2021 Mass. App. Div. 17

March 13, 2020 - February 11, 2021

Appellate Division Southern District

Court Below: District Court, Brockton Division

Present: Finnerty, P.J., Cunis & Pino, JJ.

Caroline M. Sawyer for the petitioner.

Adriana Contartese for the respondent.

CUNIS, J. This is an appeal from an order by a District Court judge authorizing medical treatment pursuant to G.L. c. 123, § 8B. The appellant, W.M., seeks review of the involuntary treatment order and argues that the hearing judge erred in finding W.M. not competent to make his own medical decisions. The appellee, Bridgewater State Hospital ("BSH"), contends that the issue is moot because W.M.'s treatment order has expired. We hold that a review of an expired § 8B medical treatment order, standing alone and apart from a commitment order under G.L. c. 123, §§ 7 and 8, is not moot. We further conclude that the evidence in this case was sufficient for the District Court judge to find that W.M. was not competent, and thus the involuntary treatment order was not in error.

The facts relevant to the judge's competency determination are as follows. At the time of the G.L. c. 123, § 8B hearing, W.M. had been committed to BSH for at least several years, [Note 1] the precise reason for which is not clear from the record. Kelli Cossaboom ("Cossaboom"), [Note 2] a clinical nurse specialist with a master's degree in counseling psychology, was the primary witness for BSH. She testified that W.M. had a "variety" of diagnoses, including schizophrenia, schizoaffective disorder, bipolar type, and "personality disorders." Symptoms of these conditions included mood instability, mania, paranoia, occasional delusions and auditory hallucinations, and assaultive and hypersexual behavior. W.M. also had a history of substance abuse.

Throughout his time at BSH, W.M. had a history of noncompliance with his prescribed medication. Nurse Cossaboom testified that W.M. lacked insight into his mental illness because he believed that he, and not his treatment team, was better able to determine the proper dosages of his antipsychotic medications. Following the denial of a G.L. c. 123, § 8B petition in August of 2017, W.M. made a unilateral decision in November of 2017, against clinical advice from his psychiatrist, to reduce his intake of Risperdal from 5 milligrams to 3 milligrams. Following the change in dosage, W.M.'s symptoms began to reappear, leading to physical altercations with other patients and reports of hypersexual behavior.

In May of 2018, W.M. agreed to an increase in the dose of Risperdal from 3 milligrams to 4.5 milligrams. Following this, both his symptoms and his self-awareness

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of his mental illness improved. Nevertheless, W.M.'s symptoms of mood instability and paranoia persisted, and he refused to agree to a further dosage increase. Nurse Cossaboom testified that the risks of not increasing the dose of Risperdal could lead to a significant risk of decompensation of his mental functioning. Although she commended W.M.'s periodic compliance with medication and his participation in groups, Nurse Cossaboom nevertheless opined that W.M. was presently mentally unstable and not competent to make his own treatment decisions.

W.M. offered the testimony of a psychiatrist, Dr. Roger Gray ("Gray"), who had interviewed W.M. numerous times (totaling about seven hours) between April and September of 2018, and also interviewed staff and reviewed medical records. He concluded that W.M. understood the nature of his mental illness, the benefits of medication, and the risks of not taking it, but that W.M. disagreed as to the dosage prescribed by his treatment team because it caused him intolerable side effects. According to Dr. Gray, it was the side effects issue, and not W.M.'s lack of competence, that caused W.M. to reduce his dosage. Dr. Gray further opined that W.M. was capable of participating in his own treatment plan. On cross-examination, Dr. Gray admitted that W.M. had a history of discontinuing or reducing his prescribed medication, which resulted in a recurrence of aggressive and inappropriate sexual behavior involving other patients and staff members.

W.M. himself testified, stating that his treating psychiatrist at the time, Dr. Matthew Lahaie ("Lahaie"), had approved the reduction of W.M.'s dosage of Risperdal to 3 milligrams because of the bad side effects. In rebuttal, BSH called Dr. Lahaie, who testified that he did not recommend such a drastic reduction in dosage, as it would have been imprudent to do so. He also testified that he had been working with W.M. on a medication plan for side effects.

The hearing judge found that W.M. was incompetent to make his own medical decisions. After hearing further evidence on substituted judgment and the proposed treatment plan, the judge authorized treatment with antipsychotic medications. [Note 3] The treatment order has now expired.

Mootness. Reviewing courts generally do not decide issues that are moot. Norwood Hosp. v. Munoz, 409 Mass. 116, 121 (1991). The exception lies "where the issue [is] one of public importance, where it [is] fully argued on both sides, where the question [is] certain, or at least very likely, to arise again in similar factual circumstances, and especially where appellate review could not be obtained before the recurring question would again be moot." Id., quoting Lockhart v. Attorney Gen., 390 Mass. 780,

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783 (1984). Cases "'involving the commitment and treatment of mentally ill persons are generally considered matters of public importance' and present 'classic examples' of issues that are capable of repetition, yet evading review." Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 782 (2008), quoting Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).

In Matter of F.C., 479 Mass. 1029 (2018), the Supreme Judicial Court ruled that expired involuntary commitment and treatment orders pursuant to G.L. c. 123, §§ 7, 8, and 8B are not moot because "a person who has been wrongfully commitment or treated involuntarily has 'a surviving interest in establishing that the orders were not lawfully issued, thereby, to a limited extent, removing a stigma from his name and record'" (emphasis added). Id. at 1029-1030, quoting Seney v. Morhy, 467 Mass. 58, 62 (2014).

It is of no import that Matter of F.C. involved both a commitment order (G.L. c. 123, §§ 7 and 8) and a treatment order (G.L. c. 123, § 8B), and here we review only a § 8B treatment order. The Supreme Judicial Court's use of the disjunctive "or" plainly indicates that either commitment or treatment orders are not moot and therefore reviewable on appeal. Id. at 1029. Reasonable minds may differ about whether any "stigma" or other deleterious effect attaches to a § 8B treatment order. We note that such an order involves a judicial determination that a person is incompetent to make his or her own medical treatment decisions -- something in which a person struggling with chronic mental illness may indeed have a "continuing interest" beyond the expiration of the order. Id., citing Seney, supra at 61. In any event, where the Supreme Judicial Court has spoken definitively on this issue, we are bound to follow it. The issue before us is not moot.

Sufficiency of the evidence. We turn now to the question of whether the evidence in this case was sufficient for the judge to conclude that W.M. was incompetent to make decisions regarding his medical treatment. We do not engage in a de novo review of the record, but rather review the District Court judge's decision for any error of law or abuse of discretion. We will not set aside a judge's findings unless they are not supported by the record or tainted by an error of law. We further recognize that matters of witness credibility are the province of the judge and will not be disturbed absent clear error. Matter of D.D., 2019 Mass. App. Div. 101, 102. See Mass. R. Civ. P. 52(c). "Findings are clearly erroneous when, 'although there is evidence to support [them], the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' The judge, with a 'firsthand view of the presentation of the evidence, is in the best position to judge the weight and credibility of the evidence.' . . . 'If the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the [appellate court] may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous'" (citations omitted). LFS Group, Inc. v. Gutzler, 2011 Mass. App. Div. 83, 87 n.7. See Matter of D.D., supra.

Here, there was testimony, which the judge credited, that W.M. suffered from several major mental illnesses as defined in 104 Code Mass. Regs. § 27.05, including schizophrenia, schizoaffective disorder, bipolar type, and personality disorders. When W.M. was not taking medication in the prescribed dosages, he experienced

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multiple recurring symptoms, such as mood instability, mania, paranoia, delusions, auditory hallucinations, and he engaged in assaultive and hypersexual behavior with female staff and other patients. Despite some improvement in symptoms while on a higher dosage of medication, his symptoms of paranoia and mood instability did not completely improve to the point where he reached a clinical baseline. Nurse Cossaboom testified that W.M. had "not yet demonstrated that he has the capacity to understand the risks of not taking the medication . . . [a]nd also, he does not demonstrate capacity that he understands the considerations of having also other medication options to benefit him." In other words, W.M. was not competent to understand medication risks, benefits, and options, and therefore not competent to make medical decisions for himself. See Guardianship of Roe, 411 Mass. 666, 670 (1992), quoting Harnish v. Children's Hosp. Med. Ctr., 387 Mass. 152, 154 (1982) ("An informed decision about medical treatment 'requires knowledge of the available [treatment] options and the risks attendant of each.'").

Although Dr. Gray testified that W.M. was competent, and the judge acknowledged that Dr. Gray was a more highly credentialed and experienced witness than Nurse Cossaboom, the judge was not required to accept or give more weight to his testimony. "Judicial experience with psychiatric testimony makes it abundantly clear that it would be unrealistic to treat an opinion . . . by an expert on either side of . . . [an] issue as conclusive. That is no less so in a case where one party has not secured an expert to express a contrary opinion. The law should not, and does not, give the opinions of experts on either side of . . . [an] issue the benefit of conclusiveness, even if there are no contrary opinions introduced at the trial." Commonwealth v. DeMinico, 408 Mass. 230, 235 (1990), quoting Commonwealth v. Lamb, 372 Mass. 17, 24 (1977). See also Matter of D.D., supra at 103. The judge is entitled to accept all, some, or none of the testimony of a witness, including an expert witness. Commonwealth v. Hinds, 450 Mass. 1, 12 n.7 (2007).

The record here demonstrates that the trial judge thoughtfully considered and weighed the conflicting testimony of Nurse Cossaboom and Dr. Gray, as well as the testimony of W.M. himself, even noting that he was not persuaded to find W.M. incompetent until after the closing arguments. Accordingly, we cannot conclude that the judge committed an error of law or abused his discretion.

The decision of the trial court is affirmed.


[Note 1] The record is not clear as to how long W.M. had been committed to BSH at the time of the hearing, but it does indicate that he has had multiple admissions to BSH, and that he had been on the present admission since 2012.

[Note 2] In the transcript, Kelli Cossaboom's name is incorrectly spelled "Kelly Casaubon."

[Note 3] The substituted judgment was proper based on the Rogers factors. Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 505-507 (1983). The strength of W.M.'s religious convictions and the impact on his family were not significant in this case. The probability of adverse side effects was of concern to W.M. himself but, as testified by Nurse Cossaboom and Dr. Lahaie, was manageable with additional medication. W.M.'s prognosis, as evident from the record, was that without treatment his symptoms of paranoia, mood instability, hypersexuality, and aggression would continue to decompensate, but with proper treatment would be manageable. Lastly, although W.M. had expressed his treatment preferences, there was credible testimony that he was not competent to understand the risks, benefits, and options of the medical treatments recommended.