2022 Mass. App. Div. 9

June 11, 2021 - May 5, 2022

Appellate Division Southern District

Court Below: District Court, Plymouth Division

Present: Finigan, Cunis & Campbell, JJ. [Note 1]

No brief filed for petitioner.

Roderick S. Oreste for the respondent.

FINIGAN, J. Pembroke Hospital, a psychiatric hospital, petitioned for the civil commitment of the respondent ("P.B.") pursuant to G.L. c. 123, §§ 7 and 8 and an accompanying order to administer antipsychotic medication to P.B. under G.L. c. 123, § 8B. After a hearing before a District Court judge, both petitions were allowed and this appeal followed. The appeal comes before us on the record of the proceedings pursuant to Dist./Mun. Cts. R. A. D. A. 8C.

On a November day in 2019, P.B. was stopped by a town of Dartmouth police officer for failure to keep her motor vehicle within marked lanes. During the stop, the officer determined that P.B., a seventy-six year old woman, was operating an unregistered vehicle. At some point during the encounter, P.B. became agitated and alighted from her vehicle to speak to the officer. The officer became sufficiently concerned by P.B.'s words and conduct that the officer transported P.B. to the emergency room of a local hospital to address what the officer believed to possibly be suicidal behavior. Following that visit, an emergency room physician sought the temporary involuntary hospitalization of P.B. at Pembroke Hospital (the "hospital") pursuant to G.L. c. 123, § 12, where she arrived on November 27, 2019. The hospital then filed its petitions on December 3, 2019.

A hearing on the G.L. c. 123, §§ 7 and 8 petition was held at Pembroke Hospital three days later, where P.B. appeared with counsel. The hospital presented one witness, Dr. Andrew Bott ("Bott"), P.B.'s attending psychiatrist. P.B. testified on her own behalf, and P.B.'s attorney also offered the testimony of a friend of P.B. At the conclusion of the testimony, the judge allowed the commitment petition, and the hospital recalled Dr. Bott with respect to the treatment petition, which was also allowed.

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) (appeal from expired or terminated commitment and treatment orders should not be dismissed without considering merits of appeal in light of party's surviving interest in establishing order not lawfully issued).

1. Order of commitment. General Laws c. 123 addresses the involuntary civil commitment of persons with mental illness. Upon a finding that the failure to hospitalize

Page 10

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. There are three prongs to the definition of likelihood of serious harm, discussed further below, which are, in sum, harm to oneself, harm to others, or inability to protect oneself in the community. Matter of J.P., 486 Mass. 117, 118-119 (2020), quoting G.L. c. 123, § 1. The standard of proof is proof beyond a reasonable doubt. Guardianship of Roe, 383 Mass. 415, 423-424 (1981). At the hearing, Dr. Bott testified he believed P.B. was suffering from mental illness, which he characterized as paranoid psychosis. Concerning the likelihood of serious harm, Dr. Bott's opinion that P.B. posed a danger to herself was twofold: she posed a danger to herself as a suicide risk and if she were released, would be unable to manage in the community. Dr. Bott's review of emergency room notes suggested P.B. "had jumped or exited the car, was in the travel lane, [and] stated that she wanted to kill herself" at the time she was stopped. Further, according to Dr. Bott, on one occasion while at the hospital, P.B. stated she would rather "slit her throat" than attend a group session. As to P.B.'s inability to protect herself in the community, Dr. Bott testified he believed P.B.'s impaired judgment and lack of insight would place her in jeopardy. Dr. Bott did concede, however, he knew little about P.B.'s prior living arrangement and was unaware of any prior psychiatric treatment history.

For her part, P.B. denied she suffered from a mental illness, and stated she lived in an apartment building and depended upon Social Security for support. On the day in question, according to P.B.'s testimony, she had been on her way to meet an attorney to straighten out an issue she was having with her Social Security checks. While acknowledging her vehicle had been unregistered, she denied having suicidal thoughts or making such statements. According to P.B., when she sensed the officer was not going to let her explain her situation, she stated, "If you don't listen to me, I'll kill myself." Regarding her statement she would rather slit her throat than attend a group session, P.B. stated she did not recall saying that and it was not an expression she uses. The third and final witness was P.B.'s longtime friend, who saw her several times a week and did not observe P.B. to be suicidal or exhibiting irrational or erratic behavior. At the close of the testimony, the judge found the hospital had sustained its burden under the first prong of the definition of likelihood of serious harm, finding that P.B. posed a suicide risk, and committed her for six months. [Note 2]

As a preliminary matter, commitment requires the hospital first establish P.B. was suffering from a mental illness. Dr. Bott's testimony on this point was sparse: he was unaware of P.B.'s earlier psychiatric history, did not review any prior records, and based his opinion, it would appear, on the fact that P.B.'s filing of multiple lawsuits against the government suggested paranoia. Assuming without deciding that the hospital met its burden of proving that P.B. was mentally ill, proof of mental illness alone

Page 11

is not enough to justify a commitment. Matter of R.H., 2019 Mass. App. Div. 16, 18. See also Matter of G.P., 473 Mass. 112, 128 (2015) (proof of chronic alcohol or substance abuse, by itself, is insufficient to support commitment under G.L. c. 123, § 35). The hospital must also prove beyond a reasonable doubt that the respondent's mental illness creates a likelihood of serious harm. We agree with P.B. that the evidence here was insufficient. Of the three prongs in the statutory definition of a "likelihood of serious harm," the first is applicable to this appeal: "a substantial risk of physical harm to the person [her]self asmanifested by evidence of, threats of, or attempts at, suicide or serious bodily harm." G.L. c. 123, § 1. See Matter of G.P., 473 Mass. 112, 118 (2015). Matter of G.P. imposes a requirement that the harm must have a real prospect of occurring; it cannot be speculative, and it cannot be far into the future. Id. at 127. Rather, what must be shown is a substantial risk that the anticipated harm will materialize in the reasonably short term -- "in days or weeks rather than in months." Id. at 128.

The evidence of P.B.'s risk of self-harm was based on two sources: hearsay statements of an unidentified police officer contained in the emergency room notes and her own statements. While the medical records themselves were not in evidence, Dr. Bott paraphrased them during his direct testimony. Generally, experts may not testify on direct examination about the basis of their opinion when these facts are neither within their personal knowledge nor otherwise admitted in evidence during the proceeding. Matter of P.R., 488 Mass. 136, 137 (2021). Even if the records were in evidence, the police officer's observations would be second or third-level hearsay and generally not admissible as not made for the purposes of diagnosis and treatment. See G.L. c. 233, § 79. Nonetheless, the statements were not objected to, so the judge could rightfully consider them in making his findings. See Commonwealth v. Silva, 431 Mass. 401, 404 (2000), quoting Commonwealth v. Keevan, 400 Mass. 557, 562 (1987) ("Hearsay which is not objected to at trial may be 'weighed . . . with the other evidence, and given any evidentiary value which it may possess.'"). We find, though, the lack of specificity contained in the unattributed hearsay, that P.B. was "swerving" and "jumped or exited the car," lacked sufficient detail to warrant a finding that P.B. was suicidal.

Dr. Bott also testified that the emergency room notes contained a statement of P.B. that "she wanted to kill herself." This statement is admissible as a statement ofa party opponent. See Mass. G. Evid. §801(d)(2)(2021) (statement of party opponent not hearsay). Similarly, P.B. made a statement to that effect when confronted with the prospect of attending a group session. In her defense, P.B. stated she did not remember making such a statement and that it was not an expression she uses. Dr. Bott also testified that this statement "seemed like an element of frustration." Beyond the two statements, there was nothing more to support a finding that P.B. was suicidal as demonstrated by "evidence of" or "attempts at" self-harm. See G.L. c. 123, § 1. While concerning, we do not find these two statements, without more, rise to the level of proof beyond a reasonable doubt that P.B. was suicidal, mindful "that the harm must have a real prospect of occurring; it cannot be speculative." Matter of P.K., 2019 Mass. App. Div. 87, 88.

2. Order of treatment. A petition for the authorization to treat with antipsychotic medication brought under G.L. c. 123, § 8B is "separate from any pending petition for commitment and shall not be heard or otherwise considered by the court unless

Page 12

the court has first issued an order of commitment on the pending petition for commitment." G.L. c. 123, § 8B(b). In other words, a commitment order is a "condition precedent" to obtaining an order ofsubstituted judgment. Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 106-107 (2000). Because we vacate the order of commitment, we likewise set aside the treatment order.


[Note 1] The Honorable Cathleen E. Campbell participated in the oral argument of this appeal before her appointment to the Superior Court.

[Note 2] While not expressly so stating, it appears the judge rejected the hospital's argument that P.B. posed a danger under the third prong(unable to care for herself in the community). As to the third prong, the Supreme Judicial Court in Matter of G.P., 473 Mass. 112 (2015) stated that 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. Both P.B. andher friend testified P.B. was independently living in the community prior to her encounter with the Dartmouth police.