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Louisma v. State

Florida Court of Appeal, Fourth District

January 11, 2012

Ludwige LOUISMA, Appellant,
STATE of Florida, Appellee.

Page 51

Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.


This appeal challenges an order of the trial court authorizing psychiatric medication and treatment for appellant, Ludwige Louisma, an individual who was adjudicated incompetent to proceed to trial in a criminal matter and committed to the Department of Children and Families. He claims that no competent substantial evidence supports the finding that the involuntary administration of psychotropic medication was deemed necessary and essential by his multidisciplinary team, as required by section 916.107, Florida Statutes. Because there was no evidence that the testifying physician was a member of the team or that he discussed the need for medication with the team, we agree and reverse.

In August 2010, the circuit court adjudicated appellant incompetent to proceed in a criminal matter and committed him to the custody of the Department of Children and Families. A month later, Treasure Coast Forensic Treatment Center (" TCFTC" ), the treatment center where appellant was under care, filed a petition for an order authorizing medical treatment, because appellant had refused to give express and informed consent to the treatment that TCFTC's mental health professionals had recommended. This included the administration of anti-psychotic medications. Attached to the petition were the written opinions of two psychiatrists employed at TCFTC— Dr. LoPiccolo and Dr. Zawadzki— who each gave opinions consistent with the allegations in the petition. However, neither opinion stated whether the doctors were members of appellant's multidisciplinary treatment team.

The case proceeded to a hearing before a magistrate in September 2010. At the hearing on the petition, Dr. LoPiccolo testified that he diagnosed appellant with psycho-effective disorder, bipolar type. He further opined that the diagnosis was made within a reasonable degree of medical certainty, and that appellant's condition qualified as a mental illness under chapter 916, Florida Statutes. Dr. LoPiccolo developed a pharmaceutical treatment plan that would assist appellant in gaining competency. Appellant had at first consented to the administration of the drugs, but then refused further drug treatment. On cross-examination Dr. LoPiccolo was asked if he was a member of the team that meets with appellant. Dr. LoPiccolo did not directly answer the question, but instead responded as follows: " I am the medical executive director of the facility." Dr. LoPiccolo explained that he was " covering for" appellant's psychiatrists at the time.

Page 52

When Dr. LoPiccolo first met with appellant, he observed that appellant was in a catatonic state. Appellant required several emergency treatment orders because he was not eating or taking fluids. Those emergency treatments brought appellant out of the catatonia. Dr. LoPiccolo testified that appellant's chance of recovery without medication was poor, but his chance of recovery with medication was very good. Dr. LoPiccolo admitted that appellant's catatonia had not returned even though appellant was not on medication. However, Dr. LoPiccolo explained that appellant could slip back into it.

Appellant also testified and continued his objection to the administration of the drugs. He claimed that he had been " faking" his medical condition and did not need the drugs.

At the close of the hearing, the magistrate granted the petition, finding that the medication was necessary for appellant to gain competency. The magistrate's report listed Dr. LoPiccolo as the " Multidisciplinary Treatment Team Physician." The order further stated that the treatment was necessary for the appellant's mental illness and did not present any unreasonable risk of harm and that based upon Dr. LoPiccolo's testimony, appellant was in immediate need of psychiatric medication and treatment pursuant to section 916.107(3)(a), Florida Statutes (2010). The circuit court adopted the magistrate's report and recommended order authorizing treatment. This appeal follows.

Section 916.107(3)(a), provides that " [a] forensic client shall be asked to give express and informed written consent for treatment." However, " [i]f a client refuses such treatment as is deemed necessary and essential by the client's multidisciplinary treatment team for the appropriate care of the client," such treatment may be provided under certain statutorily enumerated circumstances. § 916.107(3)(a), Fla. Stat. (2010) (emphasis added). For the court to enter an order authorizing treatment for which a client was unable to or refused to give express and informed consent, the court must determine by clear and convincing evidence " that the client has mental illness, retardation, or autism, that the treatment not consented to is essential to the care of the client, and that the treatment not consented to is not experimental and does not present an unreasonable risk of serious, hazardous, or irreversible side effects." § 916.107(3)(a)3., Fla. Stat. (2010).

On appellate review of an order requiring a forensic patient to accept involuntary psychotropic treatment, " the record must contain competent, substantial evidence to support the trial court's findings and to substantiate compliance with section 916.107." Dinardo v. State, 742 So.2d 287, 289 (Fla. 1st DCA 1998). This requires the record to contain evidence " that the treatment is deemed necessary by the patient's multidisciplinary team, that the patient has refused to give express and informed consent as defined in the statute, and that the trial court has considered at least the four factors specified in clauses a-d of section 916.107(3)(a)3." Id.

This record shows that the statutory requirements were not fulfilled. Case law requires that at least some evidence that the multidisciplinary team has discussed and approved the necessity of treatment be presented. In Meeker v. State,584 So.2d 169 (Fla. 1st DCA 1991), the First District reversed an order which authorized specified drug treatment for a patient committed at a hospital, finding that the record did not show that the specific drug treatment ordered by the ...

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