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Defense win! County failed to prove examiner gave “reasonable explanation” of medication

Milwaukee County v. D.H., 2022AP1402, 3/7/23, District 1 (1-judge opinion, ineligible for publication); case activity

To obtain an involuntary medication order, a county must satisfy the multi-step test for incompetency to make medication decisions in §51.61(1)(g)4. The first step requires the county to prove that the person received a “reasonable explanation” of the advantages, disadvantages, and alternatives to medication. The examiner can’t just testify that she complied with the statute. She must tell the court what she told the person about the medication. In “Dan’s” case, the court of appeals reversed the involuntary medication order because the county failed this step.

At Dan’s medication hearing, Dr. Anderson testified that she prescribed 7 different medications, and they were administered to him 15 times a day. One of the medications–escitalopram–was new for him. Another medication–Haloperidol–was administered through an intramuscular injection when Dan refused to take certain medications orally.

SCOW holds that before ordering involuntary medication, the circuit court must first be satisfied that the person received a “reasonable explanation” of it. Outagamie County. v. Melanie L., 2013 WI 67, ¶37, 349 Wis. 2d 148, 833 N.W.2d 607; see also Virgil D. v. Rock County, 189 Wis. 2d 1, 14, 524 N.W.2d 894 (1994). 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. The explanation should be timely, and, ideally, it should be periodically repeated and reinforced. Id., ¶67. (Emphasis supplied).

If the county satisfies this step, it may proceed to prove that the person is either “incapable of understanding” or “substantially incapable of applying an understanding of” the advantages, disadvantages, and alternatives to the prescribed medication. Opinion, ¶13.

The court of appeals held that the County failed the first or “reasonable explanation” step in Dan’s case for the following reasons:

¶17 First, we consider the discussion of Haloperidol to be inadequate. The record reflects that Dr. Anderson did not testify that she explained the advantages and disadvantages of Haloperidol to Dan, despite relying upon Haloperidol as the preferred alternative and injectable option for three other drugs. She did not explain why Dan was prescribed three other medications when one medication could serve as an acceptable alternative to all three.

¶18 Second, Dr. Anderson’s testimony about escitalopram was insufficient. The discussion was brief, referencing that it was a treatment for anxiety. However, the doctor did testify that Dan had only used the medication for about two months. As a newer medication, there is no record to support that there has been an ongoing conversation over his multi-year treatment plan to discuss this medication. Further, she did not discuss why this medication was added into the medication roster and whether it replaced another medication or responded to a new symptom.

¶19 Third, the doctor’s testimony regarding side effects appeared to minimize this issue. Although the doctor testified that she prescribed Benztropine as a probable prophylaxis of side effects and stated that Dan had a high risk of developing side effects because he was also prescribed Risperidone, she failed to discuss what side effects would be prevented. Further, the doctor did not testify about any serious side effects to the medication list, but only mentioned mood, weight gain, and sedation. On appeal Dan references far more serious side effects to Haloperidol, a point noted by this court in State v. Green, 2021 WI App 18, ¶23, 396 Wis. 2d 658, 957 N.W.2d 583, review granted, 2022 WI 88, and aff’d in part, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770.11

If you think that the court of appeals is requiring a more detailed medication explanation than necessary, consider what the Wisconsin Department of Health Services requires patients to acknowledge in writing before accepting the very same medications that are often administered to SPD clients involuntarily. DHS has created a separate “informed consent” form for each medication.  Click here. The patient must sign off on a long list of potential side effects.

For instance, suppose a doctor recommended Haldol. DHS says that before taking the medication, the patient must acknowledge that its “most common” side effects include fainting, mask-like face, shaking of hands, inability to move eyes, worm-like movements of the tongue, trouble breathing, uncontrolled twisting movements of neck, trunk, arms or legs, among many other things. See DHS’s “informed consent” form for Haldol here. Have you ever seen a court-appointed examiner testify that she explained these comment side effects to an SPD client?

Note that §51.20(1)(g)4‘s “reasonable explanation” requirement is also included §55.14(1)(b), §971.14(3)(dm), §971.16(3), and §51.20(1)(a)2.e (the 5th standard of dangerousness for a commitment). That means defense lawyers may use this decision to defend against involuntary medication under any of these statutes.

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