in the Matter of E.F. ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00438-CV
IN THE MATTER OF E.F.
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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
In one issue, Appellant E.F. contends that the trial court erred by
authorizing the administration of psychoactive medicine because the evidence is
legally and factually insufficient to show that (1) she lacks the capacity to make a
decision regarding the administration of the proposed medications and (2)
treatment with the proposed medications is in her best interest. Because we hold
that the evidence is legally insufficient to support the trial court’s finding that E.F.
1
See Tex. R. App. P. 47.4.
lacked capacity to make a decision regarding the administration of the proposed
medications, we will reverse and render.
II. FACTUAL BACKGROUND
Dr. Harvey Martin testified that he had known E.F. professionally for more
than fifteen to twenty years as both an inpatient at Red River Hospital and in his
private office, that she is currently under a court order to receive inpatient mental
health services, and that she is being treated for bipolar disorder with psychosis
and mild dementia, ―a recognizable form of mental illness.‖ He testified that E.F.
had been exhibiting the following symptoms: unstable mood, some difficulty
accurately assessing her own situation and her own condition, some problems
with short-term and immediate memory, some difficulty with sleep, and some
hyperirritability.
He also testified that E.F. had refused to take medications voluntarily. He
stated that she lacked the capacity to make a decision regarding the
administration of medicine. When asked why, he stated that ―in the past, very
modest doses of this type of medication have been, in [his] view and . . . the view
of her family, very helpful, very stabilizing, and [he thought] it would allow her to
function more like her normal self.‖ His hope was that with the medication, E.F.’s
irritability would improve, that her sleep would improve, and that ―her capacity to
embrace the idea that her family and her treating medical staff were trying to act
on her best interest [would improve.]‖ Dr. Martin thought that the medications
would enable E.F. to ―better cooperate‖ and ―to function in a more normal way.‖
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Dr. Martin testified that he had ―spent a lot of time trying [and had tried many
times] to discuss the benefits and the risks, the potential side effects, and so forth
at some length with [E.F.] She’s been very adamant that it would not be a
consideration.‖
When asked whether she appeared to understand the benefits and side
effects, he answered, ―It’s difficult to say. Basically she stated that she wasn’t
going -- she wasn’t open to discussion about it, was not open to considering it.‖
Further, he testified that she would not even allow him to carry out the
appropriate monitoring tests for her blood thinner prescribed by doctors other
than those practicing at Red River.
Dr. Martin testified that the side effects of the various requested
medications are usually very minimal but admitted that sedation and gastric
irritation were possible. He stated that when E.F. had been on the same
medications in the past, she had been ―essentially side effect free‖ and that he
did not recall specifically that she had shown any symptoms of side effects. But
he admitted that ―[t]here may have been a small tremor at one point‖ before an
adjustment in the medication. He also admitted that there were some serious
potential side effects, such as tardive dyskinesia or neuroleptic malignant
syndrome, which have the potential to be life-threatening. But Dr. Martin
explained that those side effects
were much more of a consideration with the older generation of what
are called neuroleptics or antipsychotic medications, things such as
Haldol, Thorazine, Mellaril, those kinds of medications.
3
One of the advantages of the newer generation of
antipsychotics is the risk for tardive dyskinesia, for example, with this
drug, while it’s been reported, I’ve never seen it in any of my
patients, and so the incidence of that is very low.
Additionally, the dosage range that we’re talking about, at
least in the past for [E.F.], has been comparatively relatively low.
Dr. Martin testified that he was familiar with the potential side effects and
was specifically trained to watch for them. At E.F.’s counsel’s urging, he
promised that he would do so. Dr. Martin concluded that the benefits of the
requested medications outweighed the possible side effects and that the
medications were in her best interest.
Further, Dr. Martin testified that he did not believe there was any
alternative to court-ordered medication. He stated that thus far in this round of
court-ordered inpatient care, E.F.’s dementia with delusions and psychosis had
not improved. He admitted that although she had been ―very unwilling to take
any of the additional [medications] that [he] ha[d] prescribed[, h]er others[,
prescribed by other doctors,] have been [only] a little bit hit or miss.‖
Dr. Martin stated that the requested medications would not be as ―helpful
for her mental illness‖ if not taken consistently. He had therefore requested that
the medications be ordered as intramuscular injections. He explained,
I guess the advantage is that once that’s given, that there’s not the
daily resistance, the daily discussion about not taking it or taking it,
and so it allows the medicine to be present. And it’s in what’s called
a Depo form, which means that it’s slowly released over time.
There’s the convenience of not having to take yet another pill orally.
Those would probably be the two big benefits.
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But he also stated that he was open to switching from intramuscular
injections back to oral administration if E.F. improved on the medication.
E.F.’s testimony from the trial follows:
Q. [T]he application that Judge Butler is hearing today deals with
you being Court ordered to take certain medications. Do you
understand that?
A. Yes.
Q. Do you want to take those medications?
A. Well, what medications were Court ordered?
Q. Well, none have been yet.
A. Well, I don’t think they should be. I object to this whole
hearing. I was not—
Q. Okay.
A. What is it?
Q. I was just going to ask you another question. Is that okay?
A. Yes.
Q. You don’t want to take shots, do you?
A. No. I don’t have any reason to take shots. I take the
medication when they hand it to me.
Q. Okay. And you’re telling us that you agree to take that
medicine; is that correct?
A. Well, I haven’t taken some that are antipsychotic, because I’m
not a psychotic.
Q. Okay. And you don’t want the Judge to order that you have to
take medicine you don’t want to take, do you?
A. No, I don’t want him to.
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Q. Do you think that you’ll be okay without the medicine that they
want you to be Court ordered—
A. Well, I have been. I’ve been in the hospital there, and I’ve
been without the medication. I’ve been normal as anyone on
the street.
Q. You don’t think you’re irritable, or not sleeping good, or
anything like that?
A. No, no, I am not. I am cooperative.
Q. All right. And you’ll -- and you understand that you can get out
of the hospital when you’re cooperative, don’t you?
A. Yes, I do. But I object to Dr. Martin. I fired him as my
physician three weeks ago, and he has chased me around the
hospital trying to give me medication and counsel. I don’t
want him as my physician. I told my husband that, and he
went to Dr. Gonzalez and told him what the situation was, and
Dr. Gonzalez said he would recommend a psychiatrist if it
were needed.
Q. Do you agree to receive other kinds of treatments, like
psychotherapy and other kinds of therapy treatments?
A. No. I am eighty-seven years old. Psychotherapy is not going
to change me. I do not want Dr. Martin as my physician. He
has done nothing to help me.
Q. I believe I’ll—
A. He believes in nothing but drugs, and he pushes a prescription
of drugs at you immediately. I object to that. I don’t want
drugs in my brain, carrying them around. It’s just a lot of extra
baggage. I don’t need those.
On redirect examination, Dr. Martin explained that before ―the first
hearing,‖2 he had talked to E.F. and told her that he would continue to be her
2
The record from that hearing is not in the record before us.
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doctor until that hearing. He testified that after that hearing, he went to her room
and told her the name of her new psychiatrist. According to Dr. Martin,
she said, ―Well, wait a minute. I’m still thinking about that. Let’s
don’t do that yet.‖ And so that’s kind of where it remained until about
three or four days ago, when I received a telegram, I believe, from
[E.F.] saying, ―Don’t you remember, you are not -- you are no longer
my physician?‖ And so I’m open to whatever is decided as far as
that’s concerned.
E.F. then spoke, ―Your Honor, I do not want another psychiatrist at Red
River Hospital. I do not want to be at that hospital again.‖ Dr. Martin then
continued his explanation to the trial court: ―We spoke with [E.F.] about this
matter this morning, and tried to explain that Dr. Gonzales . . . does not have
privileges at Red River Hospital, and so any change of physician would have to
be somebody who had admitting and clinical privileges at Red River.‖
After the doctor finished his answer, the following transpired:
THE COURT: Okay.
THE PATIENT: Doctor, the physicians—the conditions at Red River
Hospital are objectionable to me. They take me to a shower,
put me in a storage room, and leave me there to wait, then
take me to a room where the toilet hasn’t been cleaned in
weeks, and there’s excreta in the commode. And I’m
supposed to take a shower in that bath. Now, I don’t think I
have to put up with that. I don’t want that kind of a hospital.
After hearing the above testimony, the trial court found on the record that
E.F. lacked ―the mental capacity to make informed treatment [decisions] as to the
medication‖ and found that such treatment with medications in the classes of
antidepressants, antipsychotics, anxiolytics, sedatives, hypnotics, and mood
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stabilizers was in E.F.’s best interest. At the conclusion of the court’s findings,
E.F. stated that she was going to appeal the trial court’s findings.
III. STANDARD OF REVIEW
Clear and convincing evidence is ―that measure or degree of proof which
will produce in the mind of the trier of fact a firm belief or conviction as to the truth
of the allegations sought to be established.‖ State v. K.E.W., 315 S.W.3d 16, 20
(Tex. 2010). Evidence that merely exceeds a scintilla is not legally sufficient
when the burden of proof is clear and convincing. Id. In evaluating evidence for
legal sufficiency under a clear and convincing standard, we review all the
evidence in the light most favorable to the finding to determine whether a
reasonable factfinder could have formed a firm belief or conviction that the
finding was true. Id. We resolve disputed fact questions in favor of the finding if
a reasonable factfinder could have done so, and we disregard all contrary
evidence unless a reasonable factfinder could not have done so. Id.
IV. SUBSTANTIVE LAW
Section 574.106 of the health and safety code governs this type of
proceeding and related order. The statute provides in relevant part,
(a) The court may issue an order authorizing the administration of
one or more classes of psychoactive medication to a patient who:
(1) is under a court order to receive inpatient mental health
services . . . [.]
(a–1) The court may issue an order under this section only if the
court finds by clear and convincing evidence after the hearing:
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(1) that the patient lacks the capacity to make a decision
regarding the administration of the proposed medication and
treatment with the proposed medication is in the best interest of the
patient . . . [.]
(b) In making the finding that treatment with the proposed medication
is in the best interest of the patient, the court shall consider:
(1) the patient’s expressed preferences regarding treatment
with psychoactive medication;
(2) the patient’s religious beliefs;
(3) the risks and benefits, from the perspective of the patient,
of taking psychoactive medication;
(4) the consequences to the patient if the psychoactive
medication is not administered;
(5) the prognosis for the patient if the patient is treated with
psychoactive medication;
(6) alternative, less intrusive treatments that are likely to
produce the same results as treatment with psychoactive
medication; and
(7) less intrusive treatments likely to secure the patient’s
agreement to take the psychoactive medication.
Tex. Health & Safety Code Ann. § 574.106 (West 2010).
Section 574.101(1) provides the definition of capacity:
(1) ―Capacity‖ means a patient’s ability to:
(A) understand the nature and consequences of a proposed
treatment, including the benefits, risks, and alternatives to the
proposed treatment; and
(B) make a decision whether to undergo the proposed
treatment.
Id. § 574.101.
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V. LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT
FINDING THAT E.F. LACKS CAPACITY
E.F. argues that the evidence is legally and factually insufficient to support
the trial court’s finding that she lacks capacity. We focus on E.F.’s argument that
the testifying physician could not provide any reasons why he testified that she
lacked capacity.
As set forth above, Dr. Martin testified that E.F. lacked the capacity to
make a decision regarding the administration of psychoactive medications.
When asked why he believed that E.F. lacked such capacity, he stated that ―in
the past very modest doses of this type of medication have been, in [his] view
and . . . the view of her family, very helpful, very stabilizing, and [he thought] it
would allow her to function more like her normal self.‖ His hope was that with the
medication, E.F.’s irritability would improve, that her sleep would improve, and
that ―her capacity to embrace the idea that her family and her treating medical
staff were trying to act on her best interest [would improve.]‖ Dr. Martin’s
testimony, however, does not demonstrate why E.F. lacked the capacity to make
a decision regarding the administration of psychoactive medication; he did not
link her diagnoses—i.e., bipolar disorder with psychosis and mild dementia—or
her behavior to any lack of capacity. Thus, there was no factual testimony from
Dr. Martin at the hearing supporting his conclusory opinion that he believed that
E.F. lacked the capacity to make a decision regarding the administration of
psychoactive medication. See Wal-Mart Stores, Inc. v. Merrell, 313 S.W.3d 837,
839 (Tex. 2010) (holding that conclusory testimony constitutes no evidence); City
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of San Antonio v. Pollock, 284 S.W.3d 809, 820 (Tex. 2009) (same); Coastal
Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004)
(same); Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711–12 (Tex.
1997) (same), cert. denied, 523 U.S. 1119 (1998).
The record instead reveals that E.F. is a well-spoken, eighty-seven year-
old woman. She explained that she did not want to take antipsychotic
medications because she was not psychotic. She testified that she had not taken
the antipsychotic medications at times in the past and had been as ―normal as
anyone.‖ She was alert to the conditions of her surroundings, and her testimony
regarding the conditions of her surroundings was not controverted. And she was
able to interact with the court, even to the extent of stating that she would appeal
the decision.
Considering all of the evidence in the light most favorable to the trial
court’s finding, resolving disputed fact questions in favor of the finding if a
reasonable factfinder could have done so, and disregarding all contrary evidence
unless a reasonable factfinder could not have done so, we hold that a reasonable
trier of fact could not have formed a firm belief or conviction that E.F. lacked the
ability to understand the nature and consequences of administration of the
proposed medications, including the risks, benefits, and alternative treatments or
to make a decision whether to voluntarily take the proposed medications. See
Tex. Health & Safety Code Ann. § 574.106(a–1)(1); K.E.W., 315 S.W.3d at 20;
State ex rel. E.G., 249 S.W.3d 728, 732 (Tex. App.—Tyler 2008, no pet.); see
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also State ex rel. W.G., No. 12-08-00344-CV, 2009 WL 3790016, at *4 (Tex.
App.—Tyler Nov. 12, 2009, no pet.) (mem. op.); State ex rel. B.L., No. 12-08-
00081-CV, 2008 WL 4117959, at *4 (Tex. App.—Tyler Sept. 3, 2008, no pet.)
(mem. op.). Consequently, the evidence is legally insufficient to support the trial
court’s finding based on section 574.106(a–1)(1) of the Texas Health and Safety
Code. Tex. Health & Safety Code Ann. § 574.106(a–1)(1). Having determined
that the evidence is legally insufficient to support the statutorily required lack of
capacity finding, it is unnecessary for us to address the portion of E.F.’s issue
dealing with the trial court’s best interest finding and her arguments that the
evidence is factually insufficient to support the trial court’s findings. See Tex. R.
App. P. 47.1 (requiring appellate court to address only issues necessary to final
disposition of the appeal). We sustain E.F.’s sole issue.
VI. CONCLUSION
Having sustained E.F.’s sole issue, we reverse the trial court’s order
authorizing psychoactive medication and render judgment denying the State’s
application for an order to authorize psychoactive medications.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.
DAUPHINOT, J. dissents without opinion.
DELIVERED: December 9, 2011
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