2020 Mass. App. Div. 154

February 28, 2020 - September 30, 2020

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Hadley, P.J., Ginsburg & Murphy, JJ.

Eden D. Prendergast for the petitioner.

Ilana B. Hollenberg and Tamara A. Barney for the respondent.

MURPHY, J. J.B. appeals his commitment, pursuant to G.L. c. 123, §§ 7 and 8, to the Worcester Recovery Center and Hospital ("WRCH"). [Note 1] He argues that the court impermissibly allowed the admission of hearsay, challenges the sufficiency of the evidence supporting each element of the court's commitment order, and claims that there was a less restrictive alternative to hospitalization. For the reasons below, we affirm the order of commitment.

Background. J.B. was admitted to Leonard Morse Hospital ("LMH") in May, 2018 for a six-month psychiatric hospitalization pursuant to G.L. c. 123, §§ 7 and 8. He was transferred to the appellee's facility, WRCH, on November 15, 2018. WRCH filed a petition for recommitment pursuant to G.L. c. 123, §§ 7 and 8 ("petition") and, on the same date, petitioned for treatment of J.B. with antipsychotic medication under G.L. c. 123, § 8B. WRCH alleged that as a result of mental illness, J.B. presented a very substantial risk of harm to himself. See G.L. c. 123, § 1. The matter was heard on January 9, 2019. The court found that J.B. met the criteria, ordered him committed for a period not to exceed one year, [Note 2] and approved administration of antipsychotic medication.

The only witness at the hearing, Dr. David McGarry ("McGarry"), was J.B.'s attending psychiatrist from November 15, 2018 through January 9, 2019. Testifying as an expert, Dr. McGarry based his opinions on his training and experience, numerous personal observations of and interactions with J.B., a review of his WRCH medical records, and LMH "discharge paperwork." Dr. McGarry's expertise was not challenged. No medical records were entered in evidence.

From Dr. McGarry's testimony, the trial judge could have found the following facts. J.B. suffered from a thirty-year history of schizophrenia and was unable meet

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the ordinary demands of life due to that condition. J.B.'s mental illness was a substantial disorder of thought and perception. The condition manifested itself in a number of ways, which were observed during his hospitalization at WRCH, including: disorganized thinking; disorganized, erratic behavior; incoherent and nonsensical responses while interacting with staff; the appearance of frequently responding to internal stimuli; self-reporting of distressing, auditory, and visual hallucinations one week prior to the hearing; need for constant staff observation, direction, and prompting regarding eating, getting clothed, bathed, and maintaining basic hygiene; an incident where J.B., upon being instructed to shower, attempted to do so while clothed; and a days-long delay in reporting dizziness. His mental illness was further exacerbated by low cognitive functioning. His primary caretaker had died some months prior to his hospitalization at LMH, and he had moved from Florida to be cared for by other family members. Those family members could no longer provide the level of care J.B. required, and he had lost his housing.

Dr. McGarry was allowed to testify, based on LMH "discharge paperwork" and over the timely objection of J.B.'s counsel, that J.B. had been admitted to LMH after he was found "disorganized, responding to internal stimuli, and, apparently, unclothed in public." The trial judge also denied a motion to strike that testimony. On redirect examination, Dr. McGarry specifically opined that "respite care," even if available, would not be an appropriate clinical setting for care of J.B. Attempts to place him in a Department of Mental Health ("DMH") long-term facility ("group home"), which Dr. McGarry deemed appropriate, were underway, but the DMH "assessment" had not been finalized at the time of the hearing. "Assessment" is a prerequisite to approval of admission to a DMH "group home." The process takes a minimum of three months to complete. At the time of the hearing, J.B. had been at WRCH for less than two months.

Hearsay issue. The appellant claims that the trial judge erred by allowing inadmissible hearsay into evidence during Dr. McGarry's direct examination as an expert witness. Specifically, the appellant takes issue with the reference to a discharge note from LMH that indicated J.B. had been found "disorganized, responding to internal stimuli, and, apparently, unclothed in public" prior to his admission to LMH. J.B.'s counsel specifically objected to and moved to strike the statement as based on unreliable hearsay. The issue was properly preserved. Compare In re Commitment of M.B., 2013 Mass. App. Div. 8. We review the trial judge's evidentiary decision applying the abuse of discretion standard. Commonwealth v. Polk, 462 Mass. 23, 32 (2012).

"[I]t is settled that an expert witness may not, under the guise of stating the reasons for his opinion, testify to matters of hearsay in the course of his direct examination unless such matters are admissible under some statutory or other recognized exception to the hearsay rule." Commonwealth v. Nardi, 452 Mass. 379, 392 (2008), quoting Grant v. Lewis/Boyle, Inc., 408 Mass. 269, 273 (1990). There is nothing in the record to suggest that Dr. McGarry had personal knowledge regarding the subject matter of LMH's discharge summary. Nor was the summary introduced in evidence.

"[O]nly those entries that are made in the regular course of the hospital's operations and are created 'from the personal knowledge of the recorder or from a compilation of the personal knowledge of those who have an obligation in the course of their employment to transmit that medical information to the recorder' are admissible." Matter of S.L., 2020 Mass. App. Div. 64, 66, quoting Bouchie v. Murray,

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376 Mass. 524, 528 (1978). Generally, evidence based on a chain of statements in a medical record is admissible only if each out-of-court assertion falls within an exception to the hearsay rule. "The preparer's hearsay sources must carry the same indicia of reliability, arising from regularity and business motives, that bring his own act of recording the information within the statutory exception. Thus, unless statements on which the preparer relies fall within some other exception to the hearsay rule, the proponent must show that all persons in the chain of communication, from the observer to the preparer, reported the information as a matter of business duty or business routine." Wingate v. Emery Air Freight Corp., 385 Mass. 402, 406 (1982). WRCH, as the proponent of the information, had the burden of showing that Dr. McGarry's sources fell under some exception to the hearsay rule. Commonwealth v. McDonough, 400 Mass. 639, 643 n.8 (1987).

WRCH offered no evidence as to whether the author of the discharge note had personal knowledge of the circumstances that brought J.B. to LMH or that the reporter had some medical obligation to report the information. The language used in the note, "apparently, unclothed in public," suggests a lack of personal knowledge by its author. Especially concerning was lack of any evidence as to the source of the information that J.B. had been found in the described condition. See Doyle v. Dong, 30 Mass. App. Ct. 743, 747 (1991) (observed condition was hearsay because source of doctor's note was never explained). Absent a basis for finding a hearsay exception, Dr. McGarry could not testify on direct examination to the contents of LMH's discharge summary. Commonwealth v. Nardi, supra. WRCH failed to establish the indicia of reliability of the statement from LMH's record. The judge should have sustained J.B.'s objection and allowed his motion to strike. This is nonconstitutional error as it arises from an objection based on hearsay, a common-law evidentiary rule. Commonwealth v. Piantedosi, 478 Mass. 536, 544 (2017).

The appellant claims prejudice arose as a result of the trial judge's evidentiary ruling. We disagree. The standard of review applicable to preserved, nonconstitutional error provides that the error is nonprejudicial if we are convinced that it "did not influence the [finder of fact], or had but very slight effect." Commonwealth v. Graham, 431 Mass. 282, 288 (2000), quoting Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). See Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983) (reversal required only if error had substantial and injurious effect or influence in determining verdict). We apply this test by assessing the impact of the error in the context of the evidence as a whole. Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 5-6 (2019). See Commonwealth v. Blackwell, 44 Mass. App. Ct. 804, 807-808 (1998).

The evidence as a whole was compelling in favor of commitment. J.B. was unable to provide for his own basic hygiene and nutrition needs without close supervision and support by staff. He was also frequently observed responding to internal stimuli, a conclusion confirmed by J.B.'s self-reporting of same a week before the hearing. The improperly admitted hearsay evidence reported J.B.'s disorganization and evidence of responding to internal stimuli. This was only cumulative of a substantial amount of evidence gathered during his hospitalization. See Commonwealth v. Martinez, 431 Mass. 168, 176 (2000), quoting Commonwealth v. Bart B., 424 Mass. 911, 915 (1997) ("The admission of cumulative evidence does not commonly constitute reversible error."). The only noncumulative evidence was that J.B. had "apparently" been found naked in public. After weighing the properly and improperly

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admitted evidence together, we are satisfied that the improperly admitted evidence did not influence the trial judge or had very slight effect. The statement was qualified on its face and, therefore, less likely to be given great weight by the trial judge. Moreover, the other evidence of the dangers to J.B. arising from his mental illness and discussed in more detail below causes us to conclude that the trial judge was not influenced or only very slightly influenced by the improperly admitted evidence. Its admission into evidence and the denial of J.B.'s motion to strike was error, but it was nonprejudicial error.

Sufficiency of evidence. We now address whether there was sufficient evidence to support the court's commitment order. The hearing judge is in the best position to weigh the evidence, assess the credibility of witnesses, and make findings of fact; a reviewing court accepts these findings unless they are clearly erroneous. See Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018), citing G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). When considering a challenge to the sufficiency of the evidence at an evidentiary hearing, we "scrutinize without deference the propriety of the legal criteria employed by the [motion] judge and the manner in which those criteria were applied to the facts." Id., quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005). See Matter of a Minor, 484 Mass. 295, 302 (2020) (deferring to judge's subsidiary findings, but reviewing without deference legal conclusion as to whether "third prong" criteria was met in G.L. c. 123, § 35 case). [Note 3] Although Matter of a Minor, supra, involved a civil commitment under G.L. c. 123, § 35, its holding is equally applicable to commitments under G.L. c. 123, §§ 7 and 8, because the three-prong definition of "likelihood of serious harm," see G.L. c. 123, § 1, is applicable to each type of commitment. See Matter of J.T., 2020 Mass. App. Div. 61, 62.

J.B. claims that without the LMH discharge note, there was insufficient evidence to find, beyond a reasonable doubt, that he was at very substantial risk of imminent, serious impairment or injury. We disagree. "Sections 7 and 8 of G.L. c. 123 address the long-term commitment of persons with mental illness. Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility. ... Section 8(a) provides that no person shall be committed unless the District Court finds after a hearing that '(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm.'" Matter of N.L., 476 Mass. 632, 634 (2017). Relevant to the facts of this case, G.L. c. 123, § 1 defines "likelihood of serious harm" as "a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment 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." The petitioner must show that the risk of harm is imminent, that is, "that the harm will materialize in the reasonably short term -- in days or weeks rather than in months." Matter of G.P., 473 Mass. 112, 128-129 (2015). In order to justify commitment under these sections, the petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. See Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978) (standard of proof for G.L. c. 123, §§ 7

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and 8, civil commitment proceeding is proof beyond reasonable doubt).

The evidence was sufficient to support the trial judge's conclusion that J.B. presented a very substantial risk of harm to himself and that the risk of harm was imminent. J.B. has suffered from schizophrenia for more than thirty years. While hospitalized at WRCH, he was unable to provide for his basic care, eating, and grooming without constant assistance, direction, and supervision from staff, and at one point he attempted to shower while clothed. A person who needs constant prompting and assistance in basic tasks of grooming, eating, and clothing oneself has demonstrated an inability to protect oneself in the community. The rapid onset of risk to the life and health of such a person upon release is clear. "A failure to meet such basic needs self-demonstrates the imminence and inability to protect oneself." Matter of D.K., 2017 Mass. App. Div. 129, aff'd, 95 Mass. App. Ct. 95 (2019). In addition, J.B.'s thinking was disorganized, and he was frequently observed responding to internal stimuli while at WRCH. Much of J.B.'s communication with staff was incoherent and nonsensical. This was independent of any language barrier or underlying cognitive issues. Just days before the hearing, he reported that he was disturbed by auditory and visual hallucinations. He was unable to promptly report a potentially serious medical symptom, dizziness, in the controlled hospital environment. He had no home to return to or family support available. Such a person could not adequately protect himself from disease brought on by poor grooming, malnutrition based on an inability to regularly obtain and consume food, or illness exacerbated by an inability to recognize and report serious medical symptoms. These factors, collectively, were sufficient to support, by competent evidence, the trial judge's order of commitment. Matter of R.H., 2019 Mass. App. Div. 16, 19. Finally, J.B.'s reliance on a lack of dangerous behavior while hospitalized is misplaced. See, e.g., Commonwealth v. Rosenberg, 410 Mass. 347, 363 (1991) (no requirement that "likelihood of serious harm" be established by evidence of recent overt dangerous act). The competent evidence was sufficient to support the order of commitment.

Least restrictive alternative. J.B. claims that hospitalization was not the least restrictive alternative. Specifically, he claims that release to "respite care" or a "group home" would reasonably provide for his protection. We disagree. A final step in ordering hospitalization under G.L. c. 123, §§ 7 and 8 requires a determination that the respondent's community does not include any reasonably available external source of adequate protection. This is commonly referred to as the least restrictive alternative doctrine. Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980) (in context of civil commitment proceedings, all parties should aim "to find the least burdensome or oppressive controls over the individual that are compatible with the fulfilment of the dual purposes of our statute, namely, protection of the person and others from physical harm and rehabilitation of the person"). The burden is on WRCH to prove, beyond a reasonable doubt, that hospitalization is the least restrictive alternative. Id.

It was uncontested that release to relatives for housing and care was not available. The potential modes of treatment presented three options: hospitalization; "group home" placement; or "respite care." Dr. McGarry considered and rejected discharge to "respite care" as "clinically inappropriate" because that setting would not provide J.B. with sufficient assistance and supervision for activities of daily living. He stated that long-term care in a "group home" would be appropriate; however, although the

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process for approval of such a placement had begun, it had not been completed by DMH at the time of the hearing. Consequently, there was no evidence that J.B. was eligible for such placement or that a "group home" bed was available. Faced with these options, the trial judge ordered continued hospitalization at WRCH as the only available setting that would protect J.B. and aid in his rehabilitation.

The trial court's decision was supported by proof beyond a reasonable doubt. In determining the least restrictive, available setting, the court heard evidence about WRCH's search for viable alternatives and why those alternatives were not suitable or not yet available. Based on the evidence presented, the trial judge could have concluded that "respite care" was not an appropriate clinical setting for J.B. and long-term care in a DMH "group home" was not yet an available alternative. The trial court must determine which less restrictive alternatives exist. Of the treatment options that existed at the time of the hearing, hospitalization was the only medically appropriate one available.

J.B. also argues that the inefficiency or neglect by DMH should not be visited upon him. However, there was no evidence, as he contends, of "[i]nadequate provision for outpatient services by DMH" or "lack of timely planning." Dr. McGarry testified that, in his experience, the minimum time required for completion of DMH's assessment was three months and that the process was underway. It is uncontested that J.B. had been at WRCH for less than two months. There is no evidence of a lack of planning or diligence attributable to WRCH. Its staff investigated and considered medically appropriate discharge options and found none available. Moreover, the relief implicitly sought, an order of affirmative injunctive relief upon DMH to accelerate its screening process, is beyond the scope of a hearing under G.L. c. 123, §§ 7 and 8. A trial judge is tasked with determining whether "reasonable provision for [J.B.'s] protection is not available in the community." Siddell v. Marshall, 1987 Mass. App. Div. 3, 6. The trial judge must consider "all possible alternatives to continued hospitalization" (emphasis added). Commonwealth v. Nassar, supra at 918. The judge in this case could have reasonably and correctly concluded, beyond a reasonable doubt, that "respite care" was medically inappropriate and a DMH "group home" placement, although appropriate, was not possible at the time of the hearing. Left with no other reasonable and available options, continued hospitalization was lawful. There was no error.

The order of commitment is affirmed.


[Note 1] The basis of J.B.'s request to vacate the trial court's order for treatment with antipsychotic medication under G.L. c. 123, § 8B is wholly derivative of her appeal of the trial judge's ruling on the §§ 7 and 8 order of commitment and, based on our decision on that issue, need not be further addressed.

[Note 2] Although the respondent's commitment order has ended, this appeal as to the commitment order is not moot. "Appeals from expired or terminated commitment . . . orders . . . 'should not be dismissed as moot where the parties have a continuing interest in the case.' At the very least, a person who has been wrongfully committed . . . has 'a surviving interest in establishing that the order[] w[as] not lawfully issued . . .'" (citations omitted). Matter of F.C., 479 Mass. 1029, 1029-1030 (2018).

[Note 3] Both parties cite to Commonwealth v. Latimore, 378 Mass. 671 (1979) as providing the appropriate standard of review, but we find Matter of a Minor, supra is controlling.