IN RE: E.F.FROM County Court at Law No. 1 OF Wichita COUNTYMEMORANDUM OPINION1I. Introduction In one issue (2011)

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

I I. Factual Background

Dr. Harvey Martin testified that he had known E.F. professionally for more than fifteen to twenty years as both an inpatient at Red River Hospital and in his private office, that she is currently under a court order to receive inpatient mental health services, and that she is being treated for bipolar disorder with psychosis and mild dementia, “a recognizable form of mental illness.”   He testified that E.F. had been exhibiting the following symptoms:  unstable mood, some difficulty accurately assessing her own situation and her own condition, some problems with short-term and immediate memory, some difficulty with sleep, and some hyperirritability.

He also testified that E.F. had refused to take medications voluntarily.   He stated that she lacked the capacity to make a decision regarding the administration of medicine.   When asked why, he stated that “in the past, very modest doses of this type of medication have been, in [his] view and ․ the view of her family, very helpful, very stabilizing, and [he thought] it would allow her to function more like her normal self.”   His hope was that with the medication, E.F.'s irritability would improve, that her sleep would improve, and that “her capacity to embrace the idea that her family and her treating medical staff were trying to act on her best interest [would improve.]”   Dr. Martin thought that the medications would enable E.F. to “better cooperate” and “to function in a more normal way.”   Dr. Martin testified that he had “spent a lot of time trying [and had tried many times] to discuss the benefits and the risks, the potential side effects, and so forth at some length with [E.F.] She's been very adamant that it would not be a consideration.”

When asked whether she appeared to understand the benefits and side effects, he answered, “It's difficult to say.   Basically she stated that she wasn't going—she wasn't open to discussion about it, was not open to considering it.”   Further, he testified that she would not even allow him to carry out the appropriate monitoring tests for her blood thinner prescribed by doctors other than those practicing at Red River.

Dr. Martin testified that the side effects of the various requested medications are usually very minimal but admitted that sedation and gastric irritation were possible.   He stated that when E.F. had been on the same medications in the past, she had been “essentially side effect free” and that he did not recall specifically that she had shown any symptoms of side effects.   But he admitted that “[t]here may have been a small tremor at one point” before an adjustment in the medication.   He also admitted that there were some serious potential side effects, such as tardive dyskinesia or neuroleptic malignant syndrome, which have the potential to be life-threatening.   But Dr. Martin explained that those side effects

were much more of a consideration with the older generation of what are called neuroleptics or antipsychotic medications, things such as Haldol, Thorazine, Mellaril, those kinds of medications.

One of the advantages of the newer generation of antipsychotics is the risk for tardive dyskinesia, for example, with this drug, while it's been reported, I've never seen it in any of my patients, and so the incidence of that is very low.

Additionally, the dosage range that we're talking about, at least in the past for [E.F.], has been comparatively relatively low.

Dr. Martin testified that he was familiar with the potential side effects and was specifically trained to watch for them.   At E.F.'s counsel's urging, he promised that he would do so.   Dr. Martin concluded that the benefits of the requested medications outweighed the possible side effects and that the medications were in her best interest.

Further, Dr. Martin testified that he did not believe there was any alternative to court-ordered medication.   He stated that thus far in this round of court-ordered inpatient care, E.F.'s dementia with delusions and psychosis had not improved.   He admitted that although she had been “very unwilling to take any of the additional [medications] that [he] ha[d] prescribed[, h]er others[, prescribed by other doctors,] have been [only] a little bit hit or miss.”

Dr. Martin stated that the requested medications would not be as “helpful for her mental illness” if not taken consistently.   He had therefore requested that the medications be ordered as intramuscular injections.   He explained,

I guess the advantage is that once that's given, that there's not the daily resistance, the daily discussion about not taking it or taking it, and so it allows the medicine to be present.   And it's in what's called a Depo form, which means that it's slowly released over time.   There's the convenience of not having to take yet another pill orally.   Those would probably be the two big benefits.

But he also stated that he was open to switching from intramuscular injections back to oral administration if E.F. improved on the medication.

E.F.'s testimony

(1) is under a court order to receive inpatient mental health services ․ [.]

(a–1) The court may issue an order under this section only if the court finds by clear and convincing evidence after the hearing:

(1) that the patient lacks the capacity to make a decision regarding the administration of the proposed medication and treatment with the proposed medication is in the best interest of the patient ․ [.]

(b) 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 (West 2010).

Section 574.101(1) provides the definition of capacity:

(1) “Capacity” means a patient's ability to:

(A) understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment;  and

(B) make a decision whether to undergo the proposed treatment.

Id. § 574.101.

V. Legally Insufficient Evidence to Support

Finding t hat E.F. Lacks C apacity

E.F. argues that the evidence is legally and factually insufficient to support the trial court's finding that she lacks capacity.   We focus on E.F.'s argument that the testifying physician could not provide any reasons why he testified that she lacked capacity.

As set forth above, Dr. Martin testified that E.F. lacked the capacity to make a decision regarding the administration of psychoactive medications.   When asked why he believed that E.F. lacked such capacity, he stated that “in the past very modest doses of this type of medication have been, in [his] view and ․ the view of her family, very helpful, very stabilizing, and [he thought] it would allow her to function more like her normal self.”   His hope was that with the medication, E.F.'s irritability would improve, that her sleep would improve, and that “her capacity to embrace the idea that her family and her treating medical staff were trying to act on her best interest [would improve.]”   Dr. Martin's testimony, however, does not demonstrate why E.F. lacked the capacity to make a decision regarding the administration of psychoactive medication;  he did not link her diagnoses—i.e., bipolar disorder with psychosis and mild dementia—or her behavior to any lack of capacity.   Thus, there was no factual testimony from Dr. Martin at the hearing supporting his conclusory opinion that he believed that E.F. lacked the capacity to make a decision regarding the administration of psychoactive medication.   See Wal–Mart Stores, Inc. v. Merrell, 313 S.W.3d 837, 839 (Tex.2010) (holding that conclusory testimony constitutes no evidence);  City of San Antonio v. Pollock, 284 S.W.3d 809, 820 (Tex.2009) (same);  Coastal Transp.   Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004) (same);  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711–12 (Tex.1997) (same), cert. denied, 523 U.S. 1119 (1998).

The record instead reveals that E.F. is a well-spoken, eighty-seven year-old woman.   She explained that she did not want to take antipsychotic medications because she was not psychotic.   She testified that she had not taken the antipsychotic medications at times in the past and had been as “normal as anyone.”   She was alert to the conditions of her surroundings, and her testimony regarding the conditions of her surroundings was not controverted.   And she was able to interact with the court, even to the extent of stating that she would appeal the decision.

Considering all of the evidence in the light most favorable to the trial court's finding, resolving disputed fact questions in favor of the finding if a reasonable factfinder could have done so, and disregarding all contrary evidence unless a reasonable factfinder could not have done so, we hold that a reasonable trier of fact could not have formed a firm belief or conviction that E.F. lacked the ability to understand the nature and consequences of administration of the proposed medications, including the risks, benefits, and alternative treatments or to make a decision whether to voluntarily take the proposed medications.   See Tex. Health & Safety Code Ann. § 574.106(a–1)(1);  K.E.W., 315 S.W.3d at 20;  State ex rel. E.G., 249 S.W.3d 728, 732 (Tex.App.—Tyler 2008, no pet.);   see also State ex rel. W.G., No. 12–08–00344–CV, 2009 WL 3790016, at *4 (Tex.App.—Tyler Nov. 12, 2009, no pet.) (mem.op.);  State ex rel. B.L., No. 12–08–00081–CV, 2008 WL 4117959, at *4 (Tex.App.—Tyler Sept. 3, 2008, no pet.) (mem.op.).  Consequently, the evidence is legally insufficient to support the trial court's finding based on section 574.106(a–1)(1) of the Texas Health and Safety Code. Tex. Health & Safety Code Ann. § 574.106(a–1)(1).   Having determined that the evidence is legally insufficient to support the statutorily required lack of capacity finding, it is unnecessary for us to address the portion of E.F.'s issue dealing with the trial court's best interest finding and her arguments that the evidence is factually insufficient to support the trial court's findings.   See Tex.R.App. P. 47.1 (requiring appellate court to address only issues necessary to final disposition of the appeal).   We sustain E.F.'s sole issue.

VI. Conclusion

Having sustained E.F.'s sole issue, we reverse the trial court's order authorizing psychoactive medication and render judgment denying the State's application for an order to authorize psychoactive medications.

PANEL:  DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J. dissents without opinion.

DELIVERED:  December 9, 2011

FOOTNOTES

FN1. See Tex.R.App. P. 47.4..  FN1. See Tex.R.App. P. 47.4.

FN2. The record from that hearing is not in the record before us..  FN2. The record from that hearing is not in the record before us.