IN THE MATTER OF L.G.

NESTOR, P.J. The respondent, L.G., appeals from an order of civil commitment pursuant to G.L. c. 123, §§ 7 and 8 following a hearing in the Cambridge District Court. L.G. argues that McLean Hospital ("McLean") provided insufficient evidence to support the court's finding that L.G. would present a likelihood of serious harm if discharged and there was no less restrictive alternative to the commitment. For the reasons that follow, we vacate the commitment order.

1. Background. On October 17, 2019, McLean filed a petition to commit L.G. 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 held at McLean on October 24, 2019. The hearing judge allowed the petition, and the respondent was involuntarily committed to the hospital for a period not to exceed six months. The petitioner's sole witness was Dr. Suzanne Bloore ("Bloore"), L.G.'s treating psychiatrist at McLean. Dr. Bloore testified that L.G. has schizoaffective disorder, bipolar type, which presents with chronic delusions, paranoia, disorganized thoughts, flight of ideas, and mood symptoms, such as elevated mood, agitation, and irritability.

According to Dr. Bloore, L.G. arrived at McLean voluntarily on October 15, 2019, at the urging of a friend. She told Dr. Bloore that she had gone to the hospital because she was destabilized and was also seeking to have her mental illness reevaluated so that she could regain custody of her child and secure employment. Upon admission, L.G. was not malnourished or dehydrated and her vital signs were stable. She did not require treatment for a medical condition, but had suffered hypothyroidism and infections in the past. Prior to her admission, L.G. was primarily living in Washington D.C. at a homeless shelter. She had traveled to Boston via bus and was staying at a hostel immediately prior to her hospitalization. L.G. earned undergraduate and graduate degrees in education, had a recent history of employment, and had expressed an intent to seek employment upon being discharged. She was receiving Social Security Disability Income for "paranoia delusions otherwise identified as schizoaffective."

Dr. Bloore continued in her testimony that L.G. had been hospitalized in the past and voluntarily presented to the emergency room seeking treatment for each prior hospitalization. She mentioned that L.G. had been violent during prior hospitalizations

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but did not offer any details regarding her conduct or when it had occurred. In the past, L.G. had not always followed up with outpatient psychiatric treatment upon being discharged. While hospitalized at McLean, L.G. frequently talked about different issues she has had with the CIA and FBI, including an incident where she trespassed on CIA grounds and went to jail. She explained that she was there only to ask the CIA what their hours were. She also spoke of calling the Secret Service and going to the White House in the past to get information about where her son was going to school. She stated that she needed to regain custody of her son from her parents in Georgia and would do "whatever it takes," and that she was "coming to get" her parents. L.G. expressed paranoid delusions about medication being toxic and that her food and coffee were poisoned, and that past psychiatrists had tried to abort her child and sterilize her. Although L.G. expressed paranoia concerning food and medication, no evidence was presented that she was not eating or accepting medication or other treatment while hospitalized. L.G. did not exhibit any violent, threatening, or disruptive behavior while at McLean.

Dr. Bloore testified that because L.G. could become agitated with others, she was concerned that her agitation could lead to her becoming violent or being attacked out in the community. She also pointed to L.G.'s comments that she was "coming to get" her parents and her statements that she had become violent in an emergency room in the past to conclude that L.G. would present a substantial risk of harm to others if she were discharged from McLean. When concluding that L.G. would present a very substantial risk of harm to herself due to her inability to care for and protect herself in the community, Dr. Bloore primarily focused on L.G.'s lack of insight into her mental illness, the possibility that her agitation and unstable mood would give rise to being attacked or injured, the fact that she was homeless and lacked funds, would not follow up with care, and would not be able to care for her daily needs.

In finding for the petitioner, the hearing judge mainly focused on L.G.'s lack of insight into her mental illness, stating:

"[I]t really comes down to her -- her not recognizing that she suffers from a mental illness and that she refuses treatment for that mental illness. . . . [I]f she suffered from a mental illness, recognizes the mental illness, and has a rationale [sic] basis for not wanting to take medication, then I understand . . . then the hospital does not meet its burden."

2. Discussion. General laws c. 123, §§ 7 and 8, address the long-term commitment of persons with a qualified mental illness. Matter of N.L., 476 Mass. 632, 634 (2017). Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at that facility. Id. Section 8(a) provides that no person shall be committed unless the District Court finds after a hearing that "(1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm." Id. Additionally, the petitioner must show that there is no less restrictive alternative to hospitalization. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 780 n.8 (2008), citing Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980). The evidence must establish that the risk of serious harm is imminent. Matter of J.P., 486 Mass. 117, 119 (2020), citing Matter of G.P., 473 Mass. 112, 128 (2015). The petitioner must prove each of the statutory requirements beyond a reasonable doubt. Matter of G.P., supra at 119.

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In this case, McLean petitioned for L.G.'s commitment under prongs 2 and 3 of the definition of likelihood of serious harm under G.L. c. 123, § 1. In reviewing the sufficiency of the evidence, "[W]e accept the findings of fact made by the hearing judge unless clearly erroneous; however, we review without deference whether the legal standard for civil commitment was met." Matter of J.P., supra at 121, citing Matter of a Minor, 484 Mass. 295, 302 (2020).

A. Risk of harm to others. There was insufficient evidence to support the court's finding, beyond a reasonable doubt, that L.G. presented an imminent, substantial risk of serious harm to others. The second prong of the definition of "likelihood of serious harm" requires evidence of "a substantial risk of physical harm to other persons as manifested by evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them." G.L. c. 123, § 1. The Legislature's use of the word "homicidal," and phrases such as "violent behavior" and "serious physical harm," signifies an intent that "evidence of conduct reflecting a substantial level of force and intensity be presented." Matter of G.P., supra at 126. Finally, the risk of harm must imminent, meaning that the harm "has a real prospect of occurring; it cannot be speculative; and it cannot be far into the future." Matter of L.G., 2018 Mass. App. Div. 164, 165. In other words, the petitioner must establish that there is a substantial risk that the harm will materialize in the reasonably short term -- "in days or weeks rather than in months." Matter of G.P., supra at 127-128.

Here, Dr. Bloore's testimony that she was concerned that L.G.'s agitation, lability, or unstable mood could lead to a threatening or violent situation and that L.G. had talked about becoming violent during prior hospitalizations was lacking in sufficient detail to warrant a finding that L.G. was an imminent danger to others. See Matter of K.M., 2020 Mass. App. Div. 123, 126 (though there was testimony that respondent had been threatening, scary, and raised his voice, for him to be danger to others, evidence would have required behavior manifesting, or statements of, homicidal ideation, violent behavior, or threats of serious physical harm); Matter of S.J., 2018 Mass. App. Div. 128, 129 (evidence that respondent would become agitated, yell, pace, and wave his arms falls short of that required to establish level of risk described in second prong of the definition of "likelihood of serious harm"). Aside from vague references to past incidents of violence, no evidence was presented when such incidents took place or what the nature of her conduct was. Further, L.G.'s statements that she was "coming to get" her parents and would do "whatever it takes" to obtain custody of her son in Georgia also lacked specificity or that a substantial risk that the harm would materialize in the reasonably short term. Contrast Matter of J.D., 97 Mass. App. Ct. 15, 21 (2020) (in context of kidnapping 21-month old child, finding of imminent risk of harm under second prong shown by respondent's delusion that parent-child bond had to occur prior to the child turning age 24 months). The record is also devoid of evidence that L.G.'s parents did fear violent behavior and serious harm by L.G. Contrast Matter of J.D., supra (evidence that defendant made multiple threats of harm to his ex-wife, her child, and her child's father, who testified he feared for their safety, supported finding of likelihood of serious harm).

B. Risk of harm due to inability to care for oneself in community. A finding of a "very substantial risk" of harm under prong three requires evidence that there was "a very substantial risk of physical impairment or injury to the person [herself] as

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manifested by evidence that such person's judgment is so affected that [she] is unable to protect [herself] in the community and that reasonable provision for [her] protection is not available in the community." G.L. c. 123, § 1. The degree of risk for this prong to be met "is greater than that required by the first or second prong: by definition, a 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the threatened harm will occur." Matter of G.P., supra at 128. "The focus of the evidence . . . 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], or by lengthy exposure to extreme weather conditions); and the inability of any other person or persons in the respondent's community to provide protections against such risks." Id. at 129. Additionally, 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.

Here, L.G. arrived at the hospital voluntarily, did not need medical attention, was not malnourished or dehydrated, and had stable vital signs. No evidence was offered suggesting that L.G. was unable to provide for her basic care such as eating, drinking, sleeping, and maintaining proper hygiene, both while hospitalized and prior to hospitalization. Dr. Bloore testified that L.G. had delusions that there was poison in her food and was concerned that she would not be able to feed herself if she were discharged, but no evidence was presented that L.G. was not eating due to these delusions. Contrast Matter of J.B., 2020 Mass. App. Div. 154, 155 (respondent was unable to provide for his basic care, eating, and grooming without constant assistance, direction, and supervision from staff). Dr. Bloore noted that L.G. had staph infections in the past but did not present any evidence that connected those infections to her mental illness. No evidence was presented that L.G. let those infections go untreated or ignored any other health risks.

Dr. Bloore testified to her concern that L.G.'s agitation and unstable mood could put her at risk of being attacked in the community but offered no evidence that she exhibited the type of provocative behavior that would lead to her being attacked. Contrast Matter of E.M., 2021 Mass. App. Div. 21, 23-24 (where respondent was angry, lost control, threw things, screamed in middle of night, and had to be chemically restrained, it was reasonable to conclude his assaultive behavior and inability to follow societal norms would place him at risk of being victimized if he were released from the hospital). Any conclusion that L.G.'s mental illness could be the cause of harm to her from some member of the public is in the "realm of speculation". See Matter of K.M., 2020 Mass. App. Div. 123, 126. Dr. Bloore also relied on L.G.'s homelessness and lack of funds to support her opinion that L.G. was unable to care for herself. L.G. had been staying at homeless shelters in Washington D.C. and was staying at a hostel in Boston. She demonstrated she had the intellectual ability to ensure she could get herself into a shelter, which was where she planned to return to upon being discharged. She also had Social Security Disability Income, was highly educated, and had been gainfully employed in the recent past. The fact that she was homeless was not sufficient to support a finding of a very substantial risk of harm under prong three, and the evidence does not suggest her homelessness or limited access to funds put her at a very substantial risk of harm. See Matter of J.P., supra 124 (if homelessness "is to be used at all as part of the involuntary civil commitment

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analysis, it must be done with extreme caution"). Without sufficient evidence that L.G., because of her mental illness, presented an imminent danger to herself, the combination of her mental illness and lack of insight into that illness is not sufficient to support the statutory requirements justifying a commitment.

The order of commitment is 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).