2021 Mass. App. Div. 29

November 20, 2020 - March 11, 2021

Appellate Division Western District

Court Below: District Court, Dudley Division

Present: Stark, P.J., D'Angelo & Ginsburg, JJ.

Practice, Civil, Commitment petition, Signature.

No brief filed for the petitioner.

Eric D. Beal for the respondent.

D'ANGELO, J. This appeal involves the question of whether the trial court had jurisdiction to hear a civil commitment petition where the petition for commitment was not signed by the superintendent of the facility. Because we find that the petition for commitment was not signed by the superintendent or any identified designee, the commitment order and treatment order are vacated.

On October 30, 2019, Harrington Hospital ("Harrington") filed petitions for civil commitment to Harrington pursuant to G.L. c. 123, §§ 7 and 8 ("petition for commitment") and for authorization to administer medical treatment pursuant to G.L. c. 123, § 8B ("petition for treatment"). Both petitions were signed by "Dr. Jihad Nader," "psychiatrist." The petitions did not specify what, if any, position Dr. Nader held at Harrington. [Note 1]

General Laws c. 123, § 7(a) provides as follows:

"The superintendent of a facility may petition the district court or the division of the juvenile court department in whose jurisdiction the facility is located for the commitment to said facility and retention of any patient at said facility whom said superintendent determines that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness."

"Facility" is defined by G.L. c. 123, § 1 as a "public or private facility for the care and treatment of mentally ill persons, except for the Bridgewater State Hospital."

The procedural provisions of G.L. c. 123 have been strictly construed due to the "massive curtailment" of liberty experienced by persons involuntarily committed. See, e.g., Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 784 (2008); Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 104-105 (2000); Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983). However, G.L. c. 123 further provides that the Department of Mental Health ("Department") is to "adopt regulations consistent with [G.L. c. 123] which establish procedures and the highest practicable professional standards for the reception, examination, treatment, restraint, transfer and discharge of mentally ill persons in departmental facilities. Said regulations shall be adaptable to changing conditions and to advances in methods of care and treatment

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of the mentally ill." G.L. c. 123, § 2. Pursuant to this charge, the Department has promulgated regulations that set forth various definitions. "Superintendent" is defined in G.L. c. 123, § 1 as the "superintendent or other head of a public or private facility." The regulations contained in 104 Code Mass. Regs. § 25.02, and adopted by the Department pursuant to G.L. c. 123, § 2, contain the following definition:

"Facility Director or Director of a Facility. The superintendent, chief operating officer, or other head of a facility, who may petition the district or juvenile court for commitment pursuant to M.G.L. c. 123; and who may take such other action as is authorized or required of the superintendent pursuant to M.G.L. c. 123."

BayRidge Hosp. v. Jackson, 2010 Mass. App. Div. 12, further established that a psychiatric unit of a hospital meets the definition of a "facility" and that the medical director of the psychiatric unit meets the definition of a "superintendent or other head of a public or private facility." Id. at 13-14. Additionally, this Division, in Matter of B.L., 2016 Mass. App. Div. 119, held that because "the superintendent or other head of a facility is not always present and available" and because of the time frame in which petitions for commitment must be signed and filed, it is reasonable for the medical director to designate someone to act as a temporary head of the facility in his absence. Id. at 120. See also Matter of C.C., 2019 Mass. App. Div. 77.

In this case, there was nothing in the petition or the evidence presented to the judge that Dr. Nader had any designation at Harrington other than being a staff psychiatrist. Because Dr. Nader was not authorized to sign petitions for commitment (or a petition for treatment), the District Court lacked jurisdiction. [Note 2] The commitment order and treatment order are vacated.


[Note 1] Because of our decision, we need not recite any of the other facts of the case or other legal issues raised by the appellant.

[Note 2] Although subject matter jurisdiction was not raised in the trial court, the issue is not waived and may be raised for the first time on appeal. "Subject matter jurisdiction cannot be conferred by consent, conduct or waiver." Harker v. Holyoke, 390 Mass. 555, 559 (1983), quoting Litton Business Sys. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981). Where a court lacks subject matter jurisdiction, the judgment is void and time limitations for raising the issue are inapplicable. ROPT Ltd. Partnership v. Katin, 431 Mass. 601, 605 (2000). See Adoption of Peggy, 436 Mass. 690, 696 (2002) (issues of subject matter jurisdiction are not waivable and may be raised at any time).