                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-11-00438-CV


IN THE MATTER OF E.F.

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          FROM COUNTY COURT AT LAW NO. 1 OF WICHITA COUNTY

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                          MEMORANDUM OPINION1
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                                   I. INTRODUCTION

      In one issue, Appellant E.F. contends that the trial court erred by

authorizing the administration of psychoactive medicine because the evidence is

legally and factually insufficient to show that (1) she lacks the capacity to make a

decision regarding the administration of the proposed medications and (2)

treatment with the proposed medications is in her best interest. Because we hold

that the evidence is legally insufficient to support the trial court’s finding that E.F.




      1
       See Tex. R. App. P. 47.4.
lacked capacity to make a decision regarding the administration of the proposed

medications, we will reverse and render.

                            II. 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.‖


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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.


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            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.



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      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 from the trial follows:

      Q.    [T]he application that Judge Butler is hearing today deals with
            you being Court ordered to take certain medications. Do you
            understand that?

      A.    Yes.

      Q.    Do you want to take those medications?

      A.    Well, what medications were Court ordered?

      Q.    Well, none have been yet.

      A.    Well, I don’t think they should be.      I object to this whole
            hearing. I was not—

      Q.    Okay.

      A.    What is it?

      Q.    I was just going to ask you another question. Is that okay?

      A.    Yes.

      Q.    You don’t want to take shots, do you?

      A.    No. I don’t have any reason to take shots.            I take the
            medication when they hand it to me.

      Q.    Okay. And you’re telling us that you agree to take that
            medicine; is that correct?

      A.    Well, I haven’t taken some that are antipsychotic, because I’m
            not a psychotic.

      Q.    Okay. And you don’t want the Judge to order that you have to
            take medicine you don’t want to take, do you?

      A.    No, I don’t want him to.


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      Q.    Do you think that you’ll be okay without the medicine that they
            want you to be Court ordered—

      A.    Well, I have been. I’ve been in the hospital there, and I’ve
            been without the medication. I’ve been normal as anyone on
            the street.

      Q.    You don’t think you’re irritable, or not sleeping good, or
            anything like that?

      A.    No, no, I am not. I am cooperative.

      Q.    All right. And you’ll -- and you understand that you can get out
            of the hospital when you’re cooperative, don’t you?

      A.    Yes, I do. But I object to Dr. Martin. I fired him as my
            physician three weeks ago, and he has chased me around the
            hospital trying to give me medication and counsel. I don’t
            want him as my physician. I told my husband that, and he
            went to Dr. Gonzalez and told him what the situation was, and
            Dr. Gonzalez said he would recommend a psychiatrist if it
            were needed.

      Q.    Do you agree to receive other kinds of treatments, like
            psychotherapy and other kinds of therapy treatments?

      A.    No. I am eighty-seven years old. Psychotherapy is not going
            to change me. I do not want Dr. Martin as my physician. He
            has done nothing to help me.

      Q.    I believe I’ll—

      A.    He believes in nothing but drugs, and he pushes a prescription
            of drugs at you immediately. I object to that. I don’t want
            drugs in my brain, carrying them around. It’s just a lot of extra
            baggage. I don’t need those.

      On redirect examination, Dr. Martin explained that before ―the first

hearing,‖2 he had talked to E.F. and told her that he would continue to be her



      2
      The record from that hearing is not in the record before us.

                                        6
doctor until that hearing. He testified that after that hearing, he went to her room

and told her the name of her new psychiatrist. According to Dr. Martin,

      she said, ―Well, wait a minute. I’m still thinking about that. Let’s
      don’t do that yet.‖ And so that’s kind of where it remained until about
      three or four days ago, when I received a telegram, I believe, from
      [E.F.] saying, ―Don’t you remember, you are not -- you are no longer
      my physician?‖ And so I’m open to whatever is decided as far as
      that’s concerned.

      E.F. then spoke, ―Your Honor, I do not want another psychiatrist at Red

River Hospital. I do not want to be at that hospital again.‖ Dr. Martin then

continued his explanation to the trial court: ―We spoke with [E.F.] about this

matter this morning, and tried to explain that Dr. Gonzales . . . does not have

privileges at Red River Hospital, and so any change of physician would have to

be somebody who had admitting and clinical privileges at Red River.‖

      After the doctor finished his answer, the following transpired:

      THE COURT: Okay.

      THE PATIENT: Doctor, the physicians—the conditions at Red River
           Hospital are objectionable to me. They take me to a shower,
           put me in a storage room, and leave me there to wait, then
           take me to a room where the toilet hasn’t been cleaned in
           weeks, and there’s excreta in the commode. And I’m
           supposed to take a shower in that bath. Now, I don’t think I
           have to put up with that. I don’t want that kind of a hospital.

      After hearing the above testimony, the trial court found on the record that

E.F. lacked ―the mental capacity to make informed treatment [decisions] as to the

medication‖ and found that such treatment with medications in the classes of

antidepressants, antipsychotics, anxiolytics, sedatives, hypnotics, and mood



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stabilizers was in E.F.’s best interest. At the conclusion of the court’s findings,

E.F. stated that she was going to appeal the trial court’s findings.

                              III. STANDARD OF REVIEW

      Clear and convincing evidence is ―that measure or 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. K.E.W., 315 S.W.3d 16, 20

(Tex. 2010). Evidence that merely exceeds a scintilla is not legally sufficient

when the burden of proof is clear and convincing. Id. In evaluating evidence for

legal sufficiency under a clear and convincing standard, we review all the

evidence in the light most favorable to the finding to determine whether a

reasonable factfinder could have formed a firm belief or conviction that the

finding was true. Id. We resolve disputed fact questions in favor of the finding if

a reasonable factfinder could have done so, and we disregard all contrary

evidence unless a reasonable factfinder could not have done so. Id.

                                IV. SUBSTANTIVE LAW

      Section 574.106 of the health and safety code governs this type of

proceeding and related order. The statute provides in relevant part,

      (a) The court may issue an order authorizing the administration of
      one or more classes of psychoactive medication to a patient who:

            (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:



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            (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.


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                   V. LEGALLY INSUFFICIENT EVIDENCE TO SUPPORT
                         FINDING THAT E.F. LACKS CAPACITY

      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

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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


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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.




                                                    SUE WALKER
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DAUPHINOT, J. dissents without opinion.

DELIVERED: December 9, 2011


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