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SJC-11704

                 WALDEN BEHAVIORAL CARE   vs.   K.I.



       Middlesex.      December 2, 2014. - April 9, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.



Mental Health. Practice, Civil, Commitment of mentally ill
     person, Waiver. Psychotherapist. Witness, Psychiatric
     examination, Privilege. Evidence, Privileged
     communication. Privileged Communication. Waiver.



     Petition for civil commitment filed in the Waltham Division
of the District Court Department on August 13, 2012.

    The case was heard by Gregory C. Flynn, J.

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


     Stan Goldman for the respondent.
     Diane M. Geraghty Hall for the petitioner.
     Jennifer Honig, Phillip Kassel, Robert Fleischner, & Stan
Eichner, for Mental Health Legal Advisors Committee & others,
amici curiae, submitted a brief.


    DUFFLY, J.   Walden Behavioral Care, a facility for the

treatment of mentally ill patients, brought a petition in the
                                                                     2


District Court pursuant to G. L. c. 123, §§ 7, 8, seeking to

commit K.I. involuntarily and retain him in its facility.     K.I.

filed a motion in limine to exclude from the commitment hearing

testimony concerning statements he had made to his treating

psychiatrist at Walden Behavioral Care.   K.I. claimed that his

statements were protected by the psychotherapist-patient

privilege as defined in G. L. c. 233, § 20B, and that the

psychiatrist was precluded from testifying to those statements

or to his opinion of K.I.'s mental or emotional condition based

on those statements.

    A District Court judge denied K.I.'s motion, concluding

that the psychotherapist-patient privilege was overcome by an

exception to the privilege set forth in G. L. c. 233, § 20B (a).

At the commitment hearing, the psychiatrist was permitted to

testify to statements made to him by K.I., and to his opinion

that K.I. was suicidal.   Based on this testimony, K.I. was

committed to Walden Behavioral Care for six months.   K.I.

appealed the commitment order to the Appellate Division of the

District Court; in a divided opinion, the court affirmed the

commitment.   K.I. appealed, and we transferred the case from the

Appeals Court on our own motion.

    We conclude that the exception to the psychotherapist-

patient privilege established in G. L. c. 233, § 20B (a),

applies in the circumstances presented.   Notwithstanding the
                                                                      3


absence of a knowing and intelligent waiver of the privilege,

there was no error in permitting the psychiatrist to testify at

the involuntary commitment hearing concerning K.I.'s statements.1

       Background.    In August, 2012, a physician petitioned for

K.I.'s emergency admission to Walden Behavioral Care pursuant to

G. L. c. 123, ' 12 (a).2      In a petition pursuant to G. L. c. 123,

§ 12 (a), a physician wrote that K.I. was experiencing auditory

hallucinations and attempting to kill himself by running into

traffic.      Within two hours of his arrival, K.I. was examined by

a physician who authorized K.I.'s commitment to the facility for

three days "for care and treatment" pursuant to G. L. c. 123,

§ 12 (b).      See Reida v. Cape Cod Hosp., 36 Mass. App. Ct. 553,

555-556 (1994).      During this three-day period, Dr. David

Brendel, a psychiatrist, provided diagnosis of and treatment to

K.I.       In his capacity as superintendent of Walden Behavioral

Care, Brendel thereafter filed a petition for K.I.'s continuing



       1
       We acknowledge the amicus brief of the Mental Health Legal
Advisors Committee, the Center for Public Representation, and
the Disability Law Center on behalf of the respondent.
       2
       General Laws c. 123, § 12 (a), authorizes "any" licensed
physician to apply for a person's admission to a "facility
authorized" to provide mental health treatment, whom the
physician has reason to believe would pose "a likelihood of
serious harm by reason of mental illness" if not hospitalized.
See Reida v. Cape Cod Hosp., 36 Mass. App. Ct. 553, 556 (1994).
Any "qualified psychologist, qualified psychiatric nurse mental
health clinical specialist, or licensed independent clinical
social worker" also may do so. G. L. c. 123, § 12 (a).
                                                                      4


commitment under G. L. c. 123, §§ 7, 8.3    At no time was K.I.

warned that, in certain circumstances, his statements to his

treating psychiatrist might be admissible in future legal

proceedings.

     K.I. filed a motion in limine to exclude Brendel's

testimony regarding K.I.'s statements.     K.I. maintained that his

statements were protected by the psychotherapist-patient

privilege, and that the sole potentially applicable exception to

the privilege was set forth in G. L. c. 233, § 20B (b),

concerning statements made to a psychiatrist in the course of

court-ordered examinations.   K.I. argued that the statements

therefore were tantamount to statements made in the course of a

court-ordered examination, and, because he had not been informed

that his communications to Brendel would not be privileged, as

required by G. L. c. 233, § 20B (b), this exception was

unavailable and his privileged statements should not have been

admitted.   A District Court judge denied K.I.'s motion,

concluding that the psychotherapist-patient privilege was

overcome by the imminent harm exception to the privilege set

forth in G. L. c. 233, § 20B (a); the judge determined that the


     3
       Pursuant to G. L. c. 123, § 12 (d), a person must be
discharged after three days unless the superintendent of a
facility applies for a commitment order under G. L. c. 123,
§§ 7, 8, or the person chooses to remain voluntarily.
                                                                     5


exception provided by G. L. c. 233, § 20B (b), was inapplicable.

     Brendel testified at the commitment hearing that K.I. had

made repeated statements that voices were telling him to kill

himself by overdosing on Oxycodone, and that he had access to

Oxycodone in his apartment and intended to overdose when he was

released.   Based on these statements, Brendel testified to his

opinion that K.I. was suicidal, and, if released, would pose a

likelihood of serious harm to himself by reason of his mental

illness.4   On the basis of this testimony, a District Court judge

ordered K.I. committed to Walden Behavioral Care for six months.

     Discussion.   1.    Standard of review.   We review questions

of statutory interpretation de novo.     Sheehan v. Weaver, 467

Mass. 734, 737 (2014).    "[T]he statutory language itself is the

principal source of insight into the legislative purpose."

Hoffman v. Howmedica, Inc., 373 Mass. 32, 37 (1977).     In

conducting our review, "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 to

be accomplished, to the end that the purpose of its framers may

be effectuated."   Worcester v. College Hill Properties, LLC, 465


     4
       Dr. David Brendel testified also to his diagnosis of K.I.
as having schizophrenia, paranoid type.
                                                                   6


Mass. 134, 139 (2013), quoting Harvard Crimson, Inc. v.

President & Fellows of Harvard College, 445 Mass. 745, 749

(2006).

     2.   Psychotherapist-patient privilege.   The

psychotherapist-patient privilege set forth in G. L. c. 233,

§ 20B, applies to exclude from court proceedings, and from

legislative and administrative proceedings, statements made by a

patient to a psychotherapist relative to the diagnosis or

treatment of the patient's mental or emotional condition.

General Laws c. 233, § 20B,5 provides, in relevant part:

          "[I]n any court proceeding and in any proceeding
     preliminary thereto and in legislative and administrative
     proceedings, a patient shall have the privilege of refusing
     to disclose, and of preventing a witness from disclosing,
     any communication, wherever made, between said patient and
     a psychotherapist relative to the diagnosis or treatment of
     the patient=s mental or emotional condition."

The privilege "continue[s] in effect after [a] patient" has been

hospitalized in a mental health facility.   G. L. c. 233, § 20B.

The statute enumerates six exceptions where "[t]he privilege

granted hereunder shall not apply."   Id.   Two of those

exceptions, G. L. c. 233, § 20B (a), (b), are at issue here.

     5
       G. L. c. 233, § 20B, defines "Communications" as
including:

          "[C]onversations, correspondence, actions and
     occurrences relating to diagnosis or treatment, before,
     during, or after institutionalization, regardless of the
     patient's awareness of such conversations, correspondence,
     actions and occurrences, and any records, memoranda or
     notes of the foregoing."
                                                                   7


    General Laws c. 233, § 20B (a) (imminent harm exception),

permits disclosure by a psychotherapist of otherwise privileged

communications made by a patient in the following circumstances:

         "If . . . in the course of his diagnosis or treatment
    of the patient, [a psychotherapist] determines that the
    patient is in need of treatment in a hospital for mental or
    emotional illness or that there is a threat of imminently
    dangerous activity by the patient against himself or
    another person, and on the basis of such determination
    discloses such communication either for the purpose of
    placing or retaining the patient in such hospital, provided
    however that the provisions of this section shall continue
    in effect after the patient is in said hospital, or placing
    the patient under arrest or under the supervision of law
    enforcement authorities."

General Laws c. 233, § 20B (b) (court-ordered examination

exception), allows disclosure of otherwise privileged

communications by a patient to a psychotherapist:

         "If a judge finds that the patient, after having been
    informed that the communications would not be privileged,
    has made communications to a psychotherapist in the course
    of a psychiatric examination ordered by the court, provided
    that such communications shall be admissible only on issues
    involving the patient's mental or emotional condition but
    not as a confession or admission of guilt."

    3.   Analysis.   As discussed below, the only exception to

the psychotherapist-patient privilege that applies in the

present circumstances is the imminent harm exception, G. L.

c. 123, § 20B (a).   We decline to extend our holding in

Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 524-526

(1986), to apply the court-ordered examination exception, G. L.

c. 123, § 20B (b), to examinations, by a diagnosing or treating
                                                                     8


psychotherapist, of a patient involuntarily committed to a

mental health facility pursuant to G. L. c. 123, § 12 (b).

    a.   Applicability of G. L. c. 123, § 20B (a), the imminent

harm exception.   "Testimonial privileges 'are exceptions to the

general duty imposed on all people to testify' and therefore

'must be strictly construed.'"   Commonwealth v. Oliveira, 438

Mass. 325, 330 (2002), quoting Three Juveniles v. Commonwealth,

390 Mass. 357, 359 (1983), cert. denied sub nom. Keefe v.

Massachusetts, 465 U.S. 1068 (1984).   See Matter of Roche, 381

Mass. 624, 634 n. 12 (1980).

    As pertinent to the facts of this case, the plain language

of G. L. c. 233, § 20B (a), states that the imminent harm

exception to the psychotherapist-patient privilege applies where

two conditions are met.   First, a psychotherapist has determined

in the course of diagnosis or treatment that a patient "is in

need of treatment in a hospital for mental or emotional illness"

or "there is a threat of imminently dangerous activity by the

patient against himself or another person"; second, the

psychotherapist's disclosure of the statement is "for the

purpose of placing or retaining" the patient in a hospital for

treatment of such mental illness.   Based on Brendel's testimony,

K.I.'s statements indicated that he posed a threat of imminently

dangerous activity against himself.    Brendel, a psychotherapist,

disclosed the statements in order to place or retain K.I. in
                                                                   9


Walden Behavioral Care, a facility for the treatment of mentally

ill patients.   Thus, on its face, the imminent harm exception

appears to apply in these circumstances.

     Nonetheless, the statutory language does not state

explicitly that the imminent harm exception applies to

statements made to a psychotherapist by a patient while the

patient is involuntarily committed to a mental health facility.

We consider the language of G. L. c. 233, § 20B (a), together

with the statutory scheme governing civil commitment

proceedings, see G. L. c. 123, §§ 7, 8, to ascertain whether the

Legislature intended the imminent harm exception to be available

in these circumstances.6   See Commonwealth v. Semegen 72 Mass.

App. Ct. 478, 480 (2008) ("where possible, we must seek to

harmonize the provisions of any statute with related provisions

where they are part of a single statutory scheme").

     Involuntary civil commitment proceedings are commenced to

prevent the imminent "discharge of [a patient from a facility]

[when it] would create a likelihood of serious harm."     Acting


     6
       General Laws c. 123, § 7 (a), authorizes a superintendent
of a mental health facility to petition for the commitment and
"retention of any patient" at that facility upon a determination
by the superintendent that "the failure to hospitalize would
create a likelihood of serious harm by reason of mental
illness." A court "shall not order the commitment of a person
at the 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." G. L. c. 123, § 8 (a).
                                                                    10


Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 105 (2000),

quoting G. L. c. 123, §§ 7 (a), 8 (a), 11.    An element of proof

in involuntary commitment cases is "the imminency of discharge."

Acting Supt. of Bournewood Hosp. v. Baker, supra.    In the

context of involuntary commitment proceedings, a "likelihood of

serious harm" is defined as including "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."

G. L. c. 123, § 1.    When a patient who has been involuntarily

committed in a mental health facility communicates to his or her

psychotherapist that he or she intends to commit suicide upon

release, the communication manifests precisely that type of a

"likelihood of serious harm" that falls within the meaning of G.

L. c. 123, § 7 (a).

    Brendel's testimony during K.I.'s involuntary commitment

proceeding included statements K.I. had made during Brendel's

diagnosis of K.I. to determine whether he was suicidal and what,

if any, course of treatment should be pursued.    Based on these

communications, Brendel determined that there was a "threat of

imminent dangerous activity by the patient against himself," and

disclosed K.I.'s communications "for the purpose of . . .

retaining [K.I.] in [Walden Behavioral Care]."    See G. L. c.

233, § 20B (a).   The language supporting the imminent harm

exception to the psychotherapist-patient privilege in G. L. c.
                                                                   11


233, § 20B (a), tracks that which supports a patient's

involuntary commitment to or retention in a mental health

facility.    The statutes therefore may be understood as working

in concert to provide hospitalization and treatment to a patient

who is at imminent risk of serious bodily harm.   No language in

either statute suggests that the Legislature intended to

preclude a psychotherapist from disclosing a patient's

statements in these circumstances, unless the psychotherapist

has first warned the patient that a disclosure might be made.7

     Indeed, the plain language of G. L. c. 233, § 20B (a),

contemplates that statements might be made by a patient during

the course of diagnosis and treatment that reveal that the

patient would be a danger to himself or herself if released from

a treatment facility, and permits disclosure of such statements

for the purpose of retaining the patient in the facility for

treatment.   As we said in Commonwealth v. Lamb, 365 Mass. 265,

268 (1974) (Lamb), the exception in G. L. c. 233, § 20B (a),

applies "to a situation in which the patient is not

     7
       By contrast, the Legislature clearly expressed its intent
that a victim's communications to a sexual assault counselor be
kept "confidential." See G. L. c. 233, § 20J ("sexual assault
counselor shall not disclose such confidential communication
without the prior written consent of the victim"; such
communications "shall be inadmissible in any criminal or civil
proceeding without the prior written consent of the victim").
Likewise, sexual assault counselors are not included within the
definition of psychotherapists in G. L. c. 233, § 20B, and
communications made to them are not subject to the exceptions to
the psychotherapist-patient privilege in that statute.
                                                                  12


institutionalized or is about to be discharged from an

institution," and the patient makes disclosures during the

course of treatment that reflect the patient's need for

treatment of mental or emotional illness in a hospital setting.8

This is consistent with the Legislature's intent in enacting G.

L. c. 233, § 20B (a), which was to "dispense with the privilege

when there is an imminent threat that a person who should be in

custody will instead be at large."9   Lamb, supra.

     K.I. argues that, at some point during the course of


     8
       K.I. contends that, because a commitment petition under
G. L. c. 123, § 7, may be filed only to seek retention of a
patient in a mental health facility, the patient will "already
[be] in the custody of State officials," and
"institutionalized," and, therefore, the patient will not be
"about to be discharged." Commonwealth v. Lamb, 365 Mass. 265,
268 (1974) (Lamb). Patients who are temporarily civilly
committed must be discharged after the statutory commitment
period, unless a petition is filed pursuant to G. L. c. 123,
§ 12 (d). See note 3, supra. Civil commitment proceedings
determine whether an individual will be discharged from an
institution. Only then would the "failure to hospitalize . . .
create a likelihood of serious harm" under G. L. c. 123,
§ 7 (a). See Acting Supt. of Bournewood Hosp. v. Baker, 431
Mass. 101, 105 (2000) ("An element of proof in such cases is the
imminency of discharge of the patient from the facility").
     9
       We determined that the imminent harm exception was
inapplicable in the circumstances in Lamb, supra at 268,
because, there, the Commonwealth had filed a petition to commit
the petitioner indefinitely to the treatment center as a
sexually dangerous person, G. L. c. 123A, § 6, and a
psychiatrist had been appointed "to examine [the petitioner] and
report to the court" in connection with that petition. Lamb,
supra at 266. Notwithstanding his claim that the circumstances
are similar, K.I.'s situation is not analogous.
                                                                  13


diagnosis and treatment of a patient who is temporarily

committed on an involuntary basis, a psychotherapist's role will

shift, and his or her examination of the patient will no longer

be solely to treat, but also to determine whether an involuntary

commitment petition should be filed.   At that point, K.I.

contends, the patient's statements would no longer be used

solely for treatment purposes, and therefore we should read the

exception in G. L. c. 233, § 20B (a), to permit a

psychotherapist to disclose communications only if the

psychotherapist's determination of imminent harm is made

"solely" or "exclusively" for treatment purposes.   We decline to

do so, as this would in essence require that we "read into [the]

statute a provision which the Legislature did not see fit to put

there, [and to] add words that the Legislature had an option to,

but chose not to include."   See Massachusetts Insurers

Insolvency Fund v. Smith, 458 Mass. 561, 567 (2010), citing

General Elec. Co. v. Department of Envt'l Protection, 429 Mass.

798, 803 (1999).

    b.    Applicability of G. L. c. 123, § 20B (b), the court-

ordered examination exception.   The policy objective of G. L.

c. 233, § 20B (b), is "to permit a court to utilize expert

psychiatric evidence by ordering an examination."   Lamb, supra

at 269.   "[T]he statute recognizes that such court-initiated

interviews entail certain risks for the person to be examined."
                                                                      14


Id.    Requiring a Lamb warning before such an examination, which

is conducted in anticipation of a future proceeding, strikes the

Legislature's intended "balance between the need for fairness

and disclosure to the patient and full information for the

court."   Id. at 270.

      K.I. argues that Department of Youth Servs. v. A Juvenile,

398 Mass. 516, 524-526 (1986), enlarged the scope of the

exception in G. L. c. 233, § 20B (b), to cover examinations not

made pursuant to court order, where the patient's communications

will be used at a future legal proceeding, such as one seeking a

patient's involuntary commitment pursuant to G. L. c. 123, §§ 7,

8.    This argument is unavailing.

      In Department of Youth Servs. v. A Juvenile, supra at 518,

the Department of Youth Services sought to extend a juvenile's

commitment to the department beyond his eighteenth birthday.      To

that end, it retained a clinician specifically to evaluate the

juvenile on behalf of the department, and to testify at a

hearing to extend his commitment.      We concluded that the

patient-psychotherapist privilege applied where the Commonwealth

chose to have a psychiatrist interview a juvenile in custody and

where the psychiatrist did not precede those conversations with

the Lamb warnings.      Id. at 525.   See Commonwealth v. Callahan,

440 Mass. 436, 441 (2003).     Our holding that Lamb warnings were

required in those circumstances was based on the Commonwealth's
                                                                     15


decision to retain the psychiatrist for the purpose of

interviewing the juvenile in order to seek an extension of his

commitment.     We said there that "warnings are required by reason

of G. L. c. 233, § 20B, . . . and do not depend on whether the

Commonwealth chooses to interview . . . on its own

initiative . . . or to seek court permission" (citation

omitted).     Department of Youth Servs. v. A Juvenile, supra at

526.    We did not consider the applicability of G. L. c. 233,

§ 20B (a), nor did we conclude that G. L. c. 233, § 20B (b),

would apply to any examination, whether court ordered or not.

       Subsequently, in Commonwealth v. Seabrooks, 433 Mass. 439,

450-451 (2001), we defined the limits of our holding in

Department of Youth Servs. v. A Juvenile, supra.     We considered

the examination of a potentially suicidal defendant and the

subsequent admission of his statements, as well as the examining

psychotherapist's opinion thereof, at his criminal trial.

Commonwealth v. Seabrooks, supra at 446-447.     The defendant in

that case was charged with murder and had been placed on a

suicide watch at the jail where he was being held pending trial.

Id. at 446.    A psychotherapist examined him to determine whether

the defendant was suicidal and needed to be hospitalized because

he was "at acute current risk of hurting himself."     Id.   To

rebut the testimony of defense experts that the defendant

suffered from an acute stress disorder, the psychotherapist was
                                                                       16


allowed to testify, over the defendant's objection, that, based

on the psychotherapist's suicide risk assessments, the defendant

was not suffering from such a disorder.       Id. at 447.   We held

that G. L. c. 233, § 20B (b), was not applicable in those

circumstances because the psychotherapist's "examinations were

not ordered by the court or sought by the prosecution, and were

not conducted in anticipation of a future proceeding in which

the defendant's mental capacity would be at issue."         Id. at 450-

451.10

     As with the circumstances of the examination conducted in

Commonwealth v. Seabrooks, supra, G. L. c. 233, § 20B (b), does

not apply here.       K.I.'s examination was not ordered by a court,

nor sought by the Commonwealth for the purpose of supporting a

petition seeking K.I.'s involuntary commitment.      As such, K.I.'s

examination was "not conducted in anticipation of a future

proceeding in which the [patient's] mental capacity would be at

issue."       Brendel examined K.I. to determine the "care and

treatment" K.I. needed.      See G. L. c. 123, § 12 (b).    In these

         10
       The psychotherapist "conducted the risk assessments to
identify whether the defendant was at imminent risk of harming
himself and to recommend any necessary precautions or
treatment." Commonwealth v. Seabrooks, 433 Mass. 439, 450
(2001). We held that the psychotherapist's testimony properly
was admitted under G. L. c. 233, § 20B (c), because the
defendant had "introduced his mental and emotional condition as
an element of his" defense. Commonwealth v. Seabrooks, supra at
448.
                                                                  17


circumstances, the exception provided by G. L. c. 233,

§ 20B (b), is not applicable.   There was no requirement that a

Lamb warning be given before Brendel examined K.I., and no error

in the admission of Brendel's testimony about K.I.'s statements

at the commitment hearing.

                                    Judgment affirmed.
