2022 Mass. App. Div. 51

November 20, 2020 - August 1, 2022

Appellate Division Western District

Court Below: District Court, Worcester Division

Present: Stark, P.J., Murphy & Smyth, JJ.

Practice, Civil, Commitment.

Order of commitment vacated due to insufficient evidence respondent presented likelihood of imminent serious harm to himself or others. Order entered in Worcester District Court by McGuiggan. J.

Nathan Frommer for the petitioner.

Devorah A. Vester for the respondent.

SMYTH, J. This is an appeal from an order of an involuntary civil commitment [Note 1] pursuant to G.L. c. 123, §§ 7 and 8. On appeal, C.C. does not dispute either the evidence presented by the petitioner, Worcester Recovery Center and Hospital ("WRCH"), in support of his commitment, or the finding of his qualifying mental illness. Instead, C.C. contends the evidence presented was insufficient to support the court's conclusion that discharging C.C. would create a "likelihood of serious harm" pursuant to G.L. c. 123, § 1. To decide this issue, we evaluate whether the evidence established beyond a reasonable doubt that the failure to hospitalize C.C. would have created either (1) a substantial risk of imminent physical harm to C.C. as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm, or (2) a substantial risk of C.C., imminent to his release, committing 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. [Note 2]

Since we conclude there was insufficient evidence to find that C.C. presented a likelihood of imminent serious harm to himself or others if discharged, we vacate the order of commitment. [Note 3]

I. Statutory framework.

General Laws c. 123, §§ 7 and 8, address the long-term commitment of persons with

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a qualified mental illness. Matter of N.L., 476 Mass. 632, 634 (2017). Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility. Id. 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." Id.

General Laws c. 123, § 1, defines "likelihood of serious harm" 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 [first prong]; (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 [second prong]; or (3) 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 [third prong]. [Note 4] G.L. c. 123, § 1. The evidence must establish that the likelihood of serious harm is imminent. Matter of J.P., 486 Mass. 117, 119 (2020), citing Matter of G.P., 473 Mass. 112, 128 (2015). The petitioner must prove each of the statutory prerequisites beyond a reasonable doubt to support a commitment. Matter of G.P., supra at 119. 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).

II. Standard of review.

In reviewing the sufficiency of the evidence, "we accept the findings of fact made by the hearing judge unless clearly erroneous; however, we review without deference whether the legal standard for civil commitment was met." Matter of J.P., supra at 121. See also Matter of a Minor, 484 Mass. 295, 302 (2020).

III. The commitment hearing.

A. WRCH's case.

WRCH called staff psychiatrist Madelyn Hicks ("Hicks") as their sole witness. Hicks served as the treating psychiatrist for C.C. from November, 2017, [Note 5] through the date of the hearing. Hicks testified that C.C. suffered from "the illness of schizophrenia" to a degree that caused a substantial disorder of mood and perception. Hicks opined that C.C.'s illness caused a gross impairment to his judgment and behavior. According to Hicks, C.C. was in denial of his diagnosis and resistant to his prescribed medication plan. Hicks described how C.C.'s mental illness caused erratic behavior, including harboring paranoid, violent, and antagonistic delusions concerning his family and others, experiencing auditory hallucinations, being argumentative and agitated, and experiencing difficulty staying focused. Illustrative of his condition at the time of his discharge hearing, C.C. reported to Hicks that he had been harassed and slandered by staff and/or patients, [Note 6] described auditory hallucinations from a WRCH

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loudspeaker, and further maintained that he was shot in the chest thirty times, necessitating a chest implant.

Concerning C.C.'s medication noncompliance, Hicks testified C.C. routinely attempted to refuse his doses by "cheeking" [Note 7] them. C.C.'s blood tests confirmed his successful noncompliance by demonstrating negligible levels of prescribed medication on at least three dates in the year prior to the hearing. Although there were occasions during which C.C. became loud and argumentative with staff who were administering the medication, Hicks testified that staff never had to resort to physical or chemical restraints while administering medication to C.C.

During cross-examination, Hicks allowed that C.C. did not always present symptomatically. C.C. often acted pleasantly and showed the ability to engage Hicks and others in rational conversation.

B. Risk of self-harm evidence (first prong).

WRCH's evidence pertaining to C.C.'s risk of harm to himself centered on C.C.'s experiencing two hallucinatory commands prompting him to harm himself. Specifically, Hicks testified that C.C. reported hearing a voice over the loudspeaker ask him, "[W]hy don't you go hang yourself?" C.C. also confided to Hicks that a voice informed him that he was a human sacrifice. Each of these hallucinatory self-harm commands occurred within one month of the commitment hearing. Hicks testified that command auditory hallucinations are a known risk factor when assessing suicidality. Additionally, Hicks expressed her concern that the recent onset of auditory hallucinations signaled a possible deterioration in C.C.'s mental health disorder.

In assessing C.C.'s risk of harm to himself, Hicks concluded that C.C. was at an increased risk of self-harm or suicide when viewed in the context of C.C.'s recent auditory commands, symptomatic schizophrenia, reluctance to take medication, impulsivity, as well as the potential for hearing more hallucinatory commands if he were to be discharged without further commitment.

C. Evidence of risk of harm to others (second prong).

In support of the likelihood of C.C. posing a risk of harm to others as a basis for commitment, WRCH relied upon (1) a hospital discharge summary from 2005 that attributed a specific physical assault to C.C., as well as a claim of historical assaultive behavior; (2) an encounter between C.C. and Hicks during which Hicks became fearful and intimidated by C.C. in response to him clenching his body and refusing to leave her office; (3) Hicks's conclusion that C.C.'s disorder-affected behavioral traits of paranoia, antagonism, persecution, and being subject to delusions, increased his likelihood of harming others if he were to be discharged.

First, WRCH presented historical evidence of C.C.'s potential danger through its submission of a Bournewood Hospital discharge summary. These records detailed C.C.'s admission to an emergency room on January 29, 2005, based on a family member's concern that C.C. was not taking his antipsychotic medications. According to the discharge summary, C.C. kicked one of the attending emergency medical technicians ("EMT") in the groin, injuring the technician. The report stated that the hospital staff

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resorted to physically and chemically restraining C.C. due to this physical assault. The discharge summary also mentioned that C.C. had "a history of assaultive threatening behavior when off medication." [Note 8] C.C. was discharged to the care and custody of his brother after being hospitalized for nineteen days.

Second, during a clinical session with Hicks, C.C. became very tense and angry when describing how he was the subject of harassment and slander. Hicks sensed he might become physically agitated and potentially threatening. When she attempted to abruptly conclude their meeting, C.C. initially refused to leave his seat. Instead, he grew upset and clenched his muscles. Hicks had to ask him repeatedly to leave before he did on his own accord. Hicks testified she was afraid and intimidated by this encounter with C.C.

Finally, Hicks opined that C.C.'s disorder and noncompliance with medication protocol placed him at an imminent risk of harming others should he be released from WRCH. In support of this conclusion, Hicks described how C.C., when actively symptomatic, would invent dramas by imagining a wrongdoing -- an assault, a slight, a slander -- directed at him from either staff or another client; C.C. would then respond by becoming angry and argumentative. During these encounters, C.C. could be intimidating. For instance, on one occasion, C.C. reported another patient had punched him in the head. C.C.'s account was contrary to the observations of staff. C.C. did not physically retaliate to the perceived punch, though he became quite agitated. When describing the incident to Hicks, C.C. indicated that if the incident had happened on the street, he would "reproach" the other person. C.C. also harbored animosity toward his family, and he, on at least one occasion, fantasized they would suffer physical harm from a third party. Hicks concluded that C.C., if discharged, presented a substantial risk of harm to others and that a locked facility remained the least restrictive placement for C.C.

D. C.C.'s testimony.

It is reasonable to conclude C.C. was symptomatic, namely delusional, at the time of the hearing, as his testimony included claims of grievous injuries suffered, fantastical personal exploits, and allegations his family practiced necrophilia and were known war criminals. C.C. did testify that he had no intention of harming himself or others.

IV. Legal analysis.

A. Harm to self (first prong).

The first prong of the definition of "likelihood of serious harm" requires "evidence of, threats of, or attempts at, suicide or serious bodily harm" to the respondent. G.L. c. 123, § 1. To satisfy this prong, WRCH argues the evidence of C.C.'s two auditory commands increased his risk of suicide or serious bodily harm upon consideration of the degree of his illness contemporaneous to the commitment hearing, and prospectively, as Hicks opined that C.C.'s condition would very likely deteriorate if he were discharged. This evidentiary avenue to the required likelihood of imminent self-harm rests on a statutory interpretation rejected by the Supreme Judicial Court in Matter of G.P., supra at 125 n.18.

While a grammatical analysis of the first prong's requirement may not preclude an

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inference that the phrase "evidence of," as separated by a comma, represents the first of three sequential alternative means (joining "threats of" and "attempts at") to satisfy the first prong, the Supreme Judicial Court seemingly foreclosed this interpretation by explicitly acknowledging the Legislature's specific use of the terms "threat" and "attempt" suggested the necessity of specific evidence of actual conduct amounting to either a threat or attempt. Id. The Court further reasoned that specific evidence of threats or attempts is essential because it forms the basis on which the assessment of whether there is a "substantial risk" of harm to the respondent is to be made. Id. at 125.

Here, there was no evidence presented that C.C. either threatened or attempted to commit suicide or inflict serious bodily self-harm. To the contrary, C.C. told Hicks on multiple occasions that he had no intent of following the auditory commands to harm himself. Contrast Walden Behavioral Care v. K.I., 471 Mass. 150, 156 (2015) (G.L. c. 123, §§ 7 and 8, harm-to-self commitment order was lawfully supported by evidence of respondent following auditory commands during his recent attempt of suicide as well as his expressed intent to attempt suicide upon discharge from hospital). The absence of evidence of any threat or attempt of self-harm is amplified when considering C.C. was under the strict supervision, care, and custody of WRCH for more than one year preceding the commitment hearing. There was no evidence presented that WRCH ever placed C.C. on suicide watch, ordered an increase in his supervision, or modified his treatment due to self-harm concerns during his lengthy stay at WRCH. Finally, Hicks agreed that a psychiatric report [Note 9] assessed C.C. as a low risk for attempting suicide.

Absent specific evidence of either a self-harm threat or attempt, the finding of likelihood of serious harm under the first prong relies on Hicks's predictive opinion that C.C., upon his discharge, would (1) decompensate [Note 10] without hospital structure, (2) continue to receive auditory commands prompting suicide, (3) act on the commands, and (4) that the potentiality for self-harm would occur imminently to his discharge. This speculative stretch, unsupported by evidence of the required conduct to establish future risk of self-harm if discharged, does not amount to the required beyond-a-reasonable-doubt standard to support a likelihood of harm finding.

B. Harm to others (second prong).

The second prong of the definition of "likelihood of serious harm" requires evidence of "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." G.L. c. 123, § 1. The Supreme Judicial Court has interpreted the Legislature's use of the word "homicidal," and phrases such as "violent behavior" and "serious physical harm," to signify an intent that evidence of conduct reflecting a substantial level of force and intensity be presented. Matter of G.P., supra at 126. While the first clause of the second prong focuses on a respondent's conduct by requiring a showing of either "homicidal or other violent behavior," the second clause pertains to the effect the respondent's

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conduct has on others by requiring a showing that (1) others feared being subjected to violent behavior and serious physical harm, and (2) that such fear was reasonable. Matter of J.P., supra at 123. Furthermore, the petitioner must show that the risk of harm under prong two is imminent, that is, that the harm will materialize in the reasonably short term -- "in days or weeks rather than in months." Id. at 119, quoting Matter of G.P., supra at 128.

To support the second prong, WRCH relies upon evidence of C.C.'s assaultive history as described in the Bournewood Hospital discharge summary, and an interaction between C.C. and Hicks that caused Hicks to be afraid and intimidated of C.C. In evaluating the weight of evidence of past conduct as it pertains to a future-risk-to-others determination, we scrutinize the remoteness, seriousness, and number of acts. Matter of G.P., supra at 125-126 (scrutiny as to both nature and weight of specific evidence is required since determination of sufficiency of evidence could lead to deprivation of liberty for entire year).

1. Evidence of homicidal or other violent behavior (prong two, first clause).

C.C.'s physical assault on an EMT, an event that took place fourteen years before the commitment hearing, is the only act that could conceivably satisfy the requirement for "homicidal or other violent behavior." Our reliability assessment as to the predictive value assigned to this violent act, however, includes our recognition that acts that occurred distant from the time of the commitment hearing carry diminished weight. See Matter of G.P., supra at 127, quoting Commonwealth v. Nassar, supra at 915-917 ("[T]he forecast of events tends to diminish in reliability as the events are projected ahead in time."). WRCH's reliance on Matter of D.K., 95 Mass. App. Ct. 95 (2019), to show the relevance and timeliness of the Bournewood evidence to assessing C.C.'s likelihood of harm is unavailing. In Matter of D.K., in deciding whether a likelihood of harm existed under the third prong [Note 11] to G.L. c. 123, §1, the Appeals Court considered evidence of D.K.'s condition [Note 12] as observed two years prior to her hearing. Id. at 95-96. The Court determined the evidence of D.K.'s past inability to protect herself in the community due to her mental health condition provided important and timely context in its review of her similar condition at the time of her commitment hearing. The similarity between D.K.'s past and current behavior logically supported the Court's conclusion that she faced an imminent and very substantial risk of physical impairment or injury should she be discharged. Id. at 101-102.

Both the temporal proximity and similar nature of the past conduct to D.K.'s condition at the time of hearing distinguish Matter of D.K. from our review of the sufficiency of the evidence here. Here, C.C.'s assault on the EMT is not only remote in time, but

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also represents the only act of violence attributed to C.C. The record is devoid of any evidence that C.C. threatened anyone with violence or attempted any other acts of violence after he was discharged from Bournewood Hospital in 2005. To the contrary, the record establishes that C.C. had learned to deescalate tense situations [Note 13] that occurred in the months prior to his commitment hearing. Further, Hicks conceded C.C. had been clinically assessed as low risk for attempting harm to others within two years of the commitment hearing at issue. [Note 14]

Thus, this remote evidence of a discrete act of violence without additional timely evidence does not amount to reliable evidence of homicidal or other violent behavior to support a finding that discharging C.C. would have created an imminent risk of harm to others under the first clause of prong two.

2. Evidence that others are placed in reasonable fear of violent behavior and serious physical harm (prong two, second clause).

Hicks's testimony that she became fearful and intimidated when C.C. grew angry, tensed up, and initially refused to leave a therapy session [Note 15] represents the second discrete act offered by WRCH to satisfy prong two. While this conduct clearly does not amount to an act of serious violence, our review centers on whether the evidence satisfied the second clause of prong two. Specifically, whether C.C.'s conduct caused Hicks to fear being subjected to violent behavior and serious physical harm and, further, whether such fear was reasonable.

The Supreme Judicial Court's decision in Matter of J.P., 486 Mass. 117 (2020), [Note 16] guides our future­risk analysis concerning C.C.'s tense encounter with Hicks. In Matter of J.P., the Court found the respondent caused his treating physician subjective and reasonable fear through conduct that included him clenching his jaw and tensing his muscles, id. at 119, conduct similar to C.C.'s behavior as experienced by Hicks. However, in addition to this seemingly threatening physical display, J.P. acted with open hostility and aggression to the same doctor on other occasions, threatened a different physician, made death threats to two separate clients, and indicated he would not hesitate to be physical. Id. at 120. Additionally, the facility moved two clients from J.P.'s room out of concerns that J.P. might harm them. Id. The totality of the evidence supported findings that the physician feared being subjected to violent behavior and serious physical harm, and that such fear was reasonable. Id. at 123.

The evidentiary landscape subject to our review is sparse as compared to Matter of J.P. As a contextual starting point for our fear analysis, we acknowledge that while Hicks was aware of C.C.'s history, including his violent act against an EMT in 2005, she was also aware there was no evidence C.C. either threatened or attempted to harm anyone from the time of his discharge from the Bournewood Hospital in 2005. While Hicks may have been apprehensive of C.C., there was no evidence presented that Hicks called security, requested C.C. to be monitored, or took any other

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precautionary steps after their tense encounter. The presence of such evidence could have supported a finding that she had been placed in fear of serious physical harm or death. Thus, considering the nature of this discrete act against C.C.'s broader behavioral history of nonviolence, we conclude that Hicks's articulated level of apprehension, that "he [C.C.] became so [physically] tense and angry and speaking over me with pressured speech that I sensed that he could become more physically agitated, potentially threatening," does not rise to the level of subjective fear of physical harm or death as required by G.L. c.123, § 1.

The same rationale leads us to find that even if Hicks had expressed the requisite subjective fear, it would not have been reasonable. A reasonable person, familiar with C.C.'s history and behavioral traits including his sudden agitation, paranoia, and confrontational nature, would not have been frightened of serious physical harm or death upon experiencing this discrete act of anger and defiance. See Matter of J.P., supra at 123. WRCH, lacking sufficient evidence of actual conduct to support a finding of likelihood of harm, seeks to justify the commitment by placing undue weight upon Hicks's opinion concerning C.C.'s potential to decompensate upon discharge. Even accepting this predictive evidence, it is insufficient in regard to both weight and imminence to support a likelihood of harm finding.

V. Conclusion.

We conclude the evidence was insufficient to establish beyond a reasonable doubt that discharging C.C. from WRCH would have created a likelihood of serious harm to himself or others. Accordingly, the order of commitment is hereby vacated.


[Note 1] The term of commitment was for one year.

[Note 2] WRCH petitioned under the first and second prong of G.L. c. 123, § 1, to establish "likelihood of serious harm," thus limiting our review accordingly. The judge's findings did not specify under which prong the commitment was ordered, so we evaluate whether either prong was satisfied by the evidence.

[Note 3] Although C.C.'s period of commitment had expired by the time of our hearing on this appeal, the matter is not moot. "[A]n individual has a personal stake in the outcome of litigating an appeal from an order of civil commitment, even after the individual is released." Matter of a Minor, 484 Mass. 295, 300 (2020). See Matter of J.P., 486 Mass. 117, 120 n.7 (2020). WRCH's motion to dismiss the appeal because C.C. was recommitted at an uncontested hearing after the expiration of the commitment order in this appeal is denied. See Matter of M.C., 481 Mass. 336, 343 (2019) (respondent's recommitment after expiration of commitment order under appeal did not render appeal moot).

[Note 4] See note 2, supra. Our review is limited to the first and second prongs of G.L. c.123, § 1.

[Note 5] C.C. was first admitted to the WRCH pursuant to G.L. c. 123, §§ 7 and 8 in September, 2017.

[Note 6] Hicks believed C.C.'s claims of harassment to be largely unsupported.

[Note 7] "Cheeking" is a "colloquial term for concealing a mediation in the mouth, i.e, between the teeth and the cheek, in order to avoid swallowing it." The Free Dictionary, Medical Dictionary, https://medial-dictionary.thefree dictionary.com (last visited August 1, 2022).

[Note 8] While the source for the claim of "history of assaultive threatening behavior" is unclear, a reasonable inference allows us to conclude C.C.'s family provided that information; the statement was entered without objection.

[Note 9] The record identifies the author of the report as "Dr. Geller" and the date of the report as "September 5, 2017." The report was not offered in evidence.

[Note 10] Hicks testified to her concern that C.C. would refuse medication and suffer increased impulsivity, paranoia, and delusions if he were discharged.

[Note 11] The third prong under G.L. c. 123, § 1, requires "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."

[Note 12] The evidence described how D.K., two years prior to her commitment hearing, required emergency hospitalization as well as an order of civil commitment when she was found in a life-threatening condition, severely malnourished, and in a state of squalor, after failing to take medication to treat her mental illness. Matter of D.K., supra at 98.

[Note 13] Hicks cited at least two examples of C.C. successfully deescalating potentially volatile situations initiated by other patients, likely in attempt to provoke C.C., in the months leading up to his commitment hearing.

[Note 14] See note 9, supra.

[Note 15] This incident occurred on January 10, 2019.

[Note 16] We note that at the time of the commitment hearing, the judge did not have the benefit of the Supreme Judicial Court's decision in Matter of J.P.