2020 Mass. App. Div. 4

October 25, 2019 - February 5, 2020

Appellate Division Northern District

Court Below: District Court, Cambridge Division

Present: Coven, P.J., Crane & Karstetter, JJ.

Diane M. Geraghty Hall for the petitioner.

Karen O. Young for the respondent.

CRANE, J. This is an appeal from an order of a District Court judge amending a treatment plan to alter the levels of antipsychotic medications administered to the respondent and to authorize up to a designated number of sessions of electroconvulsive treatment ("ECT") for her over a number of weeks. She was already under a treatment plan authorized and monitored by the Probate and Family Court pursuant to Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983). We affirm.

The respondent was admitted to McLean Hospital on December 20, 2018. She was transferred from Lahey Medical Center after treatment for injuries she suffered after she threw herself down a flight of stairs at her group residence. Her injuries included a fracture in the area of her nose and cuts that required a number of sutures. Her treating psychiatrist testified that she admitted that she was attempting suicide when she threw herself down the stairs. The respondent had lived at the group residence for only a matter of days before she injured herself. Immediately before that, she was in-patient at Newton-Wellesley Hospital from November 25 to December 18, 2018.

The respondent had a long-standing diagnosis of schizophrenia with catatonic features. The respondent reported that she received communications and energy from her mother, an ex-boyfriend, and other sources that often motivated her to self-harm and suicide. She also believed that she was pregnant and discussed her baby, notwithstanding that she tested negative for being pregnant. These symptoms had persisted over a number of years.

The Probate and Family Court appointed her mother as her guardian in 2010. The Probate and Family Court had authorized her treatment with antipsychotic medications under a Rogers plan for a number of years before. The plan was in effect at the time of the petition to the District Court. The record contained Rogers orders issued by the Probate and Family Court in April, 2017 and 2018. The most recent order was scheduled to be reviewed, in the normal course, by the Probate and Family Court on April 3, 2019. The petitions in District Court sought commitment pursuant to G.L. c. 123, §§ 7 and 8, and an amendment to her treatment plan pursuant to § 8B. Following a hearing conducted on January 8, 2019, the court ordered her commitment. At the outset of the hearing on the petition to amend the treatment plan pursuant to § 8B, the court heard evidence on the respondent's motion to dismiss on the ground that the patient's health did not present an emergency situation that required the District Court to amend the treatment plan before the same request could be presented to

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the Probate and Family Court under the Rogers plan.

The hearing judge found that there was an emergency that warranted immediate action after taking testimony from the treating psychiatrist. She testified that as recently as the Saturday before the hearing, the respondent attempted to harm herself by throwing herself on the floor at the hospital. The respondent also experienced catatonic episodes at about the same time. The treating psychiatrist also testified that the respondent had engaged in other similar episodes during her current admission. She wanted authorization to increase the dosage of Clozaril, an antipsychotic medication already authorized under the Rogers order, to a therapeutic level and accompany this change in medication with ECT. She also planned to eliminate two other medications authorized under the Rogers plan. Until these treatment changes could be administered, the hospital staff was continuing to conduct five-minute checks on the respondent for safety from self-harm and administering Ativan for catatonic symptoms. Her treating psychiatrist asserted that this arrangement was not sustainable to succeed in keeping the respondent from self-harm. The respondent argued that there was no emergency that required immediate action because the respondent had not succeeded in harming herself since her hospital admission following these precautions.

Thereafter, the hearing judge took further testimony from the treating psychiatrist and ordered the treatment plan to be amended to authorize increased dosage of medication and ECT pursuant to a substituted judgment analysis under G.L. c. 123, § 8B.

We review "the judge's decision to hear the petition and issue the treatment order on an abuse of discretion standard, and generally we give 'great deference' to a judge's decision." Matter of M.C., 2016 Mass. App. Div. 140, 142, quoting L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). The District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011) ("Standards") "reflect that the discretion be balanced against the preferred 'reasonable alternative[],' Commonwealth v. Kolenovic, 471 Mass. 664, 672 (2015), quoting L.L., supra, of referral to the Probate and Family Court." Id.

The respondent argues that it was error for the hearing judge to amend the treatment plan pursuant to G.L. c. 123, § 8B because the respondent was subject to an existing treatment plan from the Probate and Family Court and the circumstances did not require immediate action by the District Court. The respondent relies upon the Standards and, in particular, Standard 7:01: Related Probate and Family Court Proceedings. Standard 7:01 states, in part:

"If there was a prior Probate and Family Court determination regarding the same respondent and the same or related issues of competency and treatment, the District Court should be informed of and give careful consideration to that earlier decision. If there is a Probate and Family Court treatment plan currently in effect, the District Court should refer the petitioner seeking to change that plan back to the Probate and Family court that issued it, unless immediate action is necessary."

The pertinent part of the commentary to Standard 7:01 states:

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"Where a § 8B petition is filed solely to modify a treatment plan authorized by the Probate and Family Court that is currently in effect, jurisdiction should be declined and the petitioner directed to the Probate and Family Court that issued that treatment plan, unless circumstances require immediate action."

The hearing judge did not abuse her discretion in authorizing the treatment plan pursuant to G.L. c. 123, § 8B. She conducted a preliminary inquiry and heard testimony from the treating psychiatrist that the respondent's safety from self-harm could not be sustained with the current measures. The judge also heard from petitioner's counsel about her efforts to contact the respondent's Rogers monitor, [Note 1] her communications with the respondent's guardian (her mother), and how long it would likely take to obtain a hearing in the Probate and Family Court if one were requested. [Note 2] The respondent urges that there was no emergency because she had not harmed herself since her admission almost three weeks earlier with the dosage of Clozaril authorized by the Rogers plan, Ativan as needed, and five-minute checks by staff. The judge then announced that she found that there was an emergency situation, that the patient is in need of immediate amendment to the Probate and Family Court treatment plan, and that failure to amend could result in significant harm to the patient. Under all of these circumstances, the hearing judge's decision to amend the treatment plan does not fall outside the preferred reasonable alternatives. There was no abuse of discretion. L.L., supra; Matter of T.M., 2017 Mass. App. Div. 139, 142.

We have reviewed these issues as directed in Matter of F.C., 479 Mass. 1029 (2018). The respondent raised no other issue in her brief. Dist./Mun. Cts. R. A. D. A. 16(a)(4). See Foley v. Lowell Sun Publ. Co., 404 Mass. 9, 11 (1989). Having done so, we do not address the respondent's arguments on whether the decided issues are moot.

The court's order denying the respondent's motion to dismiss the petition under G.L. c. 123, § 8B is affirmed.


[Note 1] Unlike Matter of M.C., supra, the petitioner was not operated by the Department of Mental Health.

[Note 2] Representations of counsel about how long it would take to obtain a hearing before the Probate and Family Court on any motion to amend a Rogers plan were sufficient here. However, a judge may also require the petitioner to have made application to the Probate and Family Court for a hearing and consider whether such a hearing has been scheduled or not and, if so, how soon before deciding on whether to amend a Rogers plan depending upon how clearly the circumstances present an emergency.