IN THE MATTER OF V.S.

FINIGAN, J. In the days following her conditional voluntary admission to McLean Hospital SouthEast ("McLean"), a psychiatric hospital, the appellant ("V.S.") provided written notice of her intention to leave the facility. In response, McLean filed for the civil commitment of V.S. pursuant to G.L. c. 123, §§ 7 and 8 and an accompanying order to administer antipsychotic medication to V.S. under G.L. c. 123, § 8B. After some procedural and technical hurdles discussed further below, both petitions were allowed following a hearing before a District Court judge, and this appeal followed. For the reasons set forth below, we affirm.

At the time of her admission, V.S. was a homeless seventy-two year old woman with a history of mental illness, diagnosed as schizoaffective disorder, bipolar type. [Note 1] V.S. arrived at McLean on July 26, 2019, after being transferred from the emergency room of Massachusetts General Hospital, where she had gone seeking treatment for leg pain and edema. Upon arriving at McLean, V.S. submitted an application for care and treatment on a conditional voluntary basis pursuant to G.L. c. 123, §§ 10 and 11.

Eleven days after her admission, V.S. executed a written notice of intent to leave McLean within three days pursuant to G.L. c. 123, § 11. Prior to the expiration of the three days, McLean filed a petition for further commitment pursuant to G.L. c. 123, §§ 7 and 8 and an accompanying petition to administer antipsychotic medication to V.S. under G.L. c. 123, § 8B. In his petition for commitment, the medical director of McLean indicated V.S. was extremely delusional, paranoid, and falsely accusing others of causing her harm. The petition also indicated V.S. would not disclose any information about her nearest relative or guardian. In support of the petition to treat V.S. with antipsychotic medication, the medical director stated V.S. was floridly psychotic, paranoid, and would not consider any medication save one, Geodon, which was ineffective.

On August 15, 2019, V.S., her appointed attorney, and counsel for McLean appeared before a District Court judge sitting at McLean. Before reaching the substance of the petitions, the judge heard directly from V.S. In a rambling and at times incoherent statement, V.S. claimed she had not received notice of the hearing and asked that the matter be dismissed. After the judge rebuffed that request, V.S. pressed on, arguing she was entitled to have the matter heard in "a court of law" as required by the United States Supreme Court. The judge was again unmoved and

Page 88

turned his attention to V.S.'s appointed counsel.

Counsel for V.S. reported that in the days prior to the hearing, she had met with V.S., who expressed a desire to represent herself. Counsel then moved to withdraw, citing irreconcilable differences. V.S. expressed ambivalence as to whether she would represent herself or wished to have a new attorney appointed, before finally asking for a continuance. The judge then allowed the motion to withdraw and continued the hearing for one week.

The parties reconvened at McLean one week later before the same judge, with new counsel appointed to represent V.S. V.S.'s new attorney again moved to have the hearing conducted at a court house. That motion was again denied. McLean then presented the testimony of Dr. Ana Ticlea ("Ticlea"). Dr. Ticlea, while not V.S.'s attending physician, had examined her two days after her arrival at McLean.

Dr. Ticlea testified her familiarity with V.S. was based upon her own observations, review of medical records from McLean as well as Massachusetts General Hospital, and discussions with McLean staff members. In Dr. Ticlea's opinion, V.S. was suffering from elaborate delusions. V.S. believed her dermatitis was caused by an unnamed individual and constituted "elder abuse." According to Dr. Ticlea, V.S. was hearing voices, had poor hygiene, and was disheveled, malodorous and refusing to allow staff to help her with her daily activities. Dr. Ticlea's diagnosis was that V.S. suffered from mental illness, namely, schizoaffective disorder, based on her symptoms of delusions, disorganization, paranoia, and auditory hallucinations. Because of her condition, Dr. Ticlea formed the opinion V.S. presented an imminent risk of harm to herself due to her lack of ability to care for herself in the community. McLean rested without calling any additional witnesses; V.S. testified on her own behalf and her attorney offered V.S.'s medical records from her current admission to McLean.

Regarding the petition seeking authorization to treat V.S. with antipsychotic medication pursuant to G.L. c. 123, § 8B, McLean recalled Dr. Ticlea. [Note 2] The doctor testified V.S. lacked the capacity to make decisions regarding her treatment plan due to her mental illness, specifically, her delusions and hallucinations. Dr. Ticlea then outlined her proposed plan. Based on Dr. Ticlea's testimony, the judge issued written findings and adopted the proposed plan.

The orders of commitment and treatment have now expired. Nonetheless, we consider the appeal on its merits. [Note 3] 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).

1. Notice of hearing. Section 5 of G.L. c. 123 provides that notice of commitment hearing be given to the respondent, his or her attorney, and nearest relative. Here, V.S. claimed at the first hearing that she had not received notice. The record also suggests no notice was given to her nearest relative. It is apparent notice was given

Page 89

to counsel. By their nature, commitment hearings operate on a compressed schedule; the statute requires the hearing on an initial petition be commenced within five days of the filing. See G.L. c. 123, § 7. While V.S. claimed lack of notice, she was aware of the hearing, as she met with counsel three days prior to the hearing. See G.L. c. 123, § 5 ("The person shall be allowed not less than two days after the appearance of [her] counsel in which to prepare [her] case . . . ."). At any rate, the hearing was continued for a week at V.S.'s request. Her two attorneys were aware of the hearings, appearing each time. Lastly, while McLean did not give notice to V.S.'s nearest relative, the record reveals that V.S., who was suffering from paranoia, was unwilling to provide McLean with information concerning her family. There is no requirement that McLean make extraordinary efforts to locate family members.

2. Location of hearing. At each hearing, V.S. moved to have the matter conducted in a court house. At the first hearing, V.S. orally moved to have the hearing in a court room, arguing she was entitled to cross-examine witnesses on the stand. At the second hearing, V.S.'s counsel filed a written motion, seeking to have the hearing conducted in a more dignified setting open to the public. While commitment hearings are open to the public, Kirk v. Commonwealth, 459 Mass. 67, 76-77 (2011), the Legislature specifically left the location of the hearing to the discretion of the trial judge. G.L. c. 123, § 5 ("The court may hold the hearing at the facility . . . ."). See Matter of M.C., 481 Mass. 336, 350 (2019). There is nothing in the record to suggest any member of the public was prevented, or would have been prevented, from attending the hearing, or that the room where the hearing was conducted was not dignified. [Note 4] The judge was well within his discretion to hold the hearing at McLean. See id. at 344 ("Individuals do not, however, have a due process right to select the location of a judicial proceeding.").

3. Reconstructed record. Civil commitment hearings must be electronically recorded "on an appropriate sound recording device under court control." See § 4:02 of the Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (rev. Apr. 2019) ("Standards of Judicial Practice"). Here, a court officer present at the hearing was tasked with operating a digital recorder designed to integrate with the court's "For the Record" digital recording system. Due to an equipment malfunction, the recorder captured only the approximately first five minutes of the second hearing.

Upon discovering the malfunction three quarters of the way through the hearing, the court officer brought the failure to the attention of the judge, who in turn informed the parties. [Note 5] The court officer then replaced the batteries in the unit, and the hearing continued to its conclusion.

Page 90

For purposes of this appeal, the parties followed the procedure set forth in Dist./Mun. Cts. R. A. D. A. Rule 8C(e), which permits the reconstruction of the record in situations where a transcript is unavailable. Here, V.S.'s attorney and the mentor of V.S.'s attorney, who was present at the hearing, prepared affidavits regarding their recollection of what transpired. V.S.'s appellate counsel then prepared a proposed statement of the evidence, certain portions of which were objected to by McLean's appellate counsel. After the parties failed to reach a consensus, the judge reconstructed the record pursuant to Rule 8C(e) and (f).

V.S.'s objection to this Division's reliance on the reconstructed record is twofold: (i) the lack of a clerk at the hearing violated her right to due process, and (ii) the reconstructed record lacks necessary detail for this panel to decide her appeal. We disagree.

While § 4:00 of the Standards of Judicial Practice does indicate a clerk should be present at the hearing, there is nothing in the record to suggest the failure of the recording device would not have occurred had a clerk been present. In this era of electronic recording of court hearings, versus the presence of a live court reporter, occasional miscues are inevitable. See Matter of M.C., supra at 346 ("[E]ven court houses equipped with new recording systems occasionally experience recording equipment malfunctions.").

Likewise, we do not find that the reconstructed record is deficient. As discussed below, the judge's statement of the evidence contains sufficient detail concerning whether McLean met its burden during both the commitment stage as well as the treatment portion of the testimony. See Commonwealth v. Bottiglio, 357 Mass. 593, 597 (1970) (must be "enough in the record pertinent to the point to enable us to decide [this appeal] without resort to speculation").

4. Order of commitment. The evidence offered by McLean during the commitment hearing was the testimony of Dr. Ticlea. Through counsel, V.S. stipulated to Dr. Ticlea's qualifications. In opposition to the commitment, V.S. testified in her own behalf, and counsel offered certain of V.S.'s medical records. The records consisted of progress notes prepared by a physician and social worker who met with V.S. during clinical rounds at McLean.

Upon a finding that the failure to hospitalize an individual would create a likelihood of serious harm by reason of mental illness, a judge may order the commitment of the individual for a period of six months. G.L. c. 123, § 8. The standard of proof is proof beyond a reasonable doubt. Guardianship of Roe, 383 Mass. 415, 423-424 (1981).

There are three prongs to the statutory definition of a "likelihood of serious harm," only the third of which is relevant in this case: "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." G.L. c. 123, § 1.

In Matter of G.P., 473 Mass. 112 (2015), the Supreme Judicial Court noted that with regard to the third prong, the harm that is to be considered is "physical impairment or injury" to the respondent and a "very substantial risk" of that type of harm is shown by evidence that the respondent's judgment is so adversely affected by her mental illness that she cannot protect herself from physical harm, and that the

Page 91

community does not include any reasonably available external source of adequate protection. Id. at 128-129. The focus in this context is on the respondent's degree of impaired judgment due to her illness; the degree of likelihood that she will sustain or inflict injury; and the inability of any other person or persons in the respondent's community to provide her protection against these risks. Id. at 129.

It is clear from the reconstructed record that V.S. arrived at McLean after her discharge from the emergency room of Massachusetts General Hospital. Demonstrating some familiarity with McLean, V.S. asked to be taken to McLean following her discharge, versus a homeless shelter. She was experiencing delusions and complaining of elder abuse in the form of a skin condition described as dermatitis.

McLean's witness, Dr. Ticlea, examined V.S. two days after her admission to McLean. Dr. Ticlea opined V.S. suffered from a mental illness, namely, schizoaffective disorder. Dr. Ticlea noted that V.S. suffered from delusions, disorganization, paranoia, and auditory hallucinations. In Dr. Ticlea's view, V.S. presented an imminent risk of harm to herself due to her lack of understanding about her medical condition and her inability to follow recommendations regarding treatment despite complaints of significant pain. According to Dr. Ticlea, V.S.'s frequent emergency room visits demonstrated an inability to manage in the community, and her homelessness suggested there was no less restrictive alternative.

On appeal, V.S. argues the reconstructed record lacks detail regarding objections regarding hearsay testimony of Dr. Ticlea. Neither the affidavit of trial counsel nor of trial counsel's mentor makes any mention of particular objections that were overruled by the judge. In any event, virtually all of the observations Dr. Ticlea testified to were also contained in the progress notes offered by V.S. and admitted into evidence -- that V.S. was homeless, malodorous, exhibited poor hygiene, disorganized, espousing grandiose delusions, and experiencing auditory hallucinations. The progress reports also indicate V.S. lacked insight into her condition and was refusing aftercare treatment. The evidence before the judge at the close of the hearing, coupled with the judge's own observation of V.S., provided ample basis for the judge to find beyond a reasonable doubt the standard for commitment under the third prong was met. [Note 6] Issues of credibility and the weight of the evidence are typically left to the trial judge. Tri-County Contrs. v. Diamond Collision Specialists, Inc. 2014 Mass. App. Div. 89, 92. [Note 7]

5. Order of treatment. Under G.L. c. 123, § 8B(a), the superintendent of a facility may file a petition with the District Court for a person who is the subject of a petition or an order for commitment to "adjudicate the patient incapable of making informed decisions about proposed medical treatment [and] to authorize, by an adjudication of substituted judgment, treatment with antipsychotic medications." Under G.L. c.

Page 92

123, § 8B(d), "[T]he court shall not authorize medical treatment unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan." The foregoing elements must be proved by a preponderance of the evidence, and the court must give close attention to the evidence and enter specific findings on each of the issues. See Guardianship of Jane Doe, 411 Mass. 512, 523-524 (1992).

The hearing on the treatment petition immediately followed the commitment hearing. Dr. Ticlea was again the sole witness for McLean. The judge made detailed findings in support of each of the elements necessary to warrant the allowance of the petition. Those findings were dated the same day as the hearing. In them, the judge found V.S. was incompetent because her thought process was not based in reality, and she was unable to think or act for herself as to matters concerning personal health, safety, and general welfare. The judge found further that V.S. did not understand the nature of her illness or the risks and benefits of the proposed treatment.

Regarding substituted judgment, the judge noted the potential side effects of the proposed plan and found that, without treatment, V.S.'s condition would deteriorate, leading to a longer hospitalization. With treatment, the judge found V.S. would likely be able to return to the community. The judge then approved treatment with two antipsychotic medications, six possible alternatives, and a number of non-antipsychotic medications.

The judge's findings are supported by the reconstructed record, where the judge recognized Dr. Ticlea's opinion that V.S. did not have the capacity to make decisions regarding treatment and specifically incorporated his contemporaneous written findings. We do not set aside a judge's findings of fact unless they are "clearly erroneous." Mass. R. Civ. P. 52(c). A finding is "clearly erroneous" only when, "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). While the passage of time made reconstruction of the record in this case a challenge for both the parties and the judge, the judge's findings are supported by the record and were not clearly erroneous.

For all of these reasons, the trial court's order of commitment and subsequent order for treatment are affirmed.