SHAWN P. O'SULLIVAN [Note 1] & another [Note 2] vs. SECRETARY OF HUMAN SERVICES & others. [Note 3]

LIACOS, J. This is an action for declaratory and injunctive relief brought by two patients at Bridgewater State Hospital (Bridgewater) against various State officials, alleging violations of G. L. c. 123, Section 21 (1986 ed.). The plaintiffs sought, inter alia, a preliminary and permanent injunction enjoining the defendants from continuing certain seclusion and restraint practices in violation of c. 123, Section 21.

On July 31, 1987, a judge in the Superior Court found that the plaintiffs were entitled to injunctive relief. He deferred entry of a preliminary injunction, however, to allow for completion of a plan intended to bring State practices at Bridgewater to compliance with the mandates of Section 21. At that time, the defendants would be permitted to show cause why the injunction should not enter. The plan was completed on August 10, 1987. Shortly thereafter, the Department of Correction issued draft regulations regarding the use of seclusion and restraint at Bridgewater.

The judge heard further argument on the request for injunctive relief in light of the new plan and proposed regulations. On September 11, 1987, he granted, in part, the plaintiffs' application, ruling that monitoring and other associated procedures pertaining to patients in seclusion and restraint at Bridgewater, either as then practiced or as required under the newly proposed regulations, failed to comport with the requirements of c. 123, Section 21. A four-part preliminary injunction issued. The defendants appealed only the portion of the second paragraph of

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the injunction that requires constant observation of patients in seclusion. [Note 4] On the defendants' motion, the judge stayed implementation of the second paragraph, pending appeal. He subsequently denied the plaintiffs' motion for relief, pending appeal, or for modification of the stay. A single justice of the Appeals Court denied a similar motion on September 30, 1987. We granted the defendants' application for direct appellate review.

1. Mootness. At the outset, we note that the issue of the named plaintiffs' treatment at Bridgewater is moot; both plaintiffs have been transferred to facilities outside the jurisdiction of the Department of Correction. [Note 5] The plaintiffs' counsel, however, apparently are prepared to pursue this action on behalf of one who is currently a resident at Bridgewater, and the defendants do not press a claim of mootness. The matter has been briefed fully, and the rulings of the judge have continued impact on administrative practices at Bridgewater and other State mental institutions. Additionally, the issue raised is likely to arise again and appears "capable of repetition, yet evading review." Guardianship of Linda, 401 Mass. 783, 784 (1988). See, e.g., Commonwealth v. Yameen, 401 Mass. 331, 333 (1987); Metros v. Secretary of the Commonwealth, 396 Mass.

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156, 159 (1985). Thus, we exercise our discretion to decide this matter.

2. The seclusion and restraint statute. General Laws c. 123, Section 21, ninth par., provides: "No person shall be kept in restraint without a person in attendance specially trained to understand, assist and afford therapy to the person in restraint. The person may b[e] in attendance immediately outside the room in full view of the patient when an individual is being secluded without mechanical restraint; provided, however, that in emergency situations when a person specially trained is not available, an adult[ ] may be kept in restraint unattended for a period not to exceed two hours. In that event, the person kept in restraints must be observed at least every five minutes; provided, further, that the superintendent, director, or designated physician shall attach to the restraint form a written report as to why the specially trained attendant was not available. The maintenance of any adult in restraint for more than eight hours in any twenty-four hour period must be authorized by the superintendent or facility director or the person specifically designated to act in the absence of the superintendent or facility director; provided, however, that when such restraint is authorized in the absence of the superintendent o[r] facility director, such authorization must be reviewed by the superintendent or facility director upon his return." (Emphasis added.) [Note 6]

The defendants argue that the judge engrafted a new requirement to Section 21 by mandating constant observation of secluded patients. The defendants maintain that neither the statutory language nor the legislative history establishes a constant observation requirement. Rather, the legislative purpose was to allow for clinical discretion in administering the use of seclusion. They argue that the "in attendance" language requires only that someone be nearby to understand, assist and afford therapy to the patient, and to diminish the patient's sense of

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solitude. Reading in isolation the phrase "in full view of the patient," the defendants claim that the statute is written solely from the patient's vantage point, requiring only that secluded patients be able to see a trained observer if they so wish. We disagree.

We are mindful that "[t]he general rule is that `[w]here the language of a statute is plain, it must be interpreted in accordance with the usual and natural meaning of the words.' Gurley v. Commonwealth, 363 Mass. 595, 598 (1973). See Commonwealth v. Vickey, 381 Mass. 762, 767 (1980); Johnson's Case, 318 Mass. 741, 747 (1945)." Restaurant Consultants, Inc. v. Alcoholic Beverages Control Comm'n, 401 Mass. 167, 170 (1987).

We have stated also that "[t]he statutory language, when clear and unambiguous, must be given its ordinary meaning. Hashimi v. Kalil, 388 Mass. 607, 610 (1983). When the use of the ordinary meaning of a term yields a workable result, there is no need to resort to extrinsic aids such as legislative history. Id. Moreover, the statutory language is the principal source of insight into legislative purpose. Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977)." Bronstein v. Prudential Ins. Co., 390 Mass. 701, 704 (1984). In our view, the statute is clear and unambiguous. Hence, we need not refer to the statutory history.

The seclusion and restraint law explicitly mandates that the various forms of restraint "may only be used in cases of emergency, such as the occurrence of, or serious threat of, extreme violence, personal injury, or attempted suicide" (emphasis added). G. L. c. 123, Section 21. See also G. L. c. 123, Section 1 (containing a stringent definition of "Likelihood of serious harm"). The "use of the word `only' in G. L. c. 123, Section 21, means `for no other purpose.'" Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 510 (1983). Only when the patient harms, or presents a serious threat of harm, to himself or others, is the use of restraint permitted. Neither doctors nor courts have the power to expand the circumstances in which a patient may be restrained. Id.

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Where the requisite emergency situation exists, Section 21, ninth par., further prescribes the manner in which seclusion or mechanical restraint is to be applied. As the judge below found, in an uncontested portion of the preliminary injunction, the use of mechanical restraint necessitates that a specially trained person be "situated in the room" with the patient. The staffer must be able constantly to observe the restrained person. This requirement flows from the first sentence of Section 21, ninth par.: "No person shall be kept in restraint without a person in attendance specially trained to understand, assist and afford therapy to the person in restraint." The defendants' new regulations in effect acknowledge that, in this context, being "in attendance" requires constant observation of the mechanically restrained patient. [Note 7]

The statute provides an option regarding the manner of constant observation when seclusion without mechanical restraint occurs. The second sentence of Section 21, ninth par., then provides that the person "may b[e] in attendance immediately outside the room in full view of the patient" (emphasis added). While the person need not be in the room with the secluded person, repetition of the operative words "in attendance" indicates that the requirement of constant observation remains unchanged. [Note 8] See Plymouth County Nuclear Information Comm. v. Energy

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Facilities Siting Council, 374 Mass. 236, 240 (1978) (word used in one part of statute in definite sense should be given same meaning in another part of same statute). If the option of the staff person not to be in the same room with the patient is exercised, however, there is an additional requirement that the secluded patient be able to see the staff person.

The logic of this statutory scheme rests on the practical differences between seclusion and mechanical restraint. When the latter is used, the patient's bodily movement is severely restricted. The necessity of having a trained observer to "assist and afford therapy" is evident. Moreover, as the judge found, the nature of restraining devices may preclude the staff person from being "in full view" of the person in restraint. With the former method, however, the patient may move freely about the seclusion room. If, for reasons of the observer's own safety or otherwise, the observer shall be "immediately outside" the room in observing the patient, then he constantly must be visible to the patient as if he were in attendance inside the seclusion room. [Note 9]

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We conclude, therefore, that the judge did not err in his interpretation of the statute.

3. Preliminary injunctive relief. We consider next whether the judge exercised properly his discretion in ordering a preliminary injunction. The standard for review of a grant or denial of preliminary injunctive relief is whether the judge abused his discretion. Our review, however, is not perfunctory. "[W]e must look to the same factors properly considered by the judge in the first instance." Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615-616 (1980).

To obtain a preliminary injunction, the moving party must show that, without such relief, "it may suffer a loss of rights that cannot be vindicated should it prevail after a full hearing on the merits." Id. at 616. The judge must balance the moving party's chance of success on the merits and its risk of irreparable harm against any similar risk of irreparable harm to the opposing party. The touchstone of the analysis is "the risk of such harm in light of the party's chance of success on the merits." Id. at 617.

In the case at bar, the judge found that the plaintiffs would suffer "immediate and irreparable" harm if a preliminary injunction were not granted. In balancing the anticipated harm to the plaintiffs against the injury to the defendants, the judge concluded that the balance tipped in favor of the plaintiffs. Finally, he concluded that the plaintiffs have a likelihood of success on the merits, and that the public interest supported issuance of a preliminary injunction conforming to the requirements of G. L. c. 123, Section 21.

Our examination of the relevant factors supports the judge's conclusions. Without this preliminary relief, the plaintiffs might suffer deprivation of the rights afforded under G. L. c. 123, Section 21. [Note 10] Any violations to their persons could not be

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remedied retroactively. In light of the substantial risk of harm to the plaintiffs given their chance of success on the merits, there was no error in granting the preliminary injunction.

The case is remanded for further proceedings consistent with this opinion. The judge may consider whether reasonable attorneys' fees and costs incurred in the pursuit of this appeal should be awarded to the plaintiffs. See G. L. c. 12, Section 11I.

Order affirmed.