2021 Mass. App. Div. 37

July 24, 2020 - May 21, 2021

Appellate Division Southern District

Court Below: District Court, Brockton Division

Present: Finigan, Pino & Campbell, JJ.

Practice, Civil, Commitment, Assaultive behavior.

Edward J. O'Donnell for the petitioner.

Lois M. Farmer for the respondent.

CAMPBELL, J. This is an appeal of S.S.'s civil commitment pursuant to G.L. c. 123, §§ 7 and 8 to a Department of Mental Health ("DMH") facility. S.S. also appeals the court's finding of incompetency and its authorization of medical treatment pursuant to G.L. c. 123, § 8B. For the reasons set forth below, we affirm the order of commitment, the finding of incompetency, and the authorization of medical treatment.

Prior procedural history. On March 20, 2019, Bridgewater State Hospital ("BSH") filed a petition pursuant to G.L. c. 123, §§ 7, 8, and 8B seeking S.S.'s recommitment, a finding of incompetency, and the approval of a medical treatment plan. From that date forward, numerous continuances, at the request of the parties, were granted.

On June 5 and July 10, 2019, a hearing was held. On July 10, 2019, S.S. was committed to a DMH facility for one year. [Note 1] Additionally, an order adjudicating S.S. incapable of making informed medical treatment decisions was issued and a medical treatment plan was approved. [Note 2]

On July 16, 2019, S.S. filed a timely notice of appeal. [Note 3]

Initially, S.S. was committed to BSH for evaluation in August, 2017. He came to BSH pursuant to G.L. c. 123, §18(a) [Note 4] from Hampden County Correctional Center. At the time, S.S. faced criminal charges for two counts of possession with intent to distribute a class A substance in Hampden Superior Court. Similar charges were pending against him in Springfield District Court. At the conclusion of S.S.'s evaluation, he was found to be in need of further hospitalization and treatment. He was committed to BSH pursuant to G.L. c. 123, § 18. The drug charges S.S. faced having been resolved, his further commitment was being sought pursuant to G.L. c. 123,

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§§ 7 and 8.

Evidence offered on issue of commitment pursuant to G.L. c. 123, §§ 7 and 8. Jessica Brunner ("Brunner"), a social services professional with a master's degree who works at BSH was assigned in March, 2019 to perform S.S.'s recommitment evaluation. She was familiar with S.S., having worked on the unit where he was assigned. At the time of his recommitment hearing, S.S. faced new criminal charges for multiple counts of assault andbattery on a correctional facility employee. [Note 5]

According to Brunner, S.S. suffered from schizophrenia with catatonia. As to manifestations of his illness, "historically the symptoms that he has manifested are command auditory hallucinations, which tell him to engage in assaultive behavior; disorganized thinking; psychomotor agitation; hyperkinetic movements; catatonia; hyper-religiosity; some agitation, irritability." While at the time of this hearing, "most of [S.S.'s] symptoms have remitted," [Note 6] she found that "at this time [June/July, 2019] what we're seeing are some lingering negative symptoms. So some diminished emotional expression or flat affect. There's also some mild paranoia that I noted about the other patients on the unit."

During his period of commitment to BSH, S.S. assaulted and battered patients and staff on more than 110 occasions. His insight in terms of understanding his mental illness and need for treatment was minimal. As such, his risk of relapse was quite high. Brunner opined that failure to continue to hospitalize S.S. would create a likelihood of serious harm to others. [Note 7]

While S.S.'s last physical assault and battery was about four or five months earlier, more recently, he discontinued taking all his medication, creating a high potential of relapse. When S.S. was asked in March and June about assaulting others, he responded that "he felt that the people he was assaulting at the time were either people that he knew from the community, undercover police officers, people that he had had issues with in the hospital, things of that nature." Brunner opined that symptoms leading to assaultive behavior could reemerge in the very near future.

Dr. Mark Rudolph ("Rudolph"), S.S.'s independent medical expert ("IME"), agreed that S.S. suffered from an underlying unspecified psychotic disorder and at some point his symptoms would reemerge. But he did not believe S.S. was "imminently dangerous" and in need of hospitalization. While S.S. remained symptomatic in April, 2019, [Note 8] currently, he was stable. Dr. Rudolph continued, "I did say he would be safe and suitable for the Department of Mental Health. And it is my understanding that he is agreeing to -- he's not contesting the commitment part. He's just

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contesting the strict security part." Dr. Rudolph added, "I think I said that he can get any sort of treatment he does need at the Department of Mental Health facility. And he also has expressed on multiple occasions with me a willingness to resume taking medications if and when symptoms reoccurred. So he doesn't deny the possibility that he's got some mental illness. He's saying, look, I will take medication if I start getting symptomatic again."

While Dr. Rudolph indicated S.S.'s condition was stable, he agreed that in February, 2019, S.S. punched a fire box. In April, 2019, S.S. habitually poured water on his head from a water bottle to wash away thoughts and impulses to hit others. In May, 2019, S.S. told a staff member at BSH that he made a movie and a rap song and that he was now rich and was going to marry the staff member's sister and buy her a house. Additionally, toward the end of May, 2019, S.S. moved "to a therapeutic squeeze bottle [Note 9] instead of the water bottle every day because it calmed him down as he got those thoughts and impulses [to hit others]."

The judge found there was no dispute between the experts that S.S. was suffering from a mental illness as defined by the statute and regulations. He credited the testimony that pouring water over his head to drive away impulses to assault others and using a squeeze ball to calm thoughts and impulses to hit others, with S.S.'s history of assaultive behavior, met the standard for hospitalization. He found that given the improvements S.S. made in June and July of 2019, S.S. could be managed in a DMH facility. Therefore, while he ordered commitment to a DMH facility, he found that BSH did not meet its burden to require S.S.'s strict confinement to BSH.

Additional evidence offered as to competency and medical treatment plan pursuant to G.L. c. 123, § 8B. At the hearing on BSH's request for substituted judgment and a medication plan, [Note 10] Dr. Matthew Lahaie ("Lahaie") and Dr. Rudolph presented evidence. As to the need for substituted judgment, the court agreed with Dr. Lahaie, S.S.'s treating psychiatrist, that S.S. had been so psychotic and disorganized that it led to his ongoing limited insight into the extent and severity of his mental illness. As such, he was not capable of providing informed consent. While Dr. Lahaie would use a more restrictive approach to medication, he agreed with Dr. Rudolph that a reasonable plan could involve the administration of antipsychotic medication prophylactically. Both doctors agreed S.S. would not want to remain unmedicated if symptoms reemerged.

The judge filled out a five-page Competency & Substituted Judgment Worksheet with his findings. [Note 11]

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Analysis. "We review the trial court's findings of fact for clear error, [Note 12] 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). See also Matter of S.L., 2020 Mass. App. Div. 64, 66; Matter of W.C., 2019 Mass. App. Div. 31.

Pursuant to G.L. c. 123, §8(a), "After a hearing, . . . the district court . . . shall not order the commitment of a person at a facility or shall not renew such order unless it finds after a hearing that (1) such person is mentally ill, [Note 13] and (2) the discharge of such person from a facility would create a likelihood of serious harm." Id. See Matter of J.P., 486 Mass. 117, 118 (2020). See also Matter of K.M., 2019 Mass. App. Div. 1, 2, citing G.L. c. 123, §§ 7 and 8, and Matter of G.P., 473 Mass. 112 (2015).

"The phrase 'likelihood of serious harm' is statutorily defined as '(1) a substantial risk of physical harm to the person himself [or herself] 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

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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., supra at 118-119, quoting G.L. c. 123, § 1. "The harm must be shown to be imminent, that is, it will materialize 'in days or weeks rather than in months.'" Id. at 119, quoting Matter of G.P., 473 Mass. 112, 128 (2015). [Note 14]

S.S. was committed to BSH in August of 2017; since then, he committed over 110 assault and batteries upon patients and staff. While it is true that, at the time of his hearing, he had not committed an assault and battery in a few months, S.S. continued to show signs of an imminent threat of assaultive behavior. The judge credited the testimony that S.S.'s recent actions in pouring water over his head to drive away impulses to assault and batter others and his use of a squeeze ball to calm thoughts and impulses to hit others, with S.S.'s history of assaultive behavior, met the standard of a substantial risk of physical harm to others that was imminent.

The current risk of serious harm is in part dependent on the severity of anticipated harm. Cf. Commonwealth v. Nassar, 380 Mass. 908, 913-914 (1980) (where defendants in September, 1977 abandoned infant son as instructed by God leading to his death, seeking their involuntary commitment in May, 1979 was appropriate under second prong of G.L. c. 123, §1). S.S. committed over 110 assault and batteries on staff and patients at BSH in less than 18 months. With recent impulses to assault and hit others still prevalent, there was a current risk of serious harm that was severe in nature. S.S. clearly continued to show signs of lack of impulse control in the month leading up to his hearing. Further, at the time of his hearing, S.S. was facing multiple counts of assault and battery on a correction officer in three separate courts. See Commonwealth v. DelVerde, 401 Mass. 447 (1988) (it was proper for judge ordering defendant's commitment to BSH to use evidence of past incidents of assaultive behavior at county house of correction, including spitting, being physically abusive to others, banging head against wall, and biting guard, as evidence of need for hospital commitment pursuant to G.L. c. 123, § 16(b)). Contrast Matter of F.P., 2020 Mass. App. Div. 48, 51 (where respondent yelled and screamed but father testified he had never been violent, insufficient evidence); Matter of S.J., 2018 Mass. App. Div. 128, 128-129 (where respondent had no history of homicidal behavior, had committed no act of physical violence or threatened anyone and had expressed no desire to harm anyone at hospital or in community, no proof of conduct reflecting substantial level of force and intensity). S.S. told Brunner in June of 2019 that he committed some assault and batteries because he believed the individuals to be undercover police officers. With three pending cases for multiple counts of assault and battery on correction officers, a return to a house of correction to await his trials and failure to retain S.S. in a DMH facility added to the substantial risk of physical harm S.S. presented to others. [Note 15]

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Turning to the issue of competency and a medication treatment plan, we note that "a facility may petition a District Court to adjudicate the patient incapable of making informed decisions about medical treatment and, "by an adjudication ofsubstituted judgment," to authorize treatment with antipsychotic medications. Matter of D.B., 2020 Mass. App. Div. 74, quoting G.L. c. 123, § 8B(a). The judge filled out a five-page Competency & Substituted Judgment Worksheet with detailed findings. He did a thorough analysis amongst other things finding that S.S. had limited insight into his mental illness and was incapable of providing informed consent. Those findings are consistent with the testimony of Dr. Lahaie. Further, both experts indicated a medication plan involving prophylactic antipsychotics was a reasonable one. There is no basis to find the judge's decision and findings made pursuant to G.L. c. 123, § 8B were "against the weight of the evidence." Matter of M.S., 2019 Mass. App. Div. 154, 161. See Matter of P.K., 2019 Mass. App. Div. 87, 89. See also Matter of K.J., 2019 Mass. App. Div. 174, 179 (nothing in record would lead to overturning judge's carefully considered findings).

For the foregoing reasons, we affirm the order of commitment, finding of incompetency, and medication treatment plan.

So ordered.


[Note 1] This was a recommitment hearing, which is why the period of commitment is for one year instead of six months. See G.L. c. 123, §8(d).

[Note 2] See G.L. c. 123, §8B.

[Note 3] A subsequent motion to amend the notice of appeal was allowed. The amendment reflected S.S.'s commitment to a DMH facility instead of to Bridgewater State Hospital.

[Note 4] General Laws c. 123, §18(a) allows a person in charge of a place of detention, who believes that a person confined therein is in need of hospitalization by reason of mental illness, to seek a court order of commitment for a thirty-day evaluation. If it is determined that the person meets the criteria for commitment, a petition maybe filed pursuant to G.L. c.123, § 18 for an initial commitment of six months with subsequent commitments for one year.

[Note 5] One of two counts pending out of Brockton District Court involved S.S.'s alleged use of bodily fluids against a correction officer. S.S.also faced pending assault and battery on a correction officer charges out of Greenfield and Palmer District Courts.

[Note 6] At one time, S.S. thought medication was contributing to his psychosis. Dr. Mark Rudolph, S.S.'s independent medical expert, agreed that S.S. has a history of auditory hallucinations, visual hallucinations, suicidal ideations, and homicidal ideations but found a lack of evidence that he was suffering from those currently.

[Note 7] Brunner further opined that S.S. was in need of the strict confines of BSH. The judge did not agree.

[Note 8] Dr. Rudolph first met S.S. in April of 2019. He stated, "At that time my opinion was that he continued to require commitment at Bridgewater State Hospital."

[Note 9] Squeeze bottle is elsewhere referred to as a squeeze ball in the record.

[Note 10] As to a medication treatment plan, it was Dr. Rudolph, S.S.'s own IME, who advocated for prophylactic, low-dose antipsychotic medications.

[Note 11] Counsel for S.S. takes issue with the fact that the judge checked the box saying S.S. refused treatment when the testimony was, if necessary, he would take medication. If it was error for the judge to have checked that box, it was harmless. On the Competency & Substituted Judgment Worksheet, the judge did not just check off boxes; he wrote very detailed findings regarding S.S.'s mental illness, his lack of insight, and his past side effects to medication. The judge balanced the testimony of Dr. Lahaie and Dr. Rudolph, ultimately adopting S.S.'s expert's position that S.S. would want to take prophylactic medication if it would prevent him from returning to a psychotic state. In doing so, the judge took into consideration S.S.'s desires as conveyed to the judge by his own expert. Cf. Guardianship of Linda, 401 Mass. 783, 785 (1988), quoting Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 500 (1983) ("A substituted-judgment decision is distinct from a decision by doctors as to what is medically in the 'best interests' of the patient. ... '[T]he goal is to determine with as much accuracy as possible the wants and needs of the individual involved.'"). The inquiry, then, is directed to discovering "what the incompetent individual would do if competent" and is a "subjective rather than an objective determination." Guardianship of Roe, 383 Mass. 415, 435, 444 (1981).

[Note 12] "Issues of credibility and the weight of the evidence are typically left to the trial judge." Matter of D.T., 2019 Mass. App. Div. 54, citing Tri-County Contrs. v. Diamond Collision Specialists, Inc., 2014 Mass. App. Div. 89, 92. See also Matter of S.J., 2018 Mass. App. Div. 128, 129.

[Note 13] Mental illness for the purpose of involuntary commitment is defined as "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, but shall not include intellectual or developmental disabilities, autism spectrum disorder, traumatic brain injury or psychiatric or behavioral disorders or symptoms due to another medical condition as provided in the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association, or except as provided in 104 CMR 27.18, alcohol and substance use disorders; provided however, that the presence of such conditions co-occurring with a mental illness shall not disqualify a person who otherwise meets the criteria for admission to a mental health facility." 104 Code Mass. Regs. §27.05. The judge found there was no dispute between the experts that S.S. was suffering from a mental illness as defined by the statute and regulations.

[Note 14] See also Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101 (2000) (court must find risk of serious harm currently exists).

[Note 15] Dr. Rudolph, S.S.'s IME, told the judge as to S.S., "[H]e's not contesting the commitment part. He's just contesting the strict security part." As such, S.S. himself acknowledged his need for continued hospitalization and his lack of desire to return to a house of correction setting.