IN THE MATTER OF S.L.

FLYNN, J. McClean Hospital ("hospital") petitioned for the civil commitment of the respondent, S.L., under G.L. c. 123, §§ 7 and 8 and, on the same date, petitioned for treatment of S.L. with antipsychotic medication under G.L. c. 123, § 8B. At the conclusion of the commitment hearing and without making a ruling, the trial court heard evidence on the petition for treatment de bene, over objection. The court ordered both commitment and treatment the next day. For the following reasons, we affirm the order of commitment but vacate the order of treatment.

Background. During the hearing on the commitment petition, the hospital provided testimony from S.L.'s attending psychiatrist, Dr. Steven Gans ("Gans"). Dr. Gans testified that when he first met with S.L. on November 26, 2018 after returning from vacation, security was present because S.L. had been in restraints at least daily since his admission on November 18, 2018. S.L. quickly escalated and became very angry and agitated, insisting that he be able to leave the hospital immediately. He was swearing, threatening staff, and posturing as if to assault. Dr. Gans indicated that during two subsequent meetings with S.L., he was restrained due to his degree of agitation. Dr. Gans described S.L.'s behaviors at the hospital as becoming easily agitated, swearing at the staff, and yelling racially, ethnically, and religiously derogatory comments. He described his assaultive behaviors, such as spitting at staff and destroying hospital property, including knocking off a sprinkler head on the unit with a wet-floor sign, resulting in significant flooding in the building. Dr. Gans further described S.L.'s kicking doors and punching walls, resulting in his injury with bloody, swollen hands.

Dr. Gans testified that the constraints of the hospital did, to some degree, escalate S.L.'s behavior. He also described attempting to give S.L. every opportunity to demonstrate better control to find a way to help him to leave the hospital safely, but despite many attempts, they were not able to find a strategy to allow him to work safely with the staff.

Dr. Gans testified that it was his opinion that S.L. had a mental illness and diagnosed him with a bipolar disorder. He described symptoms of paranoia where S.L. felt irrationally threatened, and he found a high degree of agitation and was concerned about S.L.'s description of people being able to read his thoughts. Dr. Gans stated that S.L. was currently in an agitated mania with psychotic features. He further opined that stimulant misuse of Adderall contributed to his illness.

Dr. Gans stated that S.L. would put others at risk of harm given that he has been quite difficult and aggressive to the staff, especially when feeling threatened as

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has been the case in the hospital.

Dr. Gans also believed S.L.'s judgment was impaired by his illness, specifically by his paranoia. He described S.L.'s inability to understand the impact of his behavior, including becoming threatening and aggressive as a result of his insistence on leaving the hospital. During the hospitalization, Dr. Gans believed that S.L. demonstrated he lacked insight into the existence of his illness. Dr. Gans was concerned about this impaired judgement putting S.L. and others at risk outside of the hospital setting given when he felt threatened, he was unable to think rationally or manage those threats as demonstrated by his behaviors in the hospital.

Dr. Gans opined there was no less restrictive setting available for S.L. despite multiple efforts to help find a way for S.L. to demonstrate greater control or for him to accept treatment consistently.

Finally, S.L. himself testified on the commitment petition. He described being a fire fighter for ten years. He admitted being difficult to the staff and described himself as a "nasty bastard." He repeatedly stated that he did not think he had any mental illness. He admitted to having concerns about his family prior to the hospitalization and did describe himself as paranoid and suspicious of people.

At the conclusion of the commitment hearing, the hearing judge issued no ruling, but rather took the matter under advisement. Over the objections of S.L.'s counsel, the hearing judge then proceeded to hear evidence de bene on the hospital's petition pursuant to G.L. c. 123, § 8B for authorization to treat S.L. with antipsychotic medication. Dr. Gans was the sole witness, who opined that S.L. did not have the capacity to make treatment decisions due to his mental illness. Testimony was also provided by Dr. Gans as to the substituted judgement factors. During the testimony on the petition for treatment, S.L. continuously interrupted and was necessarily spoken to and politely redirected by the court on numerous occasions.

The following day, November 30, 2018, the trial court found the petitioner had met its burden and allowed the commitment petition under G.L. c. 123, §§ 7 and 8 for up to six months and allowed the § 8B petition authorizing treatment.

Discussion. 1. Order of commitment. To prevail in a commitment hearing under G.L. c. 123, §§ 7 and 8, the petitioner is required to prove beyond a reasonable doubt that the respondent is mentally ill, that his discharge from the facility will create a "likelihood of serious harm," and there is no less restrictive alternative to hospitalization. Matter of J.D., 97 Mass. App. Ct. 15, 18-19 (2020); Matter of A.L., 2019 Mass. App. Div. 131, 132.

In this case, the petitioner alleged that S.L. presented a risk of harm based on the second and third prongs of the definition of "likelihood of serious harm" in G.L. c. 123, § 1. To prove prong 2, the petitioner was required to provide "evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them." Id. "In terms of the character of the evidence presented, the Legislature's use of the word 'homicidal,' and phrases such as 'violent behavior' and 'serious physical harm' signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented." Matter of G.P., 473 Mass. 112, 126 (2015). We have recognized that "Matter of G.P. imposes a requirement . . . that the harm must have a real prospect of occurring; it cannot be speculative, and it cannot be far into the future. Rather, what must be shown is a substantial risk that the anticipated harm will materialize in the

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reasonably short term -- 'in days or weeks rather than in months.'" Matter of P.K., 2019 Mass. App. Div. 87, 88, quoting Matter of G.P., supra at 127-128.

To prove prong 3, the petitioner was required to produce evidence that there was "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." G.L. c. 123, § 1. For this prong to be met, "the degree of risk . . . is greater than that required by the . . . second prong: by definition, a 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Matter of G.P., supra at 128. Moreover, "the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs." Id. at 129.

We conclude that the evidence presented was sufficient to support the court's order of commitment. We review the hearing judge's findings of fact for clear error. Matter of J.D., supra at 18. "The hearing judge's explicit (or implicit) assessment of the evidence is entitled to considerable deference because 'it is the trial judge who, by virtue of his [or her] firsthand view of the presentation of evidence, is in the best position to judge the weight' and materiality of the evidence and credibility of the witnesses at trial." Matter of A.L., supra at 133, quoting Matter of A.M., 94 Mass. App. Ct. 399, 401 n.5. (2018). We "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." Matter of J.D., supra, quoting Matter of A.M., supra at 401.

The appellant, in support of his assertions that the court's findings were erroneous, asserts that Dr. Gans was allowed to testify extensively to hearsay information contained in the medical record that had not been admitted into evidence and, as such, it was an error to consider Dr. Gans's testimony. The appellant fails to note which specific evidence he was objecting to, and he does not state with particularity how it could have impacted the court's decision on commitment.

"Hearsay is an out-of-court statement offered to prove the truth of the matter asserted." Commonwealth v. Silanskas, 433 Mass. 678, 693 (2001). Hearsay statements are generally inadmissible. Commonwealth v. Baker, 20 Mass. App. Ct. 926, 928 n.3 (1985). Certain information contained in a hospital record may be admissible as an exception to the hearsay rule, but only to the extent that the information relates to diagnosis or treatment. G.L. c. 233, § 79; Bouchie v. Murray, 376 Mass. 524, 527 (1978). The medical records hearsay exception is predicated upon the "presumptive reliability" of the information contained in a medical record. Bouchie, supra at 528. Accordingly, only 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. Id.

According to § 703 of the Massachusetts Guide to Evidence (2019), which addresses the bases of opinion testimony by experts:

"The facts or data in the particular case upon which an expert witness bases an opinion or inference may be those perceived by or made known to the witness at or before the hearing. These include (a) facts observed

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by the witness or otherwise in the witness's direct personal knowledge; (b) evidence already in the record or that will be presented during the course of the proceedings, which facts may be assumed to be true in questions put to the witness; and (c) facts or data not in evidence if the facts or data are independently admissible in evidence and are a permissible basis for an expert to consider in formulating an opinion."

Id.

The Supreme Judicial Court has held that an expert may base his opinion on facts or data that are otherwise independently admissible, but that are not in evidence. Commonwealth v. Greineder, 464 Mass. 580, 583 (2013). However, the expert may not present those facts or data in testimony because this would constitute impermissible hearsay. Id. This Appellate Division recognized the error in a trial judge allowing a psychiatrist to testify to information from a patient's medical record that did not form the basis of his expert opinion in Matter of M.B., 2013 Mass. App. Div. 8.

Appellant does reference portions of the record where the doctor testified as to facts he took into consideration in rendering his opinion. Particularly, the doctor referenced the patient's medical condition and social circumstances just prior to coming to the hospital. The doctor testified that he learned this particular information from a review of the medical records. Subsequently, during a cross-examination of the doctor, the court itself made several inquiries of the doctor regarding S.L.'s presentation at the emergency room before hospitalization, regarding his affect, medical condition, and diagnosis at the emergency room. The doctor testified to this information by again reviewing the information contained in the medical records before him. At that time, counsel objected generally on hearsay grounds and was overruled. It seems clear from the record that the information provided at this point in the testimony was also from medical records and certainly would have been potentially admissible as an exception to hearsay as information recorded in support of medical treatment. What is unclear is how much of the information provided at this phase was also information used by the doctor to form the basis of his medical opinion. It is clear that the information about S.L. elicited at this stage of the proceedings was essentially consistent with the information referred to when the doctor was rendering his opinion on direct. If critical non-admissible evidence was elicited at this point and was relied upon by the hearing judge, that additional evidence and any material reliance is not obvious. Without particular reference by counsel, we consider any error is harmless.

The testimony by Dr. Gans of the appellant's behaviors in the hospital clearly supported the court's finding and granting of the petition. Dr. Gans opined S.L. suffered from a mental illness and he diagnosed him with a bipolar disorder with symptoms of paranoia, severe agitation, and feelings that others could read his mind. Dr. Gans's testimony does not raise any doubt about the presence of a mental illness for S.L. Further, Dr. Gans gave ample testimony about S.L.'s behaviors on the unit as evidence of his dangerousness, including daily restraints, threatening harm to staff, swearing, spitting, and property destruction resulting in self-harm. Accordingly, we affirm the commitment order.

2. Order of treatment. At the conclusion of the commitment hearing, the trial judge issued no ruling, but rather took the matter under advisement. Over the objections

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of S.L.'s trial counsel, the trial judge then proceeded to hear evidence de bene on the hospital's petition under G.L. c. 123, § 8B for authorization to treat S.L. with antipsychotic medication. [Note 1] This was error.

Section 8(c) of G.L. c. 123 states that the court "shall render its decision on the petition [for commitment] within ten days of the completion of the hearing." Section 8B(c) states, however, that where "the petition [for treatment] was filed concurrently with a petition for commitment," the "commencement of such hearing [on the petition for treatment] shall not be delayed beyond the date of the hearing on the commitment petition." A petition for the authorization to treat with antipsychotic medication brought under G.L. c. 123 § 8B is "separate from any pending petition for commitment and shall not be heard or otherwise considered by the court unless the court has first issued an order of commitment on the pending petition for commitment." G.L. c. 123, § 8B(b). In other words, a commitment order is a "condition precedent" to obtaining an order of substituted judgment. Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 106-107 (2000). The District Court Standards of Judicial Practice lend support:

"Treatment authorization procedures under § 8B apply only to incompetent persons who have been involuntarily committed because of mental illness. The commitment may have been ordered before the § 8B petition is filed or it may be sought at the same time the § 8B petition is filed. "When both a commitment petition and a § 8B petition are filed at the same time, the court must treat them as two separate proceedings, each involving distinct issues and evidentiary matters. The § 8B petition may be considered only after the court has entered an order committing the respondent to a mental health facility or Bridgewater State Hospital."

Commentary to Standard 7:00 of the District Court Standards of Judicial Practice, Civil Commitment and Authorization of Medical Treatment for Mental Illness (2011). In the absence of a commitment order, the trial court lacked the authority to consider the § 8B petition. [Note 2]

The trial court's order of commitment is affirmed. The court's order for treatment is vacated.