COMMONWEALTH vs. THOMAS KNOWLTON.

ABRAMS, J. We granted the defendant's motion for direct appellate review of the determination that he was a sexually dangerous person (SDP) to consider the sole issue raised by this appeal: whether an individual may be adjudged sexually dangerous and committed to an institution after an SDP hearing conducted pursuant to G. L. c. 123A, Section 6, without a prior competency hearing, where there is a substantial question at the time of the SDP hearing of the defendant's competence. [Note 1] We hold that if sufficient information is brought to the attention of the judge to raise a substantial question as to the defendant's competence, G. L. c. 123A, Section 6, requires that the judge conduct an inquiry into the defendant's competence before proceeding with the hearing.

The facts are not in dispute. On May 26, 1977, the defendant was convicted of the crime of unnatural and lascivious acts with a child under the age of sixteen. He was sentenced to a term of imprisonment at the Billerica house of correction.

Acting pursuant to G. L. c. 123A, Section 6, [Note 2] the master at

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Billerica filed a motion in the Superior Court in August, 1977, seeking to commit the defendant to the treatment center at the Massachusetts Correctional Institution at Bridgewater (treatment center), for a sixty-day observation period. A judge granted the motion on September 28, 1977.

Two psychiatrists examined Knowlton at the treatment center. Their report was filed in the Superior Court on December 5, 1977. The report concluded that, in the opinion of the psychiatrists, Knowlton was a sexually dangerous person.

Thereafter, the Commonwealth filed a petition requesting that Knowlton be committed as an SDP to the treatment center for an indeterminate period of from one day to life. A hearing on the Commonwealth's petition was held on April 6, 1978.

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At the commencement of the hearing, counsel for the defendant requested that the court order that Knowlton be examined to determine whether Knowlton was "competent today to go through these proceedings in an appropriate fashion." In support of this request, counsel for the defendant outlined for the court Knowlton's history of schizophrenia, his virtually constant institutionalization since childhood for mental illness, and "the way he appears to me today."

The judge did not rule on the defendant's request, but proceeded with the SDP hearing in order "to get the background of the case." The only witnesses who testified at the hearing were the two psychiatrists who had examined Knowlton at the treatment center and a probation officer from the Superior Court for Middlesex County. The defendant called no witnesses.

During the course of the hearing, each of the psychiatrists who had examined Knowlton at the treatment center testified that Knowlton suffered from schizophrenia. However, both psychiatrists stated that they were unable to determine if the defendant's schizophrenia were presently "active" because neither had examined Knowlton on the day of the SDP hearing.

At the conclusion of the SDP hearing, counsel for the defendant repeated his position that "there is a serious question here about whether or not he [Knowlton] is competent to go through these proceedings today." Once again, the judge made no ruling on the issue of a competency hearing, but took the entire matter under advisement.

On April 12, 1978, the judge found the defendant to be an SDP under the terms of G. L. c. 123A, Section 1. [Note 3] He ordered

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the defendant committed to the treatment center for a period of from one day to life. See G. L. c. 123A, Section 6.

On appeal, the defendant argues only one issue. He maintains that on the day of the SDP hearing there was serious question as to his competence to proceed. Therefore, he claims that a competency hearing prior to any further proceedings was constitutionally compelled. [Note 4]

The Commonwealth "agrees with the defendant that there were sufficient facts known to the judge, or brought to his attention during the hearing, to raise the question of the defendant's competency at the time of the hearing." The Commonwealth further agrees that "on these facts, a hearing on competency would have been required in a criminal prosecution." See Commonwealth v. Hill, 375 Mass. 50, 57-58 (1978). However, the Commonwealth argues that in SDP proceedings under G. L. c. 123A, a defendant's competence is not relevant and thus the judge had no obligation to conduct a hearing as to Knowlton's competence prior to determining that Knowlton was a sexually dangerous person. We do not agree.

General Laws c. 123A is a comprehensive legislative program designed to identify and treat sexually dangerous persons. The statute was enacted "with the dual aims of protecting the public against future antisocial behavior by the offender, and of doing all that can be done to rehabilitate him." Commonwealth v. Rodriguez, 376 Mass. 632, 646 (1978). See Commonwealth v. Major, 354 Mass. 666, 668 (1968), cert. denied, 393 U.S. 1109 (1969);

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Gomes v. Gaughan, 471 F.2d 794, 800 (1st Cir. 1973). See generally Ross & Hochberg, Constitutional Challenges to the Commitment and Release Procedures under Massachusetts General Laws Chapter 123A, the "Sexually Dangerous Persons" Act, 4 New England J. Prison L. 253, 255 (1978).

Section 6 of G. L. c. 123A details the procedures by which the Commonwealth may act in instances involving prisoners under sentence who appear to be sexually dangerous persons. See note 2, supra. See generally Commonwealth v. Childs, 372 Mass. 25, 28 (1977). Under Section 6, once the examining psychiatrists submit to the court a report clearly indicating that the prisoner is an SDP, [Note 5] and once the Commonwealth has filed a petition for the commitment of the prisoner, the court is required to conduct a hearing in order to determine whether the prisoner is a sexually dangerous person.

However, before any hearing may be conducted pursuant to Section 6, the Commonwealth must "give notice to the prisoner or to his parents, spouse, issue, next of kin, guardian, or next friend, if it appears to the district attorney that such prisoner is incapable of conducting his contest to the report." Section 6 provides further protection to the prisoner prior to the commencement of the SDP hearing in the Superior Court: "The court may require such further notice as it deems necessary to protect the interest of the prisoner, may continue the hearing pending such notice and may appoint a guardian ad litem, if necessary."

We view the availability of these protective procedures as imposing a corresponding obligation on the judge to determine whether their use is necessary in any particular case. It is well established that "[w]henever genuine question arises in the trial of a cause whether a party to

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an action is capable of conducting the litigation by reason of minority or mental incapacity, it is the duty of the court to ascertain the fact and in case a finding is made that such incapacity exists to cause some competent person to be appointed to conduct the litigation." Sullivan v. Superior Court, 271 Mass. 435, 437 (1930). See Welch v. Fox, 205 Mass. 113, 114 (1910). Cf. Hermanson v. Seppala, 255 Mass. 607, 611 (1926). Similarly, where a defendant at the outset of an SDP hearing raises a substantial question as to his competence to proceed further we think that Section 6 requires the judge to protect the defendant's interest by assessing the defendant's competence before conducting the SDP hearing itself. Cf. Commonwealth v. Hill, 375 Mass. 50, 54 (1978); Commonwealth v. Kostka, 370 Mass. 516, 522 (1976).

Pursuant to Section 6, if the judge finds that the defendant is competent, then of course the SDP hearing will proceed. On the other hand, if the judge finds the defendant incompetent, then the judge may utilize any of the procedures available under Section 6 in order to protect the rights of the defendant. The judge may determine that further notice is necessary to protect the defendant's rights, and may order the hearing continued pending such notice. The judge may also decide that the SDP hearing should be continued in order to determine if it is possible for the defendant to be restored to competence within a reasonable period of time. [Note 6] If it does not appear likely that the

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defendant's competence will be restored in the foreseeable future, then the judge may appoint a guardian ad litem to protect the defendant's interests at the SDP hearing. [Note 7] Thus, the statutory terms themselves are sufficient in this case to have required the judge to conduct a hearing into Knowlton's competence.

Further support for the requirements of a competency hearing is also found in the various dispositions available to the judge under Section 6 after finding the defendant to be a sexually dangerous person. If the judge finds that the defendant is a sexually dangerous person, the judge may "commit him to the center, or a branch thereof ... or ... may commit such person to a mental institution or place him upon out-patient treatment, or make such other disposition upon the recommendation of the department of mental health consistent with the purpose of treatment and rehabilitation." G. L. c. 123A, Section 6. See Commonwealth v. Bladsa, 362 Mass. 539, 542 (1972). Cf. Commonwealth v. Travis, 372 Mass. 238, 247 n.4 (1977). See generally McGarry & Cotton, A Study in Civil Commitment: The Massachusetts Sexually Dangerous Persons Act, 6 Harv. J. Legis. 263, 282-283 (1969).

Thus the statute suggests a legislative awareness that sexually dangerous individuals may require differing methods of confinement and treatment, depending on their mental condition. The purpose of an SDP hearing is not merely to identify and to confine those found to be sexually dangerous individuals. "[T]he purpose of an SDP

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hearing is to find the best disposition available under the statute" (emphasis supplied). Commonwealth v. Rodriguez, supra at 646. [Note 8] See Commonwealth v. Bladsa, supra.

Finally, we reject the Commonwealth's suggestion that proceedings under G. L. c. 123A are "civil" and therefore that the competency safeguards required in criminal prosecutions are unnecessary. The label "civil" or "criminal" on a statute is not determinative of the need for safeguards. Rather, in deciding what safeguards are required, it is necessary to look at the nature of the right which the State seeks to circumscribe. The more precious the right, the greater the protection, whether the proceedings be labelled civil or criminal. See Commonwealth v. Travis, 372 Mass. 238, 246 (1977); Andrews, petitioner, 368 Mass. 468, 487-488 (1975). Accord, Doe v. Doe, 377 Mass. 272, 280-281 (1979).

In sum, in both the conduct and the disposition of an SDP hearing, the legislation requires that if there is a substantial question as to a defendant's mental competence the judge must hold a hearing to assess the competence of the defendant before proceeding with the SDP hearing. [Note 9] Thus it was error for the judge to determine

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that Knowlton was a sexually dangerous person and commit him to the treatment center for an indeterminate period of from one day to life without first resolving the issue of Knowlton's competence.

The order of the Superior Court committing the defendant to the treatment center for an indeterminate period of from one day to life is reversed. The finding of the Superior Court that the defendant is a sexually dangerous person is vacated, and the case remanded to the Superior Court for further proceedings consistent with this opinion. [Note 10]

So ordered.