The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY October 9, 2025
2025COA82
No. 25CA0905, People in Interest of Ferguson — Health and Welfare — Care and Treatment of Persons with Mental Health Disorders — Involuntary Administration of Medication
A division of the court of appeals expands on People in Interest
of D.N.W., 2024 COA 129, by holding that, when authorizing the
involuntary administration of medication, a court can authorize a
reasonable set of options when a treating physician (1) lacks
sufficient knowledge of the patient’s medical history to know which
medication will be most effective in treating the patient;
(2) articulates a reasonable plan for the sequence in which the
alternatives will be administered; and (3) demonstrates a need for
flexibility in treatment options. COLORADO COURT OF APPEALS 2025COA82
Court of Appeals No. 25CA0905 City and County of Denver Probate Court No. 25MH313 Honorable Beth A. Tomerlin, Magistrate
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of Theodore Ferguson,
Respondent-Appellant.
ORDER AFFIRMED
Division VII Opinion by JUDGE TOW Lum and Moultrie, JJ., concur
Announced October 9, 2025
Katie McLoughlin, Acting City Attorney, Daniel Horwitz, Assistant City Attorney, Denver, Colorado, for Petitioner-Appellee
Richard Slosman, Boulder, Colorado, for Respondent-Appellant ¶1 Theodore Ferguson appeals the probate court’s order
authorizing the involuntary administration of four antipsychotic
medications to treat his schizophrenia, one antianxiety medication
to treat his agitation, and two medications to treat any negative side
effects. This appeal requires us to clarify the conditions under
which a court may include authorization of more than one
medication option to treat a particular condition in an involuntary
medication order. We conclude that, when a treating physician
(1) lacks sufficient knowledge of the patient’s medical history to
know which medication will be most effective in treating the patient,
(2) articulates a reasonable plan for the sequence in which the
alternatives will be administered, and (3) demonstrates a need for
flexibility in treatment options, the probate court may authorize the
full set of options.
¶2 Because the record supports the probate court’s findings in
this regard and we discern no other basis to disturb its order, we
affirm.
I. Background
¶3 In January 2025, Ferguson was found incompetent to proceed
in three criminal cases. While Ferguson was being held in the
1 Denver jail awaiting a bed at a competency restoration facility, he
maintained a delusional belief that multiple officers at the jail were
tampering with his food by putting semen, urine, or genital warts in
it. He was also verbally aggressive with officers and tried to hit
them with bodily fluids.
¶4 Ferguson’s treating psychiatrist at the jail was Dr. James
Haug, a psychiatrist at Denver Health Medical Center, which
provides medical and psychiatric care to detainees at the jail.
Ferguson was also verbally aggressive with Dr. Haug and tried to hit
him with bodily fluids. Dr. Haug diagnosed Ferguson with an
unspecified schizophrenia spectrum disorder. That diagnosis was
based, at least in part, on Ferguson’s delusional belief that his food
was being tampered with, along with evidence that, during prior
outpatient treatment at Denver Health, he was responding to
internal stimuli and having conversations with people who were not
there.
¶5 Because Ferguson has consistently refused to take any
antipsychotic medication, Denver Health filed a petition in April
2025 to involuntarily medicate him pursuant to section 16-8.5-112,
2 C.R.S. 2025. Dr. Haug requested authorization to treat Ferguson
with
• four antipsychotic medications: Zyprexa (olanzapine),
Risperdal (risperidone), Haldol (haloperidol), and Invega
(paliperidone);
• the antianxiety medication Ativan (lorazepam); and
• two medications to treat any side effects: Benadryl
(diphenhydramine) and Cogentin (benztropine).
¶6 After the petition was filed, Ferguson’s counsel successfully
moved to appoint an expert witness to conduct an independent
psychiatric evaluation of Ferguson. The psychologist who
conducted that independent evaluation, Dr. John Dicke, filed a
report agreeing that Ferguson “needs to be involuntarily
administered psychotropic drugs according to [Dr. Haug’s]
prescription.” Dr. Dicke explained that conclusion as follows:
So . . . severe is [Ferguson’s paranoid schizophrenia] that he is obsessed with the notion there are feces, urine and semen in his food. [Ferguson] has to be isolated in the jail because of his paranoia and history of assaulting others and guards. This isolation can only lead to more severe paranoia . . . . [Ferguson’s] reasons for refusing medication are largely based on paranoid delusions and
3 are not legitimate . . . . [W]ithout some sort of psychotropic intervention, [Ferguson’s] prognosis is very grim indeed.
¶7 Dr. Haug and Ferguson both testified at the hearing on the
petition. Dr. Dicke’s report was admitted into evidence.
¶8 Dr. Haug, who testified as an expert in adult psychiatry,
described Ferguson’s schizophrenia as “severe,” explaining that,
among other things, Ferguson is unable to recognize reality and
does not have insight into his mental illness. Dr. Haug testified
that medication was “[a] hundred percent” essential to treat
Ferguson effectively, and, as explained further below, he testified in
detail about his reasoning for requesting the four antipsychotic
medications, the antianxiety medication, and the two medications
to treat any negative side effects. He also testified that Ferguson
believed that he had only ADHD and refused to take antipsychotic
medications.
¶9 During Ferguson’s testimony, which is at times difficult to
discern from the transcript, he appears to have confirmed his belief
that he has ADHD, not schizophrenia, and he testified that it is not
possible to have both conditions. He testified that he has taken
some of the requested medications in the past. And he also
4 confirmed that he believes officers were tampering with his food by
putting “semen, blood, feces, [and] genital [warts]” in it.
¶ 10 Following the testimony, the probate court found that
Dr. Haug had testified credibly and that, to the extent Ferguson’s
testimony contradicted Dr. Haug’s testimony, Ferguson’s testimony
was not credible. The court then examined each of the four
elements of the test from People v. Medina, 705 P.2d 961, 973 (Colo.
1985), for the involuntary administration of medication, concluded
that the People had met their burden of proving all four elements,
and granted the petition.
II. Applicable Law and Standard of Review
¶ 11 The parties agree that the Medina test applies here. Under
that test, a probate court may authorize the involuntary
administration of medication if the People prove the following
elements by clear and convincing evidence:
(1) the person is incompetent to effectively participate in the
treatment decision;
(2) the treatment is necessary to prevent a significant and
likely long-term deterioration in the person’s mental
health condition or to prevent the likelihood of the
5 patient’s causing serious harm to himself or others at the
institution;
(3) a less intrusive treatment alternative is not available; and
(4) the person’s need for treatment is sufficiently compelling
to override any bona fide and legitimate interest of the
person in refusing treatment.
Id.
¶ 12 Application of the Medina test involves mixed questions of fact
and law. People v. Marquardt, 2016 CO 4, ¶ 8. We defer to the
probate court’s factual findings if they have record support, but we
review the court’s legal conclusions de novo. Id. Resolving conflicts
in testimony and determining the credibility of the witnesses are
matters solely within the province of the probate court. People in
Interest of Ramsey, 2023 COA 95, ¶ 23.
¶ 13 On a challenge to the sufficiency of the evidence, we review the
record de novo to determine whether the evidence, when viewed as
a whole and in the light most favorable to the People, is sufficient to
support the probate court’s order. Id. The testimony of the
physician seeking to administer treatment may be sufficient,
without more, to satisfy the Medina test by clear and convincing
6 evidence. See People v. Pflugbeil, 834 P.2d 843, 847 (Colo. App.
1992).
III. Analysis
¶ 14 Ferguson contends that the probate court erred by authorizing
the three additional antipsychotic medications (Risperdal, Haldol,
and Invega) and the antianxiety medication (Ativan) as “backup”
medications to Dr. Haug’s preferred medication (Zyprexa). He does
not challenge the authorization of the two medications to treat
potential side effects.
¶ 15 Ferguson does not present any argument challenging the
probate court’s ruling that the second Medina element was met
here. Instead, the three arguments he raises are as follows. First,
he argues that the People did not sufficiently prove the first Medina
element — namely, that he was incompetent to effectively
participate in the treatment decision. Second, in an argument
implicating the third and fourth Medina elements, he argues that
the probate court should have authorized the involuntary
administration of only Zyprexa, not Risperdal, Haldol, Invega, and
Ativan as well. And third, he raises an issue concerning the alleged
7 ineffective assistance of his counsel in the probate court
proceedings.
A. Incompetent to Effectively Participate in Treatment Decision
¶ 16 The probate court found that Ferguson was incompetent to
effectively participate in the treatment decision. That finding is
supported by Dr. Haug’s testimony, which the court credited.
Specifically, Dr. Haug testified that (1) Ferguson has schizophrenia,
treatment of which requires antipsychotic medication; (2) Ferguson
“doesn’t think he has any mental health issues” and instead
believes that he has only ADHD; (3) Ferguson was not willing to
take antipsychotic medication to treat his schizophrenia; and
(4) Ferguson’s refusal to take antipsychotic medication made
Dr. Haug’s discussions with Ferguson regarding such medication
unproductive.
¶ 17 Ferguson argues that he was competent to effectively
participate in the treatment decision because he had conversations
with both Dr. Haug and Dr. Dicke about, for example, his belief that
he had only ADHD and his concerns about taking the antipsychotic
and antianxiety medications. His mere involvement in those
8 conversations, however, does not mean that Ferguson was
competent to effectively participate in the treatment decision.
¶ 18 In light of the probate court’s credibility determinations and
resolution of conflicts in the evidence, there is ample support for the
court’s finding, and we will not disturb it. See People in Interest of
Strodtman, 293 P.3d 123, 131-32 (Colo. App. 2011) (although the
patient was able to articulate her preferences and concerns about
medication side effects, the division affirmed the magistrate’s
finding that the patient was incompetent to effectively participate in
the treatment decision because she did not believe she had
schizophrenia and had not embraced her need for treatment of the
condition); People in Interest of R.K.L., 2016 COA 84, ¶ 33 (affirming
the probate court’s finding that the patient was incompetent to
effectively participate in the treatment decision because the patient
did not believe he had a mental illness and the psychiatrist testified
that she did not believe the patient would voluntarily take any
medication to treat the illness).
B. Authorizing a Reasonable Set of Options
¶ 19 That brings us to Ferguson’s contention, implicating the third
and fourth Medina elements, that the probate court should have
9 authorized the involuntary administration of only Zyprexa, and that
it therefore erred by also authorizing the involuntary administration
of the three additional antipsychotic medications — Risperdal,
Haldol, and Invega — and the antianxiety medication Ativan.
¶ 20 We first address and reject Ferguson’s challenge to the court’s
authorization of Ativan. Contrary to Ferguson’s argument, Ativan
was not an “alternative” to Zyprexa. Ativan is not an antipsychotic
medication, which is used to directly treat Ferguson’s
schizophrenia, but, rather, a sedative that Dr. Haug requested to
treat Ferguson’s agitation. The probate court found that Ativan is
“needed to treat Mr. Ferguson’s agitation. He has been getting very
angry when people approach his cell and . . . he has been throwing
bodily fluids.” Although the psychiatrist testified that he did not
plan to “immediately” administer Ativan, he testified that Ferguson
“has shown periods of agitation” — such as getting angry and
“throwing bodily fluids” — that would “necessitate” using Ativan.
We discern no error in the probate court’s decision to authorize the
involuntary administration of Ativan to Ferguson. See Marquardt,
¶ 8; Ramsey, ¶ 23.
10 ¶ 21 We now turn to whether the probate court erred by
authorizing the involuntary administration of not only Zyprexa but
also Risperdal, Haldol, and Invega. Dr. Haug testified that he would
not treat Ferguson with all four antipsychotic medications at the
same time but, instead, would treat Ferguson first with Zyprexa
and only try the others if Ferguson experienced Zyprexa’s side
effects or if Zyprexa was not effective. If that happened, Dr. Haug
testified, he would then try Risperdal, then Haldol, and then Invega.
He testified as to the sequence in which he would try the different
medications and explained why each choice was preferable to the
others lower on the list. He explained that it could take up to six
weeks to determine if each antipsychotic medication was effectively
treating Ferguson’s schizophrenia.
¶ 22 Significantly, Dr. Haug testified that he had no documented
history of Ferguson ever taking any of the four antipsychotic
medications. And, although Ferguson told Dr. Haug that he had
taken all the medications in the past and that none of them was
helpful for him, Dr. Haug testified that he did not feel that he could
rely on Ferguson’s assertion. As to all four antipsychotic
medications, Dr. Haug testified that he could not be certain which
11 medication or combination of medications would restore Ferguson
to psychiatric stability.
¶ 23 Finally, Dr. Haug was asked about the viability of having to
return to court for authorization to switch to a different medication.
When asked if he had “any concerns” about having to return to
court for authorization to move to each of the alternatives, Dr. Haug
responded, “I would be concerned that . . . his condition would
continue to deteriorate and continue to be very difficult to treat.”
¶ 24 Ferguson argues that authorizing the use of only Zyprexa was
a less intrusive treatment alternative to authorizing the use of all
four antipsychotic medications (the third Medina element), and that
authorizing the use of only Zyprexa would properly weigh his bona
fide and legitimate interest in refusing the other three antipsychotic
medications against his need for treatment (the fourth Medina
element).
¶ 25 In support of that argument, he relies on People in Interest of
R.C., 2019 COA 99M, a case involving authorization to involuntarily
administer backup medications. The People’s answer brief and our
own research reveal two additional such cases: People in Interest of
12 R.K.L., 2016 COA 84, and People in Interest of D.N.W., 2024 COA
129. We address these three cases in chronological order.
¶ 26 In R.K.L., the patient’s psychiatrists testified that they
intended to use only one antipsychotic medication, Invega, to treat
the patient’s schizophrenia because the patient had responded well
to Invega in the past. R.K.L., ¶ 38. However, the psychiatrists also
requested authorization to treat the patient with ten other
antipsychotic medications “in case he stopped responding to Invega
or developed an intolerable allergy or side effect.” Id. at ¶¶ 38, 40.
The division reversed the probate court’s order authorizing the use
of the other ten antipsychotic medications. Id. at ¶ 47. The
division reasoned that “mere speculation” that the patient might
need the backup medications in the future did not show that the
psychiatrists were currently unable to treat the patient without the
authority to administer them, “especially because both psychiatrists
testified that Invega currently was an effective treatment for [the
patient].” Id. at ¶ 44 (emphasis added).
¶ 27 Similarly, in R.C., the People requested authorization to
involuntarily treat the patient with Zyprexa and five other
medications. R.C., ¶ 4. However, the psychiatrist testified that the
13 patient had been taking Zyprexa for ten days before the hearing,
that his condition had improved, and that the psychiatrist planned
to continue treating the patient with only Zyprexa “for the time
being.” Id. at ¶ 10. The division reversed the district court’s ruling
authorizing the five other medications, reasoning that the
psychiatrist did not testify that the patient “needed to receive the
[subject] [m]edications at the time of the hearing” and “did not state
unconditionally” that the patient would need to take them in the
future. Id. at ¶ 11. The division further explained, “The possibility
that Zyprexa may no longer be an effective treatment for [the
patient], at some unspecified time in the future, is insufficient to
justify the entry of an order authorizing the immediate
administration” of the subject medications. Id. at ¶ 14.
¶ 28 The crucial distinction separating R.K.L. and R.C. from this
case is that in R.K.L. and R.C., a primary medication had already
proved effective in treating the patient, but here, the probate court
found that Dr. Haug “does not know which [of the antipsychotic
medications] would return [Ferguson] to stability.” That finding is
supported by Dr. Haug’s testimony that he had no documented
history of Ferguson ever taking any of the four antipsychotic
14 medications, he “[could not] say one way or the other” whether
Zyprexa would be effective in treating Ferguson, and he could not
be certain which medication or combination of medications would
restore Ferguson to psychiatric stability. Although the divisions’
focus in R.K.L. and R.C. was that it was speculative whether any of
the alternative medications would ever be necessary to treat the
patients, we believe the appropriate focus under the circumstances
here is that it is speculative whether Zyprexa (or any of the other
three antipsychotic medications) will be effective in treating
Ferguson.
¶ 29 The other significant facet of this case is that the probate court
found that Dr. Haug “need[s] to have the authority to switch
[Ferguson] to another medication quickly.” (Emphasis added.) That
finding is supported by Dr. Haug’s testimony that if he were forced
to wait, for example, twenty-one days — which was the time it took
the petition for involuntary medication administration to get to
hearing — to begin administering a new antipsychotic medication,
he would be concerned that Ferguson’s condition “would continue
to deteriorate” and would “be very difficult to treat.” Because of
that, and because Dr. Haug had no idea which antipsychotic
15 medication will be effective in treating Ferguson, we discern no
error in the probate court’s granting Dr. Haug a reasonable degree
of flexibility to discover which medication worked best.
¶ 30 That brings us to the third relevant case, D.N.W. In that case,
the patient was responding effectively to Haldol; on appeal, she
challenged the district court’s order authorizing the administration
of lithium because she had not needed to be prescribed lithium over
the past nine months. D.N.W., ¶ 9. However, the probate court
found that, although the patient was not currently taking lithium,
the doctor needed the ability to administer lithium, which had been
effective in treating the patient’s previous episodes of mania. Id. at
¶¶ 10-12. The division concluded that a psychiatrist “must be
given some flexibility, under prescribed circumstances, to
involuntarily administer a backup medication.” Id. at ¶ 17. The
division in D.N.W. then said,
A court has the authority to authorize the administration of a backup medication only when the petitioner presents clear and convincing evidence, and the court finds a specific articulable concern, that the involuntary administration of the primary medication will be ineffective, if the patient experiences a recurrence of a condition or
16 symptoms that previously required administration of the backup medication.
Id. at ¶ 18 (emphasis added).
¶ 31 To the extent the division in D.N.W. intended to create a rule
that a backup medication may be ordered “only when” the
circumstances at issue in D.N.W. are present, we disagree and
decline to follow D.N.W. See People v. Johnson, 2020 COA 124, ¶ 12
(one division of the court of appeals is not obligated to follow
another division’s precedent), aff’d, 2021 CO 79. The division in
D.N.W. — which was limited to evaluating the particular
circumstances in that case — could not purport to foresee all other
possible scenarios that would warrant authorizing one or more
backup medications.
¶ 32 Here, Dr. Haug lacked sufficient knowledge of Ferguson’s
medical history to know which medication would best address the
circumstances requiring involuntary medication. He thus
developed a reasonable plan for the sequence in which he would try
a reasonable number of alternatives. And he identified a need for
flexibility in treatment options without having to return to court
each time he sought to try a new medication. We conclude that,
17 under these circumstances, the probate court did not err by
including all four antipsychotic medication options in its order.
C. Alleged Ineffective Assistance of Counsel
¶ 33 Three days after the evidentiary hearing, and one day before
the probate court issued its order, Ferguson filed a pro se
“objection” and “demand for rehearing” in which he raised an
ineffective assistance claim against the attorney who represented
him at the evidentiary hearing. The claim read as follows:
“[Counsel] presented no witnesses, especially from Children’s
Hospital (Denver); Denver Health, namely Dr. Hurlbut; Boulder
Community Hospital; [and] Bounder County Mental Health. That
due to this fact, Respondent experienced ineffective assistance of
counsel.”
¶ 34 In response to the ineffective assistance claim, Ferguson’s
counsel moved to withdraw from the case, and the probate court
appointed new counsel for Ferguson to represent him on appeal.
The court did not grant Ferguson a new evidentiary hearing on the
petition to involuntarily medicate him.
¶ 35 In the opening brief, Ferguson’s appellate counsel has brought
to our attention the pro se ineffective assistance claim Ferguson
18 raised in the probate court. However, appellate counsel represents
that he “is not able to develop an argument that trial counsel’s
performance was outside of what would be considered
professionally competent assistance” because “Respondent’s trial
counsel argued the points Respondent raised, involved an
independent expert, assured that Respondent was available for the
hearing requesting a continuance for him to do so, and had
Respondent testify.” Appellate counsel also represents that he “is
not able to develop an argument that . . . there is a reasonable
probability that the outcome would have been different” had trial
counsel called these witnesses because it “is not clear how
witnesses from previous hospitalizations, as Respondent alleges,
might have been . . . used effectively in support of Respondent’s
position.”
¶ 36 In People in Interest of Uwayezuk, 2023 COA 69, ¶¶ 16-20, a
division of this court held that the right to effective assistance of
counsel applies to involuntary medication proceedings under
section 16-8.5-112. The division in Uwayezuk held that the same
standards governing an ineffective assistance claim in a criminal
proceeding or a dependency and neglect proceeding also generally
19 apply in an involuntary medication proceeding. See Uwayezuk,
¶¶ 21-31.
¶ 37 So a respondent raising a claim of ineffective assistance in an
involuntary medication proceeding must show that (1) counsel’s
performance was deficient and (2) the respondent was prejudiced by
counsel’s errors. See id. at ¶ 22 (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). But an appellate court will remand the
case for further factual findings only when the respondent’s
allegations “are sufficiently specific to constitute a prima facie
showing of ineffective assistance of counsel.” Id. at ¶ 28 (quoting
A.R. v. D.R., 2020 CO 10, ¶ 63). If the respondent’s “allegations
lack sufficient specificity, then the ineffective assistance of counsel
claim may be summarily denied.” Id. (quoting A.R., ¶ 63).
¶ 38 Ferguson’s allegations in his pro se ineffective assistance claim
were insufficient because he did not identify what the substance of
the witnesses’ testimony would have been or how calling those
witnesses would have changed the result in the involuntary
medication proceeding. See People in Interest of E.D., 2025 COA 11,
¶ 71; People v. Chambers, 900 P.2d 1249, 1252 (Colo. App. 1994).
We thus decline to remand the matter for an evidentiary hearing
20 and discern no basis to conclude that Ferguson’s trial counsel was
ineffective.
IV. Disposition
¶ 39 The order is affirmed.
JUDGE LUM and JUDGE MOULTRIE concur.