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COA affirms commitment based on hearsay and meds based on outdated exam

Waukesha County v. C.A.E., 2020AP834-FT, District 2, 9/16/20 (1-judge opinion, ineligible for publication); case activity

“Carly” argued that the circuit court committed plain error when it admitted and relied on hearsay evidence of dangerousness introduced through the County’s testifying doctor at her recommitment hearing. She also challenged the court’s involuntary med order because the last time the testifying doctor had discussed the “advantages and disadvantages of medication” with her, as required by §51.61(1)(g)4, was 5 years prior to the hearing. Both arguments failed on appeal.

The county’s psychiatrist was the lone witness at Carly’s October 2019 recommitment hearing.  Although he had been appointed to examine her numerous times in the past, he last met with her in 2014 for her initial commitment in this case. In other words, he had not examined her in 5 years.

At the October 2019 hearing, the psychiatrist admitted that Carly had not been dangerous at all during the past 1.5 years. However, he also testified that when she stops medication or treatment she becomes dangerous within weeks, her husband brings her in out of concerns for his safety, and law enforcement becomes involved.  No witness testified to these facts.

As there was no objection to this hearsay testimony, Carly invoked the plain error doctrine in State v. Jorgensen, 2008 WI 60, ¶1, 310 Wis. 2d 138, 754 N.W.2d 77.  She also cited S.Y. v. Eau Claire County, 156 Wis. 2d 317, 327-328, 457 N.W.2d 326 (Ct. App. 1990), which holds that while a doctor may rely on hearsay evidence about dangerous conduct to form an opinion, the hearsay itself is inadmissible, and the circuit court cannot rely upon it.

The court of appeals held that the psychiatrist only relied on records “of a type reasonably relied upon experts” to form an opinion in this field. Opinion, ¶10-11. Nobody contested that point. Under S.Y., the hearsay was still inadmissible. The court of appeals did not address or distinguish S.Y. and so its holding appears to conflict with a published decision on point.

The court of appeals also held that the psychiatrist’s conclusion was based on his personal observations of her prior to 2014.  Opinion, ¶11. Assuming that this was true, his memory of Carly’s conduct from 5 years early was not legally sufficient to support a 2019 recommitment. According to SCOW, each recommitment must be based on “current dangeorousness.” Portage County v. J.W.K., 2019 WI 54, ¶24, 386 Wis. 2d 672, 927 N.W.2d 509

As for the involuntary med order, the psychiatrist also last assessed Carly’s competency to make medication decisions back in 2014. He did not assess her for her 2019 recommitment because she did not appear for her examination. The court of appeals held that she cannot fail to show for an exam and then complain that she was not assessed for competency. Opinion, ¶22.

That makes sense except for one thing. The County bears the burden of proof. Nothing in the record shows that either the court or the county ever notified Carly of who her examiner was, the time for the examination, or how the examination would be scheduled.  There is no evidence that she ever received notice of the exam she allegedly failed to show for. Thus, the court of appeals decision also arguably conflicts with Waukesha County v. M.J.S., 2018 WI App 62, 384 Wis. 2d 271, 921 N.W.2d 17 (unpublished). In M.J.S. the individual also failed to show for his exam and thus did not receive a timely competency assessment. The court of appeals vacated the involuntary medication order because the record revealed conflicting information about how the exam was to be scheduled.

One more point: Even though the psychiatrist hadn’t seen Carly in 5 years he filed a 23 page report on her. The County forgot to move the report into evidence. While it was part of the record on appeal, the court of appeals said that it only considered the psychiatrist’s testimony. Opinion, ¶3 n.3.

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