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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.
