IN THE MATTER OF M.G.

PRINCE, J. This appeal arises from the civil commitment of M.G. pursuant to G.L. c. 123, §§ 7 and 8 and his subsequent treatment pursuant to G.L. c. 123, § 8B. The grounds for appeal are that the hospital failed to present sufficient evidence that there was either a substantial risk of physical harm to other persons or a very substantial risk of physical impairment or injury to the person himself. [Note 1] With respect to the treatment, M.G. argues both that the hospital failed to present sufficient evidence for the predicate finding under G.L. c. 123, §§ 7 and 8, and that the court improperly relied on privileged communications. For the following reasons, the orders of commitment and treatment are affirmed.

On July 15, 2020, M.G. was admitted to the Corrigan Mental Health Center ("CMHC"). On July 20, 2020, CMHC filed timely petitions pursuant to G.L. c. 123, §§ 7 and 8 and G.L. c. 123, § 8B. The hearings on both petitions occurred on August 4, 2020. Dr. Maxwell Mayer ("Mayer"), the medical director of the inpatient unit at CMHC, testified on behalf of the facility. [Note 2] During the nineteen days M.G. was on the unit, Dr. Mayer reviewed his medical and psychiatric records, discussed his case with M.G.'s treatment team, and met with him at least six times. Most recently, he met with M.G. for forty-five minutes the day before the hearing.

Dr. Mayer diagnosed M.G. with schizophrenia. He stated that M.G. is involved in an elaborate, paranoid, and delusional worldview that affects virtually all parts of his life. The doctor testified that M.G. believes in a conspiracy involving the police, radio waves, and mind control, and that these delusions cause him significant distress and lead to behavioral outbursts. He described an incident within seventy-two hours of the hearing where M.G. kicked weighted-down furniture at the staff. The incident resulted in a code gray, an emergency behavioral code where the staff had to respond with force. He also described a situation where M.G. called 911 and threatened the police. Dr. Mayer testified that due to schizophrenia, M.G. is unwilling to deposit his disability checks, and it is unclear whether he has access

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to his money.

The doctor expressed concern that M.G. "might act in some way" to defend himself from these perceived conspiracies and suggested that the risk of this type of harm is well documented in the psychiatric literature when the delusions are so profound. Dr. Mayer testified that M.G. does not believe he has a mental illness. Though he has taken Risperidone since his arrival, it is a nontherapeutic dose, and his condition had somewhat worsened since his arrival. In addition, M.G. had been hospitalized on multiple occasions, including one that same summer. M.G. did not sign releases, so the doctor could not review his prior hospitalizations. In addition, the doctor noted that M.G. struggles with boundaries with female staff. The hospital specifically trained the female staff on how to address M.G.'s conduct and required daily review of the protocol. The doctor testified that the night before the hearing, a staff member asserted such a boundary, and it caused M.G. to get upset and lash out at the staff. In addition, M.G. had shouted out during mealtime that he deserves sex.

M.G. testified at the hearing. He read from a detailed prepared statement about the delusions described by Dr. Mayer. M.G. believes, among other things, that: 1) he is and has been a victim of "persistent identity theft events that appear to be perpetrated by a focused, organized and methodical attacker that has yet to be apprehended"; 2) he has "been wired, and cyber bored (phonetic) by personnel framed at Fort McCoy wireless warfare home station training lane"; 3) he has been fed bacteria by hospital personnel; and 4) that they put canine urine in his room. During cross-examination, M.G. stated that he believed the freemason police may have somehow infiltrated the hospital. He alleged that individuals from Corry Station, a top-secret military base in Pensacola, Florida, had been attacking him electronically. M.G. further declared that he maintained the right to self-defense "considering the abuse and harm inflicted on him."

M.G. denied that he ever threw furniture at the staff, that he ever shouted, "I need sex," or that he was ever inappropriate sexually to women. He admitted that he had spent a "considerable amount of time" in hospitals in Massachusetts and elsewhere and had spent most of the summer in the hospital. He stated that he had signed a release to receive Veteran Affairs housing benefits, was working with a social worker, but was still waiting to hear whether housing was available. He claimed that he would live with his girlfriend while waiting for housing to materialize but did not name his girlfriend or provide her address. At the conclusion of the evidence, the judge committed M.G. under the second and third types of harm found in the definition of "likelihood of serious harm." G.L. c. 123, § 1.

At the G.L. c. 123, § 8B hearing, the court incorporated the testimony from the commitment hearing. The doctor testified that he did not believe M.G. had the capacity to make informed decisions about antipsychotic medications because he had no insight into his mental illness. Specifically, he testified that M.G.'s delusions interfered with his ability to properly process information. The doctor testified that he was not aware of any religious beliefs that would prevent M.G. from taking antipsychotic medications or any family burden associated with it. The doctor indicated that the possible side effects of Risperidone and all antipsychotics include the potential for weight gain, diabetes, and high cholesterol; that other possibilities include neurological side effects like tardive dyskinesia and tremors; and that, to date, M.G. had not exhibited any of those side effects. The doctor opined that there was a better than fifty percent chance that he would have a meaningful response

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to the medication and that his prognosis was poor without treatment. At no time did M.G. assert the psychotherapist-patient privilege. After the hearing, the court found M.G. incompetent, stated that M.G would accept the proposed treatment plan if competent, and approved that plan.

Standard of review. We review the hearing judge's findings of fact for clear error. This is because the judge, having presided over the hearing, is in the best position to weigh the evidence and assess witness credibility. G.E.B. v. S.R.W., 422 Mass. 158, 172 (1996). In a competency hearing, an appellate court owes "substantial deference" to a trial judge's determination that a person is competent because the judge had an opportunity to view the witness and evaluate the individual personally. Commonwealth v. Prater, 420 Mass. 569, 574 (1995). We "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).

Commitment order. Under prong three, the "likelihood of serious harm" is defined as "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 degree of risk that the third prong requires to be proved is greater than that under 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). Imminence of the risk of harm and certainty that the threatened harm will materialize become even more important factors in a prong-three analysis than with the other 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). The focus of the evidence is 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 on himself; and the inability of any other persons in the community to provide protections against such risks. Id. See Matter of G.P., supra at 129. The potential harm may stem from an inability to interact safely with others in unregulated environments in the community and an inability to maintain safe housing. Matter of J.P., 2019 Mass. App. Div. 37, 42-43.

Mental illness, by itself, is insufficient to find a likelihood of serious harm. Matter of R.H., 2019 Mass. App. Div. 16, 18 (2019). On the other hand, it is not required that a commitment order be based on "proof that an individual is unable to sustain [themselves] even marginally in society." Id. The analysis under prong three must not treat one factor as determinative or look to factors independently but should review the relevant factors collectively. Id. Common considerations include the respondent's inability to: 1) care for a medical condition, see id. (picking at infection that resulted in potentially life-threatening cellulitis); 2) perform basic life tasks, such as eating and grooming, see Matter of D.K., 2017 Mass. App. Div. 129, 131 (two months of consistently poor hygiene and grooming and inconsistency in eating and drinking); 3) interact safely with others in unregulated environments in the community, see Matter of J.P., supra (unable to get along with peers on unit and threatening fellow patients and hospital staff); and 4) maintain safe housing. Id. (shelter was only living arrangement available, and respondent's behavior made that unlikely option).

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Viewing the testimony as a whole and mindful that the trial judge assesses the credibility and weight of the evidence, Tri-County Contrs. v. Diamond Collision Specialists, Inc., 2014 Mass. App. Div. 89, 92 (2014), we find sufficient evidence to meet the standard for commitment under the third prong. By testifying at the hearing, M.G. confirmed Dr. Mayer's opinion that M.G. "is involved in an elaborate, paranoid, delusional worldview that effects [sic] virtually all parts of his life." The persecutory nature of his delusions, i.e., that he is routinely subject to violent attacks and reserves the right to self-defense, puts him at very substantial risk of harm in the community because his conduct would invite attack or retaliation from those around him. See Matter of D.R., 2021 Mass. App. Div. 6, 7-8 (nature of delusions causing respondent to falsely accuse people of assault would interfere with his ability to survive in community). For example, seventy-two hours before the hearing, the hospital issued an emergency page because M.G. "sort of launched or slid some furniture pretty aggressively at staff," resulting in a show of force from the staff. It is not difficult to imagine that this type of conduct occurring outside the confines of a regulated environment staffed with trained employees would readily result in a physical response from members of the public.

Similarly, the constant boundary violations would likely meet with an aggressive response outside of the confines of the hospital. See Matter of E.M., 2021 Mass. App. Div. 21, 23-24 (respondent's inability to follow societal norms posed risk to himself). In addition, M.G.'s delusions include an intricate financial conspiracy against him that resulted in M.G. significantly compromising his ability to establish and maintain housing. [Note 3] These factors, including his acute lack of insight and judgment, his recent history of hospitalizations, [Note 4] his deterioration on the unit, and his unwillingness to take a therapeutic dose of medicine, demonstrate that the risk was imminent. See Matter of G.P, supra at 129. Accordingly, we affirm the commitment under prong three. As we affirm the commitment order under prong three, we do not reach the judge's decision on prong two.

Treatment order. The respondent argues that the treatment order pursuant to G.L. c. 123, § 8B should be vacated because there was no evidence of a Lamb warning and the doctor's testimony violated the psychotherapist-patient privilege, G.L. c. 233, § 20B. Matter of M.S., 99 Mass. App. Ct. 247 (2021). See Commonwealth v. Lamb, 365 Mass. 265 (1974). This claim has no merit. Like the respondent in Matter of M.S., M.G. did not object to any alleged privileged communications. Id. at 253. The psychotherapist-patient privilege is "not self-executing," so the patient must affirmatively assert the privilege to prevent disclosure. Commonwealth v. Oliveira, 438 Mass. 325, 331 (2002). Therefore, the issue is unpreserved and, at most, can only be considered on the basis of whether any error caused a substantial miscarriage of justice. Matter of M.S., supra at 253. Like the record in Matter of M.S., the current record lacks any meaningful indication of what communications, if any, were

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subject to the privilege. Furthermore, M.G.'s "own counterproductive testimony provided robust evidence of [his] mental state and prognosis." Id. at 254-255. For those reasons, there is no evidence to suggest a substantial miscarriage of justice, and the treatment order is therefore affirmed.

For the foregoing reasons, the judge's orders of commitment and treatment are affirmed.