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People v. In re C.J.R.

Court of Appeals of Colorado, Fifth Division

September 8, 2016

The People of the State of Colorado, Petitioner-Appellee,
v.
In the Interest of C.J.R., Respondent-Appellant.

         City 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 Petitioner-Appellee

          Culwell Law LTD, Jonathan B. Culwell, Lakewood, Colorado, for Respondent-Appellant

          OPINION

          BERGER JUDGE

         ¶ 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 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 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, 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.[4]

         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).

         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.

         ¶ 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 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.[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 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. § 27-65-101(2).

         ¶ 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 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 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 M ...


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