Milwaukee Cnty. v. D. H. (In re D. H.)

1

In the matter of the mental commitment of D. H.

Milwaukee County, Petitioner-Respondent, v. D. H., Respondent-Appellant.

No. 2022AP1402

Court of Appeals of Wisconsin, District I

March 7, 2023

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.

APPEAL from an order of the circuit court for Milwaukee County, No 2017ME72 LINDSEY CANONIE GRADY, Judge. Reversed and cause remanded with directions.

WHITE J. ^[1]

¶1 Dan appeals from the circuit court order granting Milwaukee County's request for involuntary medication and treatment.^[2] Dan argues that the County failed to satisfy its burden to prove that the County's medical expert witness had given the patient a reasonable explanation of the advantages and disadvantages, side effects, and alternatives to the prescribed involuntary medications and treatment. Upon review, we conclude that the County failed to satisfy its burden; therefore, the circuit court's order was erroneously granted. Accordingly, we reverse the order and remand with directions to vacate the medication order.^[3]

BACKGROUND

¶2 This case arises out of the latest extension of Dan's involuntary medication and treatment order in December 2021. The County's petitions for commitment and involuntary medication had been granted by the circuit court in 2017 2018, 2019, and 2020.^[4] In 2017, the circuit court found Dan incompetent to proceed to trial on a second-degree sexual assault charge in April 2016. Dan had been admitted to Mendota Mental Health Institute, where he is still housed for treatment of his competency to proceed to trial, pursuant to Wis.Stat. § 971.14(5). However, Dan's case was converted to a civil commitment proceeding pursuant to § 971.14(6) on the basis that Dan was incompetent to stand trial and was unlikely to become competent within the remaining commitment period under ch. 971.

¶3 On December 3, 2021, the trial court heard the County's petition to extend Dan's civil commitment for an additional twelve months.^[5] In the signed court order, the trial court found that Dan was mentally ill, dangerous due to "a substantial probability of physical harm to other individuals," and that based on Dan's treatment record, there was a substantial likelihood that that Dan would be a proper subject for commitment if treatment were withdrawn.

¶4 Approximately two weeks later, the circuit court addressed the County's petition for involuntary medication and treatment. The record reflects that in the December 17, 2021 hearing, Dr. Odette Anderson testified about Dan's "schizoaffective disorder," which was exhibited by "irritable mood, agitated mood at times, grandiosity in his thinking, expansive mood at times. Mood lability, meaning that he will switch from feeling agitated and angry to sad, depressed to on top of the world, unstoppable, euphoric."

¶5 Dr. Anderson then testified about the Dan's treatment plan including prescribed medications:

He takes Risperidone, which is an anti-psychotic medication aimed at the psychotic piece of the illness. He takes Sertraline to decrease his tendency towards sexually inappropriate behaviors. He takes valproic acid, which helps specifically with mood stabilization. He takes Lorazepam to address anxiety and also to augment the effects of the anti-psychotic Risperidone.

He takes Escitalopram to help with some of the anxieties, specifically aimed at his frequent thoughts and distress about wanting to leave Mendota Mental Health Institute but not being able to do so. And finally he takes Benztropine, which is a medication aimed at prophylaxis or prevention of side effects, for which [Dan] has a high risk of developing given that he is taking Risperidone.

The County asked if the medication each had an "an injectable alternative," to which Dr. Anderson replied that "[n]ot each of them in terms of an exact alternative of the medicine," but she employed Haloperidol as a substitute.

¶6 Dr. Anderson testified that prior to submitting the petition for medication, she spoke with Dan about the medication prescribed, the benefits, risks, and alternative psychotropic medications. The doctor stated she told Dan about the medications in two parts:

One we talked about is the benefits in terms of the biological effects of the drugs and how they will affect the symptoms of his schizoaffective disorder that he has. The other approach that we take, we explain this to [Dan], is to speak to goals that he has shared with us, namely that he would like to move to a less restrictive unit and ultimately out of the institute.

For risk and side effects, Dr. Anderson told Dan that "mood side effects can happen"; "weight gain … can happen with Risperidone as well as with valproic acid"; and "sedation that can take place with these medications as well as the Benztropine and Lorazepam."

¶7 The doctor testified that prior to the expiration of the involuntary medication order, Dan had "intermittent periods of declining medication requiring the intra-muscular back-up injection formulation of the medicine or its alternative." Further, she testified that Dan had six seclusion restraint events over several months; however, when Dan was informed that the involuntary medication order had expired in early December 2021, he "precipitously stopped taking the medication so consistently" and he had two seclusion restraint events in one day. The doctor testified that the only new medications that had been added in the current petition was escitalopram, which had been prescribed two months earlier.^[6]

¶8 Dr. Anderson testified that when she attempted to discuss medication with Dan, he would repeatedly state that he takes his medication, but the doctor stated that he did not demonstrate that he understood that taking the medication would provide prolonged stability for him. Dr. Anderson stated that Dan has not complained about side effects, but instead stated that "he's fine, he's not ill, he does not need them." The doctor testified that if Dan would take his prescribed medications on a daily basis there would be a positive therapeutic benefit. Dr. Anderson opined that Dan did not seem to understand that taking his medication might put him in a position to be moved to a less secure unit. The doctor testified that Dan's decision not to cooperate with his medication treatment was not based on informed consent because his current medical conditions affected his ability to do so.

¶9 Dr. Anderson testified that the County requested that the court authorize injectable formulas of some of the medications-specifically Haloperidol injectable in place of Risperidone, valproic acid, and Sertraline. The County also requested the injectable form of Benztropine.^[7] Dr. Anderson testified that it was her opinion, held to a reasonable degree of medical certainty, that Dan was not competent to make choices about psychotropic medications on his own behalf.

¶10 Ultimately, the circuit court was "satisfied through the testimony of the doctor that the doctor in fact did explain the advantages, disadvantages, and side effects and gave that information to [Dan]." The court addressed Dan directly:

My concern is that you are not at this point competent to refuse that medication or treatment and that you are at this point substantially incapable of applying an understanding of the advantages and disadvantages in order to make that informed choice as to whether to accept or refuse medication.

At this point there wasn't clear testimony that you were expressing the understanding of the advantages and disadvantages, and therefore I think it's reasonable for the [c]ourt to find that you were incapable of expressing an understanding of the benefits and the drawbacks of accepting or rejecting treatment.

The court then made the finding to grant the medication order. The court stated:

He needs treatment and medication. The advantages and disadvantages and alternatives to that medication have been explained to him. Due to his mental illness, he is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives. He's also substantially incapable of applying an understanding of those. I think it's more to the second. It's not a full second standard, like when we talk about commitments, but I think as far as my findings go, it is the substantial incapacity of applying the understanding.

The circuit court entered the order for involuntary medication and treatment on December 17, 2021. Dan appeals from this order.^[8]

DISCUSSION

¶11 Dan argues that the County failed to offer clear and convincing evidence to support the circuit court's involuntary medication order; therefore, the order should be reversed and vacated. Ultimately, we agree.

¶12 Under the Chapter 51 commitment process, an individual has "the right to exercise informed consent with regard to all medication and treatment unless the committing court … makes a determination, following a hearing, that the individual is not competent to refuse medication or treatment…" Wis.Stat. § 51.61(g)(3). In accord with Wis.Stat. § 51.20(13)(e), the County bears the burden of proving the patient is incompetent to refuse medication by clear and convincing evidence. Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶37 349 Wis.2d 148, 833 N.W.2d 607. "In evaluating whether the County met its burden of proof, a court must apply facts to the statutory standard" provided in § 51.61(1)(g)4. Melanie L., 349 Wis.2d 148, ¶39. "[T]he circuit court's findings of fact are reviewed for clear error, but application of those facts to the statute and interpretation of the statute are reviewed independently." Winnebago Cnty. v. Christopher S., 2016 WI 1, ¶50, 366 Wis.2d 1, 878 N.W.2d 109.

¶13 In Melanie...