Heard: January 11, 2019.
for civil commitment filed in the Cambridge Division of the
District Court Department on July 11, 2016.
case was heard by Janet J. McGuiggan, J.
Owen Talley, Committee for Public Counsel Services, for the
E. Kobick, Assistant Attorney General, for Department of
Present: Hanlon, Lemire, & Wendlandt, JJ.
an appeal from a decision and order of the Appellate Division
of the District Court, affirming an order of involuntary
civil commitment for mental illness issued by a District
Court judge pursuant to G. L. c. 123, § 16 (b). The
question on appeal centers on whether the evidence was
sufficient to establish a "likelihood of serious
harm," as defined in G. L. c. 123, § 1. To answer
this question, we apply principles regarding the temporal
nature of evidence upon which this probabilistic assessment
particular, the petitioner, Worcester Recovery Center and
Hospital (WRCH), a Department of Mental Health (DMH)
facility, presented evidence that the respondent, D.K., had
required emergency hospitalization nearly two years earlier
when she was found in a life-threatening condition, severely
malnourished, and in a state of squalor, after failing to
take medication to treat her mental illness, schizophrenia.
We agree with D.K. that such evidence alone may be
insufficiently proximate in time to make the requisite
showing of imminence and risk under prong three of the
statutory definition of "likelihood of serious
harm." Here, however, WRCH also presented evidence that,
at the time of the civil commitment hearing, D.K. was
suffering from delusions of persecution, thought and
perceptual disturbances, and as had occurred prior to the
aforementioned emergency hospitalization, she was refusing
psychiatric treatment and declining to bathe or change her
clothing despite repeated offers of assistance by WRCH staff
members. Together with the evidence of the extreme state in
which she had presented in her prior hospitalization, this
evidence was sufficient to support the legal conclusion
required under prong three. Accordingly, we affirm.
that the civil commitment order expired before the Appellate
Division decided the appeal. "In the context of
involuntary hospitalization, '[a]lthough an expired or
terminated [commitment] order may no longer have operative
effect, [an] appeal should not be dismissed without
considering the merits of the underlying [commitment]
order.'" Matter of M.C., 481 Mass. 336, 343
(2019), quoting Matter of F.C., 479 Mass. 1029,
1029-1030 (2018). In light of this, D.K.'s "case is
not moot, and we decide [her] claims on the merits."
Matter of M.C., supra.
time of the civil commitment hearing, D.K. was thirty-one
years old. She was homeless and faced criminal charges of
three counts of trespass, pursuant to G. L. c. 266, §
120, one count of disorderly conduct, pursuant to G. L. c.
272, § 53, and one count of assault and battery on a
person age sixty or over or with a disability, pursuant to G.
L. c. 265, § 13K (a. 1/2) . A District Court judge
(trial judge) ordered a competency evaluation pursuant to G.
L. c. 123, § 15, which was done at WRCH. Following the
evaluation, D.K. was found incompetent to stand trial.
filed the present petition pursuant to G. L. c. 123, §
16 (b), seeking to commit D.K. for a period not to exceed six
months. At the civil commitment hearing before a different
District Court judge (hearing judge), WRCH presented evidence
that D.K. suffered from schizophrenia,  a mental disorder
of thought and perception. John V. Gilmore, Jr., a forensic
psychologist at WRCH, was WRCH's sole
witness. Dr. Gilmore testified that D.K. had
"delusions of persecution," including a belief that
"she was being targeted." Dr. Gilmore noted that
D.K. had "impairments in the form of her thinking,"
"apparent thought-blocking," and "thought
disturbance." Over the course of D.K.'s two-month
evaluation at WRCH, she was observed nine times
"appearing internally preoccupied, inappropriate[ly]
laughing as if responding to internal stimuli . . . [and]
complaining of perceptual disturbances." She was unable
to care for her hygiene and grooming, declining to shower and
wearing the same clothes despite repeated offers of
assistance from the staff. Although D.K. was consuming food
and fluids while she was in the WCRH's supervised
setting, Dr. Gilmore opined that, based on her current
symptoms and lack of treatment, D.K.'s judgment was so
impaired that she posed ...