Case brief: In the Matter of G.P., 473 Mass. 112 (2015)

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by Lynn M. Squillace, Esq., MPH

In the Matter of GP (“GP”) called on the Supreme Judicial Court to consider the limits of GL c. 123 §35 (“§35”), which authorizes involuntary civil commitment in cases of a “likelihood of serious harm as a result of [a] person’s alcoholism or substance abuse, or both.”[1]  Involuntary civil commitment involves a serious suspension of liberty; accordingly, a respondent is afforded several legal rights.  In this case the SJC considered issues of evidence and procedure, concluding, inter alia, that there is a temporal element to be applied when weighing evidence at a §35 hearing and that clear and convincing evidence is acceptable to demonstrate the statutorily required likelihood of serious harm.

The petitioner, GP, had been involuntarily committed by the District Court pursuant to §35, but was no longer committed at the time the matter was reserved and reported by a single justice, ostensibly rendering her challenge to the commitment order moot.  Nonetheless, the Court (noting that issues concerning §35 commitment are likely to evade review given the duration of the commitment) decided the case, as it presented issues concerning §35 as well as the Uniform Trial Court Rules for Civil Commitment Proceedings for Alcohol and Substance Abuse (“uniform rules”) scheduled to go into effect on February 1, 2016.[2]

GP’s mother petitioned the New Bedford District Court to have GP committed pursuant to §35 in May 2015.  The petition was heard the following day.  The allegations in the petition and in the designated forensic psychologist’s testimony concerned GP’s heroin use, GP’s having pushed her mother, GP’s two failed detox attempts and suicidality, and GP’s minor child having found a needle.[3]  The psychologist’s testimony was based on an examination of GP and a conversation with GP’s sister.  GP denied being homicidal or suicidal, but did disclose unmedicated depression and anxiety, and hepatitis C.

The psychologist’s testimony concluded with the opinion that GP met the requirements for a §35 commitment because GP was unable to stop using heroin on her own, that GP was “a danger to herself by use of her heroin,” and that if GP’s child was indeed finding syringes those syringes could be contaminated with hepatitis C, thereby putting the child at risk.[4]  The District Court judge ordered GP committed after crediting the psychologist’s testimony as fact, noting that GP pushed her mother and concluding that the evidence mitigated in favor of commitment as GP tried but was not able to “dry herself out.”[5] This appeal followed.[6]

The court addressed five reported questions, the first two were evidentiary.  First, §35 does not state a standard of proof to be applied at the hearing; the uniform rules require that the judge find by clear and convincing evidence: a) that the respondent is an alcoholic and/or substance abuser; and b) clear and convincing evidence that there is a likelihood of serious harm resulting from the respondent’s alcoholism or substance abuse.  GP pointed to the beyond a reasonable doubt standard applied in other types of civil commitment (see e.g. commitment of dangerous persons pursuant to G.L. c. 123 §§7, 8) arguing that the same high standard of proof should apply to §35 proceedings.  In concluding that the clear and convincing evidence standard is appropriate for §35 commitments, the court found that a beyond a reasonable doubt standard of proof is not constitutionally required for all civil commitment proceedings, drawing a distinction between §35 commitments that are statutorily limited to ninety days, and commitments for mental illness pursuant to G.L. c. 123 §§7 and 8 that may continue indefinitely. [7] Second, the Court found that the “flexible nature” of a §35 hearing, where the respondent is entitled to counsel and the petitioner may be a close family member of the respondent without an attorney, does not require strict adherence to the rules of evidence and that hearsay may be permitted if the judge finds such evidence to be substantially reliable.[8]

Turning to the three remaining questions, GP first challenged as illusory the method of appeal delineated by the applicable statute and uniform rules (an initial appeal to the Appellate Division of the court having heard the petition, then, if aggrieved, a right of appeal to the Appeals Court) because the Appeals Court lacks the statutory authority to vacate a commitment order.  GP argued that her only avenue of appeal was a petition for extraordinary relief pursuant to G.L. c. 211 §3.  The court disagreed finding that the Appeals Court does in fact have the appropriate power and noting that the Appellate Division and Appeals Court appeals of a §35 order may be expedited upon request.[9]

Second, the Court provided important guidance to judges as to how evidence of the respondent’s past behavior should be considered when making a determination (the second statutory definition of “likelihood of serious harm”).[10]  In considering the evidence of the respondent’s past conduct, the Court declined to define a specific timeframe required for such evidence, but concluded that evidence of more recent behaviors should be accorded more weight in determining the likelihood that the respondent will inflict serious harm on herself or others in the future.  Likewise, the more serious or frequent previous attempts of suicide or self-harm are demonstrated, the more significant such evidence.  Here the Court noted that evidence must be carefully reviewed, as although the suspension of liberty caused by a §35 order is time limited, it is substantial and “hardly momentary.”[11] The definition references homicidally and violent behavior, signaling the legislature’s intent that a substantial level of force be presented prior to a §35 commitment on the basis of likelihood of serious harm to another.[12]  The Court further noted that the assessment of a substantial risk of him become less reliable as events are forecasted further out into the future.  Consequently, the Court clarified that the petitioner must prove a “substantial and imminent risk of serious injury” to the respondent or others in order for the respondent to be committed due to alcohol or substance use. [13]

Finally, the Court examined the third statutory definition of “likelihood of serious harm,” specifically, what constitutes a “very substantial” risk of harm.[14]  It is insufficient to simply demonstrate that the respondent is a chronic substance abuser or alcoholic, but GP argued that the third definition requires a higher level of proof of likelihood of serious harm than do the first two, that the respondent must be proved unable to sustain himself (even marginally).[15]  The Court agreed that the third definition (a very substantial risk of harm) requires a higher level of proof than the first two (substantial risk of harm) but declined to adopt GP’s interpretation of the statute.  The Court instead found that the evidence under the third definition must address the temporal concerns (discussed above), in addition to the degree of the respondent’s impaired judgement due to alcohol or drug abuse, the likelihood that the respondent will sustain or inflict an injury do to said impairment, and the inability of the respondent’s community to prevent such injury.[16]

Though GP was no longer committed at the time of the Court’s decision the Court did apply its holding to her case, with the intention of providing guidance for future cases and indicated that there was an insufficient basis for the §35 order in GP’s case.  The Court recognized GP’s as an unfortunate situation, but not one allowing for the deprivation of liberty associated with a §35 commitment.[17]  Practitioners should note the Court’s affirmation of the uniform rules’ clear and convincing evidence standard as well as the preference for more recent evidence of past behavior when applying the second statutory definition of likelihood of serious harm.

[1] In the Matter of G.P., 473 Mass. 112, 113 (2015).  A police officer, physician, spouse, blood relative, guardian or District or Juvenile Court officer may file a petition for an order of commitment of a person believed to be an alcoholic or substance abuser pursuant to §35.  Id. at 116 citing GL c. 123 §35, third par. Upon filing of a petition the court must immediately schedule a hearing.

[2] Id. at 113. Following a public comment period, the Trial Court published a set of uniform rules to govern §35 proceedings. The uniform rules referenced the instant case and noted that the court’s decision may necessitate a revision to the rules.  Id. at Note 9.

[3] Id. at 114.

[4] Id. at 114-115.

[5] Id. at 115.

[6] When GP’s appeal of the commitment order was denied by the Appellate Division of the District Court she filed a petition for relief pursuant to GL c. 211 §3.  A single justice reported the case to the full court.  Id.

[7] Id. at 118-120.

[8] Id. at 121-122.

[9] Id. at 123-124.

[10] Id. at 124-125.  G.L. c. 123 §1 defines likelihood of serious harm 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 protection is not available in the community.”

[11] In the Matter of G.P., 473 Mass. at 126.

[12] Id.

[13] Id. at 127.

[14] Id. at 128.

[15] Id.

[16] Id. at 129.

[17] Id. at 129-130.

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