Civil Commitment in District Court: What is required under Sec. 35?

IN THE MATTER OF G.P.

473 MASS.112

SEPTEMBER 10, 2015 – NOVEMBER 5, 2015

SUFFOLK COUNTY

FACTS:

May 4, 2015, District Court Judge held a hearing on the petition on the day it a filed. Dr. Saemann, a designated forensic psychologist, had examined G.P.  Dr. Seamann testified at the hearing that the family believed that G.P had been using heroin for two years, that she was despondent and threatening to kill herself if she couldn’t get heroin, had stolen from the family to get money for heroin. G.P. had tried to detox on her own the previous week and had become very sick, had daily used heroin since then. Family is concerned about G.P.’s three year old child. G.P.’s mother stated that G.P. had pushed her.  G.P. admitted to having a heroin problem for the past two years and that she suffered from anxiety and depression but was not presently taking medication, also had Hepatitis C, and that she was neither homicidal nor suicidal.  Dr. Saemann found recent needle marks on G.P. and in her opinion G.P. met the requirements of sec. 35 for commitment. The Judge ordered G.P. committed.

G.P. appealed the commitment order to the Appellate Division of the District Court, which denied relief and dismissed the appeal on May 21, 2015.

G.P. filed her appeal for relief under G.L. c.211, sec.3 on June 1, 2015 naming the New Bedford District Court as the respondent.

ISSUES:

1. The standard of proof required at a commitment hearing under G.L.c.123, sec.35

2.  Whether the rules of evidence apply in a hearing on a petition for commitment pursuant to G.L.c.123,   sec.35

3. The route of appeal from a decision ordering civil commitment under G.L.C. 123, sec.35

4.  The proximity in time of the evidence of, threats of, or attempt at, suicide or serious bodily harm to the respondent and the proximity in time of the 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 necessary to establish a “likelihood of serious harm”, G.L.c.123. sec. 1 to the respondent or others for and order of commitment to issue; and

5. The quantum of risk necessary to establish “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 See G.L. c. 123 sec. 1,35

HOLDINGS/ RATIONAL:

1.     The uniform sec. 35 rules mandate use of a “clear and convincing” standard of proof, i.e. that the judge must find proved by clear and convincing evidence the facts supporting determinations that the respondent is an alcoholic or substance abuser and that there is a likelihood of serious harm directly resulting from his or her alcoholism or substance abuse. See rule 6 (a).  The clear and convincing standard must be accompanied by a showing of the facts establishing the “likelihood of serious harm” and are “highly probably true”. See Callahan v. Westinghouse Broadcasting Co., 372 Mass. 582, 588 (1977).

2.     Rule 7(a) of the uniform sec. 35 rules provides that the rules of evidence shall not apply to sec. 35 commitment proceedings, except for privileges and statutory disqualifications; this rule also states that hearsay evidence is admissible and may be relied upon if the judge finds it to be “substantially reliable”. See Commonwealth v. Patton,  458 Mass. 119, 132-133 (2010)

3.     G.L. c. 123. Sec. 9 (a) “matters of law arising in commitment hearings …in a district court may be reviewed by the appellate division of the district courts  in the same manner as civil cases generally".  Rule 11(a) of the uniform sec. 35 rules essentially incorporates these provisions but further specifies that, on request, the Appellate Division is to “expedite” consideration of any sec. 35 appeal.

4.     G.L. c. 123,sec 1 “Likelihood of serious harm” (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 protection  is not available in the community”.  To establish a likelihood of serious harm under the first or second prong, a showing of imminence is required. The petitioner must demonstrate a substantial and imminent risk of serious injury to the respondent or to others on account of the respondent’s alcohol or substance abuse.  Imminence need not be immediate. What must be shown is a substantial risk that the harm will materialize in the reasonably short term, in days or weeks, not months.

5.     Under the third prong the harm is “physical impairment or injury’ to the respondent, and the “very substantial risk” of such harm is to be shown by evidence that (1) the respondent’s judgment is so adversely affected by the abuse of alcohol or drugs that the respondent cannot protect themselves from physical harm and (2) the respondent’s community does not include reasonably available external source of adequate protection. G.L. c. 123 sec. 1.  Focus of evidence is to be on respondent’s degree of impaired judgment due to alcohol and/or drug abuse, the degree likelihood that, as a direct consequence, the respondent will sustain or inflict injury, and the inability of any other person in the respondent’s community to provide protection against such risks. The imminence of the risk becomes a factor that is even more important to consider than it is with the other two prongs because a “very substantial” risk of harm must be shown to satisfy this prong.

Petition for relief is dismissed as moot