IN THE MATTER OF W.M.

FINNERTY, P.J. W.M. appeals his commitment to a Department of Mental Health facility pursuant to G.L. c. 123, §§ 7 and 8 following a hearing on March 2, 2021. [Note 1] Although the commitment order has expired, the Supreme Judicial Court's decision in Matter of F.C., 479 Mass. 1029 (2018) requires us to consider the appeal on the merits.

W.M. raises several issues. He claims that the petitioner's expert witness, W.M.'s treating psychiatrist at the facility, based his opinion regarding the need for commitment on medical records that were not introduced as evidence at the hearing. He also claims that hearsay testimony was improperly admitted; that W.M.'s motion for a required finding should have been allowed; that the petitioner did not prove beyond a reasonable doubt W.M.'s discharge presented an imminent likelihood of serious harm; that there was no nexus between W.M.'s mental illness and the risk of harm to him; and that less restrictive alternatives to commitment were available. For the reasons that follow, we affirm the order of commitment.

Evidence presented by the petitioner consisted of the testimony of Joseph Ipcas ("Ipcas"), W.M.'s treating psychiatrist, who opined that W.M. suffered from schizoaffective disorder and that he is hypomanic with pressured speech, irritability, difficulty not interrupting, and demeanor and affect that change quickly. In his opinion, W.M. presented a likelihood of harm to others and no less restrictive alternative to hospitalization existed. Dr. Ipcas based his opinion on his observation of and interaction with W.M.; his review of records from the current course of treatment; his review of records from the previous hospital from which W.M. had been transferred; and his discussion of W.M.'s treatment with the treatment team at his current hospital in support of his opinion that the facts demonstrated that W.M. suffered from delusions, displayed irritability and agitation, had been involved in a recent incident that resulted in a behavioral code being called, and W.M. being placed in restraint. W.M.'s impulsive, threatening behavior supported Dr. Ipcas's testimony there was no less restrictive setting for W.M. in the community. He provided specific examples of W.M.'s delusions and his behavior that supported his opinion.

Here, there was far more than Dr. Ipcas's "bare opinion," contrary to W.M.'s

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contention. There was ample evidence for the denial of W.M.'s motion for a required finding, taking the evidence at the conclusion of the petitioner's case in the light most favorable to the petitioner. Dr. Ipcas's testimony that W.M. was "much more pleasant than when he arrived and more cooperative" does not undercut the doctor's opinion when all the testimony is considered.

W.M. contends that the court improperly allowed hearsay in evidence and that the admission of such evidence was prejudicial. The record does not support W.M.'s contention on that issue. Each hearsay objection made by W.M. was ruled on by the court in his favor, save for Dr. Ipcas's testimony that W.M. had been restrained at a prior facility based on electronic medical records reviewed by Dr. Ipcas, and Dr. Ipcas's review of notes regarding a weekend behavioral incident at the petitioner facility, the specifics about which Dr. Ipcas did not testify. The court properly sustained some of W.M.'s objections to hearsay and motions to strike hearsay testimony. For example, in referring to a behavioral incident in which a "Code Gray" was called, Dr. Ipcas was the responding psychiatrist and witnessed W.M. under restraint and yelling. He observed a red line on the neck of a nurse -- testimony that the line was a result of W.M. grabbing the nurse's necklace was stricken. In Department of Youth Servs. v. A Juvenile, 398 Mass. 516 (1986), the Supreme Judicial Court approved the rule articulated in proposed Mass. R. Evid. 705, "The expert may testify in terms of opinion or inference and give his reasons therefor[], without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the undefined underlying facts or data on cross-examination." Id. at 532. The rule allows a witness to state his opinion or inferences he has drawn from the evidence, without first setting out during direct examination the underlying facts or data on which the testimony is based. See Commonwealth v. Jaimie, 433 Mass. 575, 577 (2001). [Note 2] The court did not violate that rule.

The court, following objection, likewise struck hearsay statements about noncompliance by W.M. at his prior facility, but did admit statements about an incident involving W.M. requiring transfer. Ultimately, however, on cross-examination, it was established that no incident precipitated the transfer.

We find that the court's rulings were proper in excluding hearsay testimony, allowing Dr. Ipcas to identify the sources of information he reviewed and considered in formulating his opinions. To the extent any objectionable hearsay evidence survived the court's rulings, it had slight, if any, influence on the court in its decision and was not prejudicial, as the contested evidence (what was not excluded) was far outweighed by the admissible evidence. See Commonwealth v. Cruz, 45 Mass. 589, 591 (2005).

Turning to the sufficiency of the evidence supporting the court's findings beyond

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a reasonable doubt that W.M. was mentally ill, that the failure to commit him to a facility presented a likelihood of harm, and that no reasonable alternative to commitment existed, we conclude that the court's finding is supported in the record.

After Dr. Ipcas's testimony, the court heard the testimony of Paul Zeizel ("Zeizel"), a psychologist who agreed that W.M. suffered from a major mental illness, is hypomanic, and not interruptible. He also detailed W.M.'s history of past hospitalizations at various facilities and acknowledged the history of conflicts W.M. has had in the community leading to criminal charges, hospitalization, and two active restraining orders from family members. Dr. Zeizel testified that in his opinion, the risk of harm to others W.M. exhibited while hospitalized would be lessened if he were in the community with independence and not subject to the structure of the facility.

The court specifically found based on the evidence that the failure to commit W.M. to a facility presented a likelihood of serious harm and that the less restrictive alternative to commitment proposed by W.M. (return to the community) would not mitigate that harm. That finding is supported by the evidence, and no error of law or abuse of discretion was committed.

So ordered.