The subject of the present appeal is an order issued by a judge in the Probate and Family Court (Probate Court), authorizing the involuntary administration of antipsychotic medication (substituted judgment treatment order
Background. Erma is a woman approximately fifty years old. She has been diagnosed with a mental illness that severely impairs thought processes and the ability to recognize reality. She has a long history of refusing antipsychotic medications, and has been hospitalized in connection with her mental illness approximately thirty-two times since 1991. The present guardianship proceeding was commenced in 2002, and in 2003, Erma's husband was appointed as her permanent guardian pursuant to G. L. c. 201, § 6. He continues to serve in that capacity.
Between 2003 and 2006, several substituted judgment treatment orders and accompanying treatment plans have been issued by Probate Court judges.
On February 2, 2009, Erma was discharged from the State hospital, after a District Court judge denied a petition filed by the Department of Mental Health (department) to continue her commitment. Meanwhile, in this case, the department served on the parties a motion to intervene and a separate motion to "reinstate" the previous substituted judgment treatment order and to "update" the treatment plan. On February 13, 2009, a Probate Court judge held a hearing on the two motions. Erma and her counsel attended the hearing, as did her guardian. At the hearing, the department filed a clinician's affidavit addressing Erma's competency and a proposed treatment plan (clinician's affidavit), and a medical certificate, both completed by a psychiatric nurse practitioner who had been treating Erma at the State hospital since January, 2008. The proposed treatment plan included two provisions for treatment with injectable antipsychotic medication. Erma objected to both of the department's
On February 17, 2009, the Probate Court judge issued the substituted judgment treatment order that is at issue before us. The order approved the department's treatment plan authorizing injection of antipsychotic medication and set a review date and alternative expiration date of April 17, 2010. Erma thereafter filed a motion for reconsideration of the order and treatment plan, which was denied. She filed a timely appeal from the substituted judgment treatment order in the Appeals Court, and we transferred the case to this court on our own motion.
Discussion. 1. Mootness. The substituted judgment treatment order challenged by Erma had a review and termination date of April 17, 2010. It was not reviewed in April of 2010, and accordingly, it expired on the termination date. The order's termination moots this appeal, and the mootness is underscored by two other events. First, in the time since this appeal was filed, Erma has been the subject of separate commitment proceedings in the District Court under G. L. c. 123, §§ 7 and 8, and in connection with those proceedings, an order authorizing treatment with antipsychotic medication under G. L. c. 123, § 8B, is currently in effect.
2. Notice. The department served its motions to intervene and for a reinstated or updated substituted judgment treatment order on Erma's counsel on or about January 23, 2009. There is no indication in the record, however, that the department served the clinician's affidavit and medical certificate on Erma's counsel at any time before the actual motion hearing.
Appeal dismissed.
An order authorizing the administration of antipsychotic medication (substituted judgment treatment order) must contain a provision for periodic review and also a termination date. See id. at 201. See also G. L. c. 190B, § 5-306A (c).