In re G.P.

• Decision Date: 05 November 2015
• Docket Number: SJC–11911.
• Citation: 40 N.E.3d 989,473 Mass. 112
• Parties: In the Matter of G.P.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

473 Mass. 112

40 N.E.3d 989

In the Matter of G.P.

SJC–11911.

Supreme Judicial Court of Massachusetts, Suffolk.

Submitted Sept. 10, 2015.

Decided Nov. 5, 2015.

Ann Grant (Robert H. Weber, Newton, with her) for the petitioner.

Julia Kobick, Assistant Attorney General, for the respondent.

Sandra J. Staub, Amherst, & Robert D. Fleischner, for Mental Health Legal Advisors & others, amici curiae, submitted a brief.

Present: GANTS, C.J., SPINA, CORDY, BOTSFORD, DUFFLY, LENK, & HINES, JJ.

Opinion

BOTSFORD

, J.

We consider here questions concerning proceedings under G.L. c.123, § 35

(§ 35 ), a statute that authorizes the involuntary civil commitment of a person, for care and treatment, where there is a likelihood of serious harm as a result of the person's alcoholism or substance abuse, or both. In May, 2015, a District Court judge ordered G.P., the petitioner, committed pursuant to § 35

to the Women's Addiction Treatment Center (WATC), a facility operated by the Department of Public Health. After an unsuccessful appeal of the commitment order to the Appellate Division of the District Court, G.P. filed a petition for relief in the county court pursuant to G.L. c.211, § 3, to challenge and vacate the order. A single justice reserved and reported the case.

G.P. is no longer committed to the facility, rendering moot her challenge to the order of commitment. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103, 725 N.E.2d 552 (2000)

(Baker ). Nevertheless, we decide the case because it raises important issues concerning the operation of § 35 as well as the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse (uniform § 35 rules) scheduled to go into effect on February 1, 2016, and these issues are likely to evade review on account of the relatively short duration of a commitment under § 35. See, e.g., Baker, supra;

Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 274, 372 N.E.2d 242 (1978)

( Hagberg ).¹ See also Guardianship of V.V., 470 Mass. 590, 591–592, 24 N.E.3d 1022 (2015).

Background. On May 4, 2015, G.P.'s mother petitioned the New Bedford Division of the District Court Department (New Bedford District Court) to have her daughter committed pursuant to § 35

. The petition alleged in relevant part that G.P.'s mother had observed G.P. abusing heroin and that G.P. was using about two grams per day; that G.P. had stated that she would kill herself with heroin if she could obtain enough to do so; that G.P. was refusing to eat because she stated she wanted to die; that G.P. had hit her mother “before” and “pushed” and “shoved” her many times; that G.P. had been abusing drugs for two years; and that she had two “detox hospitalizations” in the past, the most recent having taken place eight to nine months previously.

A District Court judge held a hearing on the petition the day it was filed. Prior to the hearing, Dr. Ruth Saemann, a designated forensic psychologist, had examined G.P. and also had met with G.P.'s sister. Dr. Saemann testified at the hearing that the family believed G.P. had been using heroin for the past two years; that G.P. was feeling “very despondent” and had stated she would kill herself if she could get enough heroin; that G.P. had threatened the family that they would never see G.P.'s child again if they did not give her enough money, and she had stolen items from the family in order to obtain money; that G.P. had tried detoxification on her own the previous week and had become very sick, followed by daily use of heroin since then; and that the family was concerned about G.P.'s three year old child, who had brought a syringe to the child's grandfather (G.P.'s father), although Dr. Saemann did not know when this incident had occurred. According to Dr. Saemann, G.P.'s mother had stated that the previous week G.P. had pushed her, “[a]nd, that's not the first time that she's pushed her mother when she doesn't get her way.” Dr. Saemann also testified to what G.P. had told her, including that G.P. admitted having a heroin problem for the past two years; that she, G.P., recently had relapsed but had only used heroin twice in the previous week; that she denied her son had given a syringe to his grandfather; that she suffered from anxiety and depression but was not presently taking medication for those conditions, and also

had hepatitis C

; and that she was neither homicidal nor suicidal. Dr. Saemann examined G.P.'s arms and neck for needle marks and observed puncture marks that looked recent. Dr. Saemann concluded her testimony by giving her opinion that G.P. met the requirements of § 35 for commitment, explaining,

“I don't believe, given [G.P.'s] record and her history, that she is capable of stopping this on her own. I think she does need to, ... that she has lost control of the use of heroin and will need ... a commitment. I do find that she is a danger to herself by use of her heroin.... I also think that ... if indeed the child is finding syringes ... and [G.P.]'s Hep[atitis] C positive, that is putting the child in serious harm's way.”

The judge credited as fact Dr. Saemann's testimony recounting what G.P.'s sister and G.P. had told her. The judge further noted that G.P. had “pushed her mother the other day,” and concluded that all he had heard “mitigates in favor ... of a commitment. I'm not saying [G.P.] didn't try.... She failed. She couldn't dry herself out. She tried to detox. She's got recent track marks.... [S]he can't do it on her own.” The judge ordered G.P. committed to WATC.²

G.P. appealed the commitment order to the Appellate Division of the District Court,³ which denied relief and dismissed the appeal on May 21, 2015. G.P. filed her petition for relief under G.L. c.211, § 3

, on June 1, 2015, naming the New Bedford District Court as the respondent.⁴ A single justice reserved and reported the case to the full court without decision, and directed the parties to address the following questions:

“1) The standard of proof required at a commitment hearing under G.L. c.123, § 35

;

“2) whether the rules of evidence apply [in] a hearing on a petition for commitment pursuant to G.L. c.123, § 35 ;

“3) [t]he route of appeal from a decision ordering civil commitment under G.L. c.123, § 35

;

“4) the proximity in time of the ‘evidence of, threats of, or attempts at, suicide or serious bodily harm’ to the respondent, and the proximity in time of the ‘evidence of homicidal or other violent behavior or evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them’ necessary to establish a ‘likelihood of serious harm,’ G.L. c.123, § 1

,^[ [⁵

] to the

respondent or others, for an order of commitment to issue; and

“5) the quantum of risk necessary to establish ‘a very substantial risk of physical impairment or injury to the person himself as manifested by evidence that such person's judgment is so affected that he is unable to protect himself in the community.’ See G.L. c.123, §§ 1

, 35.”

Discussion. We consider each of the reported questions infra, but first summarize § 35

's provisions and the provisions of the trial court's uniform § 35 rules.

1. Commitment proceedings under § 35

. A petition for an order of commitment under § 35 of a person believed to be an “alcoholic”⁶ or “substance abuser”⁷ may be filed by a police officer, physician, spouse, blood relative, guardian, or court official in any division of the District Court or the Juvenile Court. G.L. c.123, § 35, third par. Once the petition is filed, the court must “immediately” schedule a hearing and cause a summons to be served on the person (respondent) or, if appropriate, issue a warrant

of apprehension or of arrest.⁸ Id. The respondent has the right to counsel, and to have counsel appointed if indigent. Id.

When the respondent appears in court, a qualified physician, psychologist, or social worker must examine her. Id. Counsel may remain present during the examination. See R.B. Minehan & R.M. Kantrowitz, Mental Health Law § 13.11 (2007). The hearing on the petition follows the examination, and it must include competent medical testimony, but the petitioner may present additional evidence as well, G.L. c.123, § 35

, fourth par.; the respondent also may present evidence, including independent expert testimony, G.L. c.123, § 35, third par. If the judge finds, based on the evidence presented, that (1) the respondent is an “alcoholic” or a “substance abuser” as defined in § 35, and (2) there is a “likelihood of serious harm” as a result of the respondent's alcoholism or substance abuse (or both), the judge may order the respondent committed to a suitable facility operated by the Department of Public Health (department) under G.L. c. 111B for a period not to exceed ninety days, but case management services are to be available through the department for up to one year; if there is not such a suitable facility available, commitment may be ordered to a facility operated by the Department of Correction—Bridgewater State Hospital, if the respondent is a man, or the Massachusetts Correctional Institution in Framingham, if a woman.

G.L. c.123, § 35

, fourth par. Likelihood of serious harm may be established by a showing of (1) a substantial risk of serious physical harm to the respondent; (2) a substantial risk of serious physical harm to other persons; or (3) a very substantial risk of physical “impairment or injury” to the respondent resulting from an inability to protect himself or herself in the community. G.L. c.123, § 1.

Following a respondent's commitment, the superintendent of the public or private facility to which the commitment was ordered must review the necessity of the commitment on the thirtieth day and every fifteen days thereafter for as long as the

commitment continues, up to the ninety-day limit. G.L. c.123, § 35

, fourth par. The superintendent may release the respondent before the end of the period of commitment originally ordered upon a written...