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Wisconsin Supreme Court addresses the standard for deciding competency to refuse medication

Outagamie County v. Melanie L., 2013 WI 67, reversing unpublished court of appeals decision; majority opinion by Justice Prosser; case activity

In an important case for lawyers handling ch. 51 cases, the supreme court concludes there was insufficient evidence to prove a person subject to a commitment order was incompetent to refuse medication. Along the way, the court provides a “detailed interpretation of the statutory language” of § 51.61(1)(g)4.b., which provides that an individual is not competent to refuse medication if, after the advantages and disadvantages of, and alternatives to, treatment have been explained, the individual is “substantially incapable of applying an understanding of the advantages, disadvantages and alternatives … in order to make an informed choice as to whether to accept or refuse medication or treatment.” The court’s “phrase by phrase” discussion of the statute (¶¶64-78) helps clarify how the standard is to be applied by the fact finder and so litigators should use the court’s discussion in this case to analyze and fashion arguments about the statute’s application .

The court explains that “substantially incapable” means that “to a considerable degree, a person lacks the ability or capacity to apply an understanding of the advantages and disadvantages of medication to his or her own condition.” (¶70). Further, “applying” that understanding “requires a person to make a connection between an expressed understanding of the benefits and risks of medication and the person’s own mental illness.” (¶71). This takes more than just recognizing one is mentally ill:

¶72     …. It may be true that if a person cannot recognize that he or she has a mental illness, logically the person cannot establish a connection between his or her expressed understanding of the benefits and risks of medication and the person’s own illness. However, a person’s acknowledgment that he or she has a “mental health issue” may not acknowledge the actual problem, or may simply articulate what doctors and courts want to hear. It is possible to conjure up other hypotheticals that would nullify temporary “recognition” of the problem.

The court also emphasizes that the statutory language about making “an informed choice as to whether to accept or refuse” treatment indicates the law’s underlying concept is “choice,” and that the evaluation being done is of the individual’s “ability to rationally choose an option.” (¶¶76, 77). Thus:

¶78     The plain language of the statute gives a person the right “to refuse medication or treatment,” provided the patient is competent to make that choice.  Consequently, the court’s determination should not turn on the person’s choice to refuse to take medication; it should turn on the person’s ability to process and apply the information available to the person’s own condition before making that choice.

Calling it “a close case” (¶81), the court holds the evidence was insufficient to prove Melanie was not competent to refuse medication. Part of the problem is the circuit court’s citation of the wrong standard of proof–“the clear greater weight of the evidence” rather than “clear and convincing evidence.” (¶¶83, 86-87). More importantly, the doctor who opined Melanie was not competent did not apply the right statutory standard, for in explaining his opinion he referred to Melanie’s inability to apply her treatment understanding “to her advantage” (¶¶27, 30) apparently because she had not strictly complied with her treatment regimen during the first six months of the commitment–stopping medication when she believed she was pregnant, seeking out a different psychotherapist, and persuading her treating doctor to change her medication. (¶¶20-26, 29). The court agrees the doctor’s terminology is problematic:

¶91     …. The corporation counsel posed a question to Dr. Dave employing the statutory terms. When he did not receive an answer in those terms, he should have required his witness to expound upon his answer, so that the circuit court and a reviewing court did not have to speculate upon Dr. Dave’s meaning. As the record stands, we cannot be certain whether Dr. Dave was applying the standard or changing the standard.

Indeed, given that the subject of a commitment hearing cannot be forced to testify, it is the responsibility of medical experts who appear as witnesses for the county to explain how they reached their opinion. (¶75).

To the extent the doctor (and Melanie’s social worker) believed Melanie didn’t cooperate and comply as fully as they wanted (¶92), their frustrated expectations are not determinative. Reaffirming the distinction between a patient’s mental illness and his or her ability to exercise informed consent (¶¶45-51, citing State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 728, 416 N.W.2d 883 (1987), and Virgil D. v. Rock County, 189 Wis. 2d 1, 15, 524 N.W.2d 894 (1994)), the court agrees with the amicus Disability Rights Wisconsin that in cases where commitment is to an outpatient community setting and the only substantial treatment is medication, the  involuntary medication hearing cannot become an enforcement mechanism for a doctor’s order that a competent patient disagrees with or ignores. (¶93). Instead:

¶94     Whatever the circumstances may be, the County bears the burden of proof on the issue of competency in a hearing on an involuntary medication order. These hearings cannot be perfunctory under the law. Attention to detail is important. A county cannot expect that a judge concerned about a person with mental illness will automatically approve an involuntary medication order, even though the person before the court has chosen a course of action that the county disapproves. The county, under Wis. Stat. § 51.61(1)(g)4.b., must prove that the person is substantially incapable of applying an understanding of the advantages and disadvantages of particular medication to her own mental illness. In our view, the County did not satisfy its burden by clear and convincing evidence here. This court does not have the option of revising the statute to make the County’s work or burden easier.

A dissent by Justice Ziegler, joined by Justices Roggensack and Gableman, argues the trial court’s findings deserve more deference and implies failing to take medication as prescribed can by itself evidence incompetence to refuse medication. (¶¶109, 118).

A strong reaffirmation of the presumption of competence (¶89), at least in the abstract. There are good facts showing Melanie is competent: Everyone acknowledged Melanie could express an understanding of the advantages and disadvantages of the prescribed medication; she mostly complied with treatment conditions; she did not challenge the extension of her commitment, showing recognition of her illness; she even persuaded her treating physician to change her medication to one she’d used before and done well on. (¶¶22-26, 90). But facts like those won’t always be enough, for the case might have turned out differently if the County had produced more evidence–e.g., of unexplained noncompliance and problems resulting from that noncompliance–or “more carefully articulated its case.” (¶¶90, 95). And though it agrees with DRW’s point (¶93), the court advises a county that disapproves of the choices made by a person to “make a detailed record of the person’s noncompliance in taking prescribed medication and show why the noncompliance demonstrates the person’s substantial incapability of applying his or her understanding of the medication to his or her mental illness.” Be prepared, then, for just that sort of factual and legal argument.


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