The State of Texas for the Best Interest and Protection of D.H.--Appeal from County Court at Law of Cherokee County

NO. 12-04-00181-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS FOR APPEAL FROM THE

THE BEST INTEREST AND COUNTY COURT AT LAW

PROTECTION OF D.H. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant D.H. appeals from an order to administer psychoactive medication. After a hearing without a jury, the trial court entered an order authorizing the Texas Department of Mental Health and Mental Retardation to administer psychoactive medication to D.H. In three issues, D.H. asserts that the evidence is legally and factually insufficient to support the order and the administration of psychoactive medication by force is unconstitutional. We affirm.

Background

On May 27, 2004, an application was filed requesting the court order an authorization for the administration of psychoactive medication to D.H. The application, filed by Dr. S. Siddiqui, recited that D.H., who suffers from psychosis N.O.S., is subject to an order for temporary mental health services. Dr. Siddiqui indicated that D.H. refuses to take the medication voluntarily. The doctor believes D.H. lacks the capacity to make a decision regarding administration of psychoactive medication because he is loud and threatening and lacks insight. // Dr. Siddiqui determined that the requested medication is the proper course of treatment for D.H. and, with this treatment, his prognosis is fair. Conversely, without the treatment, D.H. s mental health may further deteriorate. Medical alternatives would not be as effective as administration of psychoactive medication and the benefits of psychoactive medication outweigh the risks.

Dr. Siddiqui testified at the June 1 hearing, stating that D.H., who is under court-ordered temporary mental health services, refused to take his medications voluntarily and lacks the capacity to make a decision regarding the administration of psychoactive medications. Dr. Siddiqui stated that D.H. is suffering from psychosis N.O.S. The doctor testified that the medications indicated in the exhibit attached to the application are in the proper course of treatment for D.H. and in his best interest. He explained that D.H. would likely benefit from taking these medications and the benefits outweigh the risks. D.H. s hospital stay would likely be shortened if medications are used.

On cross-examination, Dr. Siddiqui explained that, at the time of his admission, the admitting doctor believed D.H. had the capacity to make a decision about the use of medications. He discussed the possible use of medications with D.H., and D.H. seemed to understand the nature of the conversation. Initially, D.H. agreed to take medications, but later decided not to take them. Dr. Siddiqui testified that D.H. did not understand the doctor s explanations about the effects and uses of the medications. D.H. took his medications on one day only before declining to take them.

The doctor explained that when D.H. told him that a particular medication was not helping, he prescribed a different medication. The doctor testified that, when prescribing medication, he takes into consideration the effect the medications have had in the past. He asks D.H. about the effects of the medications and relies on D.H. s responses, as well as the treatment team s response.

Dr. Siddiqui said D.H. takes his medication [o]n and off, when he feels like it. When he agrees to medication, it is given to him. When he does not agree, he is given emergency injections. Dr. Siddiqui explained that it is routine procedure to maintain close observation for ill side effects. When ill side effects are observed, the medication is changed or eliminated. The doctor anticipated that, with the prescribed medication, D.H. would need to remain in the hospital at least two to three weeks. However, his stay may be shorter or longer, depending on how he responds to the medication.

On redirect examination, Dr. Siddiqui further explained that he based the two to three week estimate on D.H. s response to the medication. Because D.H. feels that he needs more of one particular medication, the doctor will give him more and see how D.H. responds.

D.H. testified in his own behalf. He said he is scared of the medications because they have bad side effects. His jaw has gotten stuck twice because of medication he called Geodon that he had been given. He said he only turned down medication two times, and he talked to the doctor about his medications the next day. The doctor changed his medication to Seraquel, and he has not turned down that medication. He stated that Ativan helps with anxiety, and he is taking Remeron by agreement. He declines to take other medications the doctor has suggested because of past experience.

D.H. had been ordered committed for temporary in-patient mental health services on May 20, 2004. The trial court entered an order to administer psychoactive medication for the period of temporary commitment.

Sufficiency of the Evidence

In his first issue, D.H. asserts the evidence is neither legally nor factually sufficient to support the order to administer psychoactive medication. He contends that the State did not prove by clear and convincing evidence that he lacks the capacity to make a decision regarding administration of psychoactive medication. He argues that he understands the effects that taking certain psychoactive medications can have and therefore has the requisite capacity. He asserts that the evidence shows that the doctor determined D.H. lacked capacity only when D.H. did not agree with the doctor s assessment of appropriate medications. Further, he contends there is either no evidence or insufficient evidence that he did not have the intelligence to understand the consequences of his decision not to take psychoactive medication. He argues the State did not show that substantial impairment would occur absent the use of these medications. He also contends there is no evidence indicating he would pose harm to himself or others if he were not medicated or that his condition was significantly deteriorating without the use of medication. Therefore, in light of the possible side effects, use of these medications cannot be viewed as a benefit to him. Because D.H. s interest in remaining free of severe side effects clearly outweighs the State s interest in forcing medication on a nondangerous individual, he argues, the order should be reversed.

Standard of Review

In a legal sufficiency review where the burden of proof is clear and convincing evidence, the reviewing court must consider all of 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 finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). The reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. Id. A court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id.

In addressing a factual sufficiency of the evidence challenge, we must consider all the evidence in the record, both in support of and contrary to the trial court s findings. In re C.H., 89 S.W.3d 17, 27-29 (Tex. 2002). This court must give due consideration to evidence that the factfinder could reasonably have found to be clear and convincing. Id. at 25. We must determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State s allegations. Id. We must consider whether disputed evidence is such that a reasonable trier of fact could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. Appellate courts retain deference for the constitutional roles of the factfinder. In re C.H., 89 S.W.3d at 26. The trier of fact is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. See id. at 27; In re J.J.O., 131 S.W.3d 618, 632 (Tex. App. Fort Worth 2004, no pet.).

Applicable Law and Analysis

The court may enter an order authorizing the administration of psychoactive medication if it finds by clear and convincing evidence that the patient is under an order for temporary or extended mental health services, 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. Tex. Health & Safety Code Ann. 574.106(a) (Vernon 2003). In determining that there is a need for psychoactive medication, the court is required to consider the following:

(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 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 psychoactive medication; and

(6) alternatives to treatment with psychoactive medication.

Tex. Health & Safety Code Ann. 574.106(b) (Vernon 2003).

Dr. Siddiqui testified that D.H. was, at the time of the hearing, under an order for temporary mental health services. The doctor testified that D.H. suffers from psychosis N.O.S. and lacks the capacity to make a decision regarding administration of psychoactive medication. The medications are in D.H. s best interest, the benefits outweigh the risks, and his hospital stay would be shortened if medications are used. Dr. Siddiqui testified that D.H. did not understand his explanations about the effects and uses of the medications, took his medications voluntarily on one day only, and takes his medication when he feels like it.

Considering all the evidence in the light most favorable to the findings, we conclude a reasonable trier of fact could have formed a firm belief or conviction that D.H. lacked the capacity to make a decision regarding administration of the proposed medication. See In re J.F.C., 96 S.W.3d at 266. This evidence satisfies the statutory requirement for clear and convincing evidence in support of the order for administration of psychoactive medication. See Tex. Health & Safety Code Ann. 574.106(a). The evidence is legally sufficient to support the trial court s order. See In re J.F.C., 96 S.W.3d at 266.

In addressing D.H. s factual sufficiency complaint, we consider all the evidence, giving due consideration to evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. D.H. testified that he turned down medications only twice. He explained that he is scared of the medications because he has experienced bad side effects. He identified three medications that he agrees to take and stated that he declines other medications because of his experience with those medications. Dr. Siddiqui testified that D.H. takes his medication voluntarily when he feels like it and D.H. did not understand the effects and uses of the medications. The doctor acknowledged the possibility of side effects and stated that he relies on D.H. and the treatment team to provide information regarding the effect medications have had in the past. He takes that information into account when prescribing medication. Hospital personnel maintain close observation of patients for side effects and change medications as needed. In light of the entire record, the evidence that the trial court could not have credited in favor of its findings is not so significant that the trial court could not reasonably form a firm belief or conviction that D.H. lacks the capacity to make a decision regarding the administration of the proposed medication and that treatment with the proposed medication is in his best interest. See id. Thus, the evidence is factually sufficient to support the trial court s findings. See Tex. Health & Safety Code Ann. 574.106(a). Because we hold the evidence is both legally and factually sufficient to support the trial court s order, we overrule D.H. s first issue.

Constitutional Claims

In his second issue, D.H. contends that forcibly administering mind-altering drugs to a nondangerous mental patient is unconstitutional. He argues that his First Amendment right to freedom of thought has been violated. D.H. did not present this claim to the trial court. 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, D.H. has not preserved this complaint for review. We overrule D.H. s second issue.

In his third issue, D.H. contends that forcibly administering psychoactive medication to a mental patient violates his right to substantive due process. He argues that avoiding the administration of unwanted antipsychotic drugs is a significant liberty interest protected by the Fourteenth Amendment due to the numerous, debilitating, life-altering and sometimes even fatal side effects of the drugs. Further, absent a specific finding of dangerousness, he argues, his interest in avoiding the forced administration of antipsychotic drugs outweighs the State s interest in providing medical treatment or reducing the danger he may present to himself or others. This argument was not made in the trial court and is therefore waived. Id.

Also in his third issue, D.H. asserts that Section 574.106 of the Texas Health and Safety Code is violative of his constitutional rights to due process due to ambiguity in the terms capacity and best interest. He argues that the terms are so overly broad, vague, and ambiguous that they render themselves susceptible to a variety of interpretations. Further, he asserts, the statute lacks the use of objective measurement. Accordingly, he argues, the statute allows for an arbitrary and unreasonable interpretation where the harm done is immediate and sometimes irreparable.

No complaint was made in the trial court that the term best interest is vague or that the statute lacks the use of objective measurement. These complaints are not properly before us for review. Id.

When considering an attack upon the constitutionality of a statute, we begin with the presumption that it is valid and that the legislature did not act arbitrarily or unreasonably in enacting the statute. Robinson v. Hill, 507 S.W.2d 521, 524 (Tex. 1974). We must uphold the statute if a reasonable construction can be determined that will render it constitutional. Rowan Drilling Co. v. Sheppard, 126 Tex. 276, 279, 87 S.W.2d 706, 707 (Tex. 1935) (orig. proceeding). The burden rests upon the individual challenging the statute to prove its unconstitutionality. Robinson, 507 S.W.2d at 524. A civil statute would violate due process only if it commanded compliance in terms so vague and indefinite as really to be no rule or standard at all. A.B. Small Co. v. American Sugar Refining Co., 267 U.S. 233, 239, 45 S. Ct. 295, 297, 69 L. Ed. 589 (1925).

D.H. argues that the term capacity is ambiguous, is not defined in the Code, and that patients are deemed to lack capacity when their opinions differ from that of the treating physician. He claims there are reasons for refusing psychoactive medication that outweigh the State s interest in medicating a nondangerous patient and have nothing to do with a patient s capacity to make a decision as to proper medical treatment.

D.H. s argument speaks more to the sufficiency of the evidence to show if a patient lacks the capacity to make a decision regarding the administration of medication rather than to the issue of ambiguity in the term capacity. Further, D.H. s statement to the contrary notwithstanding, the term capacity is defined in the Health and Safety Code. Capacity is statutorily defined as a patient s ability to understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment and make a decision whether to undergo the proposed treatment. Tex. Health & Safety Code Ann. 574.101(1) (Vernon 2003). Therefore, under Section 574.106(a), the trial court may authorize the administration of psychoactive medication if it finds the patient is under an order for mental health services, the patient cannot understand the nature and consequences of the proposed treatment, including benefits, risks, and alternatives, rendering him unable to make a decision regarding administration of the proposed medication, and this treatment is in the patient s best interest. It is not required that statutes be defined with mathematical exactitude, only that they provide fair notice, in light of common understanding and practices. See Boyce Motor Lines v. United States, 342 U.S. 337, 340, 72 S. Ct. 329, 330, 96 L. Ed. 367 (1952). Section 574.106 does provide fair notice. The statute does not encourage arbitrary or discriminatory application. See Women s Med. Ctr. v. Bell, 248 F.3d 411, 422 (5th Cir. 2001). We conclude that the term capacity, as used in Section 574.106, is not so vague that people of common intelligence must guess at its meaning and would differ in its application. See Smith v. Goguen, 415 U.S. 566, 572 n.8, 94 S. Ct. 1242, 1247 n.8, 39 L. Ed. 2d 605 (1974).

As to D.H. s contention that Section 574.106 is overly broad, he offers no argument or authority in support of that contention and therefore it is not presented for review. Beasley v. Molett, 95 S.W.3d 590, 609 (Tex. App. Beaumont 2002, pet. denied). We overrule D.H. s third issue.

Conclusion

The evidence is legally and factually sufficient to support the trial court s order authorizing administration of psychoactive medication. Because Section 574.106 of the Texas Health and Safety Code is not vague and ambiguous, it does not violate D.H. s rights to due process.

We affirm the trial court s order for administration of psychoactive medication.

DIANE DEVASTO

Justice

Opinion delivered December 8, 2004.

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

(PUBLISH)