2017 Mass.App.Div. 185, In re D.L.

Citation:2017 Mass.App.Div. 185
Opinion Judge:HAND, P.J.
Attorney:Michael T. Porter for the petitioner. Devorah A. Borenstein for the respondent.
Judge Panel:Present: Hand, P.J., Welch & Finigan, JJ.
Case Date:December 14, 2017
Court:Massachusetts Appellate Division

2017 Mass.App.Div. 185


Massachusetts Appellate Division, District Court Department, Southern District

December 14, 2017

April 14, 2017

Michael T. Porter for the petitioner.

Devorah A. Borenstein for the respondent.

Present: Hand, P.J., Welch & Finigan, JJ.


This case arises out of a series of mental health commitment proceedings involving the appellant, D.L. D.L. was admitted to Pembroke Hospital ("Pembroke") for mental health evaluation pursuant to G.L. c. 123, § 12 on December 16, 2015. The following day, Pembroke petitioned timely for D.L.'s involuntary commitment and treatment under G.L. c. 123, §§ 7 and 8 on the grounds that D.L. suffered from a qualifying mental illness and that as a result of his disorder, he posed both a substantial risk to himself, evidenced by "multiple suicidal statements," and a very substantial risk of injury to himself based on "not eating or drinking for several days." After hearing, the court denied Pembroke's petition at approximately 4:00 P.M. on December 30, 2015, finding that D.L. had been eating and drinking something. 1

Immediately following denial of the petition, and in keeping with its obligation to engage in discharge planning for its patients, see 104 Code Mass. Regs. § 27.09(1)(a) & (b) ("A facility shall make every effort to avoid discharge to a shelter or the street. The facility shall take steps to identify and offer alternative options to a patient and shall document such measures . . . ."), Pembroke contacted two members of D.L.'s family to arrange a place for D.L. to go: neither D.L.'s grandmother, with whom he had lived before his temporary commitment, nor his aunt was willing to take D.L. to live with her, based on their concerns about D.L.'s safety in the community. Pembroke also tried, unsuccessfully, to reach D.L.'s father. D.L.'s attending psychiatrist noted in the medical record that he remained concerned for D.L.'s safety and that he continued to believe that D.L.'s insight and judgment were impaired by his psychotic condition such that D.L. was unable to take care of himself. Pembroke determined that D.L. could not safely be discharged to a shelter, and had apparently exhausted the known family resources willing to provide D.L. with safe housing on his release. Accordingly, at 5:40 P.M. on December 30, 2015, approximately ninety minutes after the court's denial of Pembroke's petition under G.L. c. 123, §§ 7 and 8, Pembroke applied for D.L.'s temporary commitment to South Shore Hospital ("South Shore") under § 12(a). Pembroke released D.L. to be transferred by ambulance directly to South Shore pursuant to § 12(a). 2

Page 186

In keeping with the procedure outlined in G.L. c. 123, § 12(a), D.L.'s attending psychiatrist and a member of Pembroke's administration telephoned South Shore before D.L. was transported from Pembroke. [3] Once at South Shore, D.L. was evaluated by members of South Shore's clinical staff, who, according to the medical record, 4 had no prior experience with D.L. South Shore ultimately authorized D.L.'s temporary involuntary hospitalization at Pembroke under § 12(b).

D.L. was readmitted to Pembroke on December 31, 2015. On January 6, 2016, Pembroke filed a new petition for D.L.'s commitment pursuant to G.L. c. 123, §§ 7 and

Page 187

8. On the scheduled hearing date, January 13, 2016, D.L. moved to dismiss the petition on the ground that the December 30, 2015 commitment under § 12(a) was improper. Specifically, D.L. argued that despite the court's denial of Pembroke's petition under §§ 7 and 8 on December 30, 2015, Pembroke had failed to actually discharge D.L. as it was required to do, and that D.L.'s discharge was merely "illusory."...

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