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Three-word answer sufficient to prove patient was advised of advantages, disadvantages, and alternatives to medication

Marquette County v. T.F.W., 2015AP2603-FT, 3/24/16, District 4 (one-judge decision; ineligible for publication); case activity

At T.F.W.’s ch. 51 extension hearing, one of the examining physicians was asked “have the advantages, disadvantages and alternatives to [T.F.W.’s] medication been explained to [him]?” Her answer: “Yes, they have.” (¶7). That was the extent of the testimony on the matter, but the court of appeals holds it was good enough to satisfy the requirement of § 51.61(1)(g)4.(intro.) and Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607.

¶12      I reject T.F.W.’s apparent view that Melanie L. requires detailed testimony about what the patient was told. Rather, Melanie L. is more reasonably read as addressing what a medical provider’s explanation to the patient “should” ordinarily contain, and how that explanation “should” be documented, see id., not what is normally required in terms of in-court testimony about what the patient was told. The Melanie L. court explained that attention to detail when informing the patient not only serves the patient’s best interests under the law but also ensures that relevant evidence is available if the patient challenges the petitioner’s proof on the explanation element at trial. See id. (“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.” (emphasis added)).

¶13      Here, significantly, T.F.W. did not at trial challenge Dr. Taylor’s testimony on the explanation element. And even now, on appeal, T.F.W. points to no competing evidence that might have called into question the adequacy of the explanation T.F.W. received.

So much for the party seeking the involuntary medication order having the burden of proof of the elements necessary to secure the order—one of which elements is that the person subject to the order has received a “reasonable explanation” of the advantages, disadvantages, and alternatives. Melanie L., 349 Wis. 2d 148, ¶¶62, 67. Indeed, a couple of unpublished (and non-binding) court of appeals opinions read Melanie L. to require that the element be proven absent some evidence of what the explanation contained, so its reasonableness can be assessed. Waukesha Cty. v. Kathleen H., No. 2014AP90, ¶¶8-10 & n.2 (Wis. Ct. App. June 25, 2014) (unpublished); Eau Claire Cty. v. Mary S., No. 2013AP2098, ¶¶15-16, 18, 20-21 (Wis. Ct. App. Jan. 28, 2014) (unpublished).

The judge here declines to follow these cases, despite Melanie L.’s admonition that involuntary medication order hearings “cannot be perfunctory under the law. Attention to detail is important.” 349 Wis. 2d 148, ¶94. The judge finds this admonition to be as precatory as Melanie L.’s discussion of what a reasonable explanation should include. (¶14). To support this conclusion the judge relies on Winnebago Cty. v. Christopher S., 2016 WI 1, ¶¶52-56, 366 Wis. 2d 1, __ N.W.2d __, which upheld a medication order based on explanation element testimony that was similar to the testimony in T.F.W.’s case. (¶¶15-16). But did Christopher S. really mean to rewrite Melanie L. and allow perfunctory, verbatim recitation of the magic statutory formulae under § 51.61(1)(g)4.(intro.) to suffice as proof of the elements for an involuntary medication order? The supreme court should take another case presenting the issue and clearly answer that question.

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