IN THE MATTER OF M.C.

GINSBURG, P.J. This is M.C.'s appeal of the trial court's order of involuntary medical treatment under G.L. c. 123, § 8B. For the reasons below, we affirm the trial court's order. We review the trial court's findings of fact for clear error, and "'scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts.' Iamele v. Asselin, 444 Mass. 734, 741 (2005), quoting C.O. v. M.M., 442 Mass. 648, 655 (2004)." Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018).

On February 24, 2020, UMass Memorial Hospital Psychiatric Treatment and Recovery Center ("Hospital") filed a petition for authorization to administer medical treatment to M.C. pursuant to G.L. c. 123, § 8B. At a hearing on March 6, 2020, the court ordered M.C. civilly committed for six months pursuant to G.L. c. 123, §§ 7 and 8. On April 1, 2020, a hearing was held via Zoom on the § 8B petition. At that hearing, M.C.'s treating psychiatrist, Dr. Nawras Shukair ("Shukair"), testified on behalf of the Hospital regarding M.C.'s competency. M.C. was admitted to the Hospital on February 20, 2020. At the time of the hearing, M.C. was a twenty-six year old high school graduate with some time in college. The doctor testified that M.C. suffered from schizophrenia and disorganized thought. He further testified that M.C. does not talk logically, and that he responds to internal stimuli that only he can perceive. M.C. is "in his own world," and does not engage in logical conversations. When M.C. first came to the hospital, he was taking some medication but chose to stop taking it. The doctor had a proposed plan of treatment for M.C., including medication that the doctor repeatedly attempted to discuss with M.C., but the conversation was very limited due to M.C.'s disorganization. In refusing the medication, M.C. complained to the doctor about a side effect he had previously on other medications, essentially saying to the doctor regarding medication, "I don't trust this." M.C. denied he had any Illness, did not believe he needed any treatment, and had no insight into his condition. The doctor testified that since M.C. stopped taking the medication, his disorganization and internal preoccupation got worse and he was acting bizarrely

Page 45

-- for instance, staying in his room for hours alone in an odd position or in the corner, and he could not give a logical explanation for what he was doing. The doctor opined that M.C. did not have the capacity to make an informed decision regarding a medical treatment plan based on his disorganized thinking and his inability to weigh the benefits and risks of medication.

M.C. also testified on the issue of his competency. He explained that he was declining to take the medication because in the past medications had made him very tense and shaky, although he was not sure which medications had that effect. He further explained that he still had numbness at the injection site, and he had a twitch. He explained that the reason he stopped taking the medication at the Hospital was that he felt the effects on the lower left back part of his head, he had a dry nose, and a "sense" on his forehead. M.C. believed that he was able to communicate with hospital personnel with or without medication. M.C. also claimed to be doing well in college without medication. M.C. explained he agreed to take medication when he first got to hospital to "feel rested." Based on that evidence, the judge found the Hospital had met its burden with respect to competency.

Dr. Shukair also testified for the Hospital regarding the substituted judgment determination. The doctor testified that with the proposed treatment plan M.C.'s prognosis was good, and that without the proposed treatment his prognosis was very poor. The doctor acknowledged that M.C. was refusing the medication, and the doctor was not aware of any religious beliefs of M.C. that would impact his decision regarding medication. M.C. told the doctor that he wanted to return to stay with his mother. The doctor testified that he believed, if competent, M.C. would take the medication because M.C. previously was highly functioning, enrolled in college, and could be restored to that level of functioning with treatment. The judge found that the Hospital had met its burden regarding substituted judgment and approved the Hospital's proposed treatment plan. M.C. now appeals that treatment order. [Note 2]

General Laws c. 123, § 8B governs petitions seeking court authorization for administration of antipsychotic medications or other medical treatment of mental illness for persons committed to mental health facilities who are alleged to be incapable of giving or withholding informed consent to such treatment. Under G.L. c. 123 § 8B(d), "[T]he court shall not authorize medical treatment [with antipsychotic medication] unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan." The elements required to authorize a requested treatment order must be proved by a preponderance of the evidence, and the court must give close attention to the evidence and enter specific and detailed findings on each of the issues. See Guardianship of Doe, 411 Mass. 512, 523-524 (1992). "[M]atters of witness credibility are the province of the [trial] judge and will not be disturbed absent clear error." Matter of W.M., 2021 Mass. App. Div. 17, 19.

The court's first task in adjudicating a G.L. c. 123, § 8B petition is to determine if the respondent is competent. See Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 498 (1983). Like all other persons, M.C. is presumed to be

Page 46

competent. See Fazio v. Fazio, 375 Mass. 394, 403 (1978). In order to overcome the presumption of competence, the court must find by a preponderance of the evidence that the respondent is incapable of making informed treatment decisions. See Guardianship of Roe, 383 Mass. 415 (1981). In making this determination, the court must consider the patient's ability to think or act for himself in matters concerning his personal health, safety, and general welfare. See Fazio, supra.

Here, the record reflects sufficient evidence to support the judge's determination that M.C. was incompetent. M.C.'s treating psychiatrist testified that M.C. suffered from schizophrenia and disorganized thought, that M.C. did not talk logically and could not have logical conversations, and that he responded to internal stimuli that only he could perceive. According to the doctor, M.C. denied he had any illness, did not believe he needed any treatment, and had no insight into his condition. The doctor further testified that M.C.'s condition was getting worse since he had stopped taking the psychiatric medication. In summary, the doctor opined that M.C. did not have the capacity to make an informed decision regarding a medical treatment plan based on his disorganized thinking and his inability to weigh the benefits and risks of medication. M.C.'s explanation about why he was not taking the medication provided further evidence of his disorganized thinking. We find no error in the court's determination that M.C. was incompetent.

If a mentally ill patient has been deemed to be incompetent to make treatment decisions for himself or herself, a judge must determine "what the patient would choose if he were competent." Guardianship of Weedon, 409 Mass. 196, 199 (1991). The substituted judgment determination is the means by which the judge determines what the incompetent person would choose if he or she were competent. Id.

In a substituted judgment proceeding, the "court dons 'the mental mantle of the incompetent' and substitutes itself as nearly as possible for the individual in the decision-making process. . . . [T]he court does not decide what is necessarily the best decision but rather what decision would be made by the incompetent person if he or she were competent" (citations omitted). Matter of Moe, 385 Mass. 555, 565 (1982). In order to do this, the judge assesses several factors, including: the respondent's expressed preferences regarding treatment; the respondent's religious convictions; the impact on the respondent's family; the probability of adverse side effects; and the prognosis with and without treatment. See Rogers, supra at 505-506; Guardianship of Roe, supra at 444.

Here, the judge weighed the relevant factors and appropriately concluded that M.C., if competent, would choose to take antipsychotic medication. The doctor testified that with the proposed treatment plan M.C.'s prognosis was good, and that without the proposed treatment his prognosis was very poor. The doctor testified that he believed, if competent, M.C. would take the medication because M.C. was previously highly functioning and enrolled in college and he could be restored to that level of functioning with treatment.

Even though M.C. is incompetent, his preference is "entitled to serious consideration." Guardianship of Linda, 401 Mass. 783, 786 (1988), quoting Guardianship of Roe, supra at 445. The trial judge did consider that M.C. expressed a preference not to take the antipsychotic medication. However, the judge did not find reasonable M.C.'s refusal to take injected medication based on a problem he had in the past with injectable medications, as M.C. did not know what the medication was in the

Page 47

past that had caused the unwanted side effects. Further, the judge did consider the side effects of the medications proposed and modified the requested treatment plan to attempt the oral form of the medication first before using the injectable form of the medication. There was no evidence of any religious beliefs of M.C. that would impact his decision regarding medication. There was no evidence admitted regarding impact of treatment decisions on M.C.'s family. [Note 3] The judge found that, if competent, M.C. would accept the proposed treatment plan, and with some modifications imposed the Hospital's proposed treatment plan. The judge's decision regarding substituted judgment was supported by the evidence.

For the foregoing reasons, we affirm the order of treatment.