Peo in Interest of SD

24CA1507 Peo in Interest of SD 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1507
Jefferson County District Court No. 24MH385
Honorable Bryce David Allen, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of S.D.,

Respondent-Appellant.

ORDER AFFIRMED IN PART AND REVERSED IN PART

Division I
Opinion by JUDGE LIPINSKY
J. Jones and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Kym Sorrells, County Attorney, Jennifer Mullenbach, Deputy County Attorney,
Katherine R. Carroll, Assistant County Attorney, Golden, Colorado, for
Petitioner-Appellee

Tezak Law, P.C., Mary Tezak, Florence, Colorado, for Respondent-Appellant
¶1 Respondent, S.D., appeals a magistrate’s order authorizing

short-term care and treatment under section 27-65-109, C.R.S.

2024, and authorizing the involuntary administration of five

antipsychotic, two antianxiety, and two side effect medications.

¶2 S.D. contends that the evidence is insufficient to support the

order. We agree that the evidence does not support the order

authorizing the involuntary administration of fluphenazine,

olanzapine, paliperidone, diazepam, and lorazepam. Therefore, we

reverse the portion of the order authorizing the involuntary

administration of those five medications. In all other respects, we

reject S.D.’s arguments and affirm.

I. Background

¶3 Forty-eight-year-old S.D. resided with her parents. Family

members called authorities in Jefferson County asserting “concern

for safety due to [S.D.’s] prominent delusions that her brother and

[sister-in-law were] stealing from her” and reporting that S.D. was

“hyperverbal and extremely irritable.”

¶4 Police brought S.D. to the Jefferson County Center for Mental

Health for an evaluation. S.D. was placed on a mental health hold

and admitted to Centennial Peaks Hospital on August 7, 2024. Dr.

1
Michael Chamberlain, a psychiatrist at the hospital, was assigned

as S.D.’s attending psychiatrist. He diagnosed her with

schizophrenia.

¶5 On August 9, 2024, Dr. Chamberlain filed a notice of

certification and certification for short-term treatment, in which he

said that S.D. was gravely disabled. He sought authorization to

involuntarily treat S.D. with several antipsychotic, mood stabilizing,

antianxiety, and side effect medications. An assistant county

attorney entered her appearance on behalf of the People of the State

of Colorado, and the court appointed counsel for S.D. The court set

a hearing on Dr. Chamberlain’s notice for August 19, 2024.

¶6 Following the evidentiary hearing, at which both Dr.

Chamberlain and S.D. testified, the magistrate entered a written

order certifying S.D. for short-term care. The magistrate found by

clear and convincing evidence that S.D. had a mental health

disorder; was gravely disabled; and had been offered, but had

refused, voluntary treatment. The magistrate also found that the

People had established all four of the elements for the involuntary

administration of medication set forth in People v. Medina, 705 P.2d

2
961, 973 (Colo. 1985), and, accordingly, ordered the administration

of the requested medications to S.D. against her will.

II. Discussion

¶7 S.D. challenges the sufficiency of the evidence supporting the

order. In particular, she contends the evidence was insufficient to

support the magistrate’s findings that (1) she was gravely disabled

and (2) the first and third Medina elements were met. We address

each contention in turn.

A. Standard of Review

¶8 When a party challenges the sufficiency of the evidence, we

review the record as a whole and, viewing it in the light most

favorable to the People, determine whether the evidence is sufficient

to support the court’s decision. People in Interest of Ramsey, 2023

COA 95, ¶ 23, 412 P.3d 827, 1204. We review de novo the court’s

conclusions of law and defer to the court’s findings of fact,

including the weight and credibility afforded to the witnesses, if

supported by the record. People in Interest of Strodtman, 293 P.3d

123, 131 (Colo. App. 2011); People in Interest of C.A.K., 652 P.2d

603, 613 (Colo. 1982). “The district court, as fact finder, ‘has

discretion to determine the credibility of the witnesses; the

3
sufficiency, probative effect, and weight of the evidence; and the

inferences and conclusions to be drawn from it.’” People in Interest

of R.C., 2019 COA 99M, ¶ 7, 451 P.3d 1229, 1231 (quoting People in

Interest of S.M.A.M.A., 172 P.3d 958, 962 (Colo. App. 2007)).

B. Certification for Short-Term Treatment

¶9 Section 27-65-109(1)(a) provides, in pertinent part, that a

person with a mental illness “may be certified for not more than

three months for short-term treatment” if

[t]he professional staff of the facility detaining
the person on an emergency mental health
hold has evaluated the person and has found
the person has a mental health disorder and,
as a result of the mental health disorder, is a
danger to the person’s self or others or is
gravely disabled.

¶ 10 The person or facility seeking to detain another for mental

health care and treatment has the burden of proving by clear and

convincing evidence that the subject person “has a mental health

disorder and, as a result of the mental health disorder, is a danger

to [the person’s] self or others or is gravely disabled.”

§ 27-65-113(1), C.R.S. 2024. Evidence is clear and convincing

when it “persuades the trier of fact that the truth of the contention

4
is ‘highly probable.’” People v. Taylor, 618 P.2d 1127, 1136 (Colo.

1980) (quoting Page v. Clark, 592 P.2d 792, 800 (Colo. 1979)).

¶ 11 S.D. challenges the magistrate’s finding that she is gravely

disabled. As relevant here, “gravely disabled” means

a condition in which a person, as a result of a
mental health disorder, is incapable of making
informed decisions about or providing for the
person’s essential needs without significant
supervision and assistance from other people.
As a result of being incapable of making these
informed decisions, a person who is gravely
disabled is at risk of . . . significant psychiatric
deterioration . . . that could result in
substantial bodily harm.

§ 27-65-102(17), C.R.S. 2024. The supreme court has explained

that a person is gravely disabled if the person is unable to take care

of her basic personal needs, such as food, shelter, clothing, and

medical care. Taylor, 618 P.2d at 1134.

¶ 12 The magistrate found that S.D. is gravely disabled because she

is unable to make “informed decisions about providing for her

essential needs without significant supervision and assistance,

which may lead to significant psychiatric deterioration.” The record

supports these findings.

5
¶ 13 At the hearing, Dr. Chamberlain testified that S.D. is not

capable of taking care of her essential needs without significant

assistance. He said that S.D.’s psychosis is “severe,” it had “been

progressive over the past several months,” and it had “jeopardized

her housing” and “her relationship with everyone [who had tried] to

support her.” As an example of S.D.’s symptoms of psychosis, she

expressed concern to Dr. Chamberlain that, like her family

members, he was stealing patents she owned. Dr. Chamberlain

described the concerns of S.D.’s family and said that family

members “filed a protective order against her so she cannot return

to her former place of living.”

¶ 14 Despite S.D.’s assertion that the evidence was insufficient

because Dr. Chamberlain “did not offer any testimony regarding her

ability to take care of personal needs,” the record shows that S.D. is

unable to provide for her own basic personal needs, especially as

they relate to her medical care. Dr. Chamberlain testified that S.D.

does not believe she has schizophrenia and, although she is willing

to take her antiseizure medications, she is unwilling to accept any

“mental health treatment.”

6
¶ 15 Dr. Chamberlain also testified it was his opinion that, without

treatment, S.D.’s mental health “would continue to deteriorate.” He

explained that, because psychosis “is self-perpetuating, . . . the

longer [S.D.] spends with this delusional content that’s prominent,

the more likely . . . [she] is to have an episode in the future and the

more severe that episode will be.” He also testified that, “in her

case there’s no signs that it will abate without medication, so [he]

imagine[s] it would just be a more progressive deterioration.” S.D.

did not present any medical evidence to contradict Dr.

Chamberlain’s opinions.

¶ 16 “Mental health statutes must be strictly construed because of

their curtailment of personal liberty.” People in Interest of Schmidt,

720 P.2d 629, 630 (Colo. App. 1986); see also People in Interest of

Dveirin, 755 P.2d 1207, 1209 (Colo. 1988) (“Because of the

curtailment of personal liberty which results from certification of

mental illness, strict adherence to the procedural requirements of

the civil commitment statutes is required.”). However, where, as

here, the magistrate’s findings are supported by the record, we

must defer to them on review. See Ramsey, ¶ 38, 541 P.3d at 1206.

Accordingly, viewed in the light most favorable to the People, we

7
conclude that sufficient evidence supports the magistrate’s finding

that S.D. is gravely disabled.

C. Involuntary Administration of Medication

¶ 17 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.

Medina, 705 P.2d at 973.

¶ 18 S.D. contends that the evidence presented at the hearing was

insufficient to support the involuntary medication order. While she

concedes that sufficient evidence established that the second and

fourth Medina elements were satisfied, she asserts that insufficient

evidence established the first and third elements. We consider each

of these disputed elements in turn.

8
1. Incompetence to Effectively Participate

¶ 19 First, we address, and reject, S.D.’s contention that the

evidence was insufficient to prove the first Medina element — that

she is incompetent to effectively participate in the treatment

decision.

¶ 20 At the hearing, the magistrate found, by clear and convincing

evidence, that “[t]here is an ongoing cycle of psychosis”; S.D. is

“currently not participating [in her treatment]”; and “although very

articulate, she is incompetent at this time to effectively participate

in her treatment decision.” The record supports the magistrate’s

findings.

¶ 21 Dr. Chamberlain testified that he did not believe S.D. was

capable of effectively assisting in her treatment. He explained that

he attempted to discuss S.D.’s proposed treatment with her but

that she was not “willing to participate in that conversation” and

“hasn’t really been perceptive to any sort of care [he is] able to

provide.” Dr. Chamberlain explained that S.D. “seems to think [he

is] involved in this conspiracy” with her family to steal her patents.

¶ 22 In addition, he testified that, whenever he attempted to talk to

S.D. about possible treatment medications, she “quickly

9
interrupt[ed] [him] and [told him] that she can’t take them because

she wants to work as a [certified nursing assistant (CNA)].” Dr.

Chamberlain said he understood that S.D. had “not yet worked as a

CNA” but noted that “none of [the requested] medications would

limit her ability to do so.” Moreover, he opined that, “considering

the prevalence of the paranoia, [the requested medications] would

almost certainly be necessary for her to be in that role.”

¶ 23 We are not persuaded by S.D.’s suggestion that, because she

was able to testify “at length” regarding the medications she had

tried in the past — identifying them by name and stating their

purpose — she is competent to effectively participate in the

treatment decisions. The first Medina element does not simply ask

whether a patient has the ability to “articulate his or her

preferences” in regard to treatment. Strodtman, 293 P.3d at 132.

Rather, it asks whether the patient is competent to effectively

participate in the treatment decision. Medina, 705 P.2d at 973. “To

participate effectively contemplates action in addition to words.”

Strodtman, 293 P.3d at 132.

¶ 24 Accordingly, we conclude that the record supports the

magistrate’s finding that S.D. is “incompetent to effectively

10
participate in the treatment decision.” Medina, 705 P.2d at 973;

People v. Pflugbeil, 834 P.2d 843, 847 (Colo. App. 1992).

2. Less Intrusive Alternative

¶ 25 Next, we address S.D.’s contention that the evidence was

insufficient to prove the third Medina element — that a less

intrusive treatment alternative is not available. Medina, 705 P.2d at

973. S.D. asserts that Dr. Chamberlain requested numerous

medications “with the intent of experimenting with them to

determine which is the most effective” and that a less intrusive

treatment alternative would require Dr. Chamberlain to specify

which medications he believes should be prescribed. We agree with

S.D., in part.

¶ 26 The third Medina 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.” 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

11
treatment.” Strodtman, 293 P.3d at 133 (quoting Medina, 705 P.2d

at 974).

¶ 27 Dr. Chamberlain requested authorization to administer

involuntarily five antipsychotic medications, two antianxiety

medications, and two side effect medications. He testified that an

antipsychotic medication was necessary to “treat the specific ways

in which [S.D. had] lost touch with reality,” to decrease the

prominence of her delusions, and to avoid more severe episodes in

the future.

¶ 28 In discussing the five requested antipsychotic medications, Dr.

Chamberlain testified that he “would start” with aripiprazole

“because it has [a] lower risk of medical . . . side effects,” about

which S.D. is particularly worried. He explained that aripiprazole

can be administered orally or as a long-acting injectable. However,

because he did not want to administer a long-acting injectable until

he confirmed that S.D. could tolerate the medication, he also

requested approval to administer haloperidol, a short-acting

injectable that would only be administered if S.D. refused to take

aripiprazole orally.

12
¶ 29 In light of the evidence establishing the efficacy of aripiprazole

to treat S.D.’s mental illness, we conclude there is sufficient

evidence to support the magistrate’s findings that there is no less

intrusive alternative treatment than the administration of

aripiprazole. Further, because aripiprazole and haloperidol are

substitutes for each other in that they are administered differently

— and because S.D. would need haloperidol if she refused to take

aripiprazole — the record supports the magistrate’s finding that

there is no less intrusive alternative to authorizing the involuntary

administration of haloperidol and aripiprazole.

¶ 30 Further, Dr. Chamberlain testified that he requested two side

effect medications, benztropine and diphenhydramine, to treat any

side effects S.D. might experience from the antipsychotic

medications. However, Dr. Chamberlain did not explain which

medication would be appropriate to treat the potential side effects

resulting from administration of haloperidol or aripiprazole

specifically. Therefore, we affirm the order authorizing the

administration of benztropine and diphenhydramine, but only to

the extent that (1) S.D. develops side effects from aripiprazole or

haloperidol and (2) S.D.’s treating physicians believe that

13
benztropine or diphenhydramine (or both) would be appropriate to

treat those side effects.

¶ 31 We reach different conclusions as to the remaining requested

medications — fluphenazine, olanzapine, paliperidone, diazepam,

and lorazepam.

¶ 32 Dr. Chamberlain testified that, while olanzapine is “[t]he most

effective [antipsychotic] med[ication] on [the] list,” he would “not

start with [it] because of [S.D.’s] metabolic concerns” regarding her

possible prediabetic condition. Significantly, Dr. Chamberlain did

not provide substantive testimony regarding fluphenazine (which

appears in the hearing transcript as “phenazine”) or paliperidone.

He referred to phenazine only once, in his listing of the medications

for which he was requesting authorization to administer to S.D.

involuntarily. Dr. Chamberlain similarly said next to nothing about

paliperidone.

¶ 33 In addition, he explained that diazepam and lorazepam, the

two requested antianxiety medications, “lower the volume of

agitation and irritability” and, while S.D. “has not been an

imminent threat to herself or others[,] . . . . when people are

compelled to take medications, oftentimes their behavior

14
deteriorates in the short term before it improves, so these

medications are to treat that.” But the People did not present any

evidence regarding the likelihood that S.D. would experience

agitation or irritability if and when compelled to take haloperidol

and aripiprazole or that S.D. had ever needed antianxiety

medications.

¶ 34 While it may seem prudent to have a court-approved plan in

place if certain medications do not have their desired effect, or to

protect against unanticipated reactions the patient may experience,

divisions of this court have consistently held that Medina does not

allow courts to authorize a backup plan for the involuntary

administration of additional medications in the absence of a specific

articulable concern that the approved medications will be

ineffective. See People in Interest of R.C., ¶¶ 14, 16, 451 P.3d at

1232 (finding that ordering the administration of one medication,

which would have the desired effect, was a “less intrusive

alternative” than ordering the possible administration of six

medications, given the doctor’s testimony that the patient did not

need all six at the time of the hearing, and may not need them in

the future); cf. People in Interest of R.K.L., 2016 COA 84, ¶ 44, 412

15
P.3d 827, 837 (holding that “mere speculation that [the patient]

might need these medications in the future . . . . did not prove that

[the patient’s] prognosis without treatment by . . . ten antipsychotic

medications” was sufficiently problematic to satisfy the fourth

Medina factor).

¶ 35 Based on the record before us, it appears that Dr.

Chamberlain failed to articulate such a concern for S.D. For this

reason, we conclude that the magistrate erred by finding that the

People established by clear and convincing evidence that no less

intrusive treatment alternative exists for the involuntary

administration of olanzapine, diazepam, and lorazepam.

¶ 36 Moreover, because the People produced no evidence regarding

the efficacy or possible side effects of treating S.D. with

fluphenazine or paliperidone, it was not possible for the magistrate,

and it is not possible for us, to “determine whether such

medications meet the requirements for a finding of no less intrusive

alternative.” Id. at ¶ 40, 412 P.3d at 836.

¶ 37 Accordingly, we conclude that the record does not support the

magistrate’s determination regarding the involuntary administration

of fluphenazine, olanzapine, paliperidone, diazepam, or lorazepam.

16
However, we conclude that the record supports the magistrate’s

finding that a less intrusive treatment alternative is not available as

to the involuntary administration of aripiprazole and haloperidol.

Further, the record supports part of the magistrate’s finding

regarding benztropine and diphenhydramine: those medications

may be involuntarily administered to S.D. if she experiences side

effects from aripiprazole and haloperidol that, in the opinion of her

treating physicians, can be treated with benztropine or

diphenhydramine (or both).

III. Disposition

¶ 38 The order is reversed to the extent it authorizes the

involuntary administration of fluphenazine, olanzapine,

paliperidone, diazepam, and lorazepam. To the extent S.D.

experiences side effects from the administration of aripiprazole or

haloperidol, and if her treating physicians believe that benztropine

or diphenhydramine (or both) can address those side effects, the

order is affirmed as to the involuntary administration of benztropine

and diphenhydramine. The order is affirmed in all other respects.

JUDGE J. JONES and JUDGE SULLIVAN concur.

17