In the Matter of J.P.

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SJC-12872

IN THE MATTER OF J.P.

Bristol. April 6, 2020. - October 28, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.1

Mental Health. Practice, Civil, Commitment of mentally ill
person, Hearsay. Evidence, Hearsay, Medical record.

Petition for involuntary commitment filed in the New
Bedford Division of the District Court Department on February
16, 2018.

The case was heard by Bernadette L. Sabra, J.

The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.

Lois M. Farmer for J.P.
Richard F. Ready (Heidi A. Kostin also present) for
Southcoast Behavioral Health.
The following submitted briefs for amici curiae:
Ruth A. Bourquin, Matthew R. Segal, Jessica J. Lewis, &
Jessie J. Rossman for American Civil Liberties Union Foundation
of Massachusetts, Inc., & another.
Karen Owen Talley, Committee for Public Counsel Services,
Kathryn Rucker, Coco Holbrook, Jennifer Honig, & Tatum A.
Pritchard for Committee for Public Counsel Services & others.

1 Chief Justice Gants participated in the deliberation on
this case prior to his death.
 2

Anna S. Richardson for Veterans Legal Services.
Lester D. Blumberg, Special Assistant Attorney General, for
Department of Mental Health.

BUDD, J. The long-term involuntary civil commitment of

persons with mental illness is only permissible if a judge finds

proof beyond a reasonable doubt that discharge would create a

likelihood of serious harm. See G. L. c. 123, §§ 7, 8;

Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass.

271, 276 (1978). Here, after an evidentiary hearing, a District

Court judge issued an order to civilly commit J.P. for a period

not to exceed six months. J.P. appealed from the Appellate

Division's affirmance of the decision to the Appeals Court, and

we transferred the case to this court on our own motion. We are

asked to determine whether sufficient admissible evidence was

presented to warrant an order of civil commitment pursuant to

G. L. c. 123, §§ 7, 8. We conclude that the answer is yes.2

Background. 1. Standard for long-term civil commitment.

By petitioning the district (or juvenile) court, the

superintendent of a mental health facility may seek to commit

involuntarily, for a period of between six and twelve months, an

2 We acknowledge the amicus briefs submitted by the American
Civil Liberties Union Foundation of Massachusetts, Inc., and the
Massachusetts Coalition for the Homeless; by the Committee for
Public Counsel Services, Center for Public Representation,
Mental Health Legal Advisors Committee, and Disability Law
Center; by Veterans Legal Services; and by the Department of
Mental Health.
 3

individual who has been admitted to the facility. G. L. c. 123,

§§ 7 (a), 8 (d). For an order of commitment to be issued, the

judge must find, 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." G. L.

c. 123, § 8 (a). Further, the judge must find that there is no

alternative that is less restrictive than hospitalization.

Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980).

The phrase "likelihood of serious harm" is statutorily

defined as "(1) a substantial risk of physical harm to the

person himself [or herself] 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." G. L. c. 123, § 1. The harm

must be shown to be imminent, that is, it will materialize "in

days or weeks rather than in months." Matter of G.P., 473 Mass.

112, 128 (2015). Each of the statutory requirements must be
 4

demonstrated beyond a reasonable doubt. Id. at 119. See

Nassar, 380 Mass. at 913.

2. J.P.'s civil commitment hearing. On February 12, 2018,

J.P. was transferred from St. Luke's Hospital (St. Luke's)

emergency room to Southcoast Behavioral Health (SBH). SBH filed

a timely petition for J.P.'s involuntary commitment pursuant to

G. L. c. 123, §§ 7, 8, after J.P. requested to be discharged.

In the petition, SBH alleged that, as a result of mental

illness, J.P. presented both a risk of harm to others and a very

substantial risk of harm to himself in that he was unable to

protect himself in the community.3 SBH further alleged that

civil commitment was the least restrictive alternative in the

circumstances.

At the commitment hearing, J.P.'s treating physician,

Ronald Lee, testified that, once at SBH, J.P. was uncooperative

in providing information regarding his psychiatric history,

although he did indicate that he previously had been

hospitalized at other mental health facilities.4 J.P. also

refused to allow the facility either to release information to,

3 Southcoast Behavioral Health (SBH) did not allege that
J.P. was suicidal.

4 J.P. indicated that he was originally admitted to St.
Luke's Hospital (St. Luke's) as a result of a "209," which Dr.
Lee interpreted to mean a 209A restraining order. However, SBH
could not confirm that such an order had been issued against
J.P., and the judge did not make reference to it in her
findings.
 5

or obtain information from, his mother or any other providers

involved in his care.

Dr. Lee, who diagnosed J.P. with schizoaffective disorder–

bipolar type, found J.P. to be unengaged, uncooperative, and

unwilling to participate in treatment. Lee testified that J.P.

was one of the most paranoid patients he had ever met as a

physician at SBH. J.P. refused medication and often walked out

during meetings with the doctor. J.P. also was hostile and

aggressive toward the doctor. J.P. referred to Dr. Lee as a

"fucking punk" and a "fucking rat," and indicated that he could

not work with the doctor because of the doctor's Asian

ethnicity. Lee testified that, at one point during a meeting,

as J.P. insisted to Lee that he did not have a psychiatric

issue, J.P.'s jaw was clenched, his muscles were tensed, and he

appeared to be bordering on lashing out. J.P. also warned the

doctor that going forward with commitment proceedings would be a

mistake. These interactions caused Lee to feel threatened at

times.

According to the SBH medical records, J.P. told a different

SBH doctor that he was able to "handle himself in a bar,"

stating, "I know what to do if anybody gets in my face." J.P.

further revealed that he was trained in martial arts and

"know[s] a few things." He also made threats to a nurse

practitioner, telling her that if he did not get his
 6

(nonpsychiatric) medication, "something uncontrollable will

happen and you won't like it."

Lee also reported that J.P. also had altercations with his

peers during his stay. Two different patients reported to the

doctor that J.P. had threatened their lives. In addition,

J.P.'s roommate had to be moved out of the room for safety

reasons.

The doctor also testified as to the content of the records

from St. Luke's that accompanied J.P. when he transferred to

SBH.5 According to those records, J.P. had threatened and

exhibited paranoid behavior toward his mother. He accused his

mother and neighbors of placing beer in his refrigerator. He

also forced his mother to stay up at night to "keep a watch out"

for him, telling her, "Don't you come back in the house."

J.P. presented his own expert witness, a doctor who

examined J.P. the morning of the hearing. That doctor opined

that J.P. suffered from a delusional disorder-paranoid type or

paranoid schizophrenia, but disagreed that that J.P. met the

criteria for involuntary civil confinement.

At the conclusion of the hearing, the judge found that J.P.

suffered from a major mental illness, that discharge from SBH

would create a likelihood of serious harm, and that there was no

The records themselves were not offered as evidence at the
5

hearing.
 7

less restrictive alternative to involuntary civil commitment.

The judge subsequently ordered J.P. civilly committed for a

period not to exceed six months.6

Discussion.7 Here, we review the sufficiency of the

evidence presented that, if released, J.P. posed a likelihood of

serious harm as defined by the statute.8 As discussed supra, a

likelihood of serious harm can be proved in one of three ways.

SBH presented evidence from which the judge concluded that the

facility met the criteria of two of the definitions: J.P. posed

a substantial risk of physical harm to others as well as a very

substantial risk to his own safety.9

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

6 J.P. was ordered committed on March 6, 2018. Although the
order of commitment expired on September 4, 2018, he was
discharged from SBH on March 26, 2018.

7 We note that, although J.P. is no longer involuntarily
committed to SBH, the matter is not moot. "[A]n individual has
a personal stake in the outcome of litigating an appeal from an
order of civil commitment, even after the individual is
released." Matter of a Minor, 484 Mass. 295, 300 (2020). See
Matter of F.C., 479 Mass. 1029, 1029-1030 (2018).

8 J.P. does not contest the finding of mental illness, nor
does he contest the finding that hospitalization was the least
restrictive alternative available in the circumstances.

9 SBH did not present evidence of the first prong, a
likelihood of serious harm due to a substantial risk of suicide
or other self-harm.
 8

legal standard for civil commitment was met. See Matter of a

Minor, 484 Mass. 295, 302 (2020).

1. Substantial risk of physical harm to others. To

conclude that a person poses a substantial risk of physical harm

to others, a judge must find either "[1] evidence of homicidal

or other violent behavior or [2] evidence that others are placed

in reasonable fear of violent behavior and serious physical harm

to them." G. L. c. 123, § 1. With regard to this element, the

judge focused on the second of the two alternative predicates,

finding a risk of physical harm based on evidence from J.P.'s

stay at SBH, and the statements that his mother made that others

were placed in reasonable fear of physical harm from him. The

judge also found that J.P.'s judgment was so affected by his

paranoia, agitation, and contrariness as to affect substantially

the safety of others in the community (as well as his own).

J.P. argues that the evidence of his mother's statements

was inadmissible hearsay, and that, without them, there was

insufficient evidence of a substantial risk of physical harm to

others.

a. Hearsay evidence. Statements made by J.P.'s mother

were contained in the emergency room records from St. Luke's,

about which Lee, the treating physician from SBH, testified at

the hearing. The records were not admitted in evidence. J.P.
 9

argues that the judge improperly considered this evidence

because it was inadmissible hearsay.10 We agree.

The mother's statements were hearsay because they were made

out of court during a conversation with a social worker and were

offered for their truth. Moreover, the statements were reduced

to writing and included in records from which Lee testified.

Thus, Lee's testimony regarding the records containing the

mother's statements comprised three levels of hearsay. In order

for this testimony to have been admissible, each of the hearsay

statements had to have fallen within one of the exceptions to

the hearsay rule. Commonwealth v. DePina, 476 Mass. 614, 623

(2017).

SBH contends that the testimony regarding the mother's

statements was admissible pursuant to G. L. c. 233, § 79, which

permits the introduction of medical records as evidence of

diagnosis, prognosis, and proximate cause of the condition

diagnosed, among other things. The purpose of the statute is to

"admit presumptively reliable evidence without the necessity of

calling numerous hospital personnel as witnesses." Bouchie v.

Murray, 376 Mass. 524, 528 (1978). However, the emergency room

records themselves were not admitted in evidence; thus, Lee's

testimony regarding anything in those records, including the

10J.P. raised a timely hearsay objection to the testimony
regarding the mother's statements at the hearing.
 10

mother's statements, was hearsay that is not admissible under an

exception to the rule.11 As this portion of Lee's testimony was

inadmissible, we need not go on to examine the admissibility of

the mother's hearsay statements within the emergency room

records.

However, we conclude that J.P. suffered no prejudice from

the admission of this evidence. Although the judge indicated

that she considered the mother's hearsay statements in

concluding that J.P. posed a substantial risk of physical harm

to other persons, she found that the mother was not the only one

who reasonably feared physical harm from J.P. Because, as

discussed infra, the evidence presented was sufficient for a

finding of a substantial risk of physical harm without the

mother's statements, J.P. was not prejudiced by their admission.

See Commonwealth v. Evans, 439 Mass. 184, 191, cert. denied, 540

U.S. 923 and 540 U.S. 973 (2003) (admission of identification

hearsay evidence not prejudicial where cumulative of other

properly admitted evidence).

11Even if Lee took the St. Luke's records into
consideration when diagnosing J.P., an expert witness may not
testify about evidence that formed the basis of their expert
opinion but was not admitted in evidence. Commonwealth v.
Goddard, 476 Mass. 443, 448 (2017), quoting Commonwealth v.
Barbosa, 457 Mass. 773, 785 (2010), cert. denied, 563 U.S. 990
(2011) ("experts are prohibited 'during [their] direct
examination[s] from informing the jury about the facts or data
[they] considered that were not in evidence but that would be
admissible with the right witness or proper foundation'").
 11

b. Sufficiency of the evidence. At the hearing, Lee

testified to his personal experience with J.P. as J.P.'s

treating physician, describing in some detail J.P's threats,

menacing body language, and verbal abuse leading the doctor to

feel threatened. There also was evidence of J.P.'s intimidating

behavior toward others at SBH, including threats to kill two

patients.12

J.P. contends that the evidence that others were placed in

fear was "subjective, speculative or unspecified" and thus it

amounted to subjective fear rather than the objective

"reasonable fear" required by G. L. c. 123, § 1. We disagree.

A showing of "evidence that others are placed in reasonable fear

of violent behavior and serious physical harm" means presenting

evidence that, in the circumstances, a reasonable person would

fear violent behavior and serious physical harm, and that

someone actually did fear violent behavior and serious physical

harm. Unlike the first clause of the second prong, which

requires a showing of "homicidal or other violent behavior" from

the respondent, the second clause of the second prong requires a

showing that those who interact with the respondent fear being

subjected to "violent behavior and serious physical harm," and

that such fear is reasonable. G. L. c. 123, § 1.

12We note that the testimony regarding the patients'
statements to Lee was not objected to at the hearing.
 12

Here, from an objective viewpoint, the evidence presented

of J.P.'s behavior, including his verbal threats and demeanor,

would cause a reasonable person to fear violent behavior and

serious physical harm from J.P. Further, there was testimony

from Lee of his fear of such an outcome. The judge further

inferred that, given the descriptions of J.P.'s interactions

with other medical providers and patients, others also feared

violent behavior and serious physical harm. Thus, we conclude

that there was sufficient evidence (even without the mother's

statements) demonstrating beyond a reasonable doubt that others

were placed in reasonable fear of imminent violent behavior and

serious physical harm to them. See G. L. c. 123, § 1; Matter of

G.P., 473 Mass. at 126.

2. Very substantial risk of harm to self in the community.

The judge further concluded that there was sufficient evidence

that without involuntary commitment, J.P. also posed a very

substantial risk of harm to himself in the community because he

would not be able to protect or care for himself. See G. L.

c. 123, § 1. The evidence supporting this conclusion was not

robust, and SBH did not press a sufficiency argument with regard

to this prong. Because we have concluded that the evidence

presented was sufficient to demonstrate likelihood of serious

harm under the second prong, we need not address the sufficiency

of the evidence to prove the third prong, including J.P.'s claim
 13

that SBH failed to prove that "reasonable provision for his

protection [was] not available in the community." G. L. c. 123,

§ 1.

However, we take this opportunity to address a footnote in

the Appellate Division's decision in which the court expressed

the view that "homelessness, in and of itself, presents a very

substantial risk of harm to a person [himself]" due to the

"risks of theft, abuse, and violence" that the homeless

population faces. It is true that homelessness can mean a lack

of safety and stability, but that does not mean that

homelessness, in and of itself, is sufficient to support a

finding of a very substantial risk of harm to the person himself

or herself. If it is to be used at all as part of the

involuntary civil commitment analysis, it must be done with

extreme caution.

Webster's Third New International Dictionary 1083 (1993)

defines "homeless" as "having no home or permanent place of

residence." It is a broad term that may, but need not, be

synonymous with living on the streets and being exposed to the

attendant dangers that come with it.13 But even if a person does

not have a place to stay and will be in a homeless shelter or on

Here, J.P. testified that although he could not return to
13

live with his mother, he had other options, including staying in
a hotel and staying with friends.
 14

the street, that is not proof that he or she will pose a

substantial danger to himself or herself.

We further note that people become homeless for many

reasons, including, but not limited to, being a domestic abuse

survivor, being unemployed or underemployed, and falling on hard

times.14 Mental illness may, or may not, be a factor. None of

these conditions, including mental illness, necessarily means

that the person meets the criteria of the third prong, i.e.,

that there is, a "very substantial risk of physical impairment

or injury to [that] person . . . as manifested by evidence that

such person's judgment is so affected that he [or she] is unable

to protect himself [or herself] in the community." G. L.

c. 123, § 1. Thus, although homelessness may be part of the

involuntary civil commitment analysis, it alone cannot suffice

to demonstrate a likelihood of serious harm to the person

himself or herself under G. L. c. 123.

Conclusion. The judgment of the District Court judge is

affirmed.

So ordered.

14See National Law Center on Homelessness & Poverty,
Homelessness in America: Overview of Data and Causes, at 3
(Jan. 2015) (listing unemployment and low wages as among top
causes of homelessness).