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Seemingly unaware of multiple statutes, court of appeals declares appeal from NGI conditional release plan moot

State v. Justice G. Armstead, 2017AP1586-CR, 5/30/18, District 1 (1-judge opinion, ineligible for publication); case activity (including briefs)

Armstead pled NGI to 2 misdemeanors, pursuant to §971.16. The court ordered his conditional release into the community for 6 months, along with involuntary medications. Five months into the order, Armstead filed a motion for postdisposition relief  arguing that both the examining physician and the circuit court applied the wrong legal standard for ordering involuntary medications. The circuit court denied the motion. The conditional release order expired a week later but Armstead appealed anyway. The court of appeals dismissed his appeal as moot. In doing so, it made a significant error of law.

Ostensibly, the trial court ordered involuntary medications because the advantage of, disadvantages of and alternatives to medication or treatment were explained to Armstead and he was “substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness . . . in order to make an informed choice as to whether to accept or refuse psychotropic medication or treatment. Wis. Stat. §971.16(3)(b).” Judging from Armstead’s brief, the doctors and the circuit court didn’t come close to applying it. They criticized him for refusing medications due to their side effects, and he didn’t appreciate the advantages of medication. (Initial Brief at 7-8). The circuit court found him not competent to refuse them. (Id.)

So . . . if you think the disadvantages of medication outweigh the advantages, then you’re incompetent to refuse them?

On appeal, Armstead pointed out that he is facing 2 new felony charges and has been found not competent to proceed, so the issue in this case could recur. The court of appeals dismissed the appeal as moot because he was no longer subject to the order being appealed. In addition, it held:

¶9 [I]f for some reason the issue of involuntary medication were to arise, the trial courts in those cases could not rely on any medical opinions in this case. The issue of whether Armstead could be subject to involuntary medication would depend upon his medical condition at the time the issue arises, not his medical condition during this case. The trial court would appoint an expert to examine Armstead and a report would be submitted. There is no indication that the doctor who examined Armstead in this case would be the doctor who would examine him in the new cases. Further, the trial court in the new cases is not the same court that decided this case. In determining whether involuntary medication is appropriate, the trial court would apply the proper standards under WIS. STAT. § 971.17(3), in light of the controlling case law, to the evidence introduced in any hearing held by that trial court. Such a hearing and decision by that trial court would be independent of proceedings in this case.

The court of appeals is mistaken. When a doctor or psychologist examines a defendant for a determination of whether he is incompetent to stand trial under 971.14 or he is NGI or appropriate for conditional release under 971.17, the doctor gets to review and rely on the defendant’s “treatment records,”  a term defined broadly in 51.30(1)(b). So an erroneous conditional release plan (one premised on an incorrect application of the legal standard for incompetence to refuse meds, for example) can indeed be used against the defendant in future 971.14, 971.17, and Chapter 51 proceedings. See §§971.14(2)(e), 971.17(2)(e), 971.17(4)(c), 971.17(7), 51.30(4)(b)(11). That’s not all, DHS and DOC also get to rely on those erroneous records. See §51.30(3)(b) for a long list of folks who get access to treatment records without informed written consent. In Armstead’s case, the harm is not theoretical. He has been charged with 2 new felonies and has been found not competent to proceed. The doctor who made that assessment was required to review his “treatment records.” Bottom line: erroneous treatment records can have a  impact on your client.

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