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Court of appeals finds perfunctory testimony by doctor sufficient to uphold extension of Chapter 51 commitment

Portage County v. J.W.K., 2017AP2429, 4/26/18, District 4, (1-judge opinion, ineligible for publication); case activity

J.W.K. appealed the extension of his Chapter 51 mental commitment arguing that the County failed to present sufficient evidence that he would be the proper subject for treatment if treatment were withdrawn. He argued that Dr. Persing’s testimony on this point “was too conclusory to be probative.” The court of appeals held that it was “sufficiently on point and clear.” Opinion ¶8.

Chapter 51 appeals are confidential so we cannot see the briefs. We can, however, see the parts of Dr. Persing’s testimony that the court of appeals viewed as sufficiently on point and clear (which, by the way, is not the correct legal standard.) The County had to prove its case by “clear and convincing evidence.” Wis. Stat. §51.20(13(e). Here’s what the court of appeals cited:

¶4 Two witnesses testified at the recommitment hearing: Dr. James Scott Persing and Steve Bierman, a social worker employed by the County. Persing testified that J.W.K. has been diagnosed with schizophrenia and exhibits symptoms that include “intermittent difficulties with paranoia” and “at times, suspected issues with auditory hallucinations.” Persing further testified that, at the time of the hearing, J.W.K.’s illness was being treated with a prescribed medicine, Haldol Deconoate, and continued “treatment, services, and medication” would help to “improve or control” J.W.K.’s condition.

¶5 Asked if it was his opinion that there was a substantial likelihood that J.W.K. would be a proper subject for commitment if treatment were withdrawn, Persing answered in the affirmative, “to my best degree of psychiatric certainty.” Persing proceeded to explain that “[s]chizophrenia is a chronic and progressive deteriorating mental illness,” which is not curable, nor is it an illness “that is intermittent.” If treatment is withdrawn, symptoms “should come back as they were prior to treatment.” On cross examination, Persing testified that J.W.K. had failed to follow the recommendations of treatment providers as recently as one month prior to the hearing.

J.W.K was right to challenge Dr. Persings testimony.  Time after time, SCOW has told the court of appeals that expert testimony in Chapter 51 cases cannot be perfunctory. See e.gOutagamie County v. Melanie L., 2013 WI 67, ¶94, 349 Wis. 2d 148, 833 N.W.2d 607. The parts of Dr. Persing’s testimony that the court of appeals chose to quote seem just that.  Further, the quoted testimony suggests that the County may commit a person simply because he has schizophrenia, paranoia or hallucinations. But the government cannot commit a person just because he has a mental illness. See O’Connor v. Donaldson, 422 U.S. 563 (1975).

Lastly, experts may not all agree with Dr. Persing that “schizophrenia deteriorating mental illness, which is not curable, nor is it an illness that is intermittent.” Credible web resources indicate that it is possible for a person with schizophrenia to have just one psychotic episode or several episodes while leading a normal life in between them. Click webmd. Shoot. Dr. Persing himself testified that the J.W.K’s paranoia was “intermittent.” Plus the disease often goes into a residual phase where the symptoms subside. Click here. Some studies indicate that weaning people off of drugs actual improves their ability to function long term. Click here. And let’s not forget side effects of drugs for schizophrenia. When is the last time you heard a doctor in a Chapter 51 case provide any detail about what happens to people who take Haldol? Perhaps a defense expert could challenge the assumptions that courts are rubber-stamping. Sometimes the testimony seems based on outdated information about the disease and treatments.

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