In re S.S.

180 N.E.3d 1033 (Table)

In the MATTER OF S.S.

20-P-1359

Appeals Court of Massachusetts.

Entered: January 19, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In May 2019, the Worcester Recovery Center and Hospital (hospital), filed a petition in the District Court for the authorization to treat S.S. medically through the administration of antipsychotic drugs. G. L. c. 123, § 8B (a ). Following an evidentiary hearing, the judge granted the hospital's petition and issued an order authorizing the hospital's treatment plan. On appeal, S.S. contends that the order authorizing the treatment plan was based on insufficient evidence and that the absence of a specific provision for the monitoring of her treatment progress invalidates the order. Concluding that the evidence was sufficient to grant the petition and that the monitoring issue is moot, we affirm.

Background. S.S. was transferred to the hospital from the Suffolk County house of correction pursuant to G. L. c. 123, § 18 (a ).² On June 11, 2019, the day scheduled for the hearing on the § 8B (a ) petition, S.S. waived her right to a hearing. See G. L. c. 123, § 6 (b ). The judge ordered her civilly committed for a period of six months and proceeded to address the § 8B petition.

The hospital presented one witness, a psychiatrist who had been treating S.S. during her admission to the hospital under the § 18 (a ) petition and was familiar with S.S.’s medical records from a prior admission to the hospital.

According to the psychiatrist, S.S. was diagnosed with schizophrenia. In the case of S.S., the disease presented as a substantial disorder of thought and perception. S.S. had disorganized thoughts and could not engage in rational conversation; she could often be seen "sitting by herself [and] engaging in self-dialog[ue]," a sign that she was "experiencing auditory hallucinations." When the psychiatrist had explained to S.S. her diagnosis of schizophrenia, S.S. was able to "verbalize to [the psychiatrist], ‘I do not agree with that.’ " Yet, S.S. had been previously admitted to the hospital a couple of years earlier and had been successfully treated and discharged.

The psychiatrist testified that because S.S. was unable to appreciate that she had a mental illness, she could not appreciate the benefits of treatment. Although the psychiatrist did discuss antipsychotic medication with S.S. "at least once a week," the psychiatrist opined that S.S. "is unable to make a reasoned decision with respect to refusing or accepting antipsychotic medication at this time."

After observing that S.S. had been "talking, presumably, to herself throughout th[e] hearing," the judge concluded that the hospital had met its burden with respect to competency and directed the parties to move on to the issue of substituted judgment.

The psychiatrist testified that the proposed course of treatment was with the antipsychotic Risperdal "because it is the medication that [S.S.] was stabilized on last time during her admission, and she was able to be successfully discharged into the community." And although there are side effects to the drug, no side effects were noted during S.S.’s prior admission. Nonetheless, S.S. would be monitored with the staff taking her vitals and bloodwork and observing her such that, if any side effects were observed, the medication could be adjusted. With respect to any family views on the proposed treatment, S.S. had declined to sign releases and had not "discussed family members"; nor was the psychiatrist aware of any religious beliefs that would be contrary to the proposed treatment. The prognosis for S.S. with this treatment was "fair" and without it, S.S. would likely "continue to be psychotic and ... her mental illness would deteriorate."³ Although S.S.’s expressed preference was "not to take antipsychotic medication," the psychiatrist opined that, "if [S.S.] were competent, she would agree to take the medication."

S.S. testified on her own behalf and explained why she did not want to take the medication:

"I'm worried the medication will have side-effects and then, and then if I follow the paper that the doctor give me the other day, (inaudible) on my health at the moment, that the effect if I take multiple medication."

At the conclusion of the hearing, the judge found that the hospital had met its burden with respect to both competency and substituted judgment and approved the treatment plan. The written order that issued indicated that "[t]he court shall monitor the treatment process to ensure that the treatment plan is followed by holding a treatment plan status conference on __________ unless the respondent is discharged before that date." The date of the treatment plan status conference was not filled in and remained a blank line.

S.S. was discharged from the hospital on August 6, 2019. She appealed to the Appellate Division of the District Court Department, which affirmed the judge's order on September 30, 2020. S.S. further appealed to this court.

Discussion. 1. Sufficiency of the evidence. S.S. argues that the hospital failed to present sufficient evidence on either the competency or substituted judgment prong of § 8B (d ). She also argues that the judge's findings "fail to demonstrate meticulous detail and close attention to the evidence."

We review the issuance of an order pursuant to G. L. c. 123, § 8B (d ), for an abuse of discretion or other error of law. See Guardianship of Linda, 401 Mass. 783, 786-787 (1988) (applying abuse of discretion standard to review of denial of Probate Court petition for involuntary administration of antipsychotic medications). We review the judge's findings of fact for clear error, but "scrutinize without deference the propriety of the legal criteria employed by the trial judge and the manner in which those criteria were applied to the facts." Matter of D.K., 95 Mass. App. Ct. 95, 100 (2019), quoting Matter of A.M., 94 Mass. App. Ct. 399, 401 (2018). "[T]he serious consequences following entry of substituted judgment orders" require that judges set down their findings "in writing and in meticulous detail," reflecting "careful work and reflection." Guardianship of Doe, 411 Mass. 512, 524 (1992).

a. Competency. "[A] distinct adjudication of incapacity to make treatment decisions (incompetence) must precede any determination to override patients’ rights to make their own treatment decisions." Rogers v. Commissioner of Dep't of Mental Health, 390 Mass. 489, 498 (1983). "A finding of incompetence ‘should consist of facts showing a [person's] inability to think or act for himself as to matters concerning his personal health, safety, and general welfare.’ " Cogen v. Bolduc, 435 Mass. 608, 618 n.25 (2002), quoting Fazio v. Fazio, 375 Mass. 394, 403 (1978).

The judge determined S.S. was unable to appreciate the risks or benefits associated with taking antipsychotic medications because, although S.S was diagnosed with schizophrenia, S.S. did not believe that she was mentally ill. The judge found that S.S. exhibited limited insight and judgment and was unable to "comprehend the reasonable consequences of her actions." Contrast Guardianship of Roe, 411 Mass. 666, 670 (1992) ("An informed decision about medical treatment ‘requires knowledge of the available [treatment] options and the risks attendant on each" [citation omitted]). These findings were supported by the record; indeed, by the behavior of S.S. herself: the judge remarked that she "couldn't help but observe that [S.S. was] talking, presumably, to herself throughout th[e] hearing."⁴ We discern no error in the judge's conclusion that S.S. was incompetent to make an informed decision regarding her medical treatment. See G. L. c. 123, § 8B (d ) (i).

b. Substituted judgment. "If a mentally ill patient has been deemed to be incompetent to make treatment decisions for himself or herself, a judge must [next] determine ‘what the patient would choose if he were competent’ " (citation omitted). Guardianship of Roe, 411 Mass. at 672. "The function of a substituted judgment hearing is to secure to incompetent persons the same right to choose or reject treatment that is accorded to competent persons by the law of consent." Guardianship of Brandon, 424 Mass. 482, 487 (1997). The judge's determination is guided by consideration of "the patient's expressed preferences regarding treatment, the patient's religious convictions, the impact of the decision on [the patient's] family, the probability of adverse side effects, and the prognosis for the patient with and without treatment." Id. See Rogers, 390 Mass. at 505-507.

The judge's findings reflect that her determination was informed by consideration of the relevant factors.⁵ The psychiatrist testified that S.S.’s psychosis would not abate without treatment, and that her mental health would continue to decline. Her testimony that S.S. had been treated with the antipsychotic Risperdal before, successfully and without adverse side effects, was uncontroverted and credited by the judge, who found that S.S. had a "favorable" prognosis if treated with antipsychotic medications. It was not an abuse of discretion to give greater weight to evidence of the efficacy of antipsychotic medications in stabilizing S.S.’s mental health, or to determine that S.S. -- if competent -- would choose a medication that lessened her symptoms of psychosis. See Guardianship of Roe, 383 Mass. at 447-448 (accepting proposition that "the greater the likelihood" of favorable prognosis, "the more likely an individual would be to submit to intrusive treatment").

Nor was it error to place S.S.’s stated aversion to treatment with antipsychotic medications within the context of her mental illness. Although "the incapacitated person's personal preference is regarded as a ‘critical factor’ in the judge's decision," Guardianship of L.H., 84 Mass. App. Ct. 711, 724 (2014) (Agnes, J., dissenting), the judge must also "tak[e] into account the present and future incompetency of the individual as one...