Mary S. was placed under a Chapter 51 mental health commitment and involuntary medication order in 2011, and those orders were extended once. But when the County sought to extend the orders again, Mary objected and argued that the County, which bore the burden of proof, failed to establish that Mary was incompetent to refuse medication, per Wis. Stat. § 51.61(1)(g)4.
The presumption is that an individual is competent to make that decision. Virgil D. v. Rock Cnty, 189 Wis. 2d 1, 14, 544 N.W.2d 894 (1994). To beat the presumption, the County must prove that the individual is either (a) incapable of expressing an understanding of the advantages and disadvantages of, and alternatives to, accepting medication, or (b) substantially incapable of applying an understanding of this information to her mental illness in order to make an informed decision. Either way, somebody first has to explain the advantages, disadvantages and alternatives to the individual, and that’s where the County slipped up in this case.
In Outagamie Cnty v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607, SCOW described what precisely a “reasonable explanation of a proposed medication” includes:
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. The explanation should be timely, and, ideally, it should be periodically repeated and reinforced. Medical professionals and other professionals should document the timing and frequency of their explanations so that, if necessary, they have documentary evidence to help establish this element in court. Id., ¶67.
The County failed this test because its sole medical witness admitted that he discussed the proposed medication with Mary, but there was no proof that he explained why a particular drug was being prescribed, the advantages of the drug, the side effects of the drug, and the alternatives to the drug. His testimony was too conclusory. Slip op. ¶¶14-16. See our prior, detailed post re the Melanie L. standard right here.
As “Plan B” the County argued that once the circuit court found that Mary was not competent to refuse medication, then she , not the County, bore the burden of proving that she regained competency to make the decision. But the court held that no statute or case supports that assertion. Moreover, even if the burden had shifted, the County still needed, but failed, to prove that Mary had received a reasonable explanation of the medication first. Slip op. ¶20.