NO. 12-06-00031-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 J.H. § CHEROKEE COUNTY, TEXAS
MEMORANDUM OPINION
J.H. appeals from an order of commitment for temporary inpatient mental health services and an order to administer psychoactive medication. After a hearing without a jury, the trial court ordered J.H. committed to Rusk State Hospital for a period not to exceed ninety days and entered an order authorizing the Texas Department of Mental Health and Mental Retardation to administer psychoactive medication to J.H. In four issues, J.H. asserts the evidence is legally and factually insufficient to support the orders and the trial court violated his rights to freedom of religion and speech when it granted the State’s application to administer psychoactive medication. We affirm.
Background
On January 24, 2006, an application for court ordered temporary mental health services was filed requesting the court commit J.H. 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. Jon Guidry, who had examined J.H. on January 23. Dr. Guidry diagnosed J.H. as suffering from Bipolar Disorder I, manic with psychosis. He found that J.H. is mentally ill and likely to cause serious harm to others. He also found that J.H. is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability to provide for his basic needs, and is unable to make a rational and informed decision as to whether or not to submit to treatment.
Dr. Guidry reached these conclusions because, on January 23, J.H. had said “I stopped all my medications” and had allegedly been threatening in the community. J.H. exhibited pressured speech, tangentiality, and threatened a lawsuit if admitted to the hospital. Dr. Guidry found that J.H. presents a substantial risk of serious harm to himself or others if not immediately restrained, an opinion he based on J.H.’s behavior. Dr. Guidry formed this opinion because J.H. said “[w]hatever they said is a false report” and “I stopped all my medications months ago.”
On January 24, 2006, J.H. was examined by Dr. G. Paul Kula who then also prepared a certificate of medical examination for mental illness. Dr. Kula diagnosed J.H. with Bipolar Disorder, type I, current episode manic, severe, with psychotic features. He also indicated that J.H. is mentally ill and likely to cause serious harm to others. He further determined that J.H. is suffering severe and abnormal mental, emotional, or physical distress, is experiencing substantial mental or physical deterioration of his ability to function independently, which is exhibited by his inability to provide for his basic needs, and is unable to make a rational and informed decision as to whether or not to submit to treatment. Dr. Kula further determined that J.H. presents a substantial risk of serious harm to himself or others if not immediately restrained, as demonstrated by J.H.’s behavior. He came to these conclusions because J.H. said “I decided to stop all my medication” and “I do not have Bipolar Disorder.” Also, J.H. threatened other people in the community, made vague threats to Dr. Kula if he did not release J.H. immediately, and refused his medication.
Dr. Kula testified at the hearing, explaining that he diagnosed J.H. with Bipolar Disorder, current episode manic, with psychotic features. He testified that J.H. is likely to cause serious harm to others. He explained that the nurses have felt threatened by his demands and demeanor. He is a large man and because he presents himself with “active vigor,” they feel he may lose control of himself. He has a high potential to do something physical if he does not get what he wants and loses his temper. The doctor reviewed J.H.’s psychiatric and social history and his mental status exam, as well as statements by the mental health authority of the referring county that evaluated him. He explained that J.H. denies any illness, and although he was on medication for physical and mental health problems, he now refuses to take any medication. J.H. is very intense and, when the doctor does not agree with him, J.H. makes legal threats against the doctor, threatening to take him to the Board or to sue the hospital. J.H. has not slept in five to fourteen days, which the doctor explained could make a person psychotic. J.H. stays up all night writing out what he calls legal opinions that he plans to present to the Supreme Court. Dr. Kula explained that untreated psychosis causes not only a chemical imbalance, but also anatomical brain damage. Part of the brain shrinks or dies and no longer responds to any medication. J.H. also suffers from benign nonessential tremor, which he denies. He has hypertension, which, if untreated, puts him at risk for congestive heart failure or stroke.
Dr. Kula testified that J.H. does not appreciate the danger of his decision making. J.H. claims to have legal expertise as well as a medical degree that he received in Galveston. J.H.’s basic judgment is pervasive and affects multiple areas of his life. The doctor “would not trust him in public to do the right thing.” Dr. Kula would not want him driving a car because, in addition to his significant tremor, manic patients tend to drive recklessly. In his hyper state, his actions are unpredictable. Manic patients have no appreciation of their reckless approach toward living. If something were to happen causing him to need medical treatment, he would not handle that appropriately. He does not appreciate the fact that he has any medical condition of any kind. J.H. says God will take care of him and that is why he does not need any medical care. He sees himself as a religious person and is proud of the fact that he is a 32nd degree Mason. Dr. Kula does not believe J.H. could go to a restaurant and interact with people without causing a disturbance because he is “amazingly hyperactive.” He is effusive and expansive in his personality and has a need to preach to people.
Dr. Kula explained that this is a “textbook case of full-blown mania with psychotic features. The psychosis is grandiose and delusional, related to having a legal background, medical background, having a special relationship with G-D that is beyond what we normally say is a relationship with G-D.” The doctor explained that this is a genetic condition that starts out as depression. The doctor’s diagnosis was based on his examination of J.H., review of the medical history, and reasonable medical probability. He explained that, if J.H. does not take his medications, there might be spontaneous resolution of the manic episode in two to four months. During that time period, J.H. will continue to damage his brain. The doctor stated that J.H. needs to be hospitalized. He could not receive appropriate treatment as an outpatient because he would not take his medication.
On cross examination, Dr. Kula testified that J.H. has not received any emergency injections since being in the hospital and is not on any observation status. When admitted to Rusk State Hospital, he did not allow them to take his blood pressure. But the referring hospital noted a history of hypertension and that his blood pressure was elevated on admission. The doctor explained that they attempted to have J.H. transferred to a VA hospital but he would not cooperate. He would not sign consent forms to allow them to contact the VA or his family. J.H. claims to have post traumatic distress disorder from the Korean War. However, Dr. Kula said J.H. does not give a history consistent with that. J.H. might have post traumatic distress, “but until you scrape away this overriding illness, you are not going to see it.”
Upon questioning by the court, Dr. Kula explained that J.H.’s failure to recognize his hypertension problem and accept treatment for it is caused by the mental illness. If he does not treat it, the most immediate danger would likely be decompensated congestive heart failure or he could have a stroke. J.H.’s failure to treat the condition that places him at risk for further brain damage is caused by mental illness. J.H. has engaged in the recent overt act of staying up all night every night since he has been at Rusk State Hospital. This has caused him to become more and more grandiose. The day before the hearing, he began claiming to have a medical degree. He is becoming worse and worse from sleep deprivation. Eventually, the sleep deprived begin to hallucinate and have all kinds of psychotic symptoms. Staying up all night will make him more agitated and will create a threat to others. The court asked what has been observed that indicates J.H. is having distress from the mental illness. Dr. Kula explained that he starts talking and, when people do not respond or acknowledge that he is correct, he becomes more and more intense and argumentative and attempts to convince people. Some of the nurses feel threatened and are afraid he might lose his temper. Staying up night after night and not sleeping is a sign of distress. If he stays up seven days in a row at the hospital, Dr. Kula will likely order emergency medication to help him sleep. That medication would help him to be less agitated but would not address his underlying mood instability.
On further cross examination, Dr. Kula agreed that J.H. has been respectful of the court proceedings. He explained that most bipolar people have higher than average IQs, are crafty, and know how to pull off things like that in public. For a brief period of time they can keep themselves held together.
J.H. testified in his own behalf. He said he would like to be released but would go to the VA hospital. He opined that his post traumatic distress disorder is well confirmed and documented in his medical records. He said he has no problem sleeping and does not have high blood pressure. He explained that “they had all kinds of trouble with the machine.” He said the doctors at the rehabilitation center said he has the best cardiovascular number they have ever seen. He denied having any problems. When asked if he could live at home and pay his bills, he responded that he had been doing it for years and has been functioning without any problems. He purchases groceries and drives a car. Again, he said there is no problem whatsoever. He respectfully requested and/or demanded to be released on a writ of habeas corpus, on his own recognizance, to tend to his business. He also stated that he did not need to be medicated by force. He explained that Dr. William Ray is going to assist him in getting documentation for the Agent Orange damage that causes his tremors. He said that is documented in the VA records. He explained that he is a past commander of the VFW post and a life member of the Masonic Lodge, Scottish Rite, and Sharon Shriners. He said he has no problems and he is not worried about attacking anyone. He has started writing his autobiography and hopes all those in court will buy his book when he is finished with it.
On cross examination, J.H. said he questions Dr. Kula’s credentials regarding his knowledge of environmental medicine and contamination from toxic chemicals. He said he was exposed to Agent Orange while in Korea, insisting that Agent Orange was used in World War II and the Korean War. He denied having a medical degree, explaining that he had attended classes and received “mini” diplomas issued by the University of Texas Medical Branch in Houston. He said he did not tell Dr. Kula that he had a medical degree and complained that the doctor does not listen when he talks. He also stated that the doctor has not reviewed his records, particularly his spiritual records, the records that document his spirituality. They are notarized affidavits that he prepared showing that he accepts Jesus Christ as his personal savior and explaining his total understanding and acceptance of Almighty God. He plans to put these affidavits in his autobiography. When asked where he lives, J.H. responded, “Well, I live right here, but I stay at different places. I have had a post office box and lived in Pearland since 1963. I was born in Connecticut in a log house. I am an original Texas Ranger.” When asked where he would go if released, he responded, “I would go about conducting my business, writing my autobiography. Now, let me explain something. When I was ambushed and kidnapped the other day, I had just finished a session with Mel Gamble, who is a retired US Air Force colonel.” He then explained that he has rented a house and that he is a real estate broker. His license will expire in April of this year and he needs some continuing education classes. He receives Social Security and union retirement checks.
In response to questioning by the court, J.H. said he was born in 1934 and was in the Korean War in 1954 and 1956. He then clarified that Congress had never declared war. It was a police action.
The trial court entered an order for temporary inpatient mental health services after determining that the evidence supports the allegations that J.H. is mentally ill and that he is likely to cause serious harm to others. The court also found that J.H. is suffering severe and abnormal mental, emotional, or physical distress, experiencing substantial mental or physical deterioration of the ability to function independently, and is unable to make a rational and informed decision as to whether to submit to treatment. The court ordered J.H. committed to Rusk State Hospital for a period not to exceed ninety days.
A separate hearing was then held on the State’s application for court ordered administration of psychoactive medication. Dr. Kula testified that J.H. is under an order for temporary mental health services and has verbally refused to accept medication. He stated that J.H. lacks the capacity to make a decision regarding the administration of psychoactive medications because he has bipolar disorder with psychotic features and the resulting psychosis has impaired his judgment. The doctor believes that the requested medications are in J.H.’s best interest. If treated, the patient will benefit, the benefits outweigh the risks, and J.H.’s stay will likely be shortened. If J.H. exhibits negative side effects, he would change or stop the medication. J.H. told the doctor that God was providing him with primary care for his medical, psychiatric, and spiritual conditions. If not medicated, the result would be prolonged hospitalization, brain damage, and development of medication treatment resistance.
On cross examination, Dr. Kula said he spent hours trying to explain to J.H. what the medications are for, but J.H. has no insight. J.H. did not want the medications because he said they are synthetic and create brain damage. Nurses and doctors are there twenty four hours a day to watch him for side effects. The doctor explained that the natural course of untreated mania is from two to four months. However, J.H.’s lack of sleep is a problem. J.H. told the doctor that God will take care of any medical needs he has so he does not need Dr. Kula’s type of medical care. But J.H. denied having any medical or psychiatric conditions. He can participate in group therapy to get him to focus on what is really going on and how he appears to others. If authorized to medicate J.H., the doctor would speak to him about adverse side effects to medications he has had in the past and will attempt to take J.H.’s wishes into account.
J.H. testified, offering to present his medical history to the court. He said that he does have medical problems. He specifically indicated he wanted the judge to review his VA papers that he filed a week before the hearing, before he was ambushed and unlawfully detained. J.H. stated that the doctor hates his guts because J.H. is a Master Mason and the doctor is Catholic. J.H. said the doctor laughed at his records because he did not understand. He explained that God created him and gave him food as his medicine. He no longer takes medication for his medical problems because he wants to get rid of the toxins in his system and get back to his basic metabolic level. He believes the medication is toxic and therefore chooses not to take it. At the close of evidence, the court entered an order to administer psychoactive medication for the period of temporary commitment.
Sufficiency of the Evidence
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 that 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.).
Commitment Order
In his first issue, J.H. asserts the evidence is neither legally nor factually sufficient to support the order of commitment. He argues that the evidence does not show an overt act or continuing pattern of behavior tending to confirm that he is likely to cause serious harm to others or would be unable to care for his basic needs. Thus, he argues, the State failed to meet its evidentiary burden under the statute.
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 he is likely to cause serious harm to himself, 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 his ability to function independently, which is exhibited by his inability, except for reasons of indigence, to provide for his 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). “Mental illness” means an illness, disease, or condition, other than epilepsy, senility, alcoholism, or mental deficiency, that substantially impairs a person’s thought, perception of reality, emotional process, or judgment, or grossly impairs behavior as demonstrated by recent disturbed behavior. Tex. Health & Safety Code Ann. § 571.003(14) (Vernon Supp. 2006). 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 J.H. is mentally ill and describing his behavior. Dr. Guidry stated in his certificate of medical examination that J.H. stopped taking his medications months before being admitted to the hospital, had been threatening in the community, threatened litigation if admitted, and exhibited pressured speech and tangentiality. Dr. Kula stated in his certificate that J.H. stopped taking his medication and denied having Bipolar Disorder. Also, J.H. threatened people in the community and Dr. Kula and refused to take medication.
Dr. Kula testified that J.H. is manic with psychotic features. He has not slept in several days, which can make a person psychotic. The doctor explained that J.H. has a significant tremor and hypertension. Left untreated, he is susceptible to brain damage and congestive heart failure or stroke. His basic judgment and decision making abilities are impaired. J.H. is grandiose and delusional, believing himself to have both a legal background and a medical background, as well as a special relationship with God. He is hyperactive, argumentative, and very intense. When people do not respond to him or agree with him, he becomes more so. Therefore, he could not interact with people in public without causing a disturbance. His actions are unpredictable and he has a reckless approach to living. Dr. Kula recommended against driving and said J.H. would not handle medical emergencies appropriately. The doctor testified that J.H. needs to be hospitalized to receive appropriate treatment. Thus, the record contains expert testimony of a recent overt act, staying awake for several days in a row, that tends to confirm J.H.’s distress and the deterioration of his ability to function as exhibited by his inability to provide for his basic needs, including health and safety. See K.L.M. v. State, 735 S.W.2d 324, 326 (Tex. App. -- Fort Worth 1987, no writ). The trial court could have disbelieved J.H.’s testimony to the contrary. See In re J.F.C., 96 S.W.3d at 266.
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 in the truth of the finding that J.H. is suffering severe and abnormal mental, emotional, or physical distress, experiencing substantial deterioration of his ability to function independently, and unable to make a rational and informed decision as to whether to submit to treatment. Id. The evidence presented satisfies 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 sufficient to support the trial court’s order. See In re J.F.C., 96 S.W.3d at 266. In addressing J.H.’s factual sufficiency complaint, we consider the evidence the factfinder could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d at 25. J.H. testified that he does not have a problem sleeping and does not have high blood pressure. He said he has no problem whatsoever, should be released from the hospital, and does not need medication. The trial court was entitled to disbelieve J.H.’s testimony and disregard evidence contrary to the State’s position. See id. at 27. 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 it could not reasonably form a firm belief or conviction that J.H. is suffering severe distress, experiencing substantial deterioration of the ability to function, that is, to provide for his health and safety needs, and unable to make a rational decision regarding treatment. See id. Thus, the evidence is factually sufficient to support the trial court’s finding. Because we hold the evidence is both legally and factually sufficient to support the trial court’s order, we overrule J.H.’s first issue.
Psychoactive Medication
In his second issue, J.H. asserts the trial court erred in entering an order authorizing administration of psychoactive medication. He argues that his refusal to take medication was based on his religious beliefs and is not sufficient evidence of an overt act or continuing pattern that would demonstrate his distress or inability to function. He further argues that the State did not present evidence that he lacks the capacity to make a decision regarding the use of psychoactive medication. He contends that the record shows he merely disagrees with the doctor, based on his religious beliefs and his concern for ill side effects.
Applicable Law
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 inpatient 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 Supp. 2006). The Health and Safety Code defines capacity 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).
Discussion
Dr. Kula testified that J.H.’s psychosis has impaired his judgment and he therefore lacks the capacity to make a decision regarding the administration of psychoactive medication. Without the medication, the result would be prolonged hospitalization, brain damage, and medication treatment resistance. Dr. Kula had previously testified that J.H. completely denied having any medical or mental problems. The doctor spent hours trying to explain to J.H. what the medications are for. Due to his lack of insight, J.H. did not understand.
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 J.H. lacked the capacity to make a decision regarding administration of the proposed medication and that the treatment with the proposed medication is in J.H.’s best interest. 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), (a-1) (Vernon Supp. 2006). 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 J.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. J.H. testified that, although he has medical problems, he chooses not to take medication because it is toxic. He relies instead on food as his medicine. Dr. Kula assured the court that the hospital has medical personnel on duty around the clock and, if J.H. were to experience adverse side effects from the medication, they would change his medication. 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 J.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 to administer psychoactive medication, we overrule J.H.’s second issue.
Constitutional Rights
Freedom of Religion
In his third issue, J.H. asserts that the order to administer psychoactive medication violates his right to freedom of religion. He explains that his refusal to take medication is based upon his deeply felt religious beliefs. Therefore, forced medication violates his constitutional right to freedom of religion. J.H. did not raise this issue in the trial court. See Tex. R. App. P. 33.1(a). 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, J.H. has not preserved this complaint for review. Accordingly, we overrule J.H.’s third issue.
Freedom of Speech
In his fourth issue, J.H. contends the trial court erred in ordering the administration of psychoactive medication in violation of his right to freedom of speech. His argument in support of this issue is identical to the argument in support of his third issue. The reasoning is elusive. At trial, defense counsel objected to the application for court ordered administration of psychoactive medication on the ground that it is a violation of J.H.’s freedom of speech explaining that use of medication attempts to alter the chemicals in his brain, thereby altering his thought processes.
Freedom of speech is constitutionally protected. U.S. Const. amend. I; Tex. Const. art. I, § 8. J.H. has not clearly argued how the right to freedom of speech is implicated here. In applying for the order to administer psychoactive medication, the State was seeking to manage J.H.’s mental illness, not regulate his thoughts. The State was not seeking to control the content of his mind. See Stanley v. Georgia, 394 U.S. 557, 565, 89 S. Ct. 1243, 1248, 22 L. Ed. 2d 542 (1969) (holding that obscene thoughts cannot be prohibited). Furthermore, at times, state action to protect legitimate state interests may affect the actor’s thoughts. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S. Ct. 2628, 2640-41, 37 L. Ed. 2d 446 (1973). The constitutional right to freedom of speech is not implicated here. We overrule J.H.’s fourth issue.
Conclusion
The evidence is legally and factually sufficient to support the trial court’s order of commitment for temporary inpatient mental health services and the order for administration of psychoactive medication. Further, J.H. has waived review of his freedom of religion complaint and has not raised a valid freedom of speech complaint.
We affirm the trial court’s orders of commitment for temporary inpatient mental health services and for administration of psychoactive medication.
JAMES T. WORTHEN
Chief Justice
Opinion delivered October 4, 2006.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)