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In re N.S.

Court of Appeals of Texas, Second District, Fort Worth

August 29, 2019

In the Matter of N.S.

          On Appeal from County Court at Law No. 1 Wichita County, Texas Trial Court No. 50576-LR-D

          Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Justice Birdwell

          MEMORANDUM OPINION

          WADE BIRDWELL JUSTICE

         Appellant N.S. appeals from the trial court's order authorizing the administration of psychoactive medications. See Tex. Health & Safety Code Ann. § 574.106(a)(2). We affirm.

         Background

         On July 13, 2019, while awaiting trial on a charge of misdemeanor assault, N.S. was found incompetent to stand trial. The trial court ordered her committed to a mental-health facility for inpatient mental-health treatment under code of criminal procedure chapter 46B with the specific objective of achieving competency. See Tex. Code Crim. Proc. Ann. art. 46B.073. On July 12, 2019, Dr. Charlene Shero, N.S.'s attending physician at the facility, filed an application under health and safety code section 574.104 for an order to authorize the involuntary administration of psychoactive medication to N.S. In the application, Dr. Shero stated that if N.S. were treated with the psychoactive medicine specified in the application, N.S.'s prognosis would be "[m]uch improved," the "[r]isk of further aggression w[ould] decline," "[c]ompetency m[ight] be restored, [and N.S. would] no longer suffer paranoia."

         The trial court held a hearing on the application on July 15, 2019. Dr. Shero testified that N.S. has schizophrenia, paranoid type. The doctor stated that a team at the facility had met with N.S. that morning and the previous week, and "[o]n each occasion, she [was] very disorganized. She denie[d] mental illness. She ha[d] odd and illogical speech. . . . [S]he[ was] quite guarded to the point of paranoia." Dr. Shero characterized N.S. as "quite disorganized" and stated that N.S. had expressed that she wanted to "visit various places in the world and get 'chava, '" which N.S. said was "a psychostimulant of some importance." Dr. Shero further explained,

Initially, [N.S.] would not speak to us for a protracted period of time, stating she was busy with Homeland Security business. She was, prior to admission here, arrested for assault on a security officer and when they became aware of her mental status, they dropped that down to a misdemeanor, realizing at that time that it may be due to other reasons. But she was originally assaultive on a security officer.

         Dr. Shero testified that N.S. was a danger to others, as evidenced by the fact that she had assaulted a security officer. N.S. had not, however, acted aggressively toward any staff or other patients at the hospital. Dr. Shero did not know if N.S. was aggressive while at the jail, although she was "blanketly uncooperative and defensive." Dr. Shero further "argue[d] very strongly that [N.S.'s] pattern of traveling about the country without any means of support or other people and then breaking into cars for shelter place[d] her at a tremendous risk of assault by others, of unsafe housing, [and demonstrated] just very, very poor judgment."

         Dr. Shero stated that N.S. had refused medications other than agreeing to "a completely ineffective dose of Haldol that . . . would not even be enough for a pediatric case, to help organize her thoughts." The basis of N.S.'s refusal was that she "d[id]n't do meds." Dr. Shero stated that N.S. needed antipsychotics and possibly a mood stabilizer and anxiolytics. Dr. Shero believed that on the proper medications, N.S. would improve; "she is natively quite intelligent, and . . . with even a week of treatment, . . . she would be found competent." Without the medications, on the other hand, Dr. Shero "could not at any time call [N.S.] competent with her delusions and her inability to cooperate with people that disagree with her."

         Asked about N.S.'s capacity to make a decision about taking medication, Dr. Shero stated that N.S. "[was] crippled by her paranoia to allow that intrusion" and "[was] hyper-aware of every possible [medication] side effect that could possibly happen, but not in a realistic perspective." Dr. Shero testified that taking medication was "absolutely" in N.S.'s best interest. The alternative to medications for N.S.'s condition is electroconvulsive therapy, which Dr. Shero characterized as "impractical, nonsustainable[, ] and frightening."

         N.S. testified about why she wanted to negotiate her own treatment. She explained, "I'm an individual human being and that's my right to be able to do that, the right to refuse, to negotiate, to not agree with the course of care." When asked if she wanted the trial court to deny the application, she initially responded that she was "not necessarily asking for that" and that she "feel[s] anxious sometimes due to large amounts of work and burnout, uh, tons of work." But she testified that it would upset her if she were administered medication that she had not consented to take.

         N.S. disputed Dr. Shero's diagnosis of her. Asked if she understood that she had been diagnosed with schizophrenia, paranoid type, N.S. explained that her understanding was that

that diagnosis was put on there in question because of all the different medications from before and it had never been substantiated and it still [wasn't] to [her] knowledge. So that would be one of the problematic- the diagnosis was depression and that was due to severe psychological abuse and not understanding the medications during that time and side effects and any and all of that and working way too much.

         Asked if she heard Dr. Shero testify about her diagnosis, N.S. stated,

Yeah, and then that's where then that separate piece, you can provide me medicine for that, and as you do so, then I'll take that further to state and federal court, because that was not my diagnosis.
I'll accept that you're going to provide me medicine for something that I do not have. But, unfortunately, large amounts of different people were provided medicine for different diagnoses that were not present and can be created by different abuse.

         In closing arguments, N.S.'s attorney stated that for an order for the administration of medication under health and safety code section 574.106, the State was required to show that N.S. presented a danger to herself or to others in the inpatient mental-health facility or that she had remained confined in a correctional facility for seventy-two hours and presented a danger there, but it had failed to do so. In response, the State's attorney argued that section 574.106 "give[s] an either/or option"; the trial court may also issue an order under the section if the patient "lacks the capacity to make a decision regarding the administration of the proposed medication and . . . the treatment with the proposed medication is in the best interest of the patient."

         The trial court signed a "Notification of Court's Determination-Forensic" stating that it had determined that N.S. did not have the capacity to make a proper determination regarding the administration of the proposed medications and that treatment with antipsychotics, mood stabilizers, and anxiolytics was in her best interest. The notice stated that "[t]he reasons for the court's determination are that the Court believes the benefits to be obtained by treatment are greater than any risks that may be encountered by treatment with the proposed medication(s), and there is no suitable alternative at this time."

         In a separate order, the trial court granted the application for medication administration. In this order, the trial court found by clear and convincing evidence that

1. [N.S.] lack[ed] the capacity to make a decision regarding the administration of the ...

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