Peo in Interest of Abeyta

21CA1734 Peo in Interest of Abeyta 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1734

Pueblo County District Court No. 21MH151

Honorable Timothy O’Shea, Judge

The People of the State of Colorado,

Petitioner-Appellee,

v.

Gregory Thomas Abeyta,

Respondent-Appellant.

ORDER AFFIRMED

Division III

Opinion by JUDGE GOMEZ

J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Cynthia Mitchell, County Attorney, Kathleen H. Shafer, Special Assistant

County Attorney, Pueblo, Colorado, for Petitioner-Appellee

Nathan Law P.C., Mary E. Nathan, Fountain, Colorado, for Respondent-

Appellant

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¶ 1 Gregory Thomas Abeyta appeals the district court’s order

authorizing mental health personnel at the Colorado Mental Health

Institute at Pueblo (CMHIP) to administer medication to him

without his consent. We affirm.

I. Background

¶ 2 Abeyta has been confined at CMHIP since August 2020, when

he was found incompetent to proceed in a criminal case. After he

refused certain treatment at CMHIP, the People petitioned the

district court for authorization to involuntarily administer three

medications: (1) Olanzapine (Zyprexa); (2) Paliperidone (Invega or

Invega Sustenna); and (3) Valproic Acid (Depakote).

¶ 3 Dr. Hareesh Pillai, the CMHIP staff psychiatrist who

supervises Abeyta’s care and treatment, offered testimony

supporting the petition in an affidavit filed with the petition and at

an evidentiary hearing before the district court.

¶ 4 Dr. Pillai testified that Abeyta has a mental illness, lacks

insight into his mental illness, and is incompetent to effectively

participate in decisions affecting his mental health. He said that

Abeyta has been diagnosed with bipolar disorder, with symptoms of

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paranoia, delusions, disorganized thinking, depression, and suicidal

ideation.

¶ 5 Dr. Pillai also explained why Abeyta needs the three proposed

medications. Dr. Pillai described the uses, dosages, and potential

risks and side effects of the medications, explaining that the

Olanzapine and Paliperidone were needed to treat Abeyta’s paranoia

and delusions and the Valproic Acid was needed to stabilize his

mood. Dr. Pillai explained that Abeyta was currently taking only

Olanzapine and Valproic Acid but that Dr. Pillai proposed to

administer Paliperidone in place of the Olanzapine, in the hope that

the new medication would more effectively treat Abeyta’s paranoia

and delusions while causing fewer side effects.

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Dr. Pillai further

explained that, after this transition, he would eliminate the

Olanzapine except for use as a backup medication.

¶ 6 According to Dr. Pillai, before receiving the Olanzapine and

Valproic Acid on an emergency basis, Abeyta had verbal and

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At times during the hearing, Dr. Pillai mistakenly referred to the

new medication as Haloperidol. At other times, he referred to it by

the brand names Invega and Invega Sustenna. It’s clear from the

record, including Dr. Pillai’s affidavit attached to the petition, that

the new medication is Paliperidone (Invega or Invega Sustenna).

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physical outbursts and was aggressive and assaultive toward staff

members at CMHIP (including lunging at and attempting to assault

staff), but this behavior had significantly declined after Abeyta

began receiving the medications. Dr. Pillai opined that without the

requested medications Abeyta will likely suffer significant

deterioration of his mental condition and will pose a serious risk of

harm to himself and others. Finally, he testified that the side

effects of the medications are treatable, the failure to medicate

would be more harmful than the risks the medications posed, and

no less intrusive alternative is available.

¶ 7 Abeyta also testified at the hearing. He denied having a

mental illness, being a danger to himself or others, or needing any

medications. He did admit, however, that he had yelled at,

threatened, and lunged at CMHIP staff and “was a little out of

control” before he was given the Olanzapine and Valproic Acid. Yet

he said that he had never physically touched anyone. He also said

that he would not voluntarily take any medications, and he

complained of the side effects of the medications he had been

taking, including pain, shaking, nausea, drooling, slurring of words,

and a “horrible” taste in his mouth.

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¶ 8 At the end of the hearing, the court granted the petition. The

court found that Dr. Pillai had “testified very credibly” and adopted

his opinions. The court also expressly found, by clear and

convincing evidence, that

• Abeyta “is mentally ill,” “has no or limited insight into his

mental illness,” and “is incompetent to effectively

participate in treatment decisions”;

• “the treatment is necessary to both prevent a significant

and long-term deterioration in [Abeyta’s] mental

condition and prevent the likelihood of [him] causing

serious harm to himself or others in [CMHIP]”;

• “reasonable efforts have been made to obtain voluntary

acceptance of the treatment,” but Abeyta “has repeatedly

refused to consent to the treatment”;

• “a less intrusive treatment alternative is not available”;

and

• “the need for the treatment is sufficiently compelling and

overrides and [sic] bona fide and legitimate interest

[Abeyta] has in refusing the treatment.”

The court’s order expires in May 2022.

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II. Discussion

¶ 9 Abeyta argues that the district court erred in its application of

the law to the facts of this case. We are not persuaded.

A. Legal Framework and Standard of Review

¶ 10 To obtain a court order authorizing the involuntary

administration of medication, the People must establish the four

elements set forth in People v. Medina, 705 P.2d 961, 973 (Colo.

1985). Those elements are

(1) that the patient is incompetent to effectively

participate in the treatment decision; (2) that

treatment by . . . medication is necessary to

prevent a significant and likely long-term

deterioration in the patient’s mental condition

or to prevent the likelihood of the patient’s

causing serious harm to himself or others in

the institution; (3) that a less intrusive

treatment alternative is not available; and

(4) that the patient’s need for treatment by . . .

medication is sufficiently compelling to

override any bona fide and legitimate interest

of the patient in refusing treatment.

Id.

2

2

When the state seeks to administer medication involuntarily to

render a criminal defendant competent to stand trial, courts apply

the Supreme Court’s test in Sell v. United States, 539 U.S. 166,

180-81 (2003). But state law tests apply when the state, as here,

seeks to administer medication involuntarily for “a different

purpose,” including a purpose “related to the individual’s

dangerousness, or . . . the individual’s own interests where refusal

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¶ 11 The People bear the burden of proving each of these elements

by clear and convincing evidence. Id. Clear and convincing

evidence is evidence that “is stronger than a mere ‘preponderance’”

and “is highly probable and free from serious or substantial

doubt.” People in Interest of R.F., 2019 COA 110, ¶ 16 (quoting

Metro Moving & Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo.

App. 1995)). The testimony of a physician seeking to administer

treatment may itself be sufficient to satisfy the four elements.

People in Interest of R.K.L., 2016 COA 84, ¶ 30.

¶ 12 Applying the Medina test involves mixed questions of fact and

law. People in Interest of R.C., 2019 COA 99M, ¶ 7. We defer to the

district court’s findings of fact if they are supported by the record,

but we review the court’s legal conclusions de novo. Id. “The

district court, as fact finder, ‘has discretion to determine the

credibility of the witnesses; the sufficiency, probative effect, and

weight of the evidence; and the inferences and conclusions to be

drawn from it.’” Id. (quoting People in Interest of S.M.A.M.A., 172

P.3d 958, 962 (Colo. App. 2007)).

to take drugs puts his health gravely at risk.” Id. at 181-82; see

also People in Interest of R.F., 2019 COA 110, ¶ 11 n.1.

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B. Analysis

¶ 13 The district court found that the People had proved all four

Medina elements by clear and convincing evidence. Abeyta

challenges the court’s findings on the second, third, and fourth

elements. We consider each of these disputed elements in turn.

1. Necessity of the Medication

¶ 14 The second Medina element requires a court to determine

“whether the proposed treatment is necessary either to prevent a

significant and likely long-term deterioration in the patient’s mental

condition or to prevent the likelihood of the patient’s causing

serious harm to himself or others in the institution.” Medina, 705

P.2d at 973. This involves consideration of two alternative factors:

(1) “the patient’s actual need for the medication” based on the

nature and gravity of his illness, the extent to which the medication

is essential for effective treatment, the prognosis without the

medication, and whether a failure to medicate would be more

harmful to the patient than any risks posed by the medication; and

(2) “[t]he dangerousness of the patient” to “the physical safety” of

himself or others, and specifically “whether [his] mental condition is

such that in the absence of the proposed treatment [he] will likely

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constitute a continuing and significant threat to the safety of

himself or others in the institution.” Id. at 973-74; accord People v.

Marquardt, 2016 CO 4, ¶ 18.

¶ 15 Abeyta concedes this element with respect to two of the three

medications the district court authorized: Paliperidone and Valproic

Acid. But he contends that the third medication, Olanzapine, is not

essential to his effective treatment because his treatment plan

contemplates replacing it with Paliperidone. He reasons that,

because Dr. Pillai indicated that he could be effectively treated with

Paliperidone and Valproic Acid alone, with better results and fewer

side effects, he “does not actually need Olanzapine.”

¶ 16 To the contrary, Dr. Pillai’s testimony indicates that

Olanzapine was still needed for Abeyta’s treatment as of the time of

the hearing because Olanzapine was still being used to alleviate his

paranoia and delusions, and the potential alternative treatment,

Paliperidone, hadn’t yet been tested on him. Thus, the record

supports the district court’s finding that this element was satisfied.

See People in Interest of C.J.R., 2016 COA 133, ¶ 34 (provider’s

testimony about a patient’s need for medication supported finding

that this element was satisfied); R.K.L., ¶ 36 (same).

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2. No Less Intrusive Alternative

¶ 17 The third Medina element — which considers the availability of

less intrusive alternatives — “encompasses not only the gravity of

any harmful effects from the proposed treatment but also the

existence, feasibility, and efficacy of alternative methods of treating

the patient’s condition or of alleviating the danger created by that

condition.” Medina, 705 P.2d at 974. An alternative treatment is

considered to be less intrusive if it has fewer harmful side effects

and is at least as effective at treating the patient’s condition as the

proposed treatment. R.C., ¶ 9.

¶ 18 Abeyta argues that administration of Paliperidone and

Valproic Acid alone is a less intrusive alternative to administration

of all three medications, particularly given Dr. Pillai’s stated belief

that Paliperidone would be more effective and cause fewer side

effects than Olanzapine. Abeyta also points to Dr. Pillai’s testimony

that, after the transition to Paliperidone, Olanzapine would be

maintained only as a backup medication.

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¶ 19 In so arguing, Abeyta relies primarily on R.C.

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In that case, a

division of this court held that the People didn’t satisfy the third

Medina element as to six backup medications when the patient had

already been taking a different medication for ten days, that

medication was proving effective, and the treating provider said he

would continue the use of that medication and would turn to the

backup medications only if they were needed in the future. R.C.,

¶¶ 8-16; see also R.K.L., ¶¶ 38, 40 (the People didn’t satisfy this

element as to ten backup medications included in a patient’s

treatment plan in the event that the medication he was currently

taking ceased to be effective or developed intolerable side effects).

Critically, the provider in R.C. “did not testify that [the patient]

needed to receive the [s]ix [backup] [m]edications at the time of the

hearing” or that he would need them in the future. R.C., ¶ 11.

¶ 20 Here, however, the Olanzapine was not purely a backup

medication that might never be needed in Abeyta’s treatment.

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Abeyta also relies on unpublished opinions from this court

following People in Interest of R.C., 2019 COA 99M, notwithstanding

this court’s policy forbidding the citation of unpublished opinions

except in specific circumstances not present here. See Colorado

Court of Appeals, Citation Policies, Policy Concerning Citation of

Unpublished Opinions (2021), https://perma.cc/5HBK-BGR4.

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Rather, as Dr. Pillai testified, it was still in use as of the time of the

hearing, was critical to Abeyta’s treatment at that time, and would

be eliminated only after — and if — Abeyta successfully transitioned

to the new proposed treatment with Paliperidone. Thus, the record

supports the district court’s finding that there was, at the time of

the hearing, no less intrusive alternative to including Olanzapine

with the other two medications.

3. Need for Treatment Overriding Legitimate Reasons to Refuse

¶ 21 In assessing the fourth Medina element — whether the

patient’s need for treatment is sufficiently compelling to override

any legitimate interest in refusing treatment — a court must

consider “whether the patient’s refusal is bona fide and legitimate”

and, if it is, “whether the prognosis without treatment is so

unfavorable that the patient’s personal preference must yield to the

legitimate interests of the state in preserving the life and health of

the patient placed in its charge and in protecting the safety of those

in the institution.” Medina, 705 P.2d at 974; accord C.J.R., ¶ 40.

¶ 22 Abeyta cites the negative side effects and risks of the

medications he had received, including, in particular, the pain he

said he suffers for an hour and a half each night that he described

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at the hearing as “pure hell.” The district court acknowledged the

cited side effects but found that the need for treatment overrode

concerns with those side effects. The court also noted that the

planned change in medications may alleviate some of the side

effects. The record supports these findings. See R.K.L., ¶ 42

(evidence of the severity of the patient’s illness when not treated

and the risks if he weren’t medicated supported finding that this

element was satisfied).

¶ 23 Accordingly, we conclude that the district court did not err by

finding that the People had satisfied all of the Medina elements.

III. Conclusion

¶ 24 The order is affirmed.

JUDGE J. JONES and JUDGE LIPINSKY concur.