Opinion
Appeal No. 2017AP1843
05-30-2018
IN THE MATTER OF THE MENTAL COMMITMENT OF M.J.S.: WAUKESHA COUNTY, PETITIONER-RESPONDENT, v. M. J. S., RESPONDENT-APPELLANT.
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.
Cir. Ct. No. 1996ME642
APPEAL from an order of the circuit court for Waukesha County: WILLIAM DOMINA, Judge. Reversed.
¶1 HAGEDORN, J. Since 1996, M.J.S. has been involuntarily committed for medication to treat his schizophrenia, and Waukesha County sought extension of that commitment in 2017. M.J.S., however, did not receive the statutorily required explanation of the advantages, disadvantages, and alternatives to the court-ordered medication. The circuit court granted the County's petition for extension nonetheless. It decided that M.J.S. chose not to hear the advantages and disadvantages by failing to schedule an examination with the appointed physician, and that even if he had received the explanation, he was substantially incapable of applying that information. Because the County failed to prove by clear and convincing evidence that M.J.S. either received the statutorily required explanation pursuant to WIS. STAT. § 51.61(1)(g)4. or affirmatively waived his right to be so advised, we hold that the circuit court erred in extending M.J.S.'s involuntary commitment.
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(d) (2015-16). All references to the Wisconsin Statutes are to the 2015-16 version unless otherwise noted.
BACKGROUND
¶2 The following facts are taken from statements, reports, and testimony received at the extension hearing.
¶3 M.J.S. was involuntarily committed for the outpatient administration of medication to treat his schizophrenia. Following release from his initial commitment in 1994, M.J.S. stopped voluntarily taking his medication and was hospitalized several times. M.J.S.'s refusal to self-medicate eventually led to a roadside altercation with police and subsequent recommitment in 1996. M.J.S.'s outpatient commitment for medication has been extended each year since the 1996 incident due to M.J.S.'s continued mental illness, evidence that M.J.S. would not self-medicate, and testimony that a refusal to self-medicate would result in a decline of health that would place M.J.S. and the community at risk.
¶4 On January 13, 2017, the County filed a petition seeking an extension of M.J.S.'s commitment. This petition included a report filed by M.J.S.'s case manager, Brett Brockway, discussing M.J.S.'s treatment history, current mental health status, and treatment plan. The petition concluded with a recommendation that M.J.S.'s commitment be extended.
¶5 On January 16, 2017, a letter was sent to M.J.S. informing him that the hearing on the extension of commitment had been scheduled. The letter was not signed by a judge; it was signed by Darcey Lowerre from the "Waukesha County Juvenile Court Office." The letter also informed M.J.S. that he was "required to be examined by" both Dr. Cary Kohlenberg and Dr. Terrill Bruett prior to the extension hearing. The letter stated that he "must call" Kohlenberg and Bruett to schedule his appointments. However, the letter also confusingly informed M.J.S., "Unless otherwise noted, the doctors will contact you." The letter further explained that an attorney would be appointed for M.J.S., and he was required to attend the hearing unless he contacted his attorney to waive his appearance.
¶6 M.J.S. did not contact the physicians to schedule an examination, nor did the physicians try to contact him. Additionally, although the County routinely ensures that M.J.S. makes it to his appointments, there is no evidence the County did anything to help him schedule this appointment. When Kohlenberg did not hear from M.J.S. regarding the examination, he issued his report and recommendation for extension of commitment based solely on Brockway's report and a review of M.J.S.'s treatment records.
¶7 On February 10, 2017, the County forwarded M.J.S. a notice of the hearing and list of witnesses. M.J.S., however, failed to appear on the stipulated date, and the hearing was rescheduled.
¶8 At the rescheduled extension hearing—this time with M.J.S. present—Brockway and Kohlenberg both testified and offered written statements recommending that M.J.S.'s commitment be extended. Brockway testified regarding M.J.S.'s treatment history, M.J.S.'s belief that he does not have a mental illness, and M.J.S.'s statements that he would stop taking the medication if it were his choice.
M.J.S. said he would stop taking the medication because he believes court-mandated medication is "poison" and "caused a heart attack."
¶9 Kohlenberg testified that, based on his review of M.J.S.'s treatment history, it is apparent that M.J.S. continues to suffer from schizophrenia. Although manageable when properly medicated, Kohlenberg opined that M.J.S.'s treatment history indicates that M.J.S. would not take his medication absent a continued court-ordered commitment. Kohlenberg further testified that M.J.S.'s history of noncompliance would make him a likely candidate for recommitment if the extension order was not granted.
¶10 Kohlenberg then testified regarding what he would have told M.J.S. had there been an actual examination. Specifically, Kohlenberg testified that he would have discussed the advantages and disadvantages of the medication with M.J.S. He also testified that inpatient institutionalization would be an alternative to outpatient commitment. Kohlenberg concluded that M.J.S. would be incapable of applying the information regarding the advantages, disadvantages, and alternatives to the treatment.
¶11 Based on the testimony and arguments at the hearing, the circuit court determined that M.J.S.'s commitment should be extended. Although the court noted that "an individual has the right to have a discussion" about the medication, it did not "believe that an individual can forestall a consideration of a medications order by simply not showing up." The court acknowledged that M.J.S. had not received an explanation of the advantages, disadvantages, and alternatives to medication, but concluded that the County need not actually provide the required explanation because M.J.S. chose "through his conduct" "not to be present to hear that information."
¶12 Additionally, the court determined, regardless of whether M.J.S. was actually examined, the record and witness testimony provided adequate indicia that M.J.S.'s "schizophrenia ... would cause an impediment in term[s] of his ability to process that information in a meaningful way and to apply it to his own circumstance." Thus, the court concluded that M.J.S. was "substantially incapable of applying that information which he chose not to hear in a meaningful way in order to make an informed choice as to whether to accept or to refuse psychotropic medication." In the end, the circuit court extended M.J.S.'s involuntary commitment for medication because (1) M.J.S. "chose" not to schedule his examination, and (2) the witness testimony and Kohlenberg's report were sufficient to conclude that M.J.S. was substantially incapable of applying the relevant information regarding the medication.
DISCUSSION
¶13 We reverse. The County failed to provide an explanation of the advantages, disadvantages, and alternatives to medication as required by WIS. STAT. § 51.61(1)(g)4., and failed to show M.J.S. relinquished his right to be so advised.
Alternatively, M.J.S. argues that the County failed to prove by clear and convincing evidence that M.J.S. would be a proper subject for recommitment if treatment were withdrawn pursuant to WIS. STAT. § 51.20(1)(am). However, because the County failed to prove that the requisite explanation was either provided or waived, we need not reach this issue.
¶14 The County carries the burden to prove all elements of its case by clear and convincing evidence. Outagamie Cty. v. Melanie L., 2013 WI 67, ¶83, 349 Wis. 2d 148, 833 N.W.2d 607. Whether the County has met its statutory burden is a mixed question of law and fact. Id., ¶¶38-39. In evaluating whether the County met its burden, we accept the circuit court's findings of fact unless clearly erroneous, but independently evaluate how those facts apply to the law. Id.
A. Explanation Required for Extension of Commitment
¶15 WISCONSIN STAT. § 51.20 details the statutory process by which the County can extend a person's commitment period. Sec. 51.20(13)(g)3. WISCONSIN STAT. § 51.61, entitled "Patients rights," grants a person whose commitment the County seeks to extend (the "patient") the right to refuse medication and treatment. Sec. 51.61(1)(g). The court begins with the presumption that the patient is competent to refuse treatment. Melanie L., 349 Wis. 2d 148, ¶89. To overcome this presumption, § 51.61(1)(g) dictates that the County must prove:
[B]ecause 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:Sec. 51.61(1)(g)4. (emphasis added).
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 ... in order to make an informed choice as to whether to accept or refuse medication or treatment.
¶16 Therefore, where the patient invokes his or her personal right to refuse treatment under this statute, the County must prove that the patient is either (1) "incapable of expressing an understanding of the advantages and disadvantages of the treatment and the alternatives" or (2) "substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives" to medication "in order to make an informed choice" to either accept or decline to accept the medication. Winnebago Cty. v. Christopher S., 2016 WI 1, ¶28, 366 Wis. 2d 1, 878 N.W.2d 109.
¶17 The County must first, however, establish a necessary prerequisite. WISCONSIN STAT. § 51.61(1)(g)4. explicitly provides that the County cannot prove incapacity until "after the advantages and disadvantages of and alternatives to ... medication or treatment have been explained." (Emphasis added.) Our supreme court has interpreted this language as requiring the County to provide this explanation. The explanation must provide enough information upon which the patient can make an "informed choice" regarding his or her medication. Melanie L., 349 Wis. 2d 148, ¶¶55, 67. Melanie L. explains:
Our supreme court in Melanie L. defined "informed choice" as "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.'" Outagamie Cty. v. Melanie L., 2013 WI 67, ¶76, 349 Wis. 2d 148, 833 N.W.2d 607 (citation omitted).
A person subject to a possible mental commitment or a possible involuntary medication order is entitled to receive from one or more medical professionals a reasonable explanation of proposed medication. The explanation should include why a particular drug is being prescribed, what the advantages of the drug are expected to be, what side effects may be anticipated or are possible, and whether there are reasonable alternatives to the prescribed medication. The explanation should be timely, and, ideally, it should be periodically repeated and reinforced. Medical professionals and other professionals should document the timing and frequency of their explanations so that, if necessary, they have documentary evidence to help establish this element in court.Id., ¶67 (emphasis added). Thus, before the County can carry its burden to prove the patient's incapacity to apply an understanding of the requisite explanation, the County must prove that a "timely, and, ideally ... periodically repeated and reinforced" explanation has been provided. Id., ¶67.
¶18 It is undisputed that Kohlenberg never provided the requisite explanation to M.J.S. In fact, the record indicates that M.J.S. has not received an explanation since sometime prior to 2010. While Kohlenberg testified as to what he would have explained to M.J.S. regarding the advantages, disadvantages, and alternatives to the medication options, M.J.S. never actually received the explanation Melanie L. says is required by WIS. STAT. § 51.61.
The County does not argue that the most recent explanation would qualify as "timely" under the Melanie L. standard and fails to even indicate when that last explanation actually took place. Melanie L., 349 Wis. 2d 148, ¶67. Therefore, we need not address the outer bounds of Melanie L .'s requirements that the explanation be "timely ... and periodically repeated and reinforced." Id. --------
B. Relinquishment of the Right to an Explanation
¶19 The County follows the circuit court's lead and suggests M.J.S. relinquished his right to the statutorily required explanation. Our law recognizes two possible legal categories for this contention: forfeiture and waiver. Though related in certain respects, they "embody very different legal concepts." State v. Ndina , 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. The County argues M.J.S. "waived" the right to the explanation; M.J.S. frames the argument in terms of "forfeiture." But neither party meaningfully addresses the distinction between these concepts or how they might apply here.
¶20 Forfeiture is the "failure to make the timely assertion of a right" at trial. Id., ¶¶29-30 (citation omitted). Allowing forfeiture "facilitates fair and orderly administration of justice," "encourages parties to be vigilant lest they lose a right by failing to object to its denial," and "prevents attorneys from 'sandbagging' opposing counsel by failing to object to an error for strategic reasons and later claiming that the error is grounds for reversal." State v. Pinno , 2014 WI 74, ¶56, 356 Wis. 2d 106, 850 N.W.2d 207 (quoting Ndina , 315 Wis. 2d 653, ¶30). At the same time, however, the pressures of trial and the high price of the loss of a right on appeal requires that rights subject to forfeiture be typically limited to those "whose relinquishment will not necessarily deprive a party of a fair trial" and "whose protection is best left to the immediacy of the trial." State v. Soto , 2012 WI 93, ¶36, 343 Wis. 2d 43, 817 N.W.2d 848.
¶21 In contrast, wavier "is the intentional relinquishment of a known right." Ndina , 315 Wis. 2d 653, ¶29. "Intentional relinquishment" occurs "when a party's conduct is so inconsistent with a purpose to stand upon one's rights as to leave no room for a reasonable inference to the contrary." See Brunton v . Nuvell Credit Corp., 2010 WI 50, ¶38, 325 Wis. 2d 135, 785 N.W.2d 302 (citation omitted) (noting, "[s]tated differently," waiver is shown "by affirmative acts unambiguously demonstrating that [the party's] conduct is intentionally undertaken and meant to give up the right"). Additionally, "[w]aiver can be either express or by conduct." State v. Washington , 2018 WI 3, ¶39, 379 Wis. 2d 58, 905 N.W.2d 380. Because the "intentional relinquishment" standard is higher than that required of forfeiture, "waiver typically applies to those rights so important to the administration of a fair trial that mere inaction on the part of a litigant is not sufficient to demonstrate that the party intended to forego the right." Soto , 343 Wis. 2d 43, ¶37.
¶22 "[W]hen determining whether a right is subject to forfeiture or waiver, we look to the constitutional or statutory importance of the right, balanced against the procedural efficiency in requiring immediate final determination of the right." Id., ¶38. Thus, "where a right ... is one of clear importance to the fair administration of justice, we will hold that the right is subject to waiver, rather than forfeiture." Id.
¶23 The right at stake in this case—the right to be informed of medical options and ultimately to refuse medication—represents a competent individual's "significant liberty interest in avoiding forced medication of psychotropic drugs." Melanie L., 349 Wis. 2d 148, ¶43 (citation omitted). Indeed, the "forcible injection of medication into an unconsenting person's body"—such as that to which M.J.S. was subjected—"represents a substantial interference with that person's liberty." Id. (citation omitted). The statutorily required explanation is not just a magnanimous nicety. It is an information disclosure that the County must prove as a prerequisite to forcibly injecting medication into someone who does not want it. The statutory right is highly important. On the other side, we see little procedural efficiency in allowing this statutory element to be dispensed with via forfeiture. The balancing required under our precedents suggests to this court that the right to an explanation of the advantages, disadvantages, and alternatives to medication is too important, too central to the liberty interests involved, to be dispensed with by the failure to timely object. While briefing on this matter would have been helpful, this court is inclined to conclude that this statutory right may not be forfeited—only waived.
¶24 The County has failed to establish that M.J.S. has waived his right to an explanation—a legal question we determine independently. See Soto , 343 Wis. 2d 43, ¶14. The County relies on two key facts to support its waiver argument—the failure to schedule the appointment and the failure to seek an adjournment at trial. These two facts do not come close to actions or inactions "so inconsistent with a purpose to stand upon one's rights as to leave no room for a reasonable inference to the contrary." Brunton , 325 Wis. 2d 135, ¶38.
¶25 Regarding the failure to schedule the appointment, the letter itself informed M.J.S. that he would be contacted by the doctors, and it instructed him to call and set up the appointment. This mixed-message letter—not even an order signed by a judicial officer—cannot reasonably be grounds to conclude M.J.S. intentionally relinquished his right. To be relieved of its burden to prove an element, the County must do more than simply rely on a confusing letter from court staff. Again, it is the County that is statutorily responsible for meeting the statutory prerequisites and proving its case to the court. We agree M.J.S. cannot just plug his ears with his fingers to avoid hearing the advantages, disadvantages, and alternatives to treatment, and then subsequently complain that he was not provided the statutory explanation. But the record reflects nothing of the sort here.
¶26 Regarding the County's second argument, it was not M.J.S.'s responsibility to seek adjournment of the hearing to allow him to meet with the doctors. It is the County that must ensure it has the necessary evidence. Again, it is the County that carries the burden to prove by clear and convincing evidence the elements necessary to extend commitment. Melanie L., 349 Wis. 2d 148, ¶83.
¶27 For these reasons, the County has not shown M.J.S. waived his right to receive the statutorily required explanation.
CONCLUSION
¶28 Our law requires the County, as a prerequisite to forcible administration of medication, to explain "the advantages and disadvantages of and alternatives to ... medication or treatment." WIS. STAT. § 51.61(1)(g)4.; Melanie L., 349 Wis. 2d 148, ¶53. That did not happen here. Nor has the County shown that M.J.S.'s failure to schedule an appointment based on a confusing letter from court staff constitutes waiver by M.J.S. of his right to hold the County to its burden of proof. Accordingly, the County has failed meet its burden to prove its case by clear and convincing evidence. We reverse the circuit court.
By the Court.—Order reversed.
This opinion will not be published in the official reports. See WIS. STAT. RULE 809.23(1)(b)4.