
    In the Matter of Robert Magrini
    Northern District
    July 31, 2007.
    Present: Greco, P.J., Coven & Brennan, JJ.
    Michael T. Porter for petitioner Newton Wellesley Hospital.
    Robert D. Fleischner for respondent Robert Magrini.
   Brennan, J.

In this G.L.c. 123, §9 (a) appeal, respondent Robert Magrini (“Magrini”) challenges the denial of his motion for an emergency hearing pursuant to G.L.c. 123, §12 (b) after his involuntary readmission to, and continued confinement at, Newton Wellesley Hospital (“Newton-Wellesley”). Magrini was first admitted to Newton-Wellesley on an emergency basis under G.L.c. 123, §§12 (a) and (b) on the night of June 8, 2006. The hospital’s petition for his involuntary six-month commitment pursuant to G.L.c. 123, §§7,8 was filed on June 15, 2006, and a hearing was scheduled for June 20, 2006 at the Newton Division of the District Court Department. On June 19,2006, Magrini requested the dismissal of the petition for commitment, alleging that it was filed after the three business day period of temporary involuntary emergency hospitalization permitted by G.L.c. 123, §§12 (c) and (d). The motion to dismiss was allowed by a trial court judge that same day, and Magrini was ordered discharged.

Upon receiving the court’s discharge order, Newton-Wellesley authorized a second temporary involuntary hospitalization under G.L.c. 123, §§12(a) and (b). This involuntary readmission was signed by a psychiatrist fifteen minutes prior to the same doctor entering a note in Magrini’s chart discharging him from his first commitment. Throughout this process, Magrini remained in a locked hospital ward. Magrini’s counsel, who had been appointed on the initial petition for commitment, responded immediately to the readmission by filing a Request for Emergency Hearing pursuant to G.L.c. 123, §12 (b). The request alleged unlawful detention, specifically citing a “misuse of §12 (a) and 12(b) to effectively countermand a court order to discharge me, Robert Magrini, on June 19,2006.” The following day, June 20, 2006, the Request for Emergency Hearing was denied by the same district court judge who had originally allowed Magrini’s motion to dismiss. On June 21, 2006, Magrini agreed to a conditional temporary voluntary commitment to Newton-Wellesley Hospital. On June 28, 2006, Magrini filed this appeal, alleging that the district court judge had no discretion to deny his Request for Emergency Hearing, or, in the alternative, that the denial of the request constituted an abuse of discretion.

As a preliminary matter, Newton-Wellesley contends that this Division lacks jurisdiction to hear the case because no actual commitment hearing was ever held. This argument is without merit. The Appellate Division of the District Court Department is authorized to review “[mjatters of law arising in commitment hearings.” G.L.c. 123, §9(a). Clearly, the denial of a request for hearing on a patient’s commitment to a hospital constitutes such an issue.

On a substantive level, however, Magrini is no longer subject to the order about which he complains and, thus, does not have a current “personal stake” in the outcome of this appeal. Blake v. Massachusetts Parole Bd., 369 Mass. 701, 703 (1976). The issue as it relates to Magrini is, therefore, moot. Id. Typically, we do not render decisions on moot issues because “courts need decide only actual controversies, not moot cases.” Pidge v. Superintendent, Mass. Corr. Inst., Cedar Junction, 32 Mass. App. Ct. 14, 19-20 (1992). Yet this Division does have discretion to issue opinions when “the question is one of public importance, is very likely to arise again in similar circumstances, and where appellate review could not be obtained before the question would again be moot.” Attorney Gen. v. Commissioner of Ins., 403 Mass. 370, 380 (1988). As that general principle applies to this case, we have observed that “[ijssues involving the commitment and treatment of mentally ill persons are generally considered matters of public importance... [and] are classic examples of issues that are capable of repetition, yet evading review.” In the Matter of Eastman, 2003 Mass. App. Div. 167, 168, quoting Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000).

Section 12(b) of G.L.c. 123 provides for an emergency hearing as follows:

Any person admitted under the provisions of this subsection, who has reason to believe that such admission is the result of an abuse or misuse of the provisions of this subsection, may request, or request through counsel an emergency hearing in the district court in whose jurisdiction the facility is located, and unless a delay is requested by the person or through counsel, the district court shall hold such hearing on the day the request is filed with the court or not later than the next business day.

The procedures for scheduling and conducting such emergency hearings were outlined in a recent memorandum from District Court Chief Justice Lynda M. Connolly to District Court Judges and Clerk-Magistrates. See District Court Department Transmittal No. 945 (February 23, 2007). This memorandum instructs a judge presented with a request for an emergency §12 (b) hearing to “review the patient’s request and the facility’s documents forthwith upon their receipt.” Id. at 8. A judge is permitted to deny a request for hearing upon a determination that “the patient’s written allegations, even if sustained, are not sufficient reason to believe that the admission decision resulted from some other abuse or misuse of the provisions of §12(b)Id. Thus, the judge in this case had discretion to permit a full emergency hearing or to decline the request for hearing based solely on the papers submitted.

Upon a review of the record in this case, we find no reason to believe that the judge failed to review Magrini’s request and Newton-Wellesley’s documents forthwith upon their receipt by the court. Although the judge’s decision to deny Magrini’s motion solely on the papers was within her discretion, it is our. view that in the circumstances of this case, specifically where a patient is deprived of his liberty without judicial hearing for twelve days under a statutory provision that contemplates such custody lasting no longer than three business days, the better practice is simply to hold an emergency hearing upon request. As the Supreme Judicial Court has long recognized, a person involuntarily committed to a mental health facility suffers a substantial deprivation of liberty, and must be afforded significant and meaningful due process protections. Commonwealth v. Nassar, 380 Mass. 908, 917 (1980).

Ultimately, however, as to Magrini’s contention that the denial of his request for an emergency hearing constituted an abuse of discretion, we disagree. There are no delineated regulatory, statutory or case guidelines for readmission upon discharge, particularly with respect to its practical implementation by mental health professionals. We cannot, and do not, address in this decision every circumstance or possible permutation of situations in which patients are discharged and readmitted to mental health facilities. Nor do we set a specific time interval between such discharge and readmission. In our view, whether such a practice offends the underlying purpose of G.L.c. 123 must be addressed on a case-by-case basis.

Here, the hospital acted in good faith. It had a professional, ethical and legal obligation to seek hospitalization for Magrini, a person whose doctor had reason to believe that “failure to hospitalize ... would create a likelihood of serious harm by reason of mental illness.” G.L.c. 123, §12(a). The discharge order in this case was not the product of a court’s substantive determination that Magrini did not require hospitalization; rather, it resulted from the court’s appropriate recognition of a procedural mistake by Newton-Wellesley. In addition, there is nothing in the record to suggest that the procedural problem that led to the dismissal of the initial petition has anything to do with the merits of the subsequent petition. Moreover, because the judge who denied the request for emergency hearing was the same judge whose dismissal order was the subject of the patient’s claim of abuse by the hospital, that judge was clearly in the best position to determine whether the initial order was “effectively countermand (ed).” Thus, while we may agree in principle that a person held as long as Magrini should generally be entitled to an emergency hearing, we cannot say that the judge’s action in this case was an abuse of discretion.

Appeal dismissed.

Coven, J.,

concurring in part and dissenting in part. I concur with those portions of the majority opinion which hold that the Appellate Division has jurisdiction to hear this appeal as it involves a question arising out of a mental health commitment, G.L.c. 123, §9(a); that the question is not moot because mental health commitments raise issues of great public importance that are capable of repetition, yet evading review, Guardianship of Doe, 391 Mass. 614, 618 (1984); and that the involuntary commitment by a doctor on an emergency basis under G.L.c. 123, §§12 (a) and (b) entitled the patient to request a hearing pursuant to § 12(b).

I respectfully dissent, however, from that portion of the majority opinion that holds that the patient was not entitled to a statutory hearing in the circumstances of this case.

The standard of review for the denial of the emergency hearing at issue here is not, as suggested by the majority, whether the hospital acted in good faith.

The statutory scheme governing mental health proceedings is based on the fundamental precept that an involuntary commitment to a hospital results in “a massive curtailment of liberty.” Commonwealth v. Nassar, 380 Mass. 908, 917 (1980), quoting Humphrey v. Cady, 405 U.S. 504, 509 (1972). See also Acting Supt. of Bournewood Hosp. v. Baker, 432 Mass. 101, 105 (2000). This proposition was most recently recognized in the legislative amendments to G.L.c. 123, which shortened the time in which a judicial proceeding must be held after an individual’s involuntary detention by a doctor, G.L.c. 123, §7, as amended by St. 2000, c. 249, §1; and which created the right to a hearing to contest the involuntary commitment where the patient has reason to believe that the admission is the result of an abuse, or misuse, of the emergency provisions of the statute. G.L.c. 123, §12 (b), as amended by St. 2000, c. 249, §1.

The provisions of §12 (b) were written by the Legislature as mandatory, not permissive. The statute requires that “the district court shall hold such hearing on the day the request is filed with the court or not later than the next business day."

The rationale of, and necessity for, that statutory mandate are illustrated by the facts in this case. On June 8, 2006, the patient was involuntarily committed to the Newton-Wellesley Hospital. The petition for his involuntary commitment was not filed, however, until June 15, 2006, well beyond the three-day requirement of G.L.c. 123, §12 (d). The failure to file a timely petition in compliance with the statute was solely the fault of the hospital. Recognizing the clear deprivation of the patient’s statutory rights, the judge dismissed the petition on June 19, 2006 and ordered the patient discharged.

After detaining the patient at the hospital on an involuntary basis for a period of eleven days without any judicial proceeding, and despite the judge’s unequivocal order that the patient be discharged, the hospital physician simply issued another order of temporary involuntary hospitalization pursuant to G.L.c. 123, §§12 (a) and (b). Fifteen minutes later, the same physician entered a progress note on the patient’s chart discharging him from his first commitment. Thus, the court’s unequivocal order discharging the patient because of the hospital’s violation of his statutory rights was then simply ignored by the hospital. Given the hospital’s conduct, the judicial order of discharge was purely illusory.

The patient’s involuntary confinement for eleven days in violation of his statutory rights, followed immediately by his second involuntary commitment by the hospital in disregard of a judicial discharge order, constituted facts sufficient to require the court to take the simple step of holding a hearing, mandated by statute, to determine if the second involuntary commitment was the result of an abuse or misuse of the emergency provisions of the statute.

That the statute imposes a restraint on an individual’s liberty “compels the conclusion that the time limit on the holding of the hearing goes to the essence of the public duty.” Hashimi v. Kalil, 388 Mass. 607, 610 (1983). Judicial proceedings created and mandated by the Legislature to review whether a person was properly confined to a hospital must be held “with the utmost dispatch.” Guardianship of Doe, supra at 620. The patient in this case was entitled to the minimal protection of a hearing no later than the next business day after his hearing request so that the court could determine whether his hospital admission was the result of an abuse or misuse of the statute. 
      
       It should be noted that, although the District Court Department has promulgated a form whereby a patient may check off the particular reason(s) for his or her request for an emergency hearing, none of the choices offered apply to this case.
     
      
       Indeed, counsel for hospital indicated at oral argument that the patient may have been held in restraints at the time of his putative “discharge.”
     