Outagamie County v. Melanie L. , 349 Wis. 2d 148 ( 2013 )

2013 WI 67SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP99
COMPLETE TITLE: In the matter of the mental commitment of
Melanie L.:
Outagamie County,
Petitioner-Respondent,
v.
Melanie L.,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 342 Wis. 2d 253, 816 N.W.2d 352(Ct. App. 2012 – Unpublished)
OPINION FILED: July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: February 26, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Outagamie
JUDGE: Michael W. Gage
JUSTICES:
CONCURRED:
DISSENTED: ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., dissent.
(Opinion filed.)
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
by Suzanne Hagopian, assistant state public defender, and oral
argument by Suzanne Hagopian.
For the petitioner-respondent, there was a brief by Mark G.
Schroeder, assistant corporation counsel, and Outagamie County,
and oral argument by Mark G. Schroeder.
An amicus curiae brief was filed by Kristin M.
Kerschensteiner, Madison, on behalf of Disability Rights
Wisconsin.
2
2013 WI 67NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP99
(L.C. No. 2011ME17)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
Melanie L.:
Outagamie County, FILED
Petitioner-Respondent,
JUL 11, 2013
v.
Diane M. Fremgen
Clerk of Supreme Court
Melanie L.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 DAVID T. PROSSER, J. This is a review of an
unpublished decision of the court of appeals,1 affirming a
decision of the Outagamie County Circuit Court2 that granted
1
Outagamie Cnty. v. Melanie L., No. 2012AP99, unpublished
slip op. (Wis. Ct. App. May 22, 2012).
2
Judge Michael Gage presiding.
No. 2012AP99
Outagamie County's (the County) petition for the extension of an
involuntary medication order against Melanie L. (Melanie).
¶2 Originally the County sought and obtained a court
order for Melanie's mental health commitment under Chapter 51.
The court committed Melanie to the County for outpatient care
and custody for a period of six months. The court also issued
an order for involuntary medication and treatment. Melanie did
not challenge either of these two orders.
¶3 Shortly before the end of the six months, the County
sought, and the circuit court granted, an extension of both
orders for an additional 12 months.
¶4 With respect to the latter order, the County relied on
Wis. Stat. § 51.61(1)(g)4.b.3 to establish that Melanie was
incompetent to refuse medication. The statute provides:
4. . . . [A]n individual is not competent to
refuse medication or treatment if, because of mental
illness . . . and after the advantages and
disadvantages of and alternatives to accepting the
particular medication or treatment have been explained
to the individual, one of the following is true:
. . . .
b. The individual is 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
medication or treatment.
Wis. Stat. § 51.61(1)(g)4.b.
3
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.
2
No. 2012AP99
¶5 Melanie appealed only the extension of the involuntary
medication order. She contended that the County did not meet
its burden of proving her incompetent to refuse treatment under
Wis. Stat. § 51.61(1)(g)4.b.
¶6 Specifically, Melanie argued that the examining
doctor's opinion that she was incompetent to refuse medication
did not satisfy the statutory standard because the doctor
testified that Melanie was not "capable of applying the benefits
of the medication to her advantage" rather than that she was
substantially incapable of applying an understanding of the
advantages, disadvantages, and alternatives to her mental
illness in order to make an informed choice as to whether to
accept or refuse medication. Melanie also argued that the
circuit court misapplied the statutory standard by relying too
heavily on her mental illness to support the medication order,
even though there was evidence that she could apply an
understanding of the advantages, disadvantages, and alternatives
of medication to her mental illness.
¶7 The court of appeals affirmed, concluding that the
examining doctor's report and testimony, along with other
evidence in the record, supported the circuit court's findings.
In short, the court of appeals agreed that Melanie could not
apply the "advantages of taking or the disadvantages of not
taking psychotropic medication to her present circumstance."
Outagamie Cnty. v. Melanie L., No. 2012AP99, unpublished slip
op., ¶13, (Wis. Ct. App. May 22, 2012) (internal quotation marks
omitted).
3
No. 2012AP99
¶8 We reverse the court of appeals. The circuit court
misstated the burden of proof. In any event, the County failed
to prove by clear and convincing evidence that Melanie was
"substantially incapable of applying" an understanding of the
advantages, disadvantages, and alternatives of her prescribed
medication to her mental illness in order to make an informed
choice as to whether to accept or refuse the medication. The
County did not overcome Melanie's presumption of competence to
make an informed choice to refuse medication.
¶9 In particular, the medical expert's terminology and
recitation of facts did not sufficiently address and meet the
statutory standard. Medical experts must apply the standards
set out in the competency statute. An expert's use of different
language to explain his or her conclusions should be linked back
to the standards in the statute. When a county disapproves of
the choices made by a person under an involuntary medication
order, it should make a detailed record of the person's
noncompliance in taking prescribed medication and show why the
noncompliance demonstrates the person's substantial incapability
of applying his or her understanding of the medication to his or
her mental illness.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶10 Melanie is a 25-year-old woman living in Outagamie
County who suffers from mental illness.
¶11 Melanie first experienced issues with her mental
health in January 2009 when she was living in Michigan. At that
time, Melanie's symptoms included insomnia, depression,
4
No. 2012AP99
paranoia, and "a delusional belief that other persons had been
attempting to poison her or harm her in other ways." Melanie
called in sick to her place of work and stayed home, terrified.
With her mother's help, she voluntarily admitted herself to
Henry Ford Macomb Hospital where she was detained for nine days
and diagnosed with major depressive disorder, with psychotic
features. Melanie "responded favorably" to Risperdal, an
antipsychotic medication, while at the hospital, and was
instructed upon her release to continue taking Risperdal and
participate in outpatient counseling. However, she stopped
using Risperdal when her prescription ran out because she said
she could not afford it and because she did not like Risperdal's
side effects. Melanie also claimed that she could not afford
outpatient counseling.
¶12 In 2010 Melanie moved to Wisconsin to "kind of start
over." She lived with a number of roommates in Neenah, then
moved into her own apartment in Appleton. She completed a one-
semester certified nursing assistant program at Fox Valley
Technical College, and she worked in retail at a department
store. Although she was not taking any medication during this
time, Melanie reported no problems, and her records did not
indicate any problems until early February 2011.
¶13 On February 3 Melanie left work early because she felt
anxious and paranoid.4 Melanie's boyfriend later found her
4
In the report of Dr. Indu Dave, one of the two doctors
ordered to conduct an evaluation of Melanie prior to a final
hearing on commitment, Melanie recounted how she felt that
people were trying to "get" her.
5
No. 2012AP99
wandering around her apartment complex in a confused,
disoriented state. He took her to St. Elizabeth Hospital where
she was treated.
¶14 In the early hours of February 4, an officer from the
Appleton Police Department interviewed Melanie and her boyfriend
about her condition. The officer filed a Statement of Emergency
Detention to hold Melanie in temporary protective custody at St.
Elizabeth. The Statement listed the officer, another officer,
and Melanie's boyfriend as witnesses. It was approved for
filing by Kate Siebers (Siebers), a crisis caseworker for the
County.
¶15 On February 7, 2011, the circuit court held a probable
cause hearing as required by Wis. Stat. § 51.20(7).5 The court
found probable cause to believe that Melanie was mentally ill, a
proper subject for treatment under Chapter 51, and dangerous to
herself or others. The court also found probable cause to order
involuntary medication pending a final determination. In
particular, the court concluded——under the statutory standard of
Wis. Stat. § 51.61(1)(g)4.b.——that Melanie was "substantially
incapable of applying an understanding of the advantages,
disadvantages and alternatives to . . . her condition [i.e.,
mental illness] in order to make an informed choice as to
whether to accept or refuse psychotropic medications." The
5
If an individual is the subject of an emergency detention
under Wis. Stat. § 51.15, then the court must hold a hearing
within 72 hours to determine if there is "probable cause to
believe the allegations made" in the Statement of Emergency
Detention are true. Wis. Stat. § 51.20(7)(a).
6
No. 2012AP99
court ordered a final hearing and directed two medical experts
to evaluate Melanie before her release from St. Elizabeth
Hospital.
¶16 Dr. David Warner, a psychologist, evaluated Melanie at
St. Elizabeth on February 11. Dr. Warner reported that at the
time of his examination, Melanie's symptoms had subsided and she
was taking Seroquel,6 an antipsychotic medication, and Ativan,7 a
medication for anxiety. Dr. Warner reported that Melanie was of
average intelligence, able to understand and answer questions,
and that her "thought processes were generally coherent and goal
directed." However, due to Melanie's "paranoia and delusions of
persecutions," Dr. Warner concluded that her "insight and
judgment regarding her loss of contact with reality were
impaired."
¶17 Dr. Warner diagnosed Melanie with Psychotic Disorder,
Not Otherwise Specified (NOS). He concluded that Melanie's
psychotic disorder "grossly impaired her judgment, behavior, and
capacity to recognize reality." Dr. Warner opined that Melanie
was "marginally incompetent to refuse treatment with
psychotropic medication," concluding that although she was able
6
The reference book Advice for the Patient lists Seroquel
as the commonly used brand name for Quetiapine.
"Quetiapine . . . is used to treat psychotic disorders, such as
schizophrenia." 2 Advice for the Patient: Drug Information in
Lay Language 1370 (24th ed. 2004).
7
Ativan is defined as the "trademark for preparations of
[L]orazepam." Dorland's Illustrated Medical Dictionary 167
(29th ed. 2000).
7
No. 2012AP99
to express a basic understanding of the advantages,
disadvantages, and alternatives to treatment with psychotropic
medication in general terms, she had not applied "this
information to her mental illness consistently in order to make
an informed choice as to whether to accept or refuse
psychotropic medication or treatment." He added:
It is my opinion that she is dangerous to herself
primarily because she is likely incompetent to refuse
treatment with psychotropic medication and there is a
substantial probability, based on her treatment
records and recent acts and omissions, that she will
suffer severe mental and emotional harm . . . . Given
her history of not following her prescribed
psychotropic medication schedule . . . it is my
opinion that she is unlikely to avail herself of such
treatment voluntarily.
¶18 Dr. Indu Dave, a psychiatrist, performed the other
evaluation of Melanie on the same day as Dr. Warner. He found
that Melanie exhibited average intelligence, but marginal
judgment and insight. He wrote that Melanie believes "she has
some mental health issue" and "may need medication" but "does
not like taking medication." Dr. Indu Dave diagnosed Melanie
with Psychotic Disorder, NOS, but ruled out Schizophrenia,
Paranoid. Dr. Indu Dave found Melanie to be a proper subject
for commitment and treatment. With regard to medication, Dr.
Indu Dave concluded that Melanie "was able to engage herself in
a discussion regarding risk[s] and benefits of the prescribed
medication but due to her current state of mind, she was not
able to fully comprehend or apply this knowledge to herself.
She is not considered competent to refuse medications."
8
No. 2012AP99
¶19 The circuit court held a final hearing on February 18,
2011, to rule on the County's request for a six-month mental
health commitment order, and a six-month order for involuntary
medication. Melanie stipulated to both orders, while confirming
that she was taking the prescribed medication and feeling "a lot
better." The court accepted the stipulations and approved both
orders, thereby committing Melanie to the care of the Human
Services Board of the County for a period not to exceed six
months.
¶20 The commitment order provided for outpatient treatment
with conditions, which Melanie acknowledged with her signature.
These conditions included:
• Keep appointments with court-appointed examiners.
• Take all doses of psychotropic medication prescribed
for me.
• Keep all appointments with treatment providers and
case management staff.
• Cooperate with psychological and/or psychiatric
testing and therapy.
• Keep case management or treatment staff advised of
current residential address or location.8
¶21 The initial treatment plan developed for Melanie by
the County contained an additional condition: "This individual
8
These conditions appear in a standard form, ME-912,
developed by the Forms Committee of the Wisconsin Judicial
Conference.
9
No. 2012AP99
may not be involved in other forms of treatment unless approved
by her therapist at Human Services."
¶22 Melanie was assigned by the County to Dr. Milagros
Cuaresma-Ambas (Dr. Ambas) to receive psychiatric services. Her
initial caseworker was Lisa Peterson, who was replaced
temporarily by Siebers in late May 2011.
¶23 On June 16, 2011, Siebers submitted a 120-day progress
report concluding that Melanie was compliant with the conditions
of her commitment. Siebers noted, however, that Melanie
discontinued her medications because she said she became
pregnant. After reporting a miscarriage, Melanie scheduled a
follow-up appointment with Dr. Ambas to recommence medication
after Siebers reminded her that the conditions of her commitment
required her to do so.
¶24 On July 15, 2011, Siebers, in consultation with Dr.
Ambas, recommended a one-year extension of Melanie's commitment
and involuntary medication orders. Siebers' letter to the
Register in Probate stated: "It is our belief that Melanie will
not follow through with treatment without the Ch. 51.20
Commitment in place due to limited insight into her mental
illness. We also recommend a court order for Melanie to receive
medications due to her limited insight on the need for such
medications." Four days later, on July 19, the County
petitioned for an extension of the commitment and involuntary
medication orders.
¶25 At her follow-up appointment, which also occurred on
July 19, Melanie asked Dr. Ambas to prescribe Seroquel because
10
No. 2012AP99
she had done well previously on that medication. Dr. Ambas
prescribed the antipsychotic drug Seroquel, along with the
antidepressant drug Celexa,9 both to be taken regularly. In
addition, Dr. Ambas prescribed Lorazepam,10 an antianxiety drug,
to be taken as needed.
¶26 On August 14 Dr. Jagdish Dave (Dr. Dave),11 a
psychiatrist, interviewed Melanie in relation to extending her
commitment. During the interview Melanie reported that she was
taking Seroquel as prescribed and that she took Lorazepam when
she felt anxious.12 However, Melanie told Dr. Dave that she had
9
Celexa is a "trademark for a preparation of citalopram
hydrobromide." Dorland's Illustrated Medical Dictionary 305
(29th ed. 2000). Citalopram hydrobromide is "an antidepressant
compound used in the treatment of major depressive disorder,
administered orally." Id. at 359.
10
Lorazepam is defined as "[a]n antianxiety drug of the
benzodiazepine group." Stedman's Medical Dictionary 1032 (27th
ed. 2000). See also Dorland's Illustrated Medical Dictionary
1027 (29th ed. 2000) (defining Lorazepam as "a benzodiazepine
with anxiolytic and sedative effects, administered orally in the
treatment of anxiety disorders and short-term relief of anxiety
symptoms and as a sedative-hypnotic agent").
11
Two different psychiatrists with the last name of "Dave"
examined Melanie in regard to her Chapter 51 commitment. Dr.
Indu Dave evaluated Melanie prior to her initial February 2011
commitment. Dr. Jagdish Dave performed the County's evaluation
of Melanie for its petition for extension and testified at the
extension hearing. The full name of Dr. Indu Dave is used to
distinguish him from Dr. Jagdish Dave (Dr. Dave). Dr. Dave's
report and testimony are more important to this case than Dr.
Indu Dave's report.
12
As an example, Melanie recounted that she took Lorazepam
when she felt depressed following her miscarriage and when she
was anxious about her upcoming wedding.
11
No. 2012AP99
stopped taking Celexa because she did not feel anxious and
believed the Seroquel was sufficient. Melanie also informed Dr.
Dave during the interview that she was not happy with Dr. Ambas
(she "does not know what she is doing"); she did not like
clinical therapist Siebers; and she now had private insurance
and was seeking treatment through another doctor on her own.
¶27 Ultimately, Dr. Dave's report to the circuit court
concluded that Melanie was a proper subject for extension of a
Chapter 51 commitment and that she was incompetent to refuse
psychotropic medication. The doctor's report concluded that
Melanie suffered from Psychotic Disorder, NOS, "a substantial
disorder of thoughts and perception, which grossly impairs her
judgment, capacity to recognize reality, [and] ability to care
for herself." Dr. Dave reported that Melanie's condition was
treatable, but she would revert to "the previous level of mental
status" if the court did not extend her commitment. The doctor
also recommended that the court extend the order for involuntary
administration of medication. His report stated that Melanie,
based upon her educational background, was "able to express the
benefits and risk of the psychotropic medication; however, she
is unable to apply such understanding to her advantage and she
is considered to be not competent to refuse psychotropic
medication. . . . The patient would not comply with
psychotropic medication without [an] involuntary administration
order from the court." (Emphasis added.)
12
No. 2012AP99
¶28 At the hearing on the petition for extension of the
commitment and involuntary medication orders, the County
presented Siebers and Dr. Dave as witnesses.
¶29 Siebers testified that there had been no
hospitalizations during Melanie's six-month commitment, and she
was "mostly compliant" with doctor appointments; however, she
needed to be prompted to reschedule appointments, and there was
a question about her compliance with the medication order.
"There's always concern when our clients discontinue their
medications or choose to adjust their medications without
doctor's advice," Siebers testified. She acknowledged speaking
with Melanie only two or three times by telephone since late
May.13 Relying on her more frequent conversations with Dr.
Ambas, Siebers concluded that Melanie lacked "insight into the
purpose of treatment."
¶30 Dr. Dave testified that he discussed with Melanie the
advantages, disadvantages, and alternatives to psychotropic
medication. The doctor also testified that Melanie was able to
express an understanding of the advantages and disadvantages of
medication: Melanie knew which medications she had been
prescribed, when she took those medications, and the effects of
those medications on her. However, Dr. Dave repeated the
13
Siebers testified that she had tried several times to
reach Melanie by telephone but, for a time, Melanie's phone was
disconnected. She testified that she had not been promptly
notified of Melanie's new telephone number. Melanie told the
court that she had left her new telephone number in a voice
mail.
13
No. 2012AP99
conclusion in his written report——that Melanie was not capable
of "applying the benefits of the medication to her advantage."
Dr. Dave's testimony included the following exchanges:
Q. Doctor, have you had an opportunity to discuss
the advantages and disadvantages and alternatives to
treatment with [Melanie]?
A. Yes, I did.
Q. And based upon that conversation, do you have an
opinion to a reasonable degree of medical certainty as
to whether [Melanie] is substantially incapable of
applying an understanding of the advantages,
disadvantages, and alternatives to her condition such
that she would be able to accept or refuse
psychotropic medications on an [informed] basis?
A. I do not think that she's capable of applying the
benefits of the medication to her advantage.
. . . .
Q. Okay. And the psychotic disorder not otherwise
specified, Doctor, would that include or manifest
substantial disruption in thought and perception?
A. Yes.
. . . .
Q. And, Doctor, one last question. To a degree of
medical certainty, do you have an opinion as to
whether [Melanie,] if treatment were withdrawn[,]
would be a proper subject for commitment?
A. Yes.
Q. And why——why is that?
A. Because in my opinion, she is not reliable for
continuing the treatment on a voluntary basis, and if
she does not continue recommended treatment, she would
relapse, and she would end up institutionalized, and
she would again be initiated a Chapter 51 commitment.
14
No. 2012AP99
. . . .
[Cross-examination by Mr. Lutgen, Melanie's attorney]
Q. And did you discuss the benefits and risks of the
psychotropic medicines?
A. Yes, I did.
Q. And Melanie was able to express those benefits
and risks to you in that conversation?
A. She was able to express but was not capable of
applying it to her advantage.
¶31 Melanie was present at the hearing but did not
testify, as was her right. Wis. Stat. § 51.20(5). Her attorney
did not present other evidence. Melanie did give a brief
unsworn statement to the court. Consequently, Circuit Judge
Michael Gage, who had conducted the commitment hearing in
February, had the testimony of Dr. Dave, his five-page written
report, and the testimony of Siebers as the evidence upon which
to base his ruling. Judge Gage may have considered the July 15
letter signed by Siebers and Dr. Ambas to the Register in
Probate recommending that the court extend the involuntary
medication order.
¶32 The circuit court determined that Melanie had a mental
illness and was a proper subject for treatment under Chapter 51,
extending both the commitment order and the involuntary
medication order.
¶33 With regard to the involuntary medication order, the
circuit court found Melanie to be able to "reflect on her
treatment and course of treatment in an intelligent way." Yet,
the court commented that this intelligent reflection did not
15
No. 2012AP99
provide a basis to discount the testimony of Dr. Dave and
Siebers. The court also noted that "the very nature of"
Melanie's "underlying diagnostic malady" of paranoia and
delusional thinking "gives proper concern for and to the
reliability of her own self-assessment . . . ." The circuit
court ultimately concluded that Melanie "is a person that by the
clear greater weight of the evidence is not one who can reliably
apply an understanding of the advantages and
disadvantages . . . of not taking psychotropic medications to
her present circumstance." The court's extension order states a
finding embodying the statutory standard under Wis. Stat.
§ 51.61(1)(g)4.b.14
¶34 Melanie appealed only the extension of the involuntary
medication order. Melanie L., slip op., ¶1. She argued that
the statutory standard——which required the County to prove by
clear and convincing evidence that she was "substantially
incapable of applying an understanding of the advantages,
disadvantages and alternatives" of medication to her condition——
was not substantiated by the evidence and not met by Dr. Dave's
14
While ordering the administration of involuntary
medication, the circuit court still hoped that Melanie would be
consulted in treatment decisions:
It seems to me clear that a treatment provider ought
to listen very carefully to, be mindful of, and weigh
in a significant way [Melanie]'s concerns and
expressed concerns because she's capable of insight,
and she certainly is an intelligent person and has the
capacity of thinking clearly to act with insightful
intelligence.
16
No. 2012AP99
opinion that she was unable to apply an understanding "to her
advantage." Id., ¶10. Melanie also argued on appeal that the
circuit court based its finding of incompetence to refuse
medication on the fact that she was mentally ill, contrary to
this court's holding in Virgil D. v. Rock County, 189 Wis. 2d 1,
524 N.W.2d 894 (1994). Id., ¶13.
¶35 The court of appeals affirmed the involuntary
medication extension, holding that despite the existence of
evidence to the contrary, the testimony and evidence
sufficiently supported the circuit court's findings, and the
court of appeals was required to give deference to the circuit
court's reasonable inferences and factual findings. Id., ¶11.
The court of appeals also concluded that a doctor did not have
to "iterate the specific words of the statute in order for the
evidence to be sufficient." Id. Finally, the court of appeals
rejected Melanie's argument that the circuit court based its
decision on the fact that Melanie had a mental illness. Id.,
¶13.
¶36 Melanie petitioned this court for review, which we
granted on November 14, 2012.
II. STANDARD OF REVIEW
¶37 Melanie contends the County failed to meet its burden
of proving that she was incompetent to refuse medication under
Wis. Stat. § 51.61(1)(g)4.b. The County bears the burden of
proving Melanie incompetent to refuse medication by clear and
convincing evidence. Wis. Stat. § 51.20(13)(e); Virgil D., 189
Wis. 2d at 12 n.7.
17
No. 2012AP99
¶38 We will not disturb a circuit court's factual findings
unless they are clearly erroneous. K.N.K. v. Buhler, 139
Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987). We accept
reasonable inferences from the facts available to the circuit
court. K.S. v. Winnebago Cnty., 147 Wis. 2d 575, 578, 433
N.W.2d 291 (Ct. App. 1988).
¶39 In evaluating whether the County met its burden of
proof, a court must apply facts to the statutory standard in
Wis. Stat. § 51.61(1)(g)4.b. and interpret the statute.
Applying facts to the standard and interpreting the statute are
questions of law that this court reviews independently. Estate
of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶10, 318 Wis. 2d 553,
769 N.W.2d 481 (citation omitted).
III. DISCUSSION
¶40 This case requires the court to interpret a statutory
provision——Wis. Stat. § 51.61(1)(g)4.b.——that has heretofore
evaded review in this court. Interpretation of a statute
"begins with the language of the statute. If the meaning of the
statute is plain, we ordinarily stop the inquiry. Statutory
language is given its common, ordinary, and accepted meaning."
State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,
¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (internal quotation marks
and citations omitted). Ascertaining the plain meaning of a
statute often requires considering a statute's scope, context,
and purpose——based upon the text and structure of the statute——
to avoid unreasonable or absurd results. Id., ¶¶46, 48.
18
No. 2012AP99
Legislative history may be relevant to confirm a statute's plain
meaning. Id., ¶51.
¶41 Before interpreting Wis. Stat. § 51.61(1)(g)4.b. and
applying the facts of this case to the statute, we review the
development of the law on involuntary medication orders, both in
the United States Supreme Court and in Wisconsin. Next, we
examine the evolution of the involuntary medication statute and
interpret the provision at issue in this case, phrase by phrase.
Finally, we apply the facts of Melanie's case to the statute and
conclude that the County failed to prove by clear and convincing
evidence that Melanie was incompetent to refuse medication.
A. Development of Wisconsin's Competency Standard for Refusing
Involuntary Medication
¶42 An individual's right to refuse unwanted medical
treatment "emanates from the common law right of self-
determination and informed consent, the personal liberties
protected by the Fourteenth Amendment, and from the guarantee of
liberty in Article I, [S]ection 1 of the Wisconsin
Constitution." Lenz v. L.E. Phillips Career Dev. Ctr., 167
Wis. 2d 53, 67, 482 N.W.2d 60 (1992); see also Cruzan v. Dir.,
Mo. Dep't of Health, 497 U.S. 261, 278 (1990) (competent
individuals have a protected Fourteenth Amendment liberty
interest in refusing unwanted medical treatment).15
15
We do not read these cases as deciding that a minor has a
constitutionally protected liberty interest in refusing unwanted
medical treatment, irrespective of the consequences. Cf. Parham
v. J.R., 442 U.S. 584, 600 (1979)).
19
No. 2012AP99
¶43 Competent individuals also retain a "'significant'
liberty interest in avoiding forced medication of psychotropic
drugs."16 State v. Wood, 2010 WI 17, ¶25, 323 Wis. 2d 321, 780
N.W.2d 63 (citing Washington v. Harper, 494 U.S. 210, 221
(1990)). "The forcible injection of medication into a
nonconsenting person's body represents a substantial
interference with that person's liberty."17 Harper, 494 U.S. at
229. However, while a patient has "an interest in remaining
free from bodily intrusion," the state has an interest in
administering treatment to a patient pursuant to a commitment
order. Mary C. McCarron, Comment, The Right to Refuse
Antipsychotic Drugs: Safeguarding the Mentally Incompetent
Patient's Right to Procedural Due Process, 73 Marq. L. Rev. 477,
484 (1990) (footnote omitted). Current mental health statutes
16
Psychotropic is defined as "[a]ffecting the psyche;
denoting, specifically, drugs used in the treatment of mental
illnesses." Stedman's Medical Dictionary 1167 (24th ed. 1982).
17
Persons opposed to the involuntary administration of
psychotropic medication argue that these drugs have "serious,
even fatal, side effects." Washington v. Harper, 494 U.S. 210,
229 (1990); see also State ex rel. Jones v. Gerhardstein, 141
Wis. 2d 710, 727, 416 N.W.2d 883 (1987) (listing some of the
most common side effects). Persons who resist forced medication
and other critics also contend that they have a right to be free
from government intrusion directly upon the mind. See generally
Stephan Beyer, Comment, Madness and Medicine: The Forcible
Administration of Psychotropic Drugs, 1980 Wis. L. Rev. 497.
For a more recent description of psychotropic medications and
their potential side effects, see National Institute of Mental
Health, Mental Health Medications, U.S. Dep't of Health & Human
Servs. (2012),
http://www.nimh.nih.gov/health/publications/mental-health-
medications-/mentalhealthmedications_ln.pdf.
20
No. 2012AP99
reflect a balance between treating mental illness and protecting
the individual and society from danger on the one hand, and
personal liberty of the individual on the other.18
¶44 Wisconsin's modern mental health statutes originated
in Chapter 430, Laws of 1975, also known as the 1976 Mental
Health Act.19 The competency standard for refusing medication
was first articulated in 1978. § 98, ch. 428, Laws of 1977; see
also Virgil D., 189 Wis. 2d at 11 n.6. The standard initially
read:
(g) Prior to the final commitment hearing and
court commitment orders, [the patient shall] have the
right to refuse all medication . . . except as ordered
by the court under this paragraph, or in a situation
where such medication or treatment is necessary to
prevent serious physical harm to the patient or to
others. . . . An individual is not competent to
refuse medication if because of mental illness,
developmental disability, alcoholism or drug
dependence, the individual is incapable of expressing
an understanding of the advantages and disadvantages
of accepting treatment, and the alternatives to
accepting the particular treatment offered, after the
advantages, disadvantages and alternatives have been
explained to the individual.
Wis. Stat. § 51.61(1)(g) (1977–78). Initially, only persons
detained pending a final commitment hearing could exercise
18
Peter D. Keane, Case Comment, The Use of the Clear and
Convincing Evidence Standard in Civil Commitment Proceedings
Pursuant to the Adam Walsh Act Does Not Violate Due Process——
United States v. Comstock, 627 F.3d 513 (4th Cir. 2010), 7 J.
Health & Biomedical L. 667, 670 (2012).
19
Steven K. Erickson, Michael J. Vitacco, & Gregory J. Van
Rybroek, Beyond Overt Violence: Wisconsin's Progressive Civil
Commitment Statute as a Marker of a New Era in Mental Health
Law, 89 Marq. L. Rev. 359, 367 (2005).
21
No. 2012AP99
informed consent to refuse medication. See id. Thus, prior to
1987, involuntarily committed persons in Wisconsin——even if
competent——did not have the statutory right to refuse
medication. See id.; see also Virgil D., 189 Wis. 2d at 11 n.6.
¶45 In State ex rel. Jones v. Gerhardstein, this court
held that the competency standard to refuse medication in Wis.
Stat. § 51.61(1)(g) (1985–86) violated equal protection as
guaranteed by the United States and Wisconsin Constitutions.
Jones, 141 Wis. 2d 710, 734, 416 N.W.2d 883 (1987). The Jones
court concluded that no rational basis existed for the statutory
distinction between those awaiting commitment and those subject
to a final commitment order. Id. at 737. The court also
concluded that "the patient through informed consent makes the
choices of bodily treatment," id. at 739, and that a presumption
of competence to choose must apply to all individuals regardless
of commitment status. Id. at 737, 739. The court further
emphasized that involuntary commitment cannot be equated to a
finding of incompetence because "the concepts of mental illness
and competency are not synonymous. An individual may be
psychotic, yet nevertheless capable of evaluating the advantages
and disadvantages of taking psychotropic drugs and making an
informed decision."20 Id. at 728.
20
For an analysis of the State ex rel. Jones v.
Gerhardstein decision and its impact on institutional practice,
see Delila M.J. Ledwith, Note, Jones v. Gerhardstein: The
Involuntarily Committed Mental Patient's Right to Refuse
Treatment with Psychotropic Drugs, 1990 Wis. L. Rev. 1367.
22
No. 2012AP99
¶46 As a result of Jones, the legislature amended Wis.
Stat. § 51.61(1)(g) and created subd. 4. 1987 Wis. Act 366,
§ 18. The new competency standard was stated as follows:
(g) [Patients shall h]ave the following rights,
under the following procedures, to refuse medication
and treatment:
1. Have the right to refuse all medication
and treatment except as ordered by the court
under subd. 2, or in a situation in which the
medication or treatment is necessary to prevent
serious physical harm to the patient or to
others.
. . . .
4. For purposes of a determination [prior
to or following a final commitment order,] an
individual is not competent to refuse medication
if, because of mental illness, developmental
disability, alcoholism or drug dependence, the
individual is incapable of expressing an
understanding of the advantages and disadvantages
of accepting treatment, and the alternatives to
accepting the particular treatment offered, after
the advantages, disadvantages and alternatives
have been explained to the individual.
Wis. Stat. § 51.61(1)(g)1. & 4. (1987–88). This standard of
competency to refuse medication applied to persons detained
pending a final commitment hearing and persons subject to a
final commitment order. At that time the sole standard to prove
incompetency was whether the individual was "incapable of
expressing an understanding of the advantages and disadvantages"
of, and alternatives to, accepting the particular medication or
treatment. Id. (emphasis added).
¶47 Seven years later in Virgil D., this court confirmed
that the standard in then-Wis. Stat. § 51.61(1)(g)4. provided
23
No. 2012AP99
only one method by which an individual could be proven
incompetent to refuse medication. Virgil D., 189 Wis. 2d at 5.
In that case, Rock County sought an order to authorize the
involuntary administration of medication for Virgil D. Id. at
7. The examining psychiatrist reported that while Virgil D. was
able to express an understanding of the advantages and
disadvantages of treatment, he was incompetent to refuse
medication because he lacked insight into his mental illness and
thus could not exercise informed consent. Id. The circuit
court granted Rock County's petition for involuntary medication
and the court of appeals affirmed. Id. at 8.
¶48 Reversing the decision on review, this court held that
the interpretation adopted by the lower courts disregarded the
plain language of the statute. The Virgil D. court concluded
that § 51.61(1)(g)4. provided only one standard by which to
prove an individual incompetent to refuse medication. Id. at
11. The court concluded that the circuit court and the court of
appeals "erred when they ignored the statutory standard and
placed greater emphasis on the psychiatrists' testimony that
Virgil was not competent to refuse medication because he did not
have an appreciation of his own mental illness." Id. at 13
(footnote omitted). This court said that by reading the
provision as illustrative rather than exclusive, the two courts
altered the test for competency and changed the meaning of the
statute. Id. at 9.
¶49 The Virgil D. court also affirmed the conclusion in
Jones that "[w]hen a circuit court is asked to determine a
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No. 2012AP99
patient's competency to refuse medication or treatment pursuant
to § 51.61(1)(g)4[.], Stats., it must presume that the patient
is competent to make that decision." Id. at 14 (citation
omitted).
¶50 Furthermore, the Virgil D. court concluded that——in
determining whether the evidence shows a person understands the
advantages, disadvantages, and alternatives to a particular
medication——a circuit court should "take into account" the
following five factors:
(a) Whether the patient is able to identify the
type of recommended medication or treatment;
(b) whether the patient has previously received
the type of medication or treatment at issue;
(c) if the patient has received similar
treatment in the past, whether he or she can describe
what happened as a result and how the effects were
beneficial or harmful;
(d) if the patient has not been similarly
treated in the past, whether he or she can identify
the risks and benefits associated with the recommended
medication or treatment; and
(e) whether the patient holds any patently false
beliefs about the recommended medication or treatment
which would prevent an understanding of legitimate
risks and benefits.
Id. at 14–15.
¶51 Finally, the Virgil D. court reminded circuit courts
that they
must maintain the distinction that this court
recognized in Jones between a patient's mental illness
and his or her ability to exercise informed consent.
The focus of a hearing on the patient's right to
exercise informed consent should not be upon whether
25
No. 2012AP99
the court, the psychiatrist or the County believes the
patient's decision is the wrong choice. Rather, the
focus must be upon whether the patient understands the
implications of the recommended medication or
treatment and is making an informed choice.
Id. at 15 (citation omitted).
¶52 After the Virgil D. decision, the legislature
responded to the ruling by modifying the statute. 1995 Wis. Act
268, § 2 created a second, alternative standard in Wis. Stat.
§ 51.61(1)(g)4. for competency to refuse medication. This
alternative standard read: "The individual is substantially
incapable of applying an understanding of the advantages,
disadvantages and alternatives to his or her mental illness,
developmental disability, alcoholism or drug dependence in order
to make an informed choice as to whether to accept or refuse
medication or treatment." 1995 Wis. Act 268, § 2 (emphasis
added). Both standards are now part of Wisconsin law.
B. The Current Competency Standard for Refusing
Involuntary Medication
¶53 In sum, under Wis. Stat. § 51.61, a person has the
right to refuse medication unless a court determines that the
person is incompetent to make such a decision. The competency
standard in Wis. Stat. § 51.61(1)(g)4. reads:
4. For purposes of a determination under subd.
2. or 3., an individual is not competent to refuse
medication or treatment if, because of mental illness,
developmental disability, alcoholism or drug
dependence, and after the advantages and disadvantages
of and alternatives to accepting the particular
medication or treatment have been explained to the
individual, one of the following is true:
26
No. 2012AP99
a. The individual is incapable of
expressing an understanding of the advantages and
disadvantages of accepting medication or
treatment and the alternatives.
b. The individual is substantially
incapable of applying an understanding of the
advantages, disadvantages and alternatives to his
or her mental illness, developmental disability,
alcoholism or drug dependence in order to make an
informed choice as to whether to accept or refuse
medication or treatment.
Wis. Stat. § 51.61(1)(g)4.
¶54 There are thus two ways under Wis. Stat.
§ 51.61(1)(g)4. that a person who is mentally ill and who has
received the requisite explanation of the advantages and
disadvantages of and alternatives to medication may be found
incompetent to refuse such medication. Under subd. 4., subd.
para. a., the county petitioner may prove by clear and
convincing evidence that the individual is incapable of
expressing an understanding of the advantages and disadvantages
of accepting the prescribed medication, and the alternatives.
This is a difficult standard for a county to meet if the
individual is able to express a reasonable understanding of the
medication. Virgil D., 189 Wis. 2d at 14. That is why the
legislature crafted a somewhat relaxed standard in subd. 4.,
subd. para. b.
¶55 Under the second standard, the county petitioner may
prove by clear and convincing evidence that the individual is
substantially incapable of applying the understanding he or she
has of the advantages and disadvantages of the medication (and
the alternatives) to his or her mental illness in order to make
27
No. 2012AP99
an informed choice as to whether to accept or refuse the
medication.
¶56 In this case, the County's expert, Dr. Dave, and the
circuit court recognized that Melanie was able to express an
understanding of the advantages and disadvantages of medication.
Therefore, the entire focus was and is on the competency
standard in 4.b. This court is required to examine what the
statute means by "substantially incapable" of "applying an
understanding" to "her mental illness" "in order to make an
informed choice" "as to whether to accept or refuse medication."
¶57 Normally a court begins with the plain language of the
statute and gives the words their common and ordinary meaning.
Kalal, 271 Wis. 2d 633, ¶45. Here we will begin by putting the
statute in statutory context.
¶58 Wisconsin Stat. ch. 51 is the statutory chapter
dealing with alcohol, drug abuse, developmental disabilities,
and mental health. The legislative policy set out in Wis. Stat.
§ 51.001 paints with a broad brush, reading in part that, "[i]t
is the policy of the state to assure the provision of a full
range of treatment and rehabilitation services in the state for
all mental disorders . . . and for mental illness . . . ." The
section speaks generally of the "least restrictive treatment
alternative." Wis. Stat. § 51.001(1). Then it adds: "To
protect personal liberties, no person who can be treated
adequately outside of a hospital, institution or other inpatient
facility may be involuntarily treated in such a facility." Wis.
Stat. § 51.001(2). Hence, from the first section of the
28
No. 2012AP99
chapter, we see the tension between the role of the government
to provide caring treatment (sometimes involuntarily and, if
necessary, by force) and the personal liberty of the individual.
¶59 Wisconsin Stat. § 51.15 deals with emergency
detention, and § 51.20 deals with involuntary commitment for
treatment. Section 51.61, by contrast, is entitled "Patients
rights." The provision to be interpreted in this case is
contained in the "Patients rights" section of the chapter.
¶60 In this case, there is no dispute that Melanie is
afflicted with "mental illness" and no disagreement that she was
properly committed to the County for outpatient care and
custody. She was found to be mentally ill, dangerous because
she evidenced behavior within one or more of the standards under
Wis. Stat. § 51.20(1) or (1m) (but not § 51.20(1)(a)2.e.), and
a proper subject for outpatient treatment. Consequently, the
issue before us relates to the control that the County has over
Melanie with respect to psychotropic medication during her
outpatient commitment.
¶61 The court's commitment order in February and its order
on August 17, 2011, make clear that Melanie was not committed
under the so-called "Fifth Standard" in Wis. Stat.
§ 51.20(1)(a)2.e. This is significant because Wis. Stat.
§ 51.61(1)(g)3m. reads: "Following a final commitment order for
a subject individual who is determined to meet the commitment
standard under s. 51.20(1)(a)2.e., the court shall issue an
order permitting medication or treatment to be administered to
the individual regardless of his or her consent." (Emphasis
29
No. 2012AP99
added.) In other words, subd. 3m., which immediately precedes
subd. 4., is not governed by the competency standards in subd.
4.
¶62 Subdivision 3m. is not governed by subd. 4. because
the Fifth Standard——Wis. Stat. § 51.20(1)(a)2.e.21——contains many
21
Wisconsin Stat. § 51.20(1)(a)2.e. reads:
30
No. 2012AP99
of the same provisions found in Wis. Stat. § 51.61(1)(g)4.b.;
and to commit a person under the Fifth Standard, the government
must prove these provisions by clear and convincing evidence.
For an individual, other than an individual who is alleged
to be drug dependent or developmentally disabled, after the
advantages and disadvantages of and alternatives to accepting a
particular medication or treatment have been explained to him or
her and because of mental illness, evidences either incapability
of expressing an understanding of the advantages and
disadvantages of accepting medication or treatment and the
alternatives, or substantial incapability 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 medication or treatment; and
evidences a substantial probability, as demonstrated by both the
individual's treatment history and his or her recent acts or
omissions, that the individual needs care or treatment to
prevent further disability or deterioration and a substantial
probability that he or she will, if left untreated, lack
services necessary for his or her health or safety and suffer
severe mental, emotional, or physical harm that will result in
the loss of the individual's ability to function independently
in the community or the loss of cognitive or volitional control
over his or her thoughts or actions. The probability of
suffering severe mental, emotional, or physical harm is not
substantial under this subd. 2.e. if reasonable provision for
the individual's care or treatment is available in the community
and there is a reasonable probability that the individual will
avail himself or herself of these services or if the individual
may be provided protective placement or protective services
under ch. 55. Food, shelter, or other care that is provided to
an individual who is substantially incapable of obtaining food,
shelter, or other care for himself or herself by any person
other than a treatment facility does not constitute reasonable
provision for the individual's care or treatment in the
community under this subd. 2.e. The individual's status as a
minor does not automatically establish a substantial probability
of suffering severe mental, emotional, or physical harm under
this subd. 2.e.
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No. 2012AP99
¶63 The overlapping language from the two statutes may be
illustrated as follows:
Wis. Stat. § 51.20(1)(a)2.e. Wis. Stat. § 51.61(1)(g)4.b.
1. and because of mental 1. because of mental illness
illness
2. after the advantages and 2. after the advantages and
disadvantages of and disadvantages of and
alternatives to accepting a alternatives to accepting the
particular medication or particular medication or
treatment have been explained treatment have been explained
to him or her to the individual
3. evidences . . . substantial 3. the individual is
incapability substantially incapable
4. of applying an understanding 4. of applying an understanding
of the advantages, of the advantages,
disadvantages, and alternatives disadvantages and alternatives
to his or her mental illness to his or her mental illness
5. in order to make an informed 5. in order to make an informed
choice choice
6. whether to accept or refuse 6. whether to accept or refuse
medication or treatment medication or treatment
¶64 The obvious similarity of the language in the two
sections and the fact that they were adopted by the legislature
at almost the same time in 199622 indicate that the
interpretation of one section is likely to affect the
interpretation of the other. While the constitutionality of
Wis. Stat. § 51.20(1)(a)2.e. was upheld in State v. Dennis H.,
2002 WI 104, 255 Wis. 2d 359, 647 N.W.2d 851, there has been no
detailed interpretation of the statutory language in either
22
Separate bills creating Wis. Stat. §§ 51.20(1)(a)2.e. and
51.61(1)(g)4.b., respectively, proceeded along similar tracks
and were enacted into law almost concurrently. 1995 Senate Bill
270, which created the Fifth Standard of dangerousness in
§ 51.20(1)(a)2.e., was enacted as 1995 Wis. Act 292 on April 25,
1996. 1995 Senate Bill 119, which created the 4.b. standard of
competency for refusing medication, was enacted as 1995 Wis. Act
268 on April 22, 1996.
32
No. 2012AP99
provision. Therefore, we will proceed to discuss the language
in Wis. Stat. § 51.61(1)(g)4.b. phrase by phrase.
1. "because of mental illness"
¶65 Mental illness is a defined term in Wis. Stat. ch. 51:
(13) (a) "Mental illness" means mental disease to
such extent that a person so afflicted requires care
and treatment for his or her own welfare, or the
welfare of others, or of the community.
(b) "Mental illness", for purposes of involuntary
commitment, means a substantial disorder of thought,
mood, perception, orientation, or memory which grossly
impairs judgment, behavior, capacity to recognize
reality, or ability to meet the ordinary demands of
life, but does not include alcoholism.
Wis. Stat. § 51.01(13).
¶66 Thus, the phrase "because of mental illness" means
because of a substantial disorder of thought, mood, perception,
orientation, or memory which grossly impairs judgment, behavior,
capacity to recognize reality, or meet the ordinary demands of
life.
2. "after the advantages and disadvantages of and
alternatives to accepting a particular medication
or treatment have been explained [to the person]"
¶67 This language is largely self-explanatory. A person
subject to a possible mental commitment or a possible
involuntary medication order is entitled to receive from one or
more medical professionals a reasonable explanation of proposed
medication. The explanation should include why a particular
drug is being prescribed, what the advantages of the drug are
expected to be, what side effects may be anticipated or are
33
No. 2012AP99
possible, and whether there are reasonable alternatives to the
prescribed medication. The explanation should be timely, and,
ideally, it should be periodically repeated and reinforced.
Medical professionals and other professionals should document
the timing and frequency of their explanations so that, if
necessary, they have documentary evidence to help establish this
element in court.
3. "the individual is substantially incapable"
¶68 Wisconsin Stat. §§ 51.20(1)(a)2.e. and 51.61(1)(g)4.a.
use the words "incapability" and "incapable," without any
modifier, before the phrase "expressing an understanding of the
advantages and disadvantages of accepting medication." By
contrast, some form of the word "substantial" modifies
"incapability" or "incapable" in the language we seek to
interpret related to "applying an understanding."
¶69 "Incapable" means "[l]acking the necessary ability,
capacity, or power" to do something or the inability "to perform
adequately." The American Heritage Dictionary of the English
Language 911 (3d ed. 1992). The word "incompetent" is one of
the words that shows up in the definition of "incapable." Id.
Hence, in the context of Wis. Stat. § 51.61(1)(g)4.a., a person
is "incapable" if, for all practical purposes, the person simply
cannot express the advantages and disadvantages of a medication
or treatment. This standard is quite rigorous for the county in
terms of proof.
¶70 "Substantially incapable" is a less rigorous standard.
"Substantial" means "[c]onsiderable in . . . degree . . . or
34
No. 2012AP99
extent." Id. at 1791. Thus, the phrase "substantially
incapable" means, to a considerable degree, a person lacks the
ability or capacity to apply an understanding of the advantages
and disadvantages of medication to his or her own condition.
4. "applying an understanding of the advantages,
disadvantages and alternatives [of the medication
or treatment] to his or her mental illness"
¶71 "Apply" means to "make use of as suitable, fitting, or
relevant." Webster's Third New International Dictionary 105
(3d. ed. 1986); see also Random House Unabridged Dictionary 102
(2d. ed. 1993). Using this definition, "applying an
understanding" requires a person to make use of his or her
understanding for his or her condition. Put another way,
"applying an understanding" requires a person to make a
connection between an expressed understanding of the benefits
and risks of medication and the person's own mental illness.
¶72 Melanie argues that the ability to recognize one's own
mental illness is sufficient to show that one can apply an
understanding of the advantages, disadvantages, and alternatives
to his or her mental illness. We disagree. It may be true that
if a person cannot recognize that he or she has a mental
illness, logically the person cannot establish a connection
between his or her expressed understanding of the benefits and
risks of medication and the person's own illness. However, a
person's acknowledgment that he or she has a "mental health
issue" may not acknowledge the actual problem, or may simply
articulate what doctors and courts want to hear. It is possible
35
No. 2012AP99
to conjure up other hypotheticals that would nullify temporary
"recognition" of the problem.
¶73 Dr. Robert L. Beilman, testifying for the Alliance of
the Mentally Ill of Wisconsin at the Assembly Judiciary
Committee's hearing on 1995 Senate Bill 119, which created Wis.
Stat. § 51.61(1)(g)4.b., pointedly criticized the single
standard discussed in Virgil D.:
Under current law, a committed person with a
serious mental illness may rattle off a list of
medications as requested and actually appear quite
competent to someone who is not experienced in dealing
with persons with serious mental illness.
Ask any [Alliance of the Mentally Ill] family and
they will all tell you how an ill family member is
able to pull him/herself together for a good 20-30
minutes and appear quite articulate and competent when
appearing at a hearing or a meeting or an appointment.
The illogical, delusional, paranoid behavior is put on
a back burner somewhere in that very complex organ,
the brain. By appearing articulate, due to an ability
to memorize a list of psychotropic medications, a
judge may very easily be fooled into thinking the
person is competent.
Hearing on 1995 S.B. 119 Before the A. Comm. on Judiciary, 1995
Leg., 92nd Sess. 1 (Wis. 1995) (statement of Dr. Robert L.
Beilman, Alliance for the Mentally Ill of Wis.) (on file with
Wis. Legis. Council).
¶74 The import of Dr. Beilman's testimony here is that a
person with a serious mental illness may be able to acknowledge
"issues" and rattle off side effects without being truly able to
apply his or her "understanding" to the person's own problem.
36
No. 2012AP99
¶75 Inasmuch as the subject of a commitment hearing cannot
be forced to testify, it is the responsibility of medical
experts who appear as witnesses for the county to explain how
they probed the issue of whether the person can "apply" his or
her understanding to his or her own mental condition. The
person's history of noncompliance in taking prescribed
medication is clearly relevant, but it is not determinative if
the person can reasonably explain the reason for the
noncompliance. For both the patient and the medical
professional, facts and reasoning are nearly as important as
conclusions.
5. "in order to make an informed choice"
¶76 "Informed choice" means a choice based on an informed
understanding of the viable options with respect to medication
or treatment. The key word in the statutory phrase is "choice,"
which means the "power, right, or liberty to choose," or an
"option." The American Heritage Dictionary of the English
Language 336 (3d ed. 1992). The paragraph seeks to evaluate a
person's ability to rationally choose an option.
6. "whether to accept or refuse medication
or treatment"
¶77 This language specifies the options that a person may
choose. It reinforces the word "choice."
¶78 The plain language of the statute gives a person the
right "to refuse medication or treatment," provided the patient
is competent to make that choice. Consequently, the court's
determination should not turn on the person's choice to refuse
37
No. 2012AP99
to take medication; it should turn on the person's ability to
process and apply the information available to the person's own
condition before making that choice.
C. Application of the Law
¶79 The County moved to dismiss Melanie's case after this
court accepted the petition for review but before oral argument,
on grounds that Melanie's case is moot. Her involuntary
medication order expired one year after the order was issued on
August 17, 2011, and there is no evidence that the County sought
to extend it.
¶80 As a general rule, this court "will not consider a
question the answer to which cannot have any practical effect
upon an existing controversy." State v. Leitner, 2002 WI 77,
¶13, 253 Wis. 2d 449, 646 N.W.2d 341 (quoting State ex rel. La
Crosse Tribune v. Circuit Court for La Crosse Cnty., 115
Wis. 2d 220, 228, 340 N.W.2d 460 (1983)). However, a reviewing
court may decide moot issues under certain circumstances. State
v. Morford, 2004 WI 5, ¶7, 268 Wis. 2d 300, 674 N.W.2d 349.
This court may decide an otherwise moot issue if the issue:
(1) is of great public importance; (2) occurs so
frequently that a definitive decision is necessary to
guide circuit courts; (3) is likely to arise again and
a decision of the court would alleviate uncertainty;
or (4) will likely be repeated, but evades appellate
review because the appellate review process cannot be
completed or even undertaken in time to have a
practical effect on the parties.
Id. (footnote omitted). We conclude that the 4.b. competency
standard presents an issue of great public importance and is
38
No. 2012AP99
likely to arise in future cases. Moreover, interpreting the
4.b. competency standard is likely to evade appellate review in
many instances because the order appealed from will have expired
before an appeal is completed. Therefore, we will exercise our
discretion and take up the issues that Melanie asks this court
to review.23
¶81 On the facts, this is a close case. We appreciate
that a circuit court's findings of fact are entitled to
deference and should not be disturbed unless they are clearly
erroneous. K.N.K., 139 Wis. 2d at 198.24
¶82 Nonetheless, the reason the court took this
technically moot case was to interpret and clarify the law. In
these circumstances, the court should not approve a commitment
proceeding that reveals clear deficiencies. Consequently, we
reverse.
¶83 It is undisputed that the County was required to prove
all elements of its case by clear and convincing evidence. Wis.
Stat. § 51.20(13)(e); Virgil D., 189 Wis. 2d at 12 n.7.
¶84 As the Supreme Court explained in Cruzan:
23
We noted that Wis. Stat. § 51.61(1)(g)4.b. was adopted in
1996 at the same time the legislature adopted the Fifth Standard
in Wis. Stat. § 51.20(1)(a)2.e. See supra, ¶64. We also noted
that Wis. Stat. § 51.60(1)(g)4.b. has evaded detailed review
since its adoption. See supra, ¶40. This case presents
questions of statutory interpretation that are ripe for judicial
review, and interpretation of Wis. Stat. § 51.61(1)(g)4.b.
implicates the interpretation of Wis. Stat. § 51.20(1)(a)2.e.
24
The fact that the County did not seek to extend Melanie's
commitment can be argued by both sides as vindication of their
positions.
39
No. 2012AP99
"The function of a standard of proof, as that concept
is embodied in the Due Process Clause and in the realm
of factfinding, is to 'instruct the factfinder
concerning the degree of confidence our society thinks
he should have in the correctness of factual
conclusions for a particular type of adjudication.'"
Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting
In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J.,
concurring)). "This Court has mandated an
intermediate standard of proof——'clear and convincing
evidence'——when the individual interests at stake in a
state proceeding are both 'particularly important' and
'more substantial than mere loss of money.'" Santosky
v. Kramer, 455 U.S. 745, 756 (1982) (quoting
Addington, supra, at 424).
Cruzan, 497 U.S. at 282.
¶85 The standard of proof reflects not only the importance
of a particular adjudication but also serves as a societal
judgment about how the risk of error should be distributed
between the litigants. Id. at 283 (citations omitted).
¶86 In this case, the circuit court said:
[I]t's the court's conclusion that while able to
understand and appreciate and articulate advantages
and disadvantages, [Melanie] is a person that by the
clear greater weight of the evidence is not one who
can reliably apply an understanding of the advantages
and disadvantages, the advantages of taking or the
disadvantages of not taking psychotropic medications
to her present circumstance.
(Emphasis added.)
¶87 We acknowledge that the court may have intended to use
the clear and convincing evidence standard and that Melanie's
counsel did not object to the standard used. Were this case not
moot, this court could likely remand it to the circuit court for
further consideration.
40
No. 2012AP99
¶88 Yet the court is disinclined to rationalize the error
because the court is not convinced that the County met its
burden of proof by clear and convincing evidence.25
¶89 As noted previously, the Supreme Court has held that
"a competent individual has a protected Fourteenth Amendment
liberty interest in refusing unwanted medical treatment." Lenz,
167 Wis. 2d at 68–69 (citing Cruzan, 497 U.S. at 278).
Moreover, an individual is presumed competent to refuse
medication or treatment. Virgil D., 189 Wis. 2d at 14.
25
A court's misstatement of the burden of proof is
analogous to an erroneous jury instruction.
Whether a party has met its burden of proof is a question
of law that an appellate court reviews de novo. Brandt v.
Brandt, 145 Wis. 2d 394, 409, 427 N.W.2d 126 (Ct. App. 1990).
If a party must prove its case by clear and convincing evidence,
"[a] mere preponderance of the evidence is not sufficient."
Seraphine v. Hardiman, 44 Wis. 2d 60, 65, 170 N.W.2d 739 (1969).
This is particularly true when the burden of proof has due
process implications. Cruzan v. Dir., Mo. Dep't of Health, 497
U.S. 261, 282 (1990).
A reviewing court will not reverse a jury instruction if it
generally states the law correctly. Young v. Prof'ls Ins. Co.,
154 Wis. 2d 742, 746, 454 N.W.2d 24 (Ct. App. 1990) (citing
White v. Leeder, 149 Wis. 2d 948, 954, 440 N.W.2d 557, 559
(1989)). However, if "the instruction is erroneous and probably
misleads the jury," a reviewing court will reverse because the
misstatement constitutes prejudicial error. Id. (citing Leahy
v. Kenosha Mem'l Hosp., 118 Wis. 2d 441, 452, 348 N.W.2d 607,
613 (Ct. App. 1984)) (emphasis added). An erroneous instruction
warrants a new trial if the instruction is prejudicial. Id.
(citing Hale v. Stoughton Hosp. Ass'n, 126 Wis. 2d 267, 278, 376
N.W.2d 89, 95 (Ct. App. 1985)). An errant jury instruction is
prejudicial if (1) it probably misled the jury or (2) was an
incorrect statement of the law. Fischer v. Ganju, 168
Wis. 2d 834, 849-50, 485 N.W.2d 10 (1992) (emphasis added).
41
No. 2012AP99
¶90 The circuit court candidly admitted that "[t]here may
be differing [inferences] that might be drawn from the
uncontested testimony . . . from Ms. Siebers and Dr. Dave." The
witnesses and the court repeatedly acknowledged that Melanie was
able to express an understanding of the advantages and
disadvantages of the prescribed medication and that she was
mostly "compliant" with her treatment conditions. Melanie did
not challenge the extension of her commitment, which implies
that she recognized a problem. She was allegedly able to
persuade Dr. Ambas to change her medication. If available, the
evidence of unexplained noncompliance and problems resulting
from that noncompliance should have been more clearly and
effectively presented in the record than they were.26
¶91 Melanie makes much of Dr. Dave's failure to answer
questions using the terms in the statute: e.g., Melanie was
incapable of applying an understanding of the medication "to her
advantage." The corporation counsel posed a question to Dr.
Dave employing the statutory terms. When he did not receive an
answer in those terms, he should have required his witness to
expound upon his answer, so that the circuit court and a
26
To illustrate, the July 15 letter to the Register in
Probate, signed by Dr. Ambas and Siebers, contains a single
sentence on involuntary medication: "We also recommend a court
order for Melanie to receive medications due to her limited
insight on the need for such medications." This letter is dated
four days before Melanie's scheduled meeting with Dr. Ambas and
four days before Dr. Ambas allegedly took Melanie's advice and
changed Melanie's prescription to Seroquel. Dr. Ambas did not
appear as a witness for the County.
42
No. 2012AP99
reviewing court did not have to speculate upon Dr. Dave's
meaning. As the record stands, we cannot be certain whether Dr.
Dave was applying the standard or changing the standard.
¶92 We suspect that Siebers and Dr. Dave were influenced
in part by the frustration that must have arisen from Melanie's
unwillingness to cooperate and comply during her commitment as
fully as they expected and believed she should. She violated
some of the conditions attached to the court's order. She
engaged another doctor without clearance from the County.
¶93 The dilemma facing the professionals was summed up
insightfully in the nonparty brief of Disability Rights
Wisconsin:
In the case where a commitment is to an outpatient
community setting and nothing in the record indicates
that there is any substantial treatment besides
medication, the commitment and involuntary medication
questions can easily blend together. The question
that might well be in the minds of the mental health
professional in this type of proceeding is:
what . . . good is an outpatient commitment order
unless I can enforce compliance with the sole
treatment modality?
This court cannot allow the involuntary
medication hearing to drift into an enforcement
mechanism for a doctor's order that [a] competent
patient disagrees with or ignores.27
¶94 Whatever the circumstances may be, the County bears
the burden of proof on the issue of competency in a hearing on
an involuntary medication order. These hearings cannot be
perfunctory under the law. Attention to detail is important. A
27
Cf. supra, ¶51.
43
No. 2012AP99
county cannot expect that a judge concerned about a person with
mental illness will automatically approve an involuntary
medication order, even though the person before the court has
chosen a course of action that the county disapproves. The
county, under Wis. Stat. § 51.61(1)(g)4.b., must prove that the
person is substantially incapable of applying an understanding
of the advantages and disadvantages of particular medication to
her own mental illness. In our view, the County did not satisfy
its burden by clear and convincing evidence here. This court
does not have the option of revising the statute to make the
County's work or burden easier.
¶95 In this case, the result might have been different if
the County had produced additional evidence in terms of
additional witnesses or additional detail, and if it had more
carefully articulated its case.
IV. CONCLUSION
¶96 We reverse the court of appeals. The circuit court
misstated the burden of proof. In any event, the County failed
to prove by clear and convincing evidence that Melanie was
"substantially incapable of applying" an understanding of the
advantages, disadvantages, and alternatives of her prescribed
medication to her mental illness in order to make an informed
choice as to whether to accept or refuse the medication. The
County did not overcome Melanie's presumption of competence to
make an informed choice to refuse medication.
¶97 In particular, the medical expert's terminology and
recitation of facts did not sufficiently address and meet the
44
No. 2012AP99
statutory standard. Medical experts must apply the standards
set out in the competency statute. An expert's use of different
language to explain his or her conclusions should be linked back
to the standards in the statute. When a county disapproves of
the choices made by a person under an involuntary medication
order, it should make a detailed record of the person's
noncompliance in taking prescribed medication and show why the
noncompliance demonstrates the person's substantial incapability
of applying his or her understanding of the medication to his or
her mental illness.
¶98 By the Court.—The decision of the court of appeals is
reversed.
45
No. 2012AP99.akz
¶99 ANNETTE KINGSLAND ZIEGLER, J. (dissenting).
Although the majority undertakes a careful analysis of Wis.
Stat. § 51.61(1)(g)4.b., I disagree with the majority's
application of that statute. I conclude that the evidence
presented was sufficient to support extending Melanie L.'s
involuntary medication order. I also dissent because the
majority does not properly abide by the standard of review and
defer to the circuit court's determinations. Instead of
searching the record for evidence to support the court's order,
the majority searches the record to do the opposite.
I. FACTUAL BACKGROUND
¶100 In February 2011, the Outagamie County Circuit Court
ordered that Melanie L. (Melanie) be committed on an outpatient
basis and that she be medicated involuntarily. Under the
commitment order, Melanie was subject to a number of outpatient
treatment conditions.1
¶101 Before the orders expired, Outagamie County (the
County) petitioned to extend the commitment and involuntary
medication order for Melanie. On August 17, 2011, the circuit
court held a hearing on the petition.
1
Relevant to this case, Melanie was ordered to keep her
appointments with court-ordered examiners, take all doses of
prescribed psychotropic medications, and keep case management
advised of her current contact information. The initial
treatment plan developed by the County also stated that Melanie
"may not be involved in other forms of treatment unless approved
by her therapist at Human Services." See majority op., ¶¶20-21.
1
No. 2012AP99.akz
¶102 The court had before it testimony and a written letter
on Melanie's condition from Kate Siebers (Siebers), a clinical
therapist who served as Melanie's caseworker. The court also
had before it testimony and a written report on Melanie's
condition from Dr. Jagdish S. Dave (Dr. Dave), a clinical
psychiatrist who performed an independent evaluation of Melanie.
Both Siebers and Dr. Dave concluded that Melanie was incompetent
to refuse medication.
¶103 Siebers testified that Melanie was not compliant with
several terms of her outpatient treatment. On several
occasions, Melanie did not make appointments with her
psychiatrist or with Siebers, but she would do so only after
prompting from Siebers. Siebers also testified that Melanie
stopped taking medications without consulting Siebers or her
doctor. Further, Melanie stopped seeing her psychiatrist, and
instead, she sought out a different psychiatrist without
informing the County. According to Siebers, Melanie lacked
insight into her condition. Melanie's lack of follow-though in
the treatment indicated that Melanie did not believe medication
or treatment was necessary and did not understand the purpose of
the treatment.
¶104 Dr. Dave testified that Melanie had been diagnosed
with mental disorders that would cause her to have disturbed
thoughts and perceptions, delusions, and paranoid thinking. He
testified that Melanie had a history of taking medications for a
few weeks and then discontinuing them without consulting a
doctor. He testified that "she is not reliable for continuing
2
No. 2012AP99.akz
the treatment on a voluntary basis, and if she does not continue
recommended treatment, she would relapse, and she would end up
institutionalized." Dr. Dave concluded that Melanie was
incapable of "applying the benefits of the medication to her
advantage."
¶105 Melanie did not testify and the County's evidence went
uncontested. After hearing from the witnesses and reviewing the
documentary materials, the circuit court made findings of fact,
accepted the testimony and reports as credible, and applied the
correct legal standard when concluding that Melanie was
incompetent to refuse medication. Simply stated, the court
explained that while Melanie was able to understand the various
treatment options available, she was unable to apply her
understanding of those treatment options to her particular
mental condition. The court granted the County's petition to
extend Melanie's commitment, and signed an order stating that
Melanie was mentally ill and would be treated in an outpatient
facility. The court further granted the County's petition to
extend Melanie's involuntary medication order, and signed an
order stating that due to mental illness, Melanie "is
substantially incapable of applying an understanding of the
advantages, disadvantages and alternatives to [] her condition
in order to make an informed choice as to whether to accept or
3
No. 2012AP99.akz
refuse psychotropic medications." Melanie appealed only the
involuntary medication order.2
II. ANALYSIS
¶106 The factual findings of the circuit court, and all
reasonable inferences drawn from those findings shall not be
disturbed unless they are clearly erroneous. K.N.K. v. Buhler,
139 Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987); K.S. v.
Winnebago Cnty., 147 Wis. 2d 575, 578, 433 N.W.2d 291 (Ct. App.
1988).
¶107 As stated by the majority, Wis. Stat.
§ 51.61(1)(g)4.b. requires the County to prove that Melanie,
although possessing an understanding of the advantages and
disadvantages of different medications or treatments, is
"substantially incapable" of making the connection between that
understanding and her mental illness. Majority op., ¶56.
¶108 Here the circuit court held that "while [Melanie is]
able to understand and appreciate and articulate advantages and
2
While Melanie's appeal was pending, both the commitment
and the involuntary medication order expired. The majority
opinion addresses the issue presented, despite its mootness,
because the competency standard under Wis. Stat.
§ 51.61(1)(g)4.b. "presents an issue of great public importance"
and "is likely to evade appellate review." Majority op., ¶80.
Interestingly, another case heard by this court this term
concluded that it would be inappropriate to address a moot
question even though it "undoubtedly" presented a matter of
great public importance and was likely to recur yet evade
appellate review. Dane Cnty. v. Sheila W., 2013 WI 63, ¶7, __
Wis. 2d __, __N.W.2d __ (per curium). The majority does not
attempt to reconcile this disparate treatment, which will likely
leave practitioners and judges unsure of whether and how to
address moot questions when they present issues of great public
importance and are likely to recur yet evade review.
4
No. 2012AP99.akz
disadvantages, she is a person that by the clear greater weight
of the evidence is not one who can reliably apply [that]
understanding . . . to her present circumstances." This is
precisely the finding demanded by the statute.
¶109 The majority opinion acknowledges that the circuit
court's factual findings are entitled to deference and should
not be disturbed unless they are clearly erroneous. See
majority op., ¶81; K.N.K., 139 Wis. 2d at 198. This requirement
is statutory in a case such as this one, where the trial was to
the court and not to a jury: "Findings of fact shall not be set
aside unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of
the witnesses." Wis. Stat. § 805.17(2). Curiously, the
majority opinion concludes that there was insufficient evidence
to support Melanie's incompetence to refuse medication, but the
majority does not conclude that the circuit court's factual
findings were clearly erroneous. In so doing, the majority
substitutes its judgment for that of the circuit court. Thus,
the majority violates the very rule it recites, one of due
deference to the factual findings of the circuit court.
¶110 In reversing, the majority opinion is concerned that
Dr. Dave's substitution of the phrase "to her advantage" for the
statutory phrase "to her condition" indicates that he was
treating the commitment and involuntary medication inquiries as
identical. Majority op., ¶¶91-93. But there is no requirement
that an expert witness use any "magic words" during his or her
testimony. For example, a medical expert's testimony regarding
5
No. 2012AP99.akz
the degree of certainty for a diagnosis can meet the standard
using a variety of phrases: "[T]here are '[n]o particular words
of art' that a medical expert must employ in relating his or her
opinion." Martindale v. Ripp, 2001 WI 113, ¶105, 246
Wis. 2d 67, 629 N.W.2d 698 (Wilcox, J., dissenting) (quoting
Drexler v. All Am. Life & Cas. Co., 72 Wis. 2d 420, 432, 241
N.W.2d 401 (1976)) (second bracket in original).
¶111 Here Dr. Dave did not use the precise language of Wis.
Stat. § 51.61(1)(g)4.b. in his testimony, but his medical
opinion that Melanie was incompetent to refuse medication was
clear. There is no requirement that he recite the precise
language of the statute during his testimony.
¶112 In addition to Dr. Dave's testimony, the majority also
objects to the circuit court's statement of the burden of proof—
"clear greater weight of the evidence" rather than clear and
6
No. 2012AP99.akz
convincing evidence——when orally discussing its decision.3
Majority op., ¶¶85-87. The majority points to the court's
admission that "'[t]here may be differing [inferences] that
might be drawn from the uncontested testimony . . . from Ms.
Siebers and Dr. Dave'" as an indication that County failed to
prove Melanie was incompetent by clear and convincing evidence.
Majority op., ¶90.
¶113 The circuit court's use of "clear greater weight of
the evidence" should not lead to reversal.4 Whatever differing
inferences could possibly have been drawn from the evidence, it
is undisputed what inference was actually drawn by the circuit
3
The majority opinion analyzes this case as if it were a
jury trial. It was not. See majority op., ¶88 n.25 (discussing
that the circuit court's misstatement of the burden of proof was
analogous to an erroneous jury instruction). In this case, the
circuit court, not a jury, acted as the fact finder. On appeal,
the reviewing court has a duty to view the evidence in the light
most favorable to court's verdict. Wis. Stat. § 805.17(2);
Reuben v. Koppen, 2010 WI App 63, ¶19, 324 Wis. 2d 758, 784
N.W.2d 703. In other words, we search the record for evidence
to sustain the verdict. Id. In this case, the majority opinion
concludes that the circuit court's statement of the "clear
greater weight of the evidence" was an error. See majority op.,
¶88. To reach this determination, the majority opinion assumes
that the circuit court was unaware of the correct burden of
proof. However, the order of commitment, essentially the
verdict, signed by the circuit court specifically referenced
Wis. Stat. § 51.20(13), which sets forth the clear and
convincing burden of proof. Reviewing the record in the light
most favorable to the verdict, I conclude that the circuit court
applied the correct burden of proof.
4
It is not clear whether the majority opinion relies on the
circuit court's statement "clear greater weight of the evidence"
to support its reversal of the court of appeals. Majority op.,
¶¶87-88. To the extent that it does, it offers no support for
the contention that failing to recite the exact statutory
language of the burden of proof demands reversal.
7
No. 2012AP99.akz
court——Melanie lacked the competence to refuse medication by
clear and convincing evidence. The written order signed by the
circuit court clearly and precisely states that Melanie "is
substantially incapable of applying an understanding of the
advantages, disadvantages and alternatives to [] her condition
in order to make an informed choice as to whether to accept or
refuse psychotropic medications." Failure to verbally state the
exact standard is not reversible error. See State v. Echols,
175 Wis. 2d 653, 672, 499 N.W.2d 631 (1993) (holding that "[a]
trial court is not required to recite 'magic words' to set forth
its findings of fact") (quoting Monson v. Madison Family Inst.,
162 Wis. 2d 212, 215 n.3, 470 N.W.2d 853 (1991) (holding that a
circuit court's failure to label specific conduct egregious is
immaterial when such a finding is implicit in the court's
decision)); Englewood Cmty. Apartments Ltd. P'ship v. Alexander
Grant & Co., 119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App.
1984) (noting that, where a circuit court's implicit finding is
clear, failure to recite "magic words" does not result in
reversible error).
¶114 In this case, the circuit court was satisfied by clear
and convincing evidence that Melanie was incompetent to refuse
medication. Wis. Stat. §§ 51.20(13)(e), 51.61(1)(g)4.b. Though
the circuit court did not recite the precise language of the
burden of proof, the court's reliance on the expert testimony
and reports in concluding that Melanie was incompetent to refuse
medication demonstrates that the court was satisfied by clear
and convincing evidence.
8
No. 2012AP99.akz
¶115 Finally, the majority insists that the evidence
presented by the County inadequately supported the circuit
court's conclusions, and it opines that the outcome of the case
would be different if the County had offered additional
witnesses and detail regarding Melanie's incapacity. Majority
op., ¶¶94-95.5
¶116 Given that the County provided written reports and
uncontested testimony both from the County employee who oversaw
Melanie's case, as well as an independent psychiatrist who
evaluated her, it is unclear what additional evidence the
majority would have the circuit court consider. Furthermore,
the majority opinion ignores that this testimony was
uncontroverted. Melanie presented no expert testimony and she
chose not to testify herself.
¶117 I conclude that the County satisfied its burden by
clear and convincing evidence. See supra, ¶¶102-04. The
circuit court had a written letter and testimony from Melanie's
5
As discussed in footnote 3, the circuit court, not a jury,
acted as the fact finder in this case. The reviewing court has
a duty to view the evidence in the light most favorable to the
court's verdict. Wis. Stat. § 805.17(2); Reuben, 324
Wis. 2d 758, ¶19. Here, the circuit court cited the proper
legal standard and concluded that the standard was fulfilled.
The court's order stated that due to mental illness, Melanie "is
substantially incapable of applying an understanding of the
advantages, disadvantages and alternatives to [] her condition
in order to make an informed choice as to whether to accept or
refuse psychotropic medications." The majority opines that its
conclusion might be different had the County presented more
evidence. See majority op., ¶95. In doing so, however, the
majority fails to search the record for evidence to sustain the
verdict and fails to view the testimony and reports in the light
most favorable to the court's determinations.
9
No. 2012AP99.akz
caseworker, who provided evidence that Melanie was noncompliant
with the terms of her outpatient treatment by failing to keep in
contact with the County and her doctors, changing care providers
without prior approval, and self-adjusting her medications. The
circuit court also had a written report and testimony from Dr.
Dave, who informed that court that Melanie's illness caused her
to have disturbed thoughts and perceptions, delusions, and
paranoid thinking. Dr. Dave concluded that Melanie was unlikely
to continue treatment voluntarily, as evidenced by her past
noncompliance. From this evidence, the circuit court properly
concluded that the County satisfied its burden to prove by clear
and convincing evidence that Melanie was substantially incapable6
of applying an understanding of the advantages, disadvantages,
and alternatives of her prescribed medication to her mental
illness in order to make an informed choice as to whether to
accept or refuse the medication.
¶118 An involuntary medication order takes effect only if
patients cannot apply their knowledge of medications or
treatments to their illness, which can be evidenced by failing
to take medications as prescribed. Here, Melanie failed to take
her medications as prescribed.
¶119 The majority opinion once again creates a substantial
hurdle for counties to clear before an individual who has been
6
The majority's interpretation of "substantially incapable"
as "to a considerable degree" should not be read as changing the
standard required to prove that a person is incompetent to
refuse medication under Wis. Stat. § 51.61(1)(g)4.b. Majority
op., ¶70.
10
No. 2012AP99.akz
committed because he or she has been found to be a danger to
himself, herself, or others under a Chapter 51 can be
involuntarily medicated. In Virgil D., the court interpreted a
portion of Wis. Stat. § 51.61 to limit when treatment could be
involuntarily administered. Virgil D. v. Rock Cnty., 189
Wis. 2d 1, 9-11, 524 N.W.2d 894 (1994). The legislature passed
Wis. Stat. § 51.61(1)(g)4.b. in response to Virgil D., which
added a second way for counties to prove that a patient is
incompetent to refuse medication. 1995 Wis. Act 268, § 2. Now
the majority opinion repeats the roadblock Virgil D. created.
Therefore, as a practical matter, the majority's elevated
standard will result in counties being unable to properly treat
those mentally ill individuals who are a danger to themselves or
others.
¶120 For the foregoing reasons, I respectfully dissent.
¶121 I am authorized to state that Justices PATIENCE DRAKE
ROGGENSACK and MICHAEL J. GABLEMAN join this dissent.
11
No. 2012AP99.akz
1