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COA affirms circuit court in an opinion generating more uncertainty about appellate challenges to Chapter 51 medication orders

Winnebago County v. D.E.W., 2023AP215, District II, 7/26/23, 1-judge decision ineligible for publication; petition for review granted 12/12/23; case activity (briefs not available)

In yet another appeal of a medication order, COA concludes the County sufficiently cleared legal hurdles meant to protect citizens from the involuntary administration of psychotropic drugs.

“Darren” appeals a medication order entered in conjunction with an extension of his Chapter 51 mental commitment. He makes several challenges, all of which are rejected by COA.

First, Darren argues the County failed to prove that he received a “reasonable explanation” of “the advantages and disadvantages of and alternatives to accepting the particular medication” as required by §51.61(1)(g)4., Virgil D. v. Rock County, and Outagamie County v. Melanie L. (¶11). Even though the plain text of the statute requires the doctor to convey information about a “particular medication,” here, COA concludes there was no requirement that the doctor explain, in his testimony, what medication was at issue and whether he informed Darren of the name of the medication the County was seeking to involuntarily administer. (¶12). The doctor testified about “some” unnamed and undescribed medication; in COA’s view, specificity is simply not required when dealing with a constitutionally protected right to refuse medication. (Id). Moreover, COA also brushes aside Darren’s arguments that the doctor’s testimony did not actually reveal that the discussion in question was sufficient; taken as a whole and placed in “context,” COA is satisfied that the legal requirements were met despite Darren’s detailed criticisms of the testimonial evidence. (Id.)

Notably, in resolving this first issue, Judge Gundrum cites his  prior unpublished but citable opinion in Winnebago County v. P.D.G., wherein COA dinged appellate counsel for failing to cite any “case law” supporting their position that a testifying doctor ought to be required to “identify during the final
hearing the name of the particular medication prescribed to the committee.” The problem, of course, is that the statute and the case law both make reference to the “particular medication” at issue as being a component of the doctor’s “reasonable explanation.” While it might seem reasonable to suggest that reference to a “particular medication” would be a logical component of any “reasonable” explanation, COA disagrees.

COA’s citation to P.D.G.–and its relatively breezy analysis of the doctor’s testimony–also highlights another tension in our law. As we have posted about before, the legal framework for evaluating an involuntary medication order is straightforward under both the plain statutory text and governing case law. Under Melanie L., the County seeking to involuntarily medicate a person must first prove that the person received a “reasonable explanation of the proposed medication.” Specifically, the “explanation should include why a particular drug is being prescribed, what the advantages of the drug are expected to be, what side effects may be anticipated or are possible, and whether there are reasonable alternatives to the prescribed medication.” (¶ 67).

However, despite the relatively strong language utilized by SCOW in Melanie L., the court of appeals has struggled to consistently apply these requirements to appeals of medication orders. Most recently, for example, District I issued its decision in Milwaukee County v. D.H., where, as we pointed out in our post, District I conducted a stringent analysis of the evidence supporting the medication order and issued an extremely strong defense win that seemed to wholeheartedly endorse the arguments of SPD-appointed appellate counsel. That decision is in line with other citable 1-judge defense wins holding the County to a strong “reasonable explanation” requirement which include Eau Claire County v. Mary S., Waukesha County v. Kathleen H.and Waukesha County v. M.J.S. Moreover, in a recent published case, Outagamie County v. L.X.D-OCOA agreed that “perfunctory” testimony at a medication hearing, standing alone, was insufficient to justify a medication order; to rescue the underlying order from reversal it was therefore forced to invent a bizarre new rule justifying reliance on an unadmitted expert report which (it claimed) satisfied the standard. See our post on that decision here.

However, given that many 51s do not result in citable authority, there are inevitably cases going the other way including Marquette County v. T.F.W (“reject[ing] T.F.W.’s apparent view that Melanie L. requires detailed testimony about what the patient was told”) and, as we discussed above, Winnebago County v. P.D.G. 

Of course, we would be remiss not to mention the other elephant in the room: SCOW’s decision in Winnebago County v. Christopher S.which upheld an involuntary medication order on sufficiency grounds in a cursory discussion that seems to omit or ignore the “reasonable explanation” requirement imposed by other precedent. Justice Abrahamson, in a concurrence (¶¶95-96), helpfully explains that the omission of those requirements from the Court’s discussion does not mean that the “reasonable explanation” requirement ceases to exist; only that, under “the record of this case”–where the doctor’s testimony was “not disputed”–there was no basis to reverse. Christopher S. didn’t claim to be overruling Melanie L. on that point; however, this has not stopped the court of appeals from interpreting Christopher S. in a way that waters down the reasonable explanation requirement.

All of this is to say that, at present, the law is highly unsettled with respect to the reasonable explanation requirement. Notwithstanding strong language from Melanie L. and Virgil D., SCOW’s intervening decision in Christopher S. may be the reason that COA has struggled to consistently enforce those precedents. Appellate litigators taking 51 cases therefore need to carefully scrutinize the record as to the “reasonable explanation” requirement, raise sufficiency challenges citing Melanie L.  and Virgil D. and hope that SCOW is interested in taking up one of these cases so as to (hopefully) reaffirm its precedent and put this issue to bed once and for all.

One final note: As we explained in our post on D.H., DHS has a library of “informed consent” forms related to commonly-used psychotropic medications. Ostensibly, these informational sheets are designed to guide doctors in advising patients about the risks of commonly-prescribed drugs and are therefore an extremely useful cross-examination tool in medication hearings. While Darren tried to use those forms in support of his sufficiency issue here, COA sidestepped that issue as it believed the argument had been improperly raised for the first time on appeal. (¶12 n.4). Trial lawyers take note!

Setting aside the reasonable explanation requirement, Darren also argues that the evidence was insufficient to medicate him under either incompetency standard. (¶13). COA concludes the County proved both that Darren was “incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives” and that he was “substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his … mental illness … in order to make an informed choice as to whether to accept or refuse medication or treatment.” (Id.). As legal support, COA relies extensively on Christopher S.which it cites as an example of SCOW approving “conclusory” testimony from the doctor as to these statutory standards. (¶¶14-15).

As to the first standard–whether Darren was incapable of “expressing” an understanding–other than conclusory testimony echoing the statutory language, the doctor testified that: (1) Darren refused medication, expressed an opinion he did not “need it” and that medication only helped him sleep; and (2) you “can’t conduct a rational conversation with” Darren. (¶17). Although COA agrees that “more detail” may have been “helpful” it wasn’t “necessary.” (Id.)

As to the second standard–that Darren was incapable of “applying” an understanding, COA concedes that the doctor’s testimony “did not precisely track the statutory language in every respect […].” (¶20). As support for the doctor’s testimony, however, COA points once again to Darren’s refusal, as well as his prior violent actions and his claimed “detachment from reality” which prevents him from understanding that his violent conduct is linked to his mental illness. (¶19). Moreover, COA ultimately asserts that whether the evidence “supporting [the doctor’s] opinion is thin or plentiful”  does not really matter because the circuit court found the doctor credible. (¶20).

This case presents the new trend in Chapter 51 appeals: Authored opinions tempering their full-throated endorsement of medication and commitment orders based on weak trial court records with tangential admonitions to circuit court actors to try a little harder next time. See Winnebago County Dep’t of Human Servs. v. L.J.F.G.and Racine County v. P.J.L.

This decision is especially concerning as it seems to expressly brush aside arguments regarding the sufficiency of the evidence by pointing out they are somehow irrelevant in light of a lower court’s “credibility” finding. Respectfully, if the examiner’s testimony is insufficient, it remains unclear to this writer how a rote finding of “credibility” rescues that deficient testimony. Moreover, by endorsing this problematic record, COA substantially waters down important protections meant to ensure that citizens are not routinely medicated against their will just for disagreeing with their doctor, as SCOW cautioned against in its Virgil D. decision (holding that the issue isn’t whether the person is making the “wrong” choice but whether they are making an informed choice). Darren’s refusal, his assessment of the drug’s benefits (it helps him sleep) and his prior acts of violence don’t seem to support the finding of incompetency. Let’s hope he petitions for review on this one.

Finally, in a footnote, COA dismisses Darren’s challenge to the admission of hearsay evidence at the medication hearing, appearing to hold that any error was harmless although, without a full discussion of the issue in the body of the opinion, it is difficult to assess that outcome. (¶20 n.6).

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