Appeals court clarifies involuntary medication statutes

By Alexandria Staubach

The Wisconsin Court of Appeals recently clarified that a defendant’s dangerousness is not a permissible basis for involuntary medication to return the person to competency.

Any request for involuntary medication based on a person's danger to self or others must occur under commitment statutes and proceedings.

An order for involuntary medication to restore a person to competency for court proceedings must instead satisfy the “Sell factors,” named after a U.S. Supreme Court case. The state must show that (1) the state has an important interest in proceeding to trial; (2) forcibly medicating the individual will significantly further that interest; (3) forced medication is necessary to further that interest; and (2) the medication is medically appropriate.

Geenen

Judge Sara Geenen wrote for the three-judge District 1 panel, which included Presiding Judge M. Joseph Donald and Judge Pedro Colón. The court’s decision reversed an involuntary medication order issued by Milwaukee County Circuit Court Judge David C. Swanson regarding defendant N.K.B.

N.K.B. allegedly struck a nurse and kicked a law enforcement officer while admitted to a psychiatric hospital in January 2023. She was charged with misdemeanor battery and obstructing an officer. The issue of N.K.B.’s competency arose, and the court ordered an evaluation.

In March, the circuit court found N.K.B. incompetent to aid in her defense and ordered restoration at Mendota Mental Health Institute. But despite the Court’s order that N.K.B. be removed from the general jail population for restoration, she remained there for an additional three weeks, during which time she allegedly slapped a nurse.

N.K.B. was charged again, this time with a felony for battery by a prisoner.

At her April 2023 hearing on the felony, her competency was again raised. The court ordered another evaluation and another hearing on her competency to stand trial.

Prior to that hearing, the Department of Health Services had requested an order for involuntary medication. The request was accompanied by a report and individualized treatment plan prepared by Dr. Kevin Murtaugh, who said involuntary administration of medication and treatment was needed because N.K.B. posed a risk of harm to herself or others.  

Psychologist Jenna M. Krickeberg then filed an evaluation report finding N.K.B. was incompetent.

On April 26, 2023 the Court held a competency hearing at which both Krickeberg and Murtaugh testified. Krickeberg said N.K.B was incompetent because she suffered from mental illness and lacked the capacity to aid, assist, or cooperate with counsel and failed to appreciate the court proceedings and charges against her. Krickeberg recommended inpatient treatment with medication at Mendota. She said N.K.B. could likely be restored to competency and that restoration was “far more likely” with medication. 

Murtaugh testified that involuntary medication was necessary. He told the circuit court that he had explained to N.K.B. the advantages and disadvantages of medication, their side effects, and alternatives. He stated that N.K.B. did not provide “meaningful engagement” and that she was not responsive, cursing at the doctor and asking to be left alone. Murtaugh told the court that N.K.B. was also not competent to refuse medication because she could not express an understanding of the benefits and risks of medication.

Following the hearing, the circuit court granted DHS’s request for involuntary medication of N.K.B. The circuit court based its decision on an application of the Sell factors.

N.K.B filed a notice of appeal and sought to stay the involuntary medication order. The court scheduled a supplemental hearing and granted N.K.B.’s motion to stay until that date.

DHS asked the court to reconsider its order to stay involuntary medication because N.K.B. was a danger to herself and others.

At the supplemental hearing on May 4, 2023 the circuit court found that dangerousness was an alternative standard separate from the Sell factors for ordering involuntary medication.

The circuit court again ordered involuntary medication, saying that caselaw, including Sell, “authorized the courts to involuntarily medicate incompetent defendants based on a finding of dangerousness.”
 
The circuit court expressly abandoned any reliance on the Sell factors for ordering involuntary medication, stating “the Sell factors do not apply here.”
 
In its opinion, the court of appeals disagreed with the state’s argument that caselaw permitted involuntary medication based on a finding of dangerousness when the incompetent person was committed solely for restoration of competency, without parallel proceedings under other commitment statutes specifically authorizing dangerousness as a basis for involuntary medication.

Although pertinent U.S. Supreme Court caselaw “acknowledges the existence of alternative grounds to order involuntary medication and instructs courts to explore those grounds before turning to the trial competency question,” that language does not eliminate the need to follow Wisconsin statutes to do so, the court said.

For an order directing involuntary medication based on dangerousness, the decision to forcibly medicate must be predicated on the Wisconsin statutes addressing dangerousness, not those concerning restoration to competency for legal proceedings, the court said. Supreme Court caselaw did “not create independent judicial authority to involuntarily medicate defendants committed (for restoration) based on dangerousness.”
 
No parallel commitment proceedings were commenced against N.K.B. that would have allowed involuntary medication based on dangerousness.
 
Because the proceedings about N.K.B.’s competency occurred solely under rules regarding restoration to competency for court proceedings, the circuit court could order involuntary medication only using the Sell factors, which it did not do, the court held.
 
This is the second recent opinion by the District 1 Court of Appeals regarding involuntary medication. In September, the court evaluated whether the seriousness of an offense can be considered under the Sell factors.

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