IMPOUNDED COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT DOCKET NO. SJC APPEALS COURT DOCKET NUMBER 2018-P-0466

Transcription

1 IMPOUNDED COMMONWEALTH OF MASSACHUSETTS SUPREME JUDICIAL COURT DOCKET NO. SJC APPEALS COURT DOCKET NUMBER 2018-P-0466 APPELLATE DIVISION OF THE DISTRICT COURT SOUTHERN DISTRICT DOCKET NO: 16-ADMS PLYMOUTH DISTRICT COURT DOCKET NO MH-0011 PEMBROKE HOSPITAL v. D.L. ON APPEAL FROM A DECISION AND ORDER OF THE APPELLATE DIVISION OF THE DISTRICT COURT SOUTHERN DISTRICT APPELLANT S BRIEF DEVORAH ANNE BORENSTEIN BBO # Committee for Public Counsel Services Mental Health Litigation Division 7 Palmer Street, 3rd Floor Roxbury, MA Tel(617) Fax(617) dborenstein@publiccounsel.net October 4, 2018

2 TABLE OF CONTENTS QUESTIONS PRESENTED... 1 STATEMENT OF THE CASE... 3 Nature of the case... 3 Prior Proceedings... 4 STATEMENT OF FACTS AND LEGAL FRAMEWORK... 6 Statement of Facts... 6 Legal Framework The emergency involuntary hospitalization procedure under G.L. c. 123, G.L. c. 123, 12(a) G.L. c. 123, 12(b) The involuntary civil commitment procedure under G.L. c. 123, 7& MOOTNESS AND STANDARD OF REVIEW SUMMARY OF THE ARGUMENT ARGUMENT I. D.L. HAD A RIGHT TO AN ACTUAL RELEASE THAT RESTORED HIS LIBERTY AFTER THE COURT DENIED PEMBROKE'S COMMITMENT PETITION ON THE MERITS A. Fundamental due process required Pembroke to actually release D.L. and restore his liberty B. The plain and ordinary meaning of G.L. c. 123, 8(a) required Pembroke to actually release D.L. and restore his liberty after the Court denied the commitment petition i

3 C. D.L.'s discharge was illusory and rendered the judicial process meaningless II. PEMBROKE'S RESTRAINT AND TRANSFER OF D.L. TO SOUTH SHORE HOSPITAL FOR AN EVALUATION IMMEDIATELY UPON DENIAL OF THE COMMITMENT PETITION WAS AN "ABUSE OR MISUSE" OF THE INVOLUNTARY ADMISSION PROCEDURE UNDER 12 BECAUSE THE COURT HAD JUST FOUND THAT D.L.'S DISCHARGE WOULD NOT CREATE A LIKELIHOOD OF SERIOUS HARM, AND THERE WAS NO EMERGENCY A. The Court found that discharging D.L. would not create a likelihood of serious harm B. Dr. Rizal issued the new 12(a) right after the hearing because he disagreed with the ruling C. No emergency existed after the hearing D. Whatever clinical responsibility Dr. Rizal may have felt, it could not trump the Court's finding of no likelihood of serious harm in the absence of an emergency based on new and relevant facts III. THE COURT LACKED JURISDICTION TO HEAR PEMBROKE'S SECOND COMMITMENT PETITION BECAUSE IT RESULTED FROM AN ONGOING "ABUSE OR MISUSE" OF THE ADMISSION PROCEDURE UNDER G.L. C. 123, 12(b) THAT BEGAN WITH PEMBROKE'S REFUSAL TO ACTUALLY RELEASE D.L. AFTER THE COURT DENIED THE FIRST PETITION A. An "abuse or misuse" of the admission procedure under G.L. c. 123, 12(b) must be interpreted to include wrongful acts under 12(a) B. Dr. Rizal "abused or misused" the 12(b) admission procedure because he utilized his clinical power under 12(a) and (b) to defy the Court's authority C. The remedy for an abuse or misuse of the admission procedure under 12(b) should be dismissal of the petition CONCLUSION ii

4 TABLE OF AUTHORITIES Cases Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101 (2000) Addington v. Texas, 441 U.S. 418(1979) Bridgewater State Hosp. v. Centeno, 476 Mass (2016) Com. v. Blake, 454 Mass. 267 (2009)... 25, 26 Com. v. Curran, 478 Mass. 630 (2018) Com. v. Gillis, 448 Mass. 354 (2007)... 30, 41 Com. v. Millican, 449 Mass. 298 (2007) Com. v. Nassar, 380 Mass. 908 (1980)... 20, 21, 41 Com. v. Soto, 476 Mass. 436 (2017) Com. v. Woods Hole, Martha s Vineyard and Nantucket ss. Auth., 352 Mass. 617 (1967) Guardianship of Doe, 391 Mass. 614 (1984) Gutierrez v. Mass. Bay Transp. Auth., 437 Mass. 396 (2002) Hashimi v. Kalil, 388 Mass. 607 (1983)... 19, 41 In re B.F., 2016 Mass. App. Div , 32, 34, 48 In re C.D., 2015 Mass. App. Div passim In re E.C., 89 Mass. App. Ct. 813 (2016) In re G.P., 473 Mass. 112 (2015) In re Winship, 397 U.S. 358 (1970) Ladd v. Polidoro, 424 Mass. 196 (1997) Matter of D.L., 2017 Mass.App.Div passim Matter of E.C., 479 Mass. 113 (2018)... 14, 24, 49 iii

5 Matter of F.C., 479 Mass (2018) Matter of S.B., 2017 Mass. App. Div , 48 McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540(1st Cir. 1996) Newton-Wellesley Hospital v. Magrini, 451 Mass. 777 (2008)... passim O'Connor v. Donaldson, 422 U.S. 563 (1975)... 25, 30 Reida v. Cape Cod Hosp., 36 Mass.App.Ct. 553 (1994)... 15, 16 Rogers v. Comm'r of Dep't of Mental Health, 390 Mass. 489 (1983) Silvia v. Building Inspector of West Bridgewater, 35 Mass.App.Ct. 451 (1993) Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271 (1978) Thompson v. Com., 386 Mass. 811 (1982) United States v. Classic, 313 U.S. 299 (1941) Williams v. Steward Health Care Sys., LLC, 480 Mass. 286, 103 N.E.3d 1192 (2018) Wong Sun v. United States, 371 U.S. 471 (1963) Statutes G.L. c. 123, G.L. c. 123, passim G.L. c. 123, 12(a)... passim G.L. c. 123, 12(b)... passim G.L. c. 123, 12(d)... 17, 19 G.L. c. 123, 6(a)... passim G.L. c. 123, 7... passim iv

6 G.L. c. 123, 7(a) G.L. c. 123, 7(c)... 21, 27 G.L. c. 123, 8(a)... passim G.L. c. 123, 8B... 4 G.L. c. 123, 8... passim Other Authorities Abrashkin, The Standard of Proof in Civil Commitment Proceedings in Massachusetts: Superintendent of Worcester State Hospital v. Hagberg, 1 W. New Eng. L. Rev, 71(1978) 27, 37, 41 Flaschner, The New Massachusetts Mental Health Code -- A "Magna Carta" or a Magna Maze?, 56 Mass. L.Q. 49 (1971)... 14, 24 Rules Mass. R. Civ. P. 6(a) Regulations 104 CMR , CMR CMR District Court Administrative Regulation 4-79, Standards of Judicial Practice for the Civil Commitment and Authorization of Medical Treatment for Mental Illness (December, 2011), Standard 3: Constitutional Provisions Mass. Declaration of Rights, Art. I Mass. Declaration of Rights, Art. X Mass. Declaration of Rights, Art. XI v

7 Mass. Declaration of Rights, Art. XII U.S. Constitution, 14th Amendment U.S. Constitution, 5th Amendment vi

8 QUESTIONS PRESENTED 1.Chapter 123 recognizes a person s fundamental right to liberty and only permits an involuntary civil commitment under G.L. c. 123, 7&8 where the Court makes the specific findings necessary to authorize commitment. After a hearing, the District Court denied Pembroke Hospital s first petition for commitment of D.L., finding that the Hospital had not met its burden of proving that D.L. s discharge would create a likelihood of serious harm. Pembroke refused to actually discharge D.L. Was Pembroke s refusal to actually discharge D.L. and further restraint of him following the Court s denial of its petition a violation of D.L. s right to liberty? 2.G.L. c. 123, 12(a) allows clinicians to involuntarily restrain and seek the hospitalization of a person reasonably believed to present a likelihood of serious harm to self or others due to a mental illness, so long as the clinicians do not "abuse or misuse" the 12(b) admission procedure. After the Court found that D.L. s discharge would not create a likelihood of serious harm, and denied the petition under G.L. c. 123, 7&8, Dr. Rizal 1

9 refused to allow D.L. to leave the hospital. Instead, he restrained D.L. and sent him for evaluation to another hospital under 12(a), alleging the same facts that formed the basis of the petition that the Court had denied only 90 minutes before. No emergency situation based on new and relevant facts existed. Did Dr. Rizal s issuance of the new 12(a) constitute an "abuse or misuse" of the 12(b) admission procedure? 3.An "abuse or misuse" of the admission procedure under G.L. c. 123, 12(b) justifies the dismissal of a commitment petition under 7&8. Pembroke Hospital was able to file a second commitment petition against D.L. due to a series of wrongful confinements under 12(a) and (b) that were only made possible because of Dr. Rizal s original refusal to actually release D.L. and restore his liberty after the Court denied the first petition. Did the District Court lack jurisdiction to hear Pembroke Hospital s second commitment petition against D.L. because it was the result of an ongoing "abuse or misuse" of the admission procedure under G.L. c. 123, 12(b)? 2

10 STATEMENT OF THE CASE Nature of the case Following D.L. s civil commitment hearing, the testifying doctor was dissatisfied with the Trial Court s finding that Pembroke Hospital had not proven its allegations of mental illness and likelihood of serious harm, and its resulting denial of the commitment petition. Taking matters into his own hands, and in defiance of the Court s ruling, the doctor refused to actually discharge D.L. and, 90 minutes after the hearing, restrained and sent him to another hospital for an evaluation under G.L. c. 123, 12(a), based on the same facts as before and no new emergency. Some 12 hours later, the second facility returned D.L. under G.L. c. 123, 12(a) to Pembroke Hospital, which then readmitted him against his will under G.L. c. 123, 12(b). This "abuse or misuse" of the section 12 process allowed Pembroke Hospital to file a second commitment petition against D.L. The result was D.L. s further deprivation of liberty and ultimate civil commitment despite the Court s prior finding that D.L.'s discharge would not create a likelihood of serious harm. 3

11 Prior Proceedings On December 16, 2015, D.L. was emergently restrained under G.L. c. 123, 12(a) due to alleged suicidal statements. (R.52) 1 On the same date, he was involuntarily hospitalized at Pembroke Hospital (Pembroke) under G.L. c. 123, 12(b). (R.5) On December 17, 2018, Pembroke filed a petition for civil commitment against D.L. pursuant to G.L. c. 123, 7&8, Docket No. 1559MH0602, alleging that failure to hospitalize him would create a likelihood of serious harm. (R.46) It also filed a Petition for Authorization of Medical Treatment pursuant to G.L. c. 123, 8B. (R.48) On December 30, 2015, after a hearing on the merits of Pembroke s petition, the Plymouth District Court (Kirkman, J.), found that Pembroke had not proven beyond a reasonable doubt that discharging D.L. would create a likelihood of serious harm by reason of mental illness, and denied the petition. (R.6,41) Pembroke did not allow D.L. to leave the hospital. (R.26,39) Instead, after the Court denied its petition, Pembroke restrained D.L. under G.L. c. 1 The Record Appendix is cited as (R. ). 4

12 123, 12(a), and sent him to South Shore Hospital (South Shore) for an evaluation. (R.26,39) On December 31, 2015, South Shore returned D.L. under a second 12(a) to Pembroke. (R.38) Pembroke immediately re-hospitalized D.L. under G.L. c. 123, 12(b). (R.37) On January 6, 2016, Pembroke filed a second commitment petition against D.L. pursuant to G.L. c. 123, 7&8, Docket No. 1659MH0011. (R.2,35) On January 13, 2016, prior to the hearing on Pembroke s second commitment petition, D.L. presented a Motion to Dismiss, claiming the Court lacked jurisdiction because the second commitment petition was the result of an ongoing "abuse or misuse" of the admission procedure under G.L. c. 123, 12(b). (R.20) On January 13, 2016, the District Court (Vitali, J.) denied D.L. s Motion to Dismiss, and ordered his commitment to Pembroke for up to 6 months. (R.2,19,20) On January 21, 2016, D.L. timely filed a Notice of Appeal from the Denial of his Motion to Dismiss and subsequent Order of Commitment. (R.2,17) On December 14, 2017, the Appellate Division of the District Court, Southern District ( Appellate Division ) affirmed the District Court s denial of 5

13 D.L. s Motion to Dismiss, Docket No. 16-ADMS-40023, finding no abuse of the 12(b) temporary involuntary hospitalization procedure. (R.3,10) On January 12, 2018, D.L. timely filed a Notice of Appeal from the Appellate Division s Decision and Order. (R.7) STATEMENT OF FACTS AND LEGAL FRAMEWORK Statement of Facts On December 16, 2015, Pembroke involuntarily hospitalized D.L., a 23-year old man, pursuant to G.L. c. 123, 12(b) based on alleged suicidal statements. (R.51-51) On the following day, it filed a petition for civil commitment against him pursuant to G.L. c. 123, 7&8. (R.46) Pembroke alleged that D.L. was mentally ill and failure to hospitalize him would create a likelihood of serious harm. (R.46) Specifically, it claimed that as a result of suicidal statements there was a substantial risk of harm to D.L. (R.46) It also claimed that as a result of not eating or drinking for several days and dehydration, D.L. was at a very substantial risk of dying. (R.47) 6

14 On December 30, 2018, a hearing was held on the Hospital s petition at Plymouth District Court. 2 (R.6) The only witness who testified was the Hospital s expert, Dr. Rizal. (T1.2) On direct, Dr. Rizal testified that failure to retain D.L. in a hospital would create a likelihood of serious harm because he was drinking minimal amounts of fluids, and refusing to eat or take medications. (T1.6-7). Further, Dr. Rizal testified that there was no less restrictive setting in the community that was appropriate or available. (T1.7) On cross-examination, Dr. Rizal conceded a number of facts. D.L. was medically cleared and not seriously dehydrated upon his involuntary admission to Pembroke. (T ) D.L. had been eating and drinking 2 References to the transcript from the hearing on Pembroke s first commitment petition against D.L. (Plymouth Dist. No. 1559MH0602) are cited as (T1. ). References to the transcript from the hearing on D.L. s Motion to Dismiss Pembroke s second commitment petition (Plymouth Dist. No. 1659MH0011) are cited as (T2. ). D.L. includes the first transcript based on the Appeals Court s leave to expand the record subject to any further action by the assigned panel. (7/19/18, Paper #9) Apart from the Trial Court s ruling on Pembroke s first petition (R.41), no other part of the first hearing transcript was before the Appellate Division. D.L. seeks to include the entire transcript on further appeal to aid the Court in its appreciation of the context of the denial of the first petition. 7

15 consistently throughout his hospitalization at Pembroke. (T1.9-12) D.L. responded appropriately to staff. (T ) D.L. allowed staff to take his vitals, which were all within normal limits. (T1.17) D.L. had no physical emergency at the time of the hearing. (T1.17) D.L. did not have any suicidal ideations or intentions during his involuntary hospitalization. (T1.18) D.L. did not attempt to hurt himself while at Pembroke. (T1.18) D.L. did not exhibit any unsafe behaviors while at Pembroke. (T1.19) Prior to being involuntarily hospitalized, D.L. had been living with his grandmother. (T1.19) D.L. consistently refused to sign releases to allow Pembroke to talk with his family. (T1.19) After a hearing on the merits of Pembroke s petition, the Court denied the petition at around 4.00 p.m., finding that Pembroke had not met its burden of proof on the claims of harm it had alleged in the petition.(r.41)(t1.23) Specifically, the judge found that D.L. had been eating and drinking, and said "I m not going to order an ongoing." (R.41)The Court s ruling that D.L.'s discharge would not create a likelihood of serious harm was not contingent on a particular discharge plan. (R.41) (T1.23) 8

16 After the hearing, Dr. Rizal recorded the following progress notes at approximately 5:30 p.m.: Court for commitment happened today on 12/30/2015 at Plymouth District Court. The Judge ordered that the patient be discharged. Given that the patient is still psychotic and his insight and judgment is grossly impaired I do not believe that the patient is able to take care of himself & needs continued inpatient psychiatric care for safety. His family is refusing to take him home & given my clinical responsibility I am going to discharge send him to the nearest ER on a section 12. (R.26) A nurse s progress note made after the hearing stated: "grandma refused to come and p/u pt. 'He is psycho and unsafe to come to my home'... Message left for father, Jonathan Lewis." (R.27) Instead of actually releasing D.L. after the hearing, Pembroke staff immediately took D.L. to the hospital s admissions office where Dr. Rizal restrained him under G.L. c. 123, 12(a). (R.26,28) Prior to issuing the 12(a), Dr. Rizal and Pembroke s CEO called to South Shore and spoke with the ER charge nurse. (R.28) At around 5.30 p.m., without ever allowing D.L. to leave the hospital, Dr. Rizal sent D.L. to the ER at South Shore for an evaluation under 12(a). (R.39) This was barely 1 hour and 30 minutes after the Court had denied the petition. (R.41) 9

17 The grounds that Dr. Rizal alleged in the new 12(a) were the same grounds Pembroke had alleged in the commitment petition the Court had denied just 90 minutes before: a substantial risk of physical harm to D.L., and a very substantial risk of physical impairment or injury to D.L. due to impaired judgment, causing him to be unable to protect himself in the community.(r.39,46-47) As specific evidence of such harm, Dr. Rizal stated that "[D.L.] has not been eating consistently and has been refusing medication." (R.39) These were the same facts alleged in the petition the Court had just denied. (R.46-47) At around 5:00 a.m. on December 31, 2015, a clinician at South Shore returned D.L. to Pembroke under another 12(a). (R.38) The 12(a) stated that D.L. needed temporary hospitalization at Pembroke due to a "substantial risk of physical harm" to self, but provided no evidence of behavior or symptoms in support.(r.38) At 8:25 a.m., Pembroke involuntarily re-hospitalized D.L. under 12(b). (R.37) On January 6, 2016, Pembroke filed a second commitment petition, Docket No. 1659MH0011, against D.L. (R.35) It alleged that failure to hospitalize D.L. as a result of a mental illness would create a 10

18 very substantial risk of physical impairment or injury to him due to impaired judgment, causing him to be unable to protect himself in the community. (R.36-37) It did not state the specific behaviors or acts that supported the alleged harm. (R.36) Before the hearing on January 13, 2016, D.L. presented a Motion to Dismiss. (R.20) He claimed that the Court lacked jurisdiction because the second petition was the result of an ongoing "abuse or misuse" of the 12(b) admission procedure that flowed from Pembroke s original refusal to comply with the Court s ruling and actually discharge D.L. after the denial of the petition. (R.22) Citing this Court s decision in Newton-Wellesley Hospital v. Magrini, 451 Mass. 777 (2008), D.L. claimed that his discharge was "illusory" because "[s]igning paperwork purporting to discharge [D.L.] without actually releasing him from involuntary confinement cannot be considered a discharge." (R.22) Pembroke conceded that once the Court denied the petition, the hospital lacked legal authority to continue to hold D.L. against his will, and had to discharge him. (T2-7) After the hearing, staff contacted the grandmother, but she refused to pick him 11

19 up or have him at her home because "he's too sick." (T2-7) His father did not return a phone message. (T2-7) Pembroke contended that Dr. Rizal was justified in not releasing D.L. because "there is nothing in Chapter 123 that states that over and above of ethical and licensing issues that a hospital is required to simply open up the door and discharge a person in a setting that is completely unsafe." (T2.7-8) Pembroke argued that, distinct from the facts in Magrini, there was no abuse or misuse of the 12(b) admission procedure because D.L. "left the hospital" to go to an "intervening hospital" (T2-8), and his subsequent readmission to Pembroke was the result of an independent intervening assessment. (T2.9) On January 13, 2016, the District Court (Vitali, J.) denied D.L. s Motion to Dismiss, finding that no one in D.L. s family was able to pick him up after the hearing, D.L. had no place to go, and Pembroke s subsequent 12(b) was the result of South Shore s independent evaluation of D.L. (R.20)(T2.11). After a hearing on Pembroke s second commitment petition against D.L., the Court ordered D.L. s commitment to Pembroke for a period up to six months. (R.19) D.L. 12

20 timely appealed both the denial of the Motion to Dismiss and the subsequent commitment order. (R.2,17) On December 17, 2017, the Appellate Division affirmed the District Court s denial of D.L. s motion to dismiss, finding no abuse of the admission procedure under G.L. c. 12(b). (R.9) It determined that because Pembroke had "ongoing safety concerns based on D.L. s mental illness" and "learned for the first time after the Court s denial of the petition [ ] that D.L. no longer had a safe place to live on discharge," it acted permissibly in "discharging" D.L. from its facility, while simultaneously restraining him under G.L. c. 123, 12(a) and transferring him to South Shore for an evaluation. 3 Matter of D.L., 2017 Mass.App.Div. 185, at *3. The Appellate Division confirmed that D.L. never actually regained his liberty between the denial of Pembroke s petition and the time he was transported to South Shore. Id. Notwithstanding, it determined D.L. s discharge not to be illusory because he was taken to another hospital that performed its own evaluation of him. Id. Accordingly, "Pembroke s relinquishment of 3 All references to the Appellate Division's decision are to the published opinion. 13

21 control over D.L." was an "actual discharge " of D.L. despite the fact that he was subject to a new restraint under 12(a). Id. Legal Framework The emergency involuntary hospitalization procedure under G.L. c. 123, 12 G.L. c. 123, 12 is a critical provision of the mental health statute because it is the primary route for the involuntary civil commitment of an individual. Guardianship of Doe, 391 Mass. 614, 621 (1984). A person cannot be civilly committed from the street. 4 He must first be a patient at a hospital before the hospital can file a petition of commitment against him under G.L. c. 123, 7&8. 5 See In re E.C., 89 Mass. App. Ct. 813, 820 (2016) review granted sub nom. Bridgewater State Hosp. v. Centeno, 476 Mass (2016), and aff'd and remanded sub nom. Matter of E.C., 479 Mass. 113 (2018). This process typically begins with the emergency restraint of an individual under G.L. c. 123, 12(a). 4 Flaschner, The New Massachusetts Mental Health Code -- A "Magna Carta" or a Magna Maze?, 56 Mass. L.Q. 49, 52 (1971). 5 A patient is "any person with whom a licensed mental health professional has established a mental health professional-patient relationship."g.l. c. 123, 1. 14

22 G.L. c. 123, 12(a) G.L. c. 123, 12(a) allows a qualified clinician 6 to restrain, or authorize the restraint of, a person, and apply for his 3-day hospitalization at a DMHlicensed public or private facility if after examining a person, [the clinician] has reason to believe that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness. 7 As its descriptive title states, 12(a) is an emergency provision. 8 Its purpose is to give certain medical professionals a type of "police power" to restrain the liberty, and seek the immediate hospitalization, of a person they believe is mentally 6 A qualified clinician is any physician "licensed pursuant to section 2 of chapter 112 or qualified psychiatric nurse mental health clinical specialist authorized to practice as such under regulations promulgated pursuant to the provisions of section 80B of said chapter 112 or a qualified psychologist licensed pursuant to sections 118 to 129, inclusive, of said chapter 112, or a licensed independent clinical social worker licensed pursuant to sections 130 to 137, inclusive, of chapter 112." 12(a) 7 If a clinician is not available, a police officer, who believes that failure to hospitalize a person would create a likelihood of serious harm by reason of mental illness, may restrain a person and apply for his 3-day hospitalization. 12(a) 8 G.L. c. 123, 12(a) refers to the "emergency nature of the case" or an "emergency situation." 15

23 ill and dangerous. See McCabe v. Life-Line Ambulance Serv., Inc., 77 F.3d 540, 547 (1st Cir. 1996). There is no probable cause hearing before a judge during the emergency restraint procedure. G.L. c. 123, 12(a). The clinician decides whether the facts and circumstances justify the emergency detention. Id. Reida v. Cape Cod Hosp., 36 Mass.App.Ct. 553, 556 (1994)(applying physician must have reasonable belief of risk of harm if person not hospitalized). Magrini, supra at 779, n. 4 ( 12(a) restraint based on clinical "reason to believe" standard). G.L. c. 123, 12(b) G.L. c. 123, 12(b), the sister provision of 12(a), deals with the actual involuntary psychiatric hospitalization of a person after an authorized party has detained him and applied for hospitalization on an emergency basis. Due to the "massive curtailment" of a person s liberty, this provision affords a person specific due process rights. Magrini, supra at 784. If the clinician who applies for the involuntary admission under 12(a) is not a "designated 16

24 physician," 9 a designated physician of the admitting facility must give the person a psychiatric examination within two hours of his reception. Magrini, supra at 779, n CMR 27.07(2)(a). If the clinician applying for the involuntary admission under 12(a) is also a designated physician at the admitting facility, the facility can admit the person immediately. 12(b). The admitting physician may only admit the person involuntarily if he determines that failure to hospitalize him would create a likelihood of serious harm by reason of mental illness. 12(b). The admitting facility may only hold an involuntarily admitted person for a maximum of 3 business days. G.L. c. 123, 12(d). Mass. R. Civ. P. 6(a). In addition to receiving a "Notice of Rights" and counsel upon request, a person involuntarily hospitalized may request an emergency hearing in the District Court in whose jurisdiction the facility is located. 12(b). The person need only have a reasonable belief that his 9 A designated physician has "the authority to admit to a facility in accordance with the regulations of the department." G.L. c. 123, 12(b). 17

25 involuntary admission was the result of an "abuse or misuse" of the 12(b) admission procedure. 12(b). This Court has interpreted "abuse or misuse" to mean either (a) a violation of one of the specifically enumerated rights in 12(b), or (b) other circumstances that have resulted in a wrongful 12(b) admission. Magrini, supra at 784. The broad language of "abuse or misuse" serves as a "catch-all provision" to capture any defects in the admission procedure: Our interpretation is consistent with the intent of the Legislature to extend further procedural protections to persons who, by virtue of their temporary involuntary commitment, are experiencing a 'massive curtailment' of their liberty. Id. In Magrini, the "abuse or misuse" was the hospital s failure to discharge Magrini despite the District Court s dismissal of its untimely commitment petition and order to discharge Magrini. Id., at 781. This Court ruled that the hospital s conduct in rehospitalizing Magrini under 12(a) and (b) despite the court order of discharge rendered the discharge illusory. Id. at 784. Since "Magrini was not afforded his statutory rights and was not permitted to be discharged in accordance with a court order, he clearly satisfied the minimal showing that his second 18

26 12(b) commitment resulted from a misuse or abuse under the 12(b) process." Id. The Appellate Division of the District Court has also determined that an "abuse or misuse" of the 12(b) admission procedure deprives the trial court of jurisdiction of the subsequent commitment petition, and merits the remedy of dismissal. In re C.D., 2015 Mass. App. Div. 29, at *3. In re B.F., 2016 Mass. App. Div. 18, at *3. The involuntary civil commitment procedure under G.L. c. 123, 7&8 As with the restraint and hospitalization procedure under 12, the involuntary civil commitment procedure under 7&8 is dictated by strong due process and liberty concerns. Hashimi v. Kalil, 388 Mass. 607, 610 (1983). Magrini, supra at 784. Due to the strict timelines of Chapter 123, the Court only has jurisdiction to hear a petition for commitment under 7&8 that a facility has filed within the 3-day period of involuntary hospitalization. G.L. c. 123, 12(d). Magrini, supra at 778. The petition must allege that the person suffers from a mental illness and, as a result, there is a likelihood of serious harm if he is not hospitalized. 19

27 G.L. c. 123, 7(a). G.L. c. 123, 1 defines likelihood of serious harm as follows: (1) a substantial risk of physical harm to the person himself as manifested by evidence of, threats of, or attempts at, suicide or serious bodily harm; (2) a substantial risk of physical harm to other persons as manifested by 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; or (3) 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 that reasonable provision for his protection is not available in the community. It must contain specific evidentiary facts in support of the allegations of harm. 10 It must also allege that there is no less restrictive alternative to an involuntary commitment. Com. v. Nassar, 380 Mass. 908, (1980). Where a hospital has timely filed the petition, its authority to hold the person beyond the limits of 12(b) is extended up until the time of the hearing. G.L. c. 123, 6(a). The hearing must commence within 5 business days of the filing of the petition. G.L. c. 10 District Court Administrative Regulation 4-79, Standards of Judicial Practice for the Civil Commitment and Authorization of Medical Treatment for Mental Illness (Dec. 2011), Standard 3:00, commentary. 20

28 123, 7(c). Due to the massive curtailment of liberty involved, the hospital must prove each element beyond a reasonable doubt. Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978). The Court "shall not" enter a commitment order unless it finds that the person is mentally ill, his discharge would create an imminent likelihood of serious harm, and there is no less restrictive alternative to continued involuntary hospitalization. G.L. c. 123, 8(a). Nassar, supra at 918. In re G.P., 473 Mass. 112, (2015). It is only the Court s commitment order that extends the hospital s authority to involuntarily hold the person for any amount of time after the conclusion of the hearing. G.L. c. 123, 6(a). Absent an order, the hospital may not continue to hold the person involuntarily after the hearing. G.L. c. 123, 6(a), 8(a). MOOTNESS AND STANDARD OF REVIEW D.L. is no longer confined at Pembroke. Matter of D.L., supra at *3. However, since D.L. has a "surviving interest" in establishing that the District Court wrongfully denied his motion to dismiss Pembroke s second commitment petition against him, 21

29 this Court should review the matter on its merits. Matter of F.C., 479 Mass. 1029, (2018). Since this case presents several issues of first impression that require this Court's interpretation of G.L. c. 123, this Court should review them de novo. Com. v. Soto, 476 Mass. 436, 438 (2017). SUMMARY OF THE ARGUMENT The Court had no jurisdiction to hear Pembroke s second commitment petition against D.L. because it was the direct result of an ongoing "abuse or misuse" of the involuntary admission procedure under G.L. c. 123, 12(b). (41-49) The "abuse or misuse" is grounded in Dr. Rizal's refusal to comply with the Court s denial of Pembroke s first commitment petition against D.L. and actually discharge D.L. (24-31) Since the Court found that D.L.'s discharge would not create a likelihood of serious harm, Pembroke lost its authority under G.L. c. 123, 6(a) and 8(a) to hold D.L. after the hearing. (24-31) Both fundamental due process and the statute required Dr. Rizal to actually release D.L. and restore his liberty. (31-35) D.L.'s "discharge" was illusory because it denied him the liberty due to 22

30 him and rendered the prior judical process meaningless. (31-35) Dr. Rizal's restraint and transfer of D.L. to another hospital under 12(a) after the Court denied the petition continued as an "abuse or misuse" of the 12(b) admission procedure. (35-41) This is because these acts defied the court's finding that Pembroke had failed to meet its burden of proving that D.L. was committable, denied D.L. his consequential right to liberty, and were based on the same facts in the petition the Court had just denied. (35-38) No new and relevant facts existed that constituted an emergency. (38-41) "Abuse or misuse" of the 12(b) admission procedure must be interpreted to include wrongful acts under both 12(a) and (b). (40-46) Lastly, the original illusory "discharge" enabled successive wrongful involuntary restraints of D.L. and his ultimate re-hospitalization under 12 within hours of the denied petition. (46-48) Every use of 12 that followed Pembroke's refusal to restore D.L.'s liberty after the hearing was tainted and, effectively, an "abuse or misuse" of G.L. c. 123, 12 that should have deprived the Court of jurisdiction 23

31 over the second commitment petition against D.L., warranting its dismissal. (48-49) ARGUMENT I. D.L. HAD A RIGHT TO AN ACTUAL RELEASE THAT RESTORED HIS LIBERTY AFTER THE COURT DENIED PEMBROKE'S COMMITMENT PETITION ON THE MERITS A. Fundamental due process required Pembroke to actually release D.L. and restore his liberty In the context of civil commitment cases, this Court has recently held that "the right of an individual to be free from physical restraint is a paradigmatic fundamental right." Matter of E.C., supra at 119 (citation omitted). It has also noted that Chapter 123 was conceived "in recognition of psychiatric patients' fundamental right to liberty." Williams v. Steward Health Care Sys., LLC, 480 Mass. 286, 103 N.E.3d 1192, 1198 (2018). This is in keeping with the view that the overhaul of the mental health law in 1971 was to create "layer upon layer of legal safeguards against impairment of patients civil rights." Flaschner, supra at 63, n. 3. These significant procedural and substantive due process protections are required as a result of the potential "massive curtailment of liberty" that flows from the initial emergency restraint and 24

32 hospitalization under 12, up through the involuntary civil commitment under 7&8. Magrini, supra at 784. As soon as the Court denied Pembroke s commitment petition on the merits, D.L. had a due process right to regain his liberty through an actual release. Mass. Declaration of Rights, Art. I, X, XI, and XII. U.S. Constitution, 5 th, 14th Amendments. G.L. c. 123, 8(a). This is because the Court found that failure to hospitalize D.L. would not create a likelihood of serious harm. (R.41). G.L. c. 123, 8(a). SeeO'Connor v. Donaldson, 422 U.S. 563, 575 (1975) (even where involuntary confinement initially permissible, continuance was constitutionally unjustified after basis ceased to exist); Com. v. Blake, 454 Mass. 267, (2009)(probable cause to believe a person is sexually dangerous must yield to fact finder's later determination that standard not met; where latter, due process mandates that confinement must cease"). Pembroke s failure to prove beyond a reasonable doubt the harm alleged in its petition ended its authority to detain D.L. See Thompson v. Com., 386 Mass. 811, 816 (1982) (once conditions justifying confinement cease to exist, State's power to confine terminates, and person is entitled to release). Thus, 25

33 due process required Pembroke to actually release D.L. after the Court denied its petition, instead of just "severing [its] control over D.L." and ceding it to another facility. Matter of D.L., supra at *4. The ultimate protection of an individual s liberty interest in a commitment case is the right to be able to rely on the finality of a judgment that concludes that a hospital has not shown a likelihood of serious harm sufficient to justify taking away a person s liberty. G.L. c. 123, 6(a), 8(a). See In re Winship, 397 U.S. 358, 364 (1970) (due process prohibits depriving person of liberty unless State meets burden beyond a reasonable doubt). If a hospital is allowed to defy a Court s finding that discharge would not create a likelihood of serious harm, the person s liberty interest and all of the safeguards intended to protect that interest including judicial decision-making - are rendered meaningless. The continued confinement of a person whom the Court has just found, after hearing, to not be committable under 8(a) directly violates a person s constitutional and statutory liberty interest. See Com. v. Blake, supra at

34 If not required to comply with a court ruling denying its commitment petition, a hospital is free to engage in serial involuntary admissions under 12 by supplanting judicial determinations with medical opinion. This is fully at odds with the legal process our Legislature adopted in 1970 that only allows civil commitments based on proof of mental illness and likelihood of serious harm. 11 G.L. c. 123, 7(c), 8(a). Newton-Wellesley Hospital v. Magrini, supra, is the only existing SJC case which relates to a hospital "administratively" discharging and re-hospitalizing a person under 12. In that case, this Court held that the hospital s re-restraint and re-admission of Magrini in disregard of a Court s discharge order following a dismissal of its petition was an "abuse or misuse" of the 12(b) procedure. However, it left open the question under what circumstances a re-admission 11 Abrashkin, The Standard of Proof in Civil Commitment Proceedings in Massachusetts: Superintendent of Worcester State Hospital v. Hagberg, 1 W. New Eng. L. Rev, 71, 73-74, n. 18, 23 (1978). Our civil commitment system no longer follows the common law "parens patriae" doctrine which used to allow the commitment of a person found in need of "care and treatment" without any showing of harm. Id. 27

35 under 12(b) may ever be permissible. In a footnote, this Court stated: This not to say that a hospital could never recommit a person on a temporary basis. The statutory scheme does not prohibit such action, but that issue is not before us. (Emphasis added). Id., at 784, n. 14. Ten years post-magrini, this unaddressed issue lies at the heart of D.L.'s case, and has been misconstrued to allow a hospital to deprive him of his liberty following the denial of its commitment petition. The resolution of footnote 14 must not only speak to an individual's fundamental due process rights, but his statutory right to be free, where a Court, after hearing, cannot make required findings. B. The plain and ordinary meaning of G.L. c. 123, 8(a) required Pembroke to actually release D.L. and restore his liberty after the Court denied the commitment petition Our Courts look to the plain and ordinary meaning of a statute when interpreting it, particularly when certain acts or requirements are not specifically defined. The general and familiar rule is that a statute must be interpreted according to the intent of the Legislature, ascertained from all its words construed by the ordinary and approved usage of the language, considered in connection with the cause of its enactment, the mischief or imperfection to be remedied and the main object 28

36 to be accomplished, to the end that the purpose of its framers may be effectuated. Com. v. Millican, 449 Mass. 298, 300 (2007). G.L. c. 123, 1 does not define discharge. However, the plain meaning of G.L. c. 123, 8(a), in conjunction with 6(a) 12, supports the conclusion that where a Court, after a hearing, does not make required findings, a person has the right to actual freedom. G.L. c. 123, 8(a) states: After a hearing the district court shall not order the commitment of a person at a facility unless it finds after a hearing that (1) such person is mentally ill, and (2) the discharge of such person from a facility would create a likelihood of serious harm. (Emphasis added) The plain meaning of this provision is that in the absence of an ultimate commitment order by the Court, the hospital loses its authority to hold a person. 6(a). The lack of authority triggers the facility s obligation to discharge the person by restoring his liberty in accordance with due process, 12 G.L. c. 123, s. 6(a) provides, in part, that"[n]o person shall be retained at a facility except under the provisions of paragraph (a) of section ten, the provisions of paragraphs (a), (b), and (c) of section twelve, section thirteen, paragraph (e) of section sixteen and section thirty-five or except under a court order or except during the pendency of a petition for commitment or to the pendency of a request under section fourteen." 29

37 i.e., in a way that is neither illusory nor negates the Court s legal ruling. Magrini, supra at 784. Com. v. Gillis, 448 Mass. 354, 357 (2007) (statute that involves loss of person s liberty must be narrowly construed in favor of individual s liberty interest). Therefore, where a Court denies a commitment petition because it cannot make the required findings under s. 8(a), an actual discharge can never mean "severing" control of a person by further restraining him and handing him over to the confinement of another facility. Matter of D.L., supra at *4. This is because such acts violate a person s liberty interest. See O'Connor v. Donaldson, supra at 576 (state cannot constitutionally confine without more non-dangerous individual capable of surviving safely in freedom). Even if this Court finds that the terms of G.L. c. 123, 8(a) are ambiguous with regard to discharge, principles of statutory construction require that it interpret this provision in a manner compatible with common sense and statutory purpose. Com. v. Curran, 478 Mass. 630, 634 (2018) (where words of statute are ambiguous, court must make it effectual based on common sense and sound reason and consistent with legislative intent). 30

38 Since Pembroke filed the first petition timely, it acquired authority to continue to hold D.L. against his will up until the court s adjudication of the elements of commitability that Pembroke alleged. G.L. c. 123, 6(a), 7(a), 12(d). Once the Court ruled that discharging D.L. would not cause a likelihood of serious harm due to a mental illness, Pembroke could no longer hold D.L. against his will. (R.41) G.L. c. 123, 6(a), 8(a). See Com. v. Blake, supra at C. D.L.'s discharge was illusory and rendered the judicial process meaningless The Appellate Division erred when it determined that Pembroke "discharged" D.L. after the hearing. Matter of D.L., supra at *3. This is because his discharge was a fiction, rendering meaningless the Court s denial of the petition - and its legal consequence for D.L. s liberty interests. Magrini, supra at 784. The Appellate Division also erred when it determined that D.L. s discharge was not illusory. Matter of D.L., supra at *3-4. This Court has deemed a discharge illusory where the person is denied his statutory right to restored freedom after a petition is dismissed. Magrini, supra at 784. It must logically 31

39 follow that a discharge is illusory where the person is denied his statutory right to restored freedom after a petition is denied on the merits. Magrini s right to restored freedom was based on the hospital s failure to timely file the petition for commitment, and the court s subsequent dismissal of the petition and discharge order. Magrini, supra at This Court determined that Magrini s discharge was illusory, and hence an "abuse or misuse" contemplated by 12(b), because the hospital ignored the court s ruling, refused to discharge Magrini in accordance with a court order and, instead, kept him confined against his will in a psychiatric unit under a new 12 (a) and (b). Id. at 784. C.D. s right to restored freedom was based on the hospital s failure to file a commitment petition or discharge him within 3 days of involuntarily hospitalizing him. In re C.D.,supra, at *1. The Appellate Division held that the hospital s "administrative" discharge of C.D. after discovering its mistake was no discharge at all, rendering the readmission invalid. Id. at *3. This was because C.D. remained held against his will in the confines of the hospital beyond the statutory period. Id. According to 32

40 the Appellate Division, the hospital's ongoing detention of C.D., regardless of the later court proceedings, was an "abuse or misuse" of the statute, which deprived the trial court of jurisdiction to hear the commitment petition. Id. S.B. s right to restored freedom was based on the hospital s failure to file the commitment petition or discharge S.B. within 3 days of involuntarily hospitalizing her. Matter of S.B., 2017 Mass. App. Div. 123, at *1. The Court allowed S.B. s motion to dismiss the petition based on the untimely filing. Id. The Appellate Division held that the hospital s subsequent "administrative" discharge of S.B. was no discharge because after the dismissal S.B. "was escorted a short distance away from her locked ward for a matter of minutes and given a brief examination for the purpose of deeming her discharged," the time between dismissal of the petition and S.B. s readmission under 12(b) was "compressed," the hospital did not give proper notice of the discharge to S.B., her family, or outsider provider, and S.B. was unable to consult with counsel regarding the alleged discharge. Id. at *3. 33

41 B.F. s right to restored freedom was based on the hospital s failure to either file a petition for commitment or discharge B.F. within 3 days of involuntarily hospitalizing her. In re B.F., supra, at *2. The Appellate Division, Western District, determined that the hospital never discharged B.F. as required by the statute. Id. Holding B.F. against her will beyond the 3-day limit without filing a commitment petition was an "abuse or misuse of the admission procedure" under 12. Due to the hospital s failure to discharge B.F., the Court lacked jurisdiction to hear the petition. Id. Here, D.L. s right to restored freedom went beyond a hospital s failure to comply with mandatory filing deadlines. It was based on the Court s finding, after a full hearing on the merits of the commitment petition, that D.L. s discharge would not create a likelihood of serious harm. (R.41) The Appellate Division erred when it determined that Pembroke had discharged D.L. by applying to South Shore for temporary involuntary hospitalization under 12(a) and "severing Pembroke s control over D.L." Matter of D.L., supra at *4. This is because this action was not in accordance with the Court s ruling 34

42 and never restored D.L. s legally protected right to liberty. Magrini, supra at 784. While the Appellate Division determined that the actual discharge consisted in Pembroke s relinquishment of control over D.L. to South Shore, it conceded that D.L. never actually regained his liberty between the denial of Pembroke s petition and the time that he was transported to South Shore. Matter of D.L. supra at *3. Therefore, D.L. s discharge was illusory. II. PEMBROKE'S RESTRAINT AND TRANSFER OF D.L. TO SOUTH SHORE HOSPITAL FOR AN EVALUATION IMMEDIATELY UPON DENIAL OF THE COMMITMENT PETITION WAS AN "ABUSE OR MISUSE" OF THE INVOLUNTARY ADMISSION PROCEDURE UNDER 12 BECAUSE THE COURT HAD JUST FOUND THAT D.L.'S DISCHARGE WOULD NOT CREATE A LIKELIHOOD OF SERIOUS HARM, AND THERE WAS NO EMERGENCY A. The Court found that discharging D.L. would not create a likelihood of serious harm Dr. Rizal's subsequent restraint of D.L. under G.L. c. 123, 12(a) was unlawful because only 90 minutes earlier the District Court had found, based on Dr. Rizal's own testimony, that Pembroke had not met its burden of proof on the harm it had alleged in the commitment petition. (R.41) Specifically, the Court found that there was evidence that D.L. was eating and drinking. (R.41) It found that discharging D.L. would 35

43 not create a likelihood of serious harm. 13 (R.41) Therefore, the Court denied Pembroke s commitment petition under 8(a). (R.6,41) B. Dr. Rizal issued the new 12(a) right after the hearing because he disagreed with the ruling The 12(a) that Dr. Rizal issued after the Court denied Pembroke s petition was based on the same allegations of harm in the petition the Court had just decided only 90 minutes earlier. (R.39,46-47). More importantly, the facts that Dr. Rizal stated in support of the 12(a) allegations were also the same facts alleged in the petition that the Court had just denied. (R.39,46-47). Specifically, Dr. Rizal alleged in the 12(a) that D.L. was not eating or drinking and refusing medications. (R.39) However, the Court had just found that D.L. was eating and drinking. (R.41). Further, after the Court denied Pembroke s petition, D.L. was fully within his rights to make decisions about 13 The Court's finding of no likelihood of serious harm was not contingent on discharge of D.L. to the grandmother's home. This is supported not only by its ruling that the standard of harm had not been met (R.41), but by Dr. Rizal who testified that the hospital had been unable to speak with the grandmother due to D.L.'s refusal to sign a release. (T1.19) 36

44 medications because he was legally competent. Rogers v. Comm'r of Dep't of Mental Health, 390 Mass. 489, 491, (1983) (person competent to make treatment decisions until adjudicated incompetent). More importantly, D.L. s unwillingness to take medications did not create a "likelihood of serious harm" where the Court had just determined that none existed. See Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 106 (2000) (conditional voluntary patient entitled to refuse medications absent court intervention). 104 CMR 27.10(1)(b) (person retains right to refuse treatment prior to adjudication of incapacity). Dr. Rizal re-restrained D.L. under a new 12(a) because he disagreed with the Court s finding of no harm and felt his medical judgment trumped the court s legal decision making role. (R.26) This act defied the decision-making role of our courts in commitment cases. Abrashkin, supra at 74 (Massachusetts commitment statute based on legal not medical model with stringent standards for confining person). Dr. Rizal understood that the effect of the denial of the commitment petition was his obligation to actually discharge D.L. (R.26). Pembroke did not 37