COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00160-CV
IN THE MATTER OF M.H.
----------
FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
TRIAL COURT NO. 39564-LR-D
----------
MEMORANDUM OPINION1
----------
Appellant M.H. appeals from an order authorizing the administration of
psychoactive medication. In his sole issue, M.H. argues that the evidence is
legally and factually insufficient to support the order. We affirm.
Background
By an order signed on April 6, 2016, and pursuant to code of criminal
procedure article 46B.073, Wise County Court at Law No. 1 ordered M.H.
1
See Tex. R. App. P. 47.4.
committed to an inpatient mental health facility (the North Texas State Hospital)
for the purpose of attaining competency to stand trial for the misdemeanor
offense of criminal trespass.2 See Tex. Code Crim. Proc. Ann. art. 46B.073(b)(1)
(West Supp. 2016). On May 5, 2016, Dr. Diana Isachievici, M.D., filed an
application in Wichita County Court at Law No. 2 seeking an order to authorize
the administration of psychoactive medication to M.H., specifically,
antipsychotics, mood stabilizers, and “anxiolytics/sedatives/hypnotics,”
regardless of M.H.’s refusal. See Tex. Health & Safety Code Ann. § 574.104(a)
(West 2010). Among other things, Dr. Isachievici indicated in the application that
she had diagnosed M.H. with schizoaffective disorder and that M.H. had refused
to take the proposed medications voluntarily. Dr. Isachievici also stated in her
application that she believed that M.H. lacked the capacity to make a decision
regarding the administration of psychoactive medication because he “has no
insight into his mental illness and the need for pharmacological treatment. [He]
has no insight and appreciation of the consequences of his decision to refuse
psychotropics.”
The trial court appointed counsel for M.H., and after a hearing at which Dr.
Isachievici and M.H. testified, the trial court granted the relief requested in the
application and signed an order authorizing the administration of psychoactive
medication to M.H., finding by clear and convincing evidence in part as follows:
2
M.H. had received mental health treatment at the North Texas State
Hospital on seventeen previous occasions.
2
“[M.H.] is under a court order to receive inpatient mental health services”;
and
“[M.H.] 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 [M.H.]”
See id. § 574.106(a)(1), (a–1)(1) (West 2010). M.H. appealed. See id.
§ 574.108(a) (West 2010) (permitting appeal of order authorizing psychoactive
medication).
Burden of Proof and Standard of Review
Clear and convincing evidence must support orders authorizing
administration of psychoactive medication regardless of the patient’s refusal. Id.
§ 574.106(a–1). Clear and convincing evidence is that measure or degree of
proof that will produce in the mind of the trier of fact a firm belief or conviction as
to the truth of the allegations sought to be established. Tex. Civ. Prac. & Rem.
Code Ann. § 41.001(2) (West Supp. 2016); Tex. Fam. Code Ann. § 101.007
(West 2014); U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012);
State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).
In evaluating the evidence for legal sufficiency, we must determine
whether the evidence is such that a factfinder could reasonably form a firm belief
or conviction that its finding was true. K.E.W., 315 S.W.3d at 20; Columbia Med.
Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008). We review
all the evidence in the light most favorable to the finding. Waldrip, 380 S.W.3d at
138; Hogue, 271 S.W.3d at 248. We resolve any disputed facts in favor of the
3
finding if a reasonable factfinder could have done so. K.E.W., 315 S.W.3d at 20;
Hogue, 271 S.W.3d at 248. We disregard all evidence that a reasonable
factfinder could have disbelieved. Hogue, 271 S.W.3d at 248. We consider
undisputed evidence even if it is contrary to the finding. Id.; City of Keller v.
Wilson, 168 S.W.3d 802, 817 (Tex. 2005). That is, we consider evidence
favorable to the finding if a reasonable factfinder could, and we disregard
contrary evidence unless a reasonable factfinder could not. See K.E.W., 315
S.W.3d at 20; Hogue, 271 S.W.3d at 248. The factfinder, not this court, is the
sole judge of the credibility and demeanor of the witnesses. In re J.O.A., 283
S.W.3d 336, 346 (Tex. 2009).
In evaluating the evidence for factual sufficiency, we determine whether,
on the entire record, a factfinder could reasonably form a firm conviction or belief
that its finding was true. In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006). If, in
light of the entire record, the disputed evidence that a reasonable factfinder could
not have credited in favor of the finding is so significant that a factfinder could not
reasonably have formed a firm belief or conviction in the truth of its finding, then
the evidence is factually insufficient. Id.
Requisite Findings
Section 574.106 authorizes a trial court to issue an order for 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 or is in
custody awaiting trial in a criminal proceeding and was ordered to receive
4
inpatient mental health services in the six months preceding a hearing under the
section. Tex. Health & Safety Code Ann. § 574.106(a). The court may issue the
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)(1). Further, the court may issue the order if (1)
the patient was ordered to receive inpatient mental health services by a criminal
court with jurisdiction over the patient, and (2) if the court finds, by clear and
convincing evidence, (a) that treatment with the proposed medication is in the
best interest of the patient and (b) the patient presents a danger to the patient or
others in the inpatient mental health facility in which the patient is being treated
as a result of a mental disorder or mental defect. Id. § 574.106(a–1)(2)(A).
Analysis
In his only issue, M.H. argues that the evidence is legally and factually
insufficient to support the trial court’s order because the State failed to prove, by
clear and convincing evidence, that he presented a danger to himself or others in
the inpatient mental health facility and that treatment with the proposed
medications is in his best interest. See id.
M.H. asserts that the State was required to prove under section
574.106(a–1)(2)(A) that M.H. presented a danger to himself or others in the
inpatient mental health facility. “Sections 574.106(a–1)(1) and 574.106(a–1)(2)
provide alternative bases for court ordered administration of psychoactive
5
medications.” State ex rel. A.S., No. 12-13-00300-CV, 2013 WL 6798153, at *2
(Tex. App.—Tyler Dec. 20, 2013, no pet.) (mem. op.). Here, the trial court found,
as required by section 574.106(a–1)(1), that M.H. lacked the capacity to make a
decision regarding administration of medications3 and that treatment with the
proposed medications was in M.H.’s best interest. See Tex. Health & Safety
Code Ann. § 574.106(a–1)(1). Because the trial court made these findings, there
was no need to determine whether M.H. presented a danger to himself or others
as required by section 574.106(a–1)(2)(A). See A.S., 2013 WL 6798153, at *2.
Thus, we need not address M.H.’s arguments concerning section 574.106(a–
1)(2)(A). See In re C.P., No. 02-14-00246-CV, 2014 WL 5409107, at *6 n.7 (Tex.
App.—Fort Worth Oct. 23, 2014, no pet.) (mem. op.); A.S., 2013 WL 6798153, at
*2 (holding trial court was not required to make a danger-to-self-or-others finding
under 574.016(a–1)(2) because it made a lack-of-capacity finding under
574.016(a–1)(1) in case where patient was subject to an order of inpatient mental
health services issued under chapter 46B); see also Tex. R. App. P. 47.1.
M.H. also challenges the sufficiency of the evidence to support the trial
court’s best-interest finding. Regarding the best-interest inquiry, section
574.106(b) states the following:
3
M.H. does not challenge the trial court’s finding that he lacked capacity to
make a decision regarding the administration of the proposed medications. See
Tex. Health & Safety Code Ann. § 574.106(a–1)(1).
6
In making the finding that treatment with the proposed
medication is in the best interest of the patient, the 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;
(6) alternative, less intrusive treatments that are likely to
produce the same results as treatment with psychoactive
medication; and
(7) less intrusive treatments likely to secure the patient’s
agreement to take the psychoactive medication.
Tex. Health Safety Code Ann. § 574.106(b). M.H. argues the evidence was
insufficient to prove that treatment with the proposed medications was in his best
interest because he raised concerns regarding the first, second, third, and fourth
best-interest considerations that Dr. Isachievici failed to consider. M.H. contends
that had Dr. Isachievici discussed M.H.’s concerns with him, “a mutually
agreeable plan between doctor and patient was certainly possible.”
Dr. Isachievici, a psychiatrist at the North Texas State Hospital,4 testified
that M.H. was under a 46B court order to receive inpatient mental health services
4
M.H. stipulated that Dr. Isachievici was an expert in the field of psychiatry,
and the trial court recognized Dr. Isachievici as such.
7
and that she was treating M.H. for schizoaffective disorder, a form of mental
illness in which a patient has symptoms of both schizophrenia and a mood
disorder, such as bipolar or depressive disorder. She further testified that M.H.
exhibited psychosis and bipolar symptoms, “specifically manic symptoms, hyper
talkativeness, racing thoughts, irritability, looseness of association, and
paranoia.”
Dr. Isachievici recommended that M.H. be treated with antipsychotics,
mood stabilizers, anxiolytics, sedatives, and hypnotics. She testified that M.H.
refused to take medications voluntarily and that M.H. told her that he was off
medication for three years and that he did not need to take medications because
they were not necessary. M.H. thought that her “impression over what he’s
experiencing is not true and [that she] need[ed] to be re-educated.” Dr.
Isachievici believed that medication would restore M.H.’s competency to stand
trial. She stated that she was not aware of any alternatives to court-ordered
medications that were likely to produce the same results and that there were no
less-intrusive treatments.
Dr. Isachievici testified that she had attempted to discuss with M.H. the
benefits and side effects of the proposed medications but that M.H. was not
interested in hearing what she had to say and was “very intrusive, difficult to
interrupt.” Dr. Isachievici believed that M.H. lacked the capacity to make his own
decisions regarding the administration of medications and that the medications
were in M.H.’s best interest.
8
Dr. Isachievici further testified that hospital staff documented in M.H.’s
progress notes that he stated that he needed to leave the hospital and would kill
people if needed or if God told him to do so. He declared, “If God wants . . . he
uses me as an instrument to kill people and then that is right and that feels good.
They are after me[,] and I need to get out of here, I will kill people.” A nurse also
noted that when she tried to redirect M.H., he threatened to urinate in a cup and
throw it at her. Dr. Isachievici admitted on cross-examination that the notes did
not say that M.H. had attempted to carry out these threats or had taken any effort
or actions towards causing injury or danger to another person because staff
intervened. M.H. was never given emergency medication for his behavior.
However, Dr. Isachievici viewed M.H.’s threats as a risk that he might possibly
harm someone, and she very much believed that medications were likely to
alleviate the risk of threats or any future harm that might result from threats.
Dr. Isachievici attempted to talk to M.H. about the risks associated with the
proposed medications, but she could not “get that far with him” because he would
not let her talk, kept talking over her, and kept interrupting her. She did inform
him that the medications would benefit him because they would help him regain
competency to stand trial even though M.H. disagreed that he lacked
competency. When Dr. Isachievici attempted to discuss the medications with
M.H., he did not express any objections to the proposed medications, much less
religious objections or concerns that he might become addicted to them. M.H.
did not ask Dr. Isachievici any questions about the medications. The only
9
response she received from M.H. was that he had been off medications for three
years and that he did not need them. Dr. Isachievici admitted that during her
testimony that M.H. never interrupted her, shouted out, or impulsively responded
to her testimony.
M.H. testified that he did not want to take the medications that Dr.
Isachievici wanted to give him. M.H. stated that Dr. Isachievici did not discuss
the risks associated with the medications and that he did not have the
opportunity to discuss his concerns and objections to them with her even though
he wanted to do so. He felt that his complaints and input were ignored, and he
wanted them heard. He further testified that he had concerns regarding the
addictive qualities of the drugs:
I don’t need to lose time by going into meals and have Dr.
Malone[5] step me off of Zyprexa or Klonopin. Klonopin is horrible. I
don’t want any sleep disrupts. I’m not much of a sleeper anyway. I
don’t need a lot of sleep or like it a lot of times but I do need some,
and Klonopin withdrawals immediately would be something that
would have me sleepless and then I wouldn’t make decisions good.
M.H. stated that he had taken some of the proposed medications before and
when asked if he had suffered any bad reactions to them before, he said,
“[e]xtreme in some cases to the Haldol tranquilizers, extreme.” According to
M.H., he wanted to talk with Dr. Isachievici about this drug reaction, but he was
not able to do so for the reason that “[s]he overrode [him] because she had a
posse.”
5
The record does not reflect who Dr. Malone is.
10
M.H. stated that he was a religious person and that he had religious
objections to hypnotics:
It takes the -- the pharmacological aspects of it to a control
bordering -- tearing up the mind down and overriding my will. My will
shouldn’t be violated. My will is violated if it was a direct hypnosis,
post hypnosis command; that equates in the [B]ible to witchcraft.
Death penalty crime for the [T]orah circumstances. You don’t
remove people’s will in a way right there where they don’t know their
thoughts and somebody else’s thoughts commanding them. So
hypnotics scare me because I don’t like hypnosis.
M.H. stated that he did not have the opportunity to discuss his religious concerns
with Dr. Isachievici.
M.H. also stated that he had preferences regarding which medications he
took and that he did not feel that mood stabilizers were in his best interest. He
was only able to talk to the nurses about his preferences because he only saw
his doctor in “treatment team.” He wanted to talk to Dr. Isachievici regarding his
preferences.
When asked if Dr. Isachievici discussed the consequences of taking and
not taking of the medications, M.H. responded:
No. Really kind of more an announcement to the whole
treatment team, looking around for someone to back her in the
affirmation. She was looking for affirmation from everybody there
that she’s the professional and I’ll benefit and that I’ll become
competent.
I’m sitting there going I’m competent enough to plead no
contest as I already had, and they’re using the system to throw me
up here, so that when I come back, I’ll gather up my stuff and leave.
Done deal. Done deal. I can’t fight all of them there. If they’re that
racist, I don’t want to be in that community.
11
M.H. complained that he felt like his complaints and input had been
ignored and that he wanted his complaints and input to be heard. He also stated
that he was willing to consider lesser and greater alternatives as to his
medications and treatment.
On cross-examination, when M.H. was asked which of the proposed
medications he had experience with, M.H. responded,
As negative experiences? Depakote, valproic acid, Lithium. I
don’t have a Bipolar disorder is my reason for not wanting them. I
exhibit, because for sometimes being in jail cells for -- in isolation for
several months, when I come out –
....
-- I’m like frantic in my speech seems pressured
....
-- and I want to override everyone and just get my say up
because I’ve not been heard by anybody except bang, bang, let me
out of the jail.
M.H. admitted, however, that he did not have experience with all of the
medications in each proposed class of medications and could not say that they
all affected him negatively.
M.H. confirmed that he had not hurt anyone since being admitted to the
hospital, but he admitted that he threatened to throw urine at a nurse, even
though he never actually did so. M.H. stated that he had the capability to hurt
others if needed and was trained by the “Israeli defense forces” and “the Nobel
system self defense.”
12
Viewing the evidence in the light most favorable to the trial court’s best-
interest finding, we hold that the trial court could have reasonably formed a firm
belief or conviction that treatment with psychoactive medication was in M.H.’s
best interest. The trial court found that M.H. lacked the capacity to make a
decision regarding the administration of the proposed medications. “Capacity”
means 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. Tex. Health & Safety Code Ann. § 574.101(1) (West 2010). In light of
the trial court’s finding regarding M.H.’s lack of capacity—which M.H. does not
challenge on appeal—and M.H.’s disjointed and sometimes rambling testimony,
the trial court could have considered but disregarded M.H.’s preferences
regarding treatment with psychoactive medication, his religious beliefs, and the
risks and benefits of taking the medications from his perspective.
Further, Dr. Isachievici testified that the proposed medications were in
M.H.’s best interest, would help him regain competency to stand trial, and would
alleviate the risk that he might harm someone. She also testified that there were
no alternative, less-intrusive treatments likely to produce the same results as
psychoactive medication and no less-intrusive treatments likely to secure M.H.’s
agreement to take the medications. Applying the applicable standards of review,
13
we conclude the evidence was legally and factually sufficient to support the trial
court’s best-interest finding. We therefore overrule M.H.’s only issue.6
Conclusion
Having overruled M.H.’s sole issue, we affirm the trial court’s order
authorizing psychoactive medication.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: August 19, 2016
6
M.H. further argues that the trial court should not have granted Dr.
Isachievici’s application because it was insufficient on its face for the reason that
it was signed and filed before the order committing M.H. to an inpatient mental
health facility was signed. The record shows that the order committing M.H. to
an inpatient mental health facility was signed on April 6, 2016, and the
application was signed and filed on May 5, 2016. Thus, the application was not
insufficient on its face.
14
in the Matter of M.H.
Combined Opinion