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SJC

- 12183
IN THE MATTER OF N.L.

Middlesex. December 5, 2016.

- March 14 , 2017. Present: Gants, C.J., B otsford, Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Mental Health
. Practice, Civil , Commitment of mentally ill person, Continuance, Moot case. Moot Question
.

P etitions for civil commitment and to authorize medical treatment filed in the Cambridge Division of the District Court Department on November 3, 2014.
A motion for a continuance was heard by Roanne Sragow , J. , and the petitions were also heard by her. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Karen Owen Talley for the respondent
. Diane M. Geraghty Hall for the petitioner
. Anna Krieger, Robert D. Fleischner, Jennifer Honig , & Phillip Kassel , for Center for Public Representation & another, amici curiae, submitted a br ief.

LOWY, J. N.L. appeals from the order for his civil
commitment to a mental health facility (hospital) , pursuant to2

G. L. c. 123, §§ 7 and 8, and the order authorizing his treatment with antipsychotic medications pursuant to G. L.

c. 123, § 8B. He argues that the District Court judge improperly denied his prehearing request for a continuance to
allow time for his counsel to prepare an adequate defense and an independent medical examiner to complete a psychiatric
evaluation. W e transferred the case from the Appeals Court to this court on our own motion. We dismiss the appeal as moot but exercise our discretion to address the issue before us, which is whether a judge may deny a person's (or the person's counsel's) first request for a
continuance of a hear ing pursuant to G. L. c. 123, § 7 ( c ) or
8B. We hold that where a person or his or her counsel requests
such a continuance , the grant of the continuance is mandatory
whe re a denial thereof is reasonably likely to prejudice a person's ability to prepare a meaningful defense
. 1 Background
. 1. F acts . N.L. was admitted to the hospital on October 30, 2014, under the emergency hospitalization provisions of G. L. c. 123, § 12. On November 3, the hospital
filed a p etition for c ommitme nt pursuant to G. L. c. 123, §§ 7 and 8, and a p etition for d etermination of i ncompetency and for

a uthorization for m edical t reatment for m ental i llness pursuant

1 We acknowledge the amicus brief submitted by the Center for Public Representation and the Mental Health Legal Advisors Committee.3

to G. L. c. 123, § 8B . C ounsel was appointed for N.L
. The hearing on the petitions was scheduled for November 6. Due to administrative delays, counsel for N.L. did not receive a copy
of N.L.'s medical records un til November 5, the same day that an independent psychiatrist retained by counsel first met with N .L. On November 6, counsel for N.L. filed a motion to continue the hearing to allow him time to prepare a meaningful defense and to allow the independent medical examiner time to complete his
evaluation. The hospital opposed the motion on the grounds tha t delay would jeopardize N.L.'s safety. The judge denied the motion to continue without stating her reasons, and proceed ed with the commitment hearing
. T he judge then ordered N.L. to be involuntarily committed to the hospital for a period not to
exceed s ix months. Immediately f ollowing the commitment hearing, the incompetency and medical treatment hearing
commenced
. T he judge allowed the hospital's petition to treat
N.L. with antipsychotic medication against his will. N.L. timely appealed this decision to the Appell ate Division of the District Court Department
. In September 2015 , that court dismissed N.L.'s appeal as moot because he had since been discharged from the hospital, and the court declined to
reach his arguments because it held that the circu mstances of
the case were not "capable of repetition."4

2. Statutory overview
. General Laws c. 123, as is relevant here, provides for procedures to allow the involuntary civil commitment of persons with mental illness , and for the involuntary medical treatment of such persons .

a. Civil commitment hearings
. Sections 7 and 8 of G. L.

c. 123 address the long

- term commitment of persons with mental
illness. Under § 7 ( a ), the superintendent of any facility 2 may petition the District Court for the commitment of any patient 3 already at the facility. 4 A hearing on this petition must be conducted within five days of its filing , " unless a delay is requested by the person or his counsel ." G. L. c. 123, § 7 ( c ). Section 8 ( a ) provides that no person shall be committed unless the District Court finds 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. "

2 A "facility" is " a public or private facility for the care and treatment of mentally ill persons ." G. L. c. 123, § 1.

3 A "patient" is "any person with whom a licensed mental health professional has established a mental health professional

- patient relationship." G. L. c. 123, § 1.

4 Often , as was the case here, the individual is at the facility under the emergency restraint and temporary hospitalization provisions of G. L. c. 123, § 12, which allow for the commitment of an individual for a three

- day period
. G. L. c. 123, § 12 ( a ). S ee Newton

- Wellesley Hosp
. v. Magrini , 451 Mass. 777, 778

- 781 (2008), for a discussion of the temporary commitment provisions of G. L. c. 123, § 12.5

b. Involuntary medical treatment hearings
. Section 8B of
G. L. c. 123 deals with the treatment of committed persons with antipsychotic medications. If a civil commitment petition is filed under the provisions of G. L. c. 123, §§ 7 and 8, the superintendent of the facility may also petition the D istrict
C ourt under § 8B to allow the treatment of the person with antipsychotic medications against the person's will. The involuntary medical treatment petition may not be considered by the court unless it has already issued a civil commitment order for the person under §§ 7 and 8
. G. L. c. 123, § 8B ( b ) If an involuntary medical treatment petition is filed concurrently with a civil commitment petition

-- as was the case here

-- a hearing on both must commence on the same day
. 5 G. L. c. 123, § 8B ( c ). In such circumstances, this means that a continuance of a civil commitment hearing results in a continuance of the involuntary medical treatment hearing.

c. Individuals' r ights at hearings
. Section 5 of G. L.

c. 123 pertains to a person's rights at civil commitment and involuntary medical treatment hearings , including the right to counsel and the right to present independent testimony at the

5 If the involuntary medical treatment petition is not filed concurrently with the civil commitment petition (i.e. , the petition is filed after the person has been co mmitted for some period of time) , a hearing must occur within fourteen days of the filing of the petition, " un less a delay is requested by the person or his counsel ." G. L. c. 123, § 8B ( c )
.6

hearing. G. L. c. 123, § 5. An i ndigent person must be appointed counsel (unless he or she refuses the appointment of
counsel ), and the court may provide such a person with an indepen dent medical exam ination
. Id
. A person is allowed "not less than two days after the appearance of his counsel" to
prepare the case, and after this minimum period the hearing "shall be conducted forthwith . . . unless counsel requests a delay." Id
. Discussion
. 1. Mootness . Before N.L. 's appea l reached the Appellate Division, he was discharged from the hospital. Accordingly, the case is moot. " However, ' [i]ssues involving the commitment and treatment of mentally ill persons are generally consider ed matters of public importance ' and present

' classic examples ' of issues that are capable of repetition, yet evading review. " Newton

- Wellesley Hosp . v. Magrini , 451 Mass. 777, 782 (2008), quoting Acting Supt. o f Bournewood Hosp . v. Baker , 431 Mass. 101, 103 ( 2000 )
. Therefore, we exercise our discretion and decide the issue
. 2. Continuan ces for civil commitment and involuntary medical treatment hearings
. General Laws c. 123, § 7 ( c ) , provides that civil commitment hearings "shall be commenced7

within [five] days of the filing of the petition, unless a delay is requested by the person or his counsel." 6 Here, the word "unless" provides an exception to the general rule that civil commitment hearings must commence within five days of the filing of the petition. G. L. c. 123, § 7 ( c )
. See Hashimi v. Kalil , 388 Mass. 607, 609 (1983). When a "request" for a delay is made by either the person or his counsel, that general rule no longer applies and the hearing may commence beyond the mandatory five

- day window. G. L. c. 123, § 7 ( c )
. Although the statute is silent as to whether the presiding judge must grant such a "request , " we conclude that the plain language as well as the legislative intent of the statute require that the grant of a requested first continuance be mandatory whe re a denial thereof is reasonably likely to prejudice a person's ability to prepare a meaningful defense
. See Sullivan v. Brookline , 435 Mass. 353, 360 (2001) ( " statutory language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do

6 For clarity, the analysis will focus on the specific language of G. L. c. 123, § 7. However, G. L. c. 123, § 8B ( c ), and G. L. c. 123, § 5, contain language that is nearly identical to the "unless" clause of G. L. c. 123, § 7. Therefore, when a person or his or her counsel requests a delay under any of these provisions , the grant of it is mandatory when a denial thereof is reasonably likely to prejudice a pe rson's ability to meaningfully prepare a defense.8

so would achieve an illogical result " ). The Legislature could
have provide d discretion to a judge when a party makes a "request" and did so elsewhere in the same statute. See G. L.

c. 123, § 17 ( b ) ("If the court in its discre tion grants such a request . . . "). Further, any interpretation not making the grant of a continuance m andatory (absent a showing that denial
of the continuance is not reasonably likely to prejudice a person's ability to prepare a meaningful defense ) ignores the
word "unless" in the statute. See Sullivan v. Ward , 304 Mass. 614, 615

- 616 (1939). This interp retation is consistent with the Legislature's
intent to afford individuals more due process in civil commitment and medical treatment hearings than had been available previously
. Newton

- Wellesley Hosp
. , 451 Mass. at 784. Prior to 2000, the statutory period for conducting the hearing was fourteen days and has since been statutorily reduced to
five. 7 G. L. c. 123, § 7 ( c ), as amended by St. 2004, c. 410, § 1. T hese amendments make it clear that the Legislature intended to protect the individual's due process rights by minimizing the length of time for which he or she could be involuntarily committed prior to judicial review
. See District

7 In 2000, the number of days was reduced from fourteen to four and in 2004 the number was increased to five, and has remained there since. See G. L. c. 123, § 7 ( c ), as amended by St. 2000, c. 249, § 1 , and St. 2004, c. 410, § 1
.9

Court Committee on Mental Health and Retardation, Report of the
Ad Hoc Committee to Review G. L. c. 123, § 12 , at 1, 4 (Oct. 21, 1997) (recommending reduction in period between filing of petition and commencement of hearing pursuant to G. L. c. 123, §§ 7 and 8). T his reduced time frame may be insufficient to
prepare a meaningful defense in some cases, but the person' s due
process right are further protected by the "unless" clause in
the statute , which create s a mechanism by which a person could delay the proceeding. See G. L. c. 123, § 7 ( c ). See also
G. L. c. 123, § 8B ( c ). It is illogical that the Legislature
would shorten the period for conducting these hearings and have
it inure to the detriment of the individual's due process right
to prepare a meaningful defense
. The length of the continuance is within the sound
discretion of the judge. The length of the delay , however,
should be only as long as is reasonably necessary to protect the individual's right to prepare a meaningful defense. 8 In

8 We note that t he legislative scheme contemplates that an adequate case may be prepared in two days , although this time frame may not be appropriate in all cases . See G. L. c. 123, § 5 ("The person shall be allowed not less than two days after the appearance of his counsel in which to prepare his case and a hearing shall be conducted f orthwith after such period unless counsel requests a delay ").10

addition, this determination should be made solely with the patient's interests in mind
. 9
Where a judge denies the requested continuance she must
state with particularity the reasons why the denial is not reasonably likely to prejudice a person's ability to prepare a meaningful defense on the record. Because the denial of a continuance will require the careful balancing of the due process rights of the person against any countervailing factors,
t hese findings will be reviewed under an abuse of discretion
standard. We recognize that tension exists betw een a person's potentially urgent medical needs and that person's due process right to prepare a meaningful defense
. Although the task of medical professionals in treating such persons may be challenging , under the statutory provisions at issue, expediency of treatment may not impinge on a person's right to prepare a
defense. Procedures are in place to temporarily treat individuals while they await civil commitment hearing s . See,
e.g., Rogers v. Commissioner of the Dept. of Mental Health , 390
M ass. 489 , 510

- 511 (1983)
. The infringement of a person's

9 Although the statutes are designed to protect a person's right to prepare a me aningful defense, any delay will necessarily require that a person remain committed without judicial review for an additional length of time. A lengthy delay also may adversely affect a patient's medical situation, and it may be appropriate for a judge to consider this when determining the length of the continuance.11

liberty interest resulting from in voluntary commitment for six
months is " massive " and should only be undertaken after the person has the opportunity to prepare a meaningful defense
. See
Newton

- Wellesley Hosp
. , 451 Mass. at 784 , quoting Commonwealth

v. N assar , 380 Mass. 908, 917 (1980).
Conclusion
. T he grant of a first request for a continuance pursuant to G. L. c. 123, § 7 ( c ) or 8B ( c ) , is mandatory whe re

a denial thereof is reasonably likely to prejudice a person's ability to prepare a meaningful defense. N.L.'s appeal is
dismissed as moot.
So ordered
.