24CA1507 Peo in Interest of SD 10-31-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA1507 Jefferson County District Court No. 24MH385 Honorable Bryce David Allen, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of S.D.,
Respondent-Appellant.
ORDER AFFIRMED IN PART AND REVERSED IN PART
Division I Opinion by JUDGE LIPINSKY J. Jones and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 31, 2024
Kym Sorrells, County Attorney, Jennifer Mullenbach, Deputy County Attorney, Katherine R. Carroll, Assistant County Attorney, Golden, Colorado, for Petitioner-Appellee
Tezak Law, P.C., Mary Tezak, Florence, Colorado, for Respondent-Appellant ¶1 Respondent, S.D., appeals a magistrate’s order authorizing
short-term care and treatment under section 27-65-109, C.R.S.
2024, and authorizing the involuntary administration of five
antipsychotic, two antianxiety, and two side effect medications.
¶2 S.D. contends that the evidence is insufficient to support the
order. We agree that the evidence does not support the order
authorizing the involuntary administration of fluphenazine,
olanzapine, paliperidone, diazepam, and lorazepam. Therefore, we
reverse the portion of the order authorizing the involuntary
administration of those five medications. In all other respects, we
reject S.D.’s arguments and affirm.
I. Background
¶3 Forty-eight-year-old S.D. resided with her parents. Family
members called authorities in Jefferson County asserting “concern
for safety due to [S.D.’s] prominent delusions that her brother and
[sister-in-law were] stealing from her” and reporting that S.D. was
“hyperverbal and extremely irritable.”
¶4 Police brought S.D. to the Jefferson County Center for Mental
Health for an evaluation. S.D. was placed on a mental health hold
and admitted to Centennial Peaks Hospital on August 7, 2024. Dr.
1 Michael Chamberlain, a psychiatrist at the hospital, was assigned
as S.D.’s attending psychiatrist. He diagnosed her with
schizophrenia.
¶5 On August 9, 2024, Dr. Chamberlain filed a notice of
certification and certification for short-term treatment, in which he
said that S.D. was gravely disabled. He sought authorization to
involuntarily treat S.D. with several antipsychotic, mood stabilizing,
antianxiety, and side effect medications. An assistant county
attorney entered her appearance on behalf of the People of the State
of Colorado, and the court appointed counsel for S.D. The court set
a hearing on Dr. Chamberlain’s notice for August 19, 2024.
¶6 Following the evidentiary hearing, at which both Dr.
Chamberlain and S.D. testified, the magistrate entered a written
order certifying S.D. for short-term care. The magistrate found by
clear and convincing evidence that S.D. had a mental health
disorder; was gravely disabled; and had been offered, but had
refused, voluntary treatment. The magistrate also found that the
People had established all four of the elements for the involuntary
administration of medication set forth in People v. Medina, 705 P.2d
2 961, 973 (Colo. 1985), and, accordingly, ordered the administration
of the requested medications to S.D. against her will.
II. Discussion
¶7 S.D. challenges the sufficiency of the evidence supporting the
order. In particular, she contends the evidence was insufficient to
support the magistrate’s findings that (1) she was gravely disabled
and (2) the first and third Medina elements were met. We address
each contention in turn.
A. Standard of Review
¶8 When a party challenges the sufficiency of the evidence, we
review the record as a whole and, viewing it in the light most
favorable to the People, determine whether the evidence is sufficient
to support the court’s decision. People in Interest of Ramsey, 2023
COA 95, ¶ 23, 412 P.3d 827, 1204. We review de novo the court’s
conclusions of law and defer to the court’s findings of fact,
including the weight and credibility afforded to the witnesses, if
supported by the record. People in Interest of Strodtman, 293 P.3d
123, 131 (Colo. App. 2011); People in Interest of C.A.K., 652 P.2d
603, 613 (Colo. 1982). “The district court, as fact finder, ‘has
discretion to determine the credibility of the witnesses; the
3 sufficiency, probative effect, and weight of the evidence; and the
inferences and conclusions to be drawn from it.’” People in Interest
of R.C., 2019 COA 99M, ¶ 7, 451 P.3d 1229, 1231 (quoting People in
Interest of S.M.A.M.A., 172 P.3d 958, 962 (Colo. App. 2007)).
B. Certification for Short-Term Treatment
¶9 Section 27-65-109(1)(a) provides, in pertinent part, that a
person with a mental illness “may be certified for not more than
three months for short-term treatment” if
[t]he professional staff of the facility detaining the person on an emergency mental health hold has evaluated the person and has found the person has a mental health disorder and, as a result of the mental health disorder, is a danger to the person’s self or others or is gravely disabled.
¶ 10 The person or facility seeking to detain another for mental
health care and treatment has the burden of proving by clear and
convincing evidence that the subject person “has a mental health
disorder and, as a result of the mental health disorder, is a danger
to [the person’s] self or others or is gravely disabled.”
§ 27-65-113(1), C.R.S. 2024. Evidence is clear and convincing
when it “persuades the trier of fact that the truth of the contention
4 is ‘highly probable.’” People v. Taylor, 618 P.2d 1127, 1136 (Colo.
1980) (quoting Page v. Clark, 592 P.2d 792, 800 (Colo. 1979)).
¶ 11 S.D. challenges the magistrate’s finding that she is gravely
disabled. As relevant here, “gravely disabled” means
a condition in which a person, as a result of a mental health disorder, is incapable of making informed decisions about or providing for the person’s essential needs without significant supervision and assistance from other people. As a result of being incapable of making these informed decisions, a person who is gravely disabled is at risk of . . . significant psychiatric deterioration . . . that could result in substantial bodily harm.
§ 27-65-102(17), C.R.S. 2024. The supreme court has explained
that a person is gravely disabled if the person is unable to take care
of her basic personal needs, such as food, shelter, clothing, and
medical care. Taylor, 618 P.2d at 1134.
¶ 12 The magistrate found that S.D. is gravely disabled because she
is unable to make “informed decisions about providing for her
essential needs without significant supervision and assistance,
which may lead to significant psychiatric deterioration.” The record
supports these findings.
5 ¶ 13 At the hearing, Dr. Chamberlain testified that S.D. is not
capable of taking care of her essential needs without significant
assistance. He said that S.D.’s psychosis is “severe,” it had “been
progressive over the past several months,” and it had “jeopardized
her housing” and “her relationship with everyone [who had tried] to
support her.” As an example of S.D.’s symptoms of psychosis, she
expressed concern to Dr. Chamberlain that, like her family
members, he was stealing patents she owned. Dr. Chamberlain
described the concerns of S.D.’s family and said that family
members “filed a protective order against her so she cannot return
to her former place of living.”
¶ 14 Despite S.D.’s assertion that the evidence was insufficient
because Dr. Chamberlain “did not offer any testimony regarding her
ability to take care of personal needs,” the record shows that S.D. is
unable to provide for her own basic personal needs, especially as
they relate to her medical care. Dr. Chamberlain testified that S.D.
does not believe she has schizophrenia and, although she is willing
to take her antiseizure medications, she is unwilling to accept any
“mental health treatment.”
6 ¶ 15 Dr. Chamberlain also testified it was his opinion that, without
treatment, S.D.’s mental health “would continue to deteriorate.” He
explained that, because psychosis “is self-perpetuating, . . . the
longer [S.D.] spends with this delusional content that’s prominent,
the more likely . . . [she] is to have an episode in the future and the
more severe that episode will be.” He also testified that, “in her
case there’s no signs that it will abate without medication, so [he]
imagine[s] it would just be a more progressive deterioration.” S.D.
did not present any medical evidence to contradict Dr.
Chamberlain’s opinions.
¶ 16 “Mental health statutes must be strictly construed because of
their curtailment of personal liberty.” People in Interest of Schmidt,
720 P.2d 629, 630 (Colo. App. 1986); see also People in Interest of
Dveirin, 755 P.2d 1207, 1209 (Colo. 1988) (“Because of the
curtailment of personal liberty which results from certification of
mental illness, strict adherence to the procedural requirements of
the civil commitment statutes is required.”). However, where, as
here, the magistrate’s findings are supported by the record, we
must defer to them on review. See Ramsey, ¶ 38, 541 P.3d at 1206.
Accordingly, viewed in the light most favorable to the People, we
7 conclude that sufficient evidence supports the magistrate’s finding
that S.D. is gravely disabled.
C. Involuntary Administration of Medication
¶ 17 An order for involuntary administration of medications must
be supported by clear and convincing evidence
(1) that the patient is incompetent to effectively participate in the treatment decision; (2) that treatment by antipsychotic 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 antipsychotic medication is sufficiently compelling to override any bona fide and legitimate interest of the patient in refusing treatment.
Medina, 705 P.2d at 973.
¶ 18 S.D. contends that the evidence presented at the hearing was
insufficient to support the involuntary medication order. While she
concedes that sufficient evidence established that the second and
fourth Medina elements were satisfied, she asserts that insufficient
evidence established the first and third elements. We consider each
of these disputed elements in turn.
8 1. Incompetence to Effectively Participate
¶ 19 First, we address, and reject, S.D.’s contention that the
evidence was insufficient to prove the first Medina element — that
she is incompetent to effectively participate in the treatment
decision.
¶ 20 At the hearing, the magistrate found, by clear and convincing
evidence, that “[t]here is an ongoing cycle of psychosis”; S.D. is
“currently not participating [in her treatment]”; and “although very
articulate, she is incompetent at this time to effectively participate
in her treatment decision.” The record supports the magistrate’s
findings.
¶ 21 Dr. Chamberlain testified that he did not believe S.D. was
capable of effectively assisting in her treatment. He explained that
he attempted to discuss S.D.’s proposed treatment with her but
that she was not “willing to participate in that conversation” and
“hasn’t really been perceptive to any sort of care [he is] able to
provide.” Dr. Chamberlain explained that S.D. “seems to think [he
is] involved in this conspiracy” with her family to steal her patents.
¶ 22 In addition, he testified that, whenever he attempted to talk to
S.D. about possible treatment medications, she “quickly
9 interrupt[ed] [him] and [told him] that she can’t take them because
she wants to work as a [certified nursing assistant (CNA)].” Dr.
Chamberlain said he understood that S.D. had “not yet worked as a
CNA” but noted that “none of [the requested] medications would
limit her ability to do so.” Moreover, he opined that, “considering
the prevalence of the paranoia, [the requested medications] would
almost certainly be necessary for her to be in that role.”
¶ 23 We are not persuaded by S.D.’s suggestion that, because she
was able to testify “at length” regarding the medications she had
tried in the past — identifying them by name and stating their
purpose — she is competent to effectively participate in the
treatment decisions. The first Medina element does not simply ask
whether a patient has the ability to “articulate his or her
preferences” in regard to treatment. Strodtman, 293 P.3d at 132.
Rather, it asks whether the patient is competent to effectively
participate in the treatment decision. Medina, 705 P.2d at 973. “To
participate effectively contemplates action in addition to words.”
Strodtman, 293 P.3d at 132.
¶ 24 Accordingly, we conclude that the record supports the
magistrate’s finding that S.D. is “incompetent to effectively
10 participate in the treatment decision.” Medina, 705 P.2d at 973;
People v. Pflugbeil, 834 P.2d 843, 847 (Colo. App. 1992).
2. Less Intrusive Alternative
¶ 25 Next, we address S.D.’s contention that the evidence was
insufficient to prove the third Medina element — that a less
intrusive treatment alternative is not available. Medina, 705 P.2d at
973. S.D. asserts that Dr. Chamberlain requested numerous
medications “with the intent of experimenting with them to
determine which is the most effective” and that a less intrusive
treatment alternative would require Dr. Chamberlain to specify
which medications he believes should be prescribed. We agree with
S.D., in part.
¶ 26 The third Medina element “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.” Id. at 974. A “‘less intrusive alternative’ constitutes an
available treatment that has less harmful side effects and is at least
as effective at alleviating a patient’s condition as the proposed
11 treatment.” Strodtman, 293 P.3d at 133 (quoting Medina, 705 P.2d
at 974).
¶ 27 Dr. Chamberlain requested authorization to administer
involuntarily five antipsychotic medications, two antianxiety
medications, and two side effect medications. He testified that an
antipsychotic medication was necessary to “treat the specific ways
in which [S.D. had] lost touch with reality,” to decrease the
prominence of her delusions, and to avoid more severe episodes in
the future.
¶ 28 In discussing the five requested antipsychotic medications, Dr.
Chamberlain testified that he “would start” with aripiprazole
“because it has [a] lower risk of medical . . . side effects,” about
which S.D. is particularly worried. He explained that aripiprazole
can be administered orally or as a long-acting injectable. However,
because he did not want to administer a long-acting injectable until
he confirmed that S.D. could tolerate the medication, he also
requested approval to administer haloperidol, a short-acting
injectable that would only be administered if S.D. refused to take
aripiprazole orally.
12 ¶ 29 In light of the evidence establishing the efficacy of aripiprazole
to treat S.D.’s mental illness, we conclude there is sufficient
evidence to support the magistrate’s findings that there is no less
intrusive alternative treatment than the administration of
aripiprazole. Further, because aripiprazole and haloperidol are
substitutes for each other in that they are administered differently
— and because S.D. would need haloperidol if she refused to take
aripiprazole — the record supports the magistrate’s finding that
there is no less intrusive alternative to authorizing the involuntary
administration of haloperidol and aripiprazole.
¶ 30 Further, Dr. Chamberlain testified that he requested two side
effect medications, benztropine and diphenhydramine, to treat any
side effects S.D. might experience from the antipsychotic
medications. However, Dr. Chamberlain did not explain which
medication would be appropriate to treat the potential side effects
resulting from administration of haloperidol or aripiprazole
specifically. Therefore, we affirm the order authorizing the
administration of benztropine and diphenhydramine, but only to
the extent that (1) S.D. develops side effects from aripiprazole or
haloperidol and (2) S.D.’s treating physicians believe that
13 benztropine or diphenhydramine (or both) would be appropriate to
treat those side effects.
¶ 31 We reach different conclusions as to the remaining requested
medications — fluphenazine, olanzapine, paliperidone, diazepam,
and lorazepam.
¶ 32 Dr. Chamberlain testified that, while olanzapine is “[t]he most
effective [antipsychotic] med[ication] on [the] list,” he would “not
start with [it] because of [S.D.’s] metabolic concerns” regarding her
possible prediabetic condition. Significantly, Dr. Chamberlain did
not provide substantive testimony regarding fluphenazine (which
appears in the hearing transcript as “phenazine”) or paliperidone.
He referred to phenazine only once, in his listing of the medications
for which he was requesting authorization to administer to S.D.
involuntarily. Dr. Chamberlain similarly said next to nothing about
paliperidone.
¶ 33 In addition, he explained that diazepam and lorazepam, the
two requested antianxiety medications, “lower the volume of
agitation and irritability” and, while S.D. “has not been an
imminent threat to herself or others[,] . . . . when people are
compelled to take medications, oftentimes their behavior
14 deteriorates in the short term before it improves, so these
medications are to treat that.” But the People did not present any
evidence regarding the likelihood that S.D. would experience
agitation or irritability if and when compelled to take haloperidol
and aripiprazole or that S.D. had ever needed antianxiety
medications.
¶ 34 While it may seem prudent to have a court-approved plan in
place if certain medications do not have their desired effect, or to
protect against unanticipated reactions the patient may experience,
divisions of this court have consistently held that Medina does not
allow courts to authorize a backup plan for the involuntary
administration of additional medications in the absence of a specific
articulable concern that the approved medications will be
ineffective. See People in Interest of R.C., ¶¶ 14, 16, 451 P.3d at
1232 (finding that ordering the administration of one medication,
which would have the desired effect, was a “less intrusive
alternative” than ordering the possible administration of six
medications, given the doctor’s testimony that the patient did not
need all six at the time of the hearing, and may not need them in
the future); cf. People in Interest of R.K.L., 2016 COA 84, ¶ 44, 412
15 P.3d 827, 837 (holding that “mere speculation that [the patient]
might need these medications in the future . . . . did not prove that
[the patient’s] prognosis without treatment by . . . ten antipsychotic
medications” was sufficiently problematic to satisfy the fourth
Medina factor).
¶ 35 Based on the record before us, it appears that Dr.
Chamberlain failed to articulate such a concern for S.D. For this
reason, we conclude that the magistrate erred by finding that the
People established by clear and convincing evidence that no less
intrusive treatment alternative exists for the involuntary
administration of olanzapine, diazepam, and lorazepam.
¶ 36 Moreover, because the People produced no evidence regarding
the efficacy or possible side effects of treating S.D. with
fluphenazine or paliperidone, it was not possible for the magistrate,
and it is not possible for us, to “determine whether such
medications meet the requirements for a finding of no less intrusive
alternative.” Id. at ¶ 40, 412 P.3d at 836.
¶ 37 Accordingly, we conclude that the record does not support the
magistrate’s determination regarding the involuntary administration
of fluphenazine, olanzapine, paliperidone, diazepam, or lorazepam.
16 However, we conclude that the record supports the magistrate’s
finding that a less intrusive treatment alternative is not available as
to the involuntary administration of aripiprazole and haloperidol.
Further, the record supports part of the magistrate’s finding
regarding benztropine and diphenhydramine: those medications
may be involuntarily administered to S.D. if she experiences side
effects from aripiprazole and haloperidol that, in the opinion of her
treating physicians, can be treated with benztropine or
diphenhydramine (or both).
III. Disposition
¶ 38 The order is reversed to the extent it authorizes the
involuntary administration of fluphenazine, olanzapine,
paliperidone, diazepam, and lorazepam. To the extent S.D.
experiences side effects from the administration of aripiprazole or
haloperidol, and if her treating physicians believe that benztropine
or diphenhydramine (or both) can address those side effects, the
order is affirmed as to the involuntary administration of benztropine
and diphenhydramine. The order is affirmed in all other respects.
JUDGE J. JONES and JUDGE SULLIVAN concur.