IN THE MATTER OF P.K.

KARSTETTER, J. McLean Hospital (the "hospital") petitioned to commit P.K. pursuant to G.L. c. 123, §§ 7 and 8 and for an order authorizing medical treatment pursuant to G.L. c. 123, § 8B. A hearing was scheduled and continued once by agreement for two days. On that hearing date, P.K.'s attorney moved to continue. After hearing testimony from the hospital's expert, the trial judge denied the request for a continuance. There were other grounds for the appeal, but because the request for a continuance should have been allowed, we need not reach the remaining arguments on appeal. The commitment order must be vacated and the treatment order likewise set aside.

Facts. On Tuesday, June 30, 2020, the hospital filed a petition for civil commitment of P.K. in accordance with G.L. c. 123, §§ 7 and 8 as well as a petition for authorization of treatment pursuant to G.L. c. 123, § 8B. A hearing was scheduled for Tuesday, July 7, 2020. On Thursday, July 2, 2020, P.K.'s attorney filed his notice of appearance along with a motion for funds for an independent evaluation, which the court allowed. On Monday, July 6, 2020, the hospital's attorney filed her appearance. On the original hearing date of Tuesday, July 7, 2020, the docket reflects that the court rescheduled the hearing for two days later (Thursday, July 9, 2020) with the notation, "Both Parties Request."

The next day, Wednesday, July 8, 2020, P.K.'s attorney filed a motion for continuance of the Thursday, July 9 hearing to Tuesday, July 14, 2020, or "at the very least" for one additional day until Friday, July 10 to allow sufficient time for "evaluation, preparation, and case presentation, utilizing the services of an independent medical examiner for the same," among other reasons. P.K.'s attorney also filed a motion to dismiss. On Thursday, July 9, 2020, P.K.'s attorney filed an "amended" motion to continue the hearing. As additional grounds for the continuance, P.K.'s attorney cited the unavailability of the independent medical examiner ("IME") for testimony at the scheduled hearing and urged the court to allow "more time for review by the IME, including collateral contacts." P.K.'s amended motion also contained the basis that her counsel needed more time to prepare the case. As a further argument, P.K.'s counsel wrote, "Respondent asserts the hospital is not drawing her blood daily to monitor any alleged emergency regarding her [medical condition], and therefore questions the alleged emergency, certainly as it is alleged to pertain to any potential need for civil commitment." P.K.'s counsel was

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prepared to argue the motion to dismiss and did so. It was denied at the hearing on July 9, 2020. [Note 2]

Thereafter, the court heard arguments on the requested continuance of the hearing. P.K.'s attorney argued that the IME had opined that P.K.'s medical condition did not "appear to be as much of an urgency." He also requested time to prepare, including time for the IME to speak to a potential witness that was "overseas," among "other parties that [counsel and the expert] were hoping to get in touch with." The hospital opposed the continuance, citing P.K.'s medical condition and her "condition . . . continuing to worsen."

The trial judge then stated, "Let me take testimony from [the hospital's witness, a psychiatric/mental health nurse practitioner] with respect to the medical concerns. And if there is a risk -­ if the testimony is that there is a risk of harm to her if the case is continued, I won't allow the motion to continue." The hospital's nurse practitioner (the "nurse") then testified without any challenge to her qualifications to render an opinion on P.K.'s medical condition.

The essence of the nurse's testimony was that upon admission and continuing, P.K. suffered from low sodium (hyponatremia) caused chiefly by drinking too much fluid, and that she had a history of same. While at the psychiatric unit, P.K. had not needed emergency medical intervention for her hyponatremia, she had had several visits from an on-call medical doctor, and her sodium level had shown recent improvement.

More particularly, while at the hospital, P.K.'s sodium level had been fluctuating, and it was being checked at regular periodic intervals. On "medical consult," the nurse testified (without objection) that there was "some speculation" among the "medical folks" that the condition could be worsened by medications and that "the medication [had] been stopped now." There was no evidence about what medication had been stopped.

P.K.'s sodium had been checked two days before the hearing on July 6, 2020 (it was up to one point shy of normal) and on the morning of the hearing, July 8 (without results being available). At one point during her stay, it was within the normal range. The hospital managed P.K.'s fluid intake with extra staff to prevent her from overhydrating.

When asked about how quickly P.K.'s sodium could drop, the nurse answered, "Very -- I mean, very quickly. Even in -- you know, within a day's time, a recheck the following day." The nurse opined that another few or even several days of a continuance would "put [P.K.] at risk," and her condition could "change just within a day." The nurse believed that without treating her mental illness, P.K.'s medical condition would not "better improve."

The nurse testified that P.K. had reasoned that more salt would allow her to drink fluid at the quantity she desired, and that she did not want medication because she wanted to be "aware or alert" for meeting her IME. There was no evidence that P.K. would not allow blood draws to check her sodium levels or that she would not see a medical doctor on call, having previously been seen on more than one occasion.

At the end of the evidence, the judge asked the nurse, "[I]f I were to grant a continuance, does that put her in a life-threatening situation, a potentially life-threatening situation?" The nurse answered, "I mean, I think yes. Like, hyponatremia is life-threatening, and so, yes, if her sodium goes low enough she -- I mean, it's

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life-threatening." The judge then said, "And this case was continued once before because -­ if it hadn't been continued, I would give it a continuance, but it has been continued for a week [sic]." It had been continued for two days. In rendering her decision to deny the requested continuance, the judge said, "If this were the first continuance, I would allow it."

Analysis. Civil commitments involve a "massive" infringement of 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). Respondents are entitled, therefore, 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, among other things, 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.

A respondent is allowed no less than two days after the appearance of her counsel in which to prepare her case, "and a hearing shall be conducted forthwith after such period unless counsel requests a delay." G.L. c. 123, § 5. The wording of the statute ("unless counsel requests a delay") implies a continuance as of right beyond the date required for hearing, without the need for the petitioner's agreement. [Note 3] P.K.'s attorney filed his appearance on Thursday, July 2, 2020. The hearing was properly scheduled for two days later (excluding the intervening weekend) [Note 4] on Tuesday, July 7, 2020. By agreement, a continuance of two days occurred to July 9, 2020. The trial judge had broad discretion to decide the motion to continue, and we give that discretion deference. "[A] judge's discretionary decision constitutes an abuse of discretion where we conclude the judge made 'a clear error of judgment in weighing' the factors relevant to the decision . . . such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). See C.C. v. J.M., No. 20-P-1121 (Mass. App. Ct. March 14, 2022) (unpublished Rule 1:28 decision).

The trial judge credited the testimony of the nurse at the continuance hearing, and, as she was the fact finder, we give her due deference in doing so. We think, however, that the nurse's testimony was insufficient to conclude that there was an imminent danger to P.K.'s health warranting an immediate hearing. We also conclude the judge failed to weigh the due process concerns afforded to respondents in commitment hearings against whatever health danger there may have been.

The weight of the evidence suggested that a continuance of one day was within

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the range of reasonable alternatives as it was unlikely to create a danger to the respondent that could not be addressed by a physician or the hospital's own emergency department. The nurse's medical opinion was that P.K.'s condition could deteriorate "very quickly," meaning "within a day's time" or "just within a day," not minutes or hours. P.K. had not required emergency treatment during her stay, there was no evidence that she suffered any of the more serious symptoms of hyponatremia described by the nurse, and her blood testing schedule suggested that the progress of P.K.'s symptoms was not of daily concern. P.K.'s counsel sought a continuance of one day (at least), which, by the nurse's testimony, would have been within the window of any rapid deterioration in P.K.'s medical condition.

Had P.K. originally sought an opposed continuance of one week rather than the agreed continuance of two days, the judge's comments reveal that she might have allowed it. Her comments included her mistaken belief that the hearing had already been continued for one week. The judge's comment that if the hearing had not already been postponed she would have granted the request evidenced her possible acknowledgment that the respondent's request for a continuance should be seriously considered, given due process concerns. It is difficult to conclude that the judge acknowledged due process concerns, however, because she also commented, "Well, it seems to me there clearly was enough time to consult with an IME. Funds were allowed a while ago, and the statute is very clear. I mean, the statute -- the reason why we -- there are such short dates is because of the nature of these proceedings." She said nothing about the examiner's unavailability for the hearing.

Alternatively, her comments could be viewed as her possible acknowledgement that the evidence of danger to P.K.'s health was, on balance, not so compelling when weighed against the due process concerns. It is difficult to conclude this alternative, however, given the judge's comments at the beginning of the hearing, which revealed that the determinative factor in deciding the continuance request was the potential harm to P.K. from her medical condition ("[I]f the testimony is that there is a risk of harm to her if the case is continued, I won't allow the motion to continue."), rather than a weighing of that harm with the due process concerns raised by her attorney.

While there may have been some urgency for P.K. to receive medical treatment, "expediency of treatment may not impinge on a person's right to prepare a defense." Matter of N.L., supra at 637. By denying P.K.'s request for a continuance, the court denied her 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, the treatment order must also be set aside. Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 106-107 (2000).