The State of Texas for the Best Interest and Protection of A. R. F.--Appeal from County Court at Law of Cherokee County

NO. 12-03-00294-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

  ' APPEAL FROM THE

THE STATE OF TEXAS FOR THE

BEST INTEREST AND PROTECTION   ' COUNTY COURT OF

OF A.R.F.

  ' CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant A.R.F. appeals from an order for temporary in-patient mental health services and an order to administer psychoactive medication. In five issues, A.R.F. asserts federal and state due process and equal protection violations and also challenges the legal sufficiency of the evidence to support the medication order. We affirm.

Background

On August 14, 2003, an application for court-ordered temporary mental health services was filed requesting the court commit A.R.F. to Rusk State Hospital for a period not to exceed ninety days. The application was supported by two certificates of medical examination for mental illness, each of which was prepared by a physician. One week later, an application was filed requesting the court compel A.R.F. to take certain psychoactive medications. On August 26, 2003, after a hearing without a jury, the court granted the application for court-ordered temporary mental health services. The order signed by the court includes findings that A.R.F. is mentally ill and that he is likely to cause serious harm to others. The order further provides that A.R.F. be committed to Rusk State Hospital for a period not to exceed ninety days. The court then heard the application for an order to administer psychoactive medication.

Dr. Charles Plyler, A.R.F.=s treating physician, testified at the hearing. Dr. Plyler stated that A.R.F. had refused to accept the prescribed medications voluntarily and that he believes A.R.F. lacks the capacity to make a decision regarding the administration of psychoactive medication. At the time the application was filed, A.R.F.=s diagnosis was bipolar I, manic, with psychotic features. At the time of the hearing, however, A.R.F.=s diagnosis was schizoaffective disorder, which is similar. According to Dr. Plyler, the medications specified in the application are the proper course of treatment for A.R.F. He hopes that A.R.F. will be benefitted by the medications. He testified that the benefits outweigh the risks and that the medications would shorten A.R.F.=s stay at Rusk State Hospital.

On cross-examination, Dr. Plyler admitted that A.R.F. takes an anti-psychotic medication that another physician prescribed for him. A.R.F. signed a written consent for that medication and the hospital is relying on the consent to administer the medication. The doctor also testified that A.R.F. has been tried on Anumerous other medications@ prior to his current hospitalization, but without success. Therefore, Dr. Plyler concluded that there is no alternative to the use of psychoactive medications.

A.R.F. testified that he is taking an anti-psychotic medication every day. He does not want to take the medications Dr. Plyler seeks to administer because he does not know what the medications will do to him. However, A.R.F. is willing to take his Aoutside@ physician=s advice about the medications because he trusts him. He stated that taking medication not prescribed by his Aoutside@ physician is against his will.

At the conclusion of the hearing, A.R.F.=s counsel moved for a directed verdict. The court denied the motion and signed an order authorizing the administration of three specified classes of psychoactive medication. This appeal followed.

Constitutional Violations

In his first and second issues, A.R.F. contends the trial court erred in rendering judgment in violation of state and federal guarantees of due process. He asserts that certain terms found in section 574.034 of the Health and Safety Code are overly broad, vague, and ambiguous so the statute is susceptible to a variety of interpretations, making it violative of the due process clause of each constitution. In his third and fourth issues, A.R.F. argues that application of section 574.034 results in a violation of his right to equal protection under both the state and federal constitutions.

Immediately prior to the hearings, A.R.F. complained to the trial court that section 574.106 of the Health and Safety Code is unconstitutional in that it violates his state and federal constitutional rights to due process and equal protection. He made no complaint about section 574.034. A constitutional claim must have been asserted in the trial court to be raised on appeal. Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex. 1993). Therefore, A.R.F. has not preserved these complaints for review. We overrule A.R.F.=s issues one, two, three, and four.

Sufficiency of the Evidence

In his fifth issue, A.R.F. contends that the evidence is legally insufficient to support the court=s order for administration of psychoactive medication.

Applicable Law and Standard of Review

A trial court may issue an order authorizing the administration of one or more classes of psychoactive medications if the court finds by clear and convincing evidence that: (1) the patient is under an order for temporary or extended mental health services; (2) the patient lacks the capacity to make a decision regarding the administration of the proposed medicine; and (3) treatment with the proposed medicine is in the best interest of the patient. Tex. Health & Safety Code Ann. ' 574.106(a) (Vernon 2003). ACapacity@ is defined as a patient=s ability to: (1) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment; and (2) make a decision whether to undergo the proposed treatment. Id. ' 574.101(1). In deciding whether to authorize psychoactive medication, the trial court shall consider: (1) the patient=s expressed preferences regarding treatment with psychoactive medication; (2) the patient=s religious beliefs; (3) the risks and benefits, from the perspective of the patient, of taking the psychoactive medication; (4) the consequences to the patient if the psychoactive medication is not administered; (5) the prognosis for the patient if the patient is treated with the psychoactive medication; and (6) alternatives to treatment with psychoactive medications. Id. ' 574.106(b).

In a legal sufficiency review where the burden of proof is clear and convincing evidence, we must look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its findings were true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the fact finder settled disputed facts in favor of its finding if a reasonable fact finder could do so and disregard all evidence that a reasonable fact finder could have disbelieved or found incredible. Id. This does not mean that we are required to ignore all evidence not supporting the finding because that might bias a clear and convincing analysis. Id.

Analysis

Dr. Plyler stated that A.R.F. refuses to take his medication voluntarily and, in his opinion, A.R.F. lacks the capacity to make a decision regarding the administration of such medication. He also stated that treatment with the medications indicated on the application is the proper course of treatment for A.R.F. and in his best interest. He said he hoped A.R.F. would benefit from their use and that the benefits outweigh the risks. Dr. Plyler also testified that A.R.F.=s stay in the hospital would likely be shortened with the use of these medications. Finally, the doctor testified that there are no alternatives to the use of psychoactive medications.

A.R.F. testified that taking medicine prescribed by Dr. Plyler is against his will. He also said that he does not object to taking medicine prescribed by his personal physician and has signed a consent to be administered that medication.

Dr. Plyler=s testimony encompassed the factors in Section 574.106 except A.R.F.=s religious beliefs. A.R.F. presented no testimony on that factor. The trial court is not required to defer to A.R.F.=s preference on whether to take the medications prescribed by Dr. Plyler. Moreover, the trial court could have reasonably concluded that A.R.F.=s willingness to consent to a previously prescribed medication did not indicate that he had Acapacity@ to make a medication decision as that term is defined in Section 574.101(1). Therefore, we conclude that the trial court met the obligations imposed on it by Section 574.106. We overrule A.R.F.=s fifth issue.

Conclusion

A.R.F.=s constitutional complaints have not been preserved, and the evidence is legally sufficient to support the order for administration of psychoactive medication. We affirm the trial court=s orders of commitment for temporary mental health services and for administration of psychoactive medication.

JAMES T. WORTHEN

Chief Justice

Opinion delivered May 19, 2004.

Panel consisted of Worthen, C.J., Griffith, J. and DeVasto, J.

(PUBLISH)