Outagamie County v. Melanie L.
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The Outagamie County petitioned for Melanie L.'s mental heath commitment. The circuit court granted the petition and committed Melanie to the County's custody for six months. The court also issued an order for involuntary medication and treatment. Before the end of the six month period, the County sought an extension of both orders for an additional twelve months. The circuit court granted the petition. Melanie appealed the extension of the involuntary medication order, contending that the County did not meet its burden of proving her incompetent to refuse treatment under Wis. Stat. 51.61(1)(g)(4.b). The court of appeals affirmed. The Supreme Court reversed, holding that the County failed to prove by clear and convincing evidence that Melanie was substantially incapable of making an informed choice as to whether to accept or refuse the medication, and therefore did not overcome Melanie's presumption of competence to make an informed choice to refuse medication.
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2013 WI 67 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2012AP99 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 App. 2012 Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 11, 2013 February 26, 2013 Circuit Outagamie Michael W. Gage 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 Kerschensteiner, curiae Madison, brief was filed on behalf of Wisconsin. 2 by Kristin Disability M. Rights 2013 WI 67 NOTICE 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. ¶1 DAVID T. unpublished decision decision the of PROSSER, of the Outagamie J. This court County 1 of is a Reversed. review appeals,1 Circuit of affirming Court2 that an a granted 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 sought, Shortly before the end of the six months, the County and the circuit court granted, an extension of both orders for an additional 12 months. ¶4 Wis. With respect to the latter order, the County relied on Stat. § 51.61(1)(g)4.b.3 to incompetent to refuse medication. establish that Melanie was 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. ¶5 2012AP99 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 advantages, incapable of disadvantages, applying and an understanding alternatives to her of the 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 examining court doctor's of appeals report affirmed, and concluding testimony, along that with the 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 taking psychotropic of taking medication or to the her disadvantages present of not circumstance." Outagamie Cnty. v. Melanie L., No. 2012AP99, unpublished slip op., ¶13, (Wis. Ct. App. May 22, 2012) (internal quotation marks omitted). 3 No. ¶8 We reverse the court of appeals. misstated the burden of proof. to prove by clear and 2012AP99 The circuit court In any event, the County failed 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 health in January 2009 when she was living in Michigan. time, Melanie's symptoms included 4 insomnia, mental At that depression, 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 features. with major Melanie antipsychotic depressive "responded medication, disorder, favorably" while at the with to psychotic Risperdal, hospital, and an 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 over." In 2010 Melanie moved to Wisconsin to "kind of start She lived with a number of roommates in Neenah, then moved into her own apartment in Appleton. semester certified nursing Technical College, and store. she She completed a one- assistant program worked retail in at at Fox a Valley department 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 anxious On February 3 Melanie left work early because she felt and paranoid.4 Melanie's 4 boyfriend later found her 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. wandering around her disoriented state. apartment complex in a 2012AP99 confused, 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. and The Statement listed the officer, another officer, 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. involuntary The court also found probable cause to order medication pending a final determination. In particular, the court concluded under the statutory standard of Wis. Stat. incapable § 51.61(1)(g)4.b. that of disadvantages mental whether applying and illness] to in accept an understanding alternatives order or Melanie to refuse was of to . . . her make an 5 the advantages, condition informed psychotropic "substantially choice medications." If an individual is the subject of an emergency under Wis. Stat. § 51.15, then the court must hold within 72 hours to determine if there is "probable believe the allegations made" in the Statement of Detention are true. Wis. Stat. § 51.20(7)(a). 6 [i.e., as to The detention a hearing cause to Emergency 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," judgment Dr. regarding Warner her concluded loss of that contact her "insight and with reality were impaired." ¶17 Not Dr. Warner diagnosed Melanie with Psychotic Disorder, 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 to "marginally incompetent 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. to express a basic understanding of the 2012AP99 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 psychotropic medication or treatment." to accept or refuse 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 marginal Melanie exhibited judgment and insight. average intelligence, but He wrote that Melanie believes "she has some mental health issue" and "may need medication" but "does not like taking medication." with Psychotic Paranoid. Disorder, Dr. Indu Dave diagnosed Melanie NOS, but ruled out Schizophrenia, 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. ¶19 2012AP99 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." orders, The court accepted the stipulations and approved both 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. initial caseworker was Lisa Peterson, who was Her 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. discontinued pregnant. her Siebers medications noted, however, because she that said she Melanie became 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 Commitment illness. through in place with due treatment to limited without insight the Ch. 51.20 into her mental 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. she had done well previously on that medication. prescribed the antipsychotic drug Seroquel, along 2012AP99 Dr. Ambas 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. stopped taking Celexa because she did believed the Seroquel was sufficient. not feel 2012AP99 anxious and 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 medication. . . . be not The competent patient to would refuse not psychotropic comply with psychotropic medication without [an] involuntary administration order from the court." (Emphasis added.) 12 No. ¶28 2012AP99 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 "There's about medications or compliance concern always her when choose to with our the medication discontinue clients adjust their doctor's advice," Siebers testified. order. their medications without 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, 13 Dr. Dave repeated the 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 testify, as was her right. did not present other at the hearing but Wis. Stat. § 51.20(5). evidence. Melanie did did not Her attorney give a brief unsworn statement to the court. Consequently, Circuit Judge Michael the Gage, who had conducted 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. letter signed Probate by Judge Gage may have considered the July 15 Siebers recommending that and Dr. the Ambas court to extend the the Register in 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 circuit With regard to the involuntary medication order, the court found Melanie to be able to "reflect on treatment and course of treatment in an intelligent way." her Yet, the court commented that this intelligent reflection did not 15 No. provide a basis to discount Siebers. The Melanie's "underlying delusional court thinking reliability of her also the noted that diagnostic "gives own testimony proper of "the malady" Dr. very of concern 2012AP99 Dave and nature of" paranoia for and and The self-assessment . . . ." to 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 disadvantages . . . of not her present circumstance." finding embodying the of taking the advantages psychotropic and medications to The court's extension order states a 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 incapable convincing of applying evidence an that she understanding was of "substantially 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." circuit Id., ¶10. court based Melanie also argued on appeal that the 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). ¶35 The medication evidence court of extension, to sufficiently Id., ¶13. appeals affirmed that contrary, the holding the supported the circuit despite the the testimony court's involuntary existence and findings, of evidence 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. ¶38 unless 2012AP99 We will not disturb a circuit court's factual findings they are clearly erroneous. K.N.K. v. Buhler, Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987). 139 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. evaded review Stat. in this § 51.61(1)(g)4.b. that court. has Interpretation "begins with the language of the statute. of heretofore a 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 18 results. Id., ¶¶46, 48. No. 2012AP99 Legislative history may be relevant to confirm a statute's plain meaning. ¶41 Id., ¶51. 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 treatment individual's "emanates determination and right from informed the to refuse common consent, unwanted law the right medical of personal self- liberties protected by the Fourteenth Amendment, and from the guarantee of liberty in Article Constitution." I, Lenz v. [S]ection L.E. Phillips 1 of Career the Dev. Wisconsin Ctr., 167 Wis. 2d 53, 67, 482 N.W.2d 60 (1992); see also Cruzan v. Dir., Mo. Dep't individuals of Health, have a 497 U.S. protected 261, 278 Fourteenth (1990) (competent 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. ¶43 Competent individuals also retain a 2012AP99 "'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 (1990)). "The nonconsenting Washington forcible person's v. Harper, injection body of 494 free 210, medication represents interference with that person's liberty."17 229. U.S. a into 221 a substantial Harper, 494 U.S. at However, while a patient has "an interest in remaining from bodily intrusion," the state has an interest in administering treatment to a patient pursuant to a commitment order. Mary Antipsychotic C. McCarron, Drugs: Comment, Safeguarding the The Right Mentally to Refuse 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-healthmedications-/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. detained § 51.61(1)(g) pending a final (1977 78). commitment Initially, hearing only could persons 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. informed consent to refuse medication. 1987, involuntarily competent did medication. ¶45 committed not have See id. persons the in 2012AP99 Thus, prior to Wisconsin even statutory right to if refuse See id.; see also Virgil D., 189 Wis. 2d at 11 n.6. In State ex rel. Jones v. Gerhardstein, this court held that the competency standard to refuse medication in Wis. Stat. § 51.61(1)(g) guaranteed by the (1985 86) United violated States and equal Wisconsin protection as 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. ¶46 As a result of Jones, the legislature amended Wis. Stat. § 51.61(1)(g) and created subd. 4. § 18. 2012AP99 1987 Wis. Act 366, 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 persons pending final a refuse commitment final commitment order. incompetency was medication applied hearing and to persons detained subject to a At that time the sole standard to prove whether the individual was "incapable of expressing an understanding of the advantages and disadvantages" of, and alternatives to, accepting the particular medication or treatment. ¶47 Id. (emphasis added). Seven years later in Virgil D., this court confirmed that the standard in then-Wis. Stat. § 51.61(1)(g)4. provided 23 No. only one method by which an individual incompetent to refuse medication. In that case, Rock County could 2012AP99 be Virgil D., 189 Wis. 2d at 5. sought an order to authorize involuntary administration of medication for Virgil D. 7. proven the Id. at The examining psychiatrist reported that while Virgil D. was able to express disadvantages of an understanding treatment, he of was the advantages incompetent to and 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. ¶48 Id. at 8. Reversing the decision on review, this court held that the interpretation adopted by the lower courts disregarded the plain language of the statute. that § 51.61(1)(g)4. provided The Virgil D. court concluded only one standard by which prove an individual incompetent to refuse medication. 11. to Id. at The court concluded that the circuit court and the court of appeals "erred placed greater when they emphasis ignored on the the statutory psychiatrists' standard testimony and that Virgil was not competent to refuse medication because he did not have an appreciation of his own mental illness." (footnote omitted). This court said that by Id. at 13 reading the provision as illustrative rather than exclusive, the two courts altered the test for competency and changed the meaning of the statute. ¶49 Jones Id. at 9. The Virgil D. court also affirmed the conclusion in that "[w]hen a circuit court 24 is asked to determine a 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, medication a disadvantages, circuit court and alternatives should "take to into a particular 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 responded to the ruling by modifying the statute. legislature 1995 Wis. Act 268, § 2 created a second, alternative standard in Wis. Stat. § 51.61(1)(g)4. alternative incapable for standard of competency read: applying an "The to refuse medication. individual understanding is of This substantially 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 added). or treatment." 1995 Wis. Act 268, § 2 (emphasis 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. para. a., convincing the county evidence petitioner that the Under subd. 4., subd. may prove individual by is clear incapable and 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. an informed choice as to whether to accept or 2012AP99 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 "substantially means by understanding" to "her mental incapable" illness" of "in "applying order to make an 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 dealing Wisconsin with Stat. ch. alcohol, drug and mental health. 51 is abuse, the statutory developmental chapter disabilities, 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 . . . ." section speaks alternative." protect generally Wis. personal of Stat. liberties, the "least § 51.001(1). no person restrictive Then who it can The treatment adds: be "To treated adequately outside of a hospital, institution or other inpatient facility may be involuntarily treated in such a facility." Stat. § 51.001(2). Hence, from 28 the first section of Wis. the 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 detention, and treatment. Stat. § 51.20 § 51.15 deals with involuntary deals with emergency commitment for 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 custody. committed to the County for outpatient care and 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 § 51.20(1)(a)2.e. This "Fifth is Standard" significant in Wis. because Wis. Stat. 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." 29 (Emphasis No. added.) 2012AP99 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. 31 No. ¶63 2012AP99 The overlapping language from the two statutes may be illustrated as follows: Wis. Stat. § 51.20(1)(a)2.e. 1. and because of mental illness 2. after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to him or her 3. evidences . . . substantial incapability 4. of applying an understanding of the advantages, disadvantages, and alternatives to his or her mental illness 5. in order to make an informed choice 6. whether to accept or refuse medication or treatment ¶64 The obvious Wis. Stat. § 51.61(1)(g)4.b. 1. because of mental illness 2. after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual 3. the individual is substantially incapable 4. of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness 5. in order to make an informed choice 6. whether to accept or refuse medication or treatment similarity of the language in the two sections and the fact that they were adopted by the legislature at almost the interpretation same of one time in section interpretation of the other. 199622 is indicate likely to that the affect the 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 22 statutory language in either 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. provision. 2012AP99 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 subject This language is largely self-explanatory. A person to possible a possible mental commitment or a 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, periodically Medical the it should be professionals and timing and frequency other of repeated professionals their and reinforced. should explanations so document that, if necessary, they have documentary evidence to help establish this element in court. 3. "the individual is substantially incapable" ¶68 use Wisconsin Stat. §§ 51.20(1)(a)2.e. and 51.61(1)(g)4.a. the words "incapability" and "incapable," without any modifier, before the phrase "expressing an understanding of the advantages and contrast, some "incapability" disadvantages form or of of the "incapable" accepting word in the medication." "substantial" language we By modifies 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 34 in . . . degree . . . or No. extent." Id. at 1791. Thus, the phrase 2012AP99 "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). understanding" requires understanding "applying Using for an his a or this person her understanding" definition, to make use condition. requires a "applying of Put his or another person to an her way, make a connection between an expressed understanding of the benefits and risks of medication and the person's own mental illness. ¶72 mental Melanie argues that the ability to recognize one's own illness is sufficient to show that one can apply an understanding of the advantages, disadvantages, and alternatives to his or her mental illness. if a person illness, cannot logically We disagree. recognize the that person he cannot It may be true that or she has establish a a mental connection between his or her expressed understanding of the benefits and risks of medication and the person's own illness. person's acknowledgment that he or she has a However, a "mental health issue" may not acknowledge the actual problem, or may simply articulate what doctors and courts want to hear. 35 It is possible No. 2012AP99 to conjure up other hypotheticals that would nullify temporary "recognition" of the problem. ¶73 the Dr. Robert L. Beilman, testifying for the Alliance of 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. ¶75 be 2012AP99 Inasmuch as the subject of a commitment hearing cannot 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 person's history to of his or her own mental noncompliance in condition. taking The prescribed medication is clearly relevant, but it is not determinative if the person can noncompliance. reasonably For both explain the the patient reason and the for 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 Language 336 (3d ed. 1992). Dictionary of the English The paragraph seeks to evaluate a person's ability to rationally choose an option. 6. "whether to accept or refuse medication or treatment" ¶77 choose. ¶78 This language specifies the options that a person may It reinforces the word "choice." 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 Wis. 2d 220, 228, 340 N.W.2d 460 (1983)). La Crosse Cnty., However, a reviewing court may decide moot issues under certain circumstances. v. Morford, 2004 WI 5, ¶7, 268 115 Wis. 2d 300, 674 State 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. likely to arise in future cases. 2012AP99 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 that a On the facts, this is a close case. circuit court's findings of fact are We appreciate entitled to deference and should not be disturbed unless they are clearly erroneous. ¶82 K.N.K., 139 Wis. 2d at 198.24 Nonetheless, the reason the court took technically moot case was to interpret and clarify the law. this 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 of a The standard of proof reflects not only the importance particular judgment about adjudication how the between the litigants. ¶86 risk but of also serves as a societal error should be distributed Id. at 283 (citations omitted). 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. ¶88 because 2012AP99 Yet the court is disinclined to rationalize the error the court is not convinced that the County met its burden of proof by clear and convincing evidence.25 ¶89 "a As noted previously, the Supreme Court has held that competent individual has a protected Fourteenth Amendment liberty interest in refusing unwanted medical treatment." Lenz, 167 278). Wis. 2d at Moreover, an 68 69 (citing individual medication or treatment. is Cruzan, presumed 497 U.S. competent at to refuse Virgil D., 189 Wis. 2d at 14. 25 A court's misstatement of the burden analogous to an erroneous jury instruction. of proof is 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. ¶90 be 2012AP99 The circuit court candidly admitted that "[t]here may 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 disadvantages of an the understanding prescribed of the medication advantages and that mostly "compliant" with her treatment conditions. she and was Melanie did not challenge the extension of her commitment, which implies that she recognized a problem. She was persuade Dr. Ambas to change her medication. evidence from of that unexplained noncompliance and should been noncompliance have allegedly able to If available, the problems more resulting 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 26 the circuit court and a 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. reviewing court meaning. did not have to speculate upon 2012AP99 Dr. Dave's 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 order. of the conditions attached to the court's She engaged another doctor without clearance from the County. ¶93 The insightfully dilemma in the facing the nonparty professionals brief of was summed Disability up 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 perfunctory under the law. 27 order. These hearings cannot Attention to detail is important. Cf. supra, ¶51. 43 be A 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 the In this case, the result might have been different if 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. misstated the burden of proof. to prove by clear and The circuit court In any event, the County failed 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. statutory standard. 2012AP99 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. ¶99 ANNETTE Although Stat. the KINGSLAND majority undertakes § 51.61(1)(g)4.b., application presented involuntary of was that ZIEGLER, I medication to careful disagree statute. sufficient a I I (dissenting). analysis with conclude support order. J. the that extending also 2012AP99.akz of majority's the evidence Melanie dissent Wis. because L.'s 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 County) the petitioned to orders extend medication order for Melanie. expired, the Outagamie commitment and County (the involuntary 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. had before condition it from testimony Dr. and Jagdish a S. written Dave The court also report (Dr. on Dave), Melanie's 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 occasions, of her Melanie outpatient did not treatment. make On appointments several with her psychiatrist or with Siebers, but she would do so only after prompting from Siebers. stopped taking Siebers also testified that Melanie medications without consulting Siebers or her doctor. Further, Melanie stopped seeing her psychiatrist, and instead, she sought informing the County. out a different According insight into her condition. to psychiatrist Siebers, without Melanie lacked 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 doctor. and then discontinuing them without consulting a 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 incompetent to standard refuse when concluding medication. Simply that Melanie stated, the was court explained that while Melanie was able to understand the various treatment options understanding of mental condition. available, those she treatment was unable options to to her apply her particular 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 order stating substantially involuntary that due incapable of medication order, mental illness, to applying an and signed Melanie understanding of an "is the advantages, disadvantages and alternatives to [] her condition in order to make an informed choice as to whether to accept or 3 No. refuse psychotropic medications." Melanie 2012AP99.akz 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 § 51.61(1)(g)4.b. although requires possessing disadvantages of by an the the majority, Wis. County to prove understanding of the advantages and or treatments, is different medications that Stat. Melanie, "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 understanding . . . to one her who can present reliably apply circumstances." [that] 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 majority op., ¶81; K.N.K., 139 Wis. 2d at 198. erroneous. See 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 findings were clearly that the erroneous. In circuit so court's doing, the factual majority substitutes its judgment for that of the circuit court. the majority violates the very rule it recites, one Thus, 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 Wis. 2d 67, 629 v. N.W.2d 698 Ripp, 2001 (Wilcox, WI J., 113, ¶105, dissenting) 246 (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. convincing Majority evidence when op., ¶¶85-87. orally discussing The majority be admission that "'[t]here may might drawn from uncontested be the points differing its to 2012AP99.akz decision.3 the court's [inferences] testimony . . . from that 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. court Melanie lacked the competence clear and convincing evidence. circuit court substantially clearly refuse medication by The written order signed by the and precisely of applying incapable to 2012AP99.akz states an that Melanie understanding of "is 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. ¶115 Finally, presented by the the majority County insists inadequately that 2012AP99.akz the supported evidence 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, evaluated her, as it well is as an unclear independent what psychiatrist additional majority would have the circuit court consider. the majority uncontroverted. opinion ignores that this evidence who the Furthermore, testimony was 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 paranoid thinking. to continue thoughts perceptions, delusions, and Dr. Dave concluded that Melanie was unlikely treatment noncompliance. and voluntarily, as evidenced by her past 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 involuntarily medicated. others under a Chapter 51 can be In Virgil D., the court interpreted a portion of Wis. Stat. § 51.61 to limit when treatment could be involuntarily administered. Virgil D. Wis. 2d 1, 9-11, 524 N.W.2d 894 (1994). v. Rock Cnty., 189 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. 1 2012AP99.akz
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