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

NO. 12-06-00174-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. COUNTY COURT OF

PROTECTION OF L.T.

CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

L.T. appeals from an order of commitment for temporary inpatient mental health treatment and an order to administer psychoactive medication. After a jury trial, the trial court ordered L.T. committed to Rusk State Hospital for a period not to exceed ninety days. After a hearing before the court, the trial court entered an order authorizing the Texas Department of Mental Health and Mental Retardation to administer psychoactive medication to L.T. In six issues, L.T. asserts that the evidence is legally and factually insufficient to support the order of commitment, the trial court violated her rights to due process and equal protection, and the evidence is insufficient as a matter of law to support the order to administer psychoactive medication. We reverse and render.

Background

On April 27, 2006, an application for court ordered temporary mental health services was filed requesting the court commit L.T. to Rusk State Hospital for a period not to exceed ninety days. The application was supported by a certificate of medical examination for mental illness, prepared by a physician, Dr. S. Lahiri, who had examined L.T. on April 26. Dr. Lahiri diagnosed L.T. as suffering from schizoaffective disorder. He found that L.T. is mentally ill, likely to cause serious harm to herself and others, and is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment.

Dr. Lahiri reached these conclusions because L.T. did not speak. He reported that she was selectively mute, walked in front of traffic, threatened to beat her son to drive out a demon, exposed herself, and engaged in bizarre behavior.

On May 4, 2006, L.T. was examined by Dr. Douglas Johnson who then also prepared a certificate of medical examination for mental illness. Dr. Johnson diagnosed L.T. with schizoaffective disorder, bipolar type. He indicated that L.T. is mentally ill, is likely to cause serious harm to herself, and is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment. The doctor came to these conclusions because L.T. refused to speak on April 26 and on May 4 she said, I am physically perfect, psychologically perfect. Prior to April 26, she had been exposing herself in public, yelling, shouting, and walking in the middle of traffic, and she had threatened to beat her son. On April 26, she was brought to Rusk State Hospital in a straight jacket and refused to talk or open her eyes.

The two physician s certificates were placed into evidence at trial. However, the trial court sustained L.T. s objection to the portions of each certificate describing L.T. s prehospitalization behavior and instructed the jury that they were not to consider the statements concerning that behavior as being established as true.

Dr. Johnson testified at the trial, first restating his diagnosis that L.T. is suffering from schizoaffective disorder, bipolar type. He explained that L.T. refused to attend a May 4 treatment team meeting, she walked around with her eyes nearly closed, and she told Dr. Johnson that she had nothing to say. She claimed that she was perfect, psychiatrically, physically, and in every other way, and would not communicate further. Dr. Johnson saw her several times between the date of her admission and the date of trial. But she refused to go to his office for private conversations and she never spoke to him after telling him she had nothing to say. Until the last several days before the trial, L.T. spent her time walking around bumping into things or sitting around with her eyes mostly closed, claiming that she was blind. She required assistance to deal with her personal needs because she claimed she was blind. She would get very angry if the nurses suggested she open her eyes. She was very demanding with the nursing staff, at times creating a disturbance by yelling and making verbal threats. On two occasions, one of which was nine days before the trial, she had to be medicated on an emergency basis because she was very agitated, loud, and disruptive, and made verbal threats against people, including the nursing staff.

Dr. Johnson explained that L.T. is not aware enough, able to concentrate enough, and does not have enough insight to be able to recognize side effects of the medicine and report them back to the physician. Only emergency medications have been prescribed because L.T. has consistently refused to consider consent to medications. The doctor explained that L.T. takes a medication for hyperlipidemia to help correct cholesterol and blood lipid abnormalities. While her condition has changed since admission to the hospital, he does not know how much her illness has remitted because she will not communicate. She needs psychotropic medications, and Rusk State Hospital is the least restrictive environment appropriate for her.

The doctor testified that L.T. s activities demonstrate severe and abnormal mental, emotional, or physical distress, and he believes she is experiencing substantial mental or physical deterioration of her ability to function independently. He had made this determination on May 4 and documented it on his certificate. At that time he had also determined that she was unable to make a rational and informed decision as to whether to submit to treatment. Since May 15, when she began keeping her eyes open, she has been able to take care of her personal needs without assistance. However, Dr. Johnson explained that he had no evidence that she has reached a therapeutic level where she would be able to take care of herself out in the community. Again, she will not communicate or cooperate with an evaluation. Likewise, he did not have sufficient information at the time of the trial to overturn his initial opinion that it was likely she could cause serious harm to herself or that she is suffering severe and abnormal distress, experiencing substantial deterioration, or unable to make a rational decision about submitting to treatment.

Dr. Johnson testified that L.T. exhibited a continuing pattern of behavior for the time she was in the hospital, almost three weeks. That behavior included being very intrusive into others affairs, banging on the glass at the nurses station, and making demands and threats.

On cross examination, Dr. Johnson explained that while he was not the physician who prescribed the medicine to adjust her cholesterol levels, L.T. is voluntarily taking it. He agreed that she has improved since being at the hospital and she behaved appropriately during the trial. She has not attempted to hurt herself and she does not require assistance or prompting to dress or feed herself. He also agreed that by consenting to her medical treatment and taking her medical medication, it appears she has some capacity to make a decision regarding her medical treatment. The doctor believes that if L.T. were in a burning building, she would know to leave it and if on a picnic, she would know not to sit on a fire ant mound. Further, if she had a broken arm, she would know to go to a doctor for treatment. In speaking to L.T. about medication, she either said no or refused to answer.

Dr. Johnson explained that L.T. made allegations that she had been physically abused, but she would not allow him to examine her. The doctor had no knowledge of L.T. assaulting anyone. He testified that there is a good likelihood that she is not a danger to herself or others, but she has never allowed adequate evaluation.

On redirect, the doctor explained that he wants to make sure L.T. is in a reasonable remission. He stated that people with schizoaffective disorder of the bipolar type do dangerous things to themselves and other people. While L.T. has improved, if she does not improve completely, she will go back to behavior that is dangerous. If it is determined that she needs medication, and she takes it, she will respond in ten to fourteen days. She could be discharged two or three days after achieving a good state of remission.

The jury found that L.T. is mentally ill and that, as a result of mental illness, she is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of her ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment. In accordance with the jury findings, the trial court entered an order requiring L.T. to submit to temporary inpatient mental health services for a period not to exceed ninety days.

After the jury was dismissed, the trial court heard testimony from Dr. Johnson and L.T. concerning Dr. Lahiri s application for court ordered authorization for the administration of psychoactive medication. The trial court granted the application and entered an order to administer psychoactive medication for the period of temporary commitment.

Commitment Order

In her first issue, L.T. asserts the evidence is neither legally nor factually sufficient to support the order of commitment. She contends that the evidence does not show an overt act or continuing pattern of behavior tending to confirm that she is unable to provide for her basic needs.

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.

Applicable Law

The trial judge may order a proposed patient to receive court ordered temporary inpatient mental health services if the judge or jury finds, from clear and convincing evidence, that the proposed patient is mentally ill and, as a result of the mental illness she is likely to cause serious harm to herself, is likely to cause serious harm to others, or is (i) suffering severe and abnormal mental, emotional, or physical distress, (ii) experiencing substantial mental or physical deterioration of her ability to function independently, which is exhibited by her inability, except for reasons of indigence, to provide for her basic needs, including food, clothing, health, or safety, and (iii) unable to make a rational and informed decision as to whether or not to submit to treatment. Tex. Health & Safety Code Ann. 574.034(a) (Vernon 2003). To be clear and convincing under the statute, the evidence must include expert testimony and, unless waived, evidence of a recent overt act or a continuing pattern of behavior that tends to confirm either the likelihood of serious harm to the proposed patient or others, or the proposed patient s distress and the deterioration of his ability to function. Tex. Health & Safety Code Ann. 574.034(d) (Vernon 2003).

Discussion

The State provided expert testimony explaining that L.T. is mentally ill and describing her behavior and statements. The evidence shows L.T. was selectively mute, and for over two weeks while at the hospital, she kept her eyes closed and claimed to be blind. While her eyes were closed, she needed assistance in taking care of her personal needs. Before trial, she stopped keeping her eyes closed and no longer required assistance or prompting to dress or feed herself. At times, she was angry, loud, demanding, disruptive, and agitated, and yelled verbal threats. Dr. Johnson specifically testified that the pattern of behavior she exhibited involved being intrusive into the affairs of other people, banging on the glass at the nurse s station, and making demands and threats. Even assuming this constitutes a pattern of behavior for purposes of the applicable statute, none of these behaviors indicate an inability to function independently exhibited by her inability to provide for her own basic needs. The pattern of behavior must relate to the criterion on which the judgment is based. See In re C.O., 65 S.W.3d 175, 181 (Tex. App. Tyler 2001, no pet.).

We conclude there is no evidence of an overt act or continuing pattern of behavior that tends to confirm the deterioration of L.T. s ability to function. The evidence presented does not satisfy the statutory requirement for clear and convincing evidence in support of the order for temporary inpatient mental health services. See Tex. Health & Safety Code Ann. 574.034(d). The evidence is legally insufficient to support the trial court s order. See In re J.F.C., 96 S.W.3d at 266. We sustain L.T. s first issue to the extent she complains of the legal sufficiency of the evidence. We need not reach her factual sufficiency complaint. See Tex. R. App. P. 47.1.

Psychoactive Medication

In her sixth issue, L.T. contends the order authorizing administration of psychoactive medication cannot stand. We agree.

  The court may enter an order authorizing the administration of psychoactive medication to a patient who is under an order to receive inpatient mental health services if it finds by clear and convincing evidence that 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), (a-1) (Vernon Supp. 2006). Having found the evidence legally insufficient to support the trial court s order of commitment, we have determined that the trial court s order for temporary mental commitment is invalid. Therefore, the order authorizing administration of psychoactive medication is also invalid. See Tex. Health & Safety Code Ann. 574.106(a). We sustain L.T. s sixth issue.

Conclusion

The evidence is legally insufficient to support the trial court s order of commitment for temporary inpatient mental health services. It follows that the order for administration of psychoactive medication is invalid. We need not reach L.T. s remaining issues. See Tex. R. App. P. 47.1.

We reverse the trial court s orders of commitment for temporary inpatient mental health services and for administration of psychoactive medication. We render judgment denying the State s applications for court ordered temporary mental health services and administration of psychoactive medication.

JAMES T. WORTHEN

Chief Justice

Opinion delivered February 9, 2007.

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

(PUBLISH)