This is the third court of appeals decision on Sell v. United States in three weeks. As in State v. Green, District 4 here again holds that the State must file an individualized treatment plan to support a motion for involuntary medication to restore a defendant’s competence for trial. A psychiatrist’s report simply opining that medication is necessary to restore competency does not satisfy Sell. Green and Engen conflict with District 1’s decision this week in State v. Anderson, which holds that a report by a psychologist (who cannot prescribe medication) simply opining that the defendant needs medication to regain competence, satisfies Sell. The Engen decision is important for several other reasons as well.
Lawyers working on involuntary medication orders will want to read Sell v. United States (establishing the State’s burden of proof), State v. Fitzgerald (declaring parts of §971.14 unconstitutional), and State v. Green (teasing out the State’s burden of proof and rejecting the State’s attempt to rewrite §971.14(5)(a)1). See our posts on Fitzgerald and Green.
In this case, the court of appeals noted that the State itself now concedes that it must file an individualized treatment plan to support a request for involuntary medication:
¶22 Specifically, the State acknowledges that it could not satisfy the second, third, and fourth Sell factors without providing an individualized treatment plan. It acknowledges that an individualized plan is required to “guide the court’s decisions about whether involuntary medication will further the State’s interest, is necessary to achieve those interests, and is medically appropriate.”
¶23 The State’s concession is particularly well founded in light of our recent decision in Green, No. 2020AP298. In that case, the State offered a treatment plan for Green. However, the plan was generic and failed to consider or account for Green’s individual circumstances, such as his likely response to the medication specified in the plan, the likelihood that it would render him competent, and the likelihood of side effects that might impair his ability to participate in his defense. Id., ¶¶37-38. As we explained, “[i]t is not enough for the State to simply offer a generic treatment plan with a medication and dosage that are generally effective for a defendant’s condition. Rather, the circuit court must consider the defendant’s particular circumstances and medical history to assess the underlying factual questions” that Sell requires the court to address. Id.,¶34.1
Because the State failed to offer an individualized treatment plan, the court of appeals reversed the involuntary med order in Engen’s case.
The State also argued that because Engen exercised his right to appeal the circuit court’s involuntary medication order, §971.14(5)(a)1‘s time limit for restoring him to competency should be stayed during his appeal. Following Green, the court of appeals held that there is no authority fo the State’s argument on this point. Opinion, ¶¶28-29.
One important issue in this appeal was whether defense counsel is entitled to Engen’s past treatment records without his consent, in order to prepare for Chapter 971 proceedings. Engen cited §51.30(4)(b)11. and 45 C.F.R. § 164.512(e)(l)(i) (2019). The circuit court held that letting defense counsel see his client’s records violated HIPPA. The court of appeals noted that the State conceded that the circuit court was wrong and the defense was right. Because the court of appeals reversed on the treatment plan error, it did not address this issue further. Opinion, ¶10 n.5.
A second important issue in this appeal (and in Green) concerned the standard an appellate court applies when reviewing an involuntary med order. Engen argued for de novo review. The State argued for the “clearly erroneous” standard. As in Green, the court of appeals here held that the State’s evidentiary showing was so lacking it couldn’t prevail under either standard. Opinion, ¶19 n. 10. Thus, it did not decide the point.
A third important issue in this appeal concerned the automatic stay/lift procedure prescribed by State v. Scott. See our post here. To circumvent Scott, some circuit courts acknowledge that it imposes an automatic stay of an involuntary medication order. Then they turn to the State and ask it to move to lift the stay. Then they grant the State’s motion to lift. This procedure takes . . . oh about 2 minutes. Engen’s trial lawyer argued that Engen was denied his due process right to notice of the motion to lift and an opportunity to prepare a defense. The court of appeals acknowledged that this procedure “all but invited the due process challenge.” Unfortunately, it declined to address the issue on the theory that its subsequent order reinstating the stay cured the error. Because some circuit courts and the State are defying Scott, a published opinion on this issue is sorely needed. Opinion, ¶28 n. 13.