2021 Mass. App. Div. 50

November 8, 2019 - June 30, 2021

Appellate Division Southern District

Court Below: District Court, Brockton Division

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

Practice, Civil, Incompetency, Medical treatment.

Caroline M. Sawyer for the petitioner.

Steven A. Ciulla for the respondent.

CAMPBELL, J. In mental health proceedings, appeals generally involve challenges to commitment orders [Note 1] or to commitment orders and court-authorized treatment plans. [Note 2] Here, the appeal of the respondent, J.P., relates solely to the sufficiency of the evidence supporting the court's finding pursuant to G.L. c. 123, §8B related to competency. The petitioner, Bridgewater State Hospital ("BSH"), contends the issues raised by J.P. are moot because his treatment order expired. As we recently found in Matter of W.M., 2021 Mass. App. Div. 17, we hold that review of an expired G.L. c. 123, §8B medical treatment order standing alone is subject to review by this Appellate Division. [Note 3] Further, we hold that there was no error in the hearing judge's finding of incompetency and that the involuntary treatment order was not in error.

On November 22, 2017, BSH filed a petition for J.P.'s commitment pursuant to G.L. c. 123, § 18(a). By agreement of the parties, the hearing on the petition was postponed. On January 9, 2018, J.P. waived his right to a hearing on the commitment petition. However, J.P. was not committed until January 31, 2018, when his waiver of a commitment hearing was formally submitted to the court. J.P.'s commitment was for a six-month period ending on August 1, 2018.

On November 30, 2017, BSH filed a petition pursuant to G.L. c. 123, §8B for "Determination of Incompetency and for Authorization of Medical Treatment for Mental Illness." By agreement and subsequently at the request of J.P. or by order of the court, [Note 4] the hearing was postponed.

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On May 4, 2018, BSH filed a motion to amend J.P.'s commitment order, which originally was issued pursuant to G.L. c. 123, § 18(a) to an order pursuant to G.L. c. 123, §§ 7 and 8. BSH also requested that the court proceed on the G.L. c. 123, § 8B petition. BSH did this because it was seeking to transfer J.P. from BSH to a facility operated by the Department of Mental Health ("DMH"). J.P. was at a point where he no longer required BSH's strict security, but according to counsel for BSH, the hospital did not want to transfer J.P. to a DMH facility without a court-authorized treatment plan in place.

On May 9, 2018, over the objection of J.P.'s counsel, [Note 5] the hearing judge commenced proceedings on BSH's G.L. c. 123, § 8B petition. The court heard the testimony of Dr. Kyle Walker ("Walker"), J.P.'s treating psychiatrist. He opined that J.P. suffered from schizophrenia. J.P. lacked insight into his illness and its symptoms. Further, J.P. required antipsychotic medication for treatment.

While Dr. Walker discussed the risks and benefits of treatment with J.P., J.P.'s ability to understand the benefits of treatment were "essentially nonexistent." J.P. was unable to comprehend the link between taking medication and his clinical improvement. Additionally, he failed to appreciate the consequences of a refusal to take medication.

While J.P. was taking prescribed medication, he was, in the opinion of Dr. Walker, more passively accepting it than taking it and not because he understood its benefits. As such, Dr. Walker opined J.P. did not have the ability to understand and process the information necessary to provide informed consent for treatment. As to substituted judgment, J.P.'s stated preference was to continue to take the medication Zyprexa in low doses. There was nothing associated with J.P.'s religious beliefs or family that would impact a proposed medication treatment plan. While there were numerous other medications, in addition to Zyprexa, on the medical treatment plan, the judge found, based upon Dr. Walker's testimony, that it would be J.P.'s desire, if competent, to accept the medication treatment plan.

After the court issued its findings pursuant to G.L. c. 123, § 8B, BSH's motion to amend the commitment order to an order entered pursuant to G.L. c. 123, §§ 7 and 8 was addressed and allowed. The court order issued pursuant to G.L. c. 123, §8B was made effective until August 1, 2018, the same scheduled expiration for J.P.'s commitment pursuant to G.L. c. 123, §§ 7 and 8.

J.P. filed an initial notice ofappeal on May 21, 2018. His notice stated that he was appealing "the Order of Authorization to Administer Medical Treatment Pursuant to G.L. c. 123 s. 8B." On June 4, 2018, J.P. filed a supplemental notice of appeal. The supplemental notice stated he was appealing on the ground "[t]hat the evidence presented at trial was insufficient as a matter of law to support the Court's finding that the Appellant lacked capacity to provide informed consent to psychiatric treatment and that it would be his substituted judgment to accept the treatment that was authorized in the Court's G.L. c. 123, § 8B order, by a heightened preponderance of the evidence." In his brief, J.P. argues only that insufficient evidence supported the court's finding related to competency.

The trial court's order issued pursuant to G.L. c. 123, § 8B expired long ago. But

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that does not end this Division's analysis and review.

It is true that "'[i]ssues 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." Matter of N.L., 476 Mass. 632, 635 (2017), quoting Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 782 (2008). Further, "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 committed 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)." Matter of W.M., supra at 19. As such, the hearing judge's G.L. c. 123, § 8B decision is properly before this Division for review.

Under G.L. c. 123, § 8B(a), the superintendent of a facility may file a petition with the District Court for a person who is the subject of a petition for commitment to "adjudicate the patient incapable of making informed decisions about proposed medical treatment [and] to authorize, by an adjudication of substituted judgment, treatment with antipsychotic medications." Under G.L. c. 123, § 8B(d), "[T]he court shall not authorize medical treatment unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan." The foregoing elements must be proved by a preponderance of the evidence, and the court must give close attention to the evidence and enter specific findings on each of the issues. See Guardianship of Jane Doe, 411 Mass. 512, 523-524 (1992).

Our review of the judge's findings is not de novo. We will not set aside a judge's findings of fact unless they are clearly erroneous. See Mass. R. Civ. P. 52(c). A finding is "clearly erroneous" only when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

Dr. Walker's testimony was clear [Note 6] and uncontroverted. [Note 7] J.P. suffered from schizophrenia. He lacked insight into his illness and its symptoms. His ability to understand the benefit of treatment was nonexistent. He failed to comprehend the link between taking his medication and his drastic clinical improvement. While J.P. was passively accepting medication, he could not understand "that he needed it or that it would help him in some way." Based upon Dr. Walker's testimony, the judge's finding of incompetency was not erroneous or "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

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would lead to overturning of judge's carefully considered findings).

Therefore, the court's order under G.L. c. 123, § 8B is affirmed.


[Note 1] See generally G.L. c. 123, §§ 7 and 8 and/or G.L. c. 123, § 18(a).

[Note 2] See G.L. c. 123, § 8B.

[Note 3] In Matter of A.H., 2018 Mass. App. Div. 13, the Appellate Division declined to review A.H.'s appeal of a G.L. c.123, § 8B order. It held that A.H.'s appeal, based solely on the sufficiency and weight of the evidence, failed to raise an issue that was capable of repetition yet evading review. Id. at 14. Further, the court held A.H. lacked a personal stake in the outcome of the appeal. Id. That decision predates the Supreme Judicial Court's decision in Matter of F.C., 479 Mass. 1029 (2018). The Court in Matter of F.C. held that "a person who has been wrongfully committed or treated involuntarily has 'a surviving interest in establishing that the orders [issued pursuant to G.L. c.123, §§ 7, 8 and 8B] 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).

[Note 4] J.P.'s requests for continuances were because of the unavailability of his independent medical examiner.

[Note 5] J.P. chose not to attend the hearing. His attorney waived his presence. J.P.'s counsel acknowledged that "[h]e [J.P.] wants to go to a DMH facility."

[Note 6] 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. 1, 11.

[Note 7] J.P. called no witnesses, and he did not attend the hearing.