April 24, 2014
The People of the State of Colorado, Petitioner-Appellee, In the Interest of Larry Wayne Marquardt, Respondent-Appellant
County District Court No. 14MH8. Honorable William D.
J. Styduhar, County Attorney, David A. Roth, Special
Assistant County Attorney, Pueblo, Colorado, for
Firm of John L. Rice, John L. Rice, Pueblo, Colorado, for
by JUDGE ASHBY. Richman, J., concurs. Casebolt, J., concurs
in part and dissents in part.
[¶1] Respondent, Larry Wayne Marquardt,
appeals from the trial court's order authorizing the
involuntary administration to him of antipsychotic
medication. We reverse.
[¶2] Mr. Marquardt was committed to the
Colorado Mental Health Institute at Pueblo (CMHIP) after
having been found not guilty by reason of insanity in a
criminal case. He has been diagnosed with schizoaffective
disorder, bipolar type, with prominent paranoia.
[¶3] Since arriving at CMHIP, Mr. Marquardt
has been voluntarily taking ten milligrams of Saphris, an
antipsychotic medication, once a day. The People petitioned
the court to slowly increase the dosage to 20 milligrams per
day because he refused to take any dosage above 10 milligrams
per day, and his psychiatrist felt that the medication was
not effective at that dosage.
[¶4] After a hearing, at which both the
psychiatrist and Mr. Marquardt testified, the court ordered
that the dosage of this medication could be increased over
[¶5] Mr. Marquardt appeals.
[¶6] Mr. Marquardt contends that the trial
court erred in applying the elements established in
People v. Medina, 705 P.2d 961 (Colo. 1985) to the
facts of this case.
[¶7] As a matter of first impression, we
must first decide whether Medina is applicable to a
nonemergency request to increase antipsychotic medication
dosage over a patient's objection. We conclude that it
is. We also agree with Mr. Marquardt that the trial court
applied an incorrect legal standard in deciding that the
evidence presented supported a finding under Medina
that an increased dose of his antipsychotic medication is
necessary to prevent a significant and likely long-term
deterioration in his mental condition.
[¶8] In Medina, the supreme court
found that a patient has a right under both common law and
Colorado's statutory scheme relating to involuntary
commitment to refuse unwanted treatment that could result in
serious and permanent disabilities. Id. at 971. The
court noted that the common law had long protected a
person's right to personal autonomy and bodily integrity.
This protection was founded upon the principle that the
individual is best suited to weigh the risks and benefits of
treatment and to decide what the best course of treatment is
for him or her. Id. at 968.
[¶9] However, the Medina court held
that an involuntarily committed patient's right to
autonomy and bodily integrity is not absolute. There are
legitimate state interests in providing care to the patient
and security to others, which must also be considered.
Id. at 971.
[¶10] The procedural protections and
standards established in Medina therefore sought to
accommodate the following considerations: (1) the
patient's right to participate in treatment decisions
affecting his own body; (2) the state's legitimate
interests in providing treatment to a patient placed in its
charge; and (3) safeguarding patients, staff, and others in
the treatment facility. Id. at 972. Due to the
potentially long-term and debilitating effects of
antipsychotic medication, the development of guidelines to
ensure that courts would weigh each of these interests before
ordering the administration of such medication over a
patient's objection was warranted.
[¶11] The Medina considerations
apply equally to a patient's objection to an increase in
the dose of antipsychotic medication as to an objection to
take medication at all. Therefore, we discern no legal basis
on which to distinguish between an objection to taking an
increased dose of medication and an objection to taking
medication at all. We now address Mr. Marquardt's
specific contentions of error.
[¶12] Reviewing a trial court's
application of the Medina elements to the facts of a
particular case presents a mixed question of law and fact.
People in Interest of Strodtman, 293 P.3d 123, 131
(Colo.App. 2011). Thus, we defer to the trial court's
findings of fact if supported by the record and review its
legal conclusions de novo. Id.
[¶13] Under Medina, a physician
seeking to administer antipsychotic medication to a patient
must prove, 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.
705 P.2d at 973; see also §
27-65-127(2)(a)-(b), C.R.S. 2013 (a court may deprive a
person of a legal right only if it finds that (a) the person
has a mental illness and is a danger to himself or herself or
others, is gravely disabled, or is insane; and (b) the
requested deprivation is both necessary and desirable).
[¶14] " Clear and convincing evidence
is evidence persuading the fact finder that the contention is
highly probable." People in Interest of A.J.L.,
243 P.3d 244, 251 (Colo. 2010) (" The clear and
convincing evidence standard requires proof by more than a
'preponderance of the evidence,' but it is more
easily met than the 'beyond a reasonable doubt'
standard used in criminal proceedings." ).
[¶15] Although Mr. Marquardt challenges the
trial court's application of each of the Medina
elements to the evidence presented here, he primarily argues
the second element. The parties agree, and the trial court
found, that, within that element, there was no basis to find
that Mr. Marquardt posed a risk of harm to himself or others
at the time of the hearing. Instead, the issue is whether,
absent the increased dosage, Mr. Marquardt will suffer a
significant and likely long-term deterioration to his mental
[¶16] Mr. Marquardt's primary objection
to taking an increased dosage is his belief that there is a
risk of serious side effects, such as tardive dyskinesia --
involuntary muscle movements that can become permanent. Mr.
Marquardt signed releases of information for his
psychiatrists to access his prior medical history; yet, as of
the hearing date, medical records to substantiate Mr.
Marquardt's self-reported negative side effects from
medication had not yet been received by his psychiatrists.
The record does not show that Mr. Marquardt has suffered the
serious side effects of which he is concerned. To the
contrary, in clinical use, any serious side effects
associated with Saphris have not been reported. Still, Mr.
Marquardt distrusts his treating psychiatrists, in part due
to his mental illness; has independently researched various
medications and their side effects; and has difficulty
effectively discussing treatment options with them.
[¶17] Mr. Marquardt's treating
psychiatrist testified that, at the current dosage, Saphris
is only partially therapeutic, as it is not treating all of
Mr. Marquardt's symptoms. Even so, Mr. Marquardt is
stable at this dosage, is participating in therapy groups and
other treatment, has been cooperative with staff, complies
with the rules of the unit, and has obtained the highest
behavioral level on the ward.
[¶18] The trial court found that, while Mr.
Marquardt had previously exhibited violent behavior, since
his admission to the facility, the extent of his violent
behavior was that he had been argumentative with staff. The
psychiatrist noted that there had been a " continuous
de-compensation and deterioration over time" in Mr.
Marquardt's mental health when looking back at his mental
health history over the last thirty years; he did not
adequately explain how, on the current medication and dosage,
Mr. Marquardt will further deteriorate over time. Rather, his
testimony and affidavit both suggest that, although Mr.
Marquardt may be unlikely to continue to improve or to be
released to a less restrictive facility at the current
dosage, at this time he does not see any indication that Mr.
Marquardt will either refuse to participate in treatment or
experience a significant and long-term deterioration if his
dosage is not increased. The trial court's findings and
order also recognize that Mr. Marquardt is not deteriorating
at his current dosage, but that without the increased dose of
medication, his symptoms and overall mental condition may not
improve and he might not be released from the hospital.
[¶19] We acknowledge that Medina
may be too restrictive in limiting judicial power to order
medication over a patient's objection to circumstances
that (1) prevent long-term deterioration or (2) present a
danger to the patient or others in the facility. A third
circumstance, when appropriately balancing the state's
and patient's interests, may include when, without
medication or an increase in dosage, the patient is unable
over time to effectively progress or benefit from treatment.
[¶20] But the plain language in
Medina, which permits court-ordered medication to
prevent long-term deterioration, does not include the ability
to order medication solely to improve or expedite a
patient's participation in treatment or likelihood of
release, however laudable those goals may be. See
People v. Allen, 111 P.3d 518, 520 (Colo.App. 2004)
(the court of appeals is bound by decisions of the supreme
court). To the contrary, the supreme court found that the
probate court's determination that there would be
positive effects on the patient's treatment from the
medication to be a substantially different holding than a
determination that administration of medication was necessary
to prevent a significant and likely long-term deterioration
of the patient's medical condition. Medina, 705
P.2d at 975 (" [T]he [probate] court made no
determination that the antipsychotic medication was necessary
to prevent a significant and likely long-term deterioration
of the patient's medical condition. Rather, the probate
court turned its discussion on the fact that the respondent
'will most probably experience less anxiety' from the
regular administration of the medication and will most likely
be removed to a less restrictive environment upon his
[¶21] Although the evidence supports the
trial court's finding that Mr. Marquardt is unlikely to
improve at the current dosage, that is not the correct legal
standard under Medina. Thus, the trial court erred
by ordering an increased dose of antipsychotic medication to
Mr. Marquardt over his objection. Cf. Donaldson
v. Dist. Court, 847 P.2d 632, 635 (Colo. 1993);
Strodtman, 293 P.3d at 133; People v.
Pflugbeil, 834 P.2d 843, 847 (Colo.App. 1992). In light
of this conclusion, we need not address Mr. Marquardt's
remaining contentions of error.
[¶22] The order is reversed.
CASEBOLT concurs in part and dissents in part.
BY: CASEBOLT (In Part)
CASEBOLT, concurring part and dissenting in part.
[¶23] I fully concur with the majority's
conclusion that the principles articulated in People v.
Medina, 705 P.2d 961, 973 (Colo. 1985), apply in
determining whether an increase in medication dosage over a
respondent's objection may be ordered by a court. I part
company with the majority, however, in its determination that
the trial court misapplied the " deterioration"
element set forth in Medina in finding that the
increase for respondent, Larry Wayne Marquardt, was necessary
to prevent a significant and likely long-term deterioration
in his mental condition. In my view, the majority interprets
that factor in too restrictive a manner and without
sufficient regard for the full test that Medina
directs. Accordingly, I respectfully dissent from the
majority's reversal of the trial court's order
authorizing an increase in the dosage of the medication
Marquardt was voluntarily taking.
[¶24] In Medina, the court
articulated a four-part test for trial courts to apply in
determining whether to order the administration of
antipsychotic medication against the wishes of a mentally ill
person. The pertinent part of the test that is at issue here
is whether the proposed treatment is " necessary to
prevent a significant and likely long-term deterioration in
the patient's mental condition." Id. The
majority holds that the trial court's interpretation and
application of that standard to the facts is erroneous. But
in doing so, the majority fails to consider the complete
The determin[ation] whether the proposed treatment is
necessary . . . to prevent a significant and likely long-term
deterioration in the patient's mental condition . . . .
involves a consideration of two alternative factors. The
first is the patient's actual need for the medication.
[T]he court should focus on the nature and gravity of the
patient's illness, the extent to which the medication is
essential to effective treatment, the prognosis without the
medication, and whether the failure to medicate will be more
harmful to the patient than any risks posed by the
medication. The alternative factor involves the issue of
[¶25] The majority, in my view, fails to
recognize and apply the noted factors and instead views
" deterioration" in isolation, noting that
Marquardt is stable on his current dosage. It also holds that
the deterioration factor does not include the ability to
order medication solely to improve a patient's condition
or his participation in treatment. In doing so, the majority
ignores the nature and gravity of Marquardt's illness,
the extent to which the increased dosage is essential to his
effective treatment, and his prognosis without the increased
dosage. It also fails to consider whether the failure to
medicate Marquardt will be more harmful than the risks posed
by the medication. Employing those elements here, the
following evidence supports the trial court's conclusion
that the increased dosage was necessary to prevent a
significant long-term deterioration in Marquardt's mental
[¶26] The treating psychiatrist tendered an
affidavit to the court, which included a copy of his
seventeen-page psychiatric assessment. In the affidavit, the
psychiatrist opined that all the information submitted "
documents clearly that [Marquardt] is continuing to
deteriorate in his level of functioning, using his
considerable intelligence to work against any treatment plans
that mean to change his thinking. He is profoundly
mistrustful of treatment professionals." The
psychiatrist went on to state that Marquardt's "
medication has been only partially effective in stabilizing
his psychosis and reducing his violence and threats. . . . I
am now trying to determine whether Saphris will be effective
in controlling his illness and cannot do so until I raise his
dosage above his current dosage." The psychiatrist
documented his consultation with a clinical pharmacist and
noted that half of the patients at the Colorado Mental Health
Institute in Pueblo (CMHIP) who were taking Saphris found a
ten milligram dose a day effective in helping control the
illness and the other half required fifteen or twenty
milligrams a day before it became effective.
[¶27] The psychiatrist then set forth his
diagnosis of Marquardt and discussed how the current ten
milligram dose of Saphris was not controlling Marquardt's
Mr. Marquardt is showing Persecutory Delusions along with
Grandiose Delusions that prevent him from learning from
reality experience and teaching. He also previously showed
command auditory hallucinations that were part of his Instant
Offense and which are, now, partially controlled with his
current dose of Saphris. He believes he can make the same
judgments physicians make, by virtue of his readings. Indeed,
he denies he has a mental illness and cannot grasp that
medications can prevent his illness from leading to violence.
[¶28] The psychiatrist then opined that the
increase in dosage was necessary to prevent the significant
and long-term deterioration in Marquardt's mental
condition and to prevent the likelihood of causing serious
harm to others in the institution. He concluded the affidavit
by noting that he had advised Marquardt that if he did not
take the medications, the adverse effects would be dangerous
behavior, paranoid delusions of persecution and grandiosity,
personality deterioration, institutionalization, and
inability to gain discharge to the community.
[¶29] At the hearing, the psychiatrist noted
that Marquardt had been admitted to CMHIP with a thirty-year
mental illness and a history of violence, and that his latest
incident involving violence was an attack upon his mother,
which had precipitated an attempted murder charge. According
to Marquardt, she had been harassing him, and " he g[ot]
electronic transmissions that tell him that his members of
his family are harassing him." He had been adjudicated
not guilty by reason of insanity. The psychiatrist also noted
that Marquardt had previously been hospitalized, but had been
able to be discharged when he was court-ordered to take
[¶30] The psychiatrist testified that
Marquardt had accepted a ten-milligram dose of Saphris, but
opined that this dosage was " subtherapeutic, because
he's only partially responding to this medication. And
he's been on it for many months." He further
testified that he did not believe Marquardt had reached
therapeutic benefit from the current dose because " he
continues to deny that he is mentally ill." He opined,
based on the psychiatric assessment, his affidavit, and the
other reports he had viewed and submitted, that in the
absence of the ability to treat Marquardt with Saphris up to
twenty milligrams per day, Marquardt would have a significant
and likely long-term deterioration in his mental condition
because " there has been continuous de-compensation and
deterioration over time, in this patient."
[¶31] During cross-examination, the
psychiatrist testified that Marquardt's illness was
" only going to get worse, the longer it goes untreated.
And this treatment that he's got now is partially
effective . . . . He takes medications just because he
doesn't want to have to deal with the voices. And the . .
. medication does make the voices go away. So he stays only
on that level. And his delusions prevent him from going any
further in admitting that he is ill."
[¶32] Upon completion of cross-examination,
the court questioned the psychiatrist, asking, "
You'd indicated that he had not deteriorated since
he's been here. Do you have any reason to believe that
he's going to deteriorate further, if he doesn't have
the increase in medication?" The witness responded:
[M]y view is that he arrived in a deteriorated condition. And
he is so intelligent that he is able to function reasonably
well, while in a hospital, under protected structure, and
that the structure helps him function. But his level of
function is still not where it needs to be, for him to be
moved forward, or to benefit from the groups that he's
going to, and learning what he needs to know, in order to
eventually be released. And so, the deterioration is
manifested by continuing delusions of persecution and
grandiosity that control his thinking, while the
hallucinations appear to be absent at this point. The
delusions are still present. And that is the sign of
deterioration I am concerned about.
the court inquired, " But there's no evidence that
he's going to get worse, than he is, right now?" the
witness replied, " I can't say that he's going
to get worse at this point. He may be able to hold it
[¶33] The majority relies upon these latter
statements responding to the court's questions for its
conclusion that the court misinterpreted and misapplied the
" deterioration" portion of the Medina
test. But considering the nature and gravity of
Marquardt's illness, the extent to which the increase in
medication is essential to his effective treatment, his
prognosis without the medication, and that the failure to
increase the dosage will likely be more harmful to Marquardt
than the slight risk of tardive dyskinesia, in my view the
court correctly interpreted and applied the deterioration
factor. Indeed, when considering the issue of physical
safety, which is another factor in the deterioration test,
the psychiatrist's testimony supports the view that
Marquardt may be a greater risk to the physical safety of
others in CMHIP on the lower dose of medication.
[¶34] In sum, the majority's conclusion
fails to consider all the Medina "
deterioration" elements, and could lead to unintended
consequences. Essentially if, as here, a treating
psychiatrist starts a patient on a dosage of medication that
fails to yield optimal therapeutic results, the
majority's understanding of the "
deterioration" criterion could prevent any increase in
the chosen medication dosage. I do not view that
interpretation to be sound.
[¶35] Although the majority does not (and
need not) discuss the remaining Medina factors, I
conclude that the People presented sufficient clear and
convincing evidence to satisfy the remaining factors.
Therefore, I respectfully dissent from the majority's
reversal of the order.