P. v. Putney

Filed 7/16/07 P. v. Putney CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Thomas Putney appeals an order determining his incapacity to consent to mental health treatment, and directing involuntary treatment with medication. (Welf. & Inst. Code, 5334, subd. (e).)^[1] He claims the evidence is insufficient to support the order, and that it violates his equal protection rights by permitting involuntary medication for a period in excess of six months. We affirm.

FACTS AND PROCEDURAL HISTORY

Putney was committed to Atascadero State Hospital (ASH) under the Sexually Violent Predators Act (SVPA). ( 6600 et seq.) On July 20, 2006, ASH filed an application to authorize involuntary treatment with psychotropic medications on the ground that Putney was incompetent and could not give his informed consent to treatment.

At the hearing, Dr. John Deane, Putney's treating psychiatrist, testified that Putney suffers from bipolar disorders with psychotic features, as well as pedophilia. Dr. Deane further testified that Putney had attempted suicide at least six times, and often refused to take his prescribed medications. Dr. Deane was of the opinion that Putney was a danger to himself and others when he did not take his medication. The doctor also stated that Putney experienced mood swings, severe sleep disturbance, extreme irritability, and expressed illogical and disorganized thoughts when he was not medicated. The previous March, Putney had to be placed in seclusion and told Dr. Deane he was on a "hunger strike" because he believed he was the victim of "racial profiling." In April, Putney was placed in full restraints as the result of suicidal behavior.

Dr. Deane consulted with Putney about the need for psychotropic medication. The doctor recommended Risperdal and Olanzapine, and informed Putney of the potential side effects of these drugs. He also acknowledged that those drugs, taken in combination, could increase the risk that Putney would develop diabetes. The doctor also believed, however, that this risk was outweighed by the risk that Putney would commit suicide if left unmedicated. The doctor also opined Putney's current mental state rendered him incapable of understanding the benefits of the medication, and that he was therefore unable to give informed consent in rejecting it. Although Putney claimed to suffer from "borderline" diabetes and that his mother also had diabetes, none of the medical records verified those claims. Moreover, the doctor was of the opinion that Putney's refusal of the medication had nothing to do with any concerns about diabetes, but rather was motivated by the fact he was angry at the treatment team for confronting him about engaging in inappropriate sexual conduct with another patient. Dr. Deane also testified that Putney's blood would be monitored during his treatment to allay any concerns about diabetes.

Putney testified on his own behalf at the hearing. He noted that Dr. Deane had only been treating him for a week or two, and expressed his belief that he was the victim of racial profiling. He also disputed staff claims that he had threatened them. He claimed that he understood the nature of his mental illness, and noted that he had been taking medication for it since he was nine years old. He did not want to take the prescribed medications because they slowed down his thoughts, altered his behavior, and made him "feel like I am being psychologically or mentally raped."

When asked whether he understood that his bipolar disorder caused him to suffer mood swings from depression to mania, Putney responded, "I don't know about that. . . . [] . . . As far as the mood swings, yes, very severe mood swings. I deal with it like a man. It is going to be here whether I take medication or not. [] . . . As far as manic, I mean, I don't know. . . . I mean, I have ups and downs, lows and highs, and I deal with that, like I said, like a man." He acknowledged that "many times" he had tried to "hurt [himself]" while depressed, but did not believe that medication would help his depression. He rather believed his mood swings were the result of his "environment, depending on who I associate myself with, who I feel is affecting me in a negative or positive way. It has a lot of triggers."

He also stated his belief "that the medication is just not known enough. It has not been experimented enough . . . they are always trying to give you combinations of medicine, which has caused me to be worse or makes me so zoned out like a zombie . . . . I am not going to go through that, and the only reason why I don't want to be involved in being [in]voluntarily medicated is because it's my choice as a man, as a person, to know when I needed it." When it was explained that his blood would be monitored to ensure that he did not suffer any undesirable side effects and that Dr. Deane would not recommend any medications the doctor believed were inappropriate for his condition, Putney replied, "That is not going to happen, sir. . . . [T]he doctor, he called me a manipulator. He is the perpetrator. . . . I know my condition better than he does. [] . . . [I]t is not going to matter, whatever medication I take, to the point where it's going to reduce my ideation of whether it is hurting myself or whether it's mood swings, whether it's highness, panic or whatever. . . . []  . . . [I]t is racial profiling." He conceded that medication had "seemed" to stabilize him during a bout of psychosis in 2003, then added that "it had nothing to do with the medication. Had something to do with spiritual warfare going on in me, I don't like to go there." He also denied ever threatening ASH staff members. He also told Dr. Deane that "[i]n my opinion, ain't a judge in this country going to tell me that they are going to force to medicate merely based on what you have

. . . ."

At the conclusion of the hearing, the court found by clear and convincing evidence that Putney did not understand the benefits of the treatment prescribed by Dr. Deane, or the consequence he would suffer if he rejected that treatment. The court explained: "I am convinced by your statement that no matter what your condition is, that medications are of absolutely no effect upon you physically, notwithstanding your excitable states or your depressed states, and I think that the medical evidence and the evidence provided by Dr. Deane in support of the medical evidence is clearly to the contrary. There are risks and benefits to medication, and you do not seem to recognize any of that." Accordingly, the court granted ASH's request for involuntary treatment.

DISCUSSION

I.

Sufficiency of the Evidence

Putney contends the evidence is insufficient to support the trial court's finding that he is incompetent to refuse medical treatment. We disagree.

Competent adults have the right to refuse medical treatment, including the administration of antipsychotic drugs. (In re Qawi (2004) 32 Cal.4th 1, 14.) An involuntarily committed patient may be forced to submit to such treatment, however, upon a court finding that the patient is incompetent or dangerous. (Id., at pp. 27-28; In re Calhoun (2004) 121 Cal.App.4th 1315, 1354-1355.)^[2]"'[J]udicial determination of the specific competency to consent to drug treatment should focus primarily upon three factors: (a) whether the patient is aware of his or her situation (e.g., if the court is satisfied of the existence of psychosis, does the individual acknowledge that condition[?]); (b) whether the patient is able to understand the benefits and the risks of, as well as the alternatives to, the proposed intervention . . . ; and (c) whether the patient is able to understand and to knowingly and intelligently evaluate the information required to be given patients whose informed consent is sought ([Welf. & Inst. Code,] 5326.2) and otherwise participate in the treatment decision by means of rational thought processes.' [Citation.]" (In re Qawi, supra, at pp. 17-18.) In adjudicating Putney's claim that the evidence is insufficient to support the court's finding of incompetency, we review the evidence in the light most favorable to the judgment to determine whether it is supported by substantial evidence. (Conservatorship of Waltz (1986) 180 Cal.App.3d 722, 730.)

Substantial evidence supports the trial court's finding that Putney is mentally incompetent and therefore unable to give informed consent to medical treatment with psychotropic medications. Dr. Deane testified to the seriousness of Putney's bipolar disorder and the need for medication. Dr. Deane and Putney both testified that Putney had refused to take that medication, contrary to the doctor's professional advice. Moreover, Putney himself demonstrated his inability to appreciate the nature and gravity of his illness when he testified that his extreme mood swings are the result of environmental factors and "racial profiling." The evidence supports the conclusion that Putney lacks insight into his mental health and behavior, and that his mental illness prevents him from rationally participating in medical decisions regarding his treatment.

Putney claims the evidence is insufficient to support the court's finding that he was unable to understand the benefits, risks, and alternatives to the proposed treatment because "the record does not establish that appellant or the court was provided with any information on alternatives to the proposed treatments, or that Olanzapine or Risperdal had benefited appellant in the past." He bases this argument on section 5326.2 of the Lanterman-Petris-Short Act (LPSA) ( 5000 et seq.), which dictates the information a competent patient is entitled to receive in deciding whether to consent to treatment. In evaluating a patient's mental capacity to participate in his treatment, "[t]he court is not to decide such medical questions as whether the proposed therapy is definitely needed or is the least drastic alternative available, but may consider such issues only as pertinent to assessment of the patient's ability to consent to the treatment. [Citations.]" (Riese v. St. Mary's Hospital & Medical Center (1987) 209 Cal.App.3d 1303, 1322, fn. omitted.) In this case, the trial court had sufficient information to find that Putney's mental disorder had rendered him unable to rationally understand the nature of his illness, much less the benefits, risks, and efficacy of the prescribed treatment.

Putney's reliance on Sell v. United States (2003) 539 U.S. 166 (Sell), is also unavailing. In Sell, the United States Supreme Court established that the government may involuntarily administer antipsychotic drugs to a mentally ill criminal defendant in order to render him or her competent to stand trial only if it can establish, among other things, that the administration of the drugs furthers an important government interest and is medically appropriate. (Id., at pp. 180-183.) The court also recognized that in order to establish that such treatment is necessary to further an important government interest, "[t]he court must find that any alternative, less intrusive treatments are unlikely to achieve substantially the same results." (Id., at p. 181.) In reaching these conclusions, the court "emphasize[d] that the court applying these standards is seeking to determine whether involuntary administration of drugs is necessary significantly to further a particular governmental interest, namely, the interest in rendering the defendant competent to stand trial. A court need not consider whether to allow forced medication for that kind of purpose, if forced medication is warranted for a different purpose, such as . . . purposes . . . related to the individual's dangerousness, or purposes related to the individual's own interests where refusal to take drugs puts his health gravely at risk. [Citation.] . . . []  For another thing, courts typically address involuntary medical treatment as a civil matter, and justify it on these alternative . . . grounds. Every State provides avenues through which, for example, a doctor or institution can seek appointment of a guardian with the power to make a decision authorizing medication-when in the best interests of a patient who lacks the mental competence to make such a decision. [Citations.]" (Id., at pp. 181-182.)

Following Sell, California amended its law governing involuntary medication of criminal defendants in order to render them competent to stand trial. (Pen. Code, 1370, 1370.1.) Here we are confronted with the issue of involuntary administration of medication to a patient who is not competent to make the decision for himself. (Cf. Carter v. Superior Court (2006) 141 Cal.App.4th 992, 1000 [recognizing the acknowledgement in Sell "that the question of involuntary medication to restore an accused's ability to stand trial is different from involuntarily medicating an inmate who is dangerous to himself or others when the refusal to take the medication puts his health gravely at risk"].) As we have explained in making that determination, "[t]he court is notto decide such medical questions as whether the proposed therapy is definitely needed or is the least drastic alternative available, but may consider such issues only as pertinent to assessment of the patient's ability to consent to the treatment. [Citations.]" (Riese v. St. Mary's Hospital & Medical Center, supra, 209 Cal.App.3d at p. 1322, fn. omitted.)

In his briefs, Putney refers at length to the risks involved in treating a patient with both Risperdal and Olanzapine. Most notably, he cites to a warning statement issued on the United States Food and Drug Administration's website regarding an increased risk of diabetes in patients who take Olanzapine, as well as the fact that the manufacturer of the drug has settled approximately 30,000 lawsuits filed by patients alleging that they became obese and suffered from diabetes as a result of the drug. He also refers to his unsubstantiated testimony that he has a genetic predisposition for diabetes. We have already explained why this information is essentially irrelevant to the determination of Putney's competency to rationally participate in his treatment. In any event, Dr. Deane testified that Putney's blood will be tested during his treatment and that he will be monitored to ensure that any undesirable side effects are minimized. While Putney argues that "[i]t is perfectly rational to want to avoid a drug that can increase the risk of diabetes and cause other serious conditions," he testified that "I will not willingly take blood tests," notwithstanding the fact that his doctor informed him that the risks of taking the drug could thereby be avoided. This statement provides further support for the court's finding that Putney lacks the capacity to rationally participate in decisions regarding his treatment.

II.

Length of Treatment; Equal Protection

Putney argues that the order, even if supported by substantial evidence, must be modified to limit his involuntary treatment to six months. He contends that a six-month limitation "is consistent with the time frames applied in California treatment schemes in general," and that the failure to so limit his treatment order would violate the equal protection clauses of the state and federal Constitutions.

We conclude that Putney forfeited this claim by failing to raise it in the trial court. (See People v. Brown (2003) 31 Cal.4th 518, 546.) In any event, the order does not authorize involuntary medication for any specified period. The length of the SVP commitment order in effect when the involuntary medication order was entered was two years. (Former 6604, 6604.1.)^[3] The involuntary medication order will therefore expire along with the SVP commitment order. The record does not disclose the date of the SVP commitment order, so it is impossible to determine how long the involuntary medication will be in effect. For all we know, both orders have already expired.

Besides, Putney fails to establish an equal protection violation, which requires a showing that the state has adopted a classification that results in unequal treatment for two or more groups that are similarly situated for purposes of the challenged action. (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253; In re Calhoun, supra, 121 Cal.App.4th at p. 1351.) Although he asserts that as an SVP he is similarly situated to LPSA conservatees and state prison inmates subject to involuntary treatment, equal protection merely requires that their treatment be similar, not identical. (In re Jose Z. (2004) 116 Cal.App.4th 953, 960; People v. Green (2000) 79 Cal.App.4th 921, 924.) The state "may adopt more than one procedure for isolating, treating, and restraining dangerous persons; and differences will be upheld if justified. [Citations.] Variation of the length and conditions of confinement, depending on degrees of danger reasonably perceived as to special classes of persons, is a valid exercise of state power." (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 172.) The SVPA effectively limits the maximum period of Putney's involuntary medication to the term of his commitment. ( 6604, 6604.1, 6605.) These limitations, and other procedural safeguards contained in the SVPA ( 6602, 6603), are sufficient to comport with equal protection requirements.

We also reject Putney's claim that the People "effectively conceded the validity of [his] position" on this issue by failing to address it in their brief. Even if no respondent's brief had been filed, we would decide the issues based upon the record and the opening brief. (Cal. Rules of Court, rule 8.220.) The cases Putney cites on this point are plainly inapposite and thus warrant no discussion.

CONCLUSION

As Putney quite correctly informs us, "'[N]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.'" (Conservatorship of Wendland (2001) 26 Cal.4th 519, 531, quoting Union Pacific Railway Co. v. Botsford (1891) 141 U.S. 250, 251.) But, that is precisely what occurred in the instant matter. The burden is upon the state to establish by clear and convincing evidence the need to involuntarily administer psychotropic medication. The evidence adduced at the hearing pitted the testimony offered by a knowledgeable, experienced and trained medical professional against that of a seriously disturbed patient. The courts accepted the former. Substantial evidence supports that decision. (See In re Calhoun, supra, 121 Cal.App.4th at p. 1354, fn. 22.)

The judgment (order) is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Martin J. Tangeman, Judge

Superior Court County of San Luis Obispo

______________________________

Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Thomas R. Yanger, Senior Assistant Attorney General, John H. Sanders, Supervising Deputy Attorney General, Randall R. Murphy, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise stated.

^[2] To the extent the People contend the record contains sufficient evidence supporting a finding of dangerousness, the application to authorize involuntary treatment did not assert that Putney was dangerous and the court expressly declined to make such a finding. Accordingly, the order cannot be affirmed on that basis.

^[3] In September of 2006, sections 6604 and 6604.1 were amended to provide an indeterminate term for SVP commitments. At least once every year, however, the person subject to the commitment must be reevaluated to determine whether he currently meets the definition of an SVP. ( 6605.) Moreover, a person committed as an SVP can petition for a conditional release or an unconditional discharge at any time, although any hearing on such a petition cannot be held less than one year from the date of the commitment order. ( 6607.)