and County of Denver Probate Court No. 92MH609 Honorable
Ruben M. Hernandez, Magistrate
Cristal Torres DeHerrera, Interim County Attorney, Michael J.
Stafford, Assistant County Attorney, Denver, Colorado, for
Culwell Law LTD, Jonathan B. Culwell, Lakewood, Colorado, for
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" 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.
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 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
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. 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 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"
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, 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 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.
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).
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
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.
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. Thus, under these 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 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
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.
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
https://perma.cc/TB5Q-JTC2 (Testosterone "stimulates the
development of male 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 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 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 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
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). While by no means dispositive, the fact
that the General Assembly declined to authorize 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. This expansive
view also conjures up visions of 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.
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 M ...