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

NO. 12-06-00407-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS APPEAL FROM THE

FOR THE BEST INTEREST COUNTY COURT AT LAW

AND PROTECTION OF E.K. CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Appellant E.K. appeals from an order authorizing the Texas Department of Mental Health and Mental Retardation (the Department ) to administer psychoactive medications. In one issue, E.K. asserts the evidence is legally and factually insufficient to support the trial court s order. We reverse and render.

Background

On November 15, 2006, Dr. Troy Caldwell filed an application for an order to administer psychoactive medication to E.K. In the application, Caldwell stated that E.K. was subject to an order dated November 22 for temporary inpatient mental health services under Section 574.034 of the Texas Health and Safety Code. Caldwell stated that E.K. had been diagnosed with schizoaffective disorder and that he wanted the trial court to compel E.K. to take four psychoactive medications: an antidepressant, an anxoilytic/sedative/hypnotic, an antipsychotic, and a mood stabilizer. Caldwell stated that he believed E.K. lacked the capacity to make a decision regarding administration of psychoactive medications because he was disorganized in thought and very illogical. Caldwell determined that if E.K. were treated with the medications, his prognosis would be much improved. However, Caldwell believed that if E.K. were not administered the medications, he would remain disorganized and disabled. Further, Caldwell considered other medical alternatives to psychoactive medication, but determined that those alternatives would not be as effective. Moreover, Caldwell believed that the benefits of the psychoactive medications outweighed the risks in relation to present medical treatment and E.K. s best interest.

On November 22, the trial court held a hearing on the application. On direct examination, Caldwell testified that he was E.K. s treating physician and that E.K. was currently under an order for temporary mental health services. He stated that E.K. had verbally, or otherwise, refused to accept medication voluntarily. Caldwell believed E.K. lacked the capacity to make a decision regarding the administration of psychoactive medication and admitted that E.K. suffered from schizoaffective disorder. Caldwell stated that he completed the application for an order to administer psychoactive medication, that the medications listed in the exhibit attached to the application were in E.K. s best interest, and that treatment with these medications was the proper course of treatment for E.K. Caldwell believed that E.K. would likely benefit from the medications and that those benefits outweighed any risks. He testified that there were no less intrusive means of achieving the same or similar results. Further, he stated that E.K. s stay would likely be shortened if the medications were administered.

On cross examination, Caldwell admitted that E.K. was not currently on any medications. He decided not to forcibly medicate E.K. before the hearing because he wanted to show the court that E.K. needed medications. He also admitted that he did not discuss specific medications with E.K., but discussed medications in general and the idea of taking medications. Caldwell did not discuss with E.K. any treatment with antidepressants, anxoilytics, or sedatives, but believed he discussed using mood stabilizers. Caldwell recalled discussing Haldol with E.K. and that E.K. had some bad experiences with this medication. E.K. also told him that the most effective antipsychotic that he had used in the past was Seroquel. However, Caldwell did not list Seroquel in the exhibit attached to the application.

Caldwell stated that the prison system decided against using its procedure to forcibly medicate E.K. because Caldwell wanted E.K. to be prescribed psychoactive medications by the state hospital physicians. He testified that E.K. would be mandatorily discharged from the prison system to a state hospital in San Antonio eight days after the hearing. He admitted that treating E.K. with psychoactive medications during that time would not have much effect. Caldwell stated that E.K. would be reevaluated by the state hospital medical team and all decisions regarding his care would be made by them, including determining whether he could be discharged and whether he would be medicated. Caldwell admitted that E.K. s treating physicians at the state hospital may differ with him regarding the types of medications that should be used to treat E.K. Caldwell agreed that it is in a patient s best interest for his treating physicians to make decisions regarding medication. On redirect examination, Caldwell testified that the medications he selected for E.K. were interchangeable with other drugs and that he only selected a classification of medications.

E.K. testified that Caldwell may have talked to him about certain classifications of medications. E.K. stated that, in the past, he had some very bad experiences with Haldol, Haldol D, Thorazine, Mellaril, Geodone, and Prolixin. He did not know if he had bad experiences with Loxapine or Zyprexa. E.K. stated that his only positive experience was when he was treated with Seroquel and that he had no objections to being treated with that medication. He could not recall using antidepressants or mood stabilizers. E.K. testified that he would like to discuss his medication regime, if any, with his treating physicians at the state hospital in San Antonio. He objected to the application for an order to administer psychoactive medications because Caldwell did not talk to him and he had bad experiences with the prescribed medications.

At the close of the evidence, the trial court granted the application. The trial court noted that E.K. had expressed his wishes regarding psychoactive medications, but only in regard to specific medications, not the particular categories of medications. On November 22, after considering all the evidence, including the application and the expert testimony, the trial court found that the allegations in the application were true and correct and supported by clear and convincing evidence. Further, the trial court found that treatment with the proposed medication was in E.K. s best interest and that E.K. lacked the capacity to make a decision regarding administration of the medication. The trial court authorized the Department to administer to E.K. psychoactive medications, including antidepressants, antipsychotics, mood stabilizers, and anxiolytics/sedatives/hypnotics. This appeal followed.

Sufficiency of the Evidence

In his sole issue, E.K. argues that the evidence is legally and factually insufficient to support the trial court s order to administer psychoactive medications. More specifically, E.K. contends that the State failed to show that E.K. lacked the capacity to make a decision regarding the administration of medication. Because Caldwell did not discuss using psychoactive medications with him, E.K. argues, Caldwell could not determine if E.K. understood the nature and consequences of these medications. Further, he points out that Caldwell did not state why these medications were in E.K. s best interest or which of E.K. s symptoms or behaviors would be alleviated by the use of these medications. The State disagrees.

Standard of Review

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.

The appropriate standard for reviewing a factual sufficiency challenge is whether the evidence is such that a fact finder could reasonably form a firm belief or conviction about the truth of the petitioner s allegations. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In determining whether the fact finder has met this standard, we consider all the evidence in the record, both that in support of and contrary to the trial court s findings. Id. at 27-29. Further, we must consider whether disputed evidence is such that a reasonable fact finder could not have reconciled that disputed evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. If the disputed evidence is so significant that a fact finder could not reasonably have formed a firm belief or conviction, then the evidence is factually insufficient. Id.

Order to Administer Psychoactive Medication

A trial court may issue an order authorizing the administration of one or more classes of psychoactive medications to a patient who is under a court order to receive inpatient mental health services. Tex. Health & Safety Code Ann. 574.106(a) (Vernon Supp. 2006). The court may issue an order if it finds, by clear and convincing evidence, that (1) the patient lacks the capacity to make a decision regarding the administration of the proposed medication and (2) treatment with the proposed medication is in the best interest of the patient. Id. 574.106(a-1). Capacity means a patient s ability to (1) understand the nature and consequence 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. Tex. Health & Safety Code Ann. 574.101(1) (Vernon 2003). In making its findings, 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 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 Supp. 2006).

Analysis

E.K. does not dispute that the evidence is legally and factually sufficient to show that he is under an order for temporary mental health services. Thus, we will consider whether the evidence is legally and factually sufficient to support a finding that he lacked the capacity to make a decision regarding the administration of psychoactive medications and that treatment with the proposed medications was in his best interest. In the application, Caldwell stated that he believed E.K. lacked the capacity to make a decision regarding administration of psychoactive medications because he was disorganized in thought and very illogical. He also determined that if E.K. were not administered these medications, he would remain disorganized and disabled. At the hearing, Caldwell testified that E.K. refused to accept medication voluntarily and that E.K. suffered from schizoaffective disorder. However, Caldwell did not elaborate on his statements in the application and did not offer any evidence supporting his belief that E.K. lacked the capacity to make a decision regarding the administration of psychoactive medications. See Tex. Health & Safety Code Ann. 574.106(a-1). Caldwell never testified that E.K. s mental illness or his symptoms made him unable to make a decision whether to undergo the proposed treatment. See In re M.S., No. 12-06-00317-CV, 2006 WL 3735110, at *3 (Tex. App. Tyler Dec. 20, 2006, no pet.) (mem. op., not designated for publication) (stating that, due to the symptoms of the patient s mental illness, she was unable to make a decision whether to undergo the proposed treatment); In re M.T., No. 12-06-00054-CV, 2006 WL 1791607, at *4 (Tex. App. Tyler June 30, 2006, no pet.) (mem. op., not designated for publication) (noting that the patient s mental illness precluded her consideration of the taking of the medication). E.K. s testimony did not show that he was disorganized in thought or illogical. Nothing in the Texas Health and Safety Code relating to court ordered psychoactive medication authorizes a trial court to base its findings on the physician s application. See In re E.T., 137 S.W.3d 698, 700 (Tex. App. San Antonio 2004, no pet.). Pleadings are not evidence that the statutory standard has been met. See id. (citing Tex. Health & Safety Code Ann. 574.031(e) (Vernon 2003)).

Regarding E.K. s best interest, Caldwell also stated his belief that the medications listed in the exhibit attached to the application were in E.K. s best interest, that he would likely benefit from the medications, and that the benefits of the psychoactive medications outweighed the risks in relation to present medical treatment and E.K. s best interest. At the hearing, Caldwell admitted that E.K. informed him that he had bad experiences with Haldol. However, Caldwell still recommended that E.K. should be treated with that medication. From Caldwell s testimony, it is not apparent that he took into account E.K. s past experiences when he prescribed medication. See In re D.H., No. 12-04-00181-CV, 2004 WL 2820896, at *4 (Tex. App. Tyler Dec. 8, 2004, no pet.) (mem. op., not designated for publication) (noting that the physician relied upon the patient and treatment team to provide information regarding the effect medications have had in the past when prescribing medication). Considering all the evidence in the light most favorable to the findings, we conclude a reasonable trier of fact could not have formed a firm belief or conviction that E.K. lacked the capacity to make a decision regarding administration of the proposed medications and that treatment with the proposed medications was in his best interest. See Tex. Health & Safety Code Ann. 574.106(a-1); In re J.F.C., 96 S.W.3d at 266. Therefore, the evidence is legally insufficient to support the trial court s finding based upon section 574.106(a-1) of the Texas Health and Safety Code. See Tex. Health & Safety Code Ann. 574.106(a-1). Accordingly, we sustain E.K. s sole issue as to legal sufficiency.

Conclusion

Based upon our review of the record, we conclude that the evidence is legally insufficient to support the trial court s order to administer psychoactive medications. Therefore, we reverse the trial court s order and render judgment denying the State s application for an order to administer psychoactive medication.

BRIAN HOYLE

Justice

Opinion delivered May 23, 2007.

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

(PUBLISH)