IN THE MATTER OF C.O.

STARK, P.J. Arguing that the evidence was insufficient, the respondent, C.O., appeals from a commitment order pursuant to G.L. c. 123, §§ 7 and 8 and from an order to involuntarily administer psychiatric medication pursuant to G.L. c. 123, § 8B. For the reasons set forth below, we affirm.

Background. On October 26, 2018, the chief medical officer of the Providence Behavioral Health Hospital filed a petition for civil commitment pursuant to G.L. c. 123, §§ 7 and 8, and a hearing was held a few days later on November 1st. The petitioner's sole witness, Dr. Adam M. Mirot ("Mirot"), based his opinions on his conversations with the respondent and from a review of the medical records, notes from his colleagues, social work records, and records from the referring emergency service. The parties stipulated to the doctor's qualifications, and the judge found the doctor's testimony credible. Upon reviewing the records and speaking with the respondent, Dr. Mirot opined that she suffered from a mental illness, to wit, schizoaffective disorder, bipolar type, as well as an unspecified neurocognitive disorder. The doctor also suspected an underlying developmental disability, as well as opioid and benzodiazepine disorders. At the time of admission, the respondent was a recovering heroin addict and on methadone maintenance.

The respondent has a history of prior psychiatric hospitalizations. She was admitted to the hospital in the instant matter after going to the federal courthouse in a disoriented state and speaking in a confused manner about men who were coming after her. Upon her admission, the respondent presented as disorganized in her thought processes, and she heard voices that were insulting or disrespectful to her. She had a delusion that eight men were persecuting her and pursuing her in the community. The doctor testified that this presentation is a symptom of having command auditory hallucinations. The respondent could not relay her telephone number to the crisis evaluator. She was initially unable to tell the evaluator what medication she had been taking, but later reported that she was taking Seroquel but that it was not working for her.

The respondent's symptoms persisted during her hospital stay. She expressed thoughts of aggression driven by her delusions when she told the doctor that the male voices in her head were disrespecting and insulting her, and that they needed a good "ass whooping." The doctor opined that the respondent's command auditory hallucinations sometimes contained "lethal content which is the danger . . . [because] they can command a person to harm themselves or somebody else."

A social worker noted in the medical records that the respondent did not trust her neighbors, which the doctor opined is a symptom of paranoia. In addition,

Page 11

staff consistently observed the respondent engaging in self-dialogue in response to internal stimuli. This included what the doctor deemed "angry dialogue" where the respondent would be telling someone to "fuck off" or "fuck you." The doctor interpreted this as an indication of "ideation to aggress against parties whom she felt were persecuting her outside the hospital."

In addition, Dr. Mirot testified that a note in the medical record that the respondent needed redirection from wearing low-cut shirts and going into a male patient's room was indicative of poor self- monitoring and something that would put somebody at risk of exploitation. During her hospital stay, the respondent made no attempts or threats to harm anyone on the hospital unit, and she was eating properly, but she did have some difficulty sleeping. In terms of her opioid use and medications, the doctor had no knowledge of any intentional medication overdoses signifying any suicidal ideation.

Dr. Mirot testified that he believed the respondent would come to harm by reason of impaired judgment if she were released from the hospital. He further opined that there were no less restrictive alternatives for continued treatment, as he doubted whether she would take her medication if she were discharged. Dr. Mirot's main concerns were that of self-care, disinhibited behavior in the community, and the possibility of exploitation or being harmed by others.

After the judge allowed the petition for commitment, the court heard testimony from the doctor on the petition for treatment with antipsychotic medications upon an adjudication of substituted judgment pursuant to G.L. c. 123, § 8B. Dr. Mirot testified that the respondent's mental illness impairs her ability to make informed decisions about her treatment. He further testified that Seroquel was recommended as it is an antipsychotic medication designed to address hallucinations, delusions, and disorganization of thought. The doctor testified that if the respondent took antipsychotic medication, he would expect significant improvement, and that without it, she was expected to become more delusionally preoccupied, disorganized, with more hallucinatory experiences, less insight, and more anger. The doctor also testified that he was not aware of any known objections by the respondent to the proposed treatment plan due to religious beliefs.

Analysis. 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 (2020); Matter of A.L., 2019 Mass. App. Div. 131, 132. In this case, the petitioner alleged that C.O. presented a risk of harm based on only the third prong of the definition of "likelihood of serious harm" in G.L. c. 123, § 1. 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, "[T]he degree of risk . . . is greater than that required by the first or 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., 473 Mass. 112, 128 (2015). Moreover, "the imminence of the risk becomes a factor that is even more

Page 12

important to consider than it is with respect to the other two prongs." Id. at 129.

We review the trial court's findings of fact for clear error, and "'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.' Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004)." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018). "'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.M., 94 Mass. App. Ct. 399, 401 n.5 (2018), quoting New England Canteen Serv., Inc. v. Ashley, 372 Mass. 671, 675 (1977)." Matter of A.L., supra at 133.

The evidence presented here was sufficient to support the court's order of commitment. As an initial matter, there is no question -- or challenge on appeal -- that the respondent is mentally ill pursuant to the statute. The evidence presented at hearing that C.O. suffered from schizoaffective disorder, bipolar type, as well as unspecified neurocognitive disorder was uncontroverted and deemed credible by the judge.

We further find that there was sufficient evidence to show beyond a reasonable doubt that there was a likelihood of serious harm under prong 3. The respondent had a history of prior psychiatric hospitalizations. Upon admission to the hospital, which was nine days prior to the hearing, the respondent presented as disorganized in her thought process, was unable to maintain a coherent train of thought or reason, was responding to internal stimuli, and had delusions that men were persecuting her. She continued to experience auditory command hallucinations during her hospital stay, and she was consistently observed by hospital staff engaging in self-dialogue where she expressed anger toward people whom she felt were persecuting her outside the hospital. The doctor opined that the respondent's command auditory hallucinations sometimes contained lethal content which is dangerous because they can command a person to harm themselves or somebody else. Based on the totality of the evidence, the trial judge did not err in finding that there was a very substantial risk of physical impairment or injury in that C.O.'s judgment was so affected that she was unable to protect herself in the community. Contrast Matter of F.P., 2020 Mass. App. Div. 48 (finding prong 3 was not met where sole evidence was respondent might be homeless); Matter of V.G., 2019 Mass. App. Div. 162 (finding prong 3 was not met where no evidence showed respondent would suffer physical impairment or injury).

The trial judge also properly found that there were no less restrictive alternatives to commitment. While there was not a focus on this issue during the hearing, the doctor provided his expert testimony that there were no less restrictive alternatives based on the facts and circumstances presented, and the judge credited this opinion.

The respondent finally argues that there was insufficient evidence to support the substituted judgment finding to authorize treatment with antipsychotic medications. Pursuant to G.L. c. 123, § 8B(a), a patient who is the subject of a commitment order under G.L. c. 123, §§ 7 and 8 -- as was the respondent -- may be subject to a petition to "adjudicate the patient incapable of making informed decisions about proposed medical treatment, [and] to authorize, by an adjudication of substituted judgment,

Page 13

treatment with antipsychotic medications." Under G.L. c. 123, § 8B(d), "[T]he court shall not authorize medical treatment [with antipsychotic medication] unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan." The elements required to authorize a requested treatment order must be proved by a preponderance of the evidence, and the court must give close attention to the evidence and enter specific and detailed findings on each of the issues. See Guardianship of Doe, 411 Mass. 512, 523-524 (1992).

Here, the record reflects sufficient evidence to support the judge's determination that the respondent was incompetent and should be treated with antipsychotic medications. Dr. Mirot testified that the respondent's mental illness impairs her ability to make informed decisions about her treatment. He further testified that Seroquel was recommended as it is an antipsychotic medication designed to address hallucinations, delusions, and disorganization of thought. The doctor testified that if the respondent took antipsychotic medication, he would expect significant improvement, and that without it, she was expected to become more delusionally preoccupied, disorganized, with more hallucinatory experiences, less insight, and more anger. The doctor also testified that he was not aware of any known objections to the proposed treatment plan due to religious beliefs. There was no error in the trial court's finding that the hospital met its burden.

For all of these reasons, the commitment order and subsequent order for treatment are affirmed.