IN THE MATTER OF S.S.

GINSBURG, P.J. This is S.S.'s appeal of her commitment under G.L. c. 123, §§ 7 and 8 to the Baystate Noble Hospital's Fowler Unit and treatment order under § 8B. For the reasons below, we affirm the commitment and treatment orders.

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). "The hearing judge's explicit (or implicit) assessment of the evidence is entitled to considerable deference because 'it is the trial judge who, by virtue of his [or her] firsthand view of the presentation of evidence, is in the best position to judge the weight' and materiality of the evidence and credibility of the witnesses at trial." Matter of A.L., 2019 Mass. App. Div. 131, 133, quoting Matter of A.M., supra at 401 n.5.

Background. S.S. was admitted to Baystate Noble Hospital's Fowler Unit ("Hospital") on September 7, 2019, discharged on September 11, and readmitted on September 12. A petition for commitment was filed by the Hospital pursuant to G.L. c. 123, §§ 7 and 8, and a hearing was held on that petition on September 27, 2019. Dr. Nathan Somers ("Somers"), the Hospital's medical director for psychiatric services and S.S.'s treating psychiatrist, testified on behalf of the Hospital. No medical records or any other documents were introduced.

The doctor testified that, according to the September 7th "crisis assessment report," S.S. was admitted to the Hospital after running in and out of traffic, laying down on the median strip in the middle of the road, and making profane hand gestures to passing motorists. The police responded to the scene and brought S.S. to Cooley Dickenson Hospital, which later transferred her to Baystate Noble Hospital. During her five-day admission, she was agitated, manic, and paranoid; she had no insight into the dangerous nature of her behavior prior to admission; and she refused to consider treatment. Nevertheless, the Hospital did not feel S.S. met the criteria for commitment at that time and discharged her on September 11 with the recommendation she receive outpatient psychiatric services.

The doctor further testified that, according to the September 12th "crisis assessment report," shortly after S.S.'s discharge on September 11, S.S. went to a store and bought shoes; went to a liquor store and bought and drank ten nips of alcohol; and removed her clothes. Upon responding to the scene, the police found S.S.

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naked, disorganized, agitated, and yelling to them to arrest her. That same night, S.S. was brought to the emergency room and the next day, September 12, was readmitted to Baystate Noble Hospital.

Dr. Somers opined that S.S. suffered from bipolar disorder with psychotic features. Her symptoms included agitation, labile moods, excessive amounts of energy, and a paranoid view of the doctor's role and the role of the other Hospital staff. The doctor further testified that S.S. demonstrated very little insight into the dangerous nature of her behavior, and she did not appreciate that her behavior in the community placed her at risk of direct physical harm potentially from a car accident or potential victimization from a perpetrator. S.S. told the doctor that her goal in being disrobed was to be arrested for indecent exposure because she had no place to sleep. The doctor considered S.S.'s explanation as evidence of her impaired judgement. The doctor reported that, at the Hospital, S.S was friendly and cooperative as long as there was no discussion of her treatment. Once Hospital staff talked about the reason for her admission, however, she became agitated, stormed out of the room, slammed the door, and sometimes used expletives to express her frustration.

S.S. told the doctor that she had been living at a cemetery in Northampton. The doctor was particularly concerned that S.S. came right back to the hospital the same day she was discharged after engaging in bizarre, unsafe behavior. He opined that there would be a very substantial risk of injury to S.S. if she were not kept in a supervised setting. Further, based on S.S.'s lack of insight regarding her condition and treatment, the doctor did not believe S.S. would seek treatment if she were released from the Hospital. Finally, the doctor testified that there was no less restrictive alternative to in-patient treatment for S.S.

S.S. testified on her own behalf. As to the September 7th hospital admission, S.S. explained that after a fight with her daughter and mother, she had nowhere to live so she was living on the streets. She denied that she was running in traffic or swearing at anybody. Her testimony was disorganized and hard to follow. She denied having bipolar disorder. She testified that on approximately August 4, 2019, she was raped and, after she fought with her mother and daughter, had no place to sleep, had too much to drink, and went to a field. She testified further about an incident on July 2, 2019, where she fell out her daughter's car window after drinking. She described that after her release on September 11, she bought a pair of shoes and some liquor because she was having physical pain and drank more than she should have. She had nowhere safe to sleep so she took her clothes off so the police would arrest her.

Regarding medication, S.S. reported she sometimes needed sleeping pills. She also acknowledged having anxiety, but she did not want to take the anxiety medication because it was addictive and she had a drug problem. She planned to ask her doctor for a medical marijuana card. She also felt the medication she had previously taken for anxiety had caused her to have restless leg syndrome. She claimed taking the antipsychotic medications caused psychotic behavior for her. She felt she had been in a pharmaceutical coma for five years. She felt she had neglected her children because of that and stayed in an abusive relationship. She said she had not been on any psychotropic medications for the last five years. She indicated she was not seeking mental health treatment in the community. S.S. claimed she had spoken to someone at a local sober house where she planned to go if released. She also planned to attend NA meetings. She was not interested in individual therapy, as she

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preferred group therapy. She also hoped to go to school and get a job.

The trial judge found sufficient evidence of mental illness and likelihood of serious harm to S.S. and ordered her committed. The court then moved to the G.L. c. 123, § 8B portion of the hearing, incorporating the evidence from the commitment hearing. At the § 8B hearing regarding medication, the doctor testified that when Hospital staff tried to discuss treatment with S.S., she would abruptly leave the room. The doctor proposed medication to treat S.S.'s mood instability and her psychosis. The doctor was unaware of any side effects S.S. had experienced with those medications in the past but indicated they would look out for known possible side effects. The doctor testified that S.S. was unable to weigh the benefits of the medications as compared to the side effects. There was no evidence S.S. had ever raised any religious objection to taking medication. The doctor opined that S.S.'s prognosis without treatment was "[h]orrible" and her prognosis with treatment was "good." The judge found S.S. to be incompetent, that if competent she would take the antipsychotic medication, and ordered the treatment proposed by the Hospital.

Discussion. Commitment order. S.S. contends there was insufficient evidence to support the commitment. We disagree. "Sections 7 and 8 of G.L. c. 123 address the long-term commitment of persons with mental illness. Under § 7(a), the superintendent of any facility may petition the District Court for the commitment of any patient already at the facility. . . . 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.'" Matter of N.L., 476 Mass. 632, 634 (2017). Additionally, the petitioner must show that there is no less restrictive alternative to hospitalization. Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 785 n.8 (2008), citing Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980).

Chapter 123 defines "likelihood of serious harm" in three different ways: "(1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) 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; or (3) 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. In order to justify commitment under any of the three prongs, the petitioner must prove each of the statutory prerequisites beyond a reasonable doubt. Matter of G.P., 473 Mass. 112, 119 (2015), citing Abbot A. v. Commonwealth, 458 Mass. 24, 40-41 (2010).

Only the third prong is at issue in this case. To prove prong 3, the petitioner was required to produce evidence that there was "a very substantial risk of physical impairment or injury to the person [herself] as 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. For this prong to be met, "[T]he degree of risk . . . is greater than that required by the . . . second prong: by definition, a 'very substantial' risk is not the same as a 'substantial' risk, and requires more certainty that the

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threatened harm will occur." Matter of G.P., 473 Mass. 112, 128 (2015). Moreover, "[T]he 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. at 129.

S.S. argues that the order issued here should be vacated because inadmissible hearsay relating to S.S.'s behavior leading to her hospitalization was introduced when the doctor testified to the content of "crisis reports" in S.S.'s medical records that were not introduced into evidence. While the rules of evidence apply in commitment hearings, attorneys have an obligation to make timely objections. Here, S.S. had an obligation to alert the hearing judge through a hearsay objection that she was contesting the admissibility of the doctor's recitation of the "crisis reports." Had she objected, the petitioner could have sought to introduce the records that were available to him as S.S.'s treating psychiatrist. [Note 1] To the extent that the doctor's testimony about the substance of the "crisis reports" was inadmissible hearsay, S.S. waived her right to appeal the admission of those statements by failing to make timely objections during the hearing.

Where an objection was not made, we consider whether the trial error created a substantial risk of a miscarriage of justice. See R.B., petitioner, 479 Mass. 712, 717 (2018); Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). This standard requires us to consider broadly whether we have a serious doubt whether the result of the hearing might have been different had the alleged error not been made. We consider the strength of the case that was presented by the petitioner, the nature of the alleged error, the significance of the error in the context of the hearing, and the possibility that the absence of an objection was the result of "a reasonable tactical decision." Commonwealth v. Azar, 435 Mass. 675, 687-688 (2002).

Here, even if the introduction of hearsay evidence emanating from the "crisis reports" was objectionable because the records themselves were not introduced, we do not find that this changed the outcome of the hearing. Dr. Somers was S.S.'s treating psychiatrist. He testified about his own experience with S.S., which was not hearsay. According to the doctor, S.S. suffered from bipolar disorder with psychotic features. She was agitated, with labile moods and excessive amounts of energy. More importantly, S.S. testified herself about the circumstances leading up to her admission at the hospital on September 12, acknowledging that the same day she was released from the Hospital she drank an excessive amount of alcohol and took her clothes off on the street to get police attention. She also testified that in the months leading up to her hospitalization, she had been raped in the community and had fallen from a car window. During her hospital stay, S.S. had a paranoid view of hospital staff and demonstrated very little insight into the dangerous nature of her behavior. She denied she had mental illness, was unwilling to discuss treatment, and her only plan for her release was to find a sober house and go to NA meetings. [Note 2] Even without the contested testimony about circumstances leading up to the Hospital admission on September 7, there was sufficient evidence to support the finding that, due to mental illness and her lack of insight and judgment, S.S. presented a very substantial

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risk of harm to herself and that the risk was imminent. In the end, we conclude that the introduction of hearsay was not a lynchpin of the judge's commitment order, and its admission did not create a substantial risk of a miscarriage of justice.

In addition, we are unable to determine whether S.S.'s decision not to object to the psychiatrist's hearsay testimony concerning Hospital admissions was a tactical one. The appellate record does not provide the details of everything that is contained in those records. Depending on their content, we note that the absence of medical records (that were presumably available to the parties) in evidence may have been considered a benefit to S.S.'s case.

S.S. also argues, for the first time on appeal, that the doctor should not have been allowed to offer the basis for his opinion on direct examination. As this objection was not raised at the trial level, it is waived and we again consider whether there was a substantial risk of a miscarriage of justice. "Experts may not testify on direct examination about the basis of their opinion when those facts are neither within their personal knowledge nor otherwise admitted in evidence during the proceeding." Matter of P.R., 488 Mass. 136, 137 (2021). Here, while the doctor did provide some scattered information on direct examination that was not based on his personal knowledge regarding S.S.'s prior history, there was not much of significance other than the report of S.S. running in and out of traffic naked prior to the September 7th hospitalization. As discussed above, the admission of this evidence did not create a substantial risk of a miscarriage of justice.

We find no error in the court's determination that S.S. met the criteria for commitment. There was sufficient evidence of S.S.'s risk of harm to herself and lack of a less restrictive alternative to hospitalization available to support the court's order of commitment.

Treatment order. S.S. challenges the validity of the treatment order. [Note 3] She claims it was error to allow the psychiatrist to testify to a privileged communication during the G.L. c. 123, § 8B hearing without evidence of a so-called Lamb warning and a proper waiver, and that this caused a substantial risk of a miscarriage of justice. See Commonwealth v. Lamb, 365 Mass. 265 (1974). In this regard, S.S. correctly points out that, pursuant to the plain language of G.L. c. 123, § 8B(h), the patient-psychotherapist privilege applies to hearings of this type. In addition, in Matter of Laura L., 54 Mass. App. Ct. 853 (2002), the Appeals Court indicated that if there is no evidence regarding a warning and a waiver of the privilege, a judge should make a sua sponte inquiry in that regard. Id. at 857-858. Here, there is nothing in the record to indicate whether S.S. received the Lamb warning as there was no inquiry. We need not reach this issue, however, as the right to appeal this question was not properly preserved. Moreover, the only statement of S.S. that the doctor testified about in the § 8B hearing was that S.S. refused to take the medication, which S.S. made clear to the judge in her testimony. We do not find that a substantial risk of a miscarriage of justice was created.

S.S. further argues that the evidence was insufficient to support a determination that she was incapable of making informed decisions about medical treatment and also that, if competent, she would accept medical treatment. General Laws c. 123, §

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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), "The 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). "Matters 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, S.S. is presumed to be 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 herself in matters concerning her personal health, safety, and general welfare. See Fazio, supra.

Here, there is more than ample evidence in the record to support the trial judge's determination that S.S. was incompetent. S.S. suffered from bipolar disorder with psychotic features. Her symptoms included agitation, labile moods, and excessive amounts of energy. Her clinical presentation included a paranoid view of the doctor's role and the role of the other Hospital staff. Finally, she denied she had mental illness, did not recognize the dangerous nature of her behavior in the community the same day she had been released from hospitalization, and refused to even discuss any treatment modalities.

If a mentally ill patient has been deemed 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 process is the methodology 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). 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 v. Commissioner of the Dep't of Mental Health, supra at 505-506; Guardianship of Roe, supra at 444.

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Here, the judge weighed the relevant factors and appropriately concluded that S.S., if competent, would choose to take antipsychotic medication. The doctor opined that S.S.'s prognosis without treatment was "horrible" and her prognosis with treatment was good. The doctor was unaware of any side effects S.S. had experienced with those medications in the past, and S.S. had never raised any religious objection to taking medication. There was no evidence admitted about the impact of treatment decisions on S.S.'s family. Even though S.S. is incompetent, her preference is "entitled to serious consideration." Guardianship of Linda, 401 Mass. 783, 786 (1988), quoting Guardianship of Roe, supra at 445. S.S. did object to the medication. She claimed taking the antipsychotic medications caused psychotic behavior for her. She felt she had been in a pharmaceutical coma for five years. She was also concerned that due to her substance use problem, the medication could become addictive. The doctor, however, testified that S.S. was unable to weigh the benefits of the medications as compared to the side effects. The judge's decision regarding substituted judgement was supported by the evidence.

For the foregoing reasons, we affirm the orders of commitment and treatment.