IN THE MATTER OF E.F.

FINNERTY, P.J. Two main issues are presented in this appeal from orders involuntarily committing appellant E.F. to a mental health facility pursuant to G.L. c. 123, §§ 7 and 8, and approving treatment under G.L. c. 123, § 8B. E.F. contends that there was insufficient evidence of serious harm and that there was insufficient evidence of imminent harm. For reasons that follow, we vacate the commitment order and the treatment order issued under § 8B.

On April 9, 2020, the medical director of Southcoast Behavioral Health Hospital ("Southcoast") filed a petition alleging that, by reason of his mental illness, failure to commit E.F. created a likelihood of serious harm in that E.F. presented a substantial risk of physical harm to others because he "had verbally aggressive outbursts while hospitalized," and that there was a very substantial risk of physical impairment or injury to him because he was not permitted to return to his parents' home and lacked appropriate aftercare support. These are, respectively, the so-called second and third prongs of serious harm. [Note 1]

E.F. does not contest that he suffers from mental illness. He argues that he does not present a danger to others and that his homelessness is not a basis for his commitment. He contends that the evidence at the hearing did not prove a likelihood of serious harm beyond a reasonable doubt and that there was no consideration of less restrictive alternatives to commitment.

The psychiatric mental health nurse practitioner who was part E.F.'s treatment team at Southcoast gave evidence that E.F. suffers from bipolar disorder of a severe mania with psychotic features. He was having difficulty sleeping; had rapid, pressured speech; had been verbally aggressive; and had some paranoid, grandiose beliefs. He

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was described as disheveled, with impaired judgment, irritable, labile, angry, euphoric, hostile, and impulsive. On one occasion while hospitalized, E.F. tried to barricade himself in a room and became combative with hospital staff when being returned to his room. The nurse described him as being threatening and aggressive. The nurse opined that E.F. would be unable to protect himself if discharged as, where he had been dependent on his parents for housing and well-being, that arrangement was no longer available.

Testimony was also elicited that E.F. had a therapist he had seen on an outpatient basis for many years and that he had consulted with her even while inpatient at Southcoast. E.F.'s father testified as to the circumstances that had led to E.F.'s admission to the hospital. This included E.F.'s yelling at his father because he was essentially homeless and had no means of support in the community. E.F.'s father testified that he was not placed in fear of his safety by E.F.'s behavior.

E.F. testified as to his version of the events leading up to his admission to Southcoast. His version was that he had chosen to leave his parents' home as they were not getting along and because he was fearful of passing COVID-19 to them. He denied aggressive feelings toward his parents and testified as to his plans for continued mental health treatment on release and that he had contacted his therapist even while hospitalized.

As in Matter of J.P., 486 Mass. 117 (2020), homelessness, in and of itself, is not sufficient to support a very substantial risk of harm to the person himself. Id. at 124. The evidence in the hearing at issue here did not support a finding that there was a very substantial risk of physical impairment or injury to E.F. because of his inability to protect himself in the community.

To prove the second prong, there must be "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." G.L. c. 123, § 1. In terms of the character of the evidence presented, the Legislature's use of the word "homicidal," and phrases such as "violent behavior" and "serious physical harm," signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented. Matter of G.P., 473 Mass. 112, 126 (2015). As for the third prong, "The focus of the evidence, then, must be on the respondent's degree of impaired judgment . . .; the degree of likelihood that, as a direct consequence, the respondent will sustain or inflict injury (for example, by failing to take care of an existing medical condition . . ., or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent's community to provide protection against such risks. Finally, because a 'very substantial' risk of harm must be shown in connection with this third prong, G.L. c. 123, § 1, 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 conclude that the evidence at hearing did not support the finding that failure to commit E.F. would create a likelihood of serious harm on either the second or third prongs. The specific harm for which E.F. was at risk was not identified. Insufficient evidence was presented on the level of imminence of the risk of harm to sustain the petitioner's burden. There was also insufficient evidence of less restrictive alternatives to commitment having been considered by the petitioner, particularly in light of the evidence provided by E.F. as to his plans to continue treatment.

Because we vacate the order involuntarily committing E.F. under G.L. c. 123, §§ 7

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and 8, the § 8B treatment order issued at the hearing that immediately followed must also be vacated. We therefore need not reach E.F.'s claim that testimony in the § 8B hearing violated his patient-psychotherapist privilege.

The orders of commitment and treatment are vacated.