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


                                     50
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.




                                 51
