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Defense win! County failed to prove patient received a reasonable explanation of proposed medication

Marinette County v. A.M.N., 2022AP1395, District III, 8/29/23, 1-judge decision ineligible for publication; case activity (briefs not available)

Faced with a weak record, COA holds that A.M.N. cleared imposing hurdles to relief and reverses the lower court’s medication order as there was no proof he received a reasonable explanation of the proposed medication. However, despite a hearing rife with inadmissible hearsay, COA upholds the underlying commitment order under a harmless error analysis. 

“Alex” appeals both an initial commitment order and an accompanying involuntary medication order. (¶1). We’ll start with the defense win on the medication issue first. Prior to Alex’s final hearing, he elected not to speak with either appointed examiner. (¶6, ¶11). Dr. Miller, one of the appointed examiners, testified that Alex was not taking his prescribed medication and that he was incompetent to refuse medication because he was “not able to understand the risks, benefits, and alternatives to medications.” (¶9). The doctor based that conclusion on his belief–informed by a review of treatment records–that a nurse practitioner “tried at least twice” to give Alex the requisite explanation under §51.61(1)(g)4. (¶10). The other examiner, Dr. Andrade, likewise based her testimony on a review of “collateral information.” (¶11). Thereafter, the circuit court found Alex incompetent under §51.61(1)(g)4.a. (¶14).

On appeal, Alex’s primary argument is that the County failed to prove he received the required explanation, a topic we have recently discussed at length in at least two recent posts. However, before COA can get to the merits, it first has to deal with mootness, as the underlying order has now expired. (¶21). Under L.X.D.-O., an expired medication order should be assessed under the general mootness doctrine. (¶23). While COA was skeptical in L.X.D.-O. that the “collateral consequences” stemming from an expired medication order would allow the appellant to evade a finding of mootness, COA acknowledges here that L.X.D.-O. reserved an argument that the “cost of care liability” statute (one basis for a finding of non-mootness with respect to the recommitment order at issue in S.A.M.) could provide that escape hatch. (Id.). However, when directly confronted with that argument here, COA assumes without deciding that “the cost of care liability does not save the issue from mootness.” (¶24). Although this means that Alex’s challenge is technically moot, COA holds that two of the mootness exceptions–that COA’s analysis “will provide further clarity and resolve uncertainty” and the issue is “capable and likely of repetition and yet evades review”–counsel in favor of addressing this appeal on the merits. (¶25).

COA then agrees “with Alex that the evidence before the circuit court was insufficient to prove he was provided the required explanation.” (¶33). Neither doctor “provided details regarding their reasoning” for the conclusion that Alex was incompetent to refuse medication and the evidence is clear that neither doctor explained “to Alex the advantages, disadvantages, and alternatives to the recommended medications.” (¶32). COA also works through a laundry list of hypothetical relevant evidence–including the testimony of the nurse practitioner who allegedly tried to speak with Alex about medication–that the County failed to present. (¶33). And, while COA recognizes “that an individual can relinquish his or her right to the statutorily required explanation,” COA refuses to hold that Alex forfeited his right to receive an explanation because “there was no admissible evidence provided at the final hearing as to the nature and extent of any attempt to provide Alex” with that explanation. (¶34). Conclusory references to a history of “noncompliance” are insufficient. (¶35).

However, while Alex wins the involuntary medication battle, he loses his broader challenge to the involuntary commitment. Here, the record is rife with clearly inadmissible hearsay. Following a growing consensus in recent COA decisions on this topic, COA does not try to defend this glaringly problematic record and instead assumes without deciding that the circuit court erred in admitting and relying on hearsay evidence in this Ch. 51 hearing. (¶17). Just like in L.A.T. (discussed here), however, COA affirms this commitment order due to other non-objectionable evidence in the appellate record supporting the lower court’s dangerousness finding. (¶18). Because other witnesses–including Alex himself–testified about Alex’s attempts to cut wires within his grandparents’ home, there was sufficient evidence that Alex was dangerous under the third standard. (¶20). Alex’s arguments that he took proper safety measures before cutting wires fail to persuade given other testimony about the propensity of people experiencing psychosis to undertake such risky (and presumably unnecessary) DIY projects. (¶19).

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