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COURT OF APPEALS DECISION DATED AND FILED January 29, 2014 Diane M. Fremgen Clerk of Court of Appeals |
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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. |
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APPEAL from an order of the circuit court for Waukesha County: Michael o. Bohren, Judge. Affirmed.
¶1 BROWN, C.J.[1] Michael J.S. appeals an order extending his commitment on the basis that his lack of recent dangerous behavior makes him statutorily ineligible to be forcibly medicated. Michael’s argument contradicts case law holding that imminent acts are not required to sustain a commitment. We affirm.
Facts
¶2 Michael is a diagnosed schizophrenic and has been on a court-ordered commitment for thirty-five years, with the exception of a two-year period when the commitment was withdrawn. That two-year period ended in 1996, when Michael was committed under Wis. Stat. § 51.20 after an incident in which he drove his bicycle erratically on a highway and had a violent confrontation with police. In 1996 Michael relapsed when he had been off his medication for three months. Since 1996, Michael’s commitment order has been extended numerous times, he has been under continuous medication, and he has exhibited no more dangerous behavior.
¶3 On February 15, 2013, Waukesha County filed another petition
to extend Michael’s commitment. Dr. Edmundo
Centena testified that Michael required medication to control his
schizophrenia. Dr. Centena stated that
Michael’s condition impairs his judgment, behavior, mood, and ability to meet the
ordinary demands of life, and that Michael is dangerous as defined by the
standard for commitment. Dr. Centena acknowledged
that his testimony was based on past meetings with Michael and on collateral
information because Michael has refused to meet with him for the past thirteen
years. Dr. Centena further testified
that Michael is not capable of expressing an understanding of the advantages,
disadvantages, and alternatives to psychotropic medication is not capable of
applying any understanding to his own situation; and is incompetent to refuse
medications due to his mental illness.
¶4 A mental health counselor with the Waukesha County Support Program
also testified. The counselor stated
that Michael has been late several times for his medication appointments but never more than five or six days late. The counselor also testified that Michael does
not believe he needs medication and does not believe he is mentally ill.
¶5 In
ruling to extend Michael’s commitment, the trial court stated it was satisfied
with Dr. Centena’s opinion as to Michael’s mental illness and that the State
had met its burden of providing clear and convincing evidence that without
treatment Michael would regress to the dangerous conduct and demeanor he
exhibited in 1996. The court also stated
that a “historical analysis” was appropriate because “we would expect [Michael]
to not be acting out in dangerous ways based upon treatment and
medications.” The court expressed that
Michael’s failure to meet with his caregivers was not a bar to the caregivers expressing
opinions about his dangerousness because “you can rely upon records and
background to render such opinions.” Michael
now appeals the extension of his commitment.
Analysis
¶6 Under
Wis. Stat. § 51.20,
involuntary commitment for treatment is authorized if the circuit court
determines that an individual is (1) mentally ill, (2) a proper subject for
treatment, and (3) dangerous. Each of these prerequisites must be shown by
clear and convincing evidence. See Wis.
Stat. § 51.20(1). Michael does
not dispute that in his case, the first two prongs are satisfied: he is mentally ill and is a proper subject for
treatment. But he argues that the
evidence was insufficient to prove the third prong, dangerousness, because he
has not exhibited any dangerous behavior since 1996. We review application of the facts to law de
novo and we will not overturn the circuit court’s findings of fact unless
clearly erroneous. K.N.K. v. Buhler, 139
Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987).
¶7 Michael
claims that the evidence of his dangerousness was insufficient to show that it
is “substantially probable … that withdrawing treatment … will make Michael a
proper subject for commitment,” because he has not engaged in any dangerous
behavior in recent years, even though he has on occasion been four or five days
late for his scheduled medication injections.
However, the State is correct that case law clearly indicates that it is
not necessary to prove dangerousness by recent acts or omissions:
We find support for our conclusion in several supreme court precedents.… In rejecting the sufficiency of the evidence challenges, the court obviously had to apply the definition of dangerousness to the facts. The relevance of the timeframe for future dangerousness was therefore readily apparent, yet, nowhere in either discussion does the court refer to an “imminence” requirement.
State v. Olson, 2006 WI
App 32, ¶ 7, 290 Wis. 2d 202, 712 N.W.2d 61 (interpreting Wis. Stat.
ch. 980).
¶8 As
the trial court stated, dangerousness can be determined by reference to past
history. The issue of dangerousness is often
a historical one. Michael implies that
since he has not exhibited any dangerous behavior during the recent short lapses
in his treatment regime, there is insufficient evidence of dangerousness. However, Michael provides the court with no
evidence, expert or otherwise, that a five or six-day delay in taking
medication is proof that he can function without medication. Instead, Michael’s pre-1996 relapse when he
was off his medication for several months
and Dr. Centena’s testimony are both probative of a finding that he will
revert to a dangerous demeanor if off of his medication for an extended period
of time. As the State aptly points out,
The clear intent of the legislature in amending [Wis. Stat. §] 51.20(1)(am), was to avoid the “revolving door” phenomena whereby there must be proof of a recent overt act to extend the commitment but because the patient was still under treatment, no overt acts occurred and the patient was released from treatment only to commit a dangerous act and be recommitted
State v. W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142 (Ct. App. 1987).
¶9 Michael also claims that Dr. Centena’s testimony must be discounted because the doctor has not met with him for years. But it is Michael who has refused to meet with Dr. Centena for years. If a recent examination were a necessary precedent to a doctor giving his or her opinion in a forcible medication case, then a refusal to meet with the doctor would automatically entitle petitioners to freedom from having to take medication. This cannot be the law. Michael cannot turn his refusal to meet with Dr. Centena into evidence of his lack of dangerousness.
¶10 Under the law, historical dangerousness is sufficient to extend a commitment order. Evidence of recent dangerous behavior is not required. We agree with the circuit court that the medical and mental health professionals’ opinions, presented at Michael’s commitment hearing, were sufficient to establish dangerousness.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)4.
[1] This appeal is decided by one judge pursuant to Wis. Stat. § 752.31(2)(d) (2011-12). All references to the Wisconsin Statutes are to the 2011-12 version.