THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF K.S.
Appeal from Probate Court No. 3 Harris County, Texas Trial
Court Cause No. I253315
consists of Justices Wise, Jewell and Poissant.
MARGARET "MEG" POISSANT, JUSTICE
K.S., appeals an order for temporary inpatient mental health
services and an order authorizing administration of
psychoactive medication. See Tex. Health &
Safety Code §§ 574.034; 574.106(a)(1). Appellant
contends the evidence is legally and factually insufficient
to support both orders. We affirm.
and Procedural Background
records reflect this proceeding arises from appellant's
second admission to Harris County Psychiatric Center
("HCPC"). Following appellant's release after
his first admission to HCPC, appellant was not compliant with
his aftercare treatment.
is a 30-year-old male from Nepal. He attended college in the
United States and graduated with a degree in engineering.
Appellant was working as a design engineer until the company
told him "to take time off." Prior to that,
appellant had been continuously and successfully employed.
Appellant is indigent, with no income or savings or insurance
benefits. Appellant has a past psychiatric history of bipolar
disorder with psychotic features. He has a previous diagnosis
of anxiety disorder and depression. Appellant has made
grandiose statements. Appellant approached a security guard
at a Walmart store and asked him to call the police. At that
time, appellant was non-compliant with his medication and was
noted to be internally preoccupied. Appellant's delusions
consisted of being harassed by others and making nonsensical
the Walmart guard called the police, an officer arrived and
spoke to appellant. Appellant told the HPD officer he was
hearing voices and had not been taking his medication.
Appellant was taken to the Neuropsychiatric Center
("NPC") in Houston, Texas. The State sought court
orders to commit appellant for temporary inpatient mental
health services and to administer psychoactive medication.
See Tex. Health & Safety Code §§
574.034; 574.106(a)(1). Angela Williams, on behalf of the
State, filed an application for temporary or extended mental
health services for appellant. According to her affidavit,
appellant was off his medication and hearing voices. Williams
averred that appellant was "psychotic with internal
stimuli" and "unable to care for himself at this
officer who took appellant to NPC filed a Notification of
Emergency Detention in the probate court. In his notification
of emergency detention for appellant, the officer stated that
he had reason to believe appellant evidenced a substantial
risk of serious harm to himself or others based upon the fact
that appellant told the officer "that he was hearing
voices to hurt himself. He stated has not been taking his
medication. He stated he has been in and out of mental
hospital." The officer had reason to believe the risk of
harm was imminent unless appellant was immediately restrained
and stated his belief was based upon the fact that appellant
"appears to be danger to self/others." The officer
reported that appellant asked a Walmart security guard for
help calling the police.
was assessed by Dr. Chris Johnson. Johnson's diagnosis of
appellant was "psychosis" and he stated that as a
result of appellant's mental illness, he (1) is likely to
cause serious harm to himself; or (2) is suffering severe and
abnormal mental, emotional, or physical distress; (3) is
experiencing substantial mental or physical deterioration of
his ability to function independently, except for reasons of
indigence, to provide for his basic needs, including food,
clothing, health or safety; and (4) is not able to make a
rational and informed decision as to whether to submit to
treatment. As the factual basis of his opinion, Dr. Johnson
stated, "[appellant] has been off treatment. He
approached a guard at Wal-Mart reporting suicidal thoughts.
He appears grossly psychotic at PES/actively responding to
internal stimuli." Dr. Johnson's opinion was that,
based on these same facts, appellant presented a substantial
risk of serious harm to himself or others if not immediately
restrained. According to Dr. Johnson, emergency detention was
the least restrictive means to affect the necessary restraint
because of the risk of injury.
was transferred to HCPC. Dr. Tyler Kimm examined appellant on
May 1, 2018. Dr. Kimm diagnosed appellant with bipolar
disorder and opined that appellant was likely to cause
serious harm to himself. The factual basis of Dr. Kimm's
opinion was that appellant was brought in "after
allegedly making suicidal statements at a Walmart." Dr.
Kimm was of the opinion that because of appellant's
mental illness, he presented a substantial risk of serious
harm to himself, as evidenced by the following:
"At HCPC [appellant] has been lewd, intrusive,
hypersexual, [with] poor boundaries. [Appellant] has low
sleep hours with only partial medication adherence.
[Appellant] remains grandiose & accelerated in thought,
Kimm stated that emergency detention was the least
restrictive means to effect necessary restraint. He further
stated in his report that the basis for his opinion of
appellant's imminent risk of harm to himself, unless
restrained, was the need for patient stabilization.
petition for an order to administer psychoactive medication,
Dr. Kimm stated that he diagnosed appellant with bipolar
disorder and determined that the proper course of treatment,
in the best interest of the appellant, was the administration
of certain classes of psychoactive medications. Further, Dr.
Kimm believed appellant lacked capacity to make a decision
regarding administration of psychoactive medication because
appellant was refusing all medications but lurasidone, which
despite several days of treatment failed to alleviate the
symptoms of appellant's mental illness as evidenced by
appellant's "continued poor boundaries,
intrusiveness, grandiosity." Dr. Kimm also stated that
appellant's past outpatient treatment with lurasidone
failed, as evidenced by his recent
re-admission.Dr. Kimm's prognosis for appellant, if
treated with the recommended psychoactive medications, was
guarded but optimistic. Dr. Kimm opined that if the
recommended psychoactive medications were not administered,
the consequences to appellant would be a further decline in
his ability to function. Dr. Kimm stated that he had
considered prolonged hospitalization in a therapeutic
environment as an alternative, but determined it would be
unlikely to fully resolve appellant's current symptoms.
hearing, Dr. Douglas Samuels, a licensed psychiatrist at
HCPC, and Michael Helminiak, a psychiatric core nurse who
treated appellant at HCPC, testified for the State. Appellant
stipulated to Dr. Samuels's qualifications as an expert
in the field of psychiatry.
probate court first heard testimony on the issue of
commitment. Dr. Samuels, testified that he had the
opportunity to observe appellant and appellant was
cooperative. Dr. Samuels believed appellant understood the
proceeding. He testified that appellant was diagnosed with
bipolar disorder and agreed with the diagnosis. Dr. Samuels
recognized that Dr. Kimm was operating under a diagnosis of
psychotic disorder NOS, but stated appellant "has a
standing diagnosis here of bipolar."
Samuels testified that in the past appellant benefitted from
medications for the symptoms of bipolar disorder. He stated
that when appellant "has taken the medicine episodically
here, he has benefited also," and noted that appellant
was offered several medications during his current stay, but
was reluctant to take them.
Samuels testified appellant's behavior before his current
treatment was "one of self-reported disorganization and
hallucinations while essentially living at Wal-Mart."
Although appellant had an apartment in the Galleria area,
"he had really taken up residence in Wal-Mart." It
was reported that appellant was using Walmart's wi-fi and
facilities. Appellant felt he was being harassed by people
and asked for help from security, which led to his being
taken to NPC.
Samuels testified that he checks with the staff on a daily
basis and the consistent feedback is, "quote, he is
awful, he is terrible." Dr. Samuels explained:
He [ appellant] has engaged in sexually provocative behavior,
sexually aggressive behavior, towards females, female staff,
racist behavior, very provocative behavior; a clear,
consistent picture of agitation, irritation, provocative
confrontation which is very consistent with the diagnosis of
Samuels agreed that those types of behaviors are the basis of
Dr. Kimm's opinion that appellant has very poor or no
boundaries with regard to staff and patients. Dr. Samuels
noted that appellant "has received intramuscular
injections associated with a significant show of force by
both female staff members, and the use of restraints on -
roughly in every other day basis in this facility." Dr.
Samuels further agreed that appellant's response to the
intramuscular medications indicated "they are on the
right track with medication."
Samuels' recommendation for appellant was to remain at
that hospital under the care of Dr. Kimm and the treatment
team, and further, if a commitment was granted, for appellant
to receive a forced-medication hearing. Without further
treatment and intervention, Dr. Samuels believed appellant
would be likely to cause serious harm to himself or to
others, either directly or indirectly as a result of his
illness, "as demonstrated by the need for restraints and
intramuscular medication. He believed that if appellant were
released without intervention, appellant would suffer severe
and abnormal mental, emotional, or physical distress;
experience substantial mental or physical deterioration of
his ability to function independently; would not be able to
make the necessary decisions for daily living, (in
particular, health and safety decisions); and would not be
able to make a rational informed decision about whether to
submit to outpatient care.
cross-examination, Dr. Samuels testified that he was under
the impression appellant was eating while at the hospital.
Dr. Samuels was asked whether appellant was tending to his
personal hygiene. He stated:
This is the neatest and cleanest he has looked. I've seen
him on the unit where he has a towel wrapped around his waist
and he's wearing his jeans outside of that. It looks a
little bizarre, but there's nothing that looks like
he's unable to take care of himself. I have not seen
Samuels testified that to his knowledge, appellant has not
indicated having any thoughts of harming himself since he has
been in the hospital. Appellant voluntarily took medications
other than intramuscular injections. Appellant took Lithium
on occasion, but stopped for approximately the three days
before the hearing. Appellant took a medication that was not
very helpful, and the staff wanted to change it, and
appellant indicated that he wanted to take it, "but he
wants to negotiate when to take it." Appellant wanted to
take it at night because appellant said it made him sleepy.
Dr. Samuels told appellant he "needs to follow the
doctor's orders to take it when the doctor wishes for him
to do that." Dr. Samuels observed appellant "at the
nurse's station with the medicine, and there was a lot of
bargaining and negotiating going on that was being
reported." Dr. Samuels testified that "if you look
at the overall picture from start to finish today, that he
has taken some doses and he hasn't - if you just look at
the total of all the doses, we would say it's slanted
more heavily towards non-compliance."
Helminiak testified that during the past weekend appellant
required emergency intramuscular injections both days,
because appellant was consistently testing limits, pushing
boundaries with staff, not following staff attempts at
redirection, and punching and kicking at the empty air in the
day area. Further, Helminiak testified:
I've also caught him a couple of times in the seclusion
room where he was sleeping because he refused to sleep in the
room with someone else. And he was self-talking and swinging
a towel around in the air, brandishing it as a weapon like he
was trying to strike something that wasn't there.
When we tried to get him to deescalate, he tried to bargain
with medications, tried to put them off. And then when we
told him he couldn't take them out of his scheduled
times, he refused them outright.
He has a tendency to become antagonistic with the staff,
making racially inappropriate remarks towards me
specifically. He called me an idiot cowboy, white trash, a
few other names. And becoming -- using a lot of profanity
when he gets agitated and worked up as well.
He also threatened to get me fired a few times, claiming he
had the ability to do that.
stated that appellant intermittently participated in the
groups or sessions offered to him and "sometimes has
been inappropriate for it." Helminiak explained:
And you have to watch him when he's in these groups
because of the sexually inappropriate behavior towards the
He will do things like try to inappropriately touch them in
their midsections when ...