in the Matter of C.P.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00246-CV
IN THE MATTER OF C.P.
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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
TRIAL COURT NO. 38693-LR-D
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant C.P. appeals from the trial court’s order authorizing the Texas
Department of Mental Health and Mental Retardation (MHMR), by and through
its agents, to administer psychoactive medication to him, regardless of his
refusal. In a single issue, C.P. challenges whether the evidence is legally and
factually sufficient to support the trial court’s order. Because we hold that the
evidence is factually insufficient, we will reverse and remand.
1
See Tex. R. App. P. 47.4.
II. BACKGROUND
C.P. was committed to the North Texas State Hospital, Vernon Campus
after he was found not guilty by reason of insanity for committing the offense of
aggravated assault of a family member that occurred on or about December 29,
2011. See generally Tex. Code Crim. Proc. Ann. arts. 46C.001–.270 (West 2006
& Supp. 2014). In February 2014, the trial court conducted a hearing regarding
the renewal of C.P.’s inpatient treatment and ordered him recommitted to
inpatient treatment for one year. See id. art. 46C.261(a) (West 2006).
Six months later, C.P.’s treating doctor, Dr. James Boger, filed an
application to administer psychoactive medications–forensic because C.P. was
diagnosed with schizoaffective affective disorder, depressed type; was having
delusional thoughts; and was refusing an increased dose or alternative
medications. After hearing testimony from Dr. Boger and from C.P., the trial
court found by clear and convincing evidence that C.P. was under a court order
to receive inpatient mental health services, that he lacked the capacity to make a
decision regarding the administration of the proposed medications and treatment,
and that treatment with the proposed medications was in C.P.’s best interest.
The trial court thereafter ordered the administration of psychoactive medication to
C.P., regardless of C.P.’s refusal of the medication.2 C.P. then perfected this
2
The order states that it expires “upon the expiration of termination of the
court ordered temporary or extended mental health commitment.”
2
accelerated appeal. See Tex. Health & Safety Code Ann. § 574.070(b) (West
2010).
III. SUFFICIENCY OF THE EVIDENCE
In his sole issue, C.P. argues that the evidence is legally and factually
insufficient to support the trial court’s order authorizing MHMR to administer
psychoactive medication to C.P., regardless of his refusal.
A. Burden of Proof and Standards of Review
Clear and convincing evidence must support orders authorizing
administration of psychoactive medication regardless of the patient’s refusal.
Tex. Health & Safety Code Ann. § 574.106(a–1) (West 2010). Clear and
convincing evidence is that measure or degree of proof that 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).
In evaluating the evidence for legal sufficiency under the clear and
convincing standard, we review all of 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 any disputed
facts 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. The factfinder, not this court, is the sole judge of the credibility and
demeanor of the witnesses. In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009).
3
In reviewing the evidence for factual sufficiency under the clear and
convincing standard, we must determine whether, on the entire record, a
reasonable factfinder could reasonably form a firm conviction or belief that its
finding was true. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). If, in light of
the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. Id. We must not supplant the trial court’s
judgment with our own. Id. at 109. The factfinder is the sole judge of the
credibility of witnesses and the weight to be given their testimony. Id. An opinion
reversing for factual insufficiency must detail the evidence relevant to the issue or
point in consideration and clearly state why the finding is factually insufficient (in
other words, why the evidence supporting the finding is so weak or is so against
the great weight and preponderance of the evidence as to be manifestly unjust,
why it shocks the conscience, or why it clearly demonstrates bias). Pool v. Ford
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).
B. Requisite Findings for Order Authorizing Psychoactive Medication
A trial court may issue an order authorizing the administration of
psychoactive medications, regardless of the patient’s refusal of the medication, if
(1) a patient is under a court order to receive inpatient mental health services, (2)
the trial court finds by clear and convincing evidence that the patient lacks the
4
capacity to make a decision regarding the administration of the proposed
medications, and (3) the trial court finds by clear and convincing evidence that
treatment with the proposed medications is in the best interest of the patient.
Tex. Health & Safety Code Ann. § 574.106(a)(1), (a–1)(1) (West 2010).
On appeal, C.P. challenges only the second required finding relating to
capacity; we therefore review the record to determine whether legally and
factually sufficient evidence supports the trial court’s capacity finding.3
C. Testimony at the Hearing
Two witnesses—Dr. Boger and C.P.—gave brief testimony at the hearing
on Dr. Boger’s application for psychoactive medication.4
1. Doctor Boger’s Testimony
Dr. Boger testified that C.P. had been his patient since “the beginning of
his program” and that C.P. had been in treatment for almost two years. Dr.
Boger was treating C.P. for schizoaffective disorder, which is characterized by
fixed false beliefs, mood components, and depression.
Prior to C.P.’s admission to the state hospital, he had “persecutory
delusions,” and after admission to the state hospital, he exhibited “limited insight”
into his criminal background and his need for medication. C.P. believed that the
3
Although C.P. briefly mentions one best-interest factor within the context
of his capacity argument, his brief contains no argument challenging the
sufficiency of the evidence to support the trial court’s best-interest finding.
4
The reporter’s record in this appeal comprises eighteen pages, and only
fourteen of those pages include testimony from the witnesses.
5
Black Masons5 were present at the hospital, were conspiring with the hospital,
and were controlling the hospital.
According to Dr. Boger, C.P. poses a danger to others because if a person
becomes woven into C.P.’s delusions about the Black Masons, that person could
become C.P.’s target. Dr. Boger opined that C.P.’s history of dangerous
behavior makes him more prone to dangerous behavior in the future.
Nonetheless, Dr. Boger testified that C.P. had not acted out toward anyone in the
hospital.
Dr. Boger said that he wanted to change C.P.’s medication because C.P.
was still having delusional thoughts and because “there’s also the deterioration
aspect or the fact that he’s not moving forward. So we need to get him on the
proper meds so he can move forward in his treatment.” Dr. Boger testified that
the only alternative to court-ordered medication that could produce the same
result would be shock therapy and that he had tried everything that he could think
of that would be less intrusive, but C.P. had reached a plateau.
Dr. Boger said that he had explained the benefits and the side effects of
the proposed medications to C.P; the side effects of the proposed medications
include a movement disorder or stiffness and metabolic syndrome. Dr. Boger
believed that the benefits outweighed the possible side effects. Dr. Boger said
that C.P. understood the possible risks and benefits of the proposed medications
5
The record does not contain information about this group.
6
but explained, “When we wanna change his medications, he’s refusing to change
them.”
Dr. Boger testified that C.P. was currently taking a moderate dose of
Risperdal and that C.P. wanted the dosage lowered. Dr. Boger said that C.P.
had mentioned having a headache when he was placed on Risperdal. Dr. Boger
said that headaches are not a common side effect of Risperdal, that C.P. was
observed over a long period, and that none of the nursing staff witnessed C.P.
with a headache. Dr. Boger opined that C.P.’s delusional beliefs could extend to
beliefs that his medications were causing side effects.
Dr. Boger concluded that C.P. lacked the capacity to make a decision
regarding the administration of the proposed medications because C.P. did not
have “very good insight into his crime and the circumstances with regard[] to his
hospitalization” and because he continued to experience delusions about the
Black Masons while on his current medication.
Finally, Dr. Boger testified that he believed that the proposed medications
were in C.P.’s best interest and that treatment with the proposed medications
would improve C.P.’s quality of life. Dr. Boger said that if he could get C.P. on
the right medications, C.P. would “move on.”
2. C.P.’s Testimony
C.P. told his treatment team that he felt his life was in danger from the
Black Masons and said he still feels that way, “but that don’t mean I’m crazy or
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psychotic . . . [o]r would go off the deep end.” C.P. explained that he felt like he
was in danger because he had been told by a Black Mason that he needed to
“watch out.”
C.P. did not think his mental health was getting worse. C.P. said that he
was not antisocial; that he played games; that he interacted with the staff “all the
time, everyday”; that he had not encountered any problems with other patients or
with the staff; and that he was socializing very well.
C.P. felt that his current medications were working. He complained that he
suffered from headaches when he took Abilify, not Risperdal. C.P. said that Dr.
Boger did not have a conversation with him about increasing the dosage before
increasing it and that he did not like his medications being changed by Dr. Boger
without talking to him first. C.P. testified that he took the higher dosage of Abilify
two or three times before he asked Dr. Boger to lower the dosage. C.P. said that
Dr. Boger lowered the dosage and that he felt okay at the dosage he was
currently taking. C.P. felt that increasing the dosage would cause him to
experience headaches.
When asked whether he felt capable of making decisions regarding what
dosage of medications he should take or whether he thought he could make
those decisions, C.P. admitted that he was not an expert and does not know
what kind of medications are available. C.P. said that he was not informed
enough to say whether he wanted to take a medication; he had not had any
8
discussions with Dr. Boger about his medications and wanted the opportunity to
visit with the doctor. C.P. described Dr. Boger as a “drive-by doctor,” who just
came and said hello and then left.
D. Analysis
In his sole issue, C.P. argues that the evidence is legally and factually
insufficient to support a finding that he lacks the capacity to make a decision
regarding the administration of the proposed medications.
“Capacity” means a patient’s ability to understand the nature and
consequences of a proposed treatment, including the benefits, risks, and
alternatives to the proposed treatment and to make a decision whether to
undergo the proposed treatment. Id. § 574.101(1) (West 2010).
In evaluating the legal sufficiency of the evidence of the trial court’s
capacity finding, we will disregard all contrary evidence, unless a reasonable
factfinder could not have done so. See K.E.W., 315 S.W.3d at 20. As set forth
above, Dr. Boger testified that C.P. lacked capacity to make a decision regarding
the administration of psychoactive medications because C.P. exhibited limited
insight into his criminal background and his need for medication. Dr. Boger
explained that C.P. was being treated for schizoaffective disorder and that one of
the characteristics of the disorder was fixed false beliefs. Dr. Boger said that
C.P. had previously had, and continued to have, delusions about the Black
Masons and could have delusions about the side effects of his medications. Dr.
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Boger testified that C.P. had refused an increased in dosage, claiming that
Risperdal caused him headaches.
Viewing the evidence in the light most favorable to the trial court’s capacity
finding, while also giving deference to the trial court’s determination of the
witnesses’ credibility and demeanor, we hold that the trial court could have
formed a firm belief or conviction that C.P. lacked the capacity to make a
decision regarding administration of psychoactive medications to treat his mental
illness. See id. § 574.106(a-1)(1); K.E.W., 315 S.W.3d at 20; J.O.A., 283 S.W.3d
at 346; In re W.W., No. 12-13-00045-CV, 2013 WL 3156312, at *6 (Tex. App.—
Tyler June 19, 2013, no pet.) (holding evidence legally sufficient to support trial
court’s capacity finding). We overrule the portion of C.P.’s sole issue challenging
the legal sufficiency of the evidence to support the capacity finding in the trial
court’s order authorizing the administration of psychoactive medications–forensic
to C.P.
Having determined that the evidence is legally sufficient to support the trial
court’s capacity finding, we address factual sufficiency and consider all the
evidence, both that in support of and contrary to the trial court’s capacity finding.
See H.R.M., 209 S.W.3d at 108. Although Dr. Boger provided testimony that
C.P. lacked capacity because he had poor insight into the crime he had
committed and the circumstances of his hospitalization, had continued to have
delusions about the Black Masons, and could have delusions about the side
10
effects of his medications, Dr. Boger did not articulate how these poor insights or
delusions related to or impacted an ability by C.P. to understand the nature and
consequences of his proposed treatment—including the benefits, risks, and
alternatives to the proposed treatment—or his ability to make a decision whether
to undergo the proposed treatment. See Tex. Health & Safety Code Ann.
§ 574.101(1) (defining capacity). Instead, Dr. Boger testified that C.P.
understood the possible risks and benefits of the proposed modifications but had
refused changes to medications. Likewise, in the application for order to
administer psychoactive medication–forensic, Dr. Boger alleged that C.P. lacked
capacity only because he was “refusing increased dose or alternative
medi[c]ations.” But the section of the application in which the physician is to
check whether the patient verbally or otherwise indicated his refusal to take the
medication voluntarily is not completed. See id. § 574.104(a)(4) (West 2010).6
C.P. testified that he was taking his prescribed medications. C.P.
explained that he had tried the higher dosage of one drug prescribed by Dr.
Boger and had experienced headaches. C.P.’s testimony stated that his main
reason for noncompliance with a higher dosage was that he wanted to discuss
medication changes with Dr. Boger before they were made. He testified that Dr.
Boger did not talk with him prior to medication changes. Dr. Boger offered
contrary testimony––that he did speak with C.P. prior to medication changes––
6
While facts alleged in the application are not evidence that the statutory
standard has been met, see In re E.T., 137 S.W.3d 698, 700 (Tex. App.—San
Antonio 2004, no pet.), here such facts were not even alleged in the application.
11
and also testified that C.P. understood the possible risks and benefits of the
proposed medications.
In summary, the evidence that C.P. is taking medications, is not refusing
all medications, is expressing a desire to be involved in the decision-making
process regarding his medications, and is able—according to Dr. Boger’s
testimony—to understand the risks and benefits of proposed medications
constitutes evidence so significant that the trial court could not reasonably have
formed a firm belief or conviction that C.P. lacked the capacity to make a
decision regarding administration of psychoactive medications to treat his mental
illness. See Tex. Health & Safety Code Ann. § 574.106(a-1)(1); H.R.M., 209
S.W.3d at 108; W.W., 2013 WL 3156312, at *6 (holding evidence factually
insufficient to support trial court’s capacity finding). We therefore hold that the
evidence is factually insufficient to support the trial court’s capacity finding. We
sustain the portion of C.P.’s sole issue challenging the sufficiency of the evidence
to support the capacity finding in the trial court’s order authorizing the
administration of psychoactive medications–forensic to C.P.
IV. CONCLUSION
Having concluded that the evidence is legally sufficient but factually
insufficient to support the capacity finding in the trial court’s order authorizing the
administration of psychoactive medications–forensic to C.P., we reverse the trial
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court’s order and remand the case for further proceedings.7 See Tex. R. App. P.
43.2(d); W.W., 2013 WL 3156312, at *6.
PER CURIAM
PANEL: WALKER, J.; LIVINGSTON, C.J.; and MCCOY, J.
DELIVERED: October 23, 2014
7
Because the trial court may issue an order authorizing the administration
of psychoactive medication by making either of the findings required by section
574.106(a-1)(1), which includes a lack of capacity finding, or by section
574.106(a-1)(2), which includes a danger-to-self-or-others finding, and because
the trial court did not make a danger-to-self-or-others finding, we need not
address C.P.’s arguments concerning section 574.106(a-1)(2). See Tex. Health
& Safety Code Ann. § 574.106(a-1); State ex rel. A.S., No. 12-13-00300-CV,
2013 WL 6798153, at *2 (Tex. App.—Tyler Dec. 20, 2013, no pet.) (mem. op.)
(holding trial court was not required to make a danger-to-self-or-others finding
because it made lack of capacity finding); In re A.S.K, No. 02-13-00129-CV, 2013
WL 3771348, at *3 (Tex. App.—Fort Worth July 18, 2013, no pet.) (explaining
that sufficient evidence of either lack of capacity or of dangerousness to self or
others would support order); see also Tex. R. App. P. 47.1 (requiring appellate
court to address only issues necessary to final disposition of appeal).
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