IN THE MATTER OF D.B.

PER CURIAM. In September, 2017, the medical director of the Cooley Dickinson Hospital acute care psychiatric unit ("petitioner") filed a petition pursuant to G.L. c. 123, §§ 7 and 8, asking the court to commit D.B. involuntarily. The petition asserted that D.B. was mentally ill and that because of her illness there was a substantial risk of harm to others and a very substantial risk of harm to D.B. herself. The petitioner also asked the court to apply the substituted judgment standard and authorize treatment with medication pursuant to G.L. c. 123, § 8B.

A hearing on the G.L. c. 123, §§ 7 and 8 petition was held at the hospital on September 15, 2017. The judge heard testimony from the petitioner, who had been treating D.B. prior to the hearing. He reported that D.B. had been hospitalized on three occasions in the past month and recently had been arrested for choking her son. The petitioner also testified that D.B. was suffering from a bipolar disorder, was currently manic, and was exhibiting psychotic features. The judge heard additional testimony that D.B. was having hallucinations, was paranoid and delusional, and was acting in a bizarre, hypersexual manner. The petitioner also reported that D.B. had told hospital staff that she would never take any medication.

D.B. testified at the commitment hearing, and she told the judge that sometime prior to the hearing she had executed a health care proxy naming her attorney as her agent for health care decisions. The petitioner testified that in some way he had been advised of this. No health care proxy or any medical record referencing a proxy was introduced at the hearing. At the conclusion of the initial hearing, the judge ordered D.B. involuntarily committed. Due to time constraints, by agreement of the parties, the G.L. c. 123, § 8B hearing was continued to September 19, 2017.

On September 19, 2017, before any evidence was introduced, D.B., through counsel, filed a motion to dismiss the § 8B petition. Attached to the motion was a document entitled, "Health Care Proxy." That document indicated that it was executed by D.B. before two witnesses on September 10, 2014, and that through the document, D.B. had appointed Attorney Charles F. Ksieniewicz ("Ksieniewicz") to act as her health care agent "with the authority to make all health care decisions on [her] behalf in accordance with the provisions of Chapter 201D of the General Laws of Massachusetts."

The document further provided, "This authority becomes effective if my attending

Page 75

physician determines that I lack the capacity to make or to communicate health care decisions myself. My HEALTH CARE AGENT is then to have the same authority to make health care decisions as I would if I had the capacity to make them . . . ." The document provided a space for listing exceptions to this authorization, but none were identified.

The document stated that D.B. gave the health care agent "complete authority to make any health care decisions for [her], including decisions about life-sustaining treatment." It authorized the agent to "make health care decisions for [D.B.] (a) only after consultation with my health care providers and consideration of all acceptable medical alternatives regarding diagnosis, prognosis, treatments and their side effects, and (b) according to my Agent's assessment of my wishes as stated in this Health Care Proxy, or as otherwise known to my Agent, including my religious and moral beliefs or, if my wishes are not known, according to what my Agent determines to be in my best interest." The document also specifically authorized the agent to "consent to the administration of anti-psychotic medication."

D.B.'s attorney asserted that the G.L. c. 123, § 8B petition should be dismissed because pursuant to G.L. c. 201D, § 6, the petitioner, D.B.'s attending physician, had activated the authority of the health care agent by filing a § 8B petition and asserting that the substituted judgment standard had to be employed because D.B. lacked the capacity to make health care decisions for herself. The petitioner argued that the hospital had no prior notice of the health care proxy and that the agent had not consulted with D.B.'s health care providers. The petitioner also asserted that the District Court has the authority to override a health care proxy in the context of a hearing conducted pursuant to § 8B. Ultimately, the judge denied D.B.'s motion to dismiss and proceeded with an evidentiary hearing.

At the hearing, the judge again heard expert testimony that D.B. suffered from "bipolar disorder, manic, with psychotic features," and that her condition had worsened since the G.L. c. 123, §§ 7 and 8 hearing. Her treating psychiatrist testified that D.B. was disorganized, irritable, agitated, and assaultive, and was unable to comprehend and discuss treatment options. Testimony regarding a proposed treatment plan was also introduced.

Attorney Ksieniewicz, D.B.'s health care agent and longtime attorney, also testified at the hearing. He stated that D.B. executed the subject health care proxy in 2014 and that he and D.B. had discussed treatment options and various forms of medication in relation to multiple previous psychiatric commitments. He also testified that D.B. had expressed concerns over the potential side effects of medications the petitioner was proposing, and had stated her preference for certain medications and dosages. He had not previously shared any of this information with D.B.'s providers at the hospital and had not consulted with her treating psychiatrist regarding these concerns.

Ultimately, the judge determined that D.B. was incapable of making informed decisions regarding the proposed medical treatment. He made a substituted judgment determination and approved the petitioner's treatment plan.

Against this background, D.B. asserts it was error to deny her motion to dismiss. As noted above, she contends that once her treating psychiatrist filed the G.L. c. 123, § 8B petition based on his opinion that D.B. was incapable of making informed decisions about medical treatment, only Attorney Ksieniewicz, the agent she had

Page 76

chosen, and not a judge, was authorized to make decisions concerning the administration of medication on her behalf.

The petitioner argues that the judge acted lawfully, asserting that the District Court has the authority to disregard or override a health care proxy when the agent fails to fulfill his or her statutory duty to consult with the principal's health care providers; does not give "full consideration of acceptable medical alternatives"; and relies solely on preferences the principal has expressed to her agent that were not the product of rational analysis.

The petitioner also argues that in view of the need for expedience in resolving treatment decisions after a commitment order issues, and the important "State interests" in protecting the public from a dangerous mentally ill individual and protecting the individual from herself, the hearing judge correctly followed the procedures set out in Chapter 123, not Chapter 201D, the health care proxy statute. In support of this argument, the petitioner suggests that if the health care proxy statute controlled, a patient like D.B. would be denied needed treatment unless she followed a "treatment plan of her own devising." The petitioner also contends that medical treatment would be delayed unnecessarily because petitioners would be forced to pursue litigation in the Probate Court to secure an order overriding or removing the proxy.

In Cohen v. Bolduc, 435 Mass. 608 (2002), the Supreme Judicial Court noted that "every State has enacted legislation permitting individuals to give advance directives for health care decisions should they become incapable of communicating their own wishes." Id. at 613. The Court also noted that in Massachusetts, G.L. c. 201D applies to both physical and mental conditions, id., and like other proxy statutes, it was intended to maximize an individual's control over his or her health care decision-making by "permitting individuals to express their health care desires in a manner that will be respected when they are no longer able to do so." Id. at 613 n.11.

The Court characterized G.L. c. 201D as "sweeping in its scope," and remarked that "the Legislature plainly contemplated an agent's authorizing some mental health treatments . . . without limitation." Id. at 616. The Court cited a Massachusetts treatise for the proposition that:

"[General Laws c. 201D, § 5] is a broad provision authorizing the agent to make ordinary and extraordinary medical treatment decisions for the principal including decisions about life itself. This authority would appear to include the authority to commit the principal to a mental health facility, to consent to the administration of anti-psychotic medication and refuse medical treatment since they are each decisions that the principal could make."

Id. at 616 n.20, quoting S.M. Dunphy, Probate Law and Practice § 44.3, at 189 (2d ed. 1997 & Supp. 2001).

In light of the above, we find that the Massachusetts proxy statute protects the right of a patient to autonomy with regard to the administration of antipsychotic medication in the context of a G.L. c. 123, § 8B petition, even after she has lost the capacity to make her own decision. By executing a health care proxy, an individual can determine in advance that her attorney or another competent person of her

Page 77

choice, rather than a judge, will make such medical decisions on her behalf. A contrary decision would contravene the important principles embodied in the statute and explained in Cohen v. Bolduc and similar decisions.

Turning to the operation of the two statutes involved here, we observe that when a patient like D.B. is subject to an order of commitment pursuant to G.L. c. 123, §§ 7 and 8, a facility may petition a District Court to adjudicate the patient incapable of making informed decisions about medical treatment and, "by an adjudication of substituted judgment," to authorize treatment with antipsychotic medications. G.L. c. 123, § 8B(a). A judge may authorize this treatment only when he or she, "upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent." G.L. c. 123, § 8B(d).

General Laws c. 201D, on the other hand, provides that every person has the right to appoint a health care agent by executing a health care proxy in the presence of two witnesses who affirm that the principal is "at least eighteen years of age, of sound mind, and under no constraint or undue influence." Id. at § 2. "[E]very health care proxy shall be presumed to be properly executed unless a court determines otherwise." Id. A health care agent's authority becomes effective after a determination is made by the principal's attending physician, "according to accepted standards of medical judgment," that the principal lacks the capacity to make health care decisions. Id. at § 6. The determination must be made in writing and "shall contain the attending physician's opinion regarding the cause and nature of the principal's incapacity as well as its extent and probable duration." Id. The determination must be entered in the principal's permanent record. If a principal-patient is determined to lack capacity because of mental illness, the physician who makes the determination must consult with a mental health specialist or have such specialized training himself or herself. Notice of such a determination must be given to the principal-patient and to his or her health care agent. Id.

Under Chapter 201D, the health care agent has the authority to make any and all health care decisions on the principal's behalf that the principal could make. Id. at § 5. "After consultation with health care providers, and after full consideration of acceptable medical alternatives" regarding treatment and side effects, the agent is to "make health care decisions: (I) in accordance with the agent's assessment of the principal's wishes, including the principal's religious and moral beliefs, or (ii) if the principal's wishes are unknown, in accordance with the agent's assessment of the principal's best interests." Id. Health care providers are required to comply with decisions made by an agent under a health care proxy to the same extent as if such decisions have been made by the principal, "subject to any limitations in the health care proxy, or in any specific court order." Id. The term "health care," as defined in this statute, specifically includes treatment for the mental condition of a patient. Id. at §1.

Pursuant to G.L. c. 201D, § 17, where there is a dispute over the validity of a health care proxy or an assertion that an agent should be removed because he or she is not competent to fulfill his or her obligations or is acting in bad faith, a health care provider may commence "a special proceeding in a court of competent jurisdiction" to have an agent removed. In addition, a health care provider may commence such a proceeding to "override the agent's decision about health care treatment on the grounds that: the decision was made in bad faith or the decision is not in accordance

Page 78

with the standards set forth in section five." With regard to the question of what constitutes a "court of competent jurisdiction," G.L. c. 215, § 3 states, "Probate courts have exclusive original jurisdiction of all actions concerning the execution and validity of health care proxies . . . or disputes arising thereunder."

By filing a petition under G.L. c. 123, § 8B, the petitioner, D.B.'s attending psychiatrist, explicitly or implicitly, represented that D.B. was incapable of making informed decisions on medication. The health care proxy was provided to the court and its authenticity was not contested. (Indeed, pursuant to G.L. c. 201D, § 2, every person who executes a health care proxy is presumed to have been competent to do so and each proxy is presumed to be properly executed unless a court determines otherwise.) If the judge found D.B. was not capable of making an informed decision about medical treatment, as he ultimately did, her health care agent would have been authorized to make this decision. If the judge had found D.B. capable of making decisions for herself, an order for treatment could not lawfully issue. In either event, in the context of a § 8B hearing, once an executed health care proxy is before it, a District Court judge has no authority to issue an order for medical treatment.

Lastly, the petitioner argues that in order to address emerging safety concerns and the general need for expedience in regard to mental health hearings, a District Court judge must have the authority to override a health care agent's decision. Although we recognize the practicality of the petitioner's position, we find the Legislature has addressed the issue, and G.L. c. 215, § 3 clearly states that Probate Courts have exclusive original jurisdiction over the type of dispute presented here. A change in this statutory scheme must come from the Legislature.

In closing, it is unfortunate that what may be a question of first impression in Massachusetts was apparently discussed for the first time in the course of a hearing, with minimal notice of even the existence of a health care proxy to the petitioner and the court and with no consultation between the health care agent and the hospital. With the luxury of more time for analysis and discussion, however, we find that the respondent's motion to dismiss should have been allowed. Consequently, the order issued pursuant to G.L. c. 123, § 8B is vacated and the § 8B petition is dismissed. This decision does not affect the commitment order issued pursuant to G.L. c. 123, §§ 7 and 8.