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SJC-12183

                      IN THE MATTER OF N.L.



       Middlesex.     December 5, 2016. - March 14, 2017.

 Present:   Gants, C.J., Botsford, Lenk, Hines, Gaziano, Lowy, &
                             Budd, JJ.


Mental Health. Practice, Civil, Commitment of mentally ill
     person, Continuance, Moot case. Moot Question.



     Petitions for civil commitment and to authorize medical
treatment filed in the Cambridge Division of the District Court
Department on November 3, 2014.

     A motion for a continuance was heard by Roanne Sragow, J.,
and the petitions were also heard by her.

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


     Karen Owen Talley for the respondent.
     Diane M. Geraghty Hall for the petitioner.
     Anna Krieger, Robert D. Fleischner, Jennifer Honig, &
Phillip Kassel, for Center for Public Representation & another,
amici curiae, submitted a brief.


    LOWY, J.   N.L. appeals from the order for his civil

commitment to a mental health facility (hospital), pursuant to
                                                                      2


G. L. c. 123, §§ 7 and 8, and the order authorizing his

treatment with antipsychotic medications pursuant to G. L.

c. 123, § 8B.   He argues that the District Court judge

improperly denied his prehearing request for a continuance to

allow time for his counsel to prepare an adequate defense and an

independent medical examiner to complete a psychiatric

evaluation.   We transferred the case from the Appeals Court to

this court on our own motion.

      We dismiss the appeal as moot but exercise our discretion

to address the issue before us, which is whether a judge may

deny a person's (or the person's counsel's) first request for a

continuance of a hearing pursuant to G. L. c. 123, § 7 (c) or

8B.   We hold that where a person or his or her counsel requests

such a continuance, the grant of the continuance is mandatory

where a denial thereof is reasonably likely to prejudice a

person's ability to prepare a meaningful defense.1

      Background.   1.   Facts.   N.L. was admitted to the hospital

on October 30, 2014, under the emergency hospitalization

provisions of G. L. c. 123, § 12.      On November 3, the hospital

filed a petition for commitment pursuant to G. L. c. 123, §§ 7

and 8, and a petition for determination of incompetency and for

authorization for medical treatment for mental illness pursuant

      1
       We acknowledge the amicus brief submitted by the Center
for Public Representation and the Mental Health Legal Advisors
Committee.
                                                                      3


to G. L. c. 123, § 8B.    Counsel was appointed for N.L.     The

hearing on the petitions was scheduled for November 6.       Due to

administrative delays, counsel for N.L. did not receive a copy

of N.L.'s medical records until November 5, the same day that an

independent psychiatrist retained by counsel first met with N.L.

On November 6, counsel for N.L. filed a motion to continue the

hearing to allow him time to prepare a meaningful defense and to

allow the independent medical examiner time to complete his

evaluation.   The hospital opposed the motion on the grounds that

delay would jeopardize N.L.'s safety.    The judge denied the

motion to continue without stating her reasons, and proceeded

with the commitment hearing.    The judge then ordered N.L. to be

involuntarily committed to the hospital for a period not to

exceed six months.    Immediately following the commitment

hearing, the incompetency and medical treatment hearing

commenced.    The judge allowed the hospital's petition to treat

N.L. with antipsychotic medication against his will.

    N.L. timely appealed this decision to the Appellate

Division of the District Court Department.    In September 2015,

that court dismissed N.L.'s appeal as moot because he had since

been discharged from the hospital, and the court declined to

reach his arguments because it held that the circumstances of

the case were not "capable of repetition."
                                                                    4


     2.    Statutory overview.   General Laws c. 123, as is

relevant here, provides for procedures to allow the involuntary

civil commitment of persons with mental illness, and for the

involuntary medical treatment of such persons.

     a.    Civil commitment hearings.   Sections 7 and 8 of G. L.

c. 123 address the long-term commitment of persons with mental

illness.   Under § 7 (a), the superintendent of any facility2 may

petition the District Court for the commitment of any patient3

already at the facility.4   A hearing on this petition must be

conducted within five days of its filing, "unless a delay is

requested by the person or his counsel."     G. L. c. 123, § 7 (c).

Section 8 (a) provides that no person shall be committed unless

the District Court 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."




     2
       A "facility" is "a public or private facility for the care
and treatment of mentally ill persons." G. L. c. 123, § 1.
     3
       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.
     4
       Often, as was the case here, the individual is at the
facility under the emergency restraint and temporary
hospitalization provisions of G. L. c. 123, § 12, which allow
for the commitment of an individual for a three-day period.
G. L. c. 123, § 12 (a). See Newton-Wellesley Hosp. v. Magrini,
451 Mass. 777, 778-781 (2008), for a discussion of the temporary
commitment provisions of G. L. c. 123, § 12.
                                                                         5


     b.     Involuntary medical treatment hearings.    Section 8B of

G. L. c. 123 deals with the treatment of committed persons with

antipsychotic medications.     If a civil commitment petition is

filed under the provisions of G. L. c. 123, §§ 7 and 8, the

superintendent of the facility may also petition the District

Court under § 8B to allow the treatment of the person with

antipsychotic medications against the person's will.       The

involuntary medical treatment petition may not be considered by

the court unless it has already issued a civil commitment order

for the person under §§ 7 and 8.     G. L. c. 123, § 8B (b)      If an

involuntary medical treatment petition is filed concurrently

with a civil commitment petition -- as was the case here -- a

hearing on both must commence on the same day.5       G. L. c. 123,

§ 8B (c).    In such circumstances, this means that a continuance

of a civil commitment hearing results in a continuance of the

involuntary medical treatment hearing.

     c.     Individuals' rights at hearings.   Section 5 of G. L.

c. 123 pertains to a person's rights at civil commitment and

involuntary medical treatment hearings, including the right to

counsel and the right to present independent testimony at the


     5
       If the involuntary medical treatment petition is not filed
concurrently with the civil commitment petition (i.e., the
petition is filed after the person has been committed for some
period of time), a hearing must occur within fourteen days of
the filing of the petition, "unless a delay is requested by the
person or his counsel." G. L. c. 123, § 8B (c).
                                                                       6


hearing.    G. L. c. 123, § 5.   An indigent person must be

appointed counsel (unless he or she refuses the appointment of

counsel), and the court may provide such a person with an

independent medical examination.      Id.   A person is allowed "not

less than two days after the appearance of his counsel" to

prepare the case, and after this minimum period the hearing

"shall be conducted forthwith . . . unless counsel requests a

delay."    Id.

    Discussion.     1.   Mootness.   Before N.L.'s appeal reached

the Appellate Division, he was discharged from the hospital.

Accordingly, the case is moot.       "However, '[i]ssues involving

the commitment and treatment of mentally ill persons are

generally considered matters of public importance' and present

'classic examples' of issues that are capable of repetition, yet

evading review."    Newton-Wellesley Hosp. v. Magrini, 451 Mass.

777, 782 (2008), quoting Acting Supt. of Bournewood Hosp. v.

Baker, 431 Mass. 101, 103 (2000).      Therefore, we exercise our

discretion and decide the issue.

    2.     Continuances for civil commitment and involuntary

medical treatment hearings.      General Laws c. 123, § 7 (c),

provides that civil commitment hearings "shall be commenced
                                                                   7


within [five] days of the filing of the petition, unless a delay

is requested by the person or his counsel."6

     Here, the word "unless" provides an exception to the

general rule that civil commitment hearings must commence within

five days of the filing of the petition.   G. L. c. 123, § 7 (c).

See Hashimi v. Kalil, 388 Mass. 607, 609 (1983).     When a

"request" for a delay is made by either the person or his

counsel, that general rule no longer applies and the hearing may

commence beyond the mandatory five-day window.     G. L. c. 123,

§ 7 (c).

     Although the statute is silent as to whether the presiding

judge must grant such a "request," we conclude that the plain

language as well as the legislative intent of the statute

require that the grant of a requested first continuance be

mandatory where a denial thereof is reasonably likely to

prejudice a person's ability to prepare a meaningful defense.

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


     6
       For clarity, the analysis will focus on the specific
language of G. L. c. 123, § 7. However, G. L. c. 123, § 8B (c),
and G. L. c. 123, § 5, contain language that is nearly identical
to the "unless" clause of G. L. c. 123, § 7. Therefore, when a
person or his or her counsel requests a delay under any of these
provisions, the grant of it is mandatory when a denial thereof
is reasonably likely to prejudice a person's ability to
meaningfully prepare a defense.
                                                                        8


so would achieve an illogical result").       The Legislature could

have provided discretion to a judge when a party makes a

"request" and did so elsewhere in the same statute.       See G. L.

c. 123, § 17 (b) ("If the court in its discretion grants such a

request . . .").       Further, any interpretation not making the

grant of a continuance mandatory (absent a showing that denial

of the continuance is not reasonably likely to prejudice a

person's ability to prepare a meaningful defense) ignores the

word "unless" in the statute.       See Sullivan v. Ward, 304 Mass.

614, 615-616 (1939).

       This interpretation is consistent with the Legislature's

intent to afford individuals more due process in civil

commitment and medical treatment hearings than had been

available previously.       Newton-Wellesley Hosp., 451 Mass. at 784.

Prior to 2000, the statutory period for conducting the hearing

was fourteen days and has since been statutorily reduced to

five.7      G. L. c. 123, § 7 (c), as amended by St. 2004, c. 410,

§ 1.       These amendments make it clear that the Legislature

intended to protect the individual's due process rights by

minimizing the length of time for which he or she could be

involuntarily committed prior to judicial review.       See District


       7
       In 2000, the number of days was reduced from fourteen to
four and in 2004 the number was increased to five, and has
remained there since. See G. L. c. 123, § 7 (c), as amended by
St. 2000, c. 249, § 1, and St. 2004, c. 410, § 1.
                                                                   9


Court Committee on Mental Health and Retardation, Report of the

Ad Hoc Committee to Review G. L. c. 123, § 12, at 1, 4 (Oct. 21,

1997) (recommending reduction in period between filing of

petition and commencement of hearing pursuant to G. L. c. 123,

§§ 7 and 8).   This reduced time frame may be insufficient to

prepare a meaningful defense in some cases, but the person's due

process right are further protected by the "unless" clause in

the statute, which creates a mechanism by which a person could

delay the proceeding.     See G. L. c. 123, § 7 (c).   See also

G. L. c. 123, § 8B (c).    It is illogical that the Legislature

would shorten the period for conducting these hearings and have

it inure to the detriment of the individual's due process right

to prepare a meaningful defense.

     The length of the continuance is within the sound

discretion of the judge.    The length of the delay, however,

should be only as long as is reasonably necessary to protect the

individual's right to prepare a meaningful defense.8     In




     8
       We note that the legislative scheme contemplates that an
adequate case may be prepared in two days, although this time
frame may not be appropriate in all cases. See G. L. c. 123,
§ 5 ("The person shall be allowed not less than two days after
the appearance of his counsel in which to prepare his case and a
hearing shall be conducted forthwith after such period unless
counsel requests a delay").
                                                                   10


addition, this determination should be made solely with the

patient's interests in mind.9

     Where a judge denies the requested continuance she must

state with particularity the reasons why the denial is not

reasonably likely to prejudice a person's ability to prepare a

meaningful defense on the record.    Because the denial of a

continuance will require the careful balancing of the due

process rights of the person against any countervailing factors,

these findings will be reviewed under an abuse of discretion

standard.

     We recognize that tension exists between a person's

potentially urgent medical needs and that person's due process

right to prepare a meaningful defense.    Although the task of

medical professionals in treating such persons may be

challenging, under the statutory provisions at issue, expediency

of treatment may not impinge on a person's right to prepare a

defense.    Procedures are in place to temporarily treat

individuals while they await civil commitment hearings.     See,

e.g., Rogers v. Commissioner of the Dept. of Mental Health, 390

Mass. 489, 510-511 (1983).    The infringement of a person's

     9
       Although the statutes are designed to protect a person's
right to prepare a meaningful defense, any delay will
necessarily require that a person remain committed without
judicial review for an additional length of time. A lengthy
delay also may adversely affect a patient's medical situation,
and it may be appropriate for a judge to consider this when
determining the length of the continuance.
                                                                  11


liberty interest resulting from involuntary commitment for six

months is "massive" and should only be undertaken after the

person has the opportunity to prepare a meaningful defense.     See

Newton-Wellesley Hosp., 451 Mass. at 784, quoting Commonwealth

v. Nassar, 380 Mass. 908, 917 (1980).

    Conclusion.      The grant of a first request for a continuance

pursuant to G. L. c. 123, § 7 (c) or 8B (c), is mandatory where

a denial thereof is reasonably likely to prejudice a person's

ability to prepare a meaningful defense.     N.L.'s appeal is

dismissed as moot.

                                     So ordered.
