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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