In a major decision (Pembroke Hospital v. D.L. (May 23, 2019)) the SJC ruled that when a petition for commitment under Chapter 123 is denied, the respondent cannot be held for further evaluation at the petitioning facility or another facility barring new evidence “that failure to hospitalize such person would create a likelihood of serious harm by reason of mental illness.” M.G.L. chapter 123, sec. 12(a). An “involuntary readmission pursuant to § 12 must be based on new information that was unavailable to the judge during the previous petition hearing. Here, as the judge denied the first petition — finding D.L. not to be a danger to himself or others — Pembroke needed new information pertaining to D.L.’s dangerousness in order to readmit him properly pursuant to § 12.” Pembroke v. D.L. at footnote 13.

In this case, Pembroke failed to discharge D.L. within the meaning of G. L. c. 123 after the denial of its petition to continue D.L.’s confinement; this was a violation of the statute. See G. L. c. 123, § 6 (a). In addition, Pembroke’s § 12 (a) application to South Shore for evaluation and subsequent readmission and involuntary confinement of D.L. was an “abuse or misuse” of § 12. See G. L. c. 123, § 12 (b); Magrini, 451 Mass. at 784, 889 N.E.2d 929. Finally, because D.L. was not held lawfully under § 12 (b), the District Court did not have jurisdiction to rule on the petition for civil commitment pursuant to G. L. c. 123, §§ 7 and 8. For these reasons, the decision and order of the Appellate Division denying D.L.’s motion to dismiss is reversed. The order of civil commitment pursuant to §§ 7 and 8 is vacated.

Congratulations to Devorah Borenstein who argued and briefed the case, Director of Mental Health Appeals, Karen Talley  for her support and Bar Advocates, Mike O’Brien & Joan Legraw, who were trial counsel in the successive petitions.