If this opinion doesn’t cross the line of Outagamie County v. Melanie L., 2013 WI 67, ¶¶91, 97, 349 Wis. 2d 148, 833 N.W.2d 607, it at least curls its toes around the decision.
When a County seeks an extension of an involuntary commitment under §51.20(13)(g)3, (16)(d), it must prove by clear and convincing evidence, among other things, that the subject individual is a proper subject for treatment–that is, capable of rehabilitation. J.J. argued that there was insufficient evidence to support the jury’s verdict on this point because all of the testimony went to his symptoms and not to whether his condition could be cured. The court of appeals held that “the record belies this assertion. One expert specifically testified that J.J.’s condition is treatable, as opposed to his symptoms being merely manageable.” ¶6.
Now on to the more interesting aspect of this case. J.J. argued that no witness testified that he or she discussed alternative medications or treatments with J.J. The court of appeals noted that one doctor testified that he had offered J.J. therapy, but J.J. refused it. “Thus, the jury could have reasonably concluded that alternative treatments were discussed with J.J.” ¶8.
J.J. argued that the same doctor did not identify when he explained the advantages and disadvantages of medications to J.J. The court of appeals held that he did not have to specify when. ¶9. It further noted that several witnesses testified that J.J. denied having a mental illness. The court of appeals found this to be proof that he was not competent to refuse psychotropic medications. ¶10.
Applying Melanie L., a recent court of appeals opinion held that a doctor’s explanation of the advantages, disadvantages and alternatives to medication cannot be conclusory. See our prior posts on Waukesha County v. Kathleen H. here and Eau Claire County v. Mary S. here. If the explanation cannot be conclusory, then surely it cannot be inferred by a jury. As for the timing of the explanation, well, you have to wonder if the court of appeals read this paragraph of Melanie L.:
The explanation should include why a particular drug is being prescribed, what the advantages of the drug are expected to be, what side effects may be anticipated or are possible, and whether there are reasonable alternatives to the prescribed medication. The explanation should be timely, and, ideally, it should be periodically repeated and reinforced. Medical professionals and other professionals should document the timing and frequency of their explanations so that, if necessary, they have documentary evidence to help establish this element in court. Melanie L.., ¶67 (emphasis supplied).
Here’s hoping that a petition for review gets filed in this case.