Opinion
Nos. 05-11-00485-CV, 05-11-00496-CV
Opinion issued August 17, 2011.
On Appeal from the Probate Court No. 3, Dallas County, Texas, Trial Court Cause Nos. MI-11-00906 MED-11-80146.
Before Chief Justice WRIGHT and Justices FRANCIS and LANG-MIERS.
MEMORANDUM OPINION
In separate accelerated appeals, R.M. challenges the trial court's judgment committing him for temporary inpatient mental health services (No. 05-11-00485-CV) and the order to administer psychoactive medications (No. 05-11-00496-CV). In both appeals, he argues there is not clear and convincing evidence to support the findings upon which the trial court's actions were based. We affirm.
R.M. was detained by Dallas police who were called to a disturbance outside a grocery store caused by R.M.'s aggressive panhandling. R.M. was intimidating customers and had frightened a little girl. When the police arrived, R.M. could not concentrate on their questions, rambled about events that occurred years earlier, and could not tell a consistent story. He told the police he was bipolar schizophrenic and asked to be taken to Green Oaks Hospital. R.M. was initially admitted to Green Oaks as a voluntary patient but was transferred to Terrell State Hospital two weeks later on an order of protective custody after an application for court-ordered mental health services was filed. Dr. Mark Messner, a staff psychiatrist at Terrell, then filed an application for an order to administer psychoactive medication. The trial court held hearings on both applications and granted the requested relief. R.M. timely appealed.
The same standard of review applies to both a commitment order and an order to administer psychoactive medication. A.S. v. State of Texas, 286 S.W.3d 69, 71 (Tex. App.-Dallas 2009, no pet.). The trial court must find by clear and convincing evidence the statutory criteria for both orders. Tex. Health Safety Code Ann. § 574.034(a) 574.106(a-l) (West 2010). Clear and convincing evidence is that "degree of proof which 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." State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979) (per curiam).
Because the State's burden of proof is clear and convincing evidence, we apply a heightened standard of review. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). In reviewing a legal sufficiency claim, we look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). When reviewing factual sufficiency, we must give due consideration to evidence that the fact finder could reasonably have found to be clear and convincing and then determine whether, based on the entire record, a fact finder could reasonably form a firm conviction or belief that the allegations in the petition were proven. Id.
Order of Involuntary Commitment
In two issues in his commitment appeal, R.M. asserts there is not clear and convincing evidence to support the trial court's findings of deterioration and a recent overt act or continuing pattern of behavior to confirm R.M.'s distress and deterioration of his ability to function independently.
Before a mentally ill patient can be ordered confined to a hospital on a temporary basis, the State must establish by clear and convincing evidence at least one of three criteria outlined in the mental health statute. Tex. Health Safety Code Ann. § 574.034(a)(2) (West 2010). Here, the judge found one criterion was met: R.M. was suffering severe and abnormal mental, emotional, or physical distress, was deteriorating in his ability to function independently, and was unable to make a rational and informed decision as to whether or not to submit to treatment. See id. § 574.034(a)(2)(C)(i)-(iii).
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 (1) the likelihood of serious harm to the proposed patient or others or (2) the proposed patient's distress and the deterioration of his ability to function. Id. § 574.034(d). The recent overt act or continuing pattern of behavior must relate to the criteria on which the judgment is based. T.G. v. State, 7 S.W.3d 248, 252 (Tex. App.-Dallas 1999, no pet.). The expert's opinions and recommendations must be supported by a showing of the factual bases on which they are grounded.
At the commitment hearing, Dr. Margaret Weidow, staff psychiatrist at Terrell, testified she examined R.M. and diagnosed his condition as schizoaffective disorder, bipolar type. Dr. Weidow testified that as a result of his mental illness, R.M. was likely to cause harm to himself, but not others, and was suffering a severe and abnormal mental, emotional, or physical distress, was deteriorating in his ability to function, and was unable to make a rational and informed decision as to whether to submit to treatment.
As a basis for her opinion, Dr. Weidow testified R.M. is extremely disorganized, perseverative, tangential, cannot stay on topic, and has pressured speech, all of which she said indicates that "he cannot manage his life." Just the day before, she said R.M. was unable to communicate and was "very disorganized" in his presentation. He said he was fifty years old when, in fact, he is forty-four, which Dr. Weidow said is an indication he is "so disorganized he doesn't even know exactly how old he is at this time." When R.M. was originally detained by the police, she said he could not "even tell them a consistent story" and "rambled on" about events that had occurred years earlier.
According to Dr. Weidow, when R.M. was initially taken to Green Oaks, staff had difficulty obtaining information from him. Likewise, when he arrived at Terrell, staff had difficulty obtaining information from him because he was "so chaotic and disorganized." Since R.M. has been hospitalized, he has made only minimal progress. He has not become more conversant or less disorganized and, in fact, "continues off topic and stays to himself." Although he has been eating well and bathing, she said he has an issue with sleep that is attributable to his mental illness. His physician wants to change his medications, but R.M. has refused.
Dr. Weidow also said R.M. has a history of mental illness dating back to 1994 and had been hospitalized numerous times. This was his third hospitalization at Terrell. His last visit was from May to July 2010. He was discharged to a boarding house and was supposed to follow up with Dallas Metrocare and SNOPS (Special Needs Offender Program), which R.M. did for a while before he stopped.
Dr. Weidow believed it would be in R.M.'s best interest to receive inpatient treatment at Terrell and no lesser restrictive alternatives were available. She said R.M. is "not stable," is still disorganized, is easily agitated, and is "not settled to return to the community." Because he is not stable and has a history of noncompliance with his medications, she believed he would rapidly "come to someone's attention because of behaviors" and would return to panhandling.
R.M. testified at length, sometimes answering the question asked but often times rambling on about other subjects. He said he lived in a boarding house, where they dispensed his medications, and he received $20 weekly to spend. He denied he had a mental illness and denied aggressively panhandling. He said he just had a cup for donations, "[t]wenty-five cents," "50 cents," and denied frightening a little girl. He said when he was panhandling, he would speak in Spanish and ask people if they could spare anything.
By way of example, at the beginning of his testimony, R.M. was asked where he lived:
[R.M.'s ATTORNEY]: And [R.M.], before coming to the Terrell State Hospital and before, when the police picked you up, where did you live?
[R.M.]: I lived in a boarding field over there. They call it Don Moor over there on Ledbetter Station. That's a place — they used to call it Rosie McCane. The Stemmons water office sent me there one time and I went back and I have, basically — his name is Bobby, he's waiting for my check and he was going to loan me 20 bucks; that's all.
At another point, the State's attorney asked R.M. about his medications:
[STATE'S ATTORNEY]: Do they keep that there at the boarding home and they give it to you?
[R.M.]: They give it to me in the boarding home, yes, ma'am.
[STATE'S ATTORNEY]: Okay. So everyday you take your medication?
[R.M.]: Yes, ma'am. It's just that I got robbed, ma'am, see I got robbed. I got robbed. I got a broken leg. See, my legs are broken (indicating)? I got hit by a car, too.
[STATE'S ATTORNEY]: That's a broken leg?
[R.M.]: That's a broken leg. See where they're broken, they're broken. I can't-
He testified that when he was released from Terrell in July 2010, he attended dual diagnosis classes twice a week and drank coffee. He attended classes until a lady told him to "go away" and "come back next Thursday." He did not believe it was in his best interest to stay at Terrell a little longer, take medication, and try to get organized. He said he would rather go to detox or jail than stay at Terrell.
We begin with R.M.'s first issue in which he complains of the trial court's deterioration finding. He argues Dr. Weidow merely recited the statutory criteria without describing any particular behavior to support her opinion. Further, R.M. directs us to other evidence that he was not suicidal; was eating well and bathing; was taking medication as prescribed; had been living in a boarding house; had the ability to know and make a decision that he would rather go to jail or detox than Terrell State Hospital; followed up with Dallas Metrocare and the SNOPS program after his release from Terrell in July 2010; and liked going to the park because "he liked to drink hot cocoa and he just couldn't stay at home all day as he would just get old." Additionally, he argues the evidence showed he had the presence of mind to (1) take public transportation from his home to the store; (2) pay for the public transportation; (3) find a location to panhandle and supplement his meager income; (4) develop and carry out his style of panhandling; (5) know the kinds of medications he was taking; and (5) ask the police to take him to Green Oaks.
Having reviewed the record, we cannot agree with R.M. Dr. Weidow did more than testify to statutory conclusions. She testified she believed R.M. was suffering distress and the deterioration of his ability to function independently as shown by the disturbance at the grocery store, his inability to concentrate and provide coherent responses to the police officers' questions, his disorganization exhibited at both Green Oaks and Terrell which prevented them from obtaining information, his inability to communicate with staff, and his minimal improvement. In addition, she said R.M. is easily agitated and not stable for discharge. Moreover, we note R.M. testified he does not believe he has a mental illness and the evidence shows he has a history of failing to take his medications. Dr. Weidow believed that if discharged, R.M. would rapidly come to "someone's attention" because of his behaviors. Further, although R.M. directs us to evidence he believes contradicts the trial court's findings, some of that evidence is not supportive. For instance, he relies on his "presence of mind" to find a location and develop a style to panhandle, although he ignores the evidence that his actions caused a disturbance such that the police had to be called. And while he knew what medications he was taking, those drugs were no longer working and he refused a change. Additionally, he relies on evidence that he followed up with Dallas Metrocare and SNOPS after his July 2010 release, but ignores evidence that he stopped this follow-up care at some point before he created the disturbance at the grocery store. After considering the evidence under the appropriate standards of review, we conclude it is legally and factually sufficient to support the trial court's deterioration finding.
R.M. also argues there is not clear and convincing evidence of an overt act or continuing pattern of behavior to confirm R.M.'s distress and deterioration of his ability to function independently. To the contrary, R.M.'s causing a disturbance outside of a grocery store by aggressively panhandling people, intimidating them, and frightening a little girl, was clear and convincing evidence of a recent overt act. R.M.'s behavior necessitated a call to the police, who reported that R.M. could not concentrate on their questions, rambled on about events that happened years earlier, and could not tell a consistent story. R.M.'s behavior evidenced his distress and deterioration of his ability to function independently.
Based on the entire record, we conclude the evidence is both legally and factually sufficient to support the trial court's commitment order. We overrule R.M.'s two issues in his appeal of the judgment ordering court-ordered temporary inpatient mental health services.
Order to administer psychoactive medication
In the medication appeal, R.M. raises two issues in which he complains the evidence was legally and factually insufficient to show that (1) he lacked capacity to make a decision regarding the administration of the proposed psychoactive medication and (2) it was in his best interest to have treatment with the proposed psychoactive medication. A trial court may issue an order authorizing the administration of one or more classes of psychoactive medications to a patient who is under a court order to receive inpatient mental health services. Tex. Health Safety Code Ann. § 574.106(a) (West 2010). The court may issue an order if it finds by clear and convincing evidence that (1) the patient lacks the capacity to make a decision regarding the administration of the proposed mediation and (2) treatment with the proposed medication is in the best interest of the patient. Id. § 574.106(a-1)(1). In making its findings, the trial court shall consider (1) the patient's expressed preferences regarding treatment with psychoactive medication; (2) the patient's religious beliefs; (3) the risks and benefits, from the perspective of the patient, of taking psychoactive medication; (4) the consequences to the patient if the psychoactive medication is not administered; (5) the prognosis for the patient if the patient is treated with psychoactive medication; and (6) alternatives to treatment with psychoactive medication. Id. § 574.106(b)(1)-(7).
After the court determined R.M. should be committed for inpatient treatment, a separate hearing was held on the application for psychoactive medication. The court took judicial notice of the testimony at the commitment hearing and then heard further evidence from Dr. Weidow. Dr. Weidow said she was recommending the court order administration of three classes of medication: antipsychotics, anxiolytics/sedatives/hypnotives, and mood stabilizers. She recommended an antipsychotic because she said R.M. is so psychotic, he is not responding adequately to his current medication, and she believed a different drug would improve his mental state. She recommended anxiolytics/sedatives/hypnotives on an as-needed basis for his agitation. Finally, she recommended mood stabilizers to help level out his moods. She testified that all of the drugs have side effects, which she went over, but said she believed the benefits of the drugs outweighed any risks.
Dr. Weidow believed the proposed treatment was in R.M.'s best interest. She said R.M.'s prognosis was good with these medications and was poor without them. She did not see any alternative. She did not believe R.M. understood the nature of his illness and the necessity for the medications, although staff had attempted to explain the benefits and risks to him. According to Dr. Weidow, R.M. insists on taking Prolixin, which she said has not been effective for R.M. . She said his most recent hospitalization had lasted at least a month, but there has been no appreciable improvement in R.M.'s condition, which indicates a change is needed. She wanted to put him on Haldol, which worked for him during his last admission, but R.M. refused. R.M. never indicated that a religious faith prohibited him from taking it. Dr. Weidow testified she preferred giving R.M. Haldol in shot form, which then prompted an outburst by R.M., who said he would rather go to jail. When he continued interrupting the hearing, the judge had R.M. removed. After his removal, Dr. Weidow said Haldol could be given in oral form to R.M. She estimated that R.M. could be released in thirty days if he took Haldol, based on the success of the drug the last time he was hospitalized. Finally, Dr. Weidow testified she did not believe R.M., because of his mental illness, had the capacity to make a decision regarding the administration of the proposed medications.
Having reviewed the evidence under the appropriate standards, we conclude a reasonable fact finder could form a firm belief or conviction that R.M. lacked the capacity to make a decision regarding the administration of the proposed medications and treatment with the proposed medications was in his best interest. We overrule R.M.'s two issues in his appeal of the psychoactive medication order.
We affirm the trial court's judgment ordering R.M. committed for temporary inpatient mental health services, and we affirm the trial court's order to administer psychoactive medication.