COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00375-CV
In the Matter of P.R.G. § From County Court at Law No. 1
§ of Wichita County (37221-LR-D)
§ November 8, 2012
§ Opinion by Justice McCoy
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was error in the trial court’s order. We modify the order of the trial court to
remove the language “the patient presents a danger to the patient or others in
the inpatient facility in which the patient is being treated as a result of a mental
disorder or mental defect as determined under Section 574.1065, Texas Health
and Safety Code.” It is ordered that the order of the trial court is affirmed as
modified.
SECOND DISTRICT COURT OF APPEALS
By_________________________________ Justice Bob McCoy COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
IN THE MATTER OF P.R.G.
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FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY
MEMORANDUM OPINION1 ------------
I. Introduction
In two issues in this accelerated appeal, Appellant P.R.G. appeals the trial
court’s order authorizing psychoactive medication under health and safety code
section 574.106. See Tex. Health & Safety Code Ann. §§ 574.070, 574.106,
574.108 (West 2010). We affirm as modified. 1 See Tex. R. App. P. 47.4.
2 II. Factual and Procedural Background
In June 2012, the 15th District Court of Grayson County issued an order in
P.R.G.’s criminal assault case to confine her for a period not to exceed 120 days
“for the purpose of further examination and treatment toward the specific
objective of attaining competency to stand trial.”
In August 2012, Dr. Denis Atkinson, P.R.G.’s doctor at the Wichita Falls
campus of the North Texas State Hospital, applied for an order to administer the
psychoactive medication Haloperidol (Haldol). After a hearing on the application,
the trial court signed the order to authorize psychoactive medication, specifically
antipsychotic medication, finding by clear and convincing evidence, per health
and safety code section 574.106(a-1), that
the patient is in need of psychoactive medication:
AND
the patient is in custody awaiting trial in a criminal proceeding and was ordered to receive inpatient mental health services in the six months preceding a hearing under this section
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.
the patient was ordered to receive inpatient mental health services by a criminal court with jurisdiction over the patient and the patient presents a danger to the patient or others in the inpatient facility in which the patient is being treated as a
3 result of a mental disorder or mental defect as determined under Section 574.1065, Texas Health and Safety Code, and treatment with the proposed medication is in the best interest of the patient[.]
This appeal followed.
III. Sufficiency of the Evidence
P.R.G. complains that the evidence is legally and factually insufficient to
support the trial court’s findings under section 574.106(a-1).
A. Standards of Review
The State’s burden of proof under health and safety code section 574.106
is clear and convincing evidence. Tex. Health & Safety Code Ann. § 574.106(a-
1). 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 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 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. 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).
4 In reviewing the evidence for factual sufficiency under the clear and
convincing standard, we must determine whether, on the entire record, a
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.
B. Health and Safety Code Section 574.106(a-1)
The trial court may issue an order authorizing psychoactive medication
only if it finds that one of the two grounds in section 574.106(a-1) has been
established by clear and convincing evidence after a hearing. Tex. Health &
Safety Code Ann. § 574.106(a-1). The first ground that supports such an order is
that the patient lacks the capacity to make a decision regarding the
administration of the proposed medication and that treatment with the proposed
medication is in the patient’s best interest. Id. § 574.106(a-1)(1). The pertinent
part of the second ground is a determination that the patient was ordered to
receive inpatient mental health services by a criminal court with jurisdiction over
the patient, that treatment with the proposed medication is in the best interest of
the patient, and that the patient presents a danger to the patient or others in the
5 inpatient mental health facility in which the patient is being treated as a result of a
mental disorder or mental defect as determined under section 574.1065. Id.
§ 574.106(a-1)(2)(A).
1. Dr. Atkinson’s Application
We have set out below the information contained in Dr. Atkinson’s
application for an order to administer psychoactive medication, even though the
trial court is not authorized to base its findings solely on a physician’s application,
to provide context for Dr. Atkinson’s and P.R.G.’s testimonies at the hearing on
the application. See Moore v. State, No. 07-10-00507-CV, 2011 WL 3587439, at
*2 (Tex. App.—Amarillo Aug. 16, 2011, no pet.) (mem. op.) (citing State ex rel.
E.G., 249 S.W.3d 728, 731 (Tex. App.—Tyler 2008, no pet.). The trial court
could not base its findings solely on the application because there must be
evidence of the factual basis of an expert opinion to satisfy the clear and
convincing burden of proof. Id. (citing E.G., 249 S.W.3d at 732).
In his sworn application, Dr. Atkinson stated that antipsychotic
psychoactive medication is the proper and customary course of treatment for and
in the best interest of P.R.G. but that P.R.G. had verbally refused to take the
medication voluntarily. As the basis for his conclusion that P.R.G. lacked the
capacity to make a decision regarding administration of psychoactive medication,
Dr. Atkinson stated, “The patient is actively delusional, lacks insight into her
illness[,] and is unable to attend to reality. She has a diminished capacity to
understand or adhere to a treatment plan. Currently she is not capable of acting
6 in her own behalf. She lacks competency.” He stated that P.R.G.’s prognosis
was fair with psychoactive medication treatment but that if left untreated, “the risk
of self-harm and or aggression is significantly increased. Untreated[,] she is at
high risk to further deteriorate.”
Dr. Atkinson averred that he had considered medical alternatives to
psychoactive treatment and less intrusive treatments likely to secure P.R.G.’s
agreement to take the psychoactive medication but had determined that the
medical alternatives would not be as effective. He also stated that he believed
that the benefits of the psychoactive medication outweighed the risks of such
medication in relation to P.R.G.’s present medical treatment and her best
interest. He alternatively requested that, if the trial court found that P.R.G. had
the capacity to make a decision regarding the administration of psychoactive
medication, that the trial court order it on the basis that unless medicated, P.R.G.
“presents a danger to self or others in the mental health facility in which [she] is
being treated, as set forth in Texas Health & Safety Code § 574.1065, and
treatment with the proposed medication is in [P.R.G.’s] best interest.”
2. Dr. Atkinson’s Testimony
At the hearing on his application, Dr. Atkinson stated that P.R.G. was
being treated for schizophrenia and had “symptoms of both a schizoaffective with
bipolar paranoid features.” He described the defining characteristics of P.R.G.’s
illness as follows:
7 She has a cognitive disturbance. Her thinking is—has a number of secondary psychotic phenomena. All that means is that she has an active delusional system. She lacks insight into the nature of her illness. She is exhibiting signs of paranoia. . . . She has also prior history of mania diagnosed, and when she was seen at the time of her interview at SB II by the treatment team, she appeared to be in a hypomanic phase.
Dr. Atkinson said that the medication most likely to be helpful to P.R.G. would be
an antipsychotic medication like Haldol.
Dr. Atkinson testified that P.R.G. had refused to take the medication
voluntarily. If medicated, he said that he would expect that some of her agitation
would decrease and that she would stop “experiencing unseen voices talking to
her.” He noted that P.R.G. had been very polite and compliant at times but that
she had also had some outbursts, “particularly one episode at night where she
was very loud and very verbally abusive.” He expressed concern that without
medication, P.R.G. could experience further deterioration of her condition “at
which time she might become dangerous to herself or others” and not become
competent. Dr. Atkinson said that there were no alternatives that were likely to
produce the same results as the court-ordered medication, that there were no
less intrusive treatments likely to secure P.R.G.’s agreement to take the
psychoactive medication, and that therapy classes alone would not be sufficient
to restore her competency.
Dr. Atkinson assumed that another doctor had explained the medications
and their benefits and side effects to P.R.G. when she was admitted to the state
8 hospital.2 Dr. Atkinson described the side effects of the proposed medication as
ranging from tremors, shakes, muscle stiffness, and drooling to dyskinesias and
oculogyria.3 He said that extensive use of the medication would result in
“Parkinsonian-like syndrome,” which he said can be corrected, and that the worst
possible outcome “could be something like a tardive dyskinesia, which would be
a permanent type of movement disorder involving the face.” Dr. Atkinson said
that some of the side effects could be corrected with other medication.
Dr. Atkinson stated that he did not know if P.R.G. understood the risks and
benefits of the medication because “[s]he does not feel she’s ill,” but he believed
that the medication’s benefits outweighed the potential side effects, that taking
the medication was in P.R.G.’s best interest, that treatment with medication
would improve P.R.G.’s quality of life, and that taking the medication would
restore P.R.G. to competency.
2 On cross-examination, Dr. Atkinson testified that Dr. Fadow had made the following statement in one of his psychiatric evaluations of P.R.G.: “I did offer to start her back on medications that she’s taken in the past, including both Abilify and Seroquel, but she declined to take either medications. I did offer her alternatives such as Risperdal, and she declined this as well.” Dr. Atkinson said that he based his assumption that Dr. Fadow had fully informed P.R.G. of the risks and benefits of antipsychotic medications on these statements. 3 Dr. Atkinson described dyskinesias as muscle contractions and distortions and oculogyria as “[h]er eyes would turn up, and that would be very frightening and upsetting.”
9 During cross-examination, Dr. Atkinson recounted P.R.G.’s past history
with regard to treatment, stating that prior to her 2008 admission, P.R.G. had
discontinued taking her medications,
[a]nd as a result, there came about some domestic issues, violence and such. And I believe that just prior to her being put into the Grayson County jail, she’d had a family disturbance in which she was again aggressive and violent, and she had not been compliant with taking her medication.
Dr. Atkinson acknowledged that P.R.G. was attending competency classes and
had always been compliant, agreeable, and cooperative in attending the classes
and in her rapport with some of the staff on the ward.
3. P.R.G.’s Testimony
P.R.G. testified that she had used Seroquel, Risperdal, Zoloft, and Abilify
before and that she did not want to take Haldol, although she had not previously
used it, because of the side effects from the other medications.4 P.R.G. said that
in 2008, she had reached the point where she did not have to take any kind of
psychoactive medication and had done well without it, starting college and taking
care of her children. She said that she was a semester and a half from
graduating with an associate’s degree in drug and alcohol counseling and an
associate’s degree in sociology.
4 P.R.G. said that the side effects from the medications she had taken before made her heart feel like it was “about to bust,” and said, “I get to where I can’t move; I can’t function; I can’t cook; I can’t take a bath; I drool at the mouth. I don’t want to get up and go to class. I don’t want to get up and go to work. All I want to do is lay and sleep.”
10 P.R.G. gave the following testimony about her interaction in her
competency classes, the “verbally abusive” incident, and hearing voices:
A. I’m taking competency classes, and it [coincides] with my competency with my drug and alcohol counseling. I’m making a hundred on my tests. I’m very active. I’m very talkative. I’m learning from my experience in my competency. My teacher has stated—his name is Steven—he said if he had got notice before, he was willing to come and testify for me. He feels I don’t need the psychotic medications for my competency. He doesn’t understand why I’m being diagnosed as still needing it. But if it was set to be, my court hearing was put off, he would come and testify. My experience in class, he doesn’t feel for competency that because of my tests and how I interact in class that I need psychotic meds to be competent.
Q. How about the RN that I asked Dr. Atkinson about? Tell us about that.
A. His name is Chris. I don’t know his last name. I asked him, would he come and testify for me, how I interact with the patients and the staff. He said, yes. He haven’t [sic] seen any violence in me to where he feels that I need medication, but it was other staff members because I had gotten into it with a staff member about getting smart with me, and I walked off grinning walking down the hall. And then she wrote up, saying that I was being uncooperative and stuff because I asked her a question about a bath or something. I asked her something and she played me off like I wasn’t nothing. And I told her just because I’m a patient here, she shouldn’t talk to me like I’m crazy. I’m a person, too, and that’s what started it. So I walked down the hall and walked out of her face when she was talking smart to me, and I just started singing to myself and talking to the other patients like I do every morning. I get up every morning; I talk to all the patients: Good morning; how are you doing. The ones I’m close to, I ask them how they feel, if they want to talk, if they have anything wrong they want to discuss or just try to be friendly to make all of our stay in the hospital good.
Q. Let me ask you this. The doctor indicates that he—I think that he has reports that you’re talking to unseen others or hearing voices. Are you having those problems?
11 A. No, sir. I haven’t experienced it, not one time.
Q. Do you feel like you are delusional as you sit here today?
A. No, sir.
Q. You have made a decision that you don’t want to take the medicine, and that’s because why?
A. Because when I was diagnosed with schizophrenia, it was because of drug use with cocaine. If you see my records from ‘07– ‘08 when I was here, I was diagnosed with schizophrenia for cocaine usage, not because I was out and got into it with a family member or police officer. It was because of cocaine use. It wasn’t just regular schizophrenia.
Q. Do you think if you don’t take the medicine, that Dr. Atkinson is correct that you’ll—that you’ll get worse, that you’ll be more likely to be at risk of self-harm or aggression towards others?
A. No, because I have—I have no feelings of doing harm to anybody nor myself. I’m not doing drugs anymore. I’m working on being clean. Like I said, the—it was just past experience from drug use. I get along with my kids, family and friends.
C. Analysis
1. Danger
In part of her first issue, P.R.G. complains that with regard to the trial
court’s findings under section 574.106(a-1)(2)(A), there is no evidence to show
that she presents a danger to herself or others in the inpatient mental health
facility.
To make such a finding, the trial court had to consider (1) an assessment
of P.R.G.’s present mental condition, (2) whether she had inflicted, attempted to
inflict, or made a serious threat of inflicting substantial physical harm to herself or
12 another while in the facility; and (3) whether, in the six months preceding the date
she was placed in the facility, she had inflicted, attempted to inflict, or made a
serious threat of inflicting substantial physical harm to another that resulted in her
being placed in the facility. See Tex. Health & Safety Code Ann. §§ 574.106(a-
1)(2)(A), 574.1065 (West 2010). However, as set out above, the evidence at the
hearing reflected only P.R.G.’s present mental condition. Although P.R.G. had a
pending assault charge and was in the inpatient mental health facility in order to
regain competency so that she could stand trial for that offense, the record does
not reflect when the alleged assault occurred, and there is no evidence in the
record that P.R.G. had inflicted, attempted to inflict, or made a serious threat of
inflicting substantial physical harm to herself or another while in the inpatient
mental health facility. See, e.g., Moore, 2011 WL 3587439, at *5 (holding that
doctors’ testimonies that appellant was loud and verbally intimidating but that
appellant had not behaved in an assaultive or aggressive manner and had not
struck anyone constituted evidence insufficient to support the finding that she
presented a danger to herself or others in the inpatient mental health facility).
Therefore, we sustain this portion of P.R.G.’s first issue and do not reach the
remaining portion. See id.; see also Tex. R. App. P. 47.1.
2. Capacity
In part of her second issue, P.R.G. argues that the evidence is legally and
factually insufficient to support a finding that she lacks capacity under section
574.106(a-1)(1). “Capacity” under section 574.106(a-1)(1) means a patient’s
13 ability to understand the nature and consequences of the proposed treatment,
including the benefits, risks, and alternatives to the proposed treatment, and to
make a decision whether to undergo the proposed treatment. Tex. Health &
Safety Code Ann. §§ 574.101(1) (West 2010), 574.106(a-1)(1); E.G., 249 S.W.3d
at 730.
P.R.G. had been ordered into inpatient mental health treatment by the
criminal district court to regain competency to stand trial for an assault charge,
and Dr. Atkinson testified that P.R.G. was being treated for schizophrenia
(schizoaffective with bipolar paranoid features) and that an antipsychotic
medication like Haldol would help decrease P.R.G.’s agitation, stop her from
hearing voices, prevent further deterioration of her condition, improve her quality
of life, and help her regain competency. He indicated that if P.R.G.’s condition
continued to deteriorate, she might become dangerous to herself or others.
As set out above in our recitation of the evidence presented at the hearing,
Dr. Atkinson described the side effects of the medication, some of which he said
could be corrected through other medication. In both his application and in his
testimony, Dr. Atkinson indicated that there were no medical alternatives that
would likely produce the same benefits and that therapy classes would not be
sufficient to restore P.R.G. to competency. Dr. Atkinson testified that he did not
14 know if P.R.G. understood the risks and benefits of the medication because she
did not think that she was ill.5
P.R.G. denied hearing voices and said that she did not feel like she was
delusional and that her schizophrenia diagnosis in 2008 had been based on
cocaine use and was not “regular schizophrenia.” She also said that she did not
think she would get worse and that she had “no feelings of doing harm to
anybody” or to herself. Nonetheless, Dr. Atkinson testified that prior to her 2008
admission into the mental health facility, P.R.G. had stopped taking her
medication, leading to “some domestic issues, violence and such,” and indicated
that prior to her current assault charge, P.R.G. “had not been compliant with
taking her medication.”
Viewing the evidence in the light most favorable to the finding and giving
deference to the trial court’s determination of the witnesses’ credibility and
demeanor, the trial court could have formed a firm belief or conclusion that
P.R.G.’s mental illness prevented her from having the capacity to make a
decision regarding the administration of psychoactive medication. Therefore, we
5 Dr. Atkinson also indicated that he did not discuss with P.R.G. the risks and benefits of the medication, and he rested his assumption that another doctor had discussed these with P.R.G. on the other doctor’s note that he had offered to start P.R.G. back on Abilify, Seroquel, or Risperdal. P.R.G. testified that she had taken Seroquel, Risperdal, Zoloft, and Abilify in the past and had experienced unpleasant side effects from these medications but that she had not previously taken Haldol. The issue before us is P.R.G.’s capacity—her ability to understand and make a decision—not the information she received, particularly as she was present at the hearing and heard Dr. Atkinson’s testimony about the side effects before she testified. 15 conclude that the evidence is legally sufficient to support the trial court’s capacity
finding. See K.E.W., 315 S.W.3d at 20; D.P. v. State, Nos. 01-09-00097-CV, 01-
10-00002-CV, 2010 WL 376007, at *8 (Tex. App.—Houston [1st Dist.] Feb. 4,
2010, no pet.) (mem. op.) (holding evidence legally sufficient to support capacity
finding when physician testified that appellant lacked capacity because he was
delusional and did not think he was sick).
Further, although P.R.G. complained about the side effects of her previous
medications and attempted to excuse her schizophrenia diagnosis based on drug
use, most of her testimony focused on her efforts to regain competency instead
of showing that she had the capacity to make a decision regarding the proposed
treatment. Therefore, we conclude that the evidence is also factually sufficient to
support the trial court’s capacity finding. See H.R.M., 209 S.W.3d at 108; see
also D.P., 2010 WL 376007, at *8–9 (concluding that evidence that appellant
lacked capacity was factually sufficient when the evidence showed that appellant
denied the fact that he suffered from paranoid schizophrenia, which was
otherwise unrefuted, and indicated that his difficulties over the years had been
caused by medication and not his mental illness). We overrule this portion of
P.R.G.’s second issue.
3. Best Interest
In the remaining portion of P.R.G.’s second issue, she challenges the legal
and factual sufficiency of the evidence to support the trial court’s best interest
finding.
16 In making its best interest findings under either ground of section
574.106(a-1), the trial court shall consider: (1) the patient’s expressed
preferences regarding treatment with psychoactive medication; (2) the patient’s
religious beliefs;6 (3) the risks and benefits, from the patient’s perspective, of
taking psychoactive medication; (4) the consequences to the patient if the
psychoactive medication is not administered; (5) the patient’s prognosis if she 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(b).
P.R.G. expressed that she did not want to take the medication because of
the side effects she had experienced from the medications she had taken before
and because she did not think she needed it to regain competency, she had not
been hearing voices and was not delusional, and her 2008 schizophrenia
diagnosis had been cocaine-related.
Dr. Atkinson testified that an antipsychotic medication like Haldol would
help decrease P.R.G.’s agitation, stop her from hearing voices, prevent further
deterioration of P.R.G.’s condition, improve her quality of life, and help her regain
competency. He indicated that if P.R.G.’s condition continued to deteriorate, she
6 There was no testimony about P.R.G.’s religious beliefs.
17 might become dangerous to herself or others. He also described the side
effects—some permanent—that the medication could cause.
In his application, Dr. Atkinson stated that P.R.G.’s prognosis was “fair”
with psychoactive medication treatment, and he testified that there were no
medical alternatives that would likely produce the same benefits, that therapy
classes would not be sufficient to restore P.R.G. to competency, and that there
were no less intrusive treatments likely to secure P.R.G.’s agreement to take the
medication.
Viewing the evidence in the light most favorable to the best interest finding,
we hold that the trial court could have reasonably formed a firm belief or
conviction that treatment with Haldol was in P.R.G.’s best interest. See K.E.W.,
315 S.W.3d at 20; see also M.H. v. State, No. 01-09-00205-CV, 2009 WL
2050988, at *4–5 (Tex. App.—Houston [1st Dist.] July 16, 2009, no pet.) (mem.
op.) (concluding that the evidence was sufficient to support the trial court’s best
interest finding when appellant did not present any evidence to dispute
physician’s testimony about the treatment’s benefits and lack of alternative
treatments for appellant’s bipolar disorder with manic and psychotic features).
Likewise, based on the entire record, we hold that the trial court could have
reasonably formed the same firm belief or conviction, based on its determination
of the witnesses’ credibility and the weight to be given their testimonies. See
H.R.M., 209 S.W.3d at 108–09. Therefore, we overrule the remaining portion of
18 IV. Conclusion
Having sustained part of P.R.G.’s first issue, concluding that there is no
evidence to support the trial court’s finding that “the patient presents a danger to
the patient or others in the inpatient facility in which the patient is being treated
as a result of a mental disorder or mental defect as determined under Section
574.1065, Texas Health and Safety Code,” we delete that finding from the trial
court’s order. Having overruled P.R.G.’s second issue, we affirm the trial court’s
order as modified.
BOB MCCOY JUSTICE
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: November 8, 2012