In re P.R.

Decision Date05 August 2021
Docket NumberSJC-13068
Citation171 N.E.3d 1123,488 Mass. 136
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
Parties In the MATTER OF P.R.

The following submitted briefs for amici curiae:

Devorah A. Vester, Committee for Public Counsel Services, for P.R.

H. David Kim, Assistant Attorney General, for Department of Mental Health.

Thomas F. Schiavoni, Lynn, pro se.

Brian C. Almeida, Michael C. Boyne, Waltham, James T. Hilliard, Walpole, Michael T. Porter, Boston, & Jessica L. Deratzian, for Massachusetts Psychiatric Society, Inc., & others.

Mark J. Murphy, of New York, Kathryn Rucker, Robert LeRoux Hernandez, Jennifer Honig, Boston, & Tatum A. Pritchard, for Center for Public Representation & others.

Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.

LOWY, J.

Civil commitments necessarily entail a loss of liberty. For this reason, a person facing a possible commitment under G. L. c. 123, §§ 7 and 8 -- sections that govern longterm, involuntary commitments -- is afforded various safeguards, including those provided by the law of evidence. This case centers on what an expert witness may testify to on direct examination during a hearing held pursuant to these sections. As is well settled, experts may not testify on direct examination about the basis of their opinion when these facts are neither within their personal knowledge nor otherwise admitted in evidence during the proceeding. See, e.g., Commonwealth v. Goddard, 476 Mass. 443, 448, 68 N.E.3d 1146 (2017). Applying this rule here, the judge erred in allowing the expert to do just that. Because this error was prejudicial, we remand for a new hearing.1

Background. In November 2016, P.R. was committed to the Pocasset Mental Health Center (Pocasset), a facility operated by the Department of Mental Health (department). In June 2017, the department filed a petition to recommit P.R. pursuant to G. L. c. 123, §§ 7 and 8. The petition alleged that P.R. had schizoaffective disorder

, bipolar type, and was manic. P.R. waived his right to a hearing and was recommitted.

After being transferred to the Lemuel Shattuck Hospital (Shattuck), another department facility, however, P.R. requested a hearing regarding his commitment.2 In his motion before a judge in the Boston Municipal Court, P.R. argued that commitment at Shattuck no longer was necessary. The judge subsequently held a full hearing on the merits of the underlying petition. Two witnesses testified: P.R.’s psychiatrist at Shattuck, who testified for the department; and P.R., who testified on his own behalf.

The psychiatrist testified that P.R. was diagnosed with paranoid schizophrenia

and experienced delusions, such as beliefs that his medications were poisoned with cyanide, he had gotten married when he was two years old, Jewish people were trying to change his religion using birds, and he was the chief executive officer of several companies. The psychiatrist testified that P.R. remained "quite delusional" at the time of the hearing. Although P.R. was not violent or threatening toward others, the psychiatrist testified that the delusions caused him to suffer from poor judgment and to put himself in danger.

According to the psychiatrist, this poor judgment manifested in several ways. Along with his mental illness, P.R. also has chronic obstructive pulmonary disease

, a condition for which he had been prescribed oxygen. While at Pocasset, P.R. increased the flow from his oxygen tank to what the psychiatrist deemed "extremely harmful" levels because P.R. believed these levels were necessary. Although P.R. eventually was prescribed nebulizers and his prescription was discontinued for oxygen,3 he did not take his prescribed medications every day. In particular, P.R. had not been taking all of his medications during the two weeks before the hearing. The psychiatrist further testified that, although P.R. was under a guardianship that authorized the administering of antipsychotic medications, his guardian would not be able to force P.R. to take his medications after being discharged. Based on these facts, the psychiatrist believed that P.R. required a supervised living arrangement.

During direct examination, the psychiatrist also testified that P.R. had been living at an assisted living facility prior to his initial commitment in November 2016.4 This assisted living facility had been staffed by nurses who had provided P.R. with medications and food. The psychiatrist testified that, despite this care, P.R. had not been "able to function and was putting himself in danger[ ]" there. Furthermore, the psychiatrist added that even if P.R.’s prior assisted living facility could have provided adequate supervision, he could not now be discharged to it because it was unavailable. All the information about the assisted living facility appeared to come from a medical report that the psychiatrist had consulted. That report, which seems to have detailed the findings of a social worker who spoke with an unknown third party about P.R.’s previous living arrangements, never was entered in evidence and is not in the record.

P.R. testified that he intended to accept prescribed psychiatric medications if he were discharged. P.R. explained that he knew how to use bus transportation and that if he had questions about his medication or treatment, he would consult his doctors. P.R. also testified that before he was committed to Pocasset, he had been living in an apartment; he had a representative payee who had continued to pay the rent since his commitment to Pocasset; and he planned to return there after being discharged.

The judge found that P.R.’s commitment should continue under §§ 7 and 8. The Appellate Division of the Boston Municipal Court affirmed. P.R. appealed to the Appeals Court, and we transferred the case to this court on our own motion.

Discussion.5 General Laws c. 123, §§ 7 and 8, set out the statutory framework under which P.R. was committed. Pursuant to these sections, by petitioning the Juvenile Court, the District Court, or, as in this case, the Boston Municipal Court, the superintendent of a mental health facility may seek to commit involuntarily -- initially for a period of six months, and then for subsequent one-year periods -- an individual who has been admitted to the facility. G. L. c. 123, §§ 7 (a ), 8 (d ). To order such a commitment, a judge must find both that the individual is mentally ill and that discharge from the facility would "create a likelihood of serious harm." G. L. c. 123, § 8 (a ). Much of this case centers on what a judge may consider in determining whether the second condition is fulfilled.

1. Likelihood of serious harm. "Likelihood of serious harm" is statutorily defined in three ways; the applicable one here is the third.6 See G. L. c. 123, § 1. It requires the judge to find that both (1) "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," and (2) "reasonable provision for his protection is not available in the community." Id. The department must prove each of these elements beyond a reasonable doubt.7 See Matter of J.P., 486 Mass. 117, 119, 155 N.E.3d 722 (2020).

On appeal, P.R. advances two distinct evidentiary arguments regarding the likelihood of serious harm that he posed. First, P.R. argues that the department failed to carry its burden as to the very substantial risk of harm that he posed to himself. Second, P.R. contends that the judge erroneously relied on hearsay evidence in determining that reasonable provision for his care in the community was unavailable. Although there was sufficient evidence concerning the risk of harm, we agree that the judge committed prejudicial error by relying on hearsay evidence concerning the unavailability of alternatives to hospitalization.

a. Very substantial risk of harm. To demonstrate a "very substantial risk of physical impairment or injury," the department needed to prove that P.R.’s "judgment is so affected that he is unable to protect himself in the community." G. L. c. 123, § 1. "The focus of the evidence, then, must be on [P.R.’s] degree of impaired judgment due to [mental illness and] the degree of likelihood that, as a direct consequence, [P.R.] will sustain or inflict injury ...." Matter of G.P., 473 Mass. 112, 129, 40 N.E.3d 989 (2015). The risk also must be imminent, meaning "it will materialize ‘in days or weeks rather than in months.’ " Matter of J.P., 486 Mass. at 119, 155 N.E.3d 722, quoting Matter of G.P., supra at 128, 40 N.E.3d 989. "In our review of the sufficiency of the evidence, we accept the findings of fact made by the hearing judge unless clearly erroneous; however, we review without deference whether the legal standard for civil commitment was met." Matter of J.P., supra at 121, 155 N.E.3d 722.

P.R. emphasizes that at the time of the hearing he was no longer on an oxygen prescription and thus could not harm himself by increasing the intake to dangerous levels as he had done previously. Yet the underlying issues that created the "very substantial risk of physical impairment or injury" -- P.R.’s paranoid schizophrenia

, delusions, and resulting impaired judgment -- still were present. G. L. c. 123, § 1. The oxygen incidents, which occurred only months prior to the hearing and had been a recurring issue throughout P.R.’s time at Pocasset, were but one particularly stark example of P.R.’s poor judgment. Even under the department's supervision, P.R. repeatedly resisted taking his medications, which he believed were poisoned. Indeed, the psychiatrist testified that P.R. had refused medication in the two weeks before the hearing, was still "quite delusional," and remained unable to care for himself.

Therefore, although P.R. no longer could harm himself using the intake valve on his oxygen tank, the impaired judgment that led him initially to attempt these acts...

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