CoA says people with mental illness may not choose death over medication

Taylor County Human Services v. L.E., 2021AP1292, 2/15/22, District 3, (1-judge opinion, ineligible for publication); case activity

A circuit court extended “Luca’s” commitment, directed that he be placed in a locked ward, and ordered involuntary medication. On appeal, Luca challenges his placement in a locked ward and the involuntary medication order. At a minimum, the court of appeals analysis of Luca’s right to refuse involuntary medication merits review by SCOW.

During its oral decision, the circuit court said: “It hasn’t been demonstrated sufficiently that [Luca] wouldn’t engage in self-harm  if he were allowed to be a group home or that there are sufficient safeguards with that type of placement that would satisfy the court that he should be in a lesser restricted environment.” Opinion, ¶7.

Luca argued that this statement shows that the circuit court improperly shifted the county’s burden of proof to him. The court of appeals considered circuit court’s statements ambiguous and said that in context it was clear that the circuit court did not shift the burden of proof. Opinion, ¶15.

Luca’s argument that there was insufficient evidence to place him in a locked ward also failed.  The county’s psychologist and social worker testified that Luca constantly talked about wanting to kill himself and discussed his plans for doing so. He declined treatment. During his commitment, he smashed a clock radio and used shards of plastic to cut himself.

The court of appeals held: “Given these circumstances, it was reasonable for the court to conclude that Luca required placement in an inpatient environment with significant supervision to ensure that he would not act on his suicidal thoughts and plans. ” Opinion, ¶17. Even though Luca was not on a suicide watch, the court of appeals said that he required resources that were not accessible in less restrictive settings. Opinion, ¶19.

An especially interesting issue is Luca’s challenge to the involuntary med order.  It is undisputed that Luca wants to die. The court of appeals assumed, without deciding, that he understood the advantages and disadvantages, and alternatives to accepting treatment. He took his medication (Gabapentin) “as needed” rather than twice a day as prescribed. He also regarded “pot’ as an effective treatment.

To the circuit court and the court of appeals, the fact that Luca wanted to die proved that his mental illness interfered with his ability to make an informed choice about whether to accept or refuse treatment.  Opinion, ¶¶25-26. Stated another way, by preferring death to treatment, Lucas was making the wrong choice.

This is directly contrary to Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607. Melanie L. held that a person has the right to make his own decisions about his bodily treatment. He is not incompetent to make those decisions just because he has a mental illness. “An individual may be psychotic, yet nevertheless capable of evaluating the advantages and disadvantages of taking psychotropic drugs and making an informed decision.” Id., ¶45. Thus, courts should not focus on whether the person is making 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., ¶51 (quoting Virgil D. v. Rock County, 189 Wis. 2d 1, 15, 524 N.W.2d 894 (1994). (Emphasis supplied). So if Luca understands that medication or treatment could save him but he’d still prefer death, is he incompetent to refuse medication?

The court of appeals says “yes,” but our society allows people with cancer or other illnesses that needn’t be fatal to refuse treatment all the time. And how does the court of appeals decision square with Lenz v. L.E. Phillips Career Development Center, 167 Wis. 2d 53, 482 N.W.2d 60 (1990), which holds: [T]he right to refuse all unwanted life-sustaining medical treatment extends to incompetent as well as competent individuals.” (Emphasis supplied)? Perhaps SCOW will enlighten us.