Committee for Public Counsel Services

Commonwealth v. Lo, 428 Mass. 45 (1998).
While the videotaping of a court-ordered criminal responsibility evaluation (ordered pursuant to G.L. c. 123, § 15; Mass.R.Crim.P.14(b)(2)(B)) "might be a sound idea," it is within the court's discretion to require such videotaping. "Wide-ranging cross-examination [of the commonwealth's expert], including inquiry as to why an accurate record was not made of [the] psychiatric interview, is the appropriate antidote to potential overreaching, bias, or mischaracterization of evidence [ ]." Lo, at 48. See, also, Commonwealth v. Delaney, 404 Mass. 1004 (1989)(videotaping permissible in the court's discretion); Commonwealth v. Baldwin, 426 Mass.105 (1997)(audiotaping within the court's discretion); Commonwealth v. Trapp, 423 Mass. 356 (1996)(decision to undergo psychiatric evaluation critical stage of criminal process, entitling defendant to assistance of counsel, but psychiatric interview itself not critical stage. Therefore, no right to presence of counsel at court-ordered evaluation).

COMPETENCE TO STAND TRIAL; COMPETENCE TO REPRESENT SELF; CRIMINAL RESPONSIBILITY

Commonwealth v. Simpson, 428 Mass.646 (1999).
In Commonwealth v. Simpson, 44 Mass.App.Ct. 154 (1998) (see below), the Appeals Court had reversed pro se defendant's convictions where defendant's opening statement and subsequent behavior should have raised sufficient doubt as to his competence to stand trial and to represent himself. On review, the SJC held that reversal of the conviction was not warranted and that the issue of defendant's competence instead should be presented by means of a motion for new trial.

Commonwealth v. Federici, 427 Mass. 740 (1998).
Against defense counsel's advice, the defendant refused to permit counsel to raise a lack of responsibility defense and declined the court's invitation for an instruction on responsibility. On appeal, the defendant asserted that the trial court, knowing of counsel's disagreement with defendant's decision to forego the defense, should have undertaken on its own motion to determine whether defendant was competent specifically to waive the defense and that such waiver was knowing and voluntary. The SJC affirmed the conviction. Where defense counsel and defendant disagree as to trial strategy, a competent (to stand trial) defendant who has been "fully advised beforehand of the consequences of his actions by both defense counsel and the judge[.]" calls the shots. Federici, at 744-45. The court chose not to address the defendant's argument that a waiver of the lack of responsibility defense must be "knowing, intelligent and voluntary" (i.e., that competence specific to the insanity defense must be determined), noting that the record adequately demonstrated that the defendant's decision was knowing, intelligent and voluntary. Id. at 746 nt.5. (The defendant had been evaluated for competency to stand trial on three occasions during the proceedings and again after he declined the court's invitation for a responsibility instruction.)

In re: Jane Doe, Norfolk County Probate and Family Court, 12/21/98 (Shaevel, J.).
In perhaps the only appellate-level Massachusetts decision in which the commencement or termination of life-saving, -supporting or -prolonging treatment for an incompetent patient was found not to require a "substituted judgment" determination, the Appeals Court held in 1978 that the entry of a "do not resuscitate" or "no code" order did not require prior judicial approval. In the Matter of Shirley Dinnerstein, 6 Mass.App.Ct. 466 (1978). In this (Jane Doe) case, the court found that Ms. Doe's situation was distinguishable from Ms. Dinnerstein's in two significant ways: unlike Ms. Dinnerstein, Ms. Doe had no involved family and the court had been supervising Ms. Doe's circumstances, through guardianship proceedings, for some time. Thus, the court held that "this issue is best resolved by requiring a judicial determination in accordance with the substituted judgment doctrine enunciated in Saikewicz."

Myers v. Saccone, Appellate Division of the Boston Municipal Court Department, No. 002214 (12/30/99)
A reiteration of the SJC's ruling in Hashimi v. Kalil: Timelines established in G.L. c.123 are mandatory. Thus, absent client's consent to a continuance, court must dismiss commitment petition where hearing is not commenced within statutorily prescribed 14 days (G.L. c. 123, § 7(c)).

In the Matter of , Hampden Superior Court No. 99-1113 (3/2/00)
Commitment requires finding of current substantial risk of physical harm to self or others. Substantiality of risk involves balancing probability, gravity and imminence of potential harm.

Theresa Canavan's Case, 432 Mass. 304 (2000)
Expert (i.e., opinion) testimony/evidence is admissible only if the theory and methodology by which the witness arrives at his/her opinion are reliable. Commonwealth v. Lanigan, 419 Mass. 15 (1994); see also Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Where an opinion's admissibility is challenged, the proponent of the evidence must lay an adequate foundation "either by establishing general acceptance in the (relevant) scientific community or by showing that the evidence is reliable or valid through an alternate means." Commonwealth v. Sands, 424 Mass. 184, 185-186 (1997). In the instant case, the SJC held that the "abuse of discretion" standard is to be applied upon appellate review of a trial court's determination of the admissibility of proffered expert testimony.

Commonwealth v. Stroyny, 435 Mass. 635 (2002)
DA not to receive court-ordered criminal responsibilty report (G.L. c. 123, § 15(b)) or speak with examiner about report until court determines defendant has waived privilege against incrimination in accordance with Mass.R.Crim.P. 14(b) and Blaisdell. DA should immediately terminate conversation with examiner when breach of privilege becomes apparent.

Commonwealth v. Wentworth, 53 Mass.App.Ct. 82 (2001)
With attendance and assistance of clinician at trial, Defendant able to assist counsel. Therefore, Defendant is competent to stand trial.

United States v. Abreu, 202 F.3d. 386 (1st Cir. 2000)

Under the Criminal Justice Act, 18 U.S.C. § 3006A, indigent defendants in federal court criminal proceedings may request funds for expert services on an ex parte basis. Id. at 389-390. In this case, the district court violated the statute by refusing to permit the defendant to submit his application for funds ex parte. Id. at 391. The First Circuit further held that fairness requires that indigent defendants be permitted to make requests for funds ex parte:

[Practice Tip: To avoid disclosure to opposing parties, counsel also must file a motion to impound the ex parte motion for costs. If a court refuses to hear a motion for costs ex parte, counsel should consider filing a motion to file the motion for costs ex parte, which may be done without revealing any confidential information. If that is denied, counsel may attempt to seek relief from a single justice under G.L. c. 211, § 3 (SJC) or G.L. c. 231, § 118 (App. Ct.).]

COMPETENCY TO STAND TRIAL: ADMINISTRATION OF ANTIPSYCHOTIC MEDICATION TO RESTORE

U. S. v. Gomes, F. 3d , (2nd Cir. 4/24/02)
Heightened, but not strict, scrutiny is appropriate standard for determining when non-dangerous criminal defendant may be forcibly medicated with antipsychotic drugs to render him competent to stand trial. The government must show, by clear and convincing evidence, (1) that proposed treatment is medically appropriate, (2) that it is necessary to restore defendant to trial competence, (3) that defendant can be fairly tried while under the medication, and (4) that trying defendant will serve an essential government interest. Governmental interest in prosecuting criminal acts is generally essential, but case specific -- factors bearing on interest include whether crime is one that is broadly harmful (e.g., drug trafficking, scheme of health care fraud); whether it is classified as a felony and carries substantial penalty; and whether defendant poses a danger to society, based on charged conduct, past conduct, or both. Court ordering involuntary medication must closely monitor process to ensure dosage properly individualized to defendant, that it continues to be medically appropriate, and that it does not deprive defendant of fair trial or effective assistance of counsel. [See, also, U.S. v. Weston, 255 F.3d 873 (D.C. Cir. 2001) (may order antipsychotic medication where meds. medically appropriate and restoring defendant to competency is necessary to accomplish essential state policy)] -- SEE SELL v. U.S.

Summary: Where principal does not object, and where health care instrument is silent on issue, a health care agent is permitted to consent to incompetent principal's admission to a mental health facility on conditional-voluntary status. Where principal subsequently indicates her desire to leave, health care proxy is revoked; facility properly treats such desire as 3-day notice and petitions for further commitment pursuant to G.L.c.123, §7.

We have been asked to determine whether the Massachusetts health care proxy statute, G. L. c. 201D (proxy statute), authorizes a proxy agent to commit a principal to a mental health facility. The question arises because the proxy statute does not address the issue directly, and commitment to such a facility, unless voluntary, produces a loss of freedom as well as the stigma of mental illness. See Doe v. Doe, 377 Mass. 272, 280-281, 385 N.E.2d 995 (1979); Superintendent of Worcester State Hosp. v. Hagberg, 374 Mass. 271, 276, 372 N.E.2d 242 (1978). We conclude that, absent an express limitation by the principal in the health care proxy itself, the proxy statute does not prevent an agent from making that treatment decision, provided the principal does not object. If the principal objects, or if she revokes her proxy after it has been activated, the proxy statute provides that the agent has no further authority to make treatment decisions -- including the commitment or retention of the principal at a mental health facility -- without a court determination that the principal is incapacitated. See G. L. c. 201D, § 6, sixth par., § 7, second par.

In this case the hospital sought to commit the objecting principal under G. L. c. 123, §§ 7, 8, the involuntary commitment statute, whereupon a judge in the Probate and Family Court made a determination that commitment was in the best interests of the principal and that there was a likelihood of serious harm if she was not committed. G. L. c. 123, § 12 (d). There is therefore no basis on which to conclude that the involuntary commitment of the principal in this case was improper. We need not and do not decide whether, had a judicial determination been sought and obtained that the principal was incapacitated (G. L. c. 201D, § 6), commitment by the agent over the principal's objection would have contravened the requirements of G. L. c. 201D, G. L. c. 123, §§ 7, 8 (involuntary commitment), or any other provision of law.

1. Background. In 1998, Helen Bolduc, then seventy-four years old, executed a prototypical health care proxy, in which she authorized her daughter, as her agent, to make health care decisions on her behalf in the event she was unable to consent to them. Bolduc's health care proxy provided, in relevant part:

By its express terms, the proxy placed no limitations on the authority of Bolduc's agent.

In June, 2000, the proxy was activated while Bolduc was a resident of the Forestview Nursing Home in Warren. Her attending psychiatrist determined that she was suffering from auditory hallucinations and paranoid and psychotic thought, and that she lacked the capacity to make or communicate health care decisions, the proxy's triggering event. She was admitted to McLean Hospital (hospital) under the emergency hospitalization procedures specified in G. L. c. 123, § 12 (a). <2> Her attending psychiatrist entered in Bolduc's record his determination that she was incapable of making or communicating health care decisions, thereby activating the proxy. See G. L. c. 201D, § 6. On July 2, Bolduc's daughter, acting as her health care proxy agent, converted Bolduc's status at the hospital to "conditional voluntary" by executing on Bolduc's behalf an application for "conditional voluntary" admission, which was accepted. <3> See G. L. c. 123, § 12 (c). <4> Under "conditional voluntary" status there were no temporal limits on Bolduc's confinement. See G. L. c. 123, § 10. <5> Had her agent not converted Bolduc's status, the hospital would have been required to file a petition to retain Bolduc on an involuntary basis within ten (now four) days of Bolduc's emergency admission. See G. L. c. 123, § 12 (d), inserted by St. 1986, c. 599, § 38. <6>

On August 7, Bolduc executed a written revocation of her proxy, and indicated her intention to leave the hospital. <7>The record does not reveal the circumstances that triggered Bolduc's action. Two days later the hospital filed in the Cambridge Division of the District Court Department a petition for involuntary commitment under G. L. c. 123, §§ 7 and 8, seeking to retain Bolduc at the hospital involuntarily. <8>,<9>

Bolduc filed a motion to dismiss the hospital's petition on the ground that it was not timely filed. She claimed that her agent lacked the authority under the proxy to convert Bolduc's status at the hospital to "conditional voluntary," and that the hospital's petition for involuntary commitment was therefore beyond the ten-day period within which to file a petition. G. L. c. 123, § 12 (d). See note 6, supra. The motion judge disagreed and, after a hearing, found that Bolduc was mentally ill and that failure to retain her at the hospital would create a likelihood of serious harm. <10>He denied Bolduc's motion to dismiss, and entered a six-month order of commitment. Bolduc filed an expedited appeal to the Appellate Division of the District Court Department. See Dist./Mun. Cts. Appellate Division Appeal Rule 8A (West 2001).

Prior to oral argument before the Appellate Division, Bolduc was discharged from the hospital. The Appellate Division held that Bolduc's challenge to the order of commitment and the issues raised by her were moot, but addressed the merits of the claims as concerning matters of public importance "capable of repetition, yet evading review." Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103, 725 N.E.2d 552 (2000), quoting Guardianship of Doe, 391 Mass. 614, 618, 463 N.E.2d 339 (1984). The Appellate Division agreed with the motion judge and dismissed Bolduc's appeal. Bolduc appealed, and we granted her application for direct appellate review. We affirm the order of the motion judge denying Bolduc's motion to
dismiss.

2. Commitment to a mental health facility where the principal does not object to treatment. In response to advances in medical technology that have made it possible to maintain and prolong life in circumstances previously not possible, every State has enacted legislation permitting individuals to give advance directives for health care decisions should they become incapable of communicating their own wishes. <11> First adopted in 1990, St. 1990, c. 332, § 1, the Massachusetts proxy statute entitled, "An Act providing for the execution of health care proxies by individuals," reflects one of several approaches to the subject. Written in broad terms, it allows an appointed agent to make "any and all health care decisions" if granted such authority by a principal. <12> G. L. c. 201D, § 5. Advance directive statutes can apply to physical or mental conditions, or (as in Massachusetts) to both. G. L. c. 201D, §§ 1, 5. One aspect of mental health treatment -- whether an advance directive should convey the authority to commit a principal to a mental health facility -- has been the subject of some debate among commentators, <13> is the subject of a uniform law promulgated by the National Conference of Commissioners on Uniform State Laws, <14> and has been regulated in different ways in different States. The Massachusetts proxy statute does not address the subject. In contrast, twenty-five other States have enacted statutes that do. Ten States allow advance directives for mental health treatment, but prohibit any commitment -- voluntary or involuntary -- by the agent. <15> Three States allowing such directives prohibit only involuntary commitment. <16> Eight States allow commitment only if expressly authorized by the principal in her proxy, in some cases for limited periods only. <17> Four other States permit a principal to authorize an agent to admit the principal to a mental health facility provided that the authority is conferred in a document separate from a general durable power of attorney concerning, for example, property or financial assets. <18> The statutes in the last two categories (notes 17 and 18, supra) are silent as to involuntary commitment and, to our knowledge, no court has sanctioned indefinite involuntary commitment to a mental health facility even where there is express statutory authorization for voluntary commitment. See note 14, supra.

Because the Massachusetts proxy statute does not address the issue, we must determine whether authority to commit is implicit in our statutory scheme. <19> Bolduc did not object to her initial commitment to the hospital, and we consider first the agent's authority to act, unopposed by her principal. General Laws c. 201D, § 2, provides that "every competent adult shall have the right to appoint a health care agent by executing a health care proxy." Section 5 of the statute provides that an agent "shall have the authority to make any and all health care decisions on the principal's behalf that the principal could make, including decisions about life-sustaining treatment, subject, however, to any express limitations in the health care proxy." "Health care," in turn, is defined as "any treatment, service or procedure to diagnose or treat the physical or mental condition of a patient" (emphasis added). G. L. c. 201D, § 1. Bolduc argues that commitment to a mental health facility is beyond the scope of "treatment" as defined in the statute, and that the Legislature could not have intended to permit such commitment without a judicial finding in every case that failure to commit would create a likelihood of serious harm. We disagree with both propositions.

There is no indication in the proxy statute that the Legislature intended the scope of "treatment" to be limited. General Laws c. 201D, § 5, is sweeping in its scope -- "any and all health care decisions." "Health care" is broadly defined, and does not limit an agent's authority regarding any particular areas of treatment. By referring specifically to the "mental condition" of a principal, the Legislature plainly contemplated an agent's authorizing some mental health treatments, again without limitation. <20> Other provisions of the statute suggest that commitment to a mental health facility is indeed within the contemplated authority of a health care agent. The conflict of interest provision of the statute is one such indication.

Section 3 of the proxy statute prohibits the appointment of health care agents who may have a conflict of interest with a principal, defined as "operators, administrators or employees" of a "facility" at which the principal is a patient, resident, or applicant for admission when she executes the proxy. ,<21> G. L. c. 201D, § 3. "Facility" includes "any private, county or municipal facility . . . which offers . . . residential or day care services and is represented as providing treatment of persons who are mentally ill." G. L. c. 19, § 19. <22> Thus, the proxy statute explicitly restricts operators, administrators, or employees of a facility that provides "treatment of persons who are mentally ill" from acting as proxy agents. <23> The Legislature must surely have intended treatment at mental health facilities to come within the definition of health care "treatment," or the conflict of interest provisions as applied to persons who are mentally ill would be redundant. See Hoffman v. Howmedica, Inc., 373 Mass. 32, 37, 364 N.E.2d 1215 (1977) (statutory language principal source of insight into legislative purpose).

Denying a health care proxy agent the authority to commit her principal to a mental health facility would also frustrate the evident purpose of the proxy statute: to support and enhance patient autonomy, while ensuring the principal's control over her health care decisions. Every person has a "right" under the proxy statute to appoint a health care agent, who is granted the authority to make health care decisions on her behalf as if she had made the decisions herself. G. L. c. 201D, § 2. The agent's decisions are to be made from the principal's perspective: they must be in accordance with an "assessment" of her "wishes," or, if her wishes are unknown, an "assessment" of her "best interests." G. L. c. 201D, § 5. Any decisions not expressly prohibited by the principal have the "same priority over decisions by any other person" as if the principal had made them. Id.
The proxy statute thus ensures that a patient's right of autonomy and self-determination with regard to medical care is respected, even after she loses the capacity to make and communicate her wishes. <24>

Restricting the range of choices available to a person who enters into a proxy arrangement would hinder the control over medical decision-making the statute seeks to foster. See G. L. c. 201D, § 4 (iii) (health care proxy shall "describe the limitation, if any, that the principal intends to impose upon the agent's authority").

Contrary to Bolduc's claim, permitting an agent to commit her principal to a mental health facility where the principal does not object is also consistent with our case law concerning the rights of incompetent patients with regard to health care decision-making. <25> Respect for patient autonomy does not end when a patient becomes incapable of making her own decisions. See Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 746, 370 N.E.2d 417 (1977) ("To protect the incompetent person within its power, the State must recognize the dignity and worth of such a person and afford to that person the same panoply of rights and choices it recognizes in competent persons"). We give effect to those rights by using a substituted judgment standard to approximate best what the incompetent person would have wanted were she able to communicate her wishes. See, e.g., Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 501-502, 512, 458 N.E.2d 308 (1983) (substitute judgment determination must be made before administration of antipsychotic drugs to incompetent patient); Superintendent of Belchertown State Sch. v. Saikewicz, supra at 752-753 (right of incompetent person to refuse treatment for life-threatening illness requires substituted judgment). By executing a health care proxy, a principal determines in advance that a person of her choice (rather than a judge) will make such medical decisions on her behalf. Reading into the proxy statute a restriction on her agent to act in one set of circumstances -commitment to or retention at a mental health facility where the principal does not object -- would contravene the principles of individual autonomy embodied in this statute and expressed in our case law.

Bolduc argues that inferring an agent's authority to order treatment in a mental facility when the principal does not object would nevertheless effectively deprive the principal of her right not to be restrained in such a facility without due process of law. Two provisions of the proxy statute mitigate this legitimate concern. The Legislature has provided that, even after a medical determination of incapacity has been made, a principal's wishes will always prevail over those of her agent, unless a judicial determination of her incapacity is obtained. Thus, G. L. c. 201D, § 6, specifies:

The statute also recognizes a principal's right to revoke the proxy, both before and after it is activated, and the principal is "presumed to have the capacity to revoke a health care proxy unless determined otherwise pursuant to a court order." G. L. c. 201D, § 7. Revocation is simple and can be accomplished by "notifying the agent or a health care provider orally or in writing or by any other act evidencing a specific intent to revoke." Id. The principal need not know that revocation of the proxy would prevent commitment to a mental health facility; objection by the principal to any treatment decision of the agent -- including commitment to or retention at a mental health facility -- requires nothing more than signifying her objection. It is as simple as saying "no." <26>

Bolduc's proxy placed no limitation on her agent's authority; it specifically authorized her agent to hospitalize her. There is no reason to infer that at the time she executed the proxy, Bolduc did not wish to convey to her agent the power to commit her to a mental health facility, should the agent deem it in her best interests. There is no indication in the record that Bolduc protested her admission to McLean Hospital, nor any indication that she objected to her hospitalization during the first thirty-five days of her treatment. We would fail to respect Bolduc's own "right," G. L. c. 201D, § 2, to make treatment decisions through a proxy of her choice were we to read into the statute a restriction on her agent's authority to commit her to a mental health facility. The motion judge properly determined that a health care proxy agent does have the authority to commit a principal to a mental health facility, provided the principal does not object.

3. Commitment to a mental health facility where the principal objects to treatment. The respect for individual autonomy and self-determination reflected in the proxy statute and that has shaped our jurisprudence requires that we honor the desires of an individual expressed in her health care proxy. The right to refuse medical treatment is founded on those same values, and the Legislature has made clear that a principal retains her right of self-determination concerning medical treatment she chooses not to receive. Thus, even after a proxy has been activated, the principal may disagree with her agent, in which event "the principal's decisions shall prevail." G. L. c. 201D, § 6. The principal may also revoke her proxy at any time. G. L. c. 201D, § 7. In both cases the agent has no further authority to make treatment decisions, including the commitment or retention of the principal at a mental health facility, without judicial intervention. See G. L. c. 201D, §§ 6, 7.

Where there is disagreement between the principal and her agent, on application to affirm the agent's authority over the principal, the statute directs a judge to determine whether the principal "lacks capacity to make health care decisions." G. L. c. 201D, § 6. Where there is revocation, the principal is "presumed" to have the capacity to revoke her proxy "unless determined otherwise pursuant to court order." G. L. c. 201D, § 7.

In this case, when the hospital received Bolduc's written notice that she had revoked her proxy and that she wanted to leave the hospital, see note 7, supra, the hospital correctly determined, in its words, that it had "no further legal authority to retain her at [its] facility." It thereupon immediately filed a petition for involuntary civil commitment, G. L. c. 123, §§ 7, 8, and sought judicial permission to retain Bolduc against her will. In so doing the hospital's treating physician represented to the court that he had determined that failure to hospitalize Bolduc would create a likelihood of serious harm by reason of mental illness, and provided the court with reasons for his diagnosis. See G. L. c. 123, § 7. A judge in the District Court thereafter found that
Bolduc was mentally ill and that her discharge from the hospital would create a likelihood of serious harm, as required by G. L. c. 123, § 8. See notes 9 and 10, supra.

In the circumstances of this case, therefore, Bolduc's argument that she was denied due process of law in connection with her retention at the hospital fails: she received adequate process to protect her rights to refuse medical treatment. See Doe v. Doe, 377 Mass. 272, 280-281, 385 N.E.2d 995 (1979); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 746, 752-753, 370 N.E.2d 417 (1977). Because the hospital proceeded under the involuntary commitment statute, there was no need for a judicial determination of Bolduc's "incapacity" under G. L. c. 201D, §§ 6 or 7. We therefore need not and do not decide whether commitment over Bolduc's objection would have contravened G. L. c. 201D, G. L. c. 123, §§ 7, 8 (involuntary commitment), or any other provision of law had the hospital not proceeded as it did.

3. A guardianship petition was also filed in the Probate and Family Court Department and on July 25, 2000, a judge appointed Bolduc's two daughters (one of whom was her health care agent) as her temporary guardians with the authority to monitor the administration of antipsychotic medication. The order did not authorize the temporary guardians to admit Bolduc to a mental health facility. See G. L. c. 201, § 6.

4. General Laws c. 123, § 12 (c), provides: "No person shall be admitted to a facility under the provisions of this section unless he, or his parent or legal guardian in his behalf, is given an opportunity to apply for voluntary admission under the provisions of paragraph (a) of section ten . . . ."

5. General Laws c. 123, § 10, provides that a person "in need of care and treatment" may be voluntarily admitted to any "facility . . . suitable for such care and treatment" on application: "(1) by a person who has attained the age of sixteen, (2) by a parent or guardian of a person on behalf of a person under the age of eighteen years, and (3) by the guardian of a person on behalf of a person under his guardianship." The regulation governing eligibility for voluntary or conditional voluntary admission states that "a person must be competent to apply for such admission, and desirous of receiving treatment." 104 Code Mass. Regs. § 27.06(1)(b) (1997). "Competent means: . . . that a patient admitted on a conditional voluntary status
understands that he or she is in a facility for treatment, understands the three-day notice provisions, and understands the facility director's right to file a petition for commitment and thereby retain him or her at the facility." 104 Code Mass. Regs. § 27.06(1)(d)(2) (1997).

6. In June, 2000, when Bolduc was admitted to McLean Hospital, G. L. c. 123, § 12, permitted an emergency hospitalization for a period of up to ten days. See G. L. c. 123, § 12, inserted by St. 1986, c. 599, § 38. The Legislature has since amended that section, which now limits emergency hospitalization to four days. See G. L. c. 123, § 12 (d), as amended by St. 2000, c. 249, § 5 (effective Nov. 11, 2000).

7. The revocation consisted of two sentences: "I, Helen Bolduc, do hereby revoke any and all Health Care Proxies that I may have executed in the past. I want to leave the hospital." The hospital treated Bolduc's statement as a three day notice of termination of her "conditional voluntary" admission status. See G. L. c.123, § 11. The hospital was correct to do so. Title 104 Code Mass. Regs. § 27.06 (5) (1997) provides: "The form and content of [the] three day notice . . . shall be deemed sufficient so long as it conveys the patient's intention, without requirement that it be on any particular form of the facility."

8. General Laws c. 123, § 7, provides in relevant part: "The superintendent of a facility may petition the district court . . . in whose jurisdiction the facility is located for the commitment to said facility and retention of any patient at said facility whom said superintendent determines that the failure to hospitalize would create a likelihood of serious harm by reason of mental illness."

9. General Laws c. 123, § 8, provides in relevant part: "After a hearing, unless such hearing is waived in writing, the district court . . . shall not order the commitment of a person at a facility or shall not renew such order unless it 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."

10. The judge signed a preprinted form ordering Bolduc's commitment for six months. Implicit in his order is a finding that failure to retain Bolduc at the hospital would present a likelihood of serious harm, although the judge did not so indicate in a section of the form that provides for that determination.

11. Advance directive statutes are intended to permit and maximize personal control over health care decision-making, which includes permitting individuals to express their health care desires in a manner that will be respected when they are no longer able to do so. A helpful (but no longer current) summary of the advance directive statutes enacted in all States is contained in Fleischner, Advance Directives for Mental Health Care, 4 Psychol., Pub. Pol'y & L. 788, 796-804 (1998). The advantages of such statutes have also been recognized by Congress: 42 U.S.C. § 1395cc, requires all health care providers receiving Medicare or Medicaid funds to inform all adult patients of their right to execute an advance directive concerning medical care. The Federal law also requires that health care providers educate their staff and the community about the law. See id.

12. Unlike some States, the Massachusetts statute does not provide for instructional, as opposed to agent-delegated, advance directives, and has no "living will" provision.

13. See, e.g., Winick, Advance Directive Instruments for Those with Mental Illness, 51 U. Miami L. Rev. 57, 81-85 (1996); Dresser, Ulysses and the Psychiatrists: A Legal and Policy Analysis of the Voluntary Commitment Contract, 16 Harv. C.R.-C.L. L. Rev. 777 (1982).

14. In 1993 the National Conference of Commissioners on Uniform State Laws promulgated the Uniform Health-Care Decisions Act, 9 (Part IB) U.L.A. 144 (Master ed. 1999), which some States have adopted in whole or in part. In 1999 the Commissioners amended § 13 of the Uniform Act to provide that the Act "does not authorize an agent or surrogate to consent to the admission of an individual to a mental health-care
institution unless the individual's written advance health-care directive expressly so provides." Id. at § 13 (e). The Commissioners added at the same time a section providing that the Act "does not affect other statutes of this State governing treatment for mental illness of an individual involuntarily committed" to a mental health-care facility. Id. at § 13 (f).

15. See Cal. Prob. Code § 4652 (West Supp. 2001); Nev. Rev. Stat. § 449.850(1)(a) (2000); N.H. Rev. Stat. Ann. § 137-J:2(v)(a) (West 1996); Or. Rev. Stat. § 127.540(1) (1999); Tex. Health & Safety Code Ann. § 166.152(f)(1) (West 2001); Vt. Stat. Ann. tit. 14 § 3453(e) (1989); Va. Code Ann. § 54.1-2986(c) ; Wis. Stat. Ann. § 155.20(2) (West Supp. 2000); Wyo. Stat. Ann. § 3-5-205(a)(i). Although North Dakota permits commitment for up to forty-five days, it does not allow consent to commitment for any greater period, regardless of whether the principal expressly authorized it. See N.D. Cent. Code § 23-06.5-03.

16. Alabama, Georgia, and Washington expressly prohibit the agent from "involuntarily" committing the principal without following statutory procedures for involuntary commitment. See Ala. Code §§ 22-8A-4(2), 26-1-2 (Michie 1991); Ga. Code Ann. § 31-36-10 (Lexis 2001); Wash. Rev. Code Ann. §§ 11.92.043(5), 11.94.010(3) (West 1998). These statutes also prohibit the agent from making certain other decisions, for example
convulsive treatment or psychosurgery. They appear implicitly to permit an agent to admit the principal under voluntary admission procedures.

17. See Alaska Stat. §§ 13.26.344(l), 47.30.970 (Lexis 2000) (seventeen-day commitment permissible if expressly authorized by principal); Ariz. Rev. Stat. § 36-3283 (West Supp. 2000) (commitment permissible if expressly authorized); Fla. Stat. Ann. § 765.113(1) (West 1997) (commitment permissible if expressly authorized); Haw. Rev. Stat. § 327E-13 (e) (Supp. 2000) (commitment permissible if expressly authorized); Ill. Comp. Stat. § 755/43-75 (West 2001) (seventeen-day commitment permissible if expressly authorized), Kan. Stat. Ann. § 58-629(a)(2) (1994) (authority to "make all necessary arrangements for the principal at any hospital, psychiatric hospital or psychiatric treatment facility" may be expressly granted); Me. Rev. Stat. Ann. tit. 34-B, § 3831(6) (West 1998 & Supp. 2000)(commitment permissible if expressly authorized); Miss. Code Ann. § 41-41-227(5) (Lexis Nexis 2001) (commitment permissible if expressly authorized).

18. See N.C. Gen. Stat. § 122C-73 (Lexis 1999) (principal may authorize "admission to and retention in a facility for the care or treatment of mental illness" in an "advance instruction for mental health treatment"); Okla. Stat. tit. 43A, §§ 11-104, 11-106 (Supp. 2000) (principal may authorize "inpatient mental health treatment" in an "advance directive for mental health treatment"); S.D. Codified Laws §§ 27A-16-1(7), 27A-16-3 (1999) (principal may authorize commitment of up to thirty days in a "power of attorney for mental illness treatment"), Utah Code Ann. §§ 62A-12-502, 62A-12-504 (Lexis 2000) (principal may authorize commitment of up to seventeen days in a "declaration for mental health treatment"). Minnesota allows a person to designate a "proxy" to make decisions about "intrusive mental health treatments," which include "electroshock therapy and neuroleptic medication." See Minn. Stat. § 253B.03 (6) (2000). The statute does not specify whether authority to commit the principal to a mental health facility -- voluntarily or otherwise -- may be conferred.

19. Bolduc has revoked her health care proxy and is no longer receiving treatment at McLean Hospital. Both the order of civil commitment and the question whether Bolduc's agent had the authority to apply for conditional voluntary admission to McLean Hospital on her behalf are therefore moot. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 134, 533 N.E.2d 1356 (1989). Any due process claim Bolduc may once
have had is also moot because she received a full evidentiary hearing at her involuntary commitment proceeding pursuant to G. L. c. 123, §§ 7, 8.

We consider the issues raised because the commitment and treatment of mentally ill persons are matters of public importance. Involuntary commitment to a mental health facility is often brief, and will seldom present an active controversy. See Acting Supt. of Bournewood Hosp. v. Baker, 431 Mass. 101, 103, 725 N.E.2d 552 (2000); Hashimi v. Kalil, 388 Mass. 607, 609, 446 N.E.2d 1387 (1983). Because the proxy statute does not provide explicit notice to a principal that commitment to such a facility may be conferred by proxy, the issue is likely to arise again in similar circumstances. See Guardianship of Weedon, 409 Mass. 196, 197, 565 N.E.2d 432 (1991); Guardianship of Doe, 391 Mass. 614, 618, 463 N.E.2d 339 (1984).

20. See S.M. Dunphy, Probate Law and Practice § 44.3, at 189 (2d ed. 1997 & Supp. 2001) ("[ § 5] is a broad provision authorizing the agent to make ordinary and extraordinary medical treatment decisions for the principal including decisions about life itself. This authority would appear to include the authority to commit the principal to a mental health facility, to consent to the administration of antipsychotic medication and refuse medical treatment since they are each decisions that the principal could make").

21. Operators, administrators or employees of such facilities related by blood, marriage, or adoption to the principal are exempted from the restriction. G. L. c. 201D, § 3.

22. General Laws c. 201D, § 1, defines "facility" as "any facility as defined in [G. L. c. 111, § 70E]." That statute, in turn, defines "facility" as "any hospital, institution for the care of unwed mothers, clinic, infirmary maintained in a town, convalescent or nursing home, rest home, or charitable home for the aged, licensed or subject to licensing by the [Department of Public Health]; any state hospital operated by the department; any 'facility' as defined in [G. L. c. 111B, § 3]; any private, county or municipal facility, department or ward which is licensed or subject to licensing by the department of mental health pursuant to section nineteen of chapter nineteen; or by the department of mental retardation pursuant to [G. L. c. 19B, § 15]; any 'facility' as defined in [G. L. c. 123, § 1]; the Soldiers Home in Holyoke, the Soldiers' Home in Massachusetts; and any facility set forth in [G. L. c. 19, § 1,] or [G. L. c. 19B, § 1]" (emphasis added). G. L. c. 111, § 70E.

23. The "superintendent" of a mental health facility is statutorily authorized to petition to commit or retain a patient at a facility. See note 8, supra.

24. Cf. prefatory note to the Uniform Health-Care Decisions Act 9 (Part IB) U.L.A. 144 (Master ed. 1999): "The Act acknowledges the right of a competent individual to decide all aspects of his or her own health care in all circumstances, including the right to decline health care or to direct that health care be discontinued, even if death ensues. An individual's instructions may extend to any and all health-care decisions that might arise and, unless limited by the principal, an agent has authority to make all health-care decisions which the individual could have made. The Act recognizes and validates an individual's authority to define the scope of an instruction or agency as broadly or as narrowly as the individual chooses."

25. Under our law, a determination of incompetence means that the person in question has been found to lack either the physical or mental capacity to make his or her own decision regarding a particular issue. Fazio v. Fazio, 375 Mass. 394, 403, 378 N.E.2d 951 (1978). 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, or to make informed decisions as to his property or financial interests." Id. A person may be adjudicated legally incompetent to make some decisions but competent to make others. Matter of Moe, 385 Mass. 555, 567-568, 432 N.E.2d 712 (1982). In the context of medical treatment, we have used incompetent to mean the "patient lacks the capacity to make treatment decisions." Rogers v. Commissioner of the Dep't of Mental Health, 390 Mass. 489, 497, 498, 458 N.E.2d 308 (1983). Accordingly, where, as here, the medical treatment concerns commitment to a mental health facility, we look to our decisions in cases concerning the rights of incompetent patients, even though the Massachusetts proxy statute concerns individuals who lack the "capacity" to make health care decisions. See G. L. c. 201D, § 6.

26. We also note that G. L. c. 201D, § 17, permits a wide range of persons, including the principal's health care provider, members of her family, and a close friend, among others, to commence a proceeding to override the agent's decision should any one of these persons believe that any treatment decision, including the decision to admit or retain the principal at a mental health facility, is made in bad faith or is not in accordance with the principal's best interests. G. L. c. 201D, § 17 (iii).

COUNSEL, INEFFECTIVE ASSISTANCE: FAILURE TO OBTAIN 3rd CRIMINAL RESPONSIBILITY EVALUATION

Commonwealth v. Fletcher, 435 Mass. 558 (2002)
Counsel for a defendant charged with first-degree murder sought a psychiatric expert to support a claim of insanity or diminished capacity. The first expert who examined the defendant labeled him “a malingerer and a liar.” The second, after spending fourteen hours with the defendant, concluded that there was insufficient evidence to support a conclusion of diminished capacity or lack of criminal responsibility. Counsel was not ineffective when he threw in the towel at that point and did not seek yet another expert’s opinion. Nor was counsel ineffective when, after consulting with the defendant, he did not present the testimony of either of these experts at trial and chose instead to present a defense of insanity and diminished capacity through cross-examination of prosecution witnesses to show the defendant’s cocaine addiction, his personal travails, and the irrationality of many of his actions in connection with the killing. Id. at 564-565. Counsel’s decision (again after consultation with the defendant) not to elicit evidence that the defendant, in addition to confessing to the murder on trial, had also “falsely” confessed to twelve other murders was a reasonable tactical decision. While DNA evidence excluded the defendant as the perpetrator of one of those murders, all twelve were still under investigation at the time of trial and the details of the murders, as described to the police by the defendant, paralleled in many respects the details of the murder on trial. Id. at 565-566.

Commonwealth v. Sleeper, 435 Mass. 581 (2002)
Although expert testimony is not a prerequisite to an instruction on criminal responsibility, there must be some evidence which, if believed, might create a reasonable doubt concerning that issue. Suicidal ideation alone does not justify an insanity instruction, nor does testimony by the defendant that he “just went crazy.” Thus, where the experts who testified at the defendant’s murder trial did not suggest that he lacked criminal responsibility, where he had no history of mental illness, and where his acts did not on their face appear irrational, the defendant was not entitled to the instruction.

Adoption of Sherry, 435 Mass. 331 (2001)
In commitment and authorization to treat hearings under G.L.c.123, §16, the district attorney has the "right to be heard." See paragraph (d). The SJC made clear, in a proceeding to dispense with the consent of a child’s father to her adoption, that such a statutorily created "right" does not include the right to submit information "unconstrained by the usual evidentiary rules (i.e., relevance, personal knowledge, oath or affirmation, and cross-examination." 435 Mass. at 338.

CRIMINAL RESPONSIBILITY: SOCIAL WORKER PRIVILEGE; DISCLOSURE OF DA'S EXPERT'S OPINION

Commonwealth v. Stroyny, 435 Mass. 635 (2002)
The statute establishing the social worker-client privilege contains an exception for any proceeding “in which the client introduces his mental or emotional condition as an element of his claim or defense, and the judge . . . finds that it is more important to the interests of justice that the communication be disclosed than that the relationship between the client and the social worker be protected.” G.L. c. 112, § 135B. Here, the defendant raised an insanity defense. His mental condition was critical to that defense. He did not object at trial when the social worker testified, but, if he had, “it would not have been error for the judge to allow the social worker to testify.” 435 Mass. at 648. After the defendant gave notice that he was raising an insanity defense, the prosecutor’s motion to have the defendant examined by his own psychiatric expert was allowed. Following the examination, the prosecution expert prematurely told the prosecutor, without permission from the judge, what the defendant had said during the examination. Defense counsel moved to dismiss the indictments or, in the alternative, to bar the expert from testifying. The SJC expressed strong disapproval of the prosecutor’s conduct: He “should immediately have terminated any conversation with [the expert] when it became clear that he was divulging communications by the defendant.” 435 Mass. at 645.

Commonwealth v. Hatch, 438 Mass. 618 (2003)
Pursuant to G.L. c. 123, § 17(b), an incompetent defendant may "request an opportunity to offer a defense" to pending charges. Indictment/charges will be dismissed if court finds "a lack of substantial evidence to support a conviction." The SJC holds: (i) defendant must make preliminary showing that his/her request to offer defense should be allowed; (ii) dismissal is warranted where court finds that "the weight of the credible evidence could not lead a rational jury to find the defendant guilty beyond a reasonable doubt; (iii) dismissal is not a final determination and, therefore, defendant may be re-indicted upon proffer of additional evidence; and (iv) defendant may call witnesses and cross-exam commonwealth's witnesses at 17(b) hearing.

Commonwealth v. Boateng, 438 Mass. 498 (2003)
Where lack of responsibility is raised at trial, it is error for court not to conduct voluntariness hearing before defendant's statements to police are admitted at trial.

Commonwealth v. Rivera, 441 Mass. 358 (2004)
Miranda waiver valid if Commonwealth proves that waiver was "made knowingly, intelligently, and in all respects, voluntarily," notwithstanding defendant's mental illness. 441 Mass. at 364-367.

Commonwealth v. Ostrander, 441 Mass. 344 (2004)
Where defendant places at issue his mental ability voluntarily to waive his Miranda rights, and make a voluntary statement/ confession thereafter, by offering testimony of expert whose opinion is based, in part, on defendant's statements, court may compel defendant to submit to evaluation by commonwealth's expert. See Blaisdell, 372 Mass. 753 (1977) and Mass.R.Crim.P. 14(b)(2)(court-ordered evaluation of criminal responsibility); see also Diaz, 431 Mass. 822 (2000)(commonwealth evaluation of mens rea – ability to premeditate/specific intent); Contos, 435 Mass. 19 (2001)(same).

Laura protests that a Juvenile Court judge's order, committing her involuntarily to a mental health facility pursuant to G.L. c. 123, § 12(e), [FN2] was invalid because statements that she made to a court-appointed psychologist were admitted in evidence without a knowing Lamb waiver. See Commonwealth v. Lamb, 365 Mass. 265, 270 (1974). [FN3] We conclude that the judge's failure to make any inquiry or findings on the Lamb issue was error, amounting to a substantial risk of a miscarriage of justice and, therefore, vacate the order of commitment.

This, in outline, is the tortured history of the dispute. After our decision in Care and Protection of Bruce, 44 Mass.App.Ct. 758 (1998), in which we considered the problematic mental state of Bruce's mother, Laura, but ultimately held that the finding of parental unfitness was not supported by clear and convincing evidence, that a remand was required to determine if custody could be returned to Laura with appropriate monitoring by the Department of Social Services (DSS), and that DSS could proceed with its petition to dispense with Laura's consent to the adoption of Bruce. A different juvenile court judge complied with our remand order and undertook an inquiry into whether Bruce could safely be returned to Laura's custody. The judge conducted this inquiry on four separate days in 1998. On the last day, August 11, 1998, Laura was seen pacing back and forth outside the courthouse, allegedly saying that she would like to "put everybody [DSS workers, Bruce's foster mother, and the judge] in a room and blow it up." The witnesses who heard these alleged comments told court officers, and after hearing testimony from those witnesses, the judge prompted the DSS attorney to apply for a warrant of apprehension. [FN4] All of this occurred prior to any decision whether Bruce would be at risk if returned to Laura's custody.

The next day, Laura was arrested and brought into court for an examination by Dr. Gary Dube, a "qualified psychologist," pursuant to G.L. c. 123, § 12(e). Another attorney, unfamiliar with the ongoing custody inquiry and not certified by the Committee for Public Counsel Services to handle mental health matters, was appointed to represent Laura at the commitment hearing.

Prior to interviewing Laura at the courthouse, Dr. Dube gave her the required Lamb warning, which included notice of her privilege under G.L. c. 233, § 20B. See note 3, supra. In so doing, however, Dr. Dube noted in his written evaluation that "[t]he subject repeatedly interrupted the warning and for a period would not decide if she would consent to the interview. Ultimately, she consented with her attorney present, although her understanding appeared somewhat impaired" (emphasis added).

It is not necessary to detail the bizarre behavior manifested by Laura and observed by Dr. Dube during the remainder of his examination. Despite Dr. Dube's insecurity about Laura's consent to answering his questions, he also gleaned bits of information about many subjects relevant to her ability to parent as well as the history of her mental instability. His diagnosis, therefore, made an impact on the judge's commitment decision and the ultimate decision concerning her fitness as a parent.

Laura does not dispute that she cooperated with Dr. Dube during the examination at the courthouse. Her initial decision to speak with him, however, may have been stimulated by a belief that it would be "the best way that she could leave" and go home. According to Dr. Dube's subsequent testimony at the commitment hearing, however, "[I]t was difficult to complete the non- confidentiality warning in that [Laura] felt real pressured to speak.... [She] interrupted me frequently, and it took some time to complete the warning, and then some time further to get her to respond as to whether or not she wanted to participate. She ultimately did state that she wanted to participate and did respond to some of my questions." His written report stated that "her understanding [of the Lamb warning] appeared somewhat impaired." In his testimony, Dr. Dube described Laura's mental state, submitted his written evaluation, and concluded with his diagnosis that, without hospitalization and treatment, there was a "likelihood of serious harm" due to Laura's mental illness. G.L. c. 123, §§ 1, 12(e). See Commonwealth v. Nassar, 380 Mass. 908, 912-918 (1980) (applying statutory standard to commitment proceeding under G.L. c. 123, § 16[b] ). This mental illness involved "hypomani[a,]" "delusion[s,]" and an "apparently persecutory ideation towards the foster mother and judge." At the conclusion of the hearing, the judge signed an order authorizing Laura's detention at a mental health facility in Brockton. She was detained there and discharged short of the ten days authorized under G.L. c. 123, § 12(e).

Laura's release on August 17, 1998, brings us to the threshold issue of mootness. DSS asserts that the issues raised by Laura, "even if capable of repetition, will not evade review," and notes that she could have sought relief by habeas corpus pursuant to G.L. c. 248, § 1, by a motion for relief from judgment under Mass.R.Civ.P. 60(b), 365 Mass. 828 (1974), see Temple v. Marlborough Div. of the Dist. Ct. Dept., 395 Mass. 117, 120, 127 (1985), or by filing for review in the Appellate Division of the District Court under G.L. c. 123, §§ 9(a) and (b). Laura recognizes the issue, but counters that "evad[ing] review" does not mean a case in which a party has no other avenue of redress. She, therefore, urges us to consider her appeal on the merits. In any event, the solution to this initial question is clear: the Supreme Judicial Court has repeatedly held that civil commitment and treatment- related cases are matters of significant public interest that warrant an exception to the usual mootness rules. See Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000) (citing cases); Cohen v. Bolduc, 435 Mass. 608, 615 n. 19 (2002). In addition, the instant case has been fully briefed and argued, and the important issues are likely to recur. See Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984). For these reasons, we decline to dismiss Laura's appeal for mootness.

We come to the nub of the controversy. Laura attacks the admission of her statements that Dr. Dube incorporated into his testimony and written report, both of which were considered by the judge at the G.L. c. 123, § 12(e), hearing. Laura's position is that there was enough doubt--based on Dr. Dube's testimony--to alert the judge to the possibility that Laura was incapable of making a voluntary and knowing waiver after the Lamb warning. [FN 5]Further, she argues that the judge failed to make any inquiry of her or Dr. Dube to determine whether she understood her right of confidentiality and made no findings on that important issue. Contrast Commonwealth v. Barboza, 387 Mass. 105, 108, cert. denied, 459 U.S. 1020 (1982); Commonwealth v. DelVerde, 401 Mass. 447, 451 n. 8 (1988); Adoption of Kirk, 35 Mass.App.Ct. 533, 539 (1993).

In his testimony at the commitment hearing, and in his written evaluation submitted to the judge, Dr. Dube explicitly stated that he did, in fact, give Laura the Lamb warning. It is true, as Laura argues on appeal, that Dr. Dube did not warn her that the information requested in connection with the commitment proceeding might ultimately be used against her in the pending custody proceedings regarding her son. See G.L. c. 233, § 20B(e). More to the point here, the judge made no inquiry into her understanding and subsequent waiver of the statutory privilege. The record indicates that, at the point Dr. Dube recounted Laura's difficulties comprehending the warning, the judge showed little interest and pressed Dr. Dube to relate Laura's responses to the questions put concerning her history and mental condition. It is this information that she now contests as extracted from her under duress and without a sufficient understanding of her rights.

Dr. Dube's testimony about Laura's difficulties should have served to alert the judge of the issue. To repeat, he testified that "[i]t was difficult to complete the nonconfidentiality warning in that [Laura] felt real pressured to speak." A moment later, there was testimony that Laura showed "concern[ ] that it was illegal [to be] there in the first place asking her questions ... [and] that she would answer questions because she wanted to go home, and that she felt that was the best way that she could leave." We conclude, as stated at the beginning of this opinion, that the judge was remiss in not making a sua sponte inquiry at this juncture into whether Laura actually understood and knowingly waived her rights. By analogy, courts have excluded "statements by individuals suffering from mental illness if the disease rendered the individual incapable of understanding the meaning and effect of a confession or caused the individual to be indifferent to self-protection." Commonwealth v. Vazquez, 387 Mass. 96, 100 n. 8 (1982).

In Commonwealth v. Lamb, 365 Mass. at 267-270, the court held that, in a "proceeding" under G.L. c. 123A for commitment of a sexually dangerous person, G.L. c. 233, § 20B, established a patient's right to keep privileged any "communications" made to a court-appointed "psychotherapist." See note 3, supra. In Department of Youth Services v. A Juvenile, 398 Mass. 516, 526 (1986), the court extended this privilege to a juvenile seen by a psychologist and a psychiatrist [FN6] prior to proceedings under G.L. c. 120, §§ 16- 20, to extend the term of his commitment to the Department of Youth Services. We see no reason why similar safeguards should not apply here.

In its brief, without much analysis, DSS takes the position that Dr. Dube's in- court disclosure of Laura's statements was justified by G.L. c. 233, § 20B(a). [FN7] We reject this contention. The argument is similar to one originally posed, explained, and not followed in Commonwealth v. Lamb, 365 Mass. at 267-268, where the Supreme Judicial Court resolved ambiguities in the language of that section and G.L. c. 233, § 20B(b), [FN8] as applied to sexually dangerous persons. In doing so, the court adverted to the possibility that the statutory privilege might not apply where disclosure was made "for the purpose of 'placing or retaining' [a patient in a hospital as well as] when it is made for the purpose of placing the patient under arrest or under the supervision of law enforcement authorities." Commonwealth v. Lamb, 365 Mass. at 268, quoting from G.L. c. 233, § 20B(a). However, a subsequent passage from Lamb puts to rest any doubts raised by DSS's argument, and places all court-ordered examinations under the ambit of G.L. c. 233, § 20B(b). [FN9]

Further, we think--as did the Supreme Judicial Court in Lamb--that application of § 20B(b)'s notice requirement (essentially the Lamb warning as it has developed) affords a more harmonious reading of the statute in general, id. at 268-269, and "avoids considering whether the use of such statements in the absence of such warnings infringes upon the rights of due process guaranteed by the Fourteenth Amendment of the United States Constitution." Id. at 270. Attendant to the requirement of warnings, moreover, is that any waiver be knowing and voluntary. See note 7, supra; Adoption of Carla, 416 Mass. 510, 515 n. 5 (1993) ("expressing doubt" whether mother waived privilege under G.L. c. 233, § 20B[b], after psychologist "presented her with an ultimatum"). When applied to a court- ordered examination pursuant to G.L. c. 123, § 12(e), subsequent to the issuance of a warrant of apprehension, a valid disclosure at the ultimate commitment hearing may come only after Lamb warnings are given and the judge finds a knowing and voluntary waiver of the privilege. In this way, we read G.L. c. 233, § 20B, harmoniously with the involuntary commitment proceedings specified in G.L. c. 123, § 12(a) and (e), [FN10] and avoid the constitutional difficulties posed when a person is examined and subsequently committed and deprived of liberty without due process based on otherwise privileged statements.

To be sure, the record tells us, and the judge found, that the Lamb warnings were articulated to Laura by Dr. Dube. His observations of Laura were obviously admissible at the commitment hearing. Sheridan, petitioner, 412 Mass. 599, 605 (1992). See Adoption of Abigail, 23 Mass.App.Ct. 191, 198-199 (1986). Compare G.L. c. 233, § 20B (definition of "communications"); Petition of the Dept. of Social Serve. to Dispense with Consent to Adoption, 399 Mass. 279, 287 (1987). The relevant inquiry in this case, however, is not whether the warnings were given or whether Dr. Dube's observations are admissible; rather, the central question is the effectiveness of a Lamb warning given to an individual who might not understand it. The attention of the judge was concentrated not on this significant question, but on what Laura said to Dr. Dube concerning her mental state and the events that led to her apprehension. Indeed, the judge's comments at the close of the commitment hearing indicate that his principal concern was to obtain mental health treatment for her. However laudable that goal may have been, given Dr. Dube's preliminary assessment of what transpired during the interview, the judge should have taken the time to assess whether Laura's Lamb waiver was knowing and voluntary.

On this record, there was a substantial risk of a miscarriage of justice. The basis for the judge's order to commit was Dr. Dube's diagnosis, based on the privileged information gained in his examination. Given the significant nature of the rights involved, see Vitek v. Jones, 445 U.S. 480, 492 (1980) ("The loss of liberty produced by involuntary confinement is more than a loss of freedom from confinement"), and the societal stigma which attaches to an individual from commitment to a mental hospital, requiring the judge to make these findings is appropriate under a statute that already requires that notice be given.

In light of our conclusion, we need not consider Laura's other claims, that the evidence presented at the commitment hearing was insufficient to support the judge's order and that her constitutional rights to due process, confrontation, and the effective assistance of counsel were violated.

FN2. As in effect prior to St.2000, c. 249, §§ 4-8, G.L. c. 123, § 12(e), states, in pertinent part:

"Any person may make application to a ... justice of the juvenile court for a ten day commitment to a facility of a mentally ill person whom the failure to confine would cause a likelihood of serious harm. After hearing such evidence as he may consider sufficient, ... a justice of the juvenile court may issue a warrant for the apprehension and appearance before him of the alleged mentally ill person, if in his judgment the condition or conduct of such person makes such action necessary or proper. Following apprehension, the court shall have the person examined by a qualified psychologist in accordance with the regulations for the department [of mental health]. If said ... qualified psychologist reports that the failure to hospitalize the person would create a likelihood of serious harm by reason of mental illness, the court may order the person committed to a facility for a period not to exceed ten days, but the superintendent may discharge [her] at any time within the ten day period."

FN3. In Commonwealth v. Lamb, supra, the Supreme Judicial Court construed G.L. c. 233, § 20B, "as preserving a patient's rights to keep privileged any communications made to a court-appointed psychotherapist in the case of a court-ordered examination, absent a showing that he was informed that the communication would not be privileged and thus, inferentially, that it would be used at the commitment hearing."

FN4. While Laura was not present at this hearing, her attorney in the custody matters participated in the questioning of these witnesses along with the attorney for DSS.

FN5. Laura's trial attorney did not raise at trial the issue of the adequacy of her waiver. Nevertheless, the doctor's failure to obtain an adequate waiver created a substantial risk of a miscarriage of justice, so the issue should be addressed on appeal. See Department of Youth Serve. v. A Juvenile, 398 Mass. 516, 524-525 (1986) (the failure to give Lamb warnings created a substantial risk of a miscarriage of justice warranting reversal and remand for new trial, although juvenile did not raise the issue below).

FN6. The definition of "psychotherapist" in G.L. c. 233, § 20B, includes psychiatrists and psychologists.

FN7. Section 20B(a) of chapter 233 allows for disclosure of otherwise privileged "communications" by a "psychotherapist" in the following circumstances:

FN10. In resolving any ambiguity that may exist in the application of G.L. c. 233, § 20B, to Laura's situation, we construe that statute in combination with related statutes. Compare In the Matter of the Liquidation of Amer. Mut. Liab. Ins. Co., 434 Mass. 272, 289 n. 17 (2001).

Summary: parole eligibility for purposes of dismissal of charges against incompetent, committed defendant under G.L.c.123, §16(f) to be calculated on basis of maximum sentence for single most serious crime charged (not on consecutive sentences on all crimes charged); §16(f) applicable whether or not defendant committed

This case raises a question of statutory interpretation: Whether G.L. c. 123, § 16(f ), mandates the dismissal of charges pending against an incompetent criminal defendant on the final date of the period prescribed under the statute and computed on the basis of the maximum sentence for the single most serious crime charged or on the basis of the maximum consecutive sentences of all of the crimes charged of equal seriousness. The single justice, ruling on a petition under G.L. c. 211, § 3, concluded that the latter interpretation should apply and denied the petition. The petitioner (defendant) appealed
from the single justice's denial of relief, pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001).

We conclude that the plain meaning of G.L. c. 123, § 16 (f ), requires the Department of Correction to calculate the period of the pendency of criminal charges against an incompetent defendant on the basis of the single most serious crime charged and on the single maximum sentence allowable. We remand the case to the county court where an order shall enter remanding to the District Court for further proceedings consistent with this opinion.

1. Facts. On October 26, 1993, James A. Foss, Jr., was arraigned in the Lynn District Court on three counts of indecent assault and battery on a child under the age of fourteen years, in violation of G.L. c. 265, § 13B. Immediately after arraignment,
the defendant was evaluated and was found to be incompetent to stand trial. On December 13, 1993, the defendant was placed on indefinite pretrial probation in the custody of the Department of Mental Retardation and placed in one of its "respite
program" facilities. The defendant has remained incompetent to stand trial and in such a facility since that time.

On August 8, 2000, the defendant filed a motion to dismiss the charges against him, pursuant to G.L. c. 123, § 16 (f ), arguing that the statute requires dismissal of charges pending against an incompetent defendant on the expiration of a period of time
"equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received." On September 27, 2000, a judge of the Lynn District Court held a hearing on the motion. On October 24, the judge denied the defendant's motion to dismiss and allowed the Commonwealth's oral motion for a reevaluation of the defendant's competence to stand trial.

On October 31, 2000, the defendant filed his petition for relief pursuant to G.L. c. 211, § 3. On January 5, 2001, while the matter was under advisement, the Department of Correction, pursuant to its authority under G.L. c. 123, § 16 (f ), issued its computation and determination that the charges against the defendant were required to have been dismissed no later than October 25, 1998. The single justice entered judgment on March 16, 2001, denying the defendant's request for relief. The defendant appealed.

2. Discussion. The words of a statute are the main source from which we ascertain legislative purpose, and when the text of a statute is clear and unambiguous, we construe the language in accordance with its plain and ordinary meaning. See
Commonwealth v. Ray, 435 Mass. 249, 252 (2001), and cases cited. When the words are clear and, when assigned their ordinary meaning, yield a workable and logical result, we interpret the statute without resort to extrinsic aids, such as legislative history. See Hashimi v. Kalil, 388 Mass. 607, 610 (1983). General Laws c. 123, § 16 (f ), reads, in pertinent part: "If a person is found incompetent to stand trial, the court shall send notice to the department of correction which shall compute the date of the expiration of the period of time equal to the time of imprisonment which the person would have had to serve prior to becoming eligible for parole if he had been convicted of the most serious crime with which he was charged in court and sentenced to the maximum sentence he could have received, if so convicted" (emphasis added). When the words "the most serious" are given their ordinary meaning and are used to modify the singular word "crime," their import is clear. Furthermore, when the word "maximum" is used to modify the singular word "sentence," the same result adheres. [FN1] The ordinary meaning of the words is that the Department of Correction must compute the period of time with reference to the single most serious crime charged, and the single maximum sentence allowable for that crime. When assigned their ordinary meaning, the words "the most serious crime" and "the maximum sentence" yield a logical and workable result. In the thirty-two years since G.L. c. 123, § 16 (f ), inserted by St.1970, c. 888, § 4, was enacted, there have been several amendments to other portions of the mental health statute, however, there has been no suggestion that § 16 (f ), as written, is illogical or unworkable.[FN2]

Furthermore, the Department of Correction calculates parole eligibility dates, and comparable "16 (f )" dates (as it did in this case) based on the maximum sentence allowable for the single most serious offense charged. We accord due weight and deference to an agency's interpretation of statutes within its charge. See Hayes v. Retirement Bd. of Newton, 425 Mass. 468, 470 (1997), and cases cited. We see no reason to disturb the Department of Correction's interpretation of the statute. Its interpretation accords the words their ordinary and plain meaning and achieves a logical and workable result. See Flaschner, The New Massachusetts Mental Health Code--A "Magna Carta" or a Magna Maze?, 56 Mass. L.Q. 49, 58 & n.17 (1971) (computation is with regard to the most serious crime with which the defendant was charged, "[n]ot for all the crimes with which he was charged"). [FN3]

Although we need not resort to extrinsic aids to resolve the issue before us, the legislative history of G.L. c. 123, § 16 (f ), also supports our interpretation. Prior to its enactment, it was not uncommon for incompetent defendants charged with minor crimes to be confined in maximum security facilities, such as Bridgewater State Hospital, for anywhere from a decade to a lifetime. [FN4] Empirical studies conducted at State hospitals in Massachusetts, Michigan, and Pennsylvania revealed that a finding of incompetence to stand trial was "tantamount to a life sentence for many criminal defendants." Morris, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C. Davis L.Rev. 1, 4 (1993). A 1969 study in Massachusetts found that more men committed as incompetent to stand trial "had left Bridgwater as a result of death than all other avenues combined." McGarry, Demonstration and Research in Competency for Trial and Mental Illness: Review and Preview, 49 B.U. L.Rev. 46, 50 n.20 (1969). [FN5] Legislators and legal and medical practitioners recognized the gravity of this and other problems afflicting the treatment and care of mentally ill and incompetent persons in Massachusetts, and sought to make significant changes as early as 1961. The Massachusetts Legislature established the Special Commission on Mental Health [FN6] in 1961 and directed "in particular [to] consider the laws relating to the methods of commitment, treatment and release of patients." Resolves 1961, c. 89. Subsequent resolves continued and expanded the scope of the commission's work, ending in the presentment of draft legislation in 1967. [FN7] See Resolves 1962, c. 117, c. 130; Resolves 1963, c. 55; Resolves 1965, c. 28; Resolves 1966, c. 1, c. 46, and c. 112.

Among many other problems studied and addressed in the new mental health laws was the pretrial commitment of incompetent criminal defendants. A major thrust was to eliminate the highly questionable practice of committing incompetent criminal defendants indefinitely, while awaiting their unlikely restoration to competency, and also eliminating the indefinite pendency of criminal charges that, most often, significantly limited the incompetent criminal defendant's access to treatment by more effective civil means. See Joost, Massachusetts Mental Health Code: Promise and Performance, 60 A.B.A. J. 95, 97 (1974) (discussing effects of new mental health code and 1965 Report of Special Commission); Walker, Mental Health Law Reform in Massachusetts, 53 B.U. L.Rev. 986, 986-987, 1004, 1007 (1973). The civil rights of committed persons was a major consideration of the Special Commission and its proposed legislation, which served as the basis of the health code revisions. [FN8] General Laws c. 123, § 16 (b ) and (c ), effectively eliminated the problem of the indefinite commitment of incompetent defendants, providing that "[a]n order of commitment ... shall be valid for six months" and "[a]fter the expiration of a commitment under [§ 16 (b ) ], a person may be committed for additional one year periods ... but no untried defendant shall be so committed unless ... the court also finds said defendant is incompetent to stand trial." A committed, incompetent defendant is guaranteed reevaluation after the first six months and at least annually thereafter, with the presumption favoring competence. The statute also addresses the issue of indefinite pendency of criminal charges against an incompetent defendant, providing that "the court shall dismiss the criminal charges against [the incompetent criminal defendant]" on the final date of the period computed under § 16 (f ).

An Illinois appellate court, interpreting a statute with similar wording in a case with similar facts concluded that the plain meaning of the Illinois statute prohibited a parole eligibility calculation based on maximum consecutive sentences. See Kulak v. Belletire, 148 Ill.App.3d 268 (1986). The court also squarely addressed the issue whether the statute permitted consecutive sentences where the defendant was charged with multiple counts of the same offense, and concluded that it did not, stating that if the Legislature had so intended it could have done so expressly by referring to the maximum sentence for the "class of the most serious offense." Id. at 273- 274. We find this reasoning to be persuasive.

Although the Commonwealth's suggested reading of the statute would eliminate the problem of indefinite pendency of criminal charges, as a requirement of dismissal at the end of the period based on the maximum consecutive sentences would still yield a definite (albeit distant) date, the Commonwealth's reading fails to account for additional significant considerations underlying the revision of the mental health laws in Massachusetts. Studies conducted at Bridgewater State Hospital beginning in 1963 revealed that of approximately 200 men then indefinitely committed, the Bridgewater staff, with the assistance of the Law-Medicine Institute (conducting the study) were able to return fifty- three to trial. McGarrey, supra at 50-51. Of those returned for trial, thirty-five had been committed for less than two years. Id. at 51. The mean length of the hospitalization of the fifty-three men returned for trial was 3.7 years. Id. The mean length of the hospitalization of the 147 who were not able to return for trial was fifteen years. Id. The implications of the study demonstrate that a significant population of the men then not able to return for trial would have been competent within two years of their hospitalization. Id. Thus, it makes little sense for charges to remain pending against an incompetent defendant long past the period of time in which he is likely, if at all, to regain competence. See State ex rel. Haskins v. County Court, 62 Wis.2d 250, 268 (1974) (it would be "a rather pointless and a cruel application of the law, as well as an additional burden on prosecutors and courts, to keep pending criminal charges that will never be brought to trial").

We conclude, in light of the considerations and recommendations before the Legislature at the time of its enactment, the statute balances the interests of an incompetent defendant in dismissal of pending charges with the interests of the Commonwealth in protecting the public and enforcing the law by providing that the charges may remain pending for a period determined on the basis of the single most serious crime charged and the maximum sentence possible therefor. [FN9] The Legislature did not intend to calculate that period based on consecutive sentences.

It is uncontested that under the parole eligibility rules applicable to this offense (committed prior to July 1, 1994), the defendant, if convicted, would have been required to serve two-thirds of his minimum sentence. See G. L. c. 127, § 133, as amended through St. 1986, c. 486; G. L. c. 127, § 133, as amended by St. 1993, c. 432, §§ 11, 21. Therefore, the period to be calculated under § 16 (f) is two-thirds of the minimum sentence (as defined in G. L. c. 123, § 16 [f]) for the single most serious offense with which the defendant was charged. [FN10] The case is remanded to the county court where an order will enter remanding the case to the District Court for further proceedings consistent with this opinion.

1. The Commonwealth cites G.L. c. 4, § 6, Fourth, providing that "[w]ords importing the singular number may extend and be applied to several persons or things," to support its proposition that the words "crime" and "sentence" should be read to include the plural number. We have interpreted the singular form to include the plural on occasion, however, we have done so "to assure that the purpose of the statute may be fulfilled." See Blue Cross of Mass., Inc. v. Commissioner of Ins., 397 Mass. 674, 678-679 (1986), citing Commonwealth v. Montecalvo, 367 Mass. 46, 49-50 (1975), and G.L. c. 4, § 6. "In the context of this statute, the [singular] form is meaningful." Blue Cross of Mass., Inc. v. Commissioner of Ins., supra at 679. See Worcester Hous. Auth. v. Massachusetts Comm'n Against Discrimination, 406 Mass. 244, 246-247 (1989).

2. As the single justice correctly observed, the Commonwealth's argument that § 16 (f) applies only where the defendant has been committed has no merit. Section 16 (f) does not distinguish between defendants who have been committed and those who have not.

3. We have held with respect to an agency interpretation of a statute, "[t]he basis for affording the contemporaneous interpretation deference is that the interpretation was made close to the time the Legislature enacted the statute and may represent 'understanding of the public regarding the enactment.' " Connery v. Commissioner of Correction, 414 Mass. 1009, 1010 (1993), quoting Wilcox v. Riverside Park Enters., Inc., 399 Mass. 533, 539 n. 14 (1987). Though commentary is not generally viewed in the same light as agency interpretation, its proximity in time to the enactment may also weigh in favor of its persuasiveness.

4. "In 1896, a twenty-four year old man charged with vagrancy was found incompetent to stand trial and committed to Bridgewater State Hospital .... There he remained until his death in 1959 at the age of eighty-seven. He was confined for sixty-three years without any criminal trial." Morris, Out of Mind? Out of Sight: The Uncivil Commitment of Permanently Incompetent Criminal Defendants, 27 U.C. Davis L.Rev. 1, 3 (1993).

5. Dr. A. Louis McGarry succeeded Dr. Donald P. Kenefick as the director of the Special Commission on Mental Health, and the concerns addressed in his article undoubtedly were before the commission when addressing the proposed legislation. See McGarry, Demonstration and Research in Competency for Trial and Mental Illness: Review and Preview, 49 B.U. L.Rev. 46, 59-61 (1969) (discussing innovations sought in proposed legislation including terms of commitment).

6. The full name of the commission was the Special Commission Established to Investigate and Study the Administration of the Department of Mental Health and Certain Other Matters.

7. The proposed legislation was appended to the final report. 1967 Senate Doc. No. 1129 at 7.

8. See Report of Special Commission on Mental Health, 1962 Senate Doc. No. 625 at 8-9; Report of Special Commission on Mental Health, 1967 Senate Doc. No. 1129 at 5; Flaschner, The New Massachusetts Mental Health Code: A "Magna Carta" or a Magna Maze?, 56 Mass. L.Q. 49, 50 n.3 (1971) (noting commission work formed the "module" for the new law, and that new drafts inserted "layer upon layer of legal safeguards against impairment of patients' civil rights").

9. We reach our conclusion as a matter of statutory interpretation, not as a matter of constitutional law. The Supreme Court of the United States left open the question whether an incompetent criminal defendant is entitled to dismissal of pending charges as a matter of due process in Jackson v. Indiana, 406 U.S. 715, 740 (1972). However, other courts have reached the issue, and most conclude that an incompetent criminal defendant does not automatically have a right to the dismissal of charges based solely on the fact that he is unlikely to regain his competence. The New Jersey Supreme Court reasoned that a dismissal based on such a determination "is purely prognostication," and "may simply turn out to be incorrect." State v. Gaffey, 92 N.J. 374, 386, 387 (1983). "Hence, if such a prediction is or can be wrong, other considerations, such as the protection of society and the public interest in effective law enforcement, militate strongly in favor of the right to continue or renew the prosecution or at least preserving the opportunity to do so." Id. at 387.

10. The defendant's argument that because he has not been indicted and remains under the jurisdiction of the District Court, his maximum sentence is two and one-half years, see Reporters' Notes to Mass. R. Crim. P. 3 (b) (1), Mass. Ann. Laws, Rules of Criminal Procedure, at 134 (Lexis 2001), lacks merit. Section 16 (f) makes no mention of the charging instrument, and for good reason: if the defendant were tried on these charges, he would be tried in Superior Court. It would be wasteful to require grand jury indictment of incompetent defendants to avoid the District Court limitation, and we decline to do so.

Summary: Where a court restricts, under G.L. c. 123, § 16(e), a client's movements to the buildings and grounds of a DMH facility, DMH must be permitted to exercise its discretion in determining how such restrictions are to be implemented, absent a finding there is but one way to do so or a finding that DMH is unable or unwilling to provide adequate security. (Court cannot order that client be escorted at all times.)

After the defendant was found incompetent to stand trial on criminal charges arising out of his use of an automobile, he was committed to Taunton State Hospital (the hospital). [FN1] The commitment order provided that the defendant "be restricted in his ... movement to the buildings and grounds of said facility." Upon the expiration of the initial commitment order, the defendant was recommitted to the hospital pursuant to G.L. c. 123, § 16(c). However, the recommitment order contained the provision that whenever the defendant was outside the buildings and on the grounds, he was to be escorted by a hospital staff member. Protesting this new restriction, the defendant appealed to the Appellate Division of the District Court. The Appellate Division concluded that because the evidence did not demonstrate that the hospital and the Department of Mental Health (the department) were unable or unwilling to provide the level of security necessary for the defendant's confinement, the trial judge had exceeded his authority in ordering the department to fulfill its statutory obligations in a specific manner. On the Commonwealth's appeal, we agree with the decision of the Appellate Division.

1. Preliminary matters. Although the order in question has expired, we decline to dismiss the appeal as moot. Rather, we exercise our discretion and decide the issue raised by the Commonwealth's appeal. See Acting Superintendent of Bournewood Hosp. v. Baker, 431 Mass. 101, 103 (2000); Cohen v. Bolduc, 435 Mass. 608, 612 (2002). Based upon our conclusion that the judge lacked the authority to enter the order in question, we think it unnecessary for us to consider the defendant's cursory argument that any express right of appeal previously extended to the Commonwealth pursuant to G.L. c. 123, § 16(d), was "repealed" by St.1971, c. 760, § 13. [FN2] Accordingly, we reach the merits of the Commonwealth's appeal.

2. The evidence. There was evidence to show that at the time of the hearing on the Commonwealth's petition for recommitment, the defendant was in a secure facility at the hospital for most of each day. However, because of his treatment progress, the defendant was allowed "Level III" privileges, that is, he was given an "on-grounds pass" that allowed him to walk unescorted on the hospital's grounds to his job in the hospital's greenhouse or to the canteen for brief and specified periods of time. This privilege was consistent with the hospital's policies and procedures manual, wherein it is stated that the "decision to advance patients to level III will be based upon the judgment that the patient's clinical condition permits at least some degree of unsupervised movement around grounds" (emphasis supplied).

For the nine-month period preceding the recommitment hearing, the defendant had been participating in a behavioral management program and was being considered for placement in a planned new program to be offered by the department that was designed for people with organic mental disorders such as his and would oversee his medication. He also had been enjoying and doing well with his privileges. Although the defendant's on-grounds pass gave him a limited window of opportunity to walk away from the hospital's grounds, he had never attempted to do so. When his privileges were suspended just days before his recommitment hearing because of the hospital's confusion concerning his bail status (rather than due to his behavior), the defendant managed the loss very well and without an incident comparable to his past behavior of temper tantrums.

The judge made no findings on this evidence and, instead, simply concluded that the hospital's grounds were not secure and that "[i]f the hospital allows a patient to move freely unescorted within the grounds[,] there is no way of enforcing the court's ruling that he be restricted to said buildings and grounds." Accordingly, he ordered that the defendant could not be on the grounds unless accompanied by a hospital staff member.

In vacating the judge's order, the Appellate Division looked to the evidence and concluded that the judge had erroneously substituted his judgment for that of the hospital staff in deciding what level of security should be afforded the defendant. See Nason v. Commissioner of Mental Health, 351 Mass. 94, 96-97 (1966).

3. Discussion. General Laws c. 123, § 16(e), as amended by St.1973, c. 569, § 12, authorizes the imposition of certain restrictions on the movements of a person committed to a mental health facility pursuant to § 16. See Bradley v. Commissioner of Mental Health, 386 Mass. 363, 365-366 (1982). Specifically, § 16(e) provides:

"Any person committed to a facility under the provisions of this section may be restricted in his movements to the buildings and grounds of the facility at which he is committed by the court which ordered the commitment. If such restrictions are ordered, they shall not be removed except with the approval of the court. In the event the superintendent communicates his intention to remove or modify such restriction in writing to the court and within fourteen days the court does not make written objection thereto, such restrictions shall be removed by the superintendent." (Emphases supplied.)

There is nothing in § 16(e) that expressly authorizes a court to order a facility of the department to provide staff escorts to a person restricted to its buildings and grounds. The parties do not argue otherwise. That being so, the question before us is whether the judge had the inherent or implied authority to issue the specific directive in dispute to the department, a social service agency within the executive branch of government.

As explained in Matter of McKnight, 406 Mass. 787, 792 (1990), the judiciary does have the power in certain circumstances to direct the executive branch of government to take a particular action.

"A court, of course, may not properly exercise the functions of the executive branch of State government. See Guardianship of Anthony, 402 Mass. 723, 727 (1988). On the other hand, a court has the right to order the department to do what it has a legal obligation to do. Id. Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 629-630 (1985). Where the means of fulfilling that obligation is within the discretion of a public agency, the courts normally have no right to tell that agency how to fulfil its obligation. Id. at 630. See Bradley v. Commissioner of Mental Health, 386 Mass. 363, 365 (1982). Only when, at the time a judicial order is entered, there is but one way in which that obligation may properly be fulfilled, is a judge warranted in telling a public agency precisely how it must fulfil its legal obligation. See Guardianship of Anthony, supra at 727; Attorney Gen. v. Sheriff of Suffolk County, supra at 630."

Ibid. (Emphasis supplied). See L.G.G. v. Department of Social Servs., 429 Mass. 1008, 1009 (1999).

There is a complete absence of evidence to support the judge's conclusion that a staff escort was the sole method by which the hospital could carry out its statutory obligation to restrict the defendant to the buildings and grounds. See Bradley v. Commissioner of Mental Health, 386 Mass. at 366. Contrast Blaney v. Commissioner of Correction, 374 Mass. 337, 342-343 (1978) (upholding judicial instructions to department after it repeatedly failed to correct prison conditions as mandated by statute); Perez v. Boston Hous. Authy. 379 Mass. 703, 733-734 (1980) (receivership justified after housing authority persistently refused to comply with court orders based upon State sanitary code). The absence of such evidence perhaps explains why the judge made no findings of fact in support of his ultimate conclusion.

As the undisputed evidence shows, the department has a comprehensive written policy that establishes standards and procedures for the granting and withholding of patient privileges, and the hospital has a policies and procedures manual detailing the various levels of privileges extended to patients and explaining their application. These policies and procedures are entitled to deference. See Correia v. Department of Pub. Welfare, 414 Mass. 157, 169 (1993). Although the hospital did restrict the defendant to its buildings and grounds, it did so in accordance with promulgated policies and procedures. Pursuant thereto, the defendant was allowed to go unescorted on the grounds for short periods of time, that is, to and from his work program and the canteen. The time periods during which he was unescorted on the grounds were monitored, and as earlier noted, he never violated or abused his "Level III" privileges notwithstanding any limited opportunity that he might have had to do so.

While we are not without appreciation for the judge's concerns, the evidence requires us to conclude, in accordance with the Appellate Division of the District Court, that the judge's mandate that the defendant be escorted at all times when on the hospital's grounds "constitutes an impermissible 'poaching by the judicial branch on executive ... territor[y].' " Guardianship of Anthony, 402 Mass. 723, 727 (1988), quoting from Attorney Gen. v. Sheriff of Suffolk County, 394 Mass. 624, 631 (1985).

4. Conclusion. It follows from what we have said that the decision and order of the Appellate Division is affirmed.

1. In 1994, the defendant attempted to drive down a pedestrian. In 1996, he was involved in an automobile accident while attempting to commit suicide. No one disputes the fact that he is mentally ill and also suffers from a severe traumatic brain injury.

2. Although declining to decide the question of the Commonwealth's standing to appeal from the decision of the Appellate Division, we cannot help noting that G.L. c. 123, § 16(d), plainly authorizes a district attorney to petition a court to commit to a mental health facility a person accused of a crime but found to be incompetent to stand trial. See Commonwealth v. Killelea, 370 Mass. 638, 647 (1976). See also Commonwealth v. Nassar, 380 Mass. 908, 909 (1980); Commonwealth v. DelVerde, 398 Mass. 288, 290 (1986). Moreover, the defendant did not challenge the Commonwealth's standing before the Appellate Division. Indeed, he served copies of his notice of appeal from the judge's recommitment order on the "parties to the action," that is, the defendant served his notice of appeal upon the assistant district attorney for Plymouth County and counsel for the department.

In Re John Doe, District Court Department, Brockton Division, No. 9815 MH 0320R (6/10/98).
G.L. c. 123, § 16(b) provides that criminal charges pending against a defendant must be dismissed if the defendant is committed (under § 16) without first having been found not competent to stand trial. John Doe was found competent to stand trial by the Brockton District Court. Bridgewater State Hospital then petitioned for (civil) commitment under G.L. c. 123, § 7. The court allowed counsel's (Bob Weber's) motion to dismiss the petition holding that Bridgewater could not circumvent the mandatory charge-dismissal provision of § 16 in order to commit a competent defendant. In any event, Bridgewater was precluded from petitioning under § 7 once Doe had been found competent to stand trial. Upon such finding, Doe should have been (and the court expected that he would be) returned to the custody of the court or pre-trial place of detention. That is, Doe was no longer properly a "patient" of Bridgewater State Hospital as required under § 7.

After examination, Bridgewater recommended that Defendant was not competent to stand trial and moved for commitment in the Wareham District Court pursuant to G. L. c. 123, s. 16(b). After notice to all parties, I held a hearing concerning competency to stand trial on May 27,1998. As provided in G. L. c. 123, s. 16(b), I indicated that I would address the issue of the petition for commitment only if I first found Doe to be incompetent to stand trial.

After the hearing, I issued a detailed decision on the issue of competency to stand trial. I found that while Defendant suffers from a major mental illness-delusional disorder, persecutory type- he "has a basic understanding of the charges against him, the penalties he potentially faces, the identity of his attorney, and the roles of the judge, district attorney and defense counsel." Commonwealth v. Doe, 98 Cr 589 (Wareham District Court May 27, 1998). I balanced the fact that Doe "does have rational understanding of the charges against him and the possible results of a criminal trial" with the fact. that Doe "has an irrational desire based on his delusional views about the legal system to attempt to use the trial to get back at those persons he believes have harmed him." Commonwealth v. Doe, supra I concluded that Doe "is presently competent to stand trial." Id.

I ordered that "the bail previously set shall stand." Id. I expected that Doe would be transported from Bridgewater to the Plymouth House of Correction and the criminal case would go forward.

Bridgewater responded to my Order by filing a Petition for Civil Commitment in this Court on May 29,1998, pursuant to G. L. c. 123, s. 7 & 8. The Wareham District Court returned Doe to Bridgewater by an Order issued on June 3, 1998.

The Petition for Commitment pursuant to G. L. c. 123, s. 7 & 8 is scheduled for today. Doe has filed a Motion to Dismiss the Petition. Bridgewater has filed a Memorandum in Opposition to the Motion to Dismiss. The parties engaged in lengthy argument.

The Motion to Dismiss is allowed. Doe is not validly at Bridgewater. Upon being determined to be competent to stand trial, Doe was to be transferred to the House of Correction and held pursuant to the bail set in his criminal case. The jurisdiction of Bridgewater ended upon my determination that Doe is competent to stand trial. <1> The Petition for civil commitment assumes that Doe is properly at Bridgewater. Since that assumption is false, the Petition must be dismissed.

Further, a Petition for commitment of an untried criminal defendant can "be heard only if the defendant is found incompetent to stand trial or if the criminal charges are dismissed after commitment." G. L. c. 123, s. 16(b). Since Doe is competent to stand trial and until today the Court had no reason to believe that the charges would be dismissed upon commitment, the Court has no authority to hear this Petition. Any other result would make G. L. c.123, s. 16(b) a nullity. An institution such as Bridgewater would not have to utilize the provisions for criminal commitment when a petition for civil commitment could always be filed. Bridgewater cannot utilize s. 7 & 8 when it chose not to have the Petition filed under s. 16(b) heard after I determined that Doe was competent to stand trial.

The effort to characterize this Petition as a Petition for civil rather than criminal commitment does nothing to change the analysis. The standards for commitment - mental illness and dangerousness - are the same for all types of commitments filed under G.L. c. 123 regardless of the section. The burden of proof is the same.

Bridgewater argues that this Court has jurisdiction under language in G. L. c. 123, s. 7 that permit the Medical Director of Bridgewater to petition for civil commitment. However, s. 7 requires that the patient be "at the hospital." Since Doe was to be released to the House of Correction after being found competent to stand trial, Bridgewater had no jurisdiction over Doe.

This analysis is strengthened by the existence of G. L. c. 123, s. 18(a) which provides that if Doe proves unable to be housed at the House of Correction because of mental illness and dangerousness, the House of Correction can petition for commitment from the F-louse of Correction to Bridgewater. The standards for this Court to consider commitment under s. 18(a) are explicitly the same as those under sections 7 & 8. G. L. c. 123, s. 18(a).

Bridgewater is unable to prove that Doe is incompetent to stand trial. Doe is entitled to have his criminal case go forward. The Court has no jurisdiction to hear the Petition.

1. During oral argument today, the Assistant District Attorney indicated that he would enter a nol prosse if Doe were to be committed. There was no suggestion of this on May 27. Had I been informed of this intention on May 27, 1 would have gone on to hear the commitment petition. See G L c 123, s 16(b).

Adoption of Hugo, 428 Mass. 219 (1998) – Wilkins, Abrams, Lynch, Greaney, Fried, Marshall, Ireland. See Evidence - Expert Testimony, Qualification.

The sole issue in this case was the question of what permanent plan would best serve the best interests of three-year old Hugo. The fitness of the parents was not contested. At trial, DSS proposed that Hugo be adopted by his foster mother, who previously had adopted Hugo's sister. Child's counsel supported this plan. The parents proffered an alternative plan, that Hugo be adopted by a paternal aunt in New Jersey. The trial judge favored the latter plan, and DSS and the child appealed. The Appeals Court vacated the order, holding that the benefits of placement with the aunt were speculative and could not outweigh the harm of separating Hugo from his family and support system. Adoption of Hugo, 44 Mass. App. Ct. 863, 867-68 (1998). The Supreme Judicial Court reversed and affirmed the judgment of the juvenile court. 428 Mass. at 220. The SJC noted that the arguments made by DSS and Hugo "reflect dissatisfaction with the judge's weighing of the evidence and his credibility determinations." Id. at 224 (citations omitted). However, in this field ". . . much must be left to the trial judge's experience and judgment," and ". . . our attitude toward a trial judge's decision in a custody appeal is one of substantial deference." Id. "Particularly where, as here, close scrutiny of lay and expert witnesses was central to the judge's decision, our task is not to decide whether we, presented with the same facts, would have made the same decision, but to determine whether the trial judge abused his discretion or committed a clear error of law." Id.

The SJC concluded that no errors were made by the trial judge. In doing so the Court rejected arguments made by DSS and Hugo that the judge (a) gave undue weight to the biological parents' proposed plan, id. at 225-26, (b) improperly considered material benefits that the aunt could provide Hugo, id. at 226-27, (c) failed to give adequate consideration to the harm Hugo would suffer if separated from his foster mother and sister, id. at 227-30, and (d) failed to give adequate consideration to Hugo's relationship with his sister. The SJC refused to "recognize a general presumption in favor of maintaining a sibling relationship in custody cases." Id. at 230–31.

Hugo also challenged the reliability of the expert's methodology, arguing that reliability must be established through either general acceptance in the community, peer review, testing, showing established validity of the analytical process, or by use of an accepted, standard methodology. See Commonwealth v. Lanigan, 419 Mass. 15 (1994). The SJC held that "[t]here is no such requirement," and that the expert's methodology was reliable. Hugo, 428 Mass. at 234. "[I]n addition to the knowledge gained from her own training and experience, she had reviewed the case file, interviewed the parties, and gathered information from service providers, a methodology strikingly similar to that used by DSS's and Hugo's own experts." Id.

Finally, the SJC held that "a trial judge may properly order a plan different from the one proposed by DSS in proceedings brought under G.L. c. 210, § 3." Id. at 234.

Vassallo v. Baxter Healthcare Corp., 428 Mass. 1 (1998) -- Wilkins, Abrams, Lynch, Greaney, Marshall. See Evidence - Hearsay, Business Records.

In this products liability case, the SJC held that the trial judge properly barred the expert witnesses from testifying on direct to the out-of-court opinions of other scientists where no exception to the hearsay rule applied. Id. at 15-16. The Court noted that it previously had declined to adopt Proposed Mass. R Evid. 703, which provides that the facts on which an expert bases her opinion need not be admissible in evidence so long as they are the type of facts which other experts in the field reasonably rely in forming their opinions. Id. at 16. Instead, in Massachusetts, an expert may base her opinion on facts not in evidence only if those facts are independently admissible. Id.

The SJC also held that there was no error in admitting as a business record scientific studies containing primarily factual data. Id. at 18. Opinions and evaluations contained in business records are not admissible. Id. (citing Julian v. Randazzo, 380 Mass. 391, 393 (1980) and Burke v. Mem. Hosp., 29 Mass. App. Ct. 948, 949 (1990). Although the records at issue may have contained some conclusions, the defendants did not ask to strike those portions but objected to the records in their entirety. Id. at 18-19. Thus, their objection was overbroad and properly was overruled. Id. at 19.

On cross-examination of an expert witness, a party may read into evidence statements from a published treatise "established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice." Id. at 290-91 (quoting Proposed Mass. R. Evid. 803(18), adopted in Commonwealth v. Sneed, 413 Mass. 387, 396 (1992)). However, the statements may not be admitted as an exhibit. Id.

The written policies and procedures of a hospital were properly excluded. Id. at 295. They contained inadmissible hearsay and did not fall under the exceptions provided by G.L. c. 233, § 78 or § 79G, nor did they fall under any other exception to the hearsay rule. Id. at 295.

The single justice did not err in denying the petitioners request for relief without a hearing. Id. at 1001. The petitioners failed to create a record, "i.e., to provide copies of the lower court docket entries and any relevant pleadings, motions, orders, recordings, transcripts, or other parts of the lower court record necessary to substantiate their allegations . . . ." Id. Petitioners must do more than simply make allegations, they must demonstrate through the record that they are entitled to relief. Id.

The SJC also took the opportunity to state that clerks, registers, or their staff "are ministerial officers of the court when it comes to receiving and filing papers. In the absence of an order from a judge, they may not refuse to accept a notice of appeal, even if they believe that no appeal is available or that the notice is untimely or otherwise defective." Id. (citations omitted). Whether assembly of the record is required in a particular case "is a legal determination for the court to make, subject to appellate review." Id. at 1002 (citation omitted).

SENG v. COMMONWEALTH, 839 N.E.2d 283 (2005)
Examination Expert of Commonwealth's Choosing (excerpts; internal citations omitted):

By its terms the statute [G.L. c. 123, § 15] permits the judge to order a competency examination by "one or more" experts. The fact that the defendant has been examined once does not preclude his being examined again by a different expert. (internal citation omitted)

As to the identity of the experts, the statute says only that they must be "qualified physicians" or "qualified psychologists." It does not preclude the Commonwealth (or a defendant for that matter) from requesting an evaluation by an expert of its own choosing within the same proceeding. General Laws c. 123, § 15 (a), leaves to the judge's discretion the decision who shall examine the defendant: the statute expressly provides that the judge "may at any stage of the proceedings" order a competency examination, giving the judge considerable discretion to order any examination at all ... The statute does not expressly preclude the Commonwealth from calling its own expert, and that expert cannot form a valid opinion of the defendant's competency without examining him. (internal citations omitted)

An expert evaluating the defendant's competency to stand trial would not need to ask whether he committed the crimes, but would ask of what he was accused, who the important people are in the court room and what are their roles, or what will be the consequences if he is found guilty, all with a view to evaluating his understanding of the proceedings and his ability to participate in his defense.

There is of course always some possibility that a defendant would make incriminating statements during the course of a competency examination. The judge recognized this possibility and imposed on the Commonwealth compliance with the "strict requirements" of Rule 14 (b) (2) (B). By its terms Rule 14 (b) (2) (B) pertains to "the defense of lack of criminal responsibility because of mental disease or defect at the time of the alleged crime," and not to competency to stand trial. We see no reason why a judge cannot resort to that rule's provisions in the context of a competency determination to protect a defendant's legitimate constitutionally based concerns.

The report of any expert examining the defendant for competency may not be disclosed to the Commonwealth unless "the judge determines that the [competency expert's] report contains no matter, information, or evidence which is based upon statements of the defendant as to his mental condition at the time of or his criminal responsibility for the alleged crime or which is otherwise within the scope of the privilege against self-incrimination." Not only does the rule direct the judge to protect the defendant's privilege against self-incrimination by withholding any such material from the Commonwealth, but the judge can, if she determines that she is uncertain as to whether any information in the report falls within the scope of the privilege, review the material in camera with defense counsel alone. In short, the Commonwealth will have no access to any of the defendant's statements that may, even arguably, incriminate him.

Under G. L. c. 233, § 23B:

This excludes from evidence "inculpatory statements constituting admissions short of a full acknowledgment of guilt," as well as "evidence discovered as 'fruits' of [the defendant's] compelled statements," and prevents "the possible use of his involuntary statements made in the course of the examination for purpose of impeachment." The protection is not diluted because the expert is selected by the Commonwealth.

The defendant's "mental or emotional condition" at issue in a competency evaluation is his or her current condition, which is irrelevant to guilt or innocence. If a defendant undergoing a competency examination makes a statement about his or her mental condition at the time of the crime, that would constitute an "inculpatory statement[] constituting [an] admission[] short of a full acknowledgment of guilt," inadmissible under G. L. c. 233, § 23B, as interpreted in Blaisdell v. Commonwealth, supra at 763.

That right [to counsel] includes the assistance of an attorney "in making the significant decision of whether to submit to the examination and to what end the psychiatrist's findings could be employed." It may be questionable whether the defense attorneys can give effective advice relative to the competency examination, or whether the defendant can validly waive any of his rights, given the serious doubts raised by Dr. H[.] about the defendant's ability to work with his attorneys and participate in his defense. See, e.g., United States v. Huguenin, 950 F.2d 23, 27 (1st Cir. 1991) ("if the defendant is in fact incompetent, his decision to give or withhold consent to an examination cannot be considered valid"). Cf. Commonwealth v. Hilton, 443 Mass. 597, 607 n.5, 823 N.E.2d 383 (2005) (although competency to stand trial is distinct from ability to understand and waive Miranda rights, defendant's "inability to comprehend such matters as the role of the judge and jury, even with repeated explanation, was highly probative as to whether [the defendant] would have understood Miranda warnings")... Nothing in the judge's order forecloses counsel from contesting any action taken by the judge, including disclosure of anything contained in the report of the Commonwealth's expert that she may permit. The judge should order that evidence offered by the expert will not include any incriminating statements, and any written report will be redacted, either by the expert or by the judge, before it is made available to the Commonwealth. The defense attorney will be in as good a position as the Commonwealth to use the results of the examination at the subsequent competency hearing.

Mental Health Litigation Division