People Ex Rel. C.J.R.

COLORADO COURT OF APPEALS 2016COA133

Court of Appeals No. 16CA0915
City and County of Denver Probate Court No. 92MH609
Honorable Ruben M. Hernandez, Magistrate

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of C.J.R.,

Respondent-Appellant.

ORDER AFFIRMED IN PART
AND REVERSED IN PART

Division V
Opinion by JUDGE BERGER
Román, J., concurs
Bernard, J., concurs in part and dissents in part

Announced September 8, 2016

Cristal Torres DeHerrera, Interim County Attorney, Michael J. Stafford,
Assistant County Attorney, Denver, Colorado, for Petitioner-Appellee

Culwell Law LTD, Jonathan B. Culwell, Lakewood, Colorado, for Respondent-
Appellant
¶1 This case requires us to decide whether the Denver Probate

Court had the authority to order the involuntary administration of a

drug to “chemically castrate”1 C.J.R., a person civilly committed to a

state hospital. We hold that absent legislative authority, which

does not exist, the probate court has no such authority. Therefore,

we reverse the portion of the probate court’s order authorizing the

involuntary administration of the drug Depo-Provera.2

I. Facts and Procedural History

¶2 C.J.R. is a long-term patient at the Colorado Mental Health

Institute at Fort Logan (state hospital), where he has been treated

for a schizoaffective disorder, which is a form of psychosis.

Manifestations of his illness include hallucinations about dead

babies and the belief that his food and his medicine are

1 The term “chemical castration” has been used by a number of
courts and other authorities to describe the use of the drug Depo-
Provera on men to control their sexual desires and behavior. See,
e.g., People v. Collins, 1 Cal. Rptr. 3d 641, 643 (Cal. Ct. App. 2003).
We recognize that the term may not be strictly accurate regarding
its physical effects on men, but we use it here because it is the most
commonly used term by courts and legislatures to describe the
treatment.
2 C.J.R. also challenges the portion of the probate court’s order

authorizing the use of a nasogastric tube to involuntarily administer
medications other than Depo-Provera. We affirm that portion of the
probate court’s order.

1
 contaminated. His psychiatrist believes that C.J.R. “continues to

show disorganized thinking, speech and behavior.”

¶3 C.J.R. has engaged in what his psychiatrist described as

“sexually inappropriate behavior” for some time. He has often

emerged naked from his room into the ward, where there are both

men and women. He has masturbated in front of members of the

hospital’s staff. But until recently, he would normally comply when

a staff member told him to put on clothing.

¶4 For many years C.J.R. was treated, with more or less success,

with antipsychotic drugs. However, while taking one of those

drugs, Clozaril, he suffered a grand mal seizure. The state hospital

was concerned that the seizure might have been caused by Clozaril

and thus ceased giving that drug to C.J.R.3 The hospital continued

to treat C.J.R. with other antipsychotic drugs.

¶5 After cessation of the administration of Clozaril, C.J.R.’s

sexually inappropriate behavior worsened. He would appear

without clothing even more frequently than he had before,

frightening female patients on his ward. He “repeatedly and

3This proceeding does not concern the administration of
antipsychotic drugs or anti-seizure medications.

2
 inappropriately solicited staff members for sex.” He grabbed one of

the nurses near her breasts and groin area, and he repeatedly

engaged in masturbatory conduct in view of other patients and

staff. According to C.J.R.’s psychiatrist, he has become more

physically aggressive, “punching, kicking [and] scratching” staff

members.

¶6 To address these serious problems, a psychiatrist at the state

hospital prescribed the administration of the drug Depo-Provera.

The psychiatrist testified that there was “considerable clinical

evidence” that Depo-Provera “decreases libido,” and that given

C.J.R.’s “hypersexual behavior,” the drug could “help him manage

some of his sexual urges.” The Depo-Provera would be

administered by injection, and one injection would last ninety days.

¶7 C.J.R. refused to take the drug voluntarily.

¶8 Depo-Provera is generally used as a contraceptive for women,

but it has been used on males in an attempt to prevent the type of

inappropriate sexual behavior C.J.R. has been engaging in. Peter J.

Gimino III, Comment, Mandatory Chemical Castration for

Perpetrators of Sex Offenses against Children: Following California’s

Lead, 25 Pepp. L. Rev. 67, 73 (1997). When administered to males,

3
 Depo-Provera, which contains a synthetic hormone “similar to the

progesterone hormones produced by the body naturally,” lowers the

level of testosterone, reduces the sex drive, and in most instances

causes temporary impotence. People v. Gauntlett, 352 N.W.2d 310,

314 (Mich. Ct. App. 1984). The use of Depo-Provera for these

purposes is commonly known as chemical castration. See, e.g.,

People v. Collins, 1 Cal. Rptr. 3d 641, 643 (Cal. Ct. App. 2003).

¶9 The Food and Drug Administration (FDA) has approved Depo-

Provera for use as a contraceptive, Colville v. Pharmacia & Upjohn

Co., 565 F. Supp. 2d 1314, 1317 (N.D. Fla. 2008), but the FDA has

not approved its use for chemical castration, Gimino, 25 Pepp. L.

Rev. at 74. However, once a drug is FDA approved, a licensed

physician generally may prescribe it for any purpose. United States

v. Caronia, 703 F.3d 149, 153 (2d Cir. 2012). This is referred to as

an off-label use of the drug. Id.

¶ 10 C.J.R.’s psychiatrist testified that Depo-Provera can “cause

feminizing effects in men,” which includes a decrease of muscle

mass and the development of breasts. She also testified that a loss

of bone mass (osteoporosis) may occur. In the psychiatrist’s letter

to the probate court, which was attached to the People’s motion for

4
 authority to involuntarily administer Depo-Provera to C.J.R., she

further stated that “[f]acial and body hair may . . . decrease in

thickness and growth,” and “[r]isks may also include lowered sperm

count, decreased libido, erectile dysfunction and shrinking testes

size.”

¶ 11 Through his court-appointed counsel, C.J.R. objected to the

administration of Depo-Provera and the use of a nasogastric tube to

administer other medications involuntarily. The People sought

authorization from the Denver Probate Court to administer Depo-

Provera involuntarily and, if necessary, to use a nasogastric tube to

administer other medications, including antipsychotics. The

probate court authorized the involuntary administration of Depo-

Provera and use of a nasogastric tube.

¶ 12 C.J.R. now appeals that order.4

4 The probate court’s order authorizing the involuntary
administration of Depo-Provera expires on September 25, 2016.
The drug is administered by injection and lasts approximately
ninety days. We assume that the drug has already been
administered as the probate court’s register of actions indicates
that a stay of its order was not “authorized.” The order thus may
expire before another dose of Depo-Provera is administered.
However, “[i]n certain cases, an appeal of a short-term mental
health treatment order does not become moot when the order
expires if the issue on appeal is capable of repetition but evading

5
 II. Standard of Review

¶ 13 The first question we address — whether the test established

by the supreme court in People v. Medina, 705 P.2d 961, 973 (Colo.

1985), applies at all to a request to chemically castrate a person

against his will — is purely a question of law that we review de

novo. See People in Interest of A.M., 251 P.3d 1119, 1121 (Colo.

App. 2010) (stating that whether the trial court applied the correct

legal standard is a question of law that we review de novo).

¶ 14 The second question, assuming that Medina applies, is

whether the People satisfied all four of its factors. In answering this

question, we must determine whether the evidence, when viewed as

a whole and in the light most favorable to the People, is sufficient to

support the probate court’s order. Fifth Third Bank v. Jones, 168

P.3d 1, 2 (Colo. App. 2007). We review de novo the probate court’s

conclusions of law and defer to the court’s findings of fact if any

evidence in the record supports them. People in Interest of

Strodtman, 293 P.3d 123, 131 (Colo. App. 2011).

review.” People in Interest of Vivekanathan, 2013 COA 143M, ¶ 9.
Because it is reasonably likely that the hospital will seek authority
to re-administer the drug, we conclude that the appeal is not moot.
See, e.g., People in Interest of R.K.L., 2016 COA 84, ¶ 12 n.2.

6
 III. The Probate Court Did Not Have any Legal Authority to Order
the Involuntary Chemical Castration of C.J.R.

¶ 15 In Medina, the Colorado Supreme Court formulated a four-

factor test that the People must satisfy before a court may order a

patient to be forcibly medicated. While C.J.R. does not expressly

argue (and did not argue in the trial court) that Medina has no

application to the involuntary administration of Depo-Provera, he

does argue that Medina is inapplicable because it applies only to

the involuntary administration of antipsychotic drugs, and there is

no evidence in this record that Depo-Provera is an antipsychotic

drug.

¶ 16 But assuming that C.J.R. did not raise the issue whether the

trial court erred in applying Medina, we “may in [our] discretion

notice any error appearing of record.” C.A.R. 1(d). C.J.R.’s

argument that the Medina factors were not met, and the People’s

contrary argument that they were, rests on the assumption that

Medina applies. Were we to affirm the probate court’s order without

addressing the underlying validity of this critical assumption, we

might well be authorizing the administration of involuntary

medication that the laws of this state prohibit.

7
¶ 17 In Medina, 705 P.2d at 968, the supreme court emphasized

that the decision to forcibly medicate a patient with antipsychotic

drugs “directly implicates the patient’s legal interests in personal

autonomy and bodily integrity.” The supreme court noted that

antipsychotic medications “can cause numerous and varied side

effects and carry with them the risk of serious and possibly

permanent disabilities in the patient.” Id. The forced

administration of antipsychotic medication thus constitutes a

“significant intrusion on the patient’s bodily integrity.” Id. at 969.

¶ 18 Given that forcing C.J.R. to take Depo-Provera against his will

is at least as significant an intrusion, the importance of determining

whether such a disruption to his bodily integrity is legally

authorized cannot be reasonably disputed.5 Thus, under these

5 We ordered the parties to file supplemental briefs to address
whether Colorado courts have the statutory authority to order
involuntary administration of Depo-Provera and whether the
Medina test is applicable to the involuntary administration of Depo-
Provera. In his supplemental brief, C.J.R. raises, for the first time,
a constitutional argument that the involuntary administration of
Depo-Provera is barred by his asserted constitutional right to
reproductive rights. We do not address this argument both because
we have resolved this case on statutory grounds and because we do
not consider constitutional arguments made for the first time in a
reply or supplemental brief. Giuliani v. Jefferson Cty. Bd. of Cty.

8
 particular circumstances, we believe that we must address the

validity of the parties’ and the trial court’s assumption that Medina

applies. “[W]hen a trial court fails to fully apply the correct [legal]

standard . . . its ruling cannot stand.” People v. J.D., 989 P.2d 762,

769 (Colo. 1999).

¶ 19 We therefore consider the threshold question raised by this

appeal: whether Medina applies to a request to involuntarily

administer the synthetic equivalent of progesterone as part of the

treatment for a mentally ill, male patient at a state hospital for the

express purpose of controlling his sexually inappropriate behavior.

¶ 20 The state’s authority to involuntarily commit mentally ill

persons to the state hospital for care and treatment arises by

statute. See §§ 27-65-101 to -111, C.R.S. 2015. If a person who

has been involuntary committed refuses to take medication that

hospital personnel want to administer, section 27-65-111(5)(a)

provides a court with authority to order that “the medication be

forcibly administered to him.” If the involuntary administration of a

Comm’rs, 2012 COA 190, ¶ 54; see also People v. Czemerynski, 786
P.2d 1100, 1107 (Colo. 1990).

9
 drug is outside of this statutory authorization, a court exceeds its

authority to order it.

¶ 21 In Medina, 705 P.2d at 967, the supreme court explained that

“Colorado’s statutory scheme relating to involuntary commitment of

the mentally ill clearly contemplate[s] that such persons . . . have

the right under appropriate circumstances to legitimately refuse

treatment.” However, the supreme court also discussed the General

Assembly’s implicit recognition that “the right of an involuntarily

committed and incompetent mental patient to refuse treatment is

[not] absolute” because “[t]he state . . . has a legitimate interest in

effectively treating the illnesses of those placed in its charge and . . .

protecting patients and others from dangerous and potentially

destructive conduct within the institution.” Id. at 971 (citing Ch.

188, sec. 2, § 27-10-111(4.5), 2010 Colo. Sess. Laws 690, which

has been relocated to section 27-65-111(5)(a)).

¶ 22 Medina held that its four-part test accommodated both the

statutorily recognized right of the patient to refuse treatment and

the statutory right of the state to forcibly treat a nonconsenting

patient under certain circumstances. See id. at 972. A plain

reading of Medina demonstrates that the supreme court addressed

10
 only the involuntary administration of antipsychotic drugs. By its

terms, however, section 27-65-111(5)(a) is not limited to

antipsychotic medications; instead, it applies more broadly to

“medication[s].” But even assuming that Medina applies to other

types of treatments, see People in Interest of M.K.M., 765 P.2d 1075,

1076 (Colo. App. 1988) (applying Medina to a petition to administer

electroconvulsive therapy), chemical castration is very different than

the administration of treatments designed to treat severe mental

illnesses.6

¶ 23 Here, the state wants to administer medication not for the

purpose of treating the mental condition that causes C.J.R. to

engage in sexually inappropriate behavior, but rather to specifically

control certain objectionable behavior by changing the hormonal

balances that define male and female sexual characteristics. See

Society for Endocrinology, Testosterone, https://perma.cc/TB5Q-

JTC2 (Testosterone “stimulates the development of male

6 Contrary to the dissent’s characterization of this opinion, we do
not hold that Medina is applicable only to the involuntary
administration of antipsychotic drugs. Rather, we address only the
limited question presented here: whether Medina applies to the
involuntary administration of a synthetic hormone for the purpose
of controlling a male patient’s “inappropriate sexual behavior.”

11
 characteristics.”). While the dissent is correct that scientists do not

know everything about the causes of psychosis, or even the precise

effects that antipsychotic drugs have upon the brain, it remains

true that the nature of the treatment in this case is far different

than the administration of antipsychotic drugs. Psychiatric

medications, like antipsychotics, “work by influencing the brain

chemicals regulating emotions and thought patterns.” National

Alliance on Mental Illness, Mental Health Medications,

https://perma.cc/E6BH-KMNG. Antipsychotics “reduce or

eliminate the symptoms of psychosis . . . by impacting the brain

chemical called dopamine.” Id. Unlike chemicals produced by the

brain, testosterone is a hormone produced in the testes and the

adrenal glands (glands that sit on top of the kidneys). Society for

Endocrinology, Testosterone. A drug that affects a man’s

testosterone production, such as Depo-Provera, therefore does not

affect the brain in the same way as psychiatric medications, like

antipsychotics do.

¶ 24 But regardless of what medical information we or the dissent

can cite to support our respective points about the similarity or

dissimilarity of antipsychotics and Depo-Provera, or what

12
 determinations we can make regarding whether the effects of

antipsychotics are just as bad or worse than the effects of Depo-

Provera, the fact remains that these judgments are not ours, as

judges, to make. In Medina, the supreme court concluded that the

General Assembly had implicitly authorized the involuntary

administration of antipsychotic medications if certain factors were

met. While we recognize (but do not decide) that Medina’s holding

might logically be extended beyond the involuntary administration

of antipsychotics to other types of psychiatric treatments, we

cannot conclude from Medina’s analysis that the General Assembly

has implicitly authorized the forcible administration of synthetic

hormones for the purpose sought here.

¶ 25 Considering as a whole the statutory scheme addressing the

care and treatment of persons with mental illnesses, we do not

believe that the General Assembly’s authorization to forcibly

administer medication to nonconsenting patients gives the state

unlimited authority to administer any treatment whatsoever as long

as its administration satisfies the Medina factors, and neither the

supreme court nor any division of this court has held that it does.

Indeed, such a conclusion would contradict the supreme court’s

13
 determination that a patient’s common law right to decline medical

treatment is not abrogated by involuntary civil commitment alone.

Goedecke v. State, Dep’t of Insts., 198 Colo. 407, 411, 603 P.2d 123,

125 (1979).

¶ 26 The General Assembly has declared that the purposes of the

statutory scheme are, among other things:

(a) To secure for each person who may have a
mental illness such care and treatment as will
be suited to the needs of the person and to
insure that such care and treatment are
skillfully and humanely administered with full
respect for the person’s dignity and personal
integrity;

(b) To deprive a person of his or her liberty for
purposes of treatment or care only when less
restrictive alternatives are unavailable and
only when his or her safety or the safety of
others is endangered; [and]

(c) To provide the fullest possible measure of
privacy, dignity, and other rights to persons
undergoing care and treatment for mental
illness[.]

§ 27-65-101(1). The General Assembly has directed that the

provisions of the statutory scheme are to be “liberally construed” to

carry out these purposes. § 27-65-101(2).

14
¶ 27 This statute thus “recognize[s] that mental and emotional

illnesses are not crimes and that hospitalization for their treatment

is not to be confused with incarceration for punishment.”

Goedecke, 198 Colo. at 411, 603 P.2d at 125. Because the

involuntary chemical castration of an individual poses such an

affront to his “dignity and personal integrity,” § 27-65-101(1)(a), we

conclude that the involuntary chemical castration of a person under

these circumstances may be authorized, if at all, only by the

General Assembly (and then only if consistent with the

Constitutions of the United States and the State of Colorado).

¶ 28 The General Assembly has not done so. A number of years

ago the General Assembly considered, but ultimately rejected, a law

that would have permitted or required chemical castration for those

convicted of certain sexual assaults on a child. H.B. 1133, 61st

Gen. Assemb., 1st Reg. Sess. (Colo. 1997).7 While by no means

dispositive, the fact that the General Assembly declined to authorize

7 A small minority of states (eight) have authorized involuntary
chemical castration of certain offenders convicted of sexual offenses
against children. See Mark D. Kielsgard & Jack Burke, Post-
Incarceration Supervision of Pedophile Offenders: An International
Comparative Study, 51 No. 1 Crim. L. Bull. art. 1 (Winter 2015).
Similarly, a number of foreign nations also authorize involuntary
chemical castration for certain offenders. See id.

15
 chemical castration for persons convicted of criminal offenses

supports our conclusion that, without express legislative

authorization, the courts of this state do not have the authority to

order chemical castration as part of the mental health treatment of

a civilly committed patient. “Persons who have been involuntarily

committed are entitled to more considerate treatment and

conditions of confinement than criminals whose conditions of

confinement are designed to punish.” Youngberg v. Romeo, 457

U.S. 307, 321-22 (1982).

¶ 29 We conclude that a court, including this court, may not

arrogate to itself the authority to impose such a treatment against

the will of an individual who has been involuntarily committed to a

mental health treatment facility.

¶ 30 The application of the Medina test to chemical castration,

moreover, has far-reaching implications. The dissent’s analysis

easily could support not only chemical castration, but physical

castration as well.8 This expansive view also conjures up visions of

8 The dissent asserts, in reliance upon a law review article (which
relies on another law review article), that chemical castration,
unlike physical castration, is reversible. See Peter J. Gimino III,
Comment, Mandatory Chemical Castration for Perpetrators of Sex

16
 involuntary lobotomies, a practice that has long since been

discredited both on legal and moral grounds. See Sheldon Gelman,

Looking Backward: The Twentieth Century Revolutions in Psychiatry,

Law, and Public Mental Health, 29 Ohio N.U. L. Rev. 531, 532

(2003). Broadly applying Medina’s holding to authorize any type of

“treatment” the facility wants to impose on the patient is

irreconcilable with the legislative mandate to administer care and

treatment “with full respect for the [patient’s] dignity and personal

integrity,” § 27-65-101(1), and “would render the patient’s interest

in bodily integrity nothing more than an illusion,” Medina, 705 P.2d

at 974.

IV. The People Did Not Satisfy the Medina Elements

¶ 31 Even if we were to assume that the Medina test is applicable to

a state request to chemically castrate an individual against his will,

we conclude that the People did not prove by clear and convincing

evidence that the requirements of Medina were established here.

See § 27-65-111(1) (standard of proof).

Offenses against Children: Following California’s Lead, 25 Pepp. L.
Rev. 67, 75 (1997). That may or not be true, but this skeletal
record does not permit this court (or the probate court) to make
such a finding.

17
 A. Competency to Participate in Treatment Decision

¶ 32 We agree with the probate court that the People satisfied the

first Medina prong — that the patient is incompetent to make

treatment decisions. Medina, 705 P.2d at 973. C.J.R.’s psychiatrist

testified that C.J.R. does not have any insight into his condition; he

has never acknowledged that he suffers from a mental illness; and

instead, he believes that the psychiatrist has misdiagnosed him.

Because C.J.R.’s failure to recognize that he has a mental illness

interferes with his ability to effectively participate in his treatment

decisions, the record easily satisfies this element of Medina. See

People in Interest of R.K.L., 2016 COA 84, ¶ 33.

B. Long-Term Mental Deterioration or Likelihood of Harm

¶ 33 The second Medina element is also satisfied. In considering

this element, the court must determine “whether the proposed

treatment is necessary either to prevent a significant and likely

long-term deterioration in the patient’s mental condition or to

prevent the likelihood of the patient’s causing serious harm to

himself or others in the institution.” Medina, 705 P.2d at 973. This

determination requires the consideration of one of two alternative

factors. Id. The first factor is the patient’s actual need for the

18
 medication. Id. The second factor involves the physical safety of

the patient and others. Id. In evaluating the second factor, the

court must consider “the likelihood that the patient, due to his

condition, will cause serious harm to himself or others in the

institution” in the absence of the proposed treatment. Id. at 974.

¶ 34 The psychiatrist testified that C.J.R.’s sexually inappropriate

behavior had escalated since he had been taken off of Clozaril, to

the point that he represented an ongoing risk of sexual assault to

other patients and staff. No other antipsychotic drugs seemed to

have worked to reduce this behavior. The psychiatrist

recommended Depo-Provera because she thought that it could

reduce C.J.R.’s libido and thus reduce the sexual assault risk that

he posed. The record therefore shows that C.J.R.’s condition is

such that he likely constitutes a continuing and significant threat

to the safety of others in the hospital in the absence of the proposed

treatment. Id. at 973-74. Medina’s second element is thus met.

C. No Less Intrusive Alternative

¶ 35 We hold, however, that the third Medina element — that there

were no less intrusive treatment alternatives available, id. at 973 —

does not find support in this record. The third Medina element

19
 “encompasses not only the gravity of any harmful effects from the

proposed treatment but also the existence, feasibility, and efficacy

of alternative methods of treating the patient’s condition or of

alleviating the danger created by that condition.” Id. at 974. A

“‘less intrusive alternative’ constitutes an available treatment that

has less harmful side effects and is at least as effective at alleviating

a patient’s condition as the proposed treatment.” Strodtman, 293

P.3d at 133.

¶ 36 We acknowledge that the treatment of C.J.R. is a challenge.

He has already sexually assaulted one nurse, and we assume for

these purposes that chemical castration of C.J.R. would decrease

his sexually inappropriate behavior. But, in our view, the hospital

has failed to establish by clear and convincing evidence that this

treatment is the least intrusive way to manage his condition.

¶ 37 The psychiatrist testified that moving C.J.R. to an all-male

ward might result in violent interactions with the other patients and

sexual encounters with female nurses. But the record did not

permit the probate court, and does not permit us, to determine why

moving C.J.R. to an all-male ward — and, to the extent that he

needs to have contact with female nurses, physically restraining

20
 him from touching those nurses — is not a less intrusive way to

alleviate the danger caused by his behavior. That course of action

would prevent C.J.R. from frightening female patients and would

accommodate C.J.R.’s objections to chemical castration.

¶ 38 Moreover, the psychiatrist testified that C.J.R. had been

isolated in his own room to minimize contact with others before, but

this had not “work[ed]” and she believed that it was more restrictive

than administering the Depo-Provera. However, without any

testimony regarding why confining him to his room was not a viable

solution or why it was “more restrictive,” it was not possible for the

probate court, and it is not possible for us, to evaluate the gravity of

any harmful effects from that course of action, or its feasibility and

efficacy.

¶ 39 In view of such sparse evidence regarding these alternatives

(or any others), the People failed to establish that no less intrusive

treatment alternatives are available.

D. Need for Medication Overrides Legitimate Reason to Refuse

¶ 40 We also conclude that the last Medina element is not satisfied.

Medina’s fourth element evaluates whether the patient’s need for

treatment with medication is sufficiently compelling to override “any

21
 bona fide and legitimate interest of the patient in refusing

treatment.” 705 P.2d at 973. A court first must determine whether

the patient’s refusal is bona fide and legitimate. If it is, the court

must then determine “whether the prognosis without treatment is

so unfavorable that the patient’s personal preference must yield to

the legitimate interests of the state in preserving the life and health

of the patient . . . and in protecting the safety of those in the

institution.” Id. at 974.

¶ 41 The psychiatrist’s testimony and statements regarding the

serious effects of Depo-Provera, including that it can “cause

feminizing effects” in men, establishes that C.J.R.’s refusal is “bona

fide and legitimate.”

¶ 42 Certainly the state has a legitimate interest in protecting the

safety of the other patients and the hospital’s employees from

C.J.R.’s threatening behavior (and protecting C.J.R. from other

patients from whom he would face harm if he cannot control his

behavior). But, on the skeletal record before us, we cannot

conclude C.J.R.’s prognosis, without treatment, is so unfavorable

that C.J.R.’s right to refuse the Depo-Provera is overridden by the

state’s desire to use the drug to control his inappropriate sexual

22
 behavior, particularly when the People presented minimal

information about the efficacy and likely success of the treatment,

its long-term side effects and risks, and any treatment alternatives.9

¶ 43 The probate court also justified involuntary chemical

castration on the basis that without it, C.J.R. would be subject to

criminal charges for sexual assault, and the court did not know

whether being forcibly medicated with Depo-Provera would be worse

than being prosecuted for sexual assault. We reject this rationale.

Neither the probate court nor the People cited any authority to

support that rationale, and we have found none. In our view, such

speculation substantially exceeds the proper function of a court.

¶ 44 Because the third and fourth Medina elements were not

satisfied by clear and convincing evidence, the probate court’s order

9 The appellate record regarding the use, efficacy, side effects (such
as physical changes to the body including the sex organs and the
long-term risks of the drug causing serious diseases like cancer),
dose, reversibility of the treatment, and other critical aspects of the
use of Depo-Provera to decrease C.J.R.’s sexually inappropriate
behavior is skeletal at best. Indeed, the dissent appears to rely on
law review articles to determine these matters, not expert testimony
by qualified physicians or pharmacologists, or even medical
journals, to support some of its conclusions.

23
 authorizing the forced administration of Depo-Provera to C.J.R.

cannot stand.10

V. Conclusion

¶ 45 That part of the probate court’s order authorizing the

involuntary administration of Depo-Provera is reversed. That part

of the order authorizing the use of a nasogastric tube to administer

other medications is affirmed.

JUDGE ROMÁN concurs.

JUDGE BERNARD concurs in part and dissents in part.

10The basis on which C.J.R. challenges the probate court’s order to
administer other medications, if necessary, through a nasogastric
tube is unclear. We conclude that the probate court’s order
authorizing the use of a nasogastric tube, if necessary to administer
medications other than Depo-Provera, is governed by Medina and
the record supports that the Medina factors were satisfied as to this
request.

24
 JUDGE BERNARD, concurring in part and dissenting in part.

¶ 46 There are two competing imperatives in this case. The

majority focuses on a strong moral imperative: that C.J.R.’s human

dignity will be compromised because he will be treated, against his

will, with a strong drug that has potentially feminizing side effects.

I rely on what I believe is a strong legal imperative: that the four-

factor test found in People v. Medina, 705 P.2d 961, 973 (Colo.

1985), controls the analysis in this case.

¶ 47 As the reader will be able to tell from the majority opinion and

from the dissent, these two imperatives pull strongly in opposite

directions. I have empathy for C.J.R., but I also think that the

probate court properly applied the existing law. I am concerned

that the majority’s desire to accommodate C.J.R.’s moral imperative

will draw a tight perimeter around Medina, limiting its use primarily

to doctors’ requests to treat patients with antipsychotic drugs. In

doing so, the majority opinion could alter the way that we analyze

the requests of doctors to treat incompetent patients against their

will with drugs or technologies that do not fall within that tight

perimeter.

25
¶ 48 And I am also concerned about something else because there

is a second moral imperative in this case that is aligned with the

legal one. Because of his mental illness, C.J.R. is dangerous. And,

by only heeding his moral imperative, I am concerned that the

majority gives short shrift to the moral imperative of protecting

other patients and the staff at the Colorado Mental Health Institute

at Fort Logan, where C.J.R. is hospitalized.

¶ 49 So, even if I did not have the legal imperative of Medina to

support my position, I would still dissent because I think that the

moral imperative of protecting those people has more persuasive

force than the moral imperative of saving C.J.R. from a potent drug

that he does not want to take.

¶ 50 I concur with the majority’s decision to affirm the probate

court’s order that allowed the staff at the Institute to administer

medication to C.J.R. through a nasogastric tube. But I respectfully

dissent from the majority’s decision to reverse the probate court’s

order that allowed the Institute to treat C.J.R. against his will with

Depo-Provera.

I. “We have often noted that issues not presented to or raised in the
trial court will not, as a general matter, be considered on appeal.”

26
 — Roberts v. Am. Family Mut. Ins. Co., 144 P.3d 546, 549
(Colo. 2006)

¶ 51 The majority asserts that the “threshold question” in this case

is “whether Medina applies to a request to involuntarily administer”

Depo-Provera “as part of the treatment for a mentally ill, male

patient at a state hospital for the express purpose of controlling his

sexually inappropriate behavior.”

¶ 52 This statement in the majority’s opinion is the first time that

this question has appeared in this case. Neither of the parties

raised that issue in the trial court. Instead, both sides contended

that Medina applied, although they disagreed about whether

Medina’s four-factor test had been satisfied. The probate court

thought that Medina applied. And both parties contended on

appeal that Medina applied, although they again disagreed about

whether it had been satisfied. The first time that the parties faced

the issue of whether Medina applied to this case was when we

asked them for supplemental briefs after C.J.R. had filed his reply

brief.

¶ 53 Unlike the majority, I would not pose a question that was

never asked of the trial court in this case and then answer it. See

27
 Estate of Stevenson v. Hollywood Bar & Cafe, Inc., 832 P.2d 718,

721 n.5 (Colo. 1992) (“Arguments never presented to, considered or

ruled upon by a trial court may not be raised for the first time on

appeal.”).

¶ 54 In response, the majority asserts that C.A.R. 1(d) supports its

decision to analyze this issue. I question whether it is a good idea

to do so in a case in which neither of the parties had raised the

issue at any point of the proceedings until we asked them for

supplemental briefs. As our supreme court has pointed out,

appellate courts generally decline to resolve issues that the parties

have not addressed in their briefs or during their arguments.

Moody v. People, 159 P.3d 611, 614 (Colo. 2007). “Such self-

restraint is derived from the contours of our adversarial system

[because] ‘appellate courts do not sit as self-directed boards of legal

inquiry and research . . . .’” Id. (quoting Rose v. United States, 629

A.2d 526, 536-37 (D.C. 1993)). Appellate courts are instead

“arbiters of legal questions presented and argued by the parties

before them.” Id. (quoting Rose, 629 A.2d at 536-37).

¶ 55 But, since the majority has raised this question and provided

its own answer, I will provide mine below.

28
 II. “After a century of studying schizophrenia, the cause of the
disorder remains unknown.”

— Dr. Thomas R. Insel, Neuroscientist, Psychiatrist, and Head of
the National Institute of Mental Health from 2002 to 2015,
Rethinking Schizophrenia, https://perma.cc/8HG9-TXA7

¶ 56 No one really knows what causes schizophrenia and its related

psychotic conditions. “Researchers believe that a number of genetic

and environmental factors contribute to causation, and life stresses

may play a role in the disorder’s onset and course.” American

Psychiatric Association, What is Schizophrenia?,

https://perma.cc/JAY2-PKT4. “Since multiple factors may

contribute, scientists cannot yet be specific about the exact cause

in individual cases.” Id. Researchers offer several major theories of

causality: genetics; environmental factors, such as viruses or

malnutrition; imbalances in brain chemistry; and substance abuse.

National Alliance on Mental Illness, Schizophrenia,

https://perma.cc/7KDY-NZKZ; see also National Institute of Mental

Health, Schizophrenia, https://perma.cc/DH2U-VLB8.

¶ 57 People with schizophrenia and related disorders suffer a

variety of symptoms, including delusions, hallucinations, and

disorganized thinking. American Psychiatric Association, Diagnostic

29
 and Statistical Manual of Mental Disorders 87-88, 99 (5th ed.

2013)(DSM-V). There is no known cure. American Psychiatric

Association, What is Schizophrenia?; National Alliance on Mental

Illness, Schizophrenia.

¶ 58 Even though schizophrenia and its related disorders are

incurable, they can be treated. One major form of treatment is

antipsychotic medication. American Psychiatric Association, What

is Schizophrenia? These drugs work well for some people, reducing

the frequency of the disorder’s symptoms and the incidence of

relapses, so that they can live “highly productive and rewarding

lives.” Id.

¶ 59 C.J.R. is not one of those people. He is sixty years old, and he

has been hospitalized, mostly at the Institute, for the last twenty-

four years. Doctors have diagnosed him as suffering from

schizophrenia or schizoaffective disorder for this entire time. (A

person who suffers from schizoaffective disorder shows both

psychotic symptoms and a mood disorder, such as depression or

mania. DSM-V at 105-07.)

¶ 60 He has hallucinated about dead babies. He has expressed the

general belief — a delusion — that his food and his medicine have

30
 been contaminated and the specific delusion that there have been

gonorrhea “germs” in his food and in his medicine. His psychiatrist

believes that he “continues to show disorganized thinking, speech

and behavior.”

¶ 61 C.J.R. does not have any insight into his condition. He has

never told his psychiatrist, who has treated him for the last eight

years, that he realizes that he suffers from a mental illness.

Instead, he says that she has misdiagnosed him.

¶ 62 The psychiatrist has tried to talk with him about the benefits,

risks, and potential alternatives to the medication that has been

prescribed for him. He sometimes refused to have these

discussions, and he sometimes said that he did not see that the

medications had any benefits and that they offered only risks. Over

the years, he has made it clear to the psychiatrist that (1) he did not

“agree with the medications”; (2) he did not accept the validity of

prior court orders that authorized the psychiatrist and the staff to

administer medication to him against his will; and (3) he would

refuse the medication if “given the choice.” He “regularly refused”

medications “in defiance” of court orders.

31
¶ 63 He does not want to take his medications because he does not

think that they help him. But, according to a letter that the

psychiatrist wrote to the probate court, “when [he] receives

medications on a more consistent basis, his level of functioning is

better and his symptoms are less; when he refuses medication, he

struggles more, and his symptoms appear to increase.” And his

delusion that his food and his medicine are contaminated leads him

to refuse them both.

¶ 64 This lack of insight is not unusual. “Some individuals with

psychosis may lack insight or awareness of their disorder,” which

may extend to a lack of awareness of schizophrenia’s symptoms.

DSM-V at 101. “Unawareness of illness is typically a symptom of

schizophrenia itself rather than a coping strategy.” Id.

¶ 65 C.J.R. is given a lot of medication, which falls into four general

categories: antipsychotic drugs, mood stabilizers, anti-anxiety

medicines, and medication to treat the side effects associated with

antipsychotic drugs. The Institute’s staff tests him frequently to

determine whether his medication remains at therapeutic levels in

his system and to monitor its side effects. The goal of these tests is

to ensure that his medications are administered safely.

32
¶ 66 C.J.R.’s behavior has been troublesome for a long time. For

example, when doctors tried to wean him off of Clozaril, the

antipsychotic drug that he had taken for a long time, the results

were “disastrous.” He became aggressive and assaultive, and he

damaged property. According to the psychiatrist, “[h]istorically, he

has been quite violent when not taking regular medication.”

¶ 67 He has also engaged in sexually inappropriate behavior. He

has often emerged naked from his room into the ward, where there

are both men and women. He has masturbated in front of members

of the Institute’s staff. But he would normally comply when a staff

member told him to put on clothes.

¶ 68 “[N]ormally comply” is now a concept that belongs to the past

tense. His behavior has recently crossed the line from troublesome

to threatening.

¶ 69 He sexually assaulted a nurse in early May 2016, grabbing her

breasts and her genital area. He “repeatedly and inappropriately

solicited staff members for sex.” He walked naked through the

common areas of the ward, where his nudity traumatized

vulnerable female patients, and he refused to put on clothes. He

33
 became more physically aggressive, “punching, kicking, [and]

scratching” staff members.

¶ 70 C.J.R.’s psychiatrist said that he now hears voices, which she

called command hallucinations, almost every day. The voices tell

him to be naked and to have sex with other people.

¶ 71 These changes appear to be related to a change in C.J.R.’s

medication. The Institute’s staff had begun treating him with

Clozaril in 1996, and the psychiatrist thought that it had helped to

control his sexually inappropriate behavior. But, in February of

2016, he had a grand mal seizure, and he was transported to a

Denver hospital. Subsequent testing showed that the Clozaril level

in his blood had risen above therapeutic levels, even though testing

the week before had shown that the drug’s level was within

therapeutic limits. The doctors at the Denver hospital “highly

suspected” that the elevated Clozaril levels had caused the seizure.

And, somehow, C.J.R.’s ability to metabolize Clozaril could have

changed, so it was unclear whether he could still be treated with

that drug. He remained in the Denver hospital until the end of

March. The doctors there prescribed anti-seizure medicine for him,

34
 which the Institute’s staff continued to administer after he

returned.

¶ 72 C.J.R.’s sexually inappropriate behavior got worse when he

returned to the Institute after his seizure, even though the

psychiatrist treated him with two other antipsychotic drugs,

Prolixin and olanzapine.

III. “Antipsychotic medications, either alone or in combination, can
cause numerous and varied side effects and carry with them the
risk of serious and possibly permanent disabilities in the patient.”

— Medina, 705 P.2d at 968

¶ 73 The potential side effects associated with antipsychotic drugs

are no picnic. “Metabolic, neuromuscular and cardiovascular side

effects are common in patients receiving antipsychotic medications

for any indication . . . .” American Psychiatric Association,

Choosing Wisely, https://perma.cc/P342-J93L. More prosaically,

those symptoms include drowsiness, dizziness, restlessness, weight

gain, dry mouth, constipation, nausea, vomiting, blurred vision, low

blood pressure, uncontrollable movements (“such as tics and

tremors”), seizures, and “a low number of white blood cells which

fight infections”. National Institute on Mental Health, Mental Health

Medications, https://perma.cc/7WD8-PXXJ. Some antipsychotic

35
 medications cause rigidity, persistent muscle spasms, and tremors.

Id. Long-term use of certain antipsychotic drugs can lead to tardive

dyskinesia, a potentially permanent condition that causes

involuntary muscle movement. Id.

¶ 74 Depo-Provera can cause serious side effects in men.

According to C.J.R.’s psychiatrist, it can, among other things,

feminize a man’s appearance, decrease muscle mass, shrink

testicles, lower sperm count, cause erectile dysfunction, lead to the

development of female-like breasts, and bring on osteoporosis.

¶ 75 But both types of drugs have upsides. As I have indicated

above, antipsychotics are used to treat the symptoms of

schizophrenia. Depo-Provera contains a female hormone that is

used in some birth-control drugs. The psychiatrist said that there

was “considerable clinical evidence” that Depo-Provera “reduced

libido, and, given [C.J.R.’s] hypersexual behavior,” this drug could

“help him manage his sexual urges.”

¶ 76 The Institute’s staff would administer the Depo-Provera to

C.J.R. by injection, and one injection would last ninety days. The

psychiatrist thought that she would know whether the

Depo-Provera was having its desired effect during the ninety-day

36
 period. (There is no indication in the record that this course of

treatment could or would effect a gender reassignment.)

¶ 77 The psychiatrist added that the Institute’s staff would monitor

C.J.R. regularly to watch for Depo-Provera’s side effects. She

thought that the purpose of administering the Depo-Provera to

C.J.R. was to prevent his behavior that was “dangerous to others.”

She did not know whether it would prevent a long-term

deterioration of his mental condition.

IV. “Some griefs are medicinable.”

— William Shakespeare, Cymbeline act III, sc. 2

¶ 78 The four-part Medina test does not only apply to antipsychotic

drugs. It comes from a broader background, and it has been

applied to other kinds of treatment.

 Medina states that incompetent patients “have the right

under appropriate circumstances to legitimately refuse

treatment that poses a significant risk to their physical

well-being,” 705 P.2d at 967 (emphasis added).

 Goedecke v. State, Department of Institutions, 198 Colo. 407,

411, 603 P.2d 123, 125 (1979), a case upon which the

supreme court relied heavily in Medina, observed that

37
 Colorado courts have historically “acknowledged” that

doctors must obtain a competent patient’s informed consent

“for treatment with drugs having possible harmful side

effects.” (Emphasis added.)

 Section 27-65-111(5)(a), C.R.S. 2015, states that a probate

court may “enter an order requiring that . . . [a] person

accept such treatment or, in the alternative, that the

medication be forcibly administered.” (Emphasis added.)

 A division of this court held that it was appropriate for a

probate court to rely on the Medina factors when evaluating

whether to grant a hospital’s request to force an

incompetent patient to undergo electroconvulsive therapy,

see People in Interest of M.K.M., 765 P.2d 1075, 1076 (Colo.

App. 1988).

¶ 79 Turning now to the four Medina factors, 705 P.2d at 973, I

resolve them as follows.

¶ 80 Was C.J.R. incompetent to participate effectively in the

treatment decision? He concedes on appeal that he was

incompetent.

38
¶ 81 Was the Depo-Provera treatment necessary to prevent a

significant and likely long-term deterioration in the patient’s mental

condition or to prevent the likelihood that the patient will cause

serious harm to himself or others in the institution? C.J.R.

concedes part of the second Medina factor — the likelihood that he

will cause serious harm to himself or others in the institution —

because he agrees that “he becomes aggressive and assaultive when

[he is] not controlled through medication.” But he contends that

the record does not support the probate court’s decision that

Depo-Provera was necessary to prevent his aggressive and

assaultive behavior.

¶ 82 Much of C.J.R.’s focus when discussing the probate court’s

application of Medina is on what he characterizes as a

sufficiency-of-the-evidence problem that is based on an absence of

information in the record. He points out that the record does not

show whether the side effects associated with Depo-Provera are

likely or unlikely to occur. He contrasts the state of the record in

this case with the state of the record in Medina, in which there was

substantial testimony about the side effects of the antipsychotic

39
 drug that was the focus of that case. He states that the record does

not show whether Depo-Provera is an antipsychotic drug.

¶ 83 I disagree with C.J.R.’s contentions for the following three

reasons.

¶ 84 First, I reject his assertion that we must reverse the probate

court’s order because the record does not establish that

Depo-Provera “is an antipsychotic medication” or that the drug will

“address[]” his “psychotic behavior.” Rather, I think that this

assertion is a red herring.

¶ 85 As I have indicated above, I believe that the pertinent law in

Colorado focuses on any involuntary treatment that has the

potential for serious side effects. See Medina, 705 P.2d at 967;

Goedecke, 198 Colo. at 411, 603 P.2d at 125; M.K.M., 765 P.2d at

1076. And the supreme court has recognized that antipsychotic

drugs are powerful; that they can cause serious, perhaps

permanent side effects; that they are “far more debilitating” than a

patient’s involuntary commitment to a treatment facility; and that

their beneficial side effects are evanescent, lapsing after they leave

the patient’s blood stream. Medina, 705 P.2d at 968-69.

40
¶ 86 I conclude that the probate court, when its analysis equated

Depo-Provera with an antipsychotic drug, recognized that

Depo-Provera was powerful and that its use posed the risk of

significant, potentially harmful side effects. In other words, by

applying Medina, the probate court treated the psychiatrist’s

request to use Depo-Provera with the seriousness that our supreme

court expects when the potential of involuntary treatment with a

powerful drug looms over an incompetent patient.

¶ 87 Second, while I agree with C.J.R.’s contention that the record

does not establish the likelihood that he will suffer one or more of

the side effects associated with Depo-Provera, I disagree with him

over how important that missing information was. Although the

psychiatrist did not testify to statistical likelihoods, she clearly

listed some of the potential side effects. While they are indeed

serious and significant, the probate court knew that they were

possibilities. And it appears that the court assumed that C.J.R.

would suffer from any or all of them: the court wrote in its order

that C.J.R.’s “valid objections to the feminizing side effects of

Depo-Provera [were] overridden by the [hospital’s] compelling

interest[]” in “assur[ing] the safety of all concerned.”

41
¶ 88 Third, C.J.R. points to out-of-state authority concerning

Depo-Provera, which states that it has been used as a mode of

“chemical castration” for sexually violent felons. But these cases do

not help him. People v. Collins, 1 Cal. Rptr. 3d 641, 646 (Cal. Ct.

App. 2003), observed that a man who had been involuntarily

hospitalized in a civil proceeding because he was a sexually violent

felon had been treated with Depo-Provera. The opinion did not

discuss the drug’s risks, and it did not suggest that the drug’s use

had been inappropriate.

¶ 89 But Collins did cite a law review article that discussed the pros

and cons of using Depo-Provera. Peter J. Gimino III, Comment,

Mandatory Chemical Castration for Perpetrators of Sex Offenses

Against Children: Following California’s Lead, 25 Pepp. L. Rev. 67

(1997). Although the author recognized that Depo-Provera had

significant side effects, id. at 73-76, he added that “[m]ost reported

side effects rarely occur, . . . and they are all reversible after . . .

treatment is terminated,” id. at 75.

¶ 90 The author of another law review article that I have found

noted that, although Depo-Provera has “significant side effects,” it

may “significantly reduce recidivism rates in certain male offenders”

42
 by “reducing testosterone production and consequently the

offender’s sex drive.” Zachary Edmonds Oswald, Note, “Off With His

___”: Analyzing the Sex Disparity in Chemical Castration Sentences,

19 Mich. J. Gender & L. 471, 477 (2013). (I acknowledge that the

Food and Drug Administration has “recommended that

Depo-[P]rovera only be taken for up to two years because extended

use results in loss of bone density and other severe side effects.”

Haley A. Smith, Comment, Common Enemy and Political Opportunity

Leave Archaically Modern Sentencing Unchecked: The

Unconstitutionality of Louisiana’s Chemical Castration Statute, 59

Loy. L. Rev. 211, 236 n.136 (2013).)

¶ 91 C.J.R. also cited Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct.

App. 2007). But that opinion did not discuss the risks or benefits

of Depo-Provera. It concluded, instead, that a court had violated

the Constitution’s Double Jeopardy Clause when it ordered a

defendant in a criminal case to undergo therapy with that drug

several months after the court had imposed sentence.

¶ 92 Likewise, Vandyne v. State, No. 10-07-00328-CR (Tex. App.

May 27, 2009)(unpublished opinion), did not analyze the risks that

43
 Depo-Provera posed. Although the opinion referred to chemical

castration, it did not mention Depo-Provera.

¶ 93 Turning to the majority opinion, it makes much of the decision

by Colorado’s legislature to reject a “chemical castration” law. But I

submit that the legislature’s action in this area means

comparatively little to this case because we really do not know why

the legislature rejected the law. See Church of Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 558 (1993)(Scalia, J.,

concurring in part and concurring in the judgment)(“[I]t is virtually

impossible to determine the singular ‘motive’ of a collective

legislative body, and this Court has a long tradition of refraining

from such inquiries.”)(citations omitted).

¶ 94 I also submit that there is little persuasive force propelling the

majority’s statement that the legislature’s decision “declin[ing] to

authorize chemical castration for persons convicted of criminal

offenses” leads to the conclusion that Colorado courts “do not have

the authority to order chemical castration as part of the mental

health treatment of a civilly committed patient.” The legislature has

not passed a statute banning chemical castration; neither our

supreme court nor a division of this court have previously offered

44
 any opinion, either positive or negative, about the practice; and the

majority does not point to a decision from another jurisdiction that

declares the practice to be unconstitutional.

¶ 95 And I question the utility of the comparison of the process of

chemical castration in criminal cases to C.J.R.’s case. Convicted

defendants in criminal cases are, by definition, competent; C.J.R. is

not. Convicted defendants have made conscious choices to break

the law; C.J.R.’s choices are driven by his mental illness. Chemical

castration is ordered for convicted defendants who will live in the

community — not in prison — on probation or on parole; C.J.R. has

been hospitalized for over two decades. Chemical castration may be

imposed in a criminal case as a form of punishment; Depo-Provera

is used in this case as a form of treatment. In other words, C.J.R.’s

behavior poses an entirely different set of questions than the

behavior of convicted defendants does.

¶ 96 The majority also submits that my analysis supports the

physical castration of patients and that it conjures up “visions of

involuntary lobotomies.” But this case is not about either of those

irreversible things. And I suggest that the majority’s reference to

this parade of horribles introduces into this appeal issues that, akin

45
 to the question the majority chooses to raise and to answer sua

sponte, are not before us.

¶ 97 I also disagree with the majority’s assertion that the use of

Depo-Provera in this case is not treatment because its sole purpose

would be to moderate C.J.R.’s behavior. Controlling problematic

behavior is a form of treatment. For example, one of the reasons

that the doctors in Medina wanted to use antipsychotic drugs to

treat him was that he “sometimes [became] assaultive . . . and

occasionally attack[ed] others or [threw] furniture and other objects

around the mental health facility.” 705 P.2d at 964. The doctors

thought that the drugs would “alleviate these symptoms.” Id. A

doctor testified that the medication had “decreased the incidents of

assaultive behavior.” Id.

¶ 98 C.J.R.’s inappropriate sexual behavior is as much a

“symptom” of his disease as Mr. Medina’s violence was of his. The

Depo-Provera that the Institute wants to administer to C.J.R. is

designed to “alleviate” that symptom.

¶ 99 Turning now to the specific analysis of the second Medina

factor, I conclude that the record supports the probate court’s

determination, by clear and convincing evidence, that Depo-Provera

46
 was necessary to prevent C.J.R.’s aggressive and assaultive

behavior. The psychiatrist testified that C.J.R.’s sexually

inappropriate behavior had escalated since he had been taken off of

Clozaril to the point that he represented an ongoing risk of sexual

assault to other patients and staff. No other antipsychotic drugs

seemed to have worked to mediate his behavior. The psychiatrist

recommended Depo-Provera because she thought it could reduce

C.J.R.’s libido and thus reduce the sexual assault risk that he

posed.

¶ 100 Is a less intrusive treatment alternative available? I also

conclude that the record supports the probate court’s

determination, by clear and convincing evidence, that there were no

less intrusive treatment alternatives available. The psychiatrist had

considered and rejected alternatives. She could put C.J.R. in

another ward with just men, but she feared that their response to

his sexually inappropriate behavior would be to assault him. He

would also pose a risk to the female staff members who worked on

the all-male ward. She could isolate him, minimizing his contact

with others, but she had tried that solution before, and it did not

47
 “work.” She thought the resulting seclusion was more restrictive

than the Depo-Provera.

¶ 101 I could, of course, speculate that there are other alternatives.

Perhaps the Institute could, as the majority suggests, “physically

restrain [C.J.R.] from touching . . . female nurses.” But how would

the Institute do that? Would it have to assign a full-time staff

member to watch C.J.R. and to restrain him at appropriate times?

Would the Institute have to tie him up? I do not know what the

Institute’s budgetary considerations are, so I do not know whether

it can afford to give C.J.R. a babysitter who, as a result of that

assignment, cannot spend time with other patients. And I do not

know how C.J.R. would react to being physically restrained.

¶ 102 I only have before me the psychiatrist’s testimony, and I

submit that we should take her at her word. She has treated C.J.R.

at the Institute for eight years. She is the expert who understands

him, his care, and his reaction to circumstances, such as isolation;

she is the expert who knows what the Institute’s staff can do; and

she is the expert who can evaluate the risks that C.J.R. presents to

others, and the risks that others present to him.

48
¶ 103 Is the patient’s need for treatment sufficiently compelling to

override any bona fide and legitimate interest of the patient in

refusing treatment? I conclude that the record supports the

probate court’s determination, by clear and convincing evidence,

that C.J.R.’s need for treatment with Depo-Provera was sufficiently

compelling to override his bona fide and legitimate interest in

refusing treatment.

¶ 104 The psychiatrist testified that C.J.R.’s behavior had escalated

into a dangerous, criminal place. He daily heard voices that

instructed him to take off his clothes and to have sex with other

people. The psychiatrist’s testimony described the prospect of more

sexual assaults on additional people. Such an outcome would not

only create problems for those potential victims, but it could also

lead to criminal charges being filed against C.J.R. or to other

patients assaulting him. And she observed that, historically, he

was “quite violent” when the Institute’s staff tried to wean him off of

Clozaril. These are certainly compelling circumstances.

¶ 105 I do not minimize Depo-Provera’s significant side effects; it is

very strong medicine. But antipsychotic drugs are also very strong

medicines that can have significant side effects. As Medina makes

49
 clear, there are circumstances in which it is appropriate to

administer strong medicines to incompetent patients without their

consent.

¶ 106 Antipsychotic medicines affect the human brain, which is the

very center of what we perceive, what we think, what we feel, and

who we are. I have trouble seeing how Depo-Provera presents a

greater risk to C.J.R.’s well-being or to his sense of self than

antipsychotic drugs. If courts can grant doctors’ requests to

administer antipsychotic drugs to incompetent patients that will

directly affect their brains, I do not understand why they cannot,

following Medina, grant requests to administer Depo-Provera to

those patients that will directly affect their brains or other parts of

their bodies. I therefore think that distinguishing between

antipsychotic drugs and Depo-Provera in this case creates a false

dichotomy. They are both treatments as far as C.J.R. is concerned,

and their use against his will is subject to Medina.

¶ 107 I think that C.J.R.’s desire to avoid the potentially feminizing

effects of Depo-Provera is certainly understandable and reasonable.

But this case, much like Medina, presents us with one of those

choices between unattractive alternatives that the law sometimes

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requires. I conclude that the probate court chose the “least bad”

alternative and that, based on Medina and the record, it was the

right choice to make.

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