IN THE MATTER OF A.B.

This case comes before us on appeal from decisions involuntarily committing the Appellant/Respondent A.B. to Solomon Carter Fuller Mental Health Center (Fuller) pursuant to M.G.L. c. 123, §§7 & 8 and authorizing medical treatment pursuant to M.G.L. c. 123, §8B.

FACTS

Due to an underlying criminal matter, A.B. was initially sent to the Fuller on December 30, 2020, pursuant to G.L. c. 123, §15B. Following an evaluation, the court found A.B. was competent to stand trial. On February 12, 2021, the Fuller petitioned the Central Division of the Boston Municipal Court to commit A.B. under G.L. c. 123, §§7 & 8 and to authorize medical treatment under G.L. c. 123, §8B. A hearing was held on March 5, 2021 (Sinnott, E., J., presiding). The judge ordered A.B. involuntarily committed to the Fuller for a period not to exceed six months, which period would expire on September 4, 2021. The court also found that A.B. was incapable of making informed medical decisions and authorized a substituted judgment treatment plan including antipsychotic medications. A.B. filed a timely notice of appeal. Although A.B. was released from the Fuller before this appeal was heard (on or about September 3, 2021), and thus the issue of relief is arguably moot, the court nevertheless addresses the issues raised here as they are "of public importance, capable of repetition, yet evading review." Commonwealth v. McCulloch, 450 Mass. 483, 487 (2008). This appeal raises the issue whether the evidence was sufficient as a matter of law regarding the commitment and the treatment order.

Dr. Lushia Liu was A.B's treating psychiatrist at the Fuller. She testified that A.B. suffered from bipolar disorder with psychotic features with symptoms of paranoia, delusions, low frustration tolerance, mood lability and mood dysregulation. He was easily agitated, often provoking others into verbal arguments and, on one occasion, a physical fight. A.B. felt others were following him and believed that the news media were talking about him, referring to his transgender status, which made him feel anxious and fearful.

At the Fuller, A.B. engaged in aggressive and threatening behaviors with other patients and staff. On January 17, 2021, A.B. was verbally abusive to peers and staff. On January 18th and 23rd, A.B. again initiated verbal assaults, which included slurs against his peers and staff regarding their sexuality. On January 24, 2021, he poured coffee on chairs. On January 30, 2021, without provocation, he poured coffee on a peer who then punched A.B. in the face.

Two or three times a week A.B. would provoke other patients to attack him. On one occasion with his treatment team, he pushed a table, lay on the ground and screamed that he had the right to be transgender, not take his medication and do

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whatever he wanted. Based on A.B.'s behavior, Dr. Lui concluded that while he was stable in an inpatient unit with professional supervision, he could not survive in the community. In the year prior to his admission to the Fuller, A.B. had five psychiatric hospitalizations often because he was unable to live in a shelter. He had threatened to kill his sister and her dog, violated a restraining order, and engaged in acting out behavior, all which Dr. Lui attributed to A.B.'s mental illness.

Finally, Dr. Lui opined that a mentally ill A.B. posed a very substantial risk of harm to himself because of his inability to care for himself. His low frustration tolerance, paranoia and lack of insight into the real world would lead to physical confrontations. Moreover, A.B. denied any mental illness and stated that he would not take his medications if discharged.

Based upon the evidence presented during the hearing, the court found that: 1) A.B. suffers from a mental illness; 2) that a failure to retain him in a facility would create a likelihood of serious harm to him and others; and 3) there was no less restrictive alternative to continued hospitalization.

Following her order of commitment, the judge considered the Fuller's G.L. c. 123, §8B petition. Dr. Liu testified again, and the appellant testified on his own behalf. The judge allowed the §8B petition authorizing treatment and adopted the proposed medical treatment plan, as amended by the parties regarding the use of Risperdal and Haldol.

DISCUSSION

To prevail on a commitment hearing under G.L. c. 123, §§ 7 and 8, the petitioner is required to prove beyond a reasonable doubt that the respondent is: 1) mentally ill; 2) the discharge of the respondent from the facility will create a "likelihood of serious harm;" and 3) there is no less restrictive alternative to hospitalization. Matter of J.D., 97 Mass. App. Ct. 15, 18 (2020). In this case, the Fuller alleged that A.B. presented a risk of harm based on the third prong of "likelihood of serious harm" in G.L. c. 123, § 1.

To prove the third prong, the Fuller was required to produce evidence that there was 11a 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. 11 G .L. c. 123, § 1. For this prong to be met, "the degree of risk ... is greater than that required by the ... 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. 11 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. 11 Id. at 129. This Court concludes that the evidence presented was sufficient to support the court's order of commitment with respect to the third prong. See Commonwealth v. Lattimore, 378 Mass. 671, 676-677 (1979).

The testimony of Dr. Liu supported the judge's finding that the Fuller had proven the third prong beyond a reasonable doubt. As Dr. Liu testified, A.B. was easily agitated. He experienced delusions and paranoia that led him to believe people were following him and that the news media was ridiculing him because of his transgender status. He engaged in aggressive and threatening behaviors, including pouring

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coffee on a peer, which caused the peer to punch A.B. in the face. Two to three times a week he verbally provoked other patients to attack him.

Given that those provocations happened in the hospital, his peers were undoubtedly deterred by staff. There would be no guaranteed intervention if such provocations were made outside the hospital. Furthermore, A.B.'s five psychiatric hospitalizations within the prior year, while living in the shelter system, underscore his inability to protect himself in the community.

Moreover, the judge made specific findings that A.B. was unable to protect himself outside of a secure hospital setting, noting that while at the Fuller he had to be redirected three to four times a week by staff to avoid confrontations with others. When A.B. made eye contact with another patient, he would feel disrespected, get agitated and raise his hands. The judge also found that the nursing staff witnessed A.B. using verbally aggressive behavior including slurs about others' sexuality. A.B. denied any mental illness and indicated that he would not utilize services in the community leaving him far more susceptible to attack from those he encounters. For all these reasons, the court determined that A.B.'s judgment was so affected by his mental illness that he posed a very substantial risk of harm to himself by his inability to protect himself in the community.

Therefore, this Court concludes that the evidence presented was sufficient to support the court's order of commitment and in doing so affirms the trial court's authorization to administer medical treatment pursuant to G.L. c. 123, §8B.

CONCLUSION

For the reasons stated above, this Court AFFIRMS the orders of the trial court.