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Defense win! Extension of Ch. 51 involuntary medication order vacated for failure to explain ads, disads, and alternatives

Waukesha County v. M.J.S., 2017AP1843, 5/30/18, District 2, (1-judge opinion ineligible for publication); case activity

Section 51.61(1)(g)4 and Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607 establish that a person subject to a possible involuntary medication order is entitled to receive a reasonable explanation of the proposed medication, why it is being prescribed, its advantages and disadvantages (include side effects), and alternatives to it. If the person is incapable of expressing an understanding of these matters or incapable of applying the information to his situation in order to make an informed decision, then he is incompetent to refuse them. In this case, M.J.S. failed to show for the examination where a doctor would have attempted the statutorily-required explanation. The circuit court ordered involuntary meds; the court of appeals reversed.

M.J.S. has been treated on an off for schizophrenia. After Waukesha County petitioned for an extension of his involuntary med order, court staff sent him a letter requiring him to call 2 doctors to schedule examinations but also saying “unless otherwise noted, the doctors will contact you.” M.J.S. didn’t schedule the appointments. One of the doctors recommended recommitment based solely on a case manager’s report and M.J.S.’s treatment record.

At the extension hearing, the doctor testified to what he would have explained to M.J.S. had M.J.S. appeared for the examination, and he opined that M.J.S. would have been incapable of applying the ads, disads, and alternatives to treatment. In other words, no doctor actually gave M.J.S. the required explanation. Indeed, he hadn’t received the required explanation for 7 years! Opinion ¶18. That did not bother the circuit court. It held that a person cannot “forestall a consideration of a medications order by simply not showing up.” It extended the involuntary med order.

The court of appeals reversed for 2 reasons. (1) It was undisputed that the doctor never provided M.J.S. the statutorily-required explanation of medications. Opinion ¶18. (2) The right to be free from involuntary medication is so important that it cannot be forfeited, it can only be “waived.” In other words, M.J.S. had to “intentionally relinquish” his right to be informed of medical options and to refuse medication. Opinion ¶23. According to the court of appeals, Waukesha County filed to establish waiver.

¶25 Regarding the failure to schedule the appointment, the letter itself informed M.J.S. that he would be contacted by the doctors, and it instructed him to call and set up the appointment.  This mixed-message letter—not even an order signed by a judicial officer—cannot reasonably be grounds to conclude M.J.S. intentionally relinquished his right.  To be relieved of its burden to prove an element, the County must do more than simply rely on a confusing letter from court staff.  Again, it is the County that is statutorily responsible for meeting the statutory prerequisites and proving its case to the court.  We agree M.J.S. cannot just plug his ears with his fingers to avoid hearing the advantages, disadvantages, and alternatives to treatment, and then subsequently complain that he was not provided the statutory explanation.  But the record reflects nothing of the sort here.

¶26 Regarding the County’s second argument, it was not M.J.S.’s responsibility to seek adjournment of the hearing to allow him to meet with the doctors.  It is the County that must ensure it has the necessary evidence.  Again, it is the County that carries the burden to prove by clear and convincing evidence the elements necessary to extend commitment.  Melanie L., 349 Wis. 2d 148, ¶83.

Of possible interest, M.J.S. was present at the extension hearing when the doctor testified to what he would have told him and opined that he was incompetent to refuse meds based upon his treatment records and the case manager’s report. M.J.S. did not testify–perhaps he was exercising his right not to. If you have a case where the examining doctor has not personally examined your client, be sure to read Walworth County v. Therese B., 2003 WI App 223, 267 Wis. 2d 310, 671 N.W.2d 377 regarding the limits on the doctor’s ability to give an opinion.

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