IN THE MATTER OF J.E.

PETERSON, J. This is an appeal from an order of civil commitment pursuant to G.L. c. 123, §§ 7 and 8. The appeal raises two issues. First, we must decide whether the judge who heard the petition erred when he denied the respondent's motion to dismiss for lack of jurisdiction. Second, we must decide whether the petitioner satisfied its evidentiary burden. For the reasons discussed below, we find no error and affirm.

Background. The respondent, J.E., is a fifty year old female who suffers from schizoaffective disorder and an uncommon comorbidity, psychogenic polydipsia. J.E. was previously committed to Worcester Recovery Center and Hospital ("WRCH") on February 19, 2020 pursuant to G.L. c. 123, §§ 7 and 8. On February 17, 2021, that commitment order expired, and the chief executive officer of WRCH filed a petition to recommit J.E. for another year.

Although J.E. was already involuntarily committed and with a petition for recommitment pending, J.E. applied for conditional voluntary commitment under G.L. c. 123, §§ 10 and 11. Toward that end, J.E. completed and signed a written "Application For Care And Treatment On A Conditional Voluntary Basis" on March 19, 2021.

On March 22, 2021, three days after submitting her application for conditional voluntary commitment, J.E. filed a written motion to dismiss the commitment petition. J.E. asserted that the court lacked jurisdiction to hear the petition because she was willing to remain at WRCH on a conditional voluntary basis and had the capacity to agree to such. On March 24, 2021, prior to hearing WRCH's petition, the judge conducted a hearing on J.E.'s motion.

J.E. called an expert witness, Dr. Nellie Cohen ("Cohen"), for the limited purpose of presenting evidence that J.E. had the requisite capacity to apply for voluntary commitment. Dr. Cohen, a licensed clinical psychologist, testified on behalf of J.E. [Note 1] She testified that she met with J.E. and conducted a clinical interview and mental status evaluation. As a result of the interview, she formed an opinion as to J.E.'s capacity to agree to a conditional voluntary commitment. Dr. Cohen opined that J.E. had the capacity to understand the criteria for applying for a conditional

Page 110

voluntary commitment. [Note 2] WRCH did not call any witnesses or offer any evidence to challenge J.E.'s capacity. Instead, WRCH's counsel simply argued that there was no mechanism under the statutory scheme for an individual already involuntarily committed to transition to conditional voluntary status. After argument, the judge denied J.E.'s motion to dismiss. [Note 3]

After denying J.E.'s motion, the same judge immediately conducted an evidentiary hearing relative to WRCH's petition. WRCH called Dr. Amber Thompson ("Thompson"), J.E.'s attending psychiatrist at WRCH, as an expert witness. [Note 4]

Dr. Thompson testified that she was well familiar with J.E. and her clinical presentation, having met with her on a weekly basis since J.E.'s initial commitment to WRCH in 2020. Dr. Thompson described J.E.'s mental illness as schizoaffective disorder, bipolar type. Dr. Thompson testified that J.E. was initially admitted to WRCH because she was struggling with ongoing psychosis, specifically psychogenic polydipsia. Psychogenic polydipsia is an impulsive urge to drink fluids to excess, which can lead to hyponatremia, a dangerous condition marked by low levels of sodium in the body. The doctor testified that J.E. "very impulsively grabs and takes fluids, drinks as much fluid as she can, and unless she's restricted from fluids, locations where she could obtain fluids, she will . . . pretty persistently drink any fluids she can get her hands on." Dr. Thompson testified that J.E.'s uncontrollable impulse to drink fluids was so acute that she would drink water out of sinks and even toilets, which required the WRCH staff to lock her bathroom door and closely monitor her when she was outside of her room. When asked whether psychogenic polydipsia is considered a mental illness, Dr. Thompson testified that "it can be," but conceded that this disorder is not currently included in the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) ("DSM-V").

Dr. Thompson opined that J.E., if discharged from WRCH, would pose a substantial risk of harm to others. When asked to explain the basis for this opinion, the doctor explained that J.E. has been verbally aggressive while at WRCH and that she has a "tendency to hit people when she's walking down the hallway." She later qualified her testimony by stating that J.E. only "bumped" into people.

Dr. Thompson also opined that J.E.'s release from a secure facility would pose a substantial risk of physical harm to herself. In support of this opinion, the doctor explained that J.E. does not have the ability to adequately care for or protect herself "because of the polydipsia and because of her inadequate hygiene." She continued: "Without hospitalization and treatment, I think she would be much, much worse. I think she would be very impulsive. It would take less than 24 hours for her to become so hyponatremic that she would require hospitalization medically." Further,

Page 111

Dr. Thompson testified that although J.E. passively accepts medications while at WRCH, she routinely informed staff that she does not need medication, from which a fact finder could reasonably infer that J.E. would stop taking her medication if unsupervised.

When asked about availability of any "less restrictive alternatives" to hospitalization, Dr. Thompson testified that she was not aware of any outpatient treatment that would provide the level of observation that J.E. required. The doctor testified that J.E. was not considered "discharge ready." Finally, Dr. Thompson testified that WRCH staff were not able to explore the possibility of releasing J.E. into the community with a personal care assistant assigned to her as she had requested because J.E.'s guardian was unwilling to take J.E. in and had previously prohibited staff from communicating with J.E.'s family members.

At the conclusion of the hearing, the judge allowed the petition and committed J.E. to WRCH for an additional year. In addition to checking off the applicable boxes on the "Order of Civil Commitment," the judge penned the following on the Order: "Done via ZOOM with both counsel present. Pt. decided not to attend. 2C proved." [Note 5] This appeal followed.

Motion to dismiss. We are initially tasked with deciding whether the judge erred in denying J.E.'s motion to dismiss the petition based on lack of jurisdiction. The procedures for a voluntary commitment to a facility like WRCH are set forth in G.L. c. 123, §§ 10 and 11 and 104 Code Mass. Regs. § 27.06. Matter of J.T., 2020 Mass. App. Div. 142, 144. Pursuant to this statutory scheme, the superintendent of a facility may accept an individual on a voluntary basis only after the admitting physician determines that the individual has the requisite capacity to apply for such status. Id. If the physician determines that the person lacks the capacity to understand these facts and consequences of hospitalization, the application shall not be accepted. Id.

J.E.'s proposition that an individual who is already involuntarily committed and subject to a pending commitment petition can nonetheless apply for a conditional voluntary commitment, and then move to dismiss the petition for lack of jurisdiction, would turn the statutory scheme on its head. Framing the issue as one of first impression, J.E. offers no cases that support her position. As we commented in Matter of R.F., 2023 Mass. App. Div. __ (No. 21-ADMH-05WE, issued July 25, 2023), in addition to perverting G.L. c. 123, §§ 10 and 11, allowing an individual already involuntarily committed to apply for "conditional voluntary" status would frustrate the purpose of the statutory scheme, which is to protect a respondent's safety as well as the safety of the community, by overburdening facilities with unnecessary administrative and evidentiary hurdles.

We begin with the plain language of the statute. International Fid. Ins. Co. v. Wilson, 387 Mass. 841, 853 (1983). Clear and unambiguous language is conclusive as to legislative intent. Commissioner of Correction v. Superior Ct. Dep't of the Trial Ct. for the County of Worcester, 446 Mass. 123, 124 (2006). General Laws c. 123, §§ 7 and 8 govern involuntary commitments, while G.L. c. 123, §§ 10 and 11 address admissions for care and treatment on a conditional voluntary basis. There is no language within G.L. c. 123, §§ 10 and 11 or the ancillary regulations that allow an individual who is already involuntarily committed to apply for a conditional voluntary

Page 112

status. Rather, the clear language of the statute -- i.e., "Pursuant to departmental regulations on admission procedures" (emphasis added) G.L. c. 123, § 10(a) -- compels a contrary inference. It is well established that "where two or more statutes relate to the same subject matter, they should be construed together so as to constitute a harmonious whole consistent with their legislative purpose." Board of Educ. v. Assessor of Worcester, 368 Mass. 511, 513-514 (1975). See Matter of E.C., 479 Mass. 113, 118-119 (2018).

With one notable exception, the statutory procedures for involuntary and voluntary commitments are mutually exclusive. They converge only under one circumstance: when a respondent who was originally admitted for hospitalization and treatment on a voluntary basis vacillates and elects to self-discharge despite still posing a risk of harm to himself or others. In that limited circumstance, the facility can petition the court to retain the respondent on an involuntary basis. As J.E. was already involuntarily committed and a new petition was pending, a conditional voluntary commitment was not an option, and WRCH properly rebuffed her application. Therefore, we find that WRCH did not have to offer any evidence under 104 Code Mass. Regs. § 27.05(7) to refute J.E.'s presumptive capacity, and that the judge properly denied J.E.'s motion to dismiss.

Commitment petition. Having affirmed the denial of J.E.'s motion to dismiss, we now turn to J.E.'s contention that the evidence was insufficient to support her commitment. The essential elements that the petitioner must prove for an involuntary commitment, all by the proof beyond a reasonable doubt standard, are: a mental illness; discharge from the facility would create a likelihood of serious harm; and absence of any less restrictive alternative. G.L. c. 123, §§ 7 and 8. Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978). As to the "likelihood of serious harm" element, the petitioner must prove at least one of the three different prongs: harm to self; harm to others; or inability to protect oneself in the community. Matter of J.P., 486 Mass. 117, 118-119 (2020), citing G.L. c. 123, § 1.

As a threshold matter, we agree that there was ample evidence for the judge to conclude that J.E. suffered from a mental illness. Here, consistent with the petition, Dr. Thompson testified that J.E. suffers from schizoaffective disorder, bipolar type. In addition, Dr. Thompson testified that J.E. suffers from an "ongoing psychosis," in her case psychogenic polydipsia. J.E.'s counsel, relying on Dr. Thompson's testimony, argues that the psychogenic polydipsia, not schizoaffective disorder, is the root cause of her high-risk behavior. [Note 6] Because psychogenic polydipsia is not recognized as a mental illness by DSM-V, J.E. reasons, WRCH could not rely on this comorbidity to support the commitment petition.

We disagree with J.E.'s characterization of the evidence put before the judge and therefore do not find her argument persuasive. First, while Dr. Thompson conceded

Page 113

that polydipsia is not listed in DSM-V, she opined that it nonetheless "can be" a mental illness. We know of no cases or guidelines that stand for the proposition that a psychiatric or psychological disorder, in order to be considered a mental illness, must be included in DSM-V. While clinical diagnoses like those described in DSM-V offer some value, they are not dispositive. "[T]he court should always require specific evidence of a 'substantial [mental] disorder' which 'grossly impairs' the person's functioning . . . ." Commentary to Standard 2:00 of the District Court Standards of Judicial Practice: Civil Commitment and Authorization of Medical Treatment for Mental Illness (rev. Apr. 2019). Second, while psychogenic polydipsia is not a stand-alone mental illness currently included in DSM-V, it is by definition a psychotic condition that frequently occurs with chronic mental illness, specifically schizophrenia. [Note 7] "Psychogenic" means "originating in the mind or in a mental or emotional conflict." Merriam-Webster Dictionary (11th ed. 2003). In the end, we find that J.E.'s dual diagnoses of schizoaffective disorder and psychogenic polydipsia clearly qualify as "a substantial disorder of thought, mood, perception, orientation, or memory which grossly impair judgment, behavior, capacity to recognize reality or ability to meet the ordinary demands of life." 104 Code Mass. Regs. § 27.05(1)

As J.E. correctly points out, although Dr. Thompson opined that J.E., if discharged, would pose a risk of harm to others, the trial judge declined to make such a finding. [Note 8] However, as memorialized by the commitment order, the judge did find that WRCH proffered sufficient evidence to satisfy the so-called third prong: "(3) 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. "The focus of the evidence, then, must be on the respondent's degree of impaired judgment due to [mental illness]; the degree of likelihood that, as a direct consequence, the respondent will sustain or inflict injury (for example, by failing to take care of an existing medical condition that is exacerbated by [mental illness] . . .); and the inability of any other person or persons in the respondent's community to provide protection against such risks." Matter of J.T., 2020 Mass. App. Div. 61, 62, quoting Matter of G.P., 473 Mass. 112, 129 (2015). Also, because the third prong requires "a very substantial risk of harm," the imminence of the risk is a critical factor. Id. "[W]hat must be shown is a substantial risk that the harm will materialize in the reasonable short term -- in days or weeks rather than in months." Matter of D.K., 2017 Mass. App. Div. 129, 131, quoting Matter of G.P., supra.

After review of the record, specifically Dr. Thompson's testimony, we conclude that there is sufficient evidence in the record to support the judge's finding that J.E.'s mental illness posed a very substantial threat to her. Whether or not the judge accepted psychogenic polydipsia as a stand-alone mental illness or simply a sequela of her schizoaffective disorder, the judge was certainly free to consider this "ongoing

Page 114

psychosis" in the "risk of harm to self" calculus. While the more consequential risks of harm to J.E. (e.g., hyponatremia) are perhaps attributable to the polydipsia, the evidence of "substantial risk of harm" was not limited to this condition. In addition, Dr. Thompson testified that J.E. was "disorganized" to the degree that she was unable to successfully manage her hygiene. [Note 9] Next, Dr. Thompson testified that J.E. struggled with "impulsivity," maintained little, if any, self-awareness, and was unable to engage in reality-based conversations. Finally, in addition to the extreme measure of locking J.E.'s bathroom door so that she could not drink water from the sink and toilet, Dr. Thompson testified that J.E. required intensive staff support that is simply unavailable in other settings to ensure that she maintained at least a modicum of hygiene and medication adherence. In summary, the risk of serious internal injury or even death due to psychogenic polydipsia, her impulsivity, her inability to care for herself, and her belief that she did not need medications provide sufficient evidence to support the judge's determination that J.E. was unable to protect herself in the community. See Matter of J.T., supra at 63; Matter of D.K., 2017 Mass. App. Div. 129, 131, aff'd 95 Mass. App. Ct. 95 (2019).

Finally, we find that WRCH equally met its burden that there was no less restrictive alternative to involuntary commitment at WRCH. First, we accept as sufficient Dr. Thompson's testimony that there was simply no outpatient setting that would be able to provide J.E. with the level of observation required to address her psychogenic polydipsia and underlying impulsivity. Second, while acknowledging that J.E. requested discharge to the community with a "one-on-one PCA" (personal care assistant), she testified that such an arrangement was untenable because J.E.'s guardian was not only unwilling to let J.E. reside with her but had also consistently declined to allow WRCH to communicate with J.E.'s family members.

For the foregoing reasons, we affirm both the denial of the motion to dismiss and the order of commitment.