IN THE MATTER OF E.M.

FINIGAN, J. Norwood Hospital, a psychiatric hospital (the "petitioner"), petitioned for the civil commitment of the respondent ("E.M.") pursuant to G.L. c. 123, §§ 7 and 8 and for an accompanying order to administer antipsychotic medication to E.M. under G.L. c. 123, § 8B. After a hearing before a District Court judge, both petitions were allowed and this appeal followed. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

After drawing the attention of the local police at an outdoor mall near the motel where he had been residing, E.M. was arrested for trespassing and disturbing the peace. Presumably after displaying symptoms of possible mental illness, a police officer transported E.M. to the emergency room of the petitioner. Following that admission, an emergency room physician sought the temporary involuntary hospitalization of E.M. in the psychiatric unit of the petitioner pursuant to G.L. c. 123, § 12(b). The petitioner then filed a petition to further commit E.M. for a period of six months pursuant to G.L. c. 123, §§ 7 and 8, together with an accompanying petition seeking authorization to treat E.M. with antipsychotic medication pursuant to G.L. c. 123, § 8B.

A hearing on the G.L. c. 123, §§ 7 and 8 petition was held at Dedham District Court on February 12, 2019, where E.M. appeared with counsel. The petitioner presented one witness, Dr. Larissa Kouperschmidt ("Kouperschmidt"), E.M.'s attending psychiatrist. At the close of Dr. Kouperschmidt's testimony and cross-examination, E.M. moved for a required finding that the evidence was insufficient to commit E.M. under the §§ 7 and 8 petition. The judge denied that motion. E.M. rested without calling any witnesses and renewed his motion, which the court took under advisement and moved to the § 8B petition. In support of the petition seeking authorization to treat E.M. with antipsychotic medication, the petitioner recalled Dr. Kouperschmidt, and E.M. testified in his own behalf. At the conclusion of the testimony, the judge again took the matter under advisement, before later that day allowing both petitions. The orders of commitment and treatment have now expired. Nonetheless, we consider the appeal on its merits. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (appeal from expired or terminated commitment and treatment orders should not be dismissed as moot without considering merits of appeal in light of party's surviving interest in establishing orders not lawfully issued).

1. Order of commitment. General Laws c. 123 addresses the involuntary civil commitment of persons with mental illness. The sole evidence before the judge during

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the commitment portion of the hearing was the testimony of Dr. Kouperschmidt -- no other witnesses were called or exhibits offered, and E.M. did not testify. Through counsel, E.M. stipulated that Dr. Kouperschmidt was an expert in psychiatry.

Upon a finding that the failure to hospitalize an individual would create a likelihood of serious harm by reason of mental illness, a judge may order the commitment of the individual for a period of six months. G.L. c. 123, § 8. The standard of proof is proof beyond a reasonable doubt. Guardianship of Roe, 383 Mass. 415, 423-424 (1981), citing Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978).

There are three prongs to the statutory definition of a "likelihood of serious harm." That term is defined as:

"(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by 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; or (3) 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."

Matter of J.P., 486 Mass. 117, 118-119 (2020), quoting G.L. c. 123, § 1.

At the hearing, the petitioner conceded E.M. did not pose a risk under the first two prongs of the statute. The petitioner did argue, though, that E.M. posed a risk to himself under the third prong, and the judge agreed. We find no error with the judge's decision.

Although Matter of G.P., 473 Mass. 112 (2015), involved a civil commitment under G.L. c. 123, § 35, its holding is equally applicable to commitments under G.L. c. 123, §§ 7 and 8 because the three- prong definition of "likelihood of serious harm" under G.L. c. 123, § 1 is applicable to each type of commitment. See Matter of J.T., 2020 Mass. App. Div. 61, 62. In Matter of G.P., the Supreme Judicial Court noted that with regard to the third prong, the harm that is to be considered is "physical impairment or injury" to the respondent and a "very substantial risk" of that type of harm is shown by evidence that the respondent's judgment is so adversely affected by his illness that he cannot protect himself from physical harm and that the community does not include any reasonably available external source of adequate protection. Id. at 128-129. The focus in this context is on the respondent's degree of impaired judgment due to his illness; the degree of likelihood that he will sustain or inflict injury; and the inability of any other person or persons in the respondent's community to provide him protection against these risks. Id. at 129.

As a preliminary matter, E.M. argues his commitment order must be reversed because he was denied effective assistance of counsel. The preferred method for raising a claim of ineffective assistance of counsel is through a motion for a new trial. See Commonwealth v. Saferian, 366 Mass. 89, 90 n.1 (1974). Appellate courts have long and consistently observed that claims of ineffective assistance of counsel, at least

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in the first instance, should be raised by a motion for a new trial. Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). An exception to that rule is that a claim of ineffective assistance of counsel may be resolved on direct appeal when the factual basis of the claim appears indisputably on the trial record. Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994). This exception, however, is narrow. Zinser, supra at 811. E.M. asserts that counsel failed to raise the issues of Norwood Hospital's failure: (1) to obtain immediate review of the temporary involuntary hospitalization order, (2) to inform E.M. of his right to counsel, and (3) to inform E.M. of his right to a hearing.

It is clear from the record that E.M. was brought to the emergency room by a police officer, as authorized by G.L. c. 123, § 12(a). It is also clear in the record that Dr. Kouperschmidt certified she examined E.M. within two hours of his transfer from the emergency room to the psychiatric floor of Norwood Hospital (which are in the same facility), and nothing in the record suggests to the contrary. Likewise, there is nothing in the record that would allow us to determine whether E.M. was informed of his right to counsel and a prompt hearing. On the record before us, we do not find E.M.'s claim falls within the narrow exception to the general rule described above. In his substantive challenge to the court's commitment order, E.M. argues the court erred by considering the hearsay testimony of Dr. Kouperschmidt and that the evidence was insufficient to prove E.M.'s mental illness and likelihood of serious harm beyond a reasonable doubt. Dr. Kouperschmidt's testimony was of two sorts: her own observations made in her role as E.M.'s attending psychiatrist and information contained in medical records. While the records themselves were not in evidence, it has long been the rule that an expert may base her opinion on facts or data that are otherwise independently admissible. Commonwealth v. Greineder, 464 Mass. 580, 583 (2013). By statute, medical records are admissible to the extent such information relates to diagnosis and treatment. G.L. c. 233, § 79. [Note 1]

Dr. Kouperschmidt became E.M.'s attending psychiatrist upon his transfer to her unit. Dr. Kouperschmidt testified that while in the emergency room, E.M had presented "acutely manic, disorganized, psychotic, refused blood draw which is normal level of care for emergency department, was difficult to redirect, loudly talking to God, [and] responding to internal stimuli." Dr. Kouperschmidt's diagnosis was that E.M. suffered from mental illness, namely, bipolar disorder and was in the middle of a manic episode with psychotic features. Among the symptoms, according to Dr. Kouperschmidt, were that E.M. was hyperverbal, exhibiting pressured speech, and unable to stay on topic. Among other abnormal behavior, Dr. Kouperschmidt testified, E.M. was angry, losing control, throwing stuff and screaming in the middle of the night, and had to be chemically restrained. Finally, Dr. Kouperschmidt testified that she had concerns about E.M. posing a risk to himself because of his inability to

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follow societal norms, and that his assaultive behavior and level of disorganization placed him at risk of being victimized were he to be released from a hospital setting. Dr. Kouperschmidt was aware that E.M.'s prior living arrangement had been tenuous at best -- he had been staying in a motel paid for by the Department of Mental Health, but a dispute had arisen with his provider.

Viewing the testimony as a whole, and mindful that it is for the trial judge to assess credibility, we find sufficient evidence to meet the standard for commitment under the third prong. Dr. Kouperschmidt's uncontroverted testimony clearly supported the petition -- E.M. had arrived at her unit in a psychotic state and remained so. E.M. had demonstrated an inability to conform to societal norms (as demonstrated by his recent arrest) and continuing behavior in the psychiatric unit. Nothing in Dr. Kouperschmidt's testimony suggested a safe alternative to hospitalization was available to E.M. Issues of credibility and the weight of the evidence are typically left to the trial judge. Tri-County Contrs. v. Diamond Collision Specialists, Inc., 2014 Mass. App. Div. 89, 92. [Note 2]

Order of treatment. The court need not render its decision at the conclusion of a commitment hearing; § 8(c) of G.L. c. 123 provides that the court shall issue its decision "within ten days of the completion of the hearing." G.L. c. 123, § 8B(b) further provides, though, that a petition for the authorization to treat with antipsychotic medication 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" (emphasis added). In this case, without elaboration, the judge took the commitment decision under advisement and then proceeded directly to the § 8B hearing. [Note 3] Without a commitment order in place, the trial court lacked authority to hear the § 8B petition. See Matter of S.L., 2020 Mass. App. Div. 64, 68.

The trial court's order of commitment is affirmed. The court's order of treatment is vacated. [Note 4]

So ordered.