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COA affirms another medication order by rejecting “reasonable explanation” arguments; continues to propagate uncertainty in our law

Winnebago County v. P.D.G., 2022AP2005, District II, 8/16/23, 1-judge decision ineligible for publication; case activity (briefs not available)

In yet another appeal of a medication order attacking the sufficiency of the evidence as to the statute’s requirement that the person receive a “reasonable” or “adequate” explanation of, among other things, the advantages and disadvantages of proposed medication, COA once again affirms in a decision highlighting uncertainty in our law.

This case arises from the rare circumstance in which a jury, not the judge, determined there was sufficient evidence to enter a medication order pursuant to §51.61(1)(g)4. (¶2). It would appear, from COA’s relatively scanty discussion of the facts, that the jury answered a special verdict form as to whether the County proved that “the advantages, disadvantages, and alternatives to psychotropic medications were explained to P.D.G.”  (Id.)

On appeal, P.D.G. argues that the testifying doctor’s testimony failed to track the exacting requirements of Outagamie County v. Melanie L., which holds that the person must receive not only “an explanation,” but, more significantly, a “reasonable explanation” that covers a number of enumerated topics; ideally, the County should also have documentary evidence to show the “timing and frequency” of when the required information was conveyed. (¶5).

However, COA relies on our old friend Winnebago County v. Christopher S., to hold that the SCOW has established a lower standard as the upheld medication order in that case was “based on testimony regarding an explanation that was far less detailed than what P.D.G. argues was insufficient here.” (¶12). Drawing a seeming distinction between what is required in a bench trial and what suffices as adequate evidence in a case tried to a jury, COA holds that, because the doctor’s testimony “closely tracked” the statutory language, the medication order was adequately supported by clear and convincing evidence. (Id.).

Admittedly, COA’s recitation of the evidence demonstrates a more adequate record than one might otherwise expect in this type of case; certainly, based on COA’s discussion of the facts, the doctor in this case may have done a better job than the doctor in the recently issued D.E.W. case involving a similar appellate challenge, covered here (note that, if you’ve read the post previously, some of the language therein was recently updated and clarified after reader feedback). And, it could be argued that D2 took P.D.G.’s arguments more seriously than it did the last time he appealed a medication order.

However….it cannot be denied that there is something amiss here. Comparing this case to the rigorous analysis in another recently issued medication appeal, Milwaukee County v. D.H., it appears that COA is not consistently applying the same requirements to assess controverted medication orders.

COA’s citation to Christopher S.–a decision which did not purport to overrule Melanie L. but still finds itself (kinda sorta) being cited as establishing a change in the law, or at least a change in how challenges to medication orders ought to be critically examined on appeal–cleanly highlights the underlying doctrinal tension. In simple terms, there is an underlying dispute as to whether there is a meaningful distinction between, on the one hand, aspirational statements about what an explanation must look like when given to the patient and, on the other, what the record on appeal must contain to uphold a medication order. While one might think it is impossible to assess the “reasonableness” of an explanation when deprived of testimonial detail, it is also worth noting that application of modifiers like “reasonable” or “adequate” are extratextual; suffice it to say, if one of these cases gets granted, we should be in for an interesting debate between warring schools of judicial philosophy on our highest court. Let’s hope we get an answer to these questions soon!

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