Applying the supreme court’s recent decision in Outagamie County v. Melanie L., 2013 WI 67, the court of appeals concludes Winnebago County failed to show Donna H. is not competent to refuse medication. The applicable statute, § 55.14(1)(b), requires the County to show that the advantages and disadvantages of accepting medication have been explained to the individual subject to a possible involuntary medication order. The court of appeals reads Melanie L. to entitle the individual to receive a reasonable explanation of the proposed medication from a medical professional and to require that counsel elicit testimony from medical experts in the statutory terms so that the circuit court and a reviewing court do not have to speculate on the meaning. (¶7, citing Melanie L., 2013 WI 67, ¶¶67, 91.). That didn’t happen here:
¶8 Testimony during the hearing regarding Donna’s need for an involuntary medication order does not explicitly establish that the advantages and disadvantages of medication were explained to Donna. Neither [Dr. Sangita] Patel nor Donna testified that a discussion of the advantages and disadvantages of medication took place. In explaining its ruling, the circuit court found that Patel never used the words “advantages or disadvantages” but inferred from the testimony that Patel explained them to Donna. Under Melanie L., such an inference is no longer permissible. Id.[, ¶91.] Testimony must now track the particular statutory language to establish the statutory requirements, and medical experts must now apply and enunciate the standards set out in the competency statutes. Id., ¶¶91, 97. In this case, the County failed to elicit testimony tracking the particular statutory language necessary to establish that Patel explained to Donna the advantages and disadvantages of medication. Although Patel testified that she believes Donna is not competent to refuse medication, this bare conclusion does not comply with Melanie L.
This seems a rather grudging application of Melanie L. The court was prepared to affirm the medication order before Melanie L. was released (¶8 n.3) and it seems to read Melanie L. to be more concerned with form than substance when it says the decision requires the doctor’s testimony to “track” the statutory language. What the supreme court said is that the doctor’s testimony must make it clear he or she is applying the correct statutory standard, not that the doctor regurgitate the statutory language. As the court in Melanie L. said, “the medical expert’s terminology and recitation of facts did not sufficiently address and meet the statutory standard. Medical experts must apply the standards set out in the competency statute. An expert’s use of different language to explain his or her conclusions should be linked back to the standards in the statute.” (¶97). And after all, mere incantations of the statutory language tend toward the perfunctory, and “[t]hese hearings cannot be perfunctory under the law. Attention to detail is important.” (¶94).