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SJC-12599
PEMBROKE HOSPITAL vs. D.L.
Plymouth. January 10, 2019. - May 23, 2019.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, &
Kafker, JJ.
Incompetent Person, Commitment. Practice, Civil, Commitment of
mentally ill person. Moot Question. Words, "Discharge."
Civil action commenced in the Plymouth Division of the
District Court Department on January 6, 2016.
A motion to dismiss was heard by Michael A. Vitale, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Devorah Anne Borenstein, Committee for Public Counsel
Services, for the defendant.
Michael T. Porter for the plaintiff.
Lester D. Blumberg, Special Assistant Attorney General, &
Jeffrey Mackenzie, for Department of Mental Health, amicus
curiae, submitted a brief.
Kathryn Rucker, Robert D. Fleischner, Nicole Holbrook,
Phillip Kassel, Stanley Eichner, & Richard Glassman, for Mental
Health Legal Advisors Committee & others, amici curiae,
submitted a brief.
2
BUDD, J. "The right of an individual to be free from
physical restraint is a paradigmatic fundamental right." Matter
of E.C., 479 Mass. 113, 119 (2018), quoting Commonwealth v.
Knapp, 441 Mass. 157, 164 (2004). General Laws c. 123 governs
involuntary civil commitment due to mental illness, and thus may
curtail that freedom, but only in particular circumstances, and
by way of specified procedures designed to protect due process
rights. See Williams v. Steward Health Care Sys., LLC, 480
Mass. 286, 292 (2018), citing O'Connor v. Donaldson, 422 U.S.
563, 576 (1975) (statute "written in recognition of psychiatric
patients' fundamental right to liberty"). See also Matter of
N.L., 476 Mass. 632, 636 (2017) (recent legislative reforms to
G. L. c. 123 intended "to afford individuals more due process in
civil commitment and medical treatment hearings than had been
available previously" [citation omitted]).
Here, D.L. was held involuntarily at Pembroke Hospital
(Pembroke) on a temporary basis due to mental illness. Upon the
denial of Pembroke's petition to extend D.L.'s confinement,
Pembroke allegedly "discharged" D.L., but simultaneously
detained and transported him without his permission to a second
hospital for another mental health evaluation. This second
evaluation ultimately led to an order for involuntary
confinement for a period of up to six months. In this appeal we
are called upon to interpret the meaning of the word "discharge"
3
as that term is used in G. L. c. 123 to determine whether an
individual may be said to have been "discharged" from a facility
if his or her liberty has not been restored. We conclude that
the answer is no.1
1. Statutory framework for civil commitments. General
Laws c. 123, § 12, which provides for the temporary emergency
involuntary restraint and commitment of persons with mental
illness in certain circumstances, is the "primary route" for the
involuntary civil commitment of an individual. Guardianship of
Doe, 391 Mass. 614, 621 (1984). Section 12 (a) provides in
pertinent part:
"[any mental health professional qualified under G. L.
c. 112] who, after examining a person, has reason to
believe that failure to hospitalize such person would
create a likelihood of serious harm by reason of mental
illness may restrain or authorize the restraint of such
person and apply for the hospitalization of such person for
a [three]-day period at [an authorized facility]."2
1 We acknowledge the amicus briefs submitted by the
Department of Mental Health, and by the Mental Health Legal
Advisors Committee, the Disability Law Center, and the Center
for Public Representation.
2 "Likelihood of serious harm" is defined as: "(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
4
Once an individual is detained under § 12 (a), he or she
may be admitted for care and treatment if a designated physician
of the facility "determines that failure to hospitalize such
person would create a likelihood of serious harm by reason of
mental illness." G. L. c. 123, § 12 (b). Commitment pursuant
to § 12 (b) may last only three business days. G. L. c. 123,
§ 12 (a) and (d); Mass. R. Civ. P. 6 (a), 365 Mass. 747 (1974).
By the end of that period of time, the individual must be
discharged unless the facility files a petition for continued
involuntary commitment pursuant to G. L. c. 123, §§ 7-8, or the
person chooses to stay voluntarily. G. L. c. 123, § 12 (d).
An individual who has been admitted involuntarily to a
hospital pursuant to § 12 (b) is entitled to legal
representation and may request an emergency hearing in District
Court if he or she has reason to believe that the admission is
the result of an "abuse or misuse" of § 12. G. L. c. 123, § 12
(b). See Newton-Wellesley Hosp. v. Magrini, 451 Mass. 777, 784
(2008) (Magrini).
A court order is required if a facility seeks to hold an
individual involuntarily beyond the temporary emergency
commitment allowed by § 12. The facility must file such a
protection is not available in the community." G. L. c. 123,
§ 1.
5
petition within the initial three-day period and must allege
that "the failure to hospitalize would create a likelihood of
serious harm by reason of mental illness." G. L. c. 123, § 7
(a). The court shall order the commitment of an individual only
if it finds that the individual is mentally ill, that his or her
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).
Commonwealth v. Nassar, 380 Mass. 908, 917 (1980). Such
findings must be made beyond a reasonable doubt. Superintendent
of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276 (1978).
See Aime v. Commonwealth, 414 Mass. 667, 678 n.14 (1993).3
Once the petition is filed, the court is to schedule a
hearing within five days, with certain exceptions, G. L. c. 123,
§ 7 (c), after which the court ordinarily must render its
decision on the petition within ten days, G. L. c. 123, § 8 (c).
While the outcome of the petition is pending, the facility may
continue the involuntary commitment. G. L. c. 123, § 12 (d).
Periods of commitment under § 8 may last for periods of six to
twelve months -- depending on the circumstances -- before
The burden of proof for civil commitment in Massachusetts
3
is higher than the Federal standard, which requires at least
"clear and convincing" evidence for civil commitment. See Aime
v. Commonwealth, 414 Mass. 667, 678 & n.14 (1993); Addington v.
Texas, 441 U.S. 418, 433 (1979).
6
additional judicial review is required. G. L. c. 123, § 8 (d).
Under G. L. c. 123, § 9 (b), "[a]ny person" may also file a
written application for a patient's discharge prior to the
expiration of an order for commitment.
2. Background. The material facts are undisputed. On
December 16, 2015, D.L. was committed involuntarily to Pembroke
under § 12 (b) based on suicidal statements that he had made.
Pembroke timely filed a petition for continued involuntary
commitment pursuant to G. L. c. 123, §§ 7-8, alleging that D.L.
had not been "eating or drinking for several days," and he would
die in the following one to two weeks without intervention.
At the hearing, a Pembroke doctor testified that D.L. had
been unresponsive, minimally cooperative with staff, and
selectively mute during his stay. The doctor further testified
that D.L. had been refusing food and medication, and that he was
drinking no more than a minimal amount of fluids. The doctor
expressed concern that "if this continues [D.L.] will completely
stop eating, drinking, and die." Finally, the doctor testified
that, in his opinion, there was no less restrictive setting
appropriate and available for D.L. On cross-examination,
however, the doctor agreed that progress notes indicated that
D.L. had been eating and drinking "when hungry." After hearing
the testimony and arguments, the District Court judge denied the
petition, finding that Pembroke had not met its burden.
7
In the hours following the denial of the petition to
continue D.L.'s involuntary commitment, staff at Pembroke were
unable to locate a family member willing to house D.L.
Thereafter, Pembroke determined that, because D.L. was psychotic
and his family would not take him in, D.L. needed "continued
inpatient psychiatric care for his own safety in the context of
worsening psychosis." Pembroke asserts that it then discharged
D.L.4 but, without allowing him to leave the hospital, Pembroke
arranged to have D.L. transported without his permission to
South Shore Hospital (South Shore) for a second evaluation
pursuant to § 12 (a).5 After being examined by a different
doctor at South Shore, D.L. was returned to Pembroke in the
early morning of December 31, 2015, this time pursuant to South
Shore's § 12 (a) application. Once back at Pembroke, D.L. was
rehospitalized involuntarily under § 12 (b).
Pembroke thereafter timely filed a second petition for
D.L.'s continued commitment pursuant to G. L. c. 123, §§ 7-8.
D.L. moved to dismiss the petition, claiming that the District
Court lacked jurisdiction to rule on it because of the "abuse or
4 The record does not contain information regarding the
steps Pembroke took to "discharge" D.L.; however, as discussed
infra, because D.L. did not regain his liberty he was not
properly discharged.
5 In the § 12 (a) application, Pembroke alleged the same
facts that had been alleged in the commitment petition that had
been denied that same day.
8
misuse" of the § 12 procedure that occurred prior to the filing
of the petition. The judge denied the motion to dismiss and,
after a hearing, ordered D.L.'s commitment to Pembroke for a
period of up to six months.6 D.L. appealed from the denial of
his motion to dismiss and from the District Court judge's order
of commitment to the Appellate Division of the District Court
Department, which affirmed the District Court judge's rulings
and also found that there was no abuse of the involuntary
commitment procedure under G. L. c. 123, § 12. We granted
D.L.'s application for direct appellate review.
3. Discussion. Pembroke does not dispute that it had no
authority to hold D.L. after its first petition to continue
D.L.'s involuntary confinement was denied. See Thompson v.
Commonwealth, 386 Mass. 811, 816 (1982) ("once the conditions
justifying confinement cease to exist, the State's power to
confine terminates, and the person is entitled to be released").
See also G. L. c. 123, § 6 (a).7 Pembroke argues, however, that
6 The District Court judge found that there were "several
intervening acts" between the denial of the first petition and
the subsequent § 12 commitments; those intervening events
included the new information that no one in D.L.'s family was
willing to take him home from the hospital, and that an
independent evaluation occurred at South Shore.
7 General Laws c. 123, § 6 (a), provides in relevant part:
"No person shall be retained at a facility . . . except under
the provisions of [§§ 10(a); 12 (a)-(c); 13; 16(e); and 35] or
except under a court order or except during the pendency of a
9
it followed proper procedure by discharging D.L. and
simultaneously arranging for his involuntary transportation to
and psychiatric examination by South Shore pursuant to § 12.
D.L. contends that Pembroke did not discharge him within
the meaning of G. L. c. 123, and that the continued restraint
was an "abuse or misuse" of § 12. Thus, he argues, that
everything that took place subsequently, including the second
petition for continued confinement, was tainted, and therefore,
his motion to dismiss the petition was improperly denied. We
review questions of statutory interpretation de novo. See
Meikle v. Nurse, 474 Mass. 207, 209 (2016), quoting Commerce
Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006).
a. Mootness. As an initial matter, Pembroke argues that
because D.L. is no longer in the hospital's custody, this case
is moot.8 We disagree. Wrongfully committed patients have a
surviving interest in establishing, after discharge, that the
orders by which they were committed were unlawful, "thereby, to
a limited extent, removing a stigma from [their] name and
record." See Matter of F.C., 479 Mass. 1029, 1029-1030 (2018),
quoting Seney v. Morhy, 467 Mass. 58, 62 (2014). Even without
petition for commitment or to the pendency of a request under
[§ 14]."
8 D.L. was discharged from Pembroke prior to the argument
before the Appellate Division.
10
D.L.'s surviving interest in the matter, it is well established
that cases involving the confinement of mentally ill persons
present "'classic examples' of issues that are capable of
repetition, yet evading review," which thus warrant appellate
review even after the confinement ends. See Magrini, 451 Mass.
at 782, quoting Acting Supt. of Bournewood Hosp. v. Baker, 431
Mass. 101, 103 (2000). Thus, we exercise our discretion to
address the merits of this case.
b. "Discharge" within the context of G. L. c. 123. The
question whether Pembroke discharged D.L., as staff members of
the facility claim to have done, depends on what the Legislature
meant by the term "discharge" within the context of G. L.
c. 123. The statute does not define "discharge"; however, the
relevant dictionary definition is "to set at liberty: release
from confinement, custody or care." Webster's Third New
International Dictionary 644 (1993). See Commonwealth v.
Campbell, 415 Mass. 697, 700 (1993), quoting Commonwealth v.
Zone Book, Inc., 372 Mass. 366, 369 (1977) ("We derive the
words' usual and accepted meaning from sources presumably known
to the statute's enactors, such as their use in other legal
contexts and dictionary definitions"). See Commonwealth v.
Scott, 464 Mass. 355, 358 (2013) (term with multiple meanings
may have only one within context of statute).
11
"Our primary duty is to interpret a statute in accordance
with the intent of the Legislature." See Pyle v. School Comm.
of S. Hadley, 423 Mass. 283, 285 (1996). See also Boston Police
Patrolmen's Ass'n v. Boston, 435 Mass. 718, 719-720 (2002), and
cases cited. With that in mind, we note that G. L. c. 123 was
"written in recognition of psychiatric patients' fundamental
right to liberty," which is curtailed considerably by an
involuntary commitment. Williams, 480 Mass. at 292, and cases
cited. See Magrini, 451 Mass. at 785 (involuntary commitment
implicates "significant liberty interests"). The multiple
procedural protections built into the statute, discussed supra,
seek to balance an individual's involuntary restraint against
his or her right to be free from confinement.9
Reading the statute in light of the legislative intent to
protect the patient's right to be "free from physical restraint"
(citation omitted), see Matter of E.C., 479 Mass. at 119, it is
clear that a facility "discharges" an individual under G. L.
c. 123 only when that individual is set at liberty from
involuntary restraint, and not when released from care as
9 In fact, the modern version of the statute reflects a
fundamental shift in our law toward the destigmatization of
mental illness and the "elevation of the dignity of [human
beings]," which warrants constitutional protection against
involuntary restraint. See Flaschner, The New Massachusetts
Mental Health Code -- A Magna Carta or a Magna Maze, 56 Mass.
L. Q. 49, 50 (1971).
12
happened here. Otherwise, the protections of the statute would
be impermissibly weakened, if not rendered meaningless. See
also 2A N.J. Singer & S. Singer, Statutes and Statutory
Construction § 45:11 (7th ed. 2010, rev. April 2014) ("The fact
that one among alternative constructions involves serious
constitutional difficulties is reason to reject that
interpretation in favor of a reasonable, constitutional
alternative, if available"), and cases cited.
c. Application. Because we hold that "discharge" under
c. 123 requires that an individual regain his liberty, we
conclude that, contrary to Pembroke's assertion, D.L. was not
discharged within the meaning of the statute after the initial
petition pursuant to §§ 7 and 8 was denied. Instead, Pembroke
continued to confine D.L. following the denial of the petition
until transferring him to South Shore in order to recommence the
§ 12 commitment process. Pembroke then admitted him for a
second time as an involuntary patient under § 12, and filed a
second petition seeking a further confinement pursuant to §§ 7
and 8.
As justification for its actions, Pembroke points to the
fact that after the first petition had been denied and D.L. was
supposed to be released, staff members were unable to secure
housing for D.L. with family members. See 104 Code Mass. Regs.
§ 27.09(1)(a), (b) (2018). Id. at § 27.09(1)(b) ("A facility
13
shall make every effort to avoid discharge to a shelter or the
street").10 Because they determined that, given D.L.'s
condition, he would be unsafe in a homeless shelter, they
continued to confine him and arranged for a different hospital
to make an independent determination under § 12. Although we
have no reason to believe that Pembroke acted in bad faith -- to
the contrary, the staff seem to have moved quickly out of
genuine concern for D.L.'s well-being -- we nonetheless cannot
conclude that Pembroke was in compliance with the strict
requirements of G. L. c. 123. As the District Court judge
initially had found that D.L.'s mental illness did not create a
"likelihood of serious harm," the fact that D.L. did not have a
place to live upon his release was not a proper ground for
Pembroke to involuntarily restrain him. See Commonwealth v.
Blake, 454 Mass. 267, 277-278 (2009) (Ireland, J., concurring)
(confinement must cease once fact finder determines standard for
civil commitment is not met).11
10 This regulation, which requires "[a] facility [to] make
every effort to avoid discharge to a shelter or the street"
plainly should not be read to mean that a facility should go so
far as to involuntarily commit an individual if accommodations
cannot be secured upon discharge. See 104 Code Mass. Regs.
§ 27.09(1)(b). Instead, the facility is to "take steps to
identify and offer alternative options to a patient and shall
document such measures, including the competent refusal of
alternative options by a patient, in the medical record"
(emphases added). See id.
11 Had the judge found that discharging the patient would
create a likelihood of serious harm, he would have gone on to
14
In essence, Pembroke substituted its judgment for that of
the judge in contravention of G. L. c. 123. This constituted an
"abuse or misuse" of the authority afforded to facilities and
health care professionals under § 12.12 As a result, the
subsequent examinations by South Shore and Pembroke were
improper, as was Pembroke's second petition under §§ 7 and 8.
The fact that South Shore independently made a § 12
determination and admission is of no moment; nor is the fact
that a different District Court judge came to a different
conclusion regarding the second petition for continued
confinement. Each of those events occurred as a direct result
of Pembroke having failed to restore D.L.'s liberty.13
determine whether a less restrictive alternative to involuntary
confinement at the facility existed (such as releasing the
patient to the care of his family). In such a case, if the
patient's family members were not available to care for the
patient, that fact would constitute a changed circumstance
warranting judicial reconsideration of the petition.
12 As D.L. correctly points out, "[i]f 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.
G. L. c. 123, §§ 7 (c), 8 (a)." See Sullivan v. Brookline, 435
Mass. 353, 360 (2001) ("statutory language should be given
effect consistent with its plain meaning and in light of the aim
of the Legislature unless to do so would achieve an illogical
result").
13 We note that requiring that an individual's liberty be
restored prior to being restrained and readmitted pursuant to
§ 12 (a) imposes neither time nor distance prerequisites between
15
4. Conclusion. Pembroke failed to discharge D.L. within
the meaning of G. L. c. 123 after the denial of its petition to
continue D.L.'s confinement; this was a violation of the
statute. See G. L. c. 123, § 6 (a). In addition, Pembroke's
§ 12 (a) application to South Shore for evaluation and
subsequent readmission and involuntary confinement of D.L. was
an "abuse or misuse" of § 12. See G. L. c. 123, § 12 (b);
Magrini, 451 Mass. at 784. Finally, because D.L. was not held
lawfully under § 12 (b), the District Court did not have
jurisdiction to rule on the petition for civil commitment
pursuant to G. L. c. 123, §§ 7 and 8. For these reasons, the
decision and order of the Appellate Division denying D.L.'s
motion to dismiss is reversed. The order of civil commitment
pursuant to §§ 7 and 8 is vacated.
So ordered.
admissions. However, an involuntary readmission pursuant to
§ 12 must be based on new information that was unavailable to
the judge during the previous petition hearing. Here, as the
judge denied the first petition -- finding D.L. not to be a
danger to himself or others -- Pembroke needed new information
pertaining to D.L.'s dangerousness in order to readmit him
properly pursuant to § 12.