IN THE MATTER OF R.S.

STARK, P.J. The respondent appeals from a commitment order pursuant to G.L. c. 123, §§ 7 and 8, arguing that (1) there was insufficient evidence to support the order of commitment; and (2) there was insufficient evidence to support the order authorizing the involuntarily administration of psychiatric medication pursuant to G.L. c. 123, § 8B. For the reasons set forth below, we vacate the orders.

Background. On March 4, 2020, the Westborough Behavioral Healthcare Hospital filed a petition for civil commitment pursuant to G.L. c. 123, §§ 7 and 8, and a hearing was held on March 18, 2020. [Note 2]

The petitioner's sole witness was Dr. Daryl Blaney ("Blaney"), the respondent's attending psychiatrist. Dr. Blaney was qualified as an expert witness after testifying that he had testified in approximately fifty civil commitment hearings. At the time of the hearing, Dr. Blaney had known the respondent for approximately eight months, and she had been at the hospital for six months consecutively. The respondent has schizoaffective disorder, which causes her to vacillate her moods between very happy and very unhappy and irritable, often quite rapidly. The doctor testified that the respondent exhibited delusional thinking as a result of her mental illness.

The respondent had been discharged from the hospital on a prior commitment in August or September of 2019 to go to a less restrictive setting at a respite facility, and within twenty-four hours she was readmitted to the hospital because she left that facility. The respondent did not require medical care when she was readmitted to the hospital after her twenty-four hour period of release -- she was not malnourished or suffering from hypothermia or any other condition. Moreover, she was properly groomed and appropriately dressed for the daytime given the weather.

The doctor opined that psychotic disorders such as schizoaffective disorder are challenging to treat, and that often "they are marginally responsive to treatment."

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He testified that the respondent's condition did not improve during her "first commitment," although he did not say when or where the "first commitment" was other than the reference to her being discharged from a commitment in August or September of 2019. Dr. Blaney further stated that "for most cases [discharge] reflects in a reduction of symptoms to the point that they can be sustained in the community."

The doctor testified that the respondent would continue to demonstrate an inability to care for herself in the community if she was released from the hospital. The doctor had concerns that the respondent's behavior during the twenty-four hours she was discharged in August or September of 2019 would "reemerge if she was ordered discharged today." While the trial judge struck most of the evidence regarding the specifics of that behavior, he admitted into evidence the doctor's testimony that the respondent did not avail herself of shelter during the twenty-four hour period she had been released. Dr. Blaney opined that the respondent demonstrated poor insight and judgment based on prior attempts to stabilize her in the community and his daily observations of her during her hospitalization where she had not made improvement with her insight and judgment regarding deficits.

The respondent testified at the hearing as well. The respondent testified that she had been kidnaped from a program to the hospital and then released a month later to go to Community Healthlink. The respondent testified that the program told her she could leave, so she did. She spent the night at a friend's house and then went to her parents' house in the morning only to be admitted back to the hospital. The respondent made various statements about her lack of freedom at the hospital and her view that "[t]hey try to medicate me for no reason." While the respondent testified that she was kidnaped, robbed, raped, beaten, and tortured at the hospital, it does not appear that the hearing judge credited this testimony. The respondent testified that she would remain on her medication if she was discharged, that she had income from social security disability benefits and supplemental security income benefits, and that she would go back to Worcester to either a respite facility or hotel if discharged.

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 a person's

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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 here. 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.

In this case, there was insufficient evidence to sustain the petitioner's burden that prong 3 was met beyond a reasonable doubt. The doctor's opinion that the respondent would continue to demonstrate an inability to care for herself in the community was based on (1) prior attempts to stabilize her in the community; (2) her behavior during the twenty-four hour period in which she had been released from the hospital months prior to the hearing; and (3) Dr. Blaney's own observations of the respondent during her admission. While on its face these reasons would appear sufficient, the petitioner failed to offer enough details to support these claims. Specifically, there was no evidence regarding the particulars of prior attempts to stabilize the respondent in the community, how long ago they occurred, and what transpired when those attempts were made. As to the twenty-four hour period the doctor was concerned about, the only admissible evidence about what happened was that the respondent left the respite facility and failed to seek shelter. Finally, the petitioner failed to elicit testimony regarding what specific observations the doctor made of the respondent that formed his opinion that the respondent had not made any improvement regarding her insight and judgment.

There was no evidence the respondent was not eating, bathing, sleeping, or caring for medical issues. There was no indication that the respondent put herself in harm's way during her twenty-four hour period of release from the hospital. She was not malnourished, she was dressed appropriately during the day for the weather, and she did not necessitate medical care when she was readmitted to the hospital. Yes, the respondent testified in a manner that exhibited her mental illness, but that is not enough -- her testimony did not indicate that she could not care for herself in the community. To the contrary, she testified she would remain on her medication if she was discharged, that she had income from social security disability benefits and supplemental security income benefits, and that she would go back to Worcester to either a respite facility or hotel if she was discharged.

The petitioner's burden to produce evidence beyond a reasonable doubt that there was a very substantial risk of physical impairment or injury to the respondent as manifested by evidence that her judgment was so affected that she was unable to

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protect herself in the community and that reasonable provision for her protection was not available in the community -- a standard that requires a showing of a greater degree of risk than the other two prongs and a more important consideration of imminence -- was not met here. Contrast Matter of D.K., 95 Mass. App. Ct. 95, 101 (2019) (affirming an involuntary commitment order where the respondent "presently was experiencing thought and perceptual disturbances, believed she was being persecuted, was responding inappropriately to internal stimuli, and was unaware of her diagnosis and need for treatment. [Respondent] was refusing psychiatric treatment and was not bathing or changing her clothes, even though she was offered assistance at least ten times during the course of her two-month stay at [the facility] prior to the hearing.").

For all of the reasons stated herein, the commitment order and the treatment order are vacated.