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Evidence was insufficient to support ch. 55 protective placement order

Clark County v. S.A.G., 2015AP793, District 4, 10/8/15 (one-judge decision; ineligible for publication); case activity

There was insufficient evidence for the protective placement order because the County failed to prove that S.A.G. suffers from a disability that is permanent or likely to be permanent, as required by § 55.08(1)(d).

To establish that an individuals’ disability is permanent or likely to be permanent, the petitioner must show that the “individual is not treatable by presently known methods.” Zander v. County of Eau Claire, 87 Wis. 2d 503, 515, 275 N.W.2d 143 (1979). The testimony of Dr. Starr, the County’s expert (and only) witness, didn’t satisfy this burden:

¶11     Dr. Starr’s testimony established that S.A.G. suffers from major depression and psychosis. Although Dr. Starr testified that S.A.G.’s underlying depression is likely permanent, he testified that the symptoms of her depression are treatable and may improve with time. As to S.A.G.’s psychosis, which Dr. Starr opined was the cause of S.A.G.’s incompetence, Dr. Starr did not testify that S.A.G.’s psychosis is permanent or likely to be permanent, but instead testified that psychosis is “usually” treatable with medication.

¶12    Dr. Starr … failed to offer testimony that S.A.G.’s depression and psychosis are not treatable, and thus permanent or likely to be permanent. Accordingly, I conclude that the County failed to prove by clear and convincing evidence that S.A.G. suffers from a permanent, or likely to be permanent, disability, and reverse the circuit court’s order of protective placement.

The court of appeals also reverses the involuntary medication order because, as the County conceded, the trial court lacked competency to enter the order because the hearing on the petition for a medication order wasn’t held within 30 days, as required by § 55.14(7). (¶¶13-14).

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