“Dana” has been under commitment since 2017. It is undisputed that she has taken her medication and has done nothing dangerous in the interim. Yet the court of appeals affirmed her 2021 recommitment because she questions her diagnosis and her need for medication and has concerns about its health effects. The court said that if she were released, she would decline medication and decompensate. Her case highlights a tension between §51.20(1)(am) and a person’s 14th Amendment right to refuse medication. It also shows that courts continue to misapply §51.61(1)(g)4., the involuntary medication statute.
At Dana’s recommitment trial, her court-appointed examiner testified that she should not be released until she shows “less arguing” over medication and demonstrates a willingness to take it voluntarily. Without it, she would revert to her pre-2017 behavior of self-neglect, off and on homelessness, and placing paper in electrical outlets. Opinion, ¶7.
Dana’s therapist testified that she should be recommitted because she questioned her diagnosis (schizophrenia) and believed that her (unidentified) medication had detrimental health effects and wasn’t really benefitting her. The therapist noted that while Dana took her schizophrenia medication she had stopped taking medication to control its side effects. Opinion, ¶¶9-10.
An independent examiner agreed that Dana was mentally ill but said she should have a chance to demonstrate that she can address her mental health needs without a commitment. Dana had not been dangerous since 2017, she demonstrated independence in her daily activities, and she kept her medical appointments. Opinion, ¶11
Dana testified that a doctor she had worked with for 9 years never saw signs of schizophrenia so she was “still working with” trying to accept that diagnosis. She also said she would continue with current treatment if released from commitment. Opinion, ¶12.
The court of appeals found sufficient evidence to recommit Dana under either the third or fourth standards of dangerousness based on the examiner’s prediction that if released she would not take antipsychotic medication voluntarily, which would lead to a repeat of her precommitment behavior: psychosis, self-neglect, homelessness, and putting paper in electrical outlets. Opinion, ¶¶22-28.
The court of appeals said: “[W]e are cognizant that, by design, in certain recommitment cases acts or symptoms from far in the past can justify an extension of a commitment even when no issues or symptoms have presented themselves recently.” Opinion, ¶27. (Emphasis supplied). It cited no authority for that proposition. Cf. O’Connor v. Donaldson, 422 U.S. 563, 574-574 (1975)
For a recommitment, a court must determine whether a person is mentally ill, a proper subject for treatment, and dangerous. The government may prove dangerousness by showing that if treatment were withdrawn the person would become the proper subject of commitment again. Wis. Stat. §51.20(1)(am). In other words, a recommitment hinges on the person’s willingness to continue treatment or medication voluntarily.
The problem is that a person has a 14th Amendment right to refuse medication and treatment. To override that constitutional right, the government must prove that she is both: (1) dangerous, and (2) incompetent to make informed decisions about medication and treatment Winnebago County v. C.S., 2020 WI 33, ¶¶31-33, 391 Wis. 2d 35, 940 N.W.2d 875.
Wisconsin’s recommitment standard requires proof of a person’s future dangerousness. It does not require proof of a person’s future ability to exercise informed consent about whether to accept or refuse medication. That would be impossible to prove because there must be a contemporaneous doctor-patient discussion about medication or treatment. Thus, as in Dana’s case, Wisconsin courts recommit people to prevent them from exercising their constitutional right to refuse medication that often has serious health effects. And they do so without requiring the government to satisfy both criteria for overriding that constitutional right.
To that, a court might say: “The examiner testified that if the person is released from commitment she will become psychotic, which means she can’t make medication/treatment decisions.” But SCOW has repeatedly held that: “An individual may be psychotic, yet nevertheless capable of evaluating the advantages and disadvantages of taking psychotropic drugs and making an informed choice.” Virgil D. v. Rock County, 189 Wis. 2d 1, 12-13 524 N.W.2d 894 (1994)(citing State ex rel. Jones v. Gerhardstein, 141 Wis. 2d 710, 728, N.W.2d 883 (1987).
This brings us to Dana’s involuntary medication order. The court of appeals held:
The testimony of Dr. Bales and Chaganos made it evident that Dana did not believe she had schizophrenia, she constantly asked to change or be taken off of her medication, and she embellished the medication’s side effects, despite her serious condition. In this context, we agree with Bales’ analysis—relied upon by the circuit court—that Dana was incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives. Opinion, ¶31.
A court may not order involuntary medication because the person disagrees with her doctor’s recommendation. Virgil D., 189 Wis. 2d at 15-16 (“Simply because Virgil disagrees with the recommendation of the examining psychiatrist, he does not lose his right to refuse administration of the drug.) See also Outagamie County v. Melanie, 2013 WI 67, ¶45, 349 Wis. 2d 148, 833 N.W. 607.
A court may order involuntary medication only if, after a reasonable explanation, the person is either (a) incapable of expressing an understanding of the advantages, disadvantages, and alternatives to medication or treatment in order to make an informed decision or (b) substantially incapable of applying an understanding in order to make an informed decision about whether to take it. Wis. Stat. §51.61(1)(g)4.
The court’s first step is to determine whether the doctor gave the person a “reasonable explanation” of the advantages, disadvantages, and alternatives to the recommended medication. Melanie L., ¶67; Virgil D., 189 Wis. 2d at 14. Here, the court of appeals never identifies Dana’s medication, never describes the “explanation” that Dr. Bales gave to her, and never finds his unknown explanation “reasonable.’
The court’s next step is to determine the person’s “understanding” of the proposed medication or treatment. It does so by considering the 5 factors listed in Virgil D., 189 Wis. 2d at 15. The court of appeals skips these 5 factors and focuses on Dana’s understanding of her diagnosis and her objection to taking medication. But, again, under Virgil D. and MelanieL., she has the right to disagree with Dr. Bales and choose a life with mental health problems rather than antipsychotic medication the same way people choose to live with cancer rather than undergo radiation or chemotherapy.