IN THE MATTER OF C.B.

FINNERTY, P.J. This case returns to this Appellate Division from the Appeals Court pursuant to its order of September 11, 2019. [Note 1] We had previously held that C.B.'s appeal was moot as his commitment under G.L. c. 123, §§ 7 and 8 had expired. [Note 2] Upon review, the Appeals Court remanded the case for consideration on the merits in light of the Supreme Judicial Court's holding in Matter of F.C., 479 Mass. 1029, 1029-1030 (2018). [Note 3]

We now consider C.B.'s contention that the order of the trial court for his involuntary commitment was not supported by the evidence. For the reasons that follow, we agree with C.B. that his commitment was not supported by sufficient evidence and we vacate the commitment order. [Note 4]

The director of the Corrigan Mental Health Center facility filed a petition alleging that (1) C.B. was mentally ill by reason of "toxic psychosis secondary to drug use (marijuana)" and (2) by reason of that disorder, there was "a very substantial risk of physical impairment or injury [to him] as manifested by evidence that the person's judgment is so affected that he is unable to protect himself in the community." The petition further alleged that C.B. was "so confused [that] he does not know date, place or person, is tearful, suspicious and claims his girlfriend and parents are not

Page 32

real." Following a hearing, the court granted the petition.

In order for a person to be considered mentally ill for purposes of involuntary commitment to a facility, Department of Mental Health regulations, authorized by G.L. c. 123, § 2, provide that the respondent must be suffering "a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life." [Note 5] Mental illness alone is not enough to justify commitment. The petitioner must also prove beyond a reasonable doubt that the respondent's mental illness creates a likelihood of serious harm. See Matter of F.P., 2020 Mass. App. Div. 48, 50.

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." G.L. c. 123, § 1. In Matter of G.P., 473 Mass. 112 (2015), the Supreme Judicial Court noted that with regard to the third prong under G.L. c. 123, § 1 (which is what is alleged in the petition here), 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 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. See Matter of F.P., supra (principles in Matter of G.P. applicable because "likelihood of serious harm" definition in G.L. c. 123, § 1 applies in both G.L. c. 123, § 35 and §§ 7 and 8 civil commitments).

The evidence at the hearing consisted of the testimony of Jay Kuten, M.D. ("Kuten"), a board certified psychiatrist who was C.B.'s attending psychiatrist while C.B. was at the facility. He testified of his personal observations of C.B. at the facility, his review of the medical records of the facility, and his conversations with C.B.'s mother. Dr. Kuten opined that although C.B. was initially extremely frightened, anxious, suspicious, and had memory deficits, he had improved. He diagnosed C.B. as having suffered an acute psychotic episode that may have been the first instance of acute early schizophrenia, but a final diagnosis required a thirty-day period of observation. He testified that the antipsychotic medication C.B. had received at the facility had resolved the current episode. C.B.'s activities of daily living at the time of the hearing were "hardly impaired at all" according to Dr. Kuten. In his opinion, more time was needed to determine whether C.B. was mentally ill. Dr. Kuten did not agree with the diagnosis of toxic psychosis set forth on the petition and did not

Page 33

believe that diagnosis was accurate at the time of the hearing. His concern was that if the respondent stopped taking his medication, "he's possibly likely to" "regress." Ultimately, however, he was not able to provide a definitive diagnosis that C.B. suffered from mental illness. At the hearing, the court also heard the testimony of C.B.'s mother who reported no prior history of the delusional symptoms that resulted in this hospital admission. She testified to strong family support and that, based on her observations, C.B. had been suffering anxiety or even a panic attack, but that he was not paranoid. C.B.'s live-in girlfriend also testified that C.B. was "back to himself" at the time of the hearing.

The evidence at the hearing did not support the finding beyond a reasonable doubt that C.B. suffered from mental illness. Even if C.B. were to be found mentally ill, the evidence was insufficient to find beyond a reasonable doubt that involuntary commitment was necessary to prevent a likelihood of serious harm. [Note 6]

The order of commitment is vacated.