In Re: F. M. v. The State of Texas--Appeal from Probate Court of Galveston County

Reversed and Rendered and Majority and Dissenting Opinions filed December 22, 2005

Reversed and Rendered and Majority and Dissenting Opinions filed December 22, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00981-CV

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IN RE F.M.

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On Appeal from the Probate Court

Galveston County, Texas

Trial Court Cause No. 2322 & 2322A

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D I S S E N T I N G O P I N I O N

Among other things, F.M.=s doctor testified, and the trial court found, that she is mentally ill (bipolar manic) and that, as a result of that mental illness, she is: suffering severe and abnormal mental or emotional distress; experiencing substantial mental deterioration of her ability to function independently, as exhibited by her inability to provide for her basic needs, including safety; and unable to make a rational and informed decision as to whether or not to submit to treatment.[1] The evidence at the hearing included her doctor=s testimony that: (1) she can get very angry very quickly; (2) she had refused at least one cancer radiation treatment; (3) when asked by her doctor about taking a medication called Abilify, which she had previously told him was Areally good medicine,@ she became angry and told him that it had caused her cancer and caused her to drink alcohol and caffeine; (5) immediately after her previous release from the treatment facility, she was brought back; (6) she had been inconsistent in following through with treatment after agreeing to it; that is, she had told her doctor in the past that she would follow a suggested course of action, but then refused for reasons that made sense to her; (7) she doesn=t believe she has bipolar illness; and (8) if she is not treated with psychoactive medications, she will continue to deteriorate. In addition, F.M.=s own testimony included the following:

Q. [B]ut you=re telling me now and you=ve told the doctor that you would be agreeable to not only start but continue and stay with the radiation treatments or whatever medications they wanted to give you for your cancer; is that correct?

A. For my cancer?

Q. Right. Let=s start with that first because that=s why this all changed around because you were refusing treatment for your cancer.

A. The only thing I need for my cancer is calcium according to my nurse.

Q. Well, okay, but the doctor thinks you may need something more than that and you=re not taking that and he can=t do anything about it which is why he=s recommending you be sent to Austin.

A. Well, the reason I don=t take that is because it=s on my allergy strap considered by the gentleman in the biopsy room, okay, and I have to stay away from caffeine because I=m an LSD victim. Caffeine, alcohol, marijuana, stress, blinking lights and the mercury drug report fatigue. And the reason I initially denied the radiation was because I was afraid I would fall into so much fatigue but I saw Dr. Hatch on TV yesterday at dinner time and then the next day at lunch time with the names of Dr. Hoff and a gentleman that I saw there the other day, and she told me it=s five days perfected and that it=s truly state of the art as my surgeon said. Everything was state of the art.

* * * *

Q. Is there anything else that you want to tell the judge?

A. I=m not bipolar or manic depressive. I am an LSD victim which appears that way which I told Dr. Early. I told the signs. I even had blinking lights in the fire drill the other day and a Ablink, blink@fluorescent light this morning in my bathroom. . . . And I am Post Traumatic Stress Disorder because of my soldier in Cambodia missing in action.

Because I believe this evidence is legally sufficient to show recent overt acts and/or a continuing pattern of behavior that tended to confirm F.M.=s distress and deterioration of her ability to function, I would affirm the judgment of the trial court.

/s/ Richard H. Edelman

Justice

Judgment rendered and Majority and Dissenting Opinions filed December 22, 2005.

Panel consists of Justices Edelman, Seymore, and Guzman. (Seymore, J., majority).

(Guzman, J., concurs in result only without an opinion.)

[1] See Tex. Health & Safety Code Ann. ' 574.034(a)(1), (a)(2)(C) (Vernon 2003).