IN THE MATTER OF F.D.

STARK, P.J. F.D. appeals from a commitment order pursuant to G.L. c. 123, § 16(c), arguing that (1) the admission of hearsay evidence was reversible error; (2) there was insufficient evidence of a likelihood of serious harm; and (3) there was insufficient evidence that there was no less restrictive alternative to the commitment. For the reasons set forth below, we vacate the commitment order.

Background. On March 12, 2020, Worcester Recovery Center and Hospital ("WRCH") filed a petition to extend a prior civil commitment of F.D. pursuant to G.L. c. 123, § 16(c), and under the provisions of G.L. c. 123, §§ 7 and 8. On April 1, 2020, the trial judge held a hearing on the petition, and on April 2, 2020, the petition was allowed and an order for commitment entered for one year. The petitioner's sole witness was Dr. David McGarry ("McGarry"), F.D.'s treating psychiatrist at the hospital. Dr. McGarry had been treating F.D., who was thirty years old, for approximately one year at the time of the hearing. During that time, the doctor had observed F.D. on the unit, consulted with members of the treatment team, and reviewed the patient's hospital records. Dr. McGarry also reviewed previous treatment records from the hospital, including F.D.'s transfer paperwork from Bridgewater State Hospital, where F.D. had been immediately prior to being committed to WRCH. No records were offered or admitted into evidence at the hearing. Prior to his transfer to WRCH, F.D. had been admitted seven times to Bridgewater State Hospital. When F.D. was transferred to WRCH from Bridgewater State Hospital, he was subject to a buildings and grounds restriction. That restriction was removed on March 3, 2020.

Dr. McGarry testified that F.D. suffers from schizophrenia, which is a mental illness constituting a substantial disorder of thought. He is socially withdrawn, exhibits minimal interaction with those around him, and occasionally laughs, talks, and mumbles to himself. The doctor also testified that these symptoms "seem to be associated with significant violent episodes, which has led him to multiple arrests for violent behaviors." F.D.'s attorney objected to the admissibility of the above-cited testimony on hearsay grounds, and the trial judge overruled the objection. The doctor opined that F.D.'s disorder has caused a gross impairment of his behavior or judgment, in that he provides guarded and potentially paranoid responses to most questions asked of him, such as "I don't know." F.D. also exhibited isolating behaviors at WRCH, such as remaining alone in his room and not engaging with staff or other patients.

F.D. did not exhibit any violent behaviors during his most recent hospitalization. According to Dr. McGarry, F.D.'s mental illness was at its baseline at the time of the hearing -- it was likely that his presentation was the best as could be expected.

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Moreover, F.D. had been stable on his medication Clozapine for quite some time. The doctor testified that F.D.'s risk of violence was very low given his treatment and presentation at the time of the hearing. He also stated that given his prior baseline and presentation throughout his admission, it is not clear that F.D. would be able to care for himself independently.

Dr. McGarry testified that without a plan to safely transition F.D. into the community, he had concerns about F.D.'s risk of harm to others. This opinion was based on F.D.'s history in his records of past violent episodes when in unsupervised settings and when F.D. was not in treatment. The doctor expected the violence to reoccur if F.D. was released into the community unsupervised. In fact, F.D. had been noncompliant with medications and had been asked to leave other programs in the past, resulting in more violent episodes. The primary reason for believing that F.D. would pose a substantial risk of harm to others was his history of not complying with treatment, which resulted in violent behavior. This testimony was not objected to or rebutted at the hearing. [Note 1]

The doctor also opined that the cottages located at Taunton State Hospital, a residential program, was a less restrictive alternative to F.D.'s hospitalization at WRCH. This program is "high-intensity" with twenty-four hour staffing. However, there were no beds available at that program, so Dr. McGarry believed that WRCH was the least restrictive placement until a bed became available there.

After the hearing, the trial judge found that based on credible evidence from the doctor, F.D. is mentally ill and a substantial risk of harm to others as manifested by his violent behavior. The court credited the doctor's testimony regarding past violence, his at least seven commitments to Bridgewater State Hospital, and criminal charges he has faced in the past.

Analysis. "Sections 7 and 8 of G.L. c. 123 address the long-term commitment of persons with mental illness. Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility. . . . 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.'" Matter of N.L., 476 Mass. 632, 634 (2017). 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).

Chapter 123 defines "likelihood of serious harm" in three ways: 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; (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; or (3) a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such a 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." G.L. c. 123, § 1. In

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order to justify commitment under these sections, the petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. Matter of G.P., 473 Mass. 112, 119 (2015), citing Abbot A. v. Commonwealth, 458 Mass. 24, 40-41 (2010).

The petition to commit F.D. alleged a likelihood of serious harm based on a risk of harm to others. F.D. argues that the expert witness's testimony on direct examination that F.D. had significant violent episodes that led to multiple arrests for violent behaviors was inadmissible hearsay, and that, without such testimony, there was insufficient evidence of a substantial risk of physical harm to others. We agree.

Civil commitment hearings are bound by the rules of evidence. Matter of P.R., 488 Mass. 136, 142 (2021). The expert testimony at issue was based on F.D.'s records, not on personal knowledge, and therefore the statements constitute inadmissible hearsay. Expert opinion testimony, at issue here, "must be based on (1) facts within his or her direct personal knowledge, (2) evidence already in the record, or (3) facts or data not in evidence if the facts or data are independently admissible in evidence and are a permissible basis for an expert to consider in formulating an opinion. Id. Here, the evidence of F.D.'s violent history was not based on personal knowledge, so basis (1) does not apply. Moreover, the records relied upon for the testimony were not admitted into evidence, so basis (2) does not apply. As to basis (3), an expert may not base an opinion on unadmitted independently admissible evidence on direct examination -- he or she may only do so if asked about it on cross-examination. Id. See also Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 532 (1986). Here, not only was the testimony elicited during direct examination, but there is also no evidence that the records relied upon were independently admissible. This objected-to portion of Dr. McGarry's testimony -- that F.D. had significant violent episodes resulting in multiple arrests -- was inadmissible hearsay.

Because F.D. lodged a timely objection at the hearing, we review the admission of the testimony for prejudicial error. See Commonwealth v. Cole, 473 Mass. 317, 321 (2015), citing Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994). The consideration becomes whether, without this portion of the doctor's testimony about F.D.'s significant violent episodes, which resulted in multiple arrests for violent behaviors, there remained sufficient evidence to support the trial court's finding that there was a likelihood of serious harm.

The doctor testified that in his opinion, without a plan to safely transition F.D. into the community, he had concerns about his risk of harm to others. This opinion was based on F.D.'s history in his records of past violent episodes when in unsupervised settings and when F.D. was not in treatment. The doctor expected the violence to reoccur if F.D. was released into the community unsupervised. However, there was no testimony as to the specifics of what the past violent episodes consisted of, and when they occurred. The doctor also testified that F.D. had been noncompliant with medications and had been asked to leave other programs in the past, resulting in more violent episodes, but there was no detail about what programs he was asked to leave, what the circumstances under which he was asked to leave were, and when these incidents occurred. None of this testimony was objected to at the hearing. Nor is there any contention in this appeal that the failure to object to this testimony was ineffective assistance of counsel.

As such, it was properly considered by the hearing judge. The hearing judge found there was a substantial risk of harm to others as manifested by F.D.'s violent behavior.

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The court credited the doctor's testimony regarding past violence, his at least seven commitments to Bridgewater State Hospital, and criminal charges he has faced in the past.

The Legislature's use of the word "homicidal," and phrases such as "violent behavior" and "serious physical harm," as set forth in prong two of the definition of likelihood of serious harm, signifies an intent that evidence of conduct reflecting a substantial level of force and intensity be presented. See 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 respondent's conduct has on others by requiring evidence demonstrating that others fear being subjected to violent behavior and serious physical harm, and that such fear is reasonable. See Matter of J.P., 486 Mass. 117, 123 (2020). Furthermore, the petitioner must show that the risk of harm under prong two is imminent, that is, "[the harm] will materialize 'in days or weeks rather than in months.'" Id. at 119, quoting Matter of G.P., supra at 128.

Here, there is insufficient evidence to support a finding of imminent harm to others because the testimony was too general in that it lacked details of the past violent behavior, and/or how such behavior created a reasonable fear of harm. Moreover, there was little if no evidence of recency, which leaves the court without enough evidence to support the required finding of imminency beyond a reasonable doubt. By relying on the doctor's conclusory statements and the respondent's past commitments, the hospital failed to meet its burden.

For the reasons set forth herein, there was prejudicial error in the admission of the inadmissible hearsay statements because, without such statements, there was insufficient evidence to support the commitment. Contrast Matter of J.P., supra at 122 (even though judge considered hearsay statements in concluding there was substantial risk of physical harm to others, additional evidence presented was sufficient for finding of substantial risk of physical harm without inadmissible statements and therefore respondent was not prejudiced by their admission). As such, the commitment order is vacated.

So ordered.