People ex rel. C.J.R.

• Decision Date: 08 September 2016
• Docket Number: Court of Appeals No. 16CA0915
• Citation: 409 P.3d 536
• Parties: The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF C.J.R., Respondent–Appellant.
• Court: Colorado Court of Appeals

409 P.3d 536

The PEOPLE of the State of Colorado, Petitioner–Appellee, IN the INTEREST OF C.J.R., Respondent–Appellant.

Court of Appeals No. 16CA0915

Colorado Court of Appeals, Div. V.

Announced September 8, 2016

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 by JUDGE BERGER

¶ 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 , 134 Mich.App. 737, 352 N.W.2d 310, 314 (1984). The use of Depo–Provera for these purposes is commonly known as chemical castration. See, e.g. , People v. Collins , 110 Cal.App.4th 340, 1 Cal.Rptr.3d 641, 643 (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 ...