
    Acting Superintendent of Bournewood Hospital
      vs. Lynda Baker
    Southern District
    June 8, 1999.
    Present: Aguiar, EJ., Welsh & Crimmins, JJ.
    Thomas E. Martin for the plaintiff.
    Leigh Watts for the defendant.
    
      
       Edward Rabe, M.D., is named as Acting Superintendent, Bournewood Hospital.
    
    
      
       Although a member of the panel, Judge Crimmins does not concur in the Opinion of the Appellate Division.
    
   Welsh, J.

This is an appeal under Rule 8B, Dist./Mun. Cts. R. A. D. A. from an order of commitment to the Bournewood Hospital pursuant to §§7 & 8 of G.L.c. 123, and an order permitting treatment of the respondent with anti-psychotic medication notwithstanding respondent’s refusal to consent to such treatment under the “substituted judgment” test. See Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 751-755 (1977); Rogers v. Commissioner of the Department of Public Health, 390 Mass. 487, 489-504 (1983).

The main issue presented by this appeal is whether the respondenf s status as a “conditional voluntary” patient at petitioner’s facility under G.L.c. 123, §12(c) precluded a “Rogers” determination requiring her to take anti-psychotic medication against her will.

The respondent was admitted to the Bournewood Hospital, a private psychiatric facility, on August 29,1998 pursuant to G.L.c. 123, §12. In accordance with G.L.c. 123, § 12(c) and DMH Regulations 104 CMR 27.07(1), the respondent was offered the opportunity to apply for “voluntary” admission agreeable to G.L.c. 123, §10(a). She executed the prescribed form and was admitted as a “conditional voluntary” patient. The respondent’s admission status required that she give three days notice of her intent to leave, to afford the facility an opportunity to apply for civil commitment under G.L.c. 123, §§7 & 8 if deemed appropriate. At no time did the respondent give the required notice. While respondent was a “conditional voluntary” patient at Bournewood Hospital, a petition for civil commitment was filed by the hospital, seeking an order for commitment for an initial period not more than six months. Contemporaneously, a “Rogers” petition was filed. Petitions were heard seriatim on the same date, but separately. The judge first determined that a civil commitment was appropriate. He then decided that the patient was not competent to make decisions concerning her treatment, and, applying the “substituted judgment” test, ordered that anti-psychotic medication be administered to the respondent in accordance with a court-ordered treatment plan. Rogers, supra at 505-507; see Guardianship of Roe, 383 Mass. 415, 443-448 (1981).

The three-day notice requesting the opportunity to leave the hospital is required primarily to afford the hospital or facility an opportunity to petition for civil commitment under G.L.c. 123, §§7 & 8, if deemed appropriate. If no such notice was required, as a condition to terminate a “voluntary” admission, a mentally ill patient who was in the hospital for reasons other than a court ordered committal could simply elope before steps could be taken to petition for an involuntary commitment with resulting risk of harm to the patient or the public. In the present case, the purpose of this notice requirement (i.e. to retain the patient pending filing of a petition for commitment) has been achieved, since the hospital was able to commence proceedings for involuntary commitment in spite of the absence of a notice of intent to leave.

Contrary to the implication of respondent’s argument, a person may properly be the subject of a petition for commitment under Sections 7 & 8 of G.L.c. 123, notwithstanding his or her status as a “voluntary” (or more accurately a “conditional voluntary”) patient in a facility.

Since the court first concluded that an involuntary commitment for six months was appropriate, there was no impediment to proceeding forthwith to a hearing on the issue of whether or not the patient was competent to make treatment decisions, and then, having decided she was not competent for that purpose, whether anti-psychotic medication was to be administered in accord with a court-approved treatment plan-

The argument that probate guardianship might afford a remedy in cases of a voluntary or conditional voluntary patient who remains at the facility without having given notice of intent to leave, does not imply that it is an exclusive remedy, notwithstanding significant procedural differences in §8B of G.Lc. 123 and guardianship of mentally ill persons in the probate court. The remedies are cumulative and not mutually exclusive.

The notice of appeal does not appear to challenge the sufficiency of evidence to warrant the findings or to question the correctness of the application of legal principles by the hearing judge.

There being no error, the appeal is dismissed.

So ordered.

Dissent

Crimmins, J.

For the following reasons, I believe that the trial judge should have granted the appellant’s motion to dismiss. Therefore I respectfully dissent.

I. Involuntary Commitment Under G.L.c. 123, §§7-8

The District Court’s jurisdiction over a G.L.c. 123, §8B petition depends on whether or not the patient has been involuntarily committed under G.L.c. 123, §§7-8. Only after an order by the court for involuntary commitment, may the District Court entertain a petition under G.L.c. 123, §8B for the treatment of a patient with anti-psychotic medication against her will. Thus, the District Court’s jurisdiction over a G.L.c. 123, §8B petition necessarily depends on whether there was sufficient evidence to make the required findings needed to commit the patient in the first instance. For the reasons set forth below, I conclude that the record appendix does not contain sufficient evidence to involuntarily commit this patient, and therefore the motion to dismiss for lack of jurisdiction should have been granted.

G.L.c. 123, §7 (a) allows the superintendent of a facility to petition the District Court to order the commitment of any patient whom the superintendent determines “that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness.” The court must find that the person is mentally ill and that the discharge or failure to retain such person in the hospital would create the likelihood of serious harm. G.L.c. 123, §8(a)-(b). With respect to burden of proof, the person cannot be involuntarily committed unless the Commonwealth proves beyond a reasonable doubt substantial risk of physical harm by reason of mental illness in the event of the failure to hospitalize. Superintendent of Worcester State Hospital v. Hagberg, 374 Mass. 271, 276 (1978); Commonwealth v. Nassar, 380 Mass. 908, 916 (1980). Proof beyond a reasonable doubt is the proper standard to apply in this proceeding. Id.

Here, the appellant was already hospitalized as a conditional voluntary patient at the time the superintendent brought the petition. The statute contemplates a category of people who are either not hospitalized or intend to leave the hospital. G.L.c. 123, §7(a). There is no evidence in the record appendix that would permit the inference that the appellant was about to be discharged or intended to leave the facility. The statute clearly requires a threat of harm from “the failure to hospitalize” the patient in question. G.L.c. 123, §7(a). As there was no notice that the appellant would leave the hospital, failure to hospitalize could not be proven as one of the necessary elements needed by the Commonwealth to meet its burden of proof.

The trial judge found the appellant to be mentally ill and that the failure to retain her in a facility would create a likelihood of serious harm. For reasons previously stated, this finding is not warranted from the record appendix and the petition was not properly before the court under G.L.c. 123, §7. The order of involuntary commitment should not have issued and the court lacked the jurisdictional predicate to hear the G.L.c. 123, §8B petition.

II. Policy Considerations

It is unwise then, to interpret G.L.C. 123, §7 in a manner that would allow the superintendent to file a petition for the involuntary commitment of a patient who had been voluntarily admitted to a hospital, as in the instant case. The superintendent would have to argue that the voluntarily admitted patient, if they ever were released, might pose a threat of harm. This argument fails in the case of a patient who has never indicated a desire to be discharged. However, with the voluntarily admitted patient already in the hospital, what is the efficacy of a hearing to determine the harm posed if they were to leave the hospital? There is none.

The petition is a pretext to obtain District Court jurisdiction of a petitioner under G.L.c. 123, §8B, also referred to as a “Rogers petition.” Rogers v. Commissioner of Department of Mental Health, 390 Mass. 489 (1983). The appellee in the instant action filed the petition for the appellant’s involuntary commitment because the petition for involuntary commitment was a prerequisite to obtaining District Court jurisdiction over the G.L.c. 123, §8B petition, and not because there was any threat of the appellant leaving the hospital. The appellee could have obtained the relief sought in an order under G.L.c. 123, §8 in the Probate and Family Court without the stigma to the appellant of being involuntarily committed. Both parties acknowledge that “conditional voluntary admission may foster a more beneficial therapeutic alliance.” Amicus for Appellee, p. 20. This preference for voluntary admission into the hospital is codified in G.L.c. 123, §12 (c) and in the Department of Mental Health Regulations in 104 CMR 27.07 (1).

The reasons the appellee gives for not proceeding in the Probate and Family Court are not compelling. The Probate and Family Court can issue an order for the forced administration of medication without a full guardianship. G.L.c. 201, §6(c). Guardianship orders can limit the scope of the guardian’s authority to the implementation of the court ordered treatment plan, similar to the District Court process. Thus, guardianship is not a “blunt instrument” as the appellee argues, but a flexible option. It allows the superintendent to achieve the same result as the District Court process, without the stigma of involuntary commitment.

It stands to reason that the least restrictive alternative is a Probate Court guardianship, rather than the District Court process. “’ [I]f the doctrines of informed consent and right of privacy [that underlie the substituted judgment determination] have as their foundations the right to bodily integrity and control of one’s own fate, then those rights are superior to the institutional considerations.’” (citations omitted) Rogers v. Commissioner of Department of Mental Health, 390 Mass. 489, 503 (1983) quoting Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 744 (1977).

For the above mentioned reasons, I respectfully dissent. 
      
       Section 8B permitting district court adjudications of competency and medical treatment expressly refers to "a patient who is the subject of a petition for commitment or an order of commitment.” (emphasis added)
     