March 23, 2010 – In a matter of first impression for Wisconsin courts, the Wisconsin Supreme Court, in State v. Wood (2007AP2767-CR, March 19, 2010), considered the issue of whether Wis. Stat. § 971.17(3)(c), which authorizes the involuntary medication of committed person, violates due process in two respects: (1) by allowing involuntary medication without a finding of dangerousness; and (2) by failing to provide a mechanism for periodic review of the medication order.
The statute authorizes the involuntary medication of committed persons who are found not guilty of a crime by reason of mental disease or defect (NGI) and who are found to be incompetent to refuse treatment or medication. The court found that the statute does not violate due process.
A troubled history
John A. Wood, who is 55 years old, has suffered from paranoid schizophrenia since at least his early twenties. In 1978, while delusional from his illness, he beat his stepfather to death with a brick, for which he was found NGI. He was granted conditional release in 1991. During that time, he initially remained on medication and held a job, but eventually stopped both. He was arrested in 1998 for disorderly conduct after exhibiting “bizarre” and potentially threatening behavior. See Id. ¶ 5.
Following that arrest, Wood was admitted to a medical center in La Crosse, and within less than a month, he sexually assaulted a female patient in the same facility. In January 1999 he was found NGI for that crime and was committed to the custody of Department of Health and Family Services (DHFS) for a period of up to 160 months. DHFS placed him Mendota Mental Health Institute in April 1999 and that is where he remains.
Wood has filed seven petitions for conditional release, none of which have been granted. He was believed to be undermedicated, as he steadfastly refused to increase dosages despite staff recommendations to do so. He also continued to deny responsibility for his past crimes, and he was consistently found to lack the emotional stability necessary to be successful if granted conditional release. See Id. ¶ 7.
Mendota has established a treatment team, which considered that: (1) Wood was not competent to refuse medication; (2) an increased dosage of medication was in Wood’s medical interest; (3) Wood presented a current risk of harm to himself or others if medication was not administered involuntarily; and (4) there were no alternative means to address Wood’s dangerousness. See Id. ¶ 10.
In September 2006, Mendota petitioned the court for an order authorizing medication without Wood’s consent because of his declining mental state, the escalation of his symptoms and evidence that he had stopped taking his medication entirely. The circuit court granted the order. Wood then challenged the constitutionality of the statute, both facially, and as applied.
Analysis of constitutionality
In a challenge of a law “on its face,” the challenger must show the law cannot be enforced under any circumstances. If the challenger succeeds, the law is void “from its beginning to its end.” In an as-applied challenge, the court considers the facts of the particular case, not “hypothetical facts in other situations. Under this challenge, the challenger must show that his or her constitutional rights are actually violated. If the as-applied challenge is successful, the operation of the law is void as to the party asserting the claim. See Id. ¶ 13.
The court determined that a person competent to make medical decisions has a significant liberty interest in avoiding forced medication of psychotropic drugs. In light of that interest, the state may not order the administration of psychotropic drugs to a mentally ill individual unless it demonstrates an overriding justification to administer the drugs and a determination of medical appropriateness. The incursions that substantive due process permits largely depend on what the state’s overriding interest entails. See Id. ¶ 25.
The state outlined two overriding interests. First, it has a prospective interest in protecting society, as individuals adjudged NGI are committed precisely because their mental illness caused them to engage in criminal behavior. Secondly, the state has an interest in maintaining the safety and functionality of the institutional environment, which it should not be forced to address solely by equipping the institutions to deal with people who behave unpredictably and dangerously. See Id. ¶ 27. The state further argued that a finding of dangerousness is not necessary because the judgment of NGI and decision to institutionalize that individual demonstrates that person suffers from a mental illness that, if left untreated, causes him or her to be dangerous.
The court agreed with the state and determined that a finding of NGI has the effect of holding that, because of mental illness, the individual commits crimes “for which he or she lacks substantial capacity either to appreciate the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law.” See Id. ¶ 32.
The court determined that in light of that overriding interest and the nature of the original proceedings in which a defendant is adjudged NGI, that a finding of present dangerousness is not required when considering whether to issue an order to forcibly medicate such an individual. See Id. ¶ 33. The court added that there is “at least an implicit finding of dangerousness, if not an express finding, that serves as a basis for a court to consider granting a motion for an involuntary medication order.” See Id. ¶ 38.
As for the procedural due process challenges that would require periodic review of the order to compel medication, the court determined that the review need not be judicial, provided there are adequate procedures in place. See Id. ¶ 52.
Wood argued that the statute contains no provision for periodic review and therefore must fail facially and as applied. The court, however, disagreed and found that there were two primary reasons the statute is valid. First, the statute requires that the court grant a conditional release hearing, which the committed person may request every six months and which must necessarily include a review of the medication order. Second, other language in the statute, which requires that administrator of medication or treatment to observe appropriate medical standards, implicitly requires periodic review. See Id. ¶ 58.
After its analysis, the court determined that Wis. Stat. § 971.17(3)(c) comports with the due process provisions of the United States and Wisconsin constitutions, in that due process does not require a finding of dangerousness to issue an order compelling involuntary medication, and that the statute provides for periodic review of the order. The court therefore affirmed the circuit court.
The dissent
Chief Justice Abrahamson filed the dissent, which was joined by Justice Bradley.
The dissent determined that a finding of present dangerousness is required by due process and that the statute does not require this finding. It also determined that due process requires periodic review of the medication order and that the statute does not provide for that either. As a result, the dissent argued that the statute is facially unconstitutional as a matter of procedural due process.
