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County failed to prove lack of competence to refuse medication or treatment

Waukesha County v. Kathleen H., 2014AP90, District 2, 6/25/14 (1-judge; ineligible for publication); case activity

The County did not show that Kathleen, the subject of a ch. 51 commitment proceeding, is incompetent to refuse medication or treatment because it did not show that the advantages, disadvantages, and alternatives to her medication were explained to her, as required by § 51.61(1)(g)4. and Outagamie County v. Melanie L., 2013 WI 67, ¶¶91, 97, 349 Wis. 2d 148, 833 N.W.2d 607.

At a hearing on a petition to extend Kathleen’s ch. 51 commitment, the County presented only the report and testimony of one Dr. Cahill regarding Kathleen’s competence to refuse medication or treatment. The court concludes Cahill’s “conclusory” evidence is inadequate in light of Melanie L.‘s directive that evidence from the medical professional closely follow the statutory terms so that courts don’t have to speculate about the reasonableness of the explanation of the advantages and disadvantages of, and alternatives to, specific medications or treatment:

¶8    … In his written report, Cahill did not provide any detail of any discussion about the particular medications other than that they could “reduce distress” and that “side effects [are] possible.” There is no indication that he discussed why the particular drugs were prescribed, what the benefits were, or what specific side effects were possible. Regarding alternatives, Cahill only indicated “none.” There was no account of any discussion regarding possible reasonable alternatives, if any.

¶9     Cahill’s testimony seemed to suggest that he did not enter into a detailed discussion with Kathleen about the medications because he knew she would protest their administration. Cahill included Kathleen’s rambling discussion of the effects of psychotropic drugs on her health. But Kathleen’s thoughts on why she does not want to take medications tell us nothing about what explanation she received regarding the proposed medications’ advantages, disadvantages, and alternatives. Furthermore, no one testified that it was impossible to have a discussion with Kathleen. Cahill’s conclusory report and testimony that he discussed many medications with Kathleen does not establish by clear and convincing evidence that he gave Kathleen a reasonable explanation of the proposed medications.

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