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State may involuntarily medicate committed prisoners without finding them dangerous first

Winnebago County v. C.S., 2019 WI App 16, petition for review granted, 8/19/19; case activity

C.S., a mentally ill prisoner committed pursuant to §51.20(1)(ar), challenged the constitutionality of §51.61(1)(g) on its face and as applied because it allowed the government to medicate him against his will without finding him dangerous first. In a published decision, the court of appeals upholds the statute.

Chapter 51 contains one commitment standard for non-prisoners and another commitment standard for prisoners. The State cannot commit a non-prisoner unless that person is dangerous. See §51.20(1)(a) and O’Connor v. Donaldson, 422 U.S. 563 (1975).  However, the State may commit a mentally ill prisoner without a finding of dangerousness.  See §51.20(1)(ar) and Winnebago County v. C.S., 2016 WI 1, 366 Wis. 2d 1, 878 N.W.2d 109 (also referred to as C.S. I).

A committed person (whether a prisoner or not) has the right to refuse medication or treatment unless it is necessary to prevent serious physical harm to the person or others, or  the person is incompetent to refuse medication or treatment. See §51.61(1)(g)2, 3 and 4. C.S. argued that because  the State may commit a prisoner without a finding of dangerousness, it may then involuntarily medicate the prisoner without a finding of dangerousness simply by proving that he is incompetent to refuse medication or treatment.  According to C.S., this violates Washington v. Harper, 494 U.S. 210 (1990), which holds that a mentally ill prisoner has a significant liberty interest in avoiding unwanted treatment or medication. The State can override that interest only by proving that the prisoner is dangerous and the treatment is in the prisoner’s medical interest. Id. at 1039-1040. See also State v. Wood, 2010 WI 17, ¶25, 323 Wis. 2d 321, 780 N.W.2d 63.

The court of appeals held that Harper‘s dangerousness requirement only applies to prisoners who are competent to refuse medication. When a prisoner is incompetent to refuse medication, the State may medicate him without a finding of dangerousness. Opinion, ¶16 (citing Justice Stevens’ concurrence/dissent to Harper, which drew this distinction).

¶19 We disagree with C.S. that the conclusions in Harper and Wood dictate a finding that WIS. STAT. § 51.61(1)(g) is unconstitutional. The important distinction is the difference between a competent mentally ill individual (must prove dangerousness under the second prong in § 51.61(1)(g)3.), as in Harper, versus a not competent mentally ill person such as C.S. (must prove not competent under the first prong in § 51.61(1)(g)3.). The legitimate interest in Harper was the safety and security of the prison, not the care and assistance of its mentally ill inmates. Harper requires a finding of dangerousness when the State seeks to involuntarily medicate a competent inmate when it relies entirely upon “the safety and security of the prison as its legitimate reason for administering the antipsychotic medication.” C.S. I, 366 Wis. 2d 1, ¶46 n.26.

“A dissent is what the law is not.” State v. Perry, 181 Wis. 2d 43, 49, 510 N.W.2d 722 (Ct. App. 1993). So to the extent that Justice Steven’s concurrence/dissent drawing a distinction between prisoners who are competent to make medication decisions and those who are not proves anything it proves that the Harper majority did not agree with this distinction. The court of appeals cited no other authority for this distinction. Indeed is worth noting that ABA Criminal Justice Standards on Mental Health contradict the court of appeals on this point.

(a) Involuntary medication of a prisoner should be permitted only if the prisoner is suffering from a serious mental disorder, non-treatment poses a significant risk of serious harm to the prisoner or others, the treatment is medically appropriate, and no less intrusive alternative is reasonably available. See Id., Standard 7-10.4  Right of Prisoner to Refuse Treatment. (Emphasis supplied).

This decision will make for a great petition for review.

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