Ralph Steve Mullins, s/k/a, etc v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Clements, Agee and Felton
Argument by teleconference
RALPH STEVE MULLINS, S/K/A
RALPH STEVEN MULLINS
OPINION BY
v. 	Record No. 2113-02-3 	JUDGE G. STEVEN AGEE
FEBRUARY 25, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF SMYTH COUNTY
C. Randall Lowe, Judge
Alan J. Stratton (Bland & Associates, P.C.,
on brief), for appellant.
Dana Martin Johnson, Assistant Attorney
General (Jerry W. Kilgore, Attorney General;
David E. Johnson, Deputy Attorney General;
Jane D. Hickey, Senior Assistant Attorney
General, on brief), for appellee.
Ralph Steve Mullins, s/k/a Ralph Steven Mullins
("Mullins"), a patient at the Southwest Virginia Mental Health
Institute ("SWVMHI"), appeals an August 2, 2002 order of the
Circuit Court of Smyth County requiring him to undergo medical
treatment pursuant to Code § 37.1-134.21. 	Mullins contends on
appeal that: (1) the evidence was insufficient for the trial
court to find that he was "incapable of making an informed
decision on his own behalf," and (2) the ordered treatment is
contrary to his basic values and the trial court thus failed to
make the required finding that the treatment "is necessary to

prevent death or a serious irreversible condition." 	For the
reasons that follow, we affirm the decision of the trial court.
I. 	BACKGROUND
Mullins was involuntarily committed to the SWVMHI in 1995
and has resided there until the present time. 	In June 2002,
Mullins was diagnosed with serum protein electrophoresis M-Spike
abnormality and heme positive stool. 	He also has difficulty
eating solid food.
Due to these indications and because Mullins suffers from
schizophrenia, Dr. James Vesce, a medical doctor and
psychiatrist treating Mullins at SWVMHI, sought judicial
authorization to perform diagnostic tests, including a bone
marrow biopsy, colonoscopy, and esophagogastrodudenoscopy.
Vesce and other physicians opined Mullins' symptoms were
indicative of cancer and diagnostic procedures were required in
order to provide sufficient information to safeguard his health.
The General District Court of Smyth County conducted a hearing
on June 24, 2002, and ordered implementation of the diagnostic
tests. 	Mullins appealed this order to the Circuit Court of
Smyth County.
Pursuant to Code § 37.1-134.21, the circuit court heard the
case de novo on July 10, 2002. 	The court heard testimony by
Dr. Vesce and ordered Mullins to undergo the diagnostic tests
under "conscious sedation." 	However, when Mullins arrived at
Smyth County Community Hospital on August 1, 2002, it was
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discovered that a fourth test, a broncoscopy, would be needed
and that the tests would require full anesthesia. 	The attending
physicians deferred treatment until a revised and comprehensive
treatment order could be obtained.
On August 1, 2002, the general district court, with all
parties and counsel present, conducted a hearing in Mullins'
hospital room. 	The court modified its original order to include
the additional test and full anesthesia. 	Mullins again appealed
to the circuit court, which also conducted a de novo hearing in
Mullins' room that same day.
The circuit court heard testimony from Dr. Vesce,
Dr. Ampudia, a surgeon, and Dr. Harmon, an anesthesiologist,
about Mullins' capacity and medical condition. 	The circuit
court then entered its August 2, 2002 order which made the
following findings:
the Court finds by clear and convincing
evidence that Ralph Steve Mullins is
mentally ill and that there is no other
person who can give consent for the proposed
treatment, that the treatment outlined in
the August 1, 2002 order is appropriate and
in the best interests of the patient, and
that the patient is incapable of giving
knowing consent to the proposed treatment,
it is ORDERED pursuant to Virginia Code
Section 37.1-134.21 that the patient be
treated under the terms of the August 1,
2002 Order.
The circuit court's order also reflected that Mullins noted his
appeal to this Court and that the circuit court's order was
stayed pending appeal.
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II. 	ANALYSIS
Code § 37.1-134.21(A) authorizes a circuit court to order
[t]he provision, withholding or withdrawal
of a specific treatment or course of
treatment for a mental or physical disorder,
if it finds upon clear and convincing
evidence that (i) the person is either
incapable of making an informed decision on
his own behalf or is incapable of
communicating such a decision due to a
physical or mental disorder and (ii) the
proposed action is in the best interest of
the person.
The Smyth County Circuit Court's August 2, 2002 order was made
citing this grant of statutory authority.
Code § 37.1-134.21(K) authorizes appeal to this Court from
such an order authorizing involuntary medical treatment.1 In
reviewing that order, "we are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them." 	McGee v. Commonwealth, 25 Va. App.
193, 198, 487 S.E.2d 259, 261 (1997) (en banc).
Code § 37.1-134.21(H) requires the trial court to make
certain findings as a condition precedent to entry of a
treatment order.2 Mullins contends the trial court's order was
1 Any such appeal must be filed within ten days. 	Code
§ 37.1-134.21(K). 	In the case at bar, the circuit court order
was entered on August 2, 2002, and Mullins timely filed his
notice of appeal on August 6, 2002.
2 Prior to authorizing the provision,
withholding or withdrawal of treatment
pursuant to this section, the court shall
find:
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in error requiring reversal because certain of its findings were
deficient. 	Specifically, he contends that (1) the evidence was
generally insufficient to support a finding that he was not
capable of making an informed decision regarding his medical
treatment, and (2) the court failed to make a finding that the
proposed treatment was necessary to prevent death or a serious
irreversible condition as required by Code § 37.1-134.21(H)(4)
when the treatment is contrary to the person's basic values.
Mullins raises no other issue as to the necessity or adequacy of
1. 	That there is no legally authorized
person available to give consent;
2. 	That the person who is the subject of
the petition is incapable either of making
an informed decision regarding a specific
treatment or course of treatment or is
physically or mentally incapable of
communicating such a decision;
3. 	That the person who is the subject of
the petition is unlikely to become capable
of making an informed decision or of
communicating an informed decision with the
time required for decision; and
4. 	That the proposed course of treatment is
in the best interest of the patient.
However, the court shall not authorize a
proposed course of treatment which is proven
by a preponderance of the evidence to be
contrary to the person's religious beliefs
or basic values unless such treatment is
necessary to prevent death or a serious
irreversible condition. 	The court shall
take into consideration the right of the
person to rely on nonmedical, remedial
treatment in the practice of religion in
lieu of medical treatment.
Code § 37.1-134.21(H).
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the court's findings under subsection H or otherwise. 	On
appeal, we consider only the issues raised.3 See Rule 5A:18.
A. 	Sufficiency of the Evidence
Mullins asserts the evidence was insufficient for the trial
court to find that he was incapable of making an informed
decision on his own behalf, but cites no evidence in the record
in support of his argument.4 The record contains a sparse
"Written Statement of Facts in Lieu of Transcript," which
indicates the trial court heard the testimony of the three
doctors treating Mullins before making its findings of fact.
The written statement does not give the testimony of the
physicians, or even a summary of their evidence. 	Neither does
the written statement identify whether Mullins testified at the
hearing, or what, if anything, he placed in evidence.
Mullins has failed to provide an adequate record on appeal
that would allow us to consider his argument on the sufficiency
of the evidence. 	"If an insufficient record is furnished, the
3 The General Assembly provided for involuntary medical
treatment in very limited circumstances, where such treatment is
determined to be in the best interests of a person who is unable
to give an informed consent to treatment. 	Code § 37.1-134.21
describes the procedures to be followed and the findings a court
is to make prior to authorizing such treatment.
All parties should take care to insure that the treatment
order of the trial court and the record reflect that each of the
statutory requirements has been fully met in order to provide a
reviewing court with the necessary record.
4 Mullins did not identify whether his argument is that the
evidence was insufficient under subsection (H)(2), (H)(3), both
subsections or some other code provision.
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judgment appealed from will be affirmed." 	White v. Morano, 249
Va. 27, 30, 452 S.E.2d 856, 858 (1995). 	As Mullins provides us
no basis in the record upon which to consider his allegation of
error, we find no error in the trial court's order.
B. 	Consideration of Basic Values
Mullins does not dispute the trial court's finding under
Code § 37.1-134.21(H)(4) that the proposed treatment is in his
best interests. 	He nonetheless assigns error under subsection
(H)(4), by contending the trial court failed to take account of
his basic values which "include his belief that he has a right
to decide for himself regarding any medical treatment or
diagnostic medical tests that should be performed on his body."
Mullins further argues that as his basic values contradict the
proposed treatment, the trial court was required by subsection
(H)(4) to make an affirmative finding that "such treatment is
necessary to prevent death or a serious irreversible condition."
As the trial court failed to make such a finding, Mullins
asserts its order was in error.
Although Mullins alleges on appeal that the proposed
medical treatment is contrary to his basic values, the record
does not reflect this issue was ever raised to the trial court.
Nothing in the record indicates any evidence on this issue was
ever introduced or any argument made to the trial court that
Mullins' basic values opposed the proposed treatment. 	Under the
plain language of the statute, a finding that treatment is
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necessary to prevent death or a serious irreversible condition
is required only when a preponderance of the evidence proves the
treatment is contrary to the person's basic values. 	As no issue
of Mullins' basic values was raised and no evidence of basic
values appears in the record, the trial court was under no
statutory duty to make an independent sua sponte finding that
the treatment was necessary to prevent death or a serious
irreversible condition. 	Our consideration of this issue is
barred by Rule 5A:18. 	"The Court of Appeals will not consider
an argument on appeal which was not presented to the trial
court." 	Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d
484, 489 (1998).
IV. 	CONCLUSION
Mullins failed to provide an adequate record on appeal that
permits an appellate court to consider his argument on the
insufficiency of the evidence as to the trial court's findings
of fact. 	Further, Rule 5A:18 bars this Court from considering
whether the proposed medical treatment contradicts his basic
values. 	Finding no error by the circuit court, we affirm its
order of August 2, 2002.
Affirmed.
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