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SJC-12872

IN THE MATTER OF J.P.

Bristol. April 6, 2020. - October 28, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.1

Mental Health. Practice, Civil, Commitment of mentally ill 

person, Hearsay. Evidence, Hearsay, Medical record.

Petition for involuntary commitment filed in the New 

Bedford Division of the District Court Department on February 

16, 2018.

The case was heard by Bernadette L. Sabra, J.

The Supreme Judicial Court on its own initiative 

transferred the case from the Appeals Court.

Lois M. Farmer for J.P.

Richard F. Ready (Heidi A. Kostin also present) for 

Southcoast Behavioral Health.

The following submitted briefs for amici curiae:

Ruth A. Bourquin, Matthew R. Segal, Jessica J. Lewis, & 

Jessie J. Rossman for American Civil Liberties Union Foundation 

of Massachusetts, Inc., & another.

Karen Owen Talley, Committee for Public Counsel Services, 

Kathryn Rucker, Coco Holbrook, Jennifer Honig, & Tatum A. 

Pritchard for Committee for Public Counsel Services & others.

 

1 Chief Justice Gants participated in the deliberation on 

this case prior to his death.
2

Anna S. Richardson for Veterans Legal Services.

Lester D. Blumberg, Special Assistant Attorney General, for 

Department of Mental Health.

BUDD, J. The long-term involuntary civil commitment of 

persons with mental illness is only permissible if a judge finds 

proof beyond a reasonable doubt that discharge would create a 

likelihood of serious harm. See G. L. c. 123, §§ 7, 8; 

Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 

271, 276 (1978). Here, after an evidentiary hearing, a District 

Court judge issued an order to civilly commit J.P. for a period 

not to exceed six months. J.P. appealed from the Appellate 

Division's affirmance of the decision to the Appeals Court, and 

we transferred the case to this court on our own motion. We are 

asked to determine whether sufficient admissible evidence was 

presented to warrant an order of civil commitment pursuant to 

G. L. c. 123, §§ 7, 8. We conclude that the answer is yes.2

Background. 1. Standard for long-term civil commitment. 

By petitioning the district (or juvenile) court, the 

superintendent of a mental health facility may seek to commit 

involuntarily, for a period of between six and twelve months, an 

 

2 We acknowledge the amicus briefs submitted by the American 

Civil Liberties Union Foundation of Massachusetts, Inc., and the 

Massachusetts Coalition for the Homeless; by the Committee for 

Public Counsel Services, Center for Public Representation, 

Mental Health Legal Advisors Committee, and Disability Law 

Center; by Veterans Legal Services; and by the Department of 

Mental Health.
3

individual who has been admitted to the facility. G. L. c. 123, 

§§ 7 (a), 8 (d). For an order of commitment to be issued, the 

judge must find, after a hearing, that "(1) such person is 

mentally ill, and (2) the discharge of such person from a 

facility would create a likelihood of serious harm." G. L. 

c. 123, § 8 (a). Further, the judge must find that there is no 

alternative that is less restrictive than hospitalization. 

Commonwealth v. Nassar, 380 Mass. 908, 917-918 (1980).

The phrase "likelihood of serious harm" is statutorily 

defined as "(1) a substantial risk of physical harm to the 

person himself [or herself] 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." G. L. c. 123, § 1. The harm 

must be shown to be imminent, that is, it will materialize "in 

days or weeks rather than in months." Matter of G.P., 473 Mass.

112, 128 (2015). Each of the statutory requirements must be 
4

demonstrated beyond a reasonable doubt. Id. at 119. See 

Nassar, 380 Mass. at 913.

2. J.P.'s civil commitment hearing. On February 12, 2018, 

J.P. was transferred from St. Luke's Hospital (St. Luke's) 

emergency room to Southcoast Behavioral Health (SBH). SBH filed 

a timely petition for J.P.'s involuntary commitment pursuant to 

G. L. c. 123, §§ 7, 8, after J.P. requested to be discharged. 

In the petition, SBH alleged that, as a result of mental 

illness, J.P. presented both a risk of harm to others and a very 

substantial risk of harm to himself in that he was unable to 

protect himself in the community.3 SBH further alleged that 

civil commitment was the least restrictive alternative in the 

circumstances.

At the commitment hearing, J.P.'s treating physician, 

Ronald Lee, testified that, once at SBH, J.P. was uncooperative 

in providing information regarding his psychiatric history, 

although he did indicate that he previously had been 

hospitalized at other mental health facilities.4 J.P. also 

refused to allow the facility either to release information to, 

 

3 Southcoast Behavioral Health (SBH) did not allege that 

J.P. was suicidal.

4 J.P. indicated that he was originally admitted to St. 

Luke's Hospital (St. Luke's) as a result of a "209," which Dr. 

Lee interpreted to mean a 209A restraining order. However, SBH 

could not confirm that such an order had been issued against 

J.P., and the judge did not make reference to it in her

findings.
5

or obtain information from, his mother or any other providers 

involved in his care.

Dr. Lee, who diagnosed J.P. with schizoaffective disorder–

bipolar type, found J.P. to be unengaged, uncooperative, and 

unwilling to participate in treatment. Lee testified that J.P. 

was one of the most paranoid patients he had ever met as a 

physician at SBH. J.P. refused medication and often walked out 

during meetings with the doctor. J.P. also was hostile and 

aggressive toward the doctor. J.P. referred to Dr. Lee as a

"fucking punk" and a "fucking rat," and indicated that he could 

not work with the doctor because of the doctor's Asian 

ethnicity. Lee testified that, at one point during a meeting, 

as J.P. insisted to Lee that he did not have a psychiatric 

issue, J.P.'s jaw was clenched, his muscles were tensed, and he 

appeared to be bordering on lashing out. J.P. also warned the 

doctor that going forward with commitment proceedings would be a 

mistake. These interactions caused Lee to feel threatened at 

times.

According to the SBH medical records, J.P. told a different 

SBH doctor that he was able to "handle himself in a bar," 

stating, "I know what to do if anybody gets in my face." J.P. 

further revealed that he was trained in martial arts and 

"know[s] a few things." He also made threats to a nurse 

practitioner, telling her that if he did not get his 
6

(nonpsychiatric) medication, "something uncontrollable will 

happen and you won't like it."

Lee also reported that J.P. also had altercations with his 

peers during his stay. Two different patients reported to the 

doctor that J.P. had threatened their lives. In addition, 

J.P.'s roommate had to be moved out of the room for safety 

reasons.

The doctor also testified as to the content of the records 

from St. Luke's that accompanied J.P. when he transferred to 

SBH.5 According to those records, J.P. had threatened and 

exhibited paranoid behavior toward his mother. He accused his 

mother and neighbors of placing beer in his refrigerator. He 

also forced his mother to stay up at night to "keep a watch out" 

for him, telling her, "Don't you come back in the house."

J.P. presented his own expert witness, a doctor who 

examined J.P. the morning of the hearing. That doctor opined 

that J.P. suffered from a delusional disorder-paranoid type or 

paranoid schizophrenia, but disagreed that that J.P. met the 

criteria for involuntary civil confinement.

At the conclusion of the hearing, the judge found that J.P. 

suffered from a major mental illness, that discharge from SBH 

would create a likelihood of serious harm, and that there was no 

 

5 The records themselves were not offered as evidence at the 

hearing.
7

less restrictive alternative to involuntary civil commitment. 

The judge subsequently ordered J.P. civilly committed for a 

period not to exceed six months.6

Discussion.7 Here, we review the sufficiency of the 

evidence presented that, if released, J.P. posed a likelihood of 

serious harm as defined by the statute.8 As discussed supra, a 

likelihood of serious harm can be proved in one of three ways. 

SBH presented evidence from which the judge concluded that the 

facility met the criteria of two of the definitions: J.P. posed 

a substantial risk of physical harm to others as well as a very 

substantial risk to his own safety.9

In our review of the sufficiency of the evidence, we accept 

the findings of fact made by the hearing judge unless clearly 

erroneous; however, we review without deference whether the 

 

6 J.P. was ordered committed on March 6, 2018. Although the 

order of commitment expired on September 4, 2018, he was 

discharged from SBH on March 26, 2018.

7 We note that, although J.P. is no longer involuntarily 

committed to SBH, the matter is not moot. "[A]n individual has 

a personal stake in the outcome of litigating an appeal from an 

order of civil commitment, even after the individual is 

released." Matter of a Minor, 484 Mass. 295, 300 (2020). See 

Matter of F.C., 479 Mass. 1029, 1029-1030 (2018).

8 J.P. does not contest the finding of mental illness, nor 

does he contest the finding that hospitalization was the least 

restrictive alternative available in the circumstances.

9 SBH did not present evidence of the first prong, a 

likelihood of serious harm due to a substantial risk of suicide 

or other self-harm.
8

legal standard for civil commitment was met. See Matter of a 

Minor, 484 Mass. 295, 302 (2020).

1. Substantial risk of physical harm to others. To 

conclude that a person poses a substantial risk of physical harm 

to others, a judge must find either "[1] evidence of homicidal 

or other violent behavior or [2] evidence that others are placed 

in reasonable fear of violent behavior and serious physical harm 

to them." G. L. c. 123, § 1. With regard to this element, the 

judge focused on the second of the two alternative predicates,

finding a risk of physical harm based on evidence from J.P.'s 

stay at SBH, and the statements that his mother made that others 

were placed in reasonable fear of physical harm from him. The 

judge also found that J.P.'s judgment was so affected by his 

paranoia, agitation, and contrariness as to affect substantially 

the safety of others in the community (as well as his own).

J.P. argues that the evidence of his mother's statements 

was inadmissible hearsay, and that, without them, there was 

insufficient evidence of a substantial risk of physical harm to 

others.

a. Hearsay evidence. Statements made by J.P.'s mother 

were contained in the emergency room records from St. Luke's, 

about which Lee, the treating physician from SBH, testified at 

the hearing. The records were not admitted in evidence. J.P. 
9

argues that the judge improperly considered this evidence 

because it was inadmissible hearsay.10 We agree.

The mother's statements were hearsay because they were made 

out of court during a conversation with a social worker and were 

offered for their truth. Moreover, the statements were reduced 

to writing and included in records from which Lee testified. 

Thus, Lee's testimony regarding the records containing the 

mother's statements comprised three levels of hearsay. In order 

for this testimony to have been admissible, each of the hearsay 

statements had to have fallen within one of the exceptions to 

the hearsay rule. Commonwealth v. DePina, 476 Mass. 614, 623 

(2017).

SBH contends that the testimony regarding the mother's 

statements was admissible pursuant to G. L. c. 233, § 79, which 

permits the introduction of medical records as evidence of 

diagnosis, prognosis, and proximate cause of the condition 

diagnosed, among other things. The purpose of the statute is to 

"admit presumptively reliable evidence without the necessity of 

calling numerous hospital personnel as witnesses." Bouchie v. 

Murray, 376 Mass. 524, 528 (1978). However, the emergency room

records themselves were not admitted in evidence; thus, Lee's 

testimony regarding anything in those records, including the 

 

10 J.P. raised a timely hearsay objection to the testimony 

regarding the mother's statements at the hearing.
10

mother's statements, was hearsay that is not admissible under an 

exception to the rule.11 As this portion of Lee's testimony was 

inadmissible, we need not go on to examine the admissibility of 

the mother's hearsay statements within the emergency room

records.

However, we conclude that J.P. suffered no prejudice from 

the admission of this evidence. Although the judge indicated 

that she considered the mother's hearsay statements in 

concluding that J.P. posed a substantial risk of physical harm 

to other persons, she found that the mother was not the only one 

who reasonably feared physical harm from J.P. Because, as 

discussed infra, the evidence presented was sufficient for a 

finding of a substantial risk of physical harm without the 

mother's statements, J.P. was not prejudiced by their admission. 

See Commonwealth v. Evans, 439 Mass. 184, 191, cert. denied, 540

U.S. 923 and 540 U.S. 973 (2003) (admission of identification 

hearsay evidence not prejudicial where cumulative of other 

properly admitted evidence).

 

11 Even if Lee took the St. Luke's records into 

consideration when diagnosing J.P., an expert witness may not 

testify about evidence that formed the basis of their expert 

opinion but was not admitted in evidence. Commonwealth v. 

Goddard, 476 Mass. 443, 448 (2017), quoting Commonwealth v. 

Barbosa, 457 Mass. 773, 785 (2010), cert. denied, 563 U.S. 990 

(2011) ("experts are prohibited 'during [their] direct 

examination[s] from informing the jury about the facts or data 

[they] considered that were not in evidence but that would be 

admissible with the right witness or proper foundation'").
11

b. Sufficiency of the evidence. At the hearing, Lee 

testified to his personal experience with J.P. as J.P.'s 

treating physician, describing in some detail J.P's threats, 

menacing body language, and verbal abuse leading the doctor to 

feel threatened. There also was evidence of J.P.'s intimidating 

behavior toward others at SBH, including threats to kill two 

patients.12

J.P. contends that the evidence that others were placed in

fear was "subjective, speculative or unspecified" and thus it 

amounted to subjective fear rather than the objective

"reasonable fear" required by G. L. c. 123, § 1. We disagree. 

A showing of "evidence that others are placed in reasonable fear 

of violent behavior and serious physical harm" means presenting 

evidence that, in the circumstances, a reasonable person would 

fear violent behavior and serious physical harm, and that 

someone actually did fear violent behavior and serious physical 

harm. Unlike the first clause of the second prong, which 

requires a showing of "homicidal or other violent behavior" from 

the respondent, the second clause of the second prong requires a 

showing that those who interact with the respondent fear being 

subjected to "violent behavior and serious physical harm," and 

that such fear is reasonable. G. L. c. 123, § 1.

 

12 We note that the testimony regarding the patients' 

statements to Lee was not objected to at the hearing.
12

Here, from an objective viewpoint, the evidence presented 

of J.P.'s behavior, including his verbal threats and demeanor,

would cause a reasonable person to fear violent behavior and 

serious physical harm from J.P. Further, there was testimony 

from Lee of his fear of such an outcome. The judge further 

inferred that, given the descriptions of J.P.'s interactions 

with other medical providers and patients, others also feared 

violent behavior and serious physical harm. Thus, we conclude 

that there was sufficient evidence (even without the mother's 

statements) demonstrating beyond a reasonable doubt that others 

were placed in reasonable fear of imminent violent behavior and 

serious physical harm to them. See G. L. c. 123, § 1; Matter of

G.P., 473 Mass. at 126.

2. Very substantial risk of harm to self in the community.

The judge further concluded that there was sufficient evidence 

that without involuntary commitment, J.P. also posed a very 

substantial risk of harm to himself in the community because he 

would not be able to protect or care for himself. See G. L. 

c. 123, § 1. The evidence supporting this conclusion was not 

robust, and SBH did not press a sufficiency argument with regard 

to this prong. Because we have concluded that the evidence 

presented was sufficient to demonstrate likelihood of serious 

harm under the second prong, we need not address the sufficiency 

of the evidence to prove the third prong, including J.P.'s claim 
13

that SBH failed to prove that "reasonable provision for his 

protection [was] not available in the community." G. L. c. 123, 

§ 1.

However, we take this opportunity to address a footnote in

the Appellate Division's decision in which the court expressed 

the view that "homelessness, in and of itself, presents a very 

substantial risk of harm to a person [himself]" due to the 

"risks of theft, abuse, and violence" that the homeless 

population faces. It is true that homelessness can mean a lack 

of safety and stability, but that does not mean that 

homelessness, in and of itself, is sufficient to support a 

finding of a very substantial risk of harm to the person himself 

or herself. If it is to be used at all as part of the 

involuntary civil commitment analysis, it must be done with 

extreme caution.

Webster's Third New International Dictionary 1083 (1993)

defines "homeless" as "having no home or permanent place of 

residence." It is a broad term that may, but need not, be 

synonymous with living on the streets and being exposed to the 

attendant dangers that come with it.13 But even if a person does 

not have a place to stay and will be in a homeless shelter or on 

 

13 Here, J.P. testified that although he could not return to 

live with his mother, he had other options, including staying in 

a hotel and staying with friends.
14

the street, that is not proof that he or she will pose a 

substantial danger to himself or herself.

We further note that people become homeless for many 

reasons, including, but not limited to, being a domestic abuse 

survivor, being unemployed or underemployed, and falling on hard 

times.14 Mental illness may, or may not, be a factor. None of 

these conditions, including mental illness, necessarily means

that the person meets the criteria of the third prong, i.e., 

that there is, a "very substantial risk of physical impairment 

or injury to [that] person . . . as manifested by evidence that 

such person's judgment is so affected that he [or she] is unable 

to protect himself [or herself] in the community." G. L. 

c. 123, § 1. Thus, although homelessness may be part of the 

involuntary civil commitment analysis, it alone cannot suffice

to demonstrate a likelihood of serious harm to the person 

himself or herself under G. L. c. 123.

Conclusion. The judgment of the District Court judge is 

affirmed.

So ordered.

 

14 See National Law Center on Homelessness & Poverty, 

Homelessness in America: Overview of Data and Causes, at 3 

(Jan. 2015) (listing unemployment and low wages as among top 

causes of homelessness).