IN THE MATTER OF V.R.

FINIGAN, J. The respondent ("V.R.") appeals from a commitment order pursuant to G.L. c. 123, §§ 7 and 8 and an accompanying order to administer antipsychotic medication to V.R. under G.L. c. 123, § 8B. In his appeal, V.R. asserts (1) there was insufficient evidence to support an order of commitment and (2) he was denied effective assistance of counsel. For the reasons set forth below, we vacate the orders.

Background. On March 2, 2020, Southcoast Behavioral Health, a psychiatric hospital (the "petitioner" or "hospital"), filed a petition for civil commitment of V.R. pursuant to G.L. c. 123, §§ 7 and 8, and an accompanying order to administer antipsychotic medication to V.R. under G.L. c. 123, § 8B. V.R. had arrived at the hospital five days earlier and had remained on a conditional voluntary basis under G.L. c. 123, §§ 10 and 11, having been transferred from the emergency room of Falmouth Hospital. After a hearing on March 13, 2020 before a District Court judge, both petitions were allowed.

The petitioner's sole witness was Dr. Michael Rater ("Rater"), who had served as V.R.'s attending physician since V.R.'s arrival at the hospital. Dr. Rater, whose qualifications were stipulated to, testified he saw V.R. daily during the work week and on every other weekend. Prior to the hearing, Dr. Rater reviewed medical records from Falmouth Hospital concerning V.R.'s visit to the emergency room. While Dr. Rater testified V.R. had a history of mental illness throughout his adult life, he did not review the records of any other provider. V.R. provided the contact information of a friend, who Dr. Rater attempted to contact by phone on one occasion without success.

According to Dr. Rater, the medical records suggested V.R. had recently relocated from the Lowell area to live with a friend on Cape Cod. An entity described only as "Vinfen" in the record, presumably a social services organization that had worked with V.R. in the past, had concerns about V.R. and arranged for a well-being check. That well-being check evidently led to V.R.'s evaluation at Falmouth Hospital and transfer to the petitioner.

During his direct testimony, Dr. Rater testified without objection as to the contents of the Falmouth Hospital records. The records reflected, according to Dr. Rater, that V.R. had symptoms of psychosis and was delusional -- harboring beliefs that he was Whitey Bulger's son, had invented medical marijuana, and suffered from scabies. The hospital records also contained a reference to V.R. having consumed rotten food.

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Dr. Rater's own observations of V.R. were similar. V.R. continued to have delusions and did not believe he needed antipsychotic medication. In Dr. Rater's view, the scabs on V.R.'s body appeared to be small nicks or cuts caused by day-to-day living and did not require medical treatment. Dr. Rater expressed concern that V.R. indicated he would treat the cuts with lighter fluid, although there was no evidence V.R. had done so in the past. According to Dr. Rater, V.R. also used crutches and was heavily dependent upon them, which could lead to neuropathy in the armpit area. Dr. Rater expressed doubt as to whether V.R. had a condition that required crutches. V.R. also suffered from glaucoma and hyperlipidemia that he treated with medication when prompted by staff.

On cross-examination, Dr. Rater admitted V.R.'s alleged consumption of rotten food had not been observed by anyone at Falmouth Hospital. Dr. Rater also confirmed that no further efforts had been made by staff at the petitioner to explore V.R.'s existing living arrangement beyond the sole call placed to his friend. V.R. testified in his own behalf. While rambling at times, V.R. claimed he did have friends he could live with and denied ever having eaten rotten food.

Analysis. Order of commitment. Upon a finding that the failure to hospitalize an individual would create a likelihood of serious harm by reason of mental illness, a judge may order the commitment of the individual for a period of six months. G.L. c. 123, § 8. The standard of proof is proof beyond a reasonable doubt. Guardianship of Roe, 383 Mass. 415, 423-424 (1981).

There are three prongs to the statutory definition of a "likelihood of serious harm," only the third of which is relevant in this case: "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" (emphasis added). G.L. c. 123, § 1.

In Matter of G.P., 473 Mass. 112 (2015), the Supreme Judicial Court noted that with regard to the third prong, the harm that is to be considered is "physical impairment or injury" to the respondent and a "very substantial risk" of that type of harm is shown by evidence that the respondent's judgment is so adversely affected by his mental illness that he cannot protect himself from physical harm, and that the respondent's community does not include any reasonably available external source of adequate protection. Id. at 128-129. The focus in this context is on the respondent's degree of impaired judgment due to his illness; the degree of likelihood that he will sustain or inflict injury; and the inability of any other person or persons in the respondent's community to provide him protection against these risks. Id. at 129.

Here, the evidence was insufficient to establish beyond a reasonable doubt that V.R.'s mental illness would place him at a very substantial risk of physical impairment or injury were he returned to the community. While well intentioned, it was Vinfen's request for a well-being check that led to V.R.'s admission to Falmouth Hospital and subsequent transfer to the petitioner. By all accounts, V.R. arrived healthy, albeit delusional, but apparently had a place to live. As noted by the Court in Matter of G.P., under the third prong, the standard is different than proof that an individual is unable to sustain himself or herself even marginally in society. Id. at 128.

According to Dr. Rater, V.R.'s existing medical concerns were glaucoma and hyperlipidemia (high cholesterol) for which he was accepting treatment. His only

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physical maladies were described by the hospital's witness as minor cuts. While V.R. displayed apparent confusion as to the source of the cuts and how they should be treated, Dr. Rater testified they did not require medical treatment. Cf. Matter of D.K., 95 Mass. App. Ct. 95, 101-102 (2019) (affirming finding of imminent and very substantial risk of physical impairment or injury where conditions were same as had been present when patient was discovered in life-threatening condition two years prior). As to other delusions, Dr. Rater testified only that V.R. claimed to be Whitey Bulger's son and that he had invented medical marijuana, benign claims. Beyond that, Dr. Rater testified that V.R. was pleasant, engaging with staff and fellow patients. Cf. Matter of P.R., 488 Mass. 136, 138 (2021) (patient with chronic obstructive pulmonary disease increased flow from his oxygen tank to what psychiatrist deemed "extremely harmful" levels). While the evidence presented suggested perhaps that V.R. would struggle to sustain himself "marginally in society," that is different than the level of proof necessary to involuntarily commit V.R., in light of the "massive curtailment of liberty" such a commitment represents. Commonwealth v. Nassar, 380 Mass. 908, 917 (1980) (further citations omitted). For all of these reasons, the trial court's order of commitment is vacated.

Order of treatment. A commitment order is a "condition precedent" to obtaining an order of substituted judgment to treat a patient with antipsychotic medications. Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 106-107 (2000). Because we vacate the order of commitment, we likewise set aside the treatment order.

Likewise, because the commitment order is vacated, we need not reach V.R.'s ineffective assistance of counsel claims.