21CA1734 Peo in Interest of Abeyta 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA1734
Pueblo County District Court No. 21MH151
Honorable Timothy O’Shea, Judge
The People of the State of Colorado,
Petitioner-Appellee,
v.
Gregory Thomas Abeyta,
Respondent-Appellant.
ORDER AFFIRMED
Division III
Opinion by JUDGE GOMEZ
J. Jones and Lipinsky, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
Cynthia Mitchell, County Attorney, Kathleen H. Shafer, Special Assistant
County Attorney, Pueblo, Colorado, for Petitioner-Appellee
Nathan Law P.C., Mary E. Nathan, Fountain, Colorado, for Respondent-
Appellant
1
¶ 1 Gregory Thomas Abeyta appeals the district court’s order
authorizing mental health personnel at the Colorado Mental Health
Institute at Pueblo (CMHIP) to administer medication to him
without his consent. We affirm.
I. Background
¶ 2 Abeyta has been confined at CMHIP since August 2020, when
he was found incompetent to proceed in a criminal case. After he
refused certain treatment at CMHIP, the People petitioned the
district court for authorization to involuntarily administer three
medications: (1) Olanzapine (Zyprexa); (2) Paliperidone (Invega or
Invega Sustenna); and (3) Valproic Acid (Depakote).
¶ 3 Dr. Hareesh Pillai, the CMHIP staff psychiatrist who
supervises Abeyta’s care and treatment, offered testimony
supporting the petition in an affidavit filed with the petition and at
an evidentiary hearing before the district court.
¶ 4 Dr. Pillai testified that Abeyta has a mental illness, lacks
insight into his mental illness, and is incompetent to effectively
participate in decisions affecting his mental health. He said that
Abeyta has been diagnosed with bipolar disorder, with symptoms of
2
paranoia, delusions, disorganized thinking, depression, and suicidal
ideation.
¶ 5 Dr. Pillai also explained why Abeyta needs the three proposed
medications. Dr. Pillai described the uses, dosages, and potential
risks and side effects of the medications, explaining that the
Olanzapine and Paliperidone were needed to treat Abeyta’s paranoia
and delusions and the Valproic Acid was needed to stabilize his
mood. Dr. Pillai explained that Abeyta was currently taking only
Olanzapine and Valproic Acid but that Dr. Pillai proposed to
administer Paliperidone in place of the Olanzapine, in the hope that
the new medication would more effectively treat Abeyta’s paranoia
and delusions while causing fewer side effects.
1
Dr. Pillai further
explained that, after this transition, he would eliminate the
Olanzapine except for use as a backup medication.
¶ 6 According to Dr. Pillai, before receiving the Olanzapine and
Valproic Acid on an emergency basis, Abeyta had verbal and
1
At times during the hearing, Dr. Pillai mistakenly referred to the
new medication as Haloperidol. At other times, he referred to it by
the brand names Invega and Invega Sustenna. It’s clear from the
record, including Dr. Pillai’s affidavit attached to the petition, that
the new medication is Paliperidone (Invega or Invega Sustenna).
3
physical outbursts and was aggressive and assaultive toward staff
members at CMHIP (including lunging at and attempting to assault
staff), but this behavior had significantly declined after Abeyta
began receiving the medications. Dr. Pillai opined that without the
requested medications Abeyta will likely suffer significant
deterioration of his mental condition and will pose a serious risk of
harm to himself and others. Finally, he testified that the side
effects of the medications are treatable, the failure to medicate
would be more harmful than the risks the medications posed, and
no less intrusive alternative is available.
¶ 7 Abeyta also testified at the hearing. He denied having a
mental illness, being a danger to himself or others, or needing any
medications. He did admit, however, that he had yelled at,
threatened, and lunged at CMHIP staff and “was a little out of
control” before he was given the Olanzapine and Valproic Acid. Yet
he said that he had never physically touched anyone. He also said
that he would not voluntarily take any medications, and he
complained of the side effects of the medications he had been
taking, including pain, shaking, nausea, drooling, slurring of words,
and a “horrible” taste in his mouth.
4
¶ 8 At the end of the hearing, the court granted the petition. The
court found that Dr. Pillai had “testified very credibly” and adopted
his opinions. The court also expressly found, by clear and
convincing evidence, that
• Abeyta “is mentally ill,” “has no or limited insight into his
mental illness,” and “is incompetent to effectively
participate in treatment decisions”;
• “the treatment is necessary to both prevent a significant
and long-term deterioration in [Abeyta’s] mental
condition and prevent the likelihood of [him] causing
serious harm to himself or others in [CMHIP]”;
• “reasonable efforts have been made to obtain voluntary
acceptance of the treatment,” but Abeyta “has repeatedly
refused to consent to the treatment”;
• “a less intrusive treatment alternative is not available”;
and
• “the need for the treatment is sufficiently compelling and
overrides and [sic] bona fide and legitimate interest
[Abeyta] has in refusing the treatment.”
The court’s order expires in May 2022.
5
II. Discussion
¶ 9 Abeyta argues that the district court erred in its application of
the law to the facts of this case. We are not persuaded.
A. Legal Framework and Standard of Review
¶ 10 To obtain a court order authorizing the involuntary
administration of medication, the People must establish the four
elements set forth in People v. Medina, 705 P.2d 961, 973 (Colo.
1985). Those elements are
(1) that the patient is incompetent to effectively
participate in the treatment decision; (2) that
treatment by . . . medication is necessary to
prevent a significant and likely long-term
deterioration in the patient’s mental condition
or to prevent the likelihood of the patient’s
causing serious harm to himself or others in
the institution; (3) that a less intrusive
treatment alternative is not available; and
(4) that the patient’s need for treatment by . . .
medication is sufficiently compelling to
override any bona fide and legitimate interest
of the patient in refusing treatment.
2
2
When the state seeks to administer medication involuntarily to
render a criminal defendant competent to stand trial, courts apply
the Supreme Court’s test in Sell v. United States, 539 U.S. 166,
180-81 (2003). But state law tests apply when the state, as here,
seeks to administer medication involuntarily for “a different
purpose,” including a purpose “related to the individual’s
dangerousness, or . . . the individual’s own interests where refusal
6
¶ 11 The People bear the burden of proving each of these elements
by clear and convincing evidence. Id. Clear and convincing
evidence is evidence that “is stronger than a mere ‘preponderance’”
and “is highly probable and free from serious or substantial
doubt.” People in Interest of R.F., 2019 COA 110, ¶ 16 (quoting
Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.
App. 1995)). The testimony of a physician seeking to administer
treatment may itself be sufficient to satisfy the four elements.
People in Interest of R.K.L., 2016 COA 84, ¶ 30.
¶ 12 Applying the Medina test involves mixed questions of fact and
law. People in Interest of R.C., 2019 COA 99M, ¶ 7. We defer to the
district court’s findings of fact if they are supported by the record,
but we review the court’s legal conclusions de novo. Id. “The
district court, as fact finder, ‘has discretion to determine the
credibility of the witnesses; the sufficiency, probative effect, and
weight of the evidence; and the inferences and conclusions to be
drawn from it.’” Id. (quoting People in Interest of S.M.A.M.A., 172
P.3d 958, 962 (Colo. App. 2007)).
to take drugs puts his health gravely at risk.” Id. at 181-82; see
also People in Interest of R.F., 2019 COA 110, ¶ 11 n.1.
7
B. Analysis
¶ 13 The district court found that the People had proved all four
Medina elements by clear and convincing evidence. Abeyta
challenges the court’s findings on the second, third, and fourth
elements. We consider each of these disputed elements in turn.
1. Necessity of the Medication
¶ 14 The second Medina element requires a court to determine
“whether the proposed treatment is necessary either to prevent a
significant and likely long-term deterioration in the patient’s mental
condition or to prevent the likelihood of the patient’s causing
serious harm to himself or others in the institution.” Medina, 705
P.2d at 973. This involves consideration of two alternative factors:
(1) “the patient’s actual need for the medication” based on the
nature and gravity of his illness, the extent to which the medication
is essential for effective treatment, the prognosis without the
medication, and whether a failure to medicate would be more
harmful to the patient than any risks posed by the medication; and
(2) “[t]he dangerousness of the patient” to “the physical safety” of
himself or others, and specifically “whether [his] mental condition is
such that in the absence of the proposed treatment [he] will likely
8
constitute a continuing and significant threat to the safety of
himself or others in the institution.” Id. at 973-74; accord People v.
Marquardt, 2016 CO 4, ¶ 18.
¶ 15 Abeyta concedes this element with respect to two of the three
medications the district court authorized: Paliperidone and Valproic
Acid. But he contends that the third medication, Olanzapine, is not
essential to his effective treatment because his treatment plan
contemplates replacing it with Paliperidone. He reasons that,
because Dr. Pillai indicated that he could be effectively treated with
Paliperidone and Valproic Acid alone, with better results and fewer
side effects, he “does not actually need Olanzapine.”
¶ 16 To the contrary, Dr. Pillai’s testimony indicates that
Olanzapine was still needed for Abeyta’s treatment as of the time of
the hearing because Olanzapine was still being used to alleviate his
paranoia and delusions, and the potential alternative treatment,
Paliperidone, hadn’t yet been tested on him. Thus, the record
supports the district court’s finding that this element was satisfied.
See People in Interest of C.J.R., 2016 COA 133, ¶ 34 (provider’s
testimony about a patient’s need for medication supported finding
that this element was satisfied); R.K.L., ¶ 36 (same).
9
2. No Less Intrusive Alternative
¶ 17 The third Medina element — which considers the availability of
less intrusive alternatives — “encompasses not only the gravity of
any harmful effects from the proposed treatment but also the
existence, feasibility, and efficacy of alternative methods of treating
the patient’s condition or of alleviating the danger created by that
condition.” Medina, 705 P.2d at 974. An alternative treatment is
considered to be less intrusive if it has fewer harmful side effects
and is at least as effective at treating the patient’s condition as the
proposed treatment. R.C., ¶ 9.
¶ 18 Abeyta argues that administration of Paliperidone and
Valproic Acid alone is a less intrusive alternative to administration
of all three medications, particularly given Dr. Pillai’s stated belief
that Paliperidone would be more effective and cause fewer side
effects than Olanzapine. Abeyta also points to Dr. Pillai’s testimony
that, after the transition to Paliperidone, Olanzapine would be
maintained only as a backup medication.
10
¶ 19 In so arguing, Abeyta relies primarily on R.C.
3
In that case, a
division of this court held that the People didn’t satisfy the third
Medina element as to six backup medications when the patient had
already been taking a different medication for ten days, that
medication was proving effective, and the treating provider said he
would continue the use of that medication and would turn to the
backup medications only if they were needed in the future. R.C.,
¶¶ 8-16; see also R.K.L., ¶¶ 38, 40 (the People didn’t satisfy this
element as to ten backup medications included in a patient’s
treatment plan in the event that the medication he was currently
taking ceased to be effective or developed intolerable side effects).
Critically, the provider in R.C. “did not testify that [the patient]
needed to receive the [s]ix [backup] [m]edications at the time of the
hearing” or that he would need them in the future. R.C., ¶ 11.
¶ 20 Here, however, the Olanzapine was not purely a backup
medication that might never be needed in Abeyta’s treatment.
3
Abeyta also relies on unpublished opinions from this court
following People in Interest of R.C., 2019 COA 99M, notwithstanding
this court’s policy forbidding the citation of unpublished opinions
except in specific circumstances not present here. See Colorado
Court of Appeals, Citation Policies, Policy Concerning Citation of
Unpublished Opinions (2021), https://perma.cc/5HBK-BGR4.
11
Rather, as Dr. Pillai testified, it was still in use as of the time of the
hearing, was critical to Abeyta’s treatment at that time, and would
be eliminated only after — and if — Abeyta successfully transitioned
to the new proposed treatment with Paliperidone. Thus, the record
supports the district court’s finding that there was, at the time of
the hearing, no less intrusive alternative to including Olanzapine
with the other two medications.
3. Need for Treatment Overriding Legitimate Reasons to Refuse
¶ 21 In assessing the fourth Medina element — whether the
patient’s need for treatment is sufficiently compelling to override
any legitimate interest in refusing treatment — a court must
consider “whether the patient’s refusal is bona fide and legitimate”
and, if it is, “whether the prognosis without treatment is so
unfavorable that the patient’s personal preference must yield to the
legitimate interests of the state in preserving the life and health of
the patient placed in its charge and in protecting the safety of those
in the institution.” Medina, 705 P.2d at 974; accord C.J.R., ¶ 40.
¶ 22 Abeyta cites the negative side effects and risks of the
medications he had received, including, in particular, the pain he
said he suffers for an hour and a half each night that he described
12
at the hearing as “pure hell.” The district court acknowledged the
cited side effects but found that the need for treatment overrode
concerns with those side effects. The court also noted that the
planned change in medications may alleviate some of the side
effects. The record supports these findings. See R.K.L., ¶ 42
(evidence of the severity of the patient’s illness when not treated
and the risks if he weren’t medicated supported finding that this
element was satisfied).
¶ 23 Accordingly, we conclude that the district court did not err by
finding that the People had satisfied all of the Medina elements.
III. Conclusion
¶ 24 The order is affirmed.
JUDGE J. JONES and JUDGE LIPINSKY concur.
