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
