No. 20-P-1359.


Appeals Court of Massachusetts.

January 19, 2022.


NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

In May 2019, the Worcester Recovery Center and Hospital (hospital), filed a petition in the District Court for the authorization to treat S.S. medically through the administration of antipsychotic drugs. G. L. c. 123, § 8B (a). Following an evidentiary hearing, the judge granted the hospital's petition and issued an order authorizing the hospital's treatment plan. On appeal, S.S. contends that the order authorizing the treatment plan was based on insufficient evidence and that the absence of a specific provision for the monitoring of her treatment progress invalidates the order. Concluding that the evidence was sufficient to grant the petition and that the monitoring issue is moot, we affirm.


S.S. was transferred to the hospital from the Suffolk County house of correction pursuant to G. L. c. 123, § 18 (a).1 On June 11, 2019, the day scheduled for the hearing on the § 8B (a) petition, S.S. waived her right to a hearing. See G. L. c. 123, § 6 (b). The judge ordered her civilly committed for a period of six months and proceeded to address the § 8B petition.

The hospital presented one witness, a psychiatrist who had been treating S.S. during her admission to the hospital under the § 18 (a) petition and was familiar with S.S.'s medical records from a prior admission to the hospital.

According to the psychiatrist, S.S. was diagnosed with schizophrenia. In the case of S.S., the disease presented as a substantial disorder of thought and perception. S.S. had disorganized thoughts and could not engage in rational conversation; she could often be seen "sitting by herself [and] engaging in self-dialog[ue]," a sign that she was "experiencing auditory hallucinations." When the psychiatrist had explained to S.S. her diagnosis of schizophrenia, S.S. was able to "verbalize to [the psychiatrist], `I do not agree with that.'" Yet, S.S. had been previously admitted to the hospital a couple of years earlier and had been successfully treated and discharged.

The psychiatrist testified that because S.S. was unable to appreciate that she had a mental illness, she could not appreciate the benefits of treatment. Although the psychiatrist did discuss antipsychotic medication with S.S. "at least once a week," the psychiatrist opined that S.S. "is unable to make a reasoned decision with respect to refusing or accepting antipsychotic medication at this time."

After observing that S.S. had been "talking, presumably, to herself throughout th[e] hearing," the judge concluded that the hospital had met its burden with respect to competency and directed the parties to move on to the issue of substituted judgment.

The psychiatrist testified that the proposed course of treatment was with the antipsychotic Risperdal "because it is the medication that [S.S.] was stabilized on last time during her admission, and she was able to be successfully discharged into the community." And although there are side effects to the drug, no side effects were noted during S.S.'s prior admission. Nonetheless, S.S. would be monitored with the staff taking her vitals and bloodwork and observing her such that, if any side effects were observed, the medication could be adjusted. With respect to any family views on the proposed treatment, S.S. had declined to sign releases and had not "discussed family members"; nor was the psychiatrist aware of any religious beliefs that would be contrary to the proposed treatment. The prognosis for S.S. with this treatment was "fair" and without it, S.S. would likely "continue to be psychotic and . . . her mental illness would deteriorate."2 Although S.S.'s expressed preference was "not to take antipsychotic medication," the psychiatrist opined that, "if [S.S.] were competent, she would agree to take the medication."

S.S. testified on her own behalf and explained why she did not want to take the medication:

"I'm worried the medication will have side-effects and then, and then if I follow the paper that the doctor give me the other day, (inaudible) on my health at the moment, that the effect if I take multiple medication."

At the conclusion of the hearing, the judge found that the hospital had met its burden with respect to both competency and substituted judgment and approved the treatment plan. The written order that issued indicated that "[t]he court shall monitor the treatment process to ensure that the treatment plan is followed by holding a treatment plan status conference on _________ unless the respondent is discharged before that date." The date of the treatment plan status conference was not filled in and remained a blank line.

S.S. was discharged from the hospital on August 6, 2019. She appealed to the Appellate Division of the District Court Department, which affirmed the judge's order on September 30, 2020. S.S. further appealed to this court.


1. Sufficiency of the evidence.

S.S. argues that the hospital failed to present sufficient evidence on either the competency or substituted judgment prong of § 8B (d). She also argues that the judge's findings "fail to demonstrate meticulous detail and close attention to the evidence."

We review the issuance of an order pursuant to G. L. c. 123, § 8B (d), for an abuse of discretion or other error of law. See Guardianship of Linda, 401 Mass. 783, 786-787 (1988) (applying abuse of discretion standard to review of denial of Probate Court petition for involuntary administration of antipsychotic medications). We review the judge's findings of fact for clear error, but "scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." Matter of D.K., 95 Mass.App.Ct. 95, 100 (2019), quoting Matter of A.M., 94 Mass.App.Ct. 399, 401 (2018). "[T]he serious consequences following entry of substituted judgment orders" require that judges set down their findings "in writing and in meticulous detail," reflecting "careful work and reflection." Guardianship of Doe, 411 Mass. 512, 524 (1992).

a. Competency.

"[A] distinct adjudication of incapacity to make treatment decisions (incompetence) must precede any determination to override patients' rights to make their own treatment decisions." Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 498 (1983). "A finding of incompetence `should consist of facts showing a [person's] inability to think or act for himself as to matters concerning his personal health, safety, and general welfare.'" Cogen v. Bolduc, 435 Mass. 608, 618 n.25 (2002), quoting Fazio v. Fazio, 375 Mass. 394, 403 (1978).

The judge determined S.S. was unable to appreciate the risks or benefits associated with taking antipsychotic medications because, although S.S was diagnosed with schizophrenia, S.S. did not believe that she was mentally ill. The judge found that S.S. exhibited limited insight and judgment and was unable to "comprehend the reasonable consequences of her actions." Contrast Guardianship of Roe, 411 Mass. 666, 670 (1992) ("An informed decision about medical treatment `requires knowledge of the available [treatment] options and the risks attendant on each" [citation omitted]). These findings were supported by the record; indeed, by the behavior of S.S. herself: the judge remarked that she "couldn't help but observe that [S.S. was] talking, presumably, to herself throughout th[e] hearing."3 We discern no error in the judge's conclusion that S.S. was incompetent to make an informed decision regarding her medical treatment. See G. L. c. 123, § 8B (d) (i).

b. Substituted judgment.

"If a mentally ill patient has been deemed to be incompetent to make treatment decisions for himself or herself, a judge must [next] determine `what the patient would choose if he were competent'" (citation omitted). Guardianship of Roe, 411 Mass. at 672. "The function of a substituted judgment hearing is to secure to incompetent persons the same right to choose or reject treatment that is accorded to competent persons by the law of consent." Guardianship of Brandon, 424 Mass. 482, 487 (1997). The judge's determination is guided by consideration of "the patient's expressed preferences regarding treatment, the patient's religious convictions, the impact of the decision on [the patient's] family, the probability of adverse side effects, and the prognosis for the patient with and without treatment." Id. See Rogers, 390 Mass. at 505-507.

The judge's findings reflect that her determination was informed by consideration of the relevant factors.4 The psychiatrist testified that S.S.'s psychosis would not abate without treatment, and that her mental health would continue to decline. Her testimony that S.S. had been treated with the antipsychotic Risperdal before, successfully and without adverse side effects, was uncontroverted and credited by the judge, who found that S.S. had a "favorable" prognosis if treated with antipsychotic medications. It was not an abuse of discretion to give greater weight to evidence of the efficacy of antipsychotic medications in stabilizing S.S.'s mental health, or to determine that S.S. — if competent — would choose a medication that lessened her symptoms of psychosis. See Guardianship of Roe, 383 Mass. at 447-448 (accepting proposition that "the greater the likelihood" of favorable prognosis, "the more likely an individual would be to submit to intrusive treatment").

Nor was it error to place S.S.'s stated aversion to treatment with antipsychotic medications within the context of her mental illness. Although "the incapacitated person's personal preference is regarded as a `critical factor' in the judge's decision," Guardianship of L.H., 84 Mass.App.Ct. 711, 724 (2014) (Agnes, J., dissenting), the judge must also "tak[e] into account the present and future incompetency of the individual as one of the factors which would necessarily enter into the decision-making process of the competent person." Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 752-753 (1977). We discern no error in the judge's conclusion that, if competent, S.S. would accept the proposed treatment. See G. L. c. 123, § 8B (d) (ii).

2. Judicial monitoring.

S.S. claims that the treatment order should be vacated because it failed to designate how her treatment progress would be monitored to ensure compliance with the approved treatment plan. However, as noted, S.S. has been discharged from the hospital and is no longer subject to the treatment plan authorized by the order. Accordingly, the issue is moot.

"[L]itigation is considered moot when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." Matter of a Minor, 484 Mass. 295, 299 (2020), quoting Commonwealth v. Dotson, 462 Mass. 96, 98 (2012). Here, the parties stipulated that S.S. was discharged from the hospital approximately two months after the treatment order was issued. A treatment order "expire[s] at the same time as the expiration of the order of commitment that was in effect when the authorization for treatment was ordered." G. L. c. 123, § 8B (f). It follows that discharge from the hospital also terminates a commitment order and any corresponding treatment order. As S.S.'s treatment plan is no longer in effect, there is no need for her treatment progress to be monitored. See Branch v. Commonwealth Employment Relations Bd., 481 Mass. 810, 817 (2019), cert. denied sub nom. Branch v. Massachusetts Dep't of Labor Relations, 140 S.Ct. 858 (2020) ("A moot case is one where a court can order `no further effective relief'" [citation omitted]).

Despite the termination of the treatment order, S.S. claims that her appeal is not moot because "a person who has been wrongfully committed or treated involuntarily has `a surviving interest in establishing that the orders were not lawfully issued.'" Matter of F.C., 479 Mass. 1029, 1029 (2018).5 This argument, relying on the premise that the legal effect of a treatment order is dependent on the presence of a treatment monitoring provision, finds no support in the plain language of the statute or the common law. The legal authority of a treatment order depends on an adjudication of two elements of proof, competency and substituted judgment, and written judicial authorization.6 See G. L. c. 123, § 8B (d). See Rogers, 390 Mass. at 512 ("A substituted judgment treatment decision must be made for an involuntarily committed patient who has been adjudicated to be incompetent before the patient can be forcibly medicated with antipsychotic drugs"). Certainly, the monitoring requirement under § 8B (e), like other subsections of § 8B, entitle the subject of a § 8B (a) petition to certain procedural protections. It does not, however, bear on whether the treatment order was lawfully issued pursuant to the authority conferred to the court by G. L. c. 123, § 8B (d). See Matter of N.L., 476 Mass. 632, 634-635 (2017) (procedural due process protections in commitment hearings distinct from substantive determination of commitment order).

Nor is this the type of issue "capable of repetition, yet evading review" that warrants the exercise of our discretion to decide a moot issue. Although questions about the scope of the § 8B (e) monitoring requirement may arise in the future, there is no reason to believe that an individual aggrieved by insufficient judicial monitoring cannot seek relief from the District Court in the first instance.7 "In short, while the issue is capable of repetition, it will not necessarily evade review in the ordinary course of events." Lawyers' Comm. for Civ. Rights & Economic Justice v. Court Adm'r of the Trial Court, 478 Mass. 1010, 1011 (2017).

Decision and order of the Appellate Division affirmed.


8. The panelists are listed in order of seniority.
1. Counsel for both S.S. and the hospital represented to the judge that S.S. was held in custody on an immigration detainer, rather than as a result of criminal charges.
2. The psychiatrist also testified that S.S. "has had two attempts at assaults" during the admission and so "there is concern that, if [S.S.] is untreated, she will be at risk for assaulting others, as well." Additionally, the psychiatrist noted that S.S. had a "retinal or a unknown macular lesion" and that treatment with antipsychotic medication would have the added benefit of helping S.S. to be cooperative with receiving treatment for her eyes, without which S.S. "could potentially have permanent eye damage." The judge made no findings concerning these matters, so we do not rely on them in our decision.
3. S.S. objects to the judge's finding that she was "floridly psychotic," arguing that the description is both unsupported by the evidence and "a medical term of art that the lower court could not find as fact without supporting expert testimony." See Guardianship of A.R., 99 Mass.App.Ct. 349, 355-356 (2021). Although the psychiatrist did not use the term florid when describing the nature of S.S.'s psychosis, we disagree that the judge could not have used the term in its ordinary sense. When used as a synonym for "fully developed," florid is merely descriptive of symptoms and presentation. See Stedman's Medical Dictionary 745 (28th ed. 2006). Here, the judge first heard the psychiatrist's testimony concerning S.S.'s symptoms, and then observed them herself at the hearing.
4. Neither the judge's findings nor the transcript of the hearing reflects that S.S. objected to antipsychotic medications on the basis of a religious belief, or whether S.S. had family members who would be impacted by approval of the hospital's treatment plan. See Guardianship of Roe, 383 Mass. at 444 ("certain [factors] may not exist in all cases").
5. The Supreme Judicial Court grounded this "surviving interest" in the perceived stigma associated with a diagnosis of mental illness. Matter of F.C., 479 Mass. at 1029, quoting Seney v. Morhy, 467 Mass. 58, 62 (2014).
6. Under G. L. c. 123, § 8B (d), "[a] court shall not authorize medical treatment [of antipsychotic medications] unless it (i) specifically finds that the person is incapable of making informed decisions concerning the proposed medical treatment, (ii) upon application of the legal substituted judgment standard, specifically finds that the patient would accept such treatment if competent, and (iii) specifically approves and authorizes a written substituted judgment treatment plan."
7. We note that this is not a case where the judge refused to issue an order regarding ongoing monitoring and thereby placed the respondent at risk of being unable to obtain timely relief from an appellate court. To the contrary, it appears that all parties simply neglected to set a status date; there is nothing to indicate that the issue could not have been resolved by another approach to the judge. Indeed, G. L. c. 123, § 8B (f) provides that "any party may at any time petition the court for modification of a medical treatment authorization that has been ordered pursuant to the standards and procedures established in this section."


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