2020 Mass. App. Div. 148

September 13, 2019 - September 30, 2020

Appellate Division Southern District

Court Below: District Court, Brockton Division

Present: Finnerty, P.J., Finigan & Pino, JJ.

Philip W. Silva for the petitioner.

Chetan Tiwari for the respondent.

PINO, J. M.D. appeals from the order that he was incompetent to make decisions regarding his own medical treatment and the substituted judgment order authorizing the proposed treatment plan pursuant to G.L. c. 123, § 8B.

Facts. On August 22, 2017, the police department issued a complaint against M.D. through which he was charged with: (1) possession of a class B substance; (2) operating an unregistered motor vehicle; and (3) operating an uninsured motor vehicle. Thereafter, M.D. was committed to Bridgewater State Hospital ("Bridgewater") on May 8, 2018 for a competency evaluation pursuant to G.L. c. 123, § 15(b). On May 22, 2018, Bridgewater petitioned for an extension of M.D.'s commitment pursuant to G.L. c. 123, § 15. The request for extension was allowed for a period not to exceed twenty days.

On June 13, 2018, Bridgewater filed a petition for civil commitment in Brockton District Court pursuant to G.L. c. 123, § 16(b). In addition, a petition for determination of incompetency and for authorization of medical treatment for mental illness was filed. Through the petition for civil commitment, Bridgewater sought M.D.'s commitment to a Department of Mental Health ("DMH") facility for a period not to exceed six months. On June 22, 2018, the court with the criminal charges determined that M.D. was incompetent to stand trial. Thereafter, the Brockton District Court held a hearing on both of the foregoing petitions on June 27, 2018.

During the course of the commitment portion of the hearing, Joshua Lapin, Psy.D. ("Lapin"), a designated forensic psychologist at Bridgewater, testified on behalf of the petitioner. According to Dr. Lapin, M.D. was admitted to Bridgewater on May 8, 2018 where he examined M.D. for competency to stand trial. In conjunction with that examination, Dr. Lapin testified that he interviewed M.D. on June 6, 2018 and June 11, 2018 after giving M.D. the Lamb warning, which was understood by M.D. In addition, Dr. Lapin testified that he spoke with M.D.'s mother and brother along with having reviewed all relevant legal documents and his medical records from Bridgewater. According to Dr. Lapin, M.D. was 35 years old and has suffered from a mental illness since approximately 17 or 18 years old during which M.D. was hospitalized on 1 occasion for his mental illness.

Based on the foregoing, Dr. Lapin opined during the hearing that M.D. met the diagnostic criteria for schizoaffective disorder, bipolar type, which was a substantial disorder of thought, mood, and perception that grossly impaired his judgment, behavior, and capacity to recognize reality. Dr. Lapin described M.D.'s then current symptoms as thought disorganization, grandiosity, pressured speech, and continued

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poor insight into his mental illness and need for treatment. According to Dr. Lapin, those symptoms had improved since M.D.'s admission through the use of psychiatric medication. Dr. Lapin further opined that a failure to hospitalize M.D. would create a substantial risk of harm to others due to his mental illness based on M.D. being actively symptomatic and his threatening behavior toward staff and other patients at Bridgewater. In that regard, Dr. Lapin testified about prior threats made by M.D. that formed the primary factor of his opinion that M.D. was a risk of harm to others.

Finally, Dr. Lapin testified that M.D. did not require hospitalization with the strict security of Bridgewater based on medication adherence, symptom improvement, and improved behavioral control. Dr. Lapin was of the opinion that hospitalization was necessary as he was concerned with M.D.'s medication adherence.

Following Dr. Lapin's testimony, M.D., through counsel, represented that he was satisfied with being released from Bridgewater to go to the Lemuel Shattuck Hospital. The judge made findings that M.D. (1) was mentally ill; (2) that failure to retain M.D. in a facility would create a likelihood of serious harm; and (3) that no less restrictive alternative for M.D. is appropriate. Based on those findings, the judge committed M.D. to DMH for a six-month period.

With respect to the substituted judgment portion of the hearing pursuant to G.L. c. 123, § 8B, Dr. Bernard Katz ("Katz"), a psychiatrist at Bridgewater, testified. As an initial matter, the court qualified Dr. Katz to testify regarding the § 8B issues.

Based upon his review of M.D.'s Bridgewater records and his interview with M.D., Dr. Katz testified that M.D. suffered from a schizoaffective disorder, bipolar type. In addition, he testified that M.D.'s symptoms upon admission included paranoia, mania, and pressured speech. Dr. Katz was of the opinion that M.D. required antipsychotic medication to treat M.D.'s mental condition. According to Dr. Katz, M.D. only had a partial understanding that he suffered from an illness requiring treatment and that M.D. only had a partial appreciation of the differences between his behavior on medication as opposed to times when he was not on medication. Further, Dr. Katz testified that M.D. (1) had expressed a preference for Abilify; (2) that it was effective in treating M.D.; and (3) that Abilify did not cause M.D. to suffer from any side effects. In addition, he testified as to the typical side effects as a result of the use of antipsychotic medication.

During the hearing, a proposed treatment plan was submitted to the judge. Dr. Katz testified about the alternative medications included in the treatment plan in the event that Abilify was no longer effective in treating M.D. He further testified that M.D.'s prognosis was good if he continued to be treated with medications and that his response to Abilify was excellent. Moreover, Dr. Katz testified that M.D. would suffer intermittent episodes of additional schizoid-affective psychosis and require hospitalization. In that regard, Dr. Katz testified that the reason for alternative medications to the Abilify included that M.D.'s clinical situation could deteriorate "fairly quickly" requiring other medications.

At the conclusion of the hearing, M.D. moved for a required finding that "the proposed treatment plan is inappropriate and/or . . . that [the] Respondent would not accept the proposed treatment plan even if he were competent." The judge denied that motion, ruling the following regarding substituted judgment:

"[T]he Court appreciates Respondent's counsel's argument

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that a medication treatment plan that includes Abilify and one alternative. However, the Court is not inclined to disregard the opinion proffered by Dr. Katz that a treatment plan that includes 8 different antipsychotic medications is appropriate to accord DMH providers flexibility to manage the Respondent's medical care."

In addition to filing a motion for required finding, M.D. filed requested findings of fact and rulings of law. The judge ruled on each of the requests. Ultimately, the court approved the G.L. c. 123, § 8B petition and proposed treatment plan.

The judge also completed a "Competency and Substituted Judgment Worksheet" ("worksheet"). Within the worksheet was a question whether the person is competent to make informed decisions concerning the proposed treatment. The court checked the box indicating that M.D. was competent. [Note 1]

Standard of review. An appellate court will not reverse a judge's decision except upon a showing of a clear abuse of discretion. McIsaac v. Cedergren, 54 Mass. App. Ct. 607, 609 (2002). Under a traditional formulation, a trial judge does not abuse his or her discretion unless the decision constitutes an "arbitrary determination, capricious disposition, or whimsical thinking" or "idiosyncratic choice." Berube v. McKesson Wine & Spirits Co., 7 Mass. App. Ct. 426, 433 (1979), quoting Davis v. Boston Elev. Ry. Co., 235 Mass. 482, 496 (1920). Discretion "imports the exercise of discriminating judgment within the bounds of reason." Davis, supra. An abuse of discretion may be found where a judge clearly erred in his or her decision, such that the result is "outside the bounds of reasonable alternatives." Adoption of Mariano, 77 Mass. App. Ct. 656, 660 (2010). We give great deference to a trial judge's exercise of discretion when reviewing under this standard. L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) ("[I]t is plainly not an abuse of discretion simply because a reviewing court would have reached a different result."). "How a hearing judge weighs the evidence and gauges the credibility of witnesses is entitled to deference by appellate courts." Matter of A.E., 2019 Mass. App. Div. 5, 9, quoting Custody of Eleanor, 414 Mass. 795, 800 (1993). An appellate court accepts the subsidiary findings of fact of a trial judge unless they are clearly erroneous. Matter of Jane A., 36 Mass. App. Ct. 236, 239 (1994). "To what ultimate legal determination those subsidiary facts add up, however, is a question of law." Id.

Competency. The judge determined not that M.D. was incompetent generally, but rather only that he was incompetent to make informed decisions concerning the proposed treatment. That conclusion is supported by the record regardless of the judge's scrivener's error in the worksheet as addressed above. Based on all of the

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credible evidence, in particular, the testimony of Dr. Katz and Dr. Lapin, the judge concluded that (1) M.D. was suffering from a "schitzo-affective disorder" [sic]; (2) that antipsychotic medication was indicated for treatment of M.D.'s mental illness; (3) that M.D. had been informed of the risks and benefits of the proposed treatment; (4) that despite his mental illness, M.D. is only "partially" capable of understanding the risks and benefits of the treatment; (5) that M.D. was incapable of understanding or processing the information necessary to give informed consent to any treatment decision; and (6) that M.D. did not understand or appreciate the consequences of his refusal to accept the proposed treatment. Based on the foregoing findings, M.D. did not and could not appreciate the need to control this illness with antipsychotic medication. An informed decision about medical treatment "requires knowledge of the available [treatment] options and the risks attendant on each." Harnish v. Children's Hosp. Med. Ctr., 387 Mass. 152, 154 (1982).

The testimony during the hearing was clear that M.D. was a patient suffering from a schizoaffective disorder and that his decision to take medication was not based "upon a reasoned assessment of his condition or treatment needs," Guardianship of Roe, 411 Mass. 666, 674 (1992), given that he denied suffering from a mental illness in need of treatment. The judge's determination of incompetence was not error.

Substituted judgment. "A person has the right to refuse to submit to invasive and potentially harmful medical treatment such as the administration of antipsychotic drugs." Guardianship of Weedon, 409 Mass. 196, 199 (1991). "This right extends to incompetent as well as competent persons 'because the value of human dignity extends to both.'" Id., quoting Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 745-746 (1977).

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." Id. In that way, the judge accords "to incompetent persons the same right to choose or reject treatment that is accorded to competent persons by the law of consent" (citations omitted). Matter of Hier, 18 Mass. App. Ct. 200, 207 (1984). The substituted judgment determination is the means by which the judge determines what the incompetent person would choose if he or she were competent. See Guardianship of Weedon, supra.

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" (internal quotations and citations omitted). Guardianship of Roe, supra at 673. In order to do this, the judge assesses several factors: (1) the patient's expressed preferences regarding treatment; (2) the patient's religious convictions; (3) the impact on the patient's family; (4) the probability of adverse side effects; and (5) the prognosis with and without treatment. Id. The judge weighed the relevant factors, made specific findings, and concluded that M.D., if competent, would choose to accept the proposed treatment.

Proposed treatment options. Pursuant to G.L. c. 123, § 8B, the court is required specifically to approve and authorize a written substituted judgment treatment plan once a determination has been made that (1) the patient is incapable of making informed decisions concerning the proposed medical treatment and (2) the patient would,

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upon application of the legal substituted judgment standard, accept such treatment if competent. Here, the court authorized a treatment plan listing eight antipsychotic drugs. [Note 2] Upon review of the record, sufficient evidence supported the court's authorization of involuntary administration of the drug Abilify. Dr. Katz testified that M.D. had expressed a preference for Ability, was currently taking that drug with no side effects, had improved while taking this drug, and his prognosis was good if he continued with this treatment.

The petitioner did not present sufficient evidence, however, to support a finding that M.D. would accept the seven other drugs if he were competent. When asked whether M.D. had a history with these seven other antipsychotics, Dr. Katz answered, "I suspect he has, but I don't recall at this point." When asked whether M.D. had expressed a preference for or against these drugs, Dr. Katz stated that he had not discussed them with M.D. because "Abilify seemed to be working and I was comfortable with that." As to side effects, an affidavit by Dr. Katz with the side effects of the proposed medication in the plan was not admitted into evidence. He testified that the eight proposed antipsychotics are from different classes, and the side effects depend on the particular drug. Significantly, Katz offered no testimony regarding whether the "brand name" antipsychotics listed on the plan were generally accepted in the psychiatric medical community, whether he had successfully administered some or all of those drugs to other patients in the past, or how they compared to one another concerning possible side effects. He stated that antipsychotic medication, generally, may produce the side effects of muscle stiffness, sedation, Tardive Dyskinesia, lipid abnormalities, diabetes, weight gain and, though not common, neuroleptic malignant syndrome. He testified that Abilify, specifically, did not cause side effects outside of those he mentioned. He did not discuss the other drugs.

Finally, as to the need for the seven antipsychotics listed with Abilify in the treatment plan, there was evidence that Bridgewater planned to transfer M.D. to a DMH facility, and the court here did order his commitment to DMH before proceeding to the G.L. c. 123, § 8B hearing. Dr. Katz testified that he listed the other seven drugs "as potential backup." "In case the Abilify stops working, or in case the physician who will be treating [him] in the future wants to use something else," Dr. Katz stated, "I don't want to tie his or her hands." He also testified, however, that "[m]y hope is, and my prediction is that he probably won't need anything else [besides Abilify]."

"A substituted-judgment decision is distinct from a decision by doctors as to what is medically in the 'best interests' of the patient. ... '[T]he goal is to determine with as much accuracy as possible the wants and needs of the individual involved.'" (Citations omitted.) Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 500 (1983). The inquiry, then, is directed to discovering "what the incompetent individual would do if competent," and is a "subjective rather than an objective determination." Guardianship of Roe, 383 Mass. 415, 435, 444 (1981). See Guardianship of Linda, 401 Mass. 783, 785 (1988). "Even if the [person] lacks capacity to make treatment decisions, his stated preference is entitled to serious consideration as a factor in the substituted judgment determination." Guardianship of Roe, supra at 445. We agree with M.D. that the court did not hear sufficient evidence to support a finding

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of substituted judgment regarding the seven drugs other than Abilify.

In summary, sufficient evidence supported the court's incompetency determination and substituted judgment determination to authorize the involuntary administration of Abilify to M.D. There was insufficient evidence, however, to support the court's authorization of the other seven antipsychotics. The court's G.L. c. 123, § 8B order is therefore reversed to the extent it authorizes Haldol, Prolixin, Thorazine, Clozaril, Zyprexa, Seroquel, and Latuda. It is affirmed in all other respects.


[Note 1] This Division finds the trial court's detailed margin endorsement denying M.D.'s motion for required finding to demonstrate clearly that he found M.D. to be incompetent. Moreover, the transcript demonstrates that the judge made a specific and unequivocal finding that, based on Dr. Katz's testimony, M.D. was "not competent to make informed decisions" regarding the proposed treatment. M.D.'s argument to the contrary begs the question why the judge would have proceeded to the substituted judgment phase of the hearing if he found M.D. to have been competent. Checking the box in the worksheet that M.D. was competent was, simply, a scrivener's error and nothing more.

[Note 2] The approved treatment plan listed the following antipsychotic drugs: Haldol, Prolixin, Thorazine, Clozaril, Zyprexa, Seroquel, Abilify, and Latuda.