IN THE MATTER OF M.W.

PRINCE, J. M.W. is appealing an order of the New Bedford District Court entered on February 28, 2020, committing M.W. to Southcoast Behavioral Health under G.L. c. 123, §§ 7 and 8, and authorizing antipsychotic medication pursuant to G.L. c. 123, § 8B. He argues that the District Court judge improperly denied his prehearing request for a continuance to allow time for his counsel to prepare an adequate defense. Additionally, he argues that: (1) the judge relied on impermissible hearsay to justify the commitment order; (2) the court lacked jurisdiction because M.W. was on a conditional voluntary; and (3) the evidence was insufficient that M.W. was not competent to make medical decisions. We agree that the court erred by denying the request for a continuance, and the commitment order and subsequent authorization of antipsychotic medications must therefore be vacated. Given this holding, we do not reach M.W.'s remaining arguments on appeal.

Background. M.W. is a twenty-seven year old man who was admitted to South Coast Behavioral Health ("hospital") on February 19, 2020, on a conditional voluntary. According to the progress notes and the petition for commitment, the hospital rescinded his conditional voluntary on February 26, 2020. On that same day, the hospital filed a petition for involuntary commitment and a petition to authorize medical treatment under G.L. c. 123, §§ 7, 8, and 8B. The original hearing was scheduled for March 3, 2020.

On February 27, 2020, counsel for M.W. filed an appearance. On that same date, the hospital filed a "Motion for an Emergency Hearing" because M.W. "violently assaulted his attending doctor by way of choking her on February 26, 2020." The hospital cited no legal authority for an emergency hearing. [Note 1] The court allowed the request and scheduled it for February 27, 2020, at 2:30 P.M. Counsel for M.W. was notified at or about noontime on February 27, 2020, that the hearing would take place that afternoon. She arrived at the hospital "as quickly as [she] could." At the time of the scheduled hearing, M.W.'s counsel had only had two or three minutes to speak with him and the hospital had just provided her with M.W.'s medical records, which were at least three inches thick. Based on an inability to prepare for the hearing on February 27, 2020, M.W. requested a twenty-four hour continuance. The

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hospital opposed the continuance because M.W. choked his treating psychiatrist on February 26, 2020, and violently assaulted one of the mental health technicians earlier on February 27, 2020. After balancing the security needs of the hospital and the need for M.W. to prepare properly, the court allowed the continuance until February 28, 2020, at 2:00 P.M.

On February 28, 2020, counsel for M.W. requested a further continuance. His attorney stated that she did not have enough time to meet M.W. to discuss the case, that she was not afforded an opportunity to hire an independent medical examiner, and that the hospital kept changing the treatment plan. The hospital objected again based on the two violent attacks on staff members and M.W.'s present volatility. M.W. objected because "the statute states that the only time a hearing should be moved up prior to the original date set forward is if the respondent requested it." A different judge denied the motion to continue.

The hearing proceeded. The court committed M.W. pursuant to G.L. c. 123, §§ 7 and 8, and allowed the hospital's petition under G.L. c. 123, § 8B. M.W. timely filed an appeal on March 5, 2020. The orders of commitment and treatment have now expired, and the case is moot. Nonetheless, we consider the appeal on its merits. See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018) (appeals from expired or terminated commitment and treatment orders should not be dismissed without considering merits of appeals in light of party's surviving interest in establishing orders not lawfully issued).

Analysis. Civil commitments pursuant to G.L. c. 123, §§ 7 and 8, involve a "massive" infringement on an individual's liberty. See Matter of N.L., 476 Mass. 632, 637 (2017), quoting Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 784 (2008). As a result, respondents in commitment hearings are entitled to "the procedural protections and formality typical of other civil (and criminal) trials." Matter of M.C., 481 Mass. 336, 344 (2019), quoting Kirk v. Commonwealth, 459 Mass. 67, 72 (2011). "The provisions of G.L. c. 123 balance the rights of and protections for incompetent persons with the Commonwealth's interest in 'protecting the public from potentially dangerous persons' who may be unable to control their actions because of their mental condition." Matter of E.C., 479 Mass. 113, 119 (2018), citing Commonwealth v. Calvaire, 476 Mass. 242, 246 (2017). These rights include but are not limited to the right to an attorney, the right to produce independent testimony, and the opportunity to present a meaningful defense. Matter of N.L., supra at 635-637.

General Laws c. 123, § 5, expressly contemplates the minimum time necessary to prepare an adequate defense. The statute provides in relevant part:

"Whenever the provisions of this chapter require that a hearing be conducted in any court for the commitment or further retention of a person . . ., it shall be held as hereinafter provided. . . . The person shall be allowed not less than two days after the appearance of his counsel in which to prepare his case and a hearing shall be conducted forthwith after such period unless counsel requests a delay" (emphasis added). [Note 2]

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The periods of time prescribed or allowed under G.L. c. 123, § 7, are calculated pursuant to Rule 6 of the Massachusetts Rules of Civil Procedure. G.L. c. 123, § 7(c). Rule 6 of the Mass. R. Civ. P., in turn, provides:

"In computing any period of time prescribed or allowed by these rules . . ., the day of the act . . . shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation."

In this case, the respondent's counsel filed an appearance on February 27, 2020, a Thursday. By operation of law then, the earliest possible date for the hearing would have been Tuesday, March 3, 2020. Though this Appellate Division is mindful of the urgency of the situation faced by the hospital, "expediency of treatment may not impinge on a person's right to prepare a defense." Matter of N.L., supra at 637. By holding the hearing on February 28, 2020, the court violated both the respondent's statutory rights as expressed by G.L. c. 123, § 5, and his due process right to prepare a meaningful defense. Therefore, the commitment order must be vacated. As a commitment order is a "condition precedent" to obtaining an order of substituted judgment, Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 106-107 (2000), we likewise set aside the treatment order.

So ordered.