IN THE MATTER OF B.S.

CUNIS, J. The appellant in this matter, B.S., was charged in the Quincy District Court with multiple crimes and sent to Bridgewater State Hospital ("BSH") for evaluation pursuant to G.L. c. 123, § 15(b). After this evaluation, on December 22, 2020, a District Court judge found B.S. not competent to stand trial. That same day, the medical director of BSH filed a petition pursuant to G.L. c. 123, § 16(b) for commitment. The judge ordered further evaluation at BSH. G.L. c. 123, § 16(a). [Note 1] After

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further evaluation and hearing, a different judge found that B.S. was mentally ill, and that failure to commit him to BSH created a likelihood of serious harm. G.L. c. 123, §§ 8(b) [Note 2] and 16(b). The commitment order is now expired.

In this appeal, B.S. does not challenge the fact that the evidence supported his commitment, [Note 3] but rather that the evidence was insufficient to warrant his commitment to BSH instead of a less-restrictive Department of Mental Health ("DMH") facility. Seemingly in anticipation of BSH's argument on appeal, B.S. also argues that the issue is not moot. BSH argues that the issue is moot because the commitment order is now expired, and that in any event the judge had ample evidence to commit B.S. to BSH. We conclude that the issue is not moot, and that the evidence was sufficient for the judge to find that B.S. required the strict security of BSH.

The relevant facts are as follows. At the time of the G.L. c. 123, § 16(b) hearing on March 3, 2021, B.S. was a forty-five year old male who had been admitted to BSH on December 3, 2020, for an evaluation of his criminal responsibility and his competency to stand trial pursuant to G.L. c. 123, § 15(b), after being charged with ten criminal offenses in the Quincy District Court. On December 22, 2020, evidently after receiving a competency report from BSH, a Quincy District Court judge entered a finding that B.S. was not competent to stand trial pursuant to G.L. c. 123, § 15(d). That same

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day, the judge ordered B.S. committed for further evaluation. G.L. c. 123, § 16(a).

At the March 3, 2021, § 16(b) hearing, Dr. Ariel Ingber ("Ingber"), a clinical psychologist, [Note 4] testified that B.S. was charged in the Quincy District Court with larceny of a motor vehicle; larceny under $1,200; leaving the scene of personal injury; leaving the scene of property damage; assault and battery on a police officer; assault and battery by means of a dangerous weapon; resisting arrest; operation of a motor vehicle with a suspended license; negligent operation of a motor vehicle; and failure to stop for a police officer. [Note 5]

Dr. Ingber opined that B.S. was incompetent to stand trial based on "rational deficits," which rendered him unable to effectively participate in his defense; those rational deficits included "grandiosity, fixed illogical beliefs and paranoia."

The judge concluded that B.S. was mentally ill, [Note 6] and the question thus turned to whether the failure to retain him at BSH, rather than a less-restrictive DMH facility, would create a likelihood of serious harm. G.L. c. 123, §§ 8(b) and 16(b). Dr. Ingber testified that B.S. had been transferred to the BSH maximum-security unit due to "active and acute symptoms of his mental illness," coupled with "acute degrees of irritability and agitation." There were twenty documented behavioral incidents in B.S.'s file that occurred during his stay at BSH, which included threatening to physically harm his clinician, peers, and BSH staff. Other incidents involved B.S. inciting other patients, fighting with staff, and becoming "very aggressive and hostile in his unit" to such an extent that his clinician had to terminate meetings with him. [Note 7]

Dr. Ingber described B.S. as acutely symptomatic, having "a substantial disorder of mood and thought, which grossly impairs his judgment and behavior." This disorder presented with symptoms "consistent with a diagnosis of bipolar one disorder with psychotic features" that included "voicing non-reality-based beliefs that are persecutory in nature" and "experiencing . . . paranoia or fear of others." Dr. Ingber described B.S.'s paranoia as a "prominent symptom" and a "risk factor for violence." In addition, B.S. was not accepting psychotropic medication. In her clinical opinion, failure to hospitalize B.S. would create a substantial risk of harm to others, and

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that he required the strict security of BSH. Dr. Ingber testified that a DMH facility was inadequate because B.S. was continuing to exhibit threatening and aggressive behavior that was increasing in frequency. Dr. Ingber stated "safety and security measures" in place at BSH allowed that institution to better handle the symptomatic behavior of B.S. than a lower-security DMH facility. Moreover, the higher ratio of staff-to-patient in the BSH maximum-security unit was "one of the most important risk mitigation factors" for B.S., as he had required de-escalation from staff in the past. [Note 8]

In his testimony, [Note 9] B.S. admitted that while incarcerated at the Billerica house of correction ("HOC") in October of 2019, he ceased taking his prescribed antipsychotic medications after having a "thyroid reaction that almost killed" him. B.S. testified the medical staff at the HOC made the decision to terminate the medications. In either March or February 2021, while at BSH, B.S. stated he had a seizure after being prescribed the antipsychotic medication Thorazine, and that a member of the BSH medical staff rescinded his prescriptions to Thorazine and Zyprexa (another antipsychotic medication). B.S. admitted to being "very vocal" with his treatment team, but stated he was only advocating for himself, "loudly," but in an appropriate manner. Having been in both BSH and a DMH facility, B.S. believed that a less-restrictive DMH facility would be more conducive to treating his mental illness than the strict-security setting of BSH. At the close of the testimony, the judge ordered that B.S. be committed to BSH for up to six months.

Mootness. We are constrained to agree with B.S. that the issue here is not moot. By now, it is well established that "commitment, treatment, and other orders issued pursuant to G.L. c. 123, §§ 7, 8, and 8B" are not moot merely because the orders had expired by the time the appeal was heard. Matter of F.C., 479 Mass. 1029 (2018). The Supreme Judicial Court noted that "a person who has been wrongfully committed . . . 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.'" Id., quoting Seney v. Morhy, 467 Mass. 58, 62 (2014).

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We are mindful that the appeal in this case pertains to a G.L. c. 123, § 16(b) commitment of a criminal defendant who has been found incompetent to stand trial pursuant to G.L. c. 123, § 15(d), rather than a straight civil commitment of a mentally ill person under §§ 7 and 8, which was at issue in Matter of F.C. Although we recognize that reasonable minds may differ on whether any real "stigma" might result from a BSH versus a DMH commitment, the very fact that the self-represented B.S. vigorously fought against a BSH commitment suggests that he has a surviving interest in the lawfulness of the order committing him to a strict-security institution run by the Department of Correction. Indeed, at the hearing B.S. argued not for his release, but only that he be committed a DMH facility rather than BSH. Accordingly, under the principles set forth in Matter of F.C., we conclude that his interest in challenging this commitment survives the expiration of the order. See also Matter of W.M., 2021 Mass. App. Div. 17, 18-19 (appeal of expired order for treatment pursuant to G.L. c. 123, § 8B is not moot).

Sufficiency of evidence for commitment to BSH. We now turn to B.S.'s claim that the evidence in the case was insufficient for the trial judge to conclude that a failure to retain B.S. in the strict security of BSH would create a likelihood of serious harm, such that he was not a proper subject for commitment to a DMH facility, as required by G.L. c. 123, § 16(b).

Where a defendant in a criminal case remains untried and found not competent to stand trial, G.L. c. 123, § 16(b), cross referencing the requirements of § 8(a), requires a judge to find after hearing that the defendant is mentally ill, and that his discharge from commitment will create a likelihood of serious harm. If the petitioner requests the strict security of BSH, the judge must further find that failure to retain the defendant at BSH would create a likelihood of serious harm. G.L. c. 123, §§ 16(b) and 8(b). The burden of proof for the petitioner is beyond a reasonable doubt. See Commonwealth v. Nassar, 380 Mass. 908, 916 (1980); Matter of A.E., 2019 Mass. App. Div. 5, 8.

We again note that B.S. does not challenge the judge's findings that he was mentally ill and committable, but only that he was committed to BSH rather than a DMH facility. Although B.S. did not move for a required finding at trial, "findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice." Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986).

There was ample evidence here supporting the judge's decision to commit B.S. to BSH. The evidence showed that B.S. suffered from bipolar one disorder with psychotic features. He was "acutely symptomatic and not accepting psychotropic medications," and exhibiting paranoia, which Dr. Ingber described as "prominent" and a "risk factor for violence." B.S. was alleged to have committed a series of crimes, some of which were violent in nature and which precipitated his initial commitment to BSH. While at BSH, B.S. engaged in "threatening and aggressive behavior" with increasing frequency. He was involved in twenty documented behavioral incidents, including a physical confrontation with another patient. He demonstrated aggression and hostility that led to his clinician terminating meetings with him, and he had to be transferred to the BSH maximum-security unit because of his behavior.

The record shows the judge carefully considered the testimony of Dr. Ingber and B.S. before making his ruling. The judge also noted his observations of B.S.'s

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acrimonious and disruptive behavior during the hearing as factors in his ruling, which is borne out by the printed transcript of the hearing. Dr. Ingber also testified that a DMH facility would not have adequate staffing and resources to handle the symptomatic behavior of B.S., specifically citing the staff-to-patient ratio of the BSH maximum-security unit as necessary because of B.S.'s aggression, hostility, and previously having required de-escalation from staff. The evidence in this case is sufficient to find beyond a reasonable doubt that B.S. was not a proper candidate for a DMH facility, and a failure to keep him in strict BSH custody would create a likelihood of serious harm.

The decision of the trial court is affirmed.