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Click here for the full text of this decision FACTS:Appellant, F.M., appeals from an order of commitment for temporary inpatient mental health services and an order to administer psychoactive medication. On Sept. 8, 2004, F.M. was taken by ambulance to the University of Texas Medical Branch (“UTMB”) from her group home where she had stayed up all night drawing. F.M. had announced that she would become a doctor and buy a red truck, and was cheerleading, jumping and laughing. Approximately two weeks later, a psychiatrist at UTMB filed an application for court-ordered temporary mental health services. The application stated that F.M. was “irritable and easy to anger” and “refusing to take medications.” Following a hearing on Sept. 29, 2004, the trial court ordered that F.M. be committed to Austin State Hospital for inpatient care not to exceed 90 days. Also on Sept. 29, 2004, following a separate hearing, the trial court signed an order authorizing the Department of Health and Human Services to forcibly administer the following classes of psychoactive medication: antidepressants, antipsychotics, aniolytics/sedatives/hypnotics, mood stabilizers and stimulants. HOLDING:The court reverses the order and renders judgment denying the state’s applications to commit F.M. for court-ordered temporary mental health services and to administer psychoactive medications. The court reviews the commitment order utilizing the factors mandated by Texas Health & Safety Code �574.034(d). This court has previously held that testimony concerning a proposed patient’s refusal to take prescribed medications together with unspecified “actions at home” and “bizarre behavior at the emergency room” constituted legally and factually sufficient evidence to support an involuntary commitment order. In Re: G.H., 94 S.W.3d 115 (Tex. App. – Houston [14th Dist.] 2002, no pet.). The In Re: G.H. majority relied on three cases in which other courts indicated that refusal to take medication may affect a proposed patient’s ability to function and make rational decisions about treatment under the third criterion of commitment. In Re: G.H. should not be cited to support the contention that refusal to take medication, without more evidence, is an overt act or continuing pattern of behavior as contemplated by the Health & Safety Code. The court does not find enough information in this record for a fact finder to evaluate whether F.M. was able to make treatment decisions on a rational basis. If her refusal of psychiatric medication and a radiation treatment alone were overt acts sufficient to meet the clear and convincing standard under the first criterion, the strict requirements of the third criterion concerning the proposed patient’s ability to function and make a rational treatment decision would be undermined. The court holds that the mere assertion of a person’s liberty interest in refusing medication or other medical treatment cannot be considered an overt act sufficient to meet the clear and convincing standard for involuntary commitment. A board-certified psychiatrist at UTMB testified he did not believe that F.M. was a danger to others, and the trial court did not find that F.M. posed a danger to others as a basis for commitment. To the extent that hostile and provocative behavior may foreseeably result in an increased risk of retaliation by a third party, this potential risk alone is not legally sufficient to show that F.M. is likely to cause serious harm to herself. The court finds no evidence of an overt act tending to confirm that F.M. was likely to cause serious harm to herself, the evidence is legally insufficient to support a commitment order under the first criterion of the Texas Health and Safety Code. The state’s mere speculation that F.M. will not be able to provide her own shelter because she yelled at her ex-husband and thought her family and friends were interfering too much is not sufficient to meet the clear and convincing standard for involuntary commitment. Not only is there no evidence of an overt act or continuing pattern of behavior to support the third criterion for commitment, but there is also no evidence of a substantial deterioration in F.M.’s ability to function independently. The state relies on evidence of F.M.’s delusional thoughts about talking with ghosts, working for President Bush, and building a bed-and-breakfast. However, this evidence of delusional behavior merely confirms that F.M. is mentally ill. It does not rise to the level of an overt act or continuing pattern of behavior necessary to support a commitment order. The court finds no evidence of a recent overt act or continuing pattern of behavior tending to confirm F.M.’s distress and deterioration in ability to function. Because the evidence is legally insufficient to support the trial court’s order of temporary commitment, the court also finds the evidence legally insufficient to support the order to administer psychoactive medications. OPINION:Seymore, J.; before Edelman, Seymore and Guzman, JJ Guzman, J., concurs in result only without an opinion. DISSENT:Edelman, J. “The evidence at the hearing included her doctor’s testimony that: (1) she can get very angry very quickly; (2) she had refused at least one cancer radiation treatment; (3) when asked by her doctor about taking a medication called Abilify, which she had previously told him was”really good medicine,’ she became angry and told him that it had caused her cancer and caused her to drink alcohol and caffeine; (5) immediately after her previous release from the treatment facility, she was brought back; (6) she had been inconsistent in following through with treatment after agreeing to it; that is, she had told her doctor in the past that she would follow a suggested course of action, but then refused for reasons that made sense to her; (7) she doesn’t believe she has bipolar illness; and (8) if she is not treated with psychoactive medications, she will continue to deteriorate. . . . Because I believe this evidence is legally sufficient to show recent overt acts and/or a continuing pattern of behavior that tended to confirm F.M.’s distress and deterioration of her ability to function, I would affirm the judgment of the trial court.”

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