In re M.S.

99 Mass.App.Ct. 247

167 N.E.3d 421

In the MATTER OF M.S.

No. 20-P-467

Appeals Court of Massachusetts, Berkshire..

Argued November 3, 2020.

Decided February 25, 2021.

Melanie S. Lewis, for the respondent.

Jennifer Galvagni Carpenter, Pittsfield, for the petitioner.

Present: Wolohojian, Milkey, & Sullivan, JJ.

MILKEY, J.

On one day in 2016, Berkshire Medical Center filed two petitions with regard to its patient M.S., an adult woman. The first sought M.S.’s involuntary commitment, and the second sought authority to administer her antipsychotic medication without her consent ( Rogers order). See Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 458 N.E.2d 308 (1983). A District Court judge granted both petitions after holding back-to-back evidentiary hearings. Before us now is M.S.’s appeal of the Appellate Division of the District Court Department's affirmance of the Rogers order.¹ As explained below, the critical issue in M.S.’s appeal is her claim that the judge improperly considered evidence subject to the psychotherapist-patient privilege established by G. L. c. 233, § 20B. We affirm the decision and order of the Appellate Division.

Background. The first of the two back-to-back hearings addressed the commitment petition that the hospital filed pursuant to G. L. c. 123, §§ 7, 8. The hospital presented one witness, Dr. Anthony Giovanone, the psychiatrist who had treated M.S. for the previous three-plus years. Dr. Giovanone diagnosed M.S. as suffering from schizoaffective disorder, bipolar type. He explained in detail how this disorder manifested in terms of psychosis, auditory hallucinations, paranoid delusions, and disordered and grandiose thinking. As Dr. Giovanone put it, M.S. was unable to determine "what was real and what wasn't." According to him, M.S.’s "paranoid delusions [in turn] make it hard for her to trust the treatment team," and even when she agreed to a plan of medication, she was noncompliant. As a result, Dr. Giovanone saw her mental condition deteriorating. He also testified as to the dates and duration of some of her numerous prior hospital admissions, and that she had attacked someone during one prior admission. Dr. Giovanone recounted the perils that led to some of her earlier hospitalizations. One followed a period when she lived in the New York City subway system during which she reported that she was shot; another followed an incident when the police had to employ search dogs to track her down in the middle of the woods. Dr. Giovanone feared that if M.S. were released, she would "end up either in the woods again in the winter ... [o]r ... back in the subway, without any money, food, just waiting to either die or hopefully be found again." It is not clear how much of the doctor's testimony was based on confidential communications from M.S., as opposed to his own observations or other sources (such as medical records and police reports).

M.S. testified on her own behalf, and her testimony undermined her defense. For example, she testified that the hospital allowed "gang members" into her ward "overnight, who get the keys to [her] rule book and use it to take creative evidence from [her]." According to her, another gang of men had raped her, "looking to go after [her] quarter of a trillion dollars in musical, intellectual property." She also testified that since she had stopped taking medications ten days prior, she "ha[d] exhibited happy, joyous behavior." She disclaimed reliance on her father, whom she explained planned to prostitute her, while providing only the vaguest testimony about how unspecified people "waiting in Berkshire County" would keep her safe. She acknowledged that her living "in the subway ... ended rather poorly." Thus, much of M.S.’s own testimony -- none of which was protected by privilege -- overlapped with, or otherwise reinforced, the testimony of Dr. Giovanone. At the conclusion of M.S.’s testimony and closing arguments by both counsel, the judge announced that he had concluded that the hospital had met its burden of proof and that he would issue a commitment order.

The second hearing -- to address the petition that the hospital filed pursuant to G. L. c. 123, § 8B, seeking a Rogers order -- began immediately after the first. Just before the § 8B hearing began, the judge addressed M.S. directly, stating, "[W]e have more to do, if you'd like to remain." He then added: "You're welcome to leave if you wish. All right. Thank you very much. For the record, she's left the room." We agree with the Appellate Division that, read in context, the judge very likely reacted to the fact that M.S. started to leave as the second hearing began, not -- as M.S. suggests -- that the judge sua sponte invited her to leave. In any event, M.S.’s lawyer stayed and lodged no objection going forward without her.

Only Dr. Giovanone testified during the second phase of the hearing. At the outset, the judge directed that "[t]he issue now is whether or not [M.S.] should be medicated against [M.S.’s] will." Similarly, immediately before cross-examination began, the judge directed [M.S.’s] counsel to cross-examine "on the limited issue of medication." Accordingly, Dr. Giovanone's testimony focused on the potential benefits and detriments of the hospital's specific proposed treatment plan. The hospital did not solicit new testimony from Dr. Giovanone on direct examination regarding M.S.’s mental illness or her inability to manage her medical affairs, but instead effectively treated those issues as already having been established by the evidence presented at the first hearing. This is well illustrated by the initial question that the hospital's counsel posed: "Dr. Giovanone, you've already testified that [M.S.] suffers from schizoaffective disorder. With regard to medication, what treatment do you believe is necessary?" At one point in response to a question on cross-examination regarding M.S.’s expressed preferences, Dr. Giovanone volunteered, "I don't think [M.S. is] capable of ... weighing the risks and benefits at this time." M.S.’s counsel moved to strike this as unresponsive. The judge declined to do so, observing, "[T]hat's the very issue we're addressing, whether if she were competent -- whether she's currently competent and whether she would -- if she were competent, she would make that decision."

In ruling in the hospital's favor, the judge found that "[b]ecause of her mental illness, [M.S.] lacks insight into her mental illness, and is incompetent to make informed decisions about her medical treatment with anti[ ]psychotic medications." After finding that M.S. would have consented to the hospital's proposed treatment plan if she had been competent, the judge also approved the treatment plan.

On appeal, the Appellate Division ruled that "the evidence that was introduced in the course of the § 8B hearing dealt solely with the adjudication of substituted judgment and potential treatment." According to the Appellate Division, "[n]o evidence was introduced [during the § 8B hearing] regarding the question of whether M.S. was incapable of making informed decisions about proposed medical treatment." Nevertheless, the Appellate Division affirmed the Rogers order based on evidence that had been submitted during the first hearing. As the panel put it, "a judge who issues an order for commitment following a hearing under G. L. c. 123, §§ 7 and 8 [,] may consider the evidence he or she just heard in a § 8B hearing that immediately follows."

Discussion. 1. Mootness. The Rogers order ran concurrently with the commitment order, which expired after six months. Thus, the order under appeal is no longer in effect. Moreover, the hospital has represented that M.S. remains subject to a subsequently-issued Rogers order, which is not before us, that arose out of a separate Probate and Family Court proceeding. Under these circumstances, the hospital maintains that the current appeal is moot. M.S. disagrees, relying predominantly on Matter of F.C., 479 Mass. 1029, 1029-1030, 97 N.E.3d 333 (2018), quoting Seney v. Morhy, 467 Mass. 58, 62, 3 N.E.3d 577 (2014) (appeals from expired Rogers orders "should not be dismissed as moot where the parties have a continuing interest in the case," including with respect to "removing a stigma from [her] name and record"). We pass over the question of mootness and conclude that, in any event, M.S.’s arguments on appeal do not succeed for reasons specific to the current record.

2. Merits. As an initial matter, we note our disagreement with the Appellate Division's assessment that there was "[n]o" evidence presented at the § 8B hearing with respect to M.S.’s capacity to make informed decisions concerning her medical care. As noted, Dr. Giovanone specifically testified regarding M.S.’s ability to "weigh[ ] the risks and benefits" of her treatment options. Nevertheless, we agree with the panel's overall conclusion that the validity of the Rogers order depended in part on evidence that was admitted during the commitment hearing. Such evidence included, for example, Dr. Giovanone's testimony that M.S. suffered from schizoaffective disorder, bipolar type.

We further agree with the Appellate Division's conclusion that at least where the § 8B hearing follows on the heels of the commitment hearing,² there was no obligation for the judge sua sponte to put out of mind the evidence that had been presented at the just-concluded commitment hearing. Moreover, absent a timely assertion of a privilege, or other circumstances not present here, judicial economy and the interest in prompt resolution in a case, such as this one, favor not requiring witnesses to testify twice on the same day to the same points they just covered. In reaching this conclusion, we recognize that § 8B (b ) commands that "[a] petition filed under this section [that is, a Rogers petition] shall be separate from any pending petition for commitment and shall not be heard or otherwise considered by the...