IN THE MATTER OF D.R.

GINSBURG, J. This is D.R.'s appeal of his commitment, pursuant to G.L. c. 123, §§ 7 and 8, to the Worcester Recovery Center and Hospital. For the reasons below, we affirm the commitment. We review the trial court's findings of fact for clear error 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." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018), quoting Iamele v. Asselin, 444 Mass. 734, 741 (2005). "The hearing judge's explicit (or implicit) assessment of the evidence is entitled to considerable deference because 'it is the trial judge who, by virtue of his [or her] firsthand view of the presentation of evidence, is in the best position to judge the weight' and materiality of the evidence and credibility of the witnesses at trial." Matter of A.L., 2019 Mass. App. Div. 131, 133, quoting Matter of A.M., supra at 401 n.5.

Commitment hearing. In November of 2018, D.R. was admitted to Westborough Behavioral Healthcare Hospital under a psychiatric hospitalization pursuant to G.L. c. 123, §§ 7 and 8. In March of 2019, D.R. was transferred to Worcester Recovery Center and Hospital ("WRCH"). A petition for recommitment was filed by WRCH pursuant to G.L. c. 123, §§ 7 and 8, and on August 28, 2019, a hearing was held on that petition. The only witness at the hearing was Dr. Eric Huttenbach ("Huttenbach"), D.R.'s treating psychiatrist at WRCH.

Dr. Huttenbach testified that D.R., a seventy year old male, suffered from schizoaffective disorder, a substantial disorder of thought as D.R. had ongoing paranoid delusions that interrupted his train of thought. D.R. believed he was a Christ figure, he talked to God, and received messages from his cat. Nearly every night, D.R. believed he was being raped by male prostitutes, and on a daily basis, D.R. made graphic detailed complaints of sexual assaults. During his hospitalization, D.R. wrote numerous letters alleging sexual abuse at the hospital. These daily complaints created significant challenges for hospital staff to manage. D.R. also believed that it was his job to repopulate the world. D.R. reported that he had thoughts on a daily basis of needing to sexually assault others. D.R. also had delusions that caused him to be agitated and afraid, such as an ongoing delusion that his kidney had been stolen and that in the past he had broken ribs that were not diagnosed or treated properly. D.R. believed that his sperm was being stolen and harvested so that it could be used to impregnate women.

Dr. Huttenbach opined that due to D.R.'s mental illness, D.R. would pose a very substantial risk of harm to himself in the community because he could not care for

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himself or protect himself. One of D.R.'s delusions was that he was immortal, so he believed he could not be harmed or killed. This delusion interfered with D.R.'s ability or willingness to get medical treatment for physical or mental health conditions. Another delusion that interfered with D.R.'s ability to get medical care was that he believed there was an ongoing campaign to make money off of him from his health care and health insurance, and as a result, he cancelled his health insurance. According to Dr. Huttenbach, D.R. actively avoided medical providers because he believed that there was an insurance racket.

D.R. had repeatedly stopped taking psychiatric medication in the community because he did not feel he needed it. In the past, he had had a guardianship in the community that required him to take antipsychotic medication, but he had had periods when he lost contact with the Department of Mental Health ("DMH"), and the guardianship lapsed. Although during the hospitalization at WRCH the guardianship was restored, D.R. advised Dr. Huttenbach that upon release from the hospital he planned to refuse all treatment and all follow-up. At some point, D.R. told hospital staff he was willing to take a long-acting (thirty-day) shot of Abilify if he were released; however, because he had no insurance, he had no way to pay for medication in the community. According to Dr. Huttenbach, when D.R. first came to the hospital, he started taking Clozaril, which had a positive effect on his mood in that he was less agitated with less anxiety and displayed much less suspect behavior. Dr. Huttenbach opined that if D.R. stopped taking the Clozaril, he would do much worse.

Dr. Huttenbach also had concerns that D.R.'s mental illness would prevent him from seeking appropriate medical care for physical health issues. According to uncontroverted evidence at the hearing, D.R. suffered from diabetes, which if left untreated could result in serious health consequences for D.R. According to Dr. Huttenbach, D.R. did not think he had diabetes and therefore refused to get treatment or take medication for the diabetes so it was getting worse. Dr. Huttenbach opined that as a seventy year old man with untreated diabetes, D.R. was at higher risk for a stroke and a heart attack. Dr. Huttenbach also wanted D.R. to get an MRI of his head to see if there were any organic causes of his mental status, but D.R. refused. Further, D.R. had tachycardia, a heart condition, but refused to follow the recommendations of the cardiologist.

Dr. Huttenbach was also concerned that D.R. did not have any support in the community. The hospital had reached out to D.R.'s family, but his family refused to take him in. According to Dr. Huttenbach, community providers were unable to provide for D.R. because of his ongoing delusions and accusations of sexual assault. According to Dr. Huttenbach, DMH confirmed that it was not able to provide any community provider for D.R. because of his "hyper graphic" threats or beliefs that he is being raped. Further complicating matters, D.R. had refused DMH services and other potential community services. Upon discharge, the most likely outcome for D.R. would be going to a homeless shelter with no medical or psychiatric services. D.R. received about $880 a month in SSI and SSDI, and he had between $1,500 and $2,000 at the hospital. An additional concern of Dr. Huttenbach was that D.R. had a history of giving away his money so he could be at risk of being exploited in the community.

Dr. Huttenbach further opined that a locked psychiatric facility like WRCH was the least restrictive placement for D.R. in order to keep the medication ongoing.

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Discussion. "Sections 7 and 8 of G.L. c. 123 address the long-term commitment of persons with mental illness. Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility ... Section 8(a) provides that no person shall be committed unless the District Court finds after a hearing that '(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm.'" Matter of N.L., 476 Mass. 632, 634 (2017). Additionally, the petitioner must show that there is no less restrictive alternative to hospitalization. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 780 n.8 (2008), citing Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980).

Chapter 123 defines "likelihood of serious harm" in three ways: 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 order to justify commitment under these sections, the petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. Matter of G.P., 473 Mass. 112, 119 (2015), citing Abbot A. v. Commonwealth, 458 Mass. 24, 40-41 (2010).

Only the third prong is at issue in this case. To prove prong 3, the petitioner was required to produce evidence that there was "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. For this prong to be met, "the degree of risk . . . is greater than that required by the first or second prong: by definition, a 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Matter of G.P., 473 Mass. 112, 128 (2015). Moreover, "the imminence of the risk becomes a factor that is even more important to consider than it is with respect to the other two prongs." Id. at 129.

We find no error in the court's determination that D.R. met the criteria for commitment. D.R. was a seventy year old man who suffered from schizoaffective disorder. Evidence at the hearing supported the judge's finding that D.R.'s judgment was significantly affected as a result of that mental illness, and as a direct consequence, he posed a very substantial risk of harm to himself in the community. Among other significant delusions, D.R. had delusions on a daily basis that he was being sexually assaulted and repeatedly complained in graphic detail about those perceived sexual assaults. The nature of those delusions, which caused him to falsely accuse people on a daily basis of assaulting him, would interfere with his ability to survive in the community. Those delusions would interfere with him obtaining housing, food, or any other services. D.R. had no support in the community. He had nowhere to go upon release from the hospital. His family refused to take him in. He had refused services from DMH and other community providers, and as of the hearing date,

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DMH and community providers were refusing to provide housing for him due to his repeated accusations of sexual assault. While we recognize that homelessness in and of itself is an insufficient basis for civil commitment, it may be considered with other circumstances as a factor. Matter of J.P., 486 Mass. 117, 124-125 (2020).

Further, D.R. suffered from delusions that would interfere with him getting necessary medical or psychiatric care. He thought he was immortal and therefore did not think he needed to take any medication for physical or mental health problems. He had cancelled his health insurance and avoided medical providers because he believed there was an insurance racket. He was refusing medical treatment for diabetes and a heart condition. While D.R. disputes the fact that he had diabetes, the uncontroverted evidence presented at the hearing from D.R.'s treating doctor was that D.R. suffered from diabetes, and that as a result, he was at higher risk of stroke and heart attack if untreated. He had informed his treating doctor that he would not seek medical treatment in the community. We find there was sufficient evidence of D.R.'s risk of harm to himself to support the court's order of commitment and that there was no less restrictive alternative to hospitalization available for D.R.

For the foregoing reasons, we affirm the order of commitment.