     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                June 27, 2019

                                2019COA99

No. 19CA0647, People in Interest of R.C. — Health and Welfare
— Care and Treatment of Persons with Mental Health Disorders
— Involuntary Administration of Medication

     This is the first reported Colorado decision that addresses a

situation where the People seek the involuntary administration of

medications that the treating physician believes may need to be

given at a later date, if the patient’s current medication stops being

efficacious, but that do not currently need to be administered.

Nonetheless, the lower court granted the physician immediate

authorization to administer the additional medications. In addition,

the People did not seek an order for the involuntary administration

of the patient’s current medication, despite the psychiatrist’s

concern that the patient may stop taking it voluntarily. A division

of the court of appeals concludes that the People did not carry their
burden under People v. Medina, 705 P.2d 961 (Colo. 1985), to prove

that the involuntary administration of the additional medications

was the less intrusive alternative.
COLORADO COURT OF APPEALS                                        2019COA99


Court of Appeals No. 19CA0647
Pueblo County District Court No. 19MH81
Honorable Jill S. Mattoon, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of R.C.,

Respondent-Appellant.


                                 ORDER REVERSED

                                     Division IV
                            Opinion by JUDGE LIPINSKY
                           Román and J. Jones, JJ., concur

                              Announced June 27, 2019


Cynthia Mitchell, County Attorney, Kate H. Shafer, Special Assistant County
Attorney, Pueblo, Colorado, for Petitioner-Appellee

The Law Firm of John L. Rice, John L. Rice, Pueblo, Colorado, for Respondent-
Appellant
¶1    Appellant, R.C., appeals the district court’s order authorizing

 mental health personnel to medicate him involuntarily. We reverse.

                           I.   Background

¶2    R.C. was committed to the Colorado Mental Health Institute at

 Pueblo (CMHIP) after being found incompetent to proceed in a

 criminal case. A CMHIP staff psychiatrist, Dr. Lennart Abel,

 diagnosed R.C. with bipolar disorder mania with psychosis.

¶3    Following R.C.’s assault of a staff member at CMHIP, the

 People filed a petition seeking a court order authorizing the

 administration of involuntary medication. At a hearing on the

 petition, Dr. Abel testified that R.C. was voluntarily taking Zyprexa.

 Dr. Abel opined that R.C. would not continue to take this drug

 voluntarily because he had previously refused to take medication.

¶4    The People did not seek an order allowing R.C. to be

 involuntarily medicated with Zyprexa, however. Rather, the People

 sought authorization to medicate R.C. involuntarily with six other

 drugs: Olanzapine, Haldol, Abilify, Lithium, Depakote, and

 Clozapine (the Six Medications). Dr. Abel testified that R.C. “can be

 treated with Zyprexa but I’m not sure if that would be the case over

 the time. Therefore, I have the other medications on the petition.”


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¶5    The district court granted the People’s petition and entered an

 order authorizing the involuntary administration of the Six

 Medications, effective immediately. On appeal, R.C. contends that

 insufficient evidence supported the order. We agree and, therefore,

 reverse.

            II.   Involuntary Administration of Medication

¶6    An order for involuntary administration of medications must

 be supported by clear and convincing evidence

            (1) that the patient is incompetent to effectively
            participate in the treatment decision; (2) that
            treatment by antipsychotic medication is
            necessary 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; (3) that a less
            intrusive treatment alternative is not available;
            and (4) that the patient’s need for treatment by
            antipsychotic medication is sufficiently
            compelling to override any bona fide and
            legitimate interest of the patient in refusing
            treatment.

 People v. Medina, 705 P.2d 961, 973 (Colo. 1985). The People bear

 the burden to prove each element. People in Interest of Strodtman,

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




                                    2
¶7    “Applying the Medina test involves mixed questions of law and

 fact.” People v. Marquardt, 2016 CO 4, ¶ 8, 364 P.3d 499, 502. We

 defer to the district court’s factual findings if they are supported by

 the record and review its legal conclusions de novo. Id. The district

 court, as fact finder, “has discretion to determine the credibility of

 the witnesses; the sufficiency, probative effect, and weight of the

 evidence; and the inferences and conclusions to be drawn from it.

 If supported by the record, a trial court’s findings and conclusions

 . . . will not be disturbed on review.” People in Interest of

 S.M.A.M.A., 172 P.3d 958, 962 (Colo. App. 2007); accord People in

 Interest of C.A.K., 652 P.2d 603, 613 (Colo. 1982).

¶8    R.C. contests only the third element of the Medina test,

 asserting that the district court erred in finding that no less

 intrusive treatment alternative was available. He argues that his

 voluntarily taking Zyprexa at the time of the hearing clearly showed

 that a less intrusive treatment option was available. We conclude

 that the record does not support the district court’s finding that the

 People met their burden on this element of Medina.

¶9    A treatment is less intrusive when it has fewer harmful side

 effects and is at least as effective at treating a patient’s condition as


                                     3
  the proposed treatment. Strodtman, 293 P.3d at 133 (citing Medina,

  705 P.2d at 974). This element “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.” Medina, 705 P.2d at 974.

¶ 10   Dr. Abel testified that R.C. had been taking Zyprexa

  voluntarily for ten days before the hearing. Dr. Abel agreed that

  R.C.’s behavior had improved since he began taking Zyprexa,

  testifying that R.C. is “not as manic as he was before.” He also

  stated that, even if the court authorized the administration of the

  Six Medications, he would “keep [R.C.] on Zyprexa” because, “for

  the time being, [R.C.] can be treated with Zyprexa.” He was,

  however, “not sure if that would be the case over . . . time.”

¶ 11   Thus, Dr. Abel did not testify that R.C. needed to receive the

  Six Medications at the time of the hearing and, moreover, did not

  state unconditionally that R.C. would need to take the Six

  Medications in the future.

¶ 12   Based on this record, we agree with R.C. that insufficient

  evidence supports the district court’s finding that no less intrusive


                                     4
  treatment alterative than Zyprexa is available. To the contrary, Dr.

  Abel’s testimony establishes that continued administration of

  Zyprexa is a less intrusive treatment alternative than

  administration of the Six Medications.

¶ 13   Not only does this conclusion follow logically from Dr. Abel’s

  testimony, but it finds support in People in Interest of R.K.L., 2016

  COA 84, 412 P.3d 827. In R.K.L., a division of this court concluded

  that “mere speculation” that a patient “might need [the specified]

  medications in the future” was insufficient to establish that his

  psychiatrists were currently unable to provide effective treatment.

  Id. at ¶ 44, 412 P.3d at 837. This was especially true because the

  psychiatrists were successfully treating the patient with only one of

  the medications listed in their petition. Id.

¶ 14   While the R.K.L. division reached that conclusion in the

  context of the fourth Medina factor, we consider this reasoning

  relevant to our analysis of the third factor. The possibility that

  Zyprexa may no longer be an effective treatment for R.C., at some

  unspecified time in the future, is insufficient to justify the entry of

  an order authorizing the immediate administration of the Six

  Medications. See id. Moreover, the trial court’s order authorizing


                                      5
  the immediate involuntary administration of the Six Medications

  cannot be squared with Dr. Abel’s testimony that R.C. does not

  need the Six Medications now and may never need them.

¶ 15   Further, Dr. Abel did not testify that the Six Medications

  would be more effective in treating R.C. than is Zyprexa. Dr. Abel’s

  general concern that R.C. had previously refused to take prescribed

  medications does not address why the People needed an order for

  the involuntary administration of the Six Medications while R.C.

  was voluntarily taking Zyprexa.

¶ 16   For these reasons, we conclude that the People did not carry

  their burden of proving the lack of a less intrusive alternative than

  administration of the Six Medications. See Medina, 705 P.2d at

  973. The record evidence establishes that the continued

  administration of Zyprexa is a less intrusive treatment alternative

  than administering the Six Medications. We also therefore conclude

  that the record does not support the district court’s determination

  of the third Medina factor. See R.K.L., ¶ 44, 412 P.3d at 837.

                            III.   Conclusion

¶ 17   The order is reversed.

       JUDGE ROMÁN and JUDGE J. JONES concur.


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