judge incorporated by reference a number of other facts contained in the testimony and the records she credited. These include the facts that at or about the time she tendered her retraction, J.T. was described as suffering from depression and hopelessness and her treating psychiatrist found she had become irritable and angry with staff; she was described as having little motivation to be involved in therapy or to accept recommended treatment; she had difficulty understanding some forms of treatment; sometimes she was loud and isolating; and her treating psychiatrist believed she had poor insight into her illness and her need for treatment.

The judge also credited the representation that in early March, J.T. stated that the hospital was a place for her to live when she had no place else to go. She also credited the representations that in late March, J.T. had to be placed in restraints for aggressive behavior; she had a high degree of difficulty with rules and structure and a lack of privacy; she broke a chair, and she held the door to her room closed against hospital staff, complaining about her privacy.

Other written medical records created at the time of J.T.'s retraction, however, were also credited. They stated that J.T. showed no obvious delusions or paranoia; that her memory, attention, and concentration were intact; and there was no obvious psychosis. It was reported that her thoughts had been organized, and she agreed to have her photograph taken for a new badge that would allow her to access other parts of the facility for treatment. J.T. was not refusing all treatment, but selectively participated. We also note that three months prior to her attempted retraction, at the time she initially sought care at WRCH, J.T. was determined to have the capacity for conditional voluntary admission, despite a diagnosis of a severe major depressive disorder with psychotic features.

In light of the above, we agree with the appellant that in addressing the retraction and the subject motion to dismiss, the central issue to be determined was J.T.'s ability to understand some very basic facts. Such a determination may be made based on inferences from established facts, and therefore a patient's attitude, motivation, or preferences may certainly be relevant. The issue to be decided, however, was her capacity to understand, a question of her cognitive ability. On this question, we find the evidence that was introduced at the hearing was deficient. In short, what was lacking is evidence that J.T.'s illness, actions, her vacillating attitude about various forms of treatment, her sometimes combative attitude, and her diagnosis caused,

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or related to, impairment in her ability to understand she was in the hospital for treatment. See generally Lane v. Candura, 6 Mass. App. Ct. 377, 384-385 (1978) (discussing the need for particularity in inquiries concerning claims of incompetence and lack of capacity). The record in this case does not include any clear explanation of how or whether J.T.'s capacity to understand was assessed. Without this, we find that she should have been allowed to retract her three-day notice of her intent to leave the facility. Had this occurred, the court would have been without jurisdiction to entertain the hospital's petition for involuntary commitment, as stated in Acting Supt. of Bournewood Hosp. v. Baker, supra.

Finally, as stated above, the hospital expressed a concern that a decision of this nature could have the effect of compelling facilities such as WRCH to retain patients who do not want treatment, and who will only "languish" in a facility and unnecessarily tie up a limited supply of beds. We suggest that going forward hospitals that accept patients on a conditional voluntary basis simply assess their patients' capacity in a systematic way and provide clear documentation of this to the reviewing courts. In addition, we also note that hospitals have other options to address these situations, both at periodic reviews and by way of an order from the Probate Court for the appointment of a legally authorized representative. See 104 Code Mass. Regs. § 27.11.

For all the above reasons, the decision denying the motion to dismiss the commitment petition is reversed. These cases are returned to the trial court for entry of orders vacating the commitment order and treatment order.


[Note 1] The Honorable Patricia T. Poehler participated in the review of this case but completed her Appellate Division service prior to the issuance of this opinion.