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Evidence supported extension and involuntary medication orders

Waukesha County v. E.A.B., Jr., 2021AP986-FT, District 2, 9/8/21 (one-judge decision; ineligible for publication); case activity

E.A.B. was first committed in 2008. At what would appear to be the 12th extension hearing, in 2020, it was extended again. E.A.B.’s challenges to the sufficiency of the evidence for that extension, and for the associated medication order, are rejected by the court of appeals.

E.A.B. has a mental health diagnosis and a prior traumatic brain injury (TBI), which complicates the picture in terms of the extent to which his behavior is due to the treatable mental illness versus the incurable TBI. (¶2). He argues the evidence at the latest extension hearing was insufficient to prove a substantial likelihood that he would become dangerous if treatment were withdrawn because his initial commitment was based on the fifth standard under § 51.20(1)(a)2.e. rather than on aggression or violent acts. He also argues the circuit court extended the commitment based on a disputed incident in August 2020 between E.A.B. and a caregiver, though the County provided few details about that incident while E.A.B. testified he was defending himself. (¶¶9-16).

The court of appeals holds the evidence is sufficient to prove dangerousness:

¶19     Kohlenberg testified to a reasonable degree of medical certainty that E.A.B. would become dangerous under one of the five standards enumerated in Wis. Stat. § 51.20(1)(a)2. if treatment were withdrawn: “I believe he would become dangerous to others. He may have trouble caring for his needs as well, but the primary concern would be aggression and danger towards others, as he has repeatedly experienced.” See § 51.20(1)(a)2.b.… This testimony was unrebutted. Kohlenberg explained that the medication “decreases severity of his behavioral symptoms like aggression and agitation. It also helps to improve his though process and decrease the severity of his delusional beliefs and auditory hallucinations.” His medical opinions were founded upon E.A.B.’s treatment records as well as his evaluations “over the last 11 years.” Kohlenberg testifiedthat the “foundation for [his] belief” that E.A.B. “would be a danger to others due to physical aggression” was that “[t]his has been an experience for [E.A.B.] reoccurring over many years, including most recently in August of this last year.” Although not required under § 51.20(1)(am), see [Portage County v.] J.W.K., [2019 WI 54,] 386 Wis. 2d 672, ¶19[, 927 N.W.2d 509] (noting that the recommitment standard “recognizes that an individual receiving treatment may not have exhibited any recent overt acts or omissions demonstrating dangerousness because the treatment ameliorated such behavior”), the County presented evidence of a recent incident in August 2020 where E.A.B. exhibited physical aggression toward others, including attacking a staff member at his group home, breaking pictures on the wall, and scaring a staff member’s child. Kohlenberg testified that E.A.B. would not take medication if not under a commitment order, and both he and Weber opined that without treatment E.A.B. would decompensate, as had happened in the past.

The court also rejects E.A.B.’s argument that the evidence didn’t support the medication order because in testifying about the explanation of the advantages, disadvantages, and alternatives to medication given to E.A.B. as required under § 51.61(1)(g)4.b., the County’s witness gave only “generic” testimony referring to the statutory language. (¶¶21-22). “Kohlenberg’s testimony sufficiently conveyed that he was unable to engage E.A.B. in an effective discussion regarding E.A.B.’s treatment and the advantages and disadvantages, as E.A.B. does not recognize that he is mentally ill. While E.A.B. was able to recognize the name of the medication, he was unable to convey the risks and benefits or whether he suffered any side effects as a result of the treatment.” (¶23).

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