Opinion
20-P-1391
06-07-2022
GUARDIANSHIP OF M.C.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
On February 22, 2019, the Department of Mental Health (DMH) petitioned the Probate and Family Court, Worcester Division, for authorization to treat involuntarily the respondent M.C. with antipsychotic medication in accordance with a treatment plan, and for appointment of a limited guardian to monitor the administration of the antipsychotic medication. After trial, on May 6, 2020, the trial judge imposed a guardianship limited to "monitoring the administration of antipsychotic medication only," and a treatment plan that provided for the administration of antipsychotic medication. The respondent filed a timely notice of appeal.
On July 28, 2020, the trial judge allowed a joint motion to extend the existing treatment plan until October 27, 2020, and on October 27, 2020, a second judge of the trial court allowed the department's motion to amend the plan and extend it for one year. The respondent's untimely notices of appeal from these orders were allowed by the single justice, who also consolidated all three appeals, which are now before us.
The respondent was fifty years old at the time of the first hearing and had a diagnosis of schizoaffective disorder, bipolar type. Her psychiatric symptoms were described at trial as "delusional paranoid thinking . . . accusing people of poisoning her, accusing [her treatment providers] of having . . . asbestos in the vents, . . . [and] being unable to work with her treatment providers repeatedly due to her labile moods." The respondent's treating psychiatrist at the Worcester Recovery Center and Hospital (WRCH), Dr. Amber Thompson, testified that the respondent "has . . . heard voices from the vents that she responds to. She has extreme mood lability, causing irritability and . . . extreme crying episodes. She screams until her face turns red and accuses the treatment team of causing her to have a stroke or heart attack. She has multiple somatic delusions about having heart attacks and strokes."
In May, 2018, the respondent entered WRCH to which she was involuntarily committed. According to the respondent's brief, after the involuntary commitment expired in July, 2018, she remained at WRCH on a conditional voluntary admission. See G. L. c. 123, §§ 10, 11. Her first treating psychiatrist prescribed Zyprexa. Dr. Thompson indicated that "while taking [Zyprexa] . . . [the respondent] displayed a substantial reduction in psychosis and displayed much reduced delusions and paranoia."
Zyprexa is an antipsychotic medication and, as evident from the October 5, 2020 and October 27, 2020 treatment plans, Zyprexa and Olanzapine are different names for the same medication. Dr. Thomas's testimony refers to Olanzapine. The judge uses the term Zyprexa. We use Zyprexa for consistency.
Dr. Thompson, testified that Zyprexa "was very helpful . . . [and] they were planning on discharging her." The respondent, however, was "morbidly obese" and she and her mother were concerned about the respondent's weight gain of ten pounds since her admission, which Dr. Thompson opined was a side effect of Zyprexa. On October 3, 2018, in order to ameliorate the weight gain caused by the Zyprexa, Dr. Thompson prescribed 20 milligrams of Ability and discontinued Zyprexa. Dr. Thompson testified that "we explicitly switched off of [Zyprexa] due to an actual reason stated by the patient," - - the weight gain.
This change in medication did not have an optimal therapeutic effect and led to a gradual worsening of the respondent's symptoms, increased irritability and dysphoria, and more delusions. At some point, Dr. Thompson proposed increasing Ability to a more effective dose. The respondent however consistently refused to increase the dose, and that remained her expressed position as of the time of the hearing on this matter in March, 2020.
Dr. Thompson testified that the respondent was psychotic at the time of her refusals to increase her dose of Ability. She also testified that, according to information provided by the respondent's mother, the respondent previously had done much better without significant side effects on a higher dose of Ability.
There was a notation in the respondent's medical records in June 2019 that she was clinically ready to be discharged from WRCH, but housing and placements were barriers. Dr. Thompson, however, did not agree that the respondent was ready for discharge at that time as the respondent refused to work with her treatment team to identify a discharge location and refused respite housing, "complaining, [among other things, ] that there was no WiFi there."
The petition in the instant matter was filed by DMH seeking an order allowing it "to treat [the] [r]espondent with antipsychotic medication," proposing a treatment plan of up to 40 milligrams of Ability and four weight neutral alternative antipsychotic medications, including delivery by intermuscular injections. DMH also sought appointment of a limited guardian to monitor the administration of the antipsychotic medication.
At the trial, Dr. Thompson testified that she had administered the Lamb warning and opined that the respondent understood it. However, the respondent would "not listen to any conversation whatsoever about medications." Dr. Thompson testified that "a feature of [the respondent's] particular mental illness" is that she "claims that she does not suffer from any mental illness, and she has very poor insight into the illness and that's likely related to illness itself." Dr. Thompson testified that although the respondent accepts treatment with 20 milligrams of Ability, the respondent cannot understand the potential benefits of or explain the risks and benefits of treatment. Dr. Thompson opined that the respondent's mental illness limited her ability to understand the benefits of additional medication and caused her to overestimate the risks of additional medication. Following trial, the judge entered the primary order at issue here.
See Commonwealth v. Lamb, 365 Mass. 265 (1974).
Discussion.
On appeal, the respondent argues first that the court failed to make the required determination that the respondent was an "incapacitated person" as required under our law before a guardian may be appointed. Since 2008, our statute has required such a finding. Under G. L. c. 190B, § 5-101(9) an "incapacitated person" is defined as,
"an individual who for reasons other than advanced age or minority has a clinically diagnosed condition that results in the inability to receive and evaluate information or make or communicate decisions to such an extent that the individual lacks the ability to meet essential requirements for physical health, safety, or self-care, even with appropriate technological assistance."
The respondent concedes that she has a clinically diagnosed condition, schizoaffective disorder bipolar type. She argues that the evidence was insufficient to demonstrate that this condition resulted in an inability to receive and evaluate information or make or communicate decisions to such an extent that the respondent lacked the ability to meet the essential requirements for physical health, safety, or self-care, with appropriate technological assistance.
To be sure, the evidence makes clear that respondent could receive information, and could communicate decisions. However the testimony supports a finding that she was unable, as a result of her clinically diagnosed condition, properly to evaluate that information, and that this interfered with her ability to be discharged from the hospital and to reintegrate into the community. This amounts to interference with an essential requirement for self-care within the meaning of the statute. And, although counsel argues in the brief for the respondent that there may have been legitimate reasons a competent patient would refuse increasing a dose of Ability, the evidence was sufficient to support a finding that the respondent is incapable of making informed decisions about her treatment with antipsychotic drugs. This conclusion is not affected by the fact that, as the respondent argues, if her treating psychiatrist had proposed a return to Zyprexa, which might have alleviated her symptoms (albeit with an additional likelihood of weight gain) the respondent might have agreed; that a person might happen to articulate agreement with one or another treatment recommendation does not necessarily demonstrate that there is insufficient evidence that she is incapable of making informed decisions about treatment. Consequently, we see no error in the judge's conclusion that she was required to move to the second step of the inquiry, and to determine, utilizing the substituted judgment standard, whether the respondent would, if not incapacitated, have decided to follow the proposed treatment plan of her providers, including an increase of the dose of Ability that she was taking.
With respect to the substituted judgment prong of the inquiry, the respondent argues that the judge failed properly to make the applicable determination. Although the respondent emphasizes her own expressed preferences, consideration of those expressed preferences is but one factor in the analysis. See Guardianship of Roe, 383 Mass. 415, 444 (1981) (factors a court must consider are: "(1) the ward's expressed preferences regarding treatment; (2) his religious beliefs; (3) the impact upon the ward's family; (4) the probability of adverse side effects; (5) the consequences if treatment is refused; and (6) the prognosis with treatment"). As the respondent notes, her own conditional voluntary admission indicates that she wanted to receive treatment, and her choices in July, 2018 to continue to be treated with Zyprexa and, subsequently, to discontinue treatment with Zyprexa in order to try Ability, indicate that, prior to the determination of incapacity, she desired efficacious treatment. In short the evidence was sufficient to support the conclusions of the judge, and the limited order of guardianship entered in this case.
In her reply brief, respondent argues that the judge's findings were inadequate. Although we need not address an argument raised for the first time in a reply brief, in light of the serious constitutional issues involved, we note that were we to reach the merits of the question, we would conclude that the findings were adequate. Under G. L. c. 190B, § 5-306 (b) (6), the guardian may only be appointed if "the person for whom the guardian is sought is an incapacitated person." Although the form signed by the judge upon entry of her order standing alone would not be adequate, see Fazio v. Fazio, 375 Mass. 394, 402 (1978) (holding that the trial judge must make specific findings that the statutory requirements for the appointment of a guardian are met), it does state that "the requirements of G. L. c. 190B, § 5-306 (b) (1)-(8) have been met and a basis exists for the guardianship." The judge's separate findings of fact and conclusion of law are sufficiently detailed to support both the finding that respondent was an incapacitated person, and the determination of substituted judgment necessary for the imposition of the order at issue in this matter. Given the form and those findings and conclusions, the absence of a sentence saying "I find the respondent to be incapacitated," is not fatal to the judge's order. Beyond that, in a subsection entitled "Competence," the judge made findings that adequately track the three subsections of G. L. c. 190B, § 5-101 (9). Thus, although a specific sentence referring to a finding of incapacity, and specific reference to each of the prongs of the test articulated in the statute, might make have made the order clearer, the law does not require any specific form of words, and the judge's findings are adequate to support her order.
The respondent does not make any specific argument beyond the fundamental ones we have addressed here with respect to the July 28, 2020 order extending the treatment plan and the October 27, 2020 order extending and amending the treatment plan.
For these reasons, the orders dated May 6, 2020; July 28, 2020; and October 27, 2020, are affirmed.
So ordered.
The panelists are listed in order of seniority.