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COA contradicts itself regarding State’s duty to file treatment plan for involuntary meds

State v. Wilson P. Anderson, 2020AP819-Cr, 3/16/21, District 1 (1-judge opinion; ineligible for publication); case activity (including briefs)

A few weeks ago, District 4 issued a to-be-published decision regarding the State’s burden of proof on a motion for involuntary medication to restore a defendant’s competence for trial. See State v. Green. It held that to satisfy Sell v. U.S., 539 U.S. 166 (2003), the State must file an individualized treatment plan specifying the medications and dosages it wants to administer to the defendant, and the circuit court must approve it. In Anderson’s case, District 1 holds that the State can file a psychologist’s report that simply indicates the defendant’s diagnosis, treatment history, and a need for medication (without specifying drugs, dosages, etc.). District 1’s decision in Anderson seems oblivious to, and contradicts, Green and a new District 4 decision in State v. Engen as well as Sell itself and substantial federal case law.

Recall that under Sell, the State cannot administer unwanted antipsychotic medication to a defendant unless it proves these 4 factors:

  1. An important government interest is at stake;
  2. Forced medication will “significantly further” the government’s interest and be “substantially likely” to render the defendant competent and “substantially unlikely” to have side effects that interfere with the defense;
  3. Forced medication is necessary to further the government’s interest in that there are no less intrusive effective alternatives; and
  4. The proposed medication is “medically appropriate” for the defendant–i.e. in his best interest.  Sell, 539 U.S. at 180-181.

Sell held that the kinds of drugs the State wants to administer matter. Some drugs may have unacceptable side effects. Some may not be effective for restoring competency. And some may not be in a particular defendant’s best medical interest. Id. at 182.

Consequently, federal courts require the State to file with the circuit court a treatment plan tailored to the defendant’s mental illness and physical health. Citing  many federal cases, Green rejected as too vague a generic treatment plan prepared by a psychiatrist, which listed a medication and dosage that is generally effective for a defendant’s condition. Green¶¶34-41.

In contrast, in Anderson’s case, the State offered a report by a psychologist, Dr. Debra Collins, that made no recommendation regarding any medication.  Anderson’s briefs cites all the same federal cases as the defendants in Green and Engen. District 4 followed them. District 1 did not.

Anderson argued that because a psychologist cannot prescribe medication, a psychologist’s opinion cannot establish the 2nd and 4th Sell factors listed above. In fact, Anderson argued that under §907.02, Collins was not qualified to give an opinion on the 2nd and 4th Sell factors.  Federal courts hold that the doctor who designs the treatment plan must hold a medical degree. United States v. Chavez, 734 F.3d 1247, 1250 (10th Cir. 2013); United States v. Hernandez-Vasquez, 513 F.3d 908, 916-917 (9th Cir. 2008).

The court of appeals dismissed this argument in footnote 3:

At the competency hearing, Anderson objected to Dr. Collins’ testimony relating to
involuntary medication, arguing that Dr. Collins is not a psychiatrist and thus not permitted to prescribe medication she was suggesting; therefore, Anderson argued that Dr. Collins was not qualified to testify as an expert on this issue. However, the trial court found that based on Dr. Collins’ twenty years of experience in conducting forensic competency evaluations, which included “significant” experience with the medications available to treat psychotropic conditions, she was qualified to provide an opinion regarding the effect of such medication.

Anderson’s appeal also raised another important issue. He was convicted of misdemeanor battery and disorderly conduct, which carries a maximum sentence of 9 months. He argued that the State did not satisfy the 1st Sell factor–i.e. have an important government interest in prosecuting him for this crime. The court of appeals sided with the State on this point. Opinion, ¶¶20-23. Do not take this holding as gospel. There are non-Wisconsin cases to the contrary.

 

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