IN THE MATTER OF C.S.

MELIKIAN, J. C.S. appeals her one-year commitment under G.L. c. 123, §§ 7 and 8 to the Worcester Recovery Center and Hospital ("WRCH"). The appeal raises three issues. First, C.S. argues that WRCH did not sufficiently prove that there was a prior order of commitment and, therefore, the court did not have jurisdiction to hear the petition, rendering the year-long commitment order invalid. Second, she argues that WRCH failed to prove beyond a reasonable doubt that her discharge would create a likelihood of serious harm due to her inability to care for and protect herself in the community. Finally, C.S. argues that WRCH failed to prove beyond a reasonable doubt that there was no less restrictive alternative to her hospitalization. For the reasons set forth herein, we affirm.

Background. On May 28, 2021, WRCH filed a petition to commit C.S. pursuant to G.L. c. 123, §§ 7 and 8 for a period of up to one year. On June 16 and 23, a hearing was held, during which the court heard testimony from Dr. Eduardo Caussade ("Caussade"), an attending physician at WRCH, and from C.S.'s sister. Following the hearing, C.S. was ordered committed for a period of up to one year.

Dr. Caussade testified at the hearing that he had observed C.S. on the unit and was familiar with her medical records, noting that she was transferred to WRCH from Pembroke Hospital for "continuing treatment and disposition planning." Dr. Caussade opined that C.S. suffers from schizophrenia, causing a substantial disorder of thought and a gross impairment in her judgment. He based his diagnosis on C.S.'s delusional thinking and statements, including C.S.'s belief that the hospital would force-feed her with a feeding tube; her denial that she has a mental illness because she does not have a brain; and her statement that she just needed five minutes of life support treatments and she would be fine. The doctor also testified that C.S. had been observed responding to voices and internal stimuli that apparently only she could hear. Dr. Caussade opined that C.S. was unable to grasp the risks, benefits, or reality of any treatment and discharge planning or life in the community and, therefore, she was unable to meet the ordinary demands of life. Dr. Caussade believed that C.S.'s delusional beliefs might cause her to avoid medical institutions altogether.

Ultimately, Dr. Caussade opined that C.S. posed a very substantial risk of harm to herself because her judgment was so impaired that she could not care for and protect herself in the community. He stated that, because of her symptoms, she would be unable to find medical care, seek resources, and would have difficulty seeking shelter, food, income, and resources in general. He reasoned that C.S. would need external resources to help have her needs met, and she would not have the volition

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to be able to reach out for help. Dr. Caussade testified that C.S. could engage in activities of daily living ("ADLs") with staff prompting and support but that she was unable to complete ADLs on her own.

Dr. Caussade opined that a locked psychiatric facility such as WRCH was the least restrictive placement for C.S. In support of this opinion, he referenced that C.S. still needed staff support to maintain her ADLs and to receive medication. WRCH had made efforts to find less restrictive alternatives. Dr. Caussade testified that two months prior to the commitment hearing, discharge planning had been discussed, including a women's shelter at Lindemann, but that no placement was available at the time of the hearing. At the time of the hearing, it was Dr. Caussade's belief that there were no less restrictive alternatives available for C.S.

Evidence at the hearing also included testimony of C.S.'s sister ("Sister"). Sister testified that C.S.'s family had filed a missing-person report in February, 2019, and that she was found by police and brought to the Pembroke Hospital emergency room eight months later. Sister testified that C.S. presented at the emergency room with what was diagnosed as a severe lice infestation on her head and body and appeared very thin. She further testified that she observed C.S. pulling her hair from her head and stuffing that hair into a plastic bag. Sister added that C.S. had been homeless off and on for the past twenty-plus years and had been at a variety of shelters.

When Sister tried to discuss health insurance with C.S., C.S. stated that "she didn't need MassHealth because she has pet insurance out of Maine." C.S. did not consider herself human and, therefore, she believed she needed a veterinarian, not a medical doctor. When asked about finances, C.S. responded that "well, just bill the mother ship." Sister further testified that C.S. has never had a mammogram or a Pap smear, despite being fifty-four years old, and that she presented with discolored and broken teeth causing her some discomfort. At the time of the hearing, Sister had been appointed C.S.'s temporary guardian and was able to secure MassHealth and SSI benefits for her. C.S. eventually agreed to take prescribed medication but expressed many times that she would take medication only if she was ordered by the court to take it.

Sister testified that, upon discharge, she did not know where C.S. would go. They had discussed a potential placement for C.S. at Lindemann, but it was Sister's understanding that there was not a bed available for her at the time of the hearing.

Discussion. Subject matter jurisdiction. C.S. first contends on appeal that the District Court was without subject matter jurisdiction to order a one-year commitment due to the failure of WRCH to establish that C.S. was under a prior order of commitment at the time the petition was filed. She argues that proof of a prior commitment order is a necessary procedural step and that WRCH must prove beyond a reasonable doubt that it complied. While WRCH stated in its petition that C.S. was under an existing order of commitment, [Note 1] C.S. contends no evidence was presented at the hearing of such a commitment. WRCH argues that C.S. waived the subject

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matter jurisdiction argument by not preserving it for appeal and that any error from not introducing evidence of the prior commitment was harmless.

The issue of subject matter jurisdiction is not waived by failing to raise it in the trial court and may be raised for the first time on appeal. Litton Bus. Sys., Inc. v. Commissioner of Revenue, 383 Mass. 619, 622 (1981). This rule applies in the context of appeals of G.L. c. 123 commitment proceedings. See Matter of J.M., 2021 Mass. App. Div. 29. The issue of subject matter jurisdiction is therefore not waived as the hospital contends.

Testimony from both Dr. Caussade and Sister was that C.S. had been previously committed and that this was a petition for recommitment. The evidence presented at the commitment hearing established that this was, in fact, a petition for recommitment following an expired commitment order.

Procedural provisions of G.L. c. 123 have been strictly construed due to the "massive curtailment" of liberty experienced by the persons involuntarily committed. Matter of J.M., supra; Matter of B.L., 2016 Mass. App. Div. 119. Appellate courts have found that the District Court lacked subject matter jurisdiction to hear a commitment proceeding in some cases where the procedural requirements of G.L. c. 123 were not met. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 105, 107 (2000) (superintendent lacked authority to petition for respondent's commitment so court was without jurisdiction to hear commitment petition); Hashimi v. Kalil, 388 Mass. 607, 609-610 (1983) (court lacked jurisdiction to hear commitment petition outside of statutory period).

Although no copy of the prior commitment orders is included in the record, there is no authority to suggest that such is necessary for a subsequent order of commitment. The requirement that the petitioner prove the elements for a commitment order beyond a reasonable doubt applies only to the elements of the commitment order: (1) an individual is mentally ill, (2) the individual's discharge from a facility would create a likelihood of serious harm, and (3) there is no less restrictive alternative to hospitalization. Matter of J.P., 486 Mass. 117, 118 (2020). There is no authority to suggest that the petitioner also needs to prove beyond a reasonable doubt that all the statutory procedural requirements were met. There are multiple sources of evidence in the record showing that there was a prior commitment order and that this was a petition for recommitment.

Likelihood of harm. C.S. next contends that the evidence was insufficient to support a finding that failure to commit would create a likelihood of imminent serious harm. Sections 7 and 8 of G.L. c. 123, address the long-term commitment of persons with mental illness, providing that no person shall be committed unless the District Court finds beyond a reasonable doubt that (1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm. Matter of N.L., 476 Mass. 632, 634 (2017). At issue here is the third prong of the definition of "likelihood of serious harm" -- whether there was sufficient evidence of a very substantial risk of physical impairment or injury to the respondent. G.L. c. 123, § 1. C.S. contends WRCH failed to sustain its burden of proving beyond a reasonable doubt that her judgment was so affected that she was unable to protect herself in the community and that reasonable provisions for her protection were not available. Id. A court reviewing an order of commitment is to look to whether there was sufficient competent evidence to support the order, not determine whether

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the evidence compelled an order of commitment. Matter of D.F., 2020 Mass. App. Div. 109, 113-114.

In analyzing whether there is sufficient evidence of a likelihood of serious harm under the third prong, the focus of the evidence must be on the respondent's degree of impaired judgment due to her mental illness and the degree of likelihood that as a direct consequence, the respondent will sustain or inflict injury. Matter of P.R., 488 Mass. 136, 141 (2021). Mental illness alone is insufficient to support such a finding. Matter of R.H., 2019 Mass. App. Div. 16, 18. However, it is not required that a commitment order be based on proof that an individual is unable to sustain herself even marginally in society. Id.

The degree of risk that the third prong requires to be proved is greater than that required by the other two prongs; a "very substantial" risk is not the same as a "substantial risk." Matter of G.P., 473 Mass. 112, 128 (2015). Therefore, the imminence of the risk of harm becomes an even more important factor in a prong three analysis than it is with respect to the other two prongs. Id. at 129. The evidence must support a conclusion that the harm will materialize "in the reasonably short term -- in days or weeks rather than in months." Matter of A.M., 94 Mass. App. Ct. 399, 402 (2018). An analysis of whether there is sufficient evidence to conclude there is a very substantial risk of harm under prong three may not treat one factor as determinative or look to factors independently but may view relevant factors collectively. Matter of R.H., 2019 Mass. App. Div. 16, 19 ("[W]e make clear that independently examined, no one factor would support a commitment of R.H. under the standard of Matter of G.P.").

Courts have found a likelihood of serious harm under prong three where an individual fails to take care of an existing medical condition, but typically that condition is active at the time of the hearing. See Matter of G.N., 2023 Mass. App. Div. 13; Matter of S.J., 2018 Mass. App. Div. 128, 130. There is no case law to support a conclusion that a respondent's failure to engage in preventative treatment or testing for a potential medical issue that may arise in the future, standing alone, supports a finding of a likelihood of serious harm under prong three. A medical condition that the respondent may be at risk for developing in the future is speculative and certainly not an imminent risk. See Matter of S.J., supra. The evidence presented at the commitment hearing suggested C.S.'s only active medical concern was dental issues.

The risk presented from C.S.'s untreated dental issues, standing alone, was insufficient to sustain WRCH's burden of proving a very substantial likelihood of harm due to an untreated medical issue. Contrast Matter of G.N., supra (syphilis and HIV); Matter of R.H., supra (cellulitis infection).

However, an individual's mental illness interfering with her ability to get necessary psychiatric or medical care can be a factor in finding that there is "a very substantial risk of harm under prong three." Matter of D.R., 2021 Mass. App. Div. 6, 8-9. This is particularly true where the respondent refuses aftercare treatment, has no plans to access medication or follow up care if released, or demonstrates an inability to respond to situations that would put the respondent at risk outside of the hospital setting. See Matter of K.M., 2019 Mass. App. Div. 1, 3. In Matter of D.R., the Appellate Division held that the respondent's delusions that interfered with his ability to obtain and comply with necessary medical or psychiatric care supported a finding of a likelihood of serious harm under prong three. Id. at 8-9. See also Matter of V.S., 2022 Mass. App. Div. 87.

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In Matter of V.S., the respondent had dermatitis, a non-life-threatening condition, but the court focused on the impact of the respondent's mental illness on her inability to obtain treatment, not necessarily the severity of the medical condition itself. Id. The same type of concern about not seeking medical or psychiatric treatment is present here. C.S.'s failure to address her dental issues, despite the pain it was causing her, demonstrated her lack of understanding about medical problems and supports WRCH's contention that she would be unable to seek medical treatment for more serious issues. The concern that a health issue may arise in the future that C.S. would be unable to address may be considered with other factors on the issue of a likelihood of serious harm under prong three. See Matter of V.S., supra.

Courts have found that a person who constantly needs prompting and assistance to complete ADLs has demonstrated an inability to protect herself in the community. Matter of J.B., 2020 Mass. App. Div. 154, 156-157, 158. Further, the failure to meet those basic needs demonstrates the imminence of that risk of harm. Matter of D.K., 2017 Mass. App. Div. 129. As the court stated in Matter of J.B., "a person who needs constant prompting and assistance in basic tasks of grooming, eating, and clothing oneself has demonstrated an inability to protect oneself in the community." Id. at 158. Here, although C.S. contends that she was able to complete her ADLs while on the unit, she was not able to do so without the prompting and assistance of hospital staff. Dr. Caussade testified to his concern that because of her mental illness, C.S. would be unable to find medical care, seek shelter, and obtain resources such as food and income. The doctor also testified to concerns that C.S. would not be able to manage her hygiene, which is supported by the fact that prior to her most recent hospitalization, C.S. presented to the hospital with a severe lice infestation and had lost a considerable amount of weight. The court could rely on the testimony of both Dr. Caussade and C.S.'s sister to properly conclude that, outside of the controlled environment of the hospital, C.S. would be at a substantial risk of harm due to her inability to provide for her basic needs. Courts are permitted to consider the respondent's status in the controlled environment of the hospital and how that condition would likely worsen without the resources the hospital provides. See Matter of W.C., 2019 Mass. App. Div. 31, 33, 35-36.

Individually, the pieces of evidence are not overwhelming, but collectively, they are sufficient to support C.S.'s order of commitment. See Matter of D.F., 2020 Mass. App. Div. 109, 113-114 (in reviewing commitment orders, appellate court to look to whether there was sufficient competent evidence to support order, not determine whether evidence compelled order of commitment); Matter of D.T., 2019 Mass. App. Div. 54, 57 ("Viewing the testimony as a whole, and mindful that it is for the trial judge to assess credibility, we find sufficient evidence to meet the standard for commitment under the third prong.").

Less restrictive alternative. Lastly, C.S. contends WRCH did not prove that there were no less restrictive alternatives to hospitalization. To civilly commit an individual pursuant to G.L. c. 123, due process requires a judge to consider less restrictive alternatives in each case to ensure that commitment is the least restrictive means of vindicating the government's interest. Matter of a Minor, 484 Mass. 295, 308, 309-310 (2020). To be appropriate, a less restrictive alternative does not need to eliminate all risk to a respondent. Id. at 310. The proper focus is on whether there are any viable, plausibly available options that bring the risk of harm below the statutory threshold

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that defines a likelihood of serious harm. Id. In evaluating less restrictive alternatives, judges may seek guidance from the qualified physicians, psychologists, and social workers who are already required to testify in their cases. Id. The burden is on the hospital to prove, beyond a reasonable doubt, that hospitalization is the least restrictive alternative. Matter of J.B., supra at 158-159. It is incumbent on the parties to present, or challenge, the sufficiency of the evidence supporting their respective positions as to the availability of a less restrictive alternative to hospitalization. Matter of A.L., 2019 Mass. App. Div. 131, 132. Here, C.S. did not present any less restrictive alternative to the hearing judge.

A respondent's amenability to treatment is essential to whether they could be placed in a less restrictive setting. Matter of J.D., 97 Mass. App. Ct. 15, 22 (2020). Courts have generally found no less restrictive alternative to hospitalization exists when the respondent is not voluntarily accepting medication or treatment while hospitalized, does not understand that he or she has a mental illness, and have not utilized outside support systems in the past. Matter of K.J., 2019 Mass. App. Div. 174; Matter of W.C., 2019 Mass. App. Div. 31.

There was sufficient evidence to find that there was no less restrictive alternative to hospitalization here. Dr. Caussade testified that a locked psychiatric facility was the most appropriate placement available to C.S. at that time. In support of that conclusion, Dr. Caussade referenced the fact that C.S. needs staff support to maintain her ADLs and receive medication. Without the support available in a psychiatric hospital, Dr. Caussade opined that C.S. would deteriorate to a state like 2019 when she was first admitted to Pembroke Hospital. Additionally, there was evidence that C.S. was not amenable to treatment and was resistant to taking medication unless she was ordered to do so by a court. Dr. Caussade's testimony about the likelihood of C.S. decompensating outside of the hospital setting, combined with the fact that C.S. did not believe she had a mental illness and did not need treatment or medication, supported the conclusion that there was no less restrictive alternative to hospitalization. The judge was permitted to rely on Dr. Caussade's guidance to conclude that there was no less restrictive alternative to hospitalization. See Matter of a Minor, supra.

Conclusion. The District Court had jurisdiction to hear the petition for commitment pursuant to G.L. c. 123, §§ 7 and 8; there was sufficient evidence to support the judge's finding of a likelihood of serious harm under prong three of G.L. c. 123, § 1; and there was sufficient evidence to support the judge's conclusion that there was no less restrictive alternative to hospitalization. For the foregoing reasons, the commitment order is affirmed.