                                                             2013 WI 67

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2012AP99
COMPLETE TITLE:        In the matter of the mental commitment of
                       Melanie L.:

                       Outagamie County,
                                 Petitioner-Respondent,
                            v.
                       Melanie L.,
                                 Respondent-Appellant-Petitioner.




                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                         Reported at 342 Wis. 2d 253, 816 N.W.2d 352
                                (Ct. App. 2012 – Unpublished)

OPINION FILED:         July 11, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         February 26, 2013

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Outagamie
   JUDGE:              Michael W. Gage

JUSTICES:
   CONCURRED:
   DISSENTED:          ZIEGLER, ROGGENSACK, GABLEMAN, JJJ., dissent.
                       (Opinion filed.)
  NOT PARTICIPATING:


ATTORNEYS:
       For the respondent-appellant-petitioner, there were briefs
by Suzanne Hagopian, assistant state public defender, and oral
argument by Suzanne Hagopian.




       For the petitioner-respondent, there was a brief by Mark G.
Schroeder, assistant corporation counsel, and Outagamie County,
and oral argument by Mark G. Schroeder.
     An   amicus   curiae     brief      was     filed     by   Kristin   M.
Kerschensteiner,   Madison,    on       behalf    of     Disability   Rights
Wisconsin.




                                    2
                                                                            2013 WI 67
                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.   2012AP99
(L.C. No.   2011ME17)

STATE OF WISCONSIN                                :            IN SUPREME COURT

In the matter of the mental commitment of
Melanie L.:



Outagamie County,                                                        FILED
             Petitioner-Respondent,
                                                                    JUL 11, 2013
      v.
                                                                       Diane M. Fremgen
                                                                    Clerk of Supreme Court
Melanie L.,

             Respondent-Appellant-Petitioner.




      REVIEW of a decision of the Court of Appeals.                    Reversed.


      ¶1     DAVID      T.   PROSSER,    J.      This     is    a    review      of     an

unpublished      decision     of   the   court    of     appeals,1       affirming       a

decision    of   the    Outagamie   County    Circuit        Court2 that        granted



      1
       Outagamie Cnty. v. Melanie L., No. 2012AP99, unpublished
slip op. (Wis. Ct. App. May 22, 2012).
      2
          Judge Michael Gage presiding.
                                                                           No.       2012AP99



Outagamie County's (the County) petition for the extension of an

involuntary medication order against Melanie L. (Melanie).

       ¶2      Originally       the    County       sought    and   obtained     a     court

order for Melanie's mental health commitment under Chapter 51.

The court committed Melanie to the County for outpatient care

and custody for a period of six months.                       The court also issued

an order for involuntary medication and treatment.                           Melanie did

not challenge either of these two orders.

       ¶3      Shortly before the end of the six months, the County

sought,      and the         circuit   court       granted,   an    extension    of     both

orders for an additional 12 months.

       ¶4      With respect to the latter order, the County relied on

Wis.       Stat.    § 51.61(1)(g)4.b.3         to    establish      that    Melanie      was

incompetent to refuse medication.                   The statute provides:

            4. . . . [A]n individual is not competent to
       refuse medication or treatment if, because 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:

                   . . . .

                    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.
Wis. Stat. § 51.61(1)(g)4.b.


       3
       All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

                                               2
                                                                                No.      2012AP99



       ¶5        Melanie appealed only the extension of the involuntary

medication order.               She contended that the County did not meet

its burden of proving her incompetent to refuse treatment under

Wis. Stat. § 51.61(1)(g)4.b.

       ¶6        Specifically,         Melanie        argued      that      the       examining

doctor's opinion that she was incompetent to refuse medication

did    not       satisfy    the       statutory       standard     because        the    doctor

testified that Melanie was not "capable of applying the benefits

of the medication to her advantage" rather than that she was

substantially           incapable      of    applying      an     understanding          of   the

advantages,            disadvantages,        and      alternatives         to     her    mental

illness in order to make an informed choice as to whether to

accept      or    refuse     medication.            Melanie      also    argued       that    the

circuit court misapplied the statutory standard by relying too

heavily on her mental illness to support the medication order,

even     though         there    was       evidence      that     she    could        apply    an

understanding of the advantages, disadvantages, and alternatives

of medication to her mental illness.
       ¶7        The    court    of    appeals      affirmed,      concluding         that    the

examining         doctor's       report      and     testimony,         along     with     other
evidence in the record, supported the circuit court's findings.

In short, the court of appeals agreed that Melanie could not
apply the "advantages                 of   taking     or   the    disadvantages          of   not

taking      psychotropic         medication         to   her     present    circumstance."
Outagamie Cnty. v. Melanie L., No. 2012AP99, unpublished slip

op., ¶13, (Wis. Ct. App. May 22, 2012) (internal quotation marks

omitted).
                                                3
                                                                              No.         2012AP99



        ¶8     We reverse the court of appeals.                       The circuit court

misstated the burden of proof.                         In any event, the County failed

to   prove         by   clear     and   convincing         evidence   that     Melanie        was

"substantially incapable of applying" an understanding of the

advantages, disadvantages,                   and   alternatives       of     her    prescribed

medication to her mental illness in order to make an informed

choice as to whether to accept or refuse the medication.                                      The

County did not overcome Melanie's presumption of competence to

make an informed choice to refuse medication.

        ¶9     In       particular,      the    medical      expert's      terminology        and

recitation of facts did not sufficiently address and meet the

statutory standard.                Medical experts must apply the standards

set out in the competency statute.                        An expert's use of different

language to explain his or her conclusions should be linked back

to the standards in the statute.                         When a county disapproves of

the choices made by a person under an involuntary medication

order,        it    should      make     a     detailed      record     of    the        person's

noncompliance in taking prescribed medication and show why the
noncompliance demonstrates the person's substantial incapability

of applying his or her understanding of the medication to his or
her mental illness.

                   I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
        ¶10    Melanie       is    a    25-year-old        woman   living     in     Outagamie

County who suffers from mental illness.
        ¶11    Melanie       first       experienced         issues   with         her    mental

health in January 2009 when she was living in Michigan.                                  At that

time,        Melanie's          symptoms        included       insomnia,           depression,
                                                   4
                                                                              No.          2012AP99



paranoia, and "a delusional belief that other persons had been

attempting to poison her or harm her in other ways."                                      Melanie

called in sick to her place of work and stayed home, terrified.

With       her    mother's         help,   she   voluntarily        admitted        herself      to

Henry Ford Macomb Hospital where she was detained for nine days

and    diagnosed            with   major    depressive       disorder,     with       psychotic

features.              Melanie       "responded      favorably"       to      Risperdal,         an

antipsychotic               medication,      while     at    the     hospital,        and       was

instructed upon her release to continue taking Risperdal and

participate            in    outpatient      counseling.           However,     she       stopped

using Risperdal when her prescription ran out because she said

she could not afford it and because she did not like Risperdal's

side effects.               Melanie also claimed that she could not afford

outpatient counseling.

       ¶12        In 2010 Melanie moved to Wisconsin to "kind of start

over."           She lived with a number of roommates in Neenah, then

moved into her own apartment in Appleton.                           She completed a one-

semester          certified        nursing    assistant       program      at       Fox    Valley
Technical College, and                 she    worked    in    retail     at     a   department

store.       Although she was not taking any medication during this
time, Melanie               reported no      problems,      and    her   records          did   not

indicate any problems until early February 2011.
       ¶13        On February 3 Melanie left work early because she felt

anxious          and   paranoid.4          Melanie's    boyfriend        later       found      her
       4
       In the report of Dr. Indu Dave, one of the two doctors
ordered to conduct an evaluation of Melanie prior to a final
hearing on commitment, Melanie recounted how she felt that
people were trying to "get" her.

                                                 5
                                                                               No.      2012AP99



wandering          around        her     apartment        complex        in     a     confused,

disoriented state.               He took her to St. Elizabeth Hospital where

she was treated.

       ¶14     In the early hours of February 4, an officer from the

Appleton Police Department interviewed Melanie and her boyfriend

about her condition.                  The officer filed a Statement of Emergency

Detention to hold Melanie in temporary protective custody at St.

Elizabeth.          The Statement listed the officer, another officer,

and    Melanie's          boyfriend      as     witnesses.        It     was    approved      for

filing by Kate Siebers (Siebers), a crisis caseworker for the

County.

       ¶15     On February 7, 2011, the circuit court held a probable

cause hearing as required by Wis. Stat. § 51.20(7).5                                 The court

found probable cause to believe that Melanie was mentally ill, a

proper subject for treatment under Chapter 51, and dangerous to

herself or others.               The court also found probable cause to order

involuntary             medication      pending       a   final     determination.             In

particular, the court concluded——under the statutory standard of
Wis.       Stat.    § 51.61(1)(g)4.b.——that               Melanie      was     "substantially

incapable          of     applying      an    understanding         of    the       advantages,
disadvantages            and     alternatives         to . . . her       condition      [i.e.,

mental      illness]        in    order      to   make    an   informed        choice    as    to
whether      to     accept       or    refuse     psychotropic      medications."             The

       5
       If an individual is the subject of an emergency                                detention
under Wis. Stat. § 51.15, then the court must hold                                   a hearing
within 72 hours to determine if there is "probable                                    cause to
believe the allegations made" in the Statement of                                    Emergency
Detention are true. Wis. Stat. § 51.20(7)(a).

                                                  6
                                                                        No.     2012AP99



court ordered a final hearing and directed two medical experts

to    evaluate    Melanie    before      her    release       from     St.    Elizabeth

Hospital.

      ¶16     Dr. David Warner, a psychologist, evaluated Melanie at

St. Elizabeth on February 11.              Dr. Warner reported that at the

time of his examination, Melanie's symptoms had subsided and she

was taking Seroquel,6 an antipsychotic medication, and Ativan,7 a

medication for anxiety.           Dr. Warner reported that Melanie was of

average intelligence, able to understand and answer questions,

and that her "thought processes were generally coherent and goal

directed."       However, due to Melanie's "paranoia and delusions of

persecutions,"      Dr.     Warner    concluded        that     her     "insight    and

judgment      regarding     her   loss     of       contact     with    reality    were

impaired."

      ¶17     Dr. Warner diagnosed Melanie with Psychotic Disorder,

Not   Otherwise     Specified     (NOS).        He    concluded        that   Melanie's

psychotic disorder "grossly impaired her judgment, behavior, and

capacity to recognize reality."                Dr. Warner opined that Melanie
was        "marginally    incompetent          to      refuse      treatment       with

psychotropic medication," concluding that although she was able


       6
       The reference book Advice for the Patient lists Seroquel
as    the   commonly    used   brand   name   for    Quetiapine.
"Quetiapine . . . is used to treat psychotic disorders, such as
schizophrenia."   2 Advice for the Patient: Drug Information in
Lay Language 1370 (24th ed. 2004).
       7
       Ativan is defined as the "trademark for preparations of
[L]orazepam."    Dorland's Illustrated Medical Dictionary 167
(29th ed. 2000).

                                          7
                                                                             No.         2012AP99



to     express        a      basic     understanding            of     the     advantages,

disadvantages, and alternatives to treatment with psychotropic

medication       in       general     terms,        she   had        not   applied         "this

information to her mental illness consistently in order to make

an     informed       choice     as     to     whether      to       accept        or     refuse

psychotropic medication or treatment."                     He added:

            It is my opinion that she is dangerous to herself
       primarily because she is likely incompetent to refuse
       treatment with psychotropic medication and there is a
       substantial   probability,  based   on  her    treatment
       records and recent acts and omissions, that she will
       suffer severe mental and emotional harm . . . . Given
       her   history   of   not   following   her    prescribed
       psychotropic   medication   schedule . . . it    is   my
       opinion that she is unlikely to avail herself of such
       treatment voluntarily.
       ¶18   Dr.      Indu    Dave,    a     psychiatrist,        performed        the     other

evaluation of Melanie on the same day as Dr. Warner.                                    He found

that    Melanie       exhibited        average       intelligence,           but        marginal

judgment and insight.                He wrote that Melanie believes "she has

some mental health issue" and "may need medication" but "does

not like taking medication."                   Dr. Indu Dave diagnosed Melanie

with    Psychotic         Disorder,     NOS,       but    ruled      out   Schizophrenia,

Paranoid.     Dr. Indu Dave found Melanie to be a proper subject

for commitment and treatment.                      With regard to medication, Dr.

Indu Dave concluded that Melanie "was able to engage herself in

a discussion regarding risk[s] and benefits of the prescribed

medication but due to her current state of mind, she was not

able to fully comprehend or apply this knowledge to herself.

She is not considered competent to refuse medications."


                                               8
                                                                       No.       2012AP99



     ¶19    The circuit court held a final hearing on February 18,

2011, to rule on the County's request for a six-month mental

health commitment order, and a six-month order for involuntary

medication.    Melanie stipulated to both orders, while confirming

that she was taking the prescribed medication and feeling "a lot

better."    The court accepted the stipulations and approved both

orders,    thereby    committing    Melanie       to    the    care    of     the Human

Services Board of the County for a period not to exceed six

months.

     ¶20    The commitment order provided for outpatient treatment

with conditions, which Melanie acknowledged with her signature.

These conditions included:

     •      Keep appointments with court-appointed examiners.

     •      Take all doses of psychotropic medication prescribed

for me.

     •      Keep     all    appointments      with     treatment       providers       and

case management staff.

     •      Cooperate        with   psychological             and/or        psychiatric
testing and therapy.

     •      Keep     case   management       or   treatment     staff        advised    of
current residential address or location.8

     ¶21    The initial treatment plan developed for Melanie by
the County contained an additional condition: "This individual



     8
       These conditions appear in a standard form, ME-912,
developed by the Forms Committee of the Wisconsin Judicial
Conference.

                                         9
                                                                               No.         2012AP99



may not be involved in other forms of treatment unless approved

by her therapist at Human Services."

      ¶22    Melanie was assigned by the County to Dr. Milagros

Cuaresma-Ambas (Dr. Ambas) to receive psychiatric services.                                     Her

initial     caseworker            was     Lisa      Peterson,        who       was     replaced

temporarily by Siebers in late May 2011.

      ¶23    On June 16, 2011, Siebers submitted a 120-day progress

report concluding that Melanie was compliant with the conditions

of    her   commitment.             Siebers         noted,     however,        that        Melanie

discontinued         her     medications         because       she      said     she       became

pregnant.       After reporting a miscarriage, Melanie scheduled a

follow-up appointment with Dr. Ambas to recommence medication

after Siebers reminded her that the conditions of her commitment

required her to do so.

      ¶24    On July 15, 2011, Siebers, in consultation with Dr.

Ambas, recommended a one-year extension of Melanie's commitment

and   involuntary          medication         orders.         Siebers'     letter          to   the

Register in Probate stated: "It is our belief that Melanie will
not    follow    through          with     treatment          without      the       Ch.     51.20

Commitment      in    place       due    to    limited       insight     into        her    mental
illness.     We also recommend a court order for Melanie to receive

medications due to her limited insight on the need for such
medications."              Four    days       later,     on     July     19,     the       County

petitioned for an extension of the commitment and involuntary
medication orders.

      ¶25   At her follow-up appointment, which also occurred on

July 19, Melanie asked Dr. Ambas to prescribe Seroquel because
                                               10
                                                             No.       2012AP99



she had done well previously on that medication.                    Dr. Ambas

prescribed      the   antipsychotic    drug   Seroquel,    along    with      the

antidepressant drug Celexa,9 both to be taken regularly.                       In

addition, Dr. Ambas prescribed Lorazepam,10 an antianxiety drug,

to be taken as needed.

     ¶26   On     August    14   Dr.   Jagdish   Dave     (Dr.     Dave),11    a

psychiatrist, interviewed Melanie in relation to extending her

commitment.      During the interview Melanie reported that she was

taking Seroquel as prescribed and that she took Lorazepam when

she felt anxious.12        However, Melanie told Dr. Dave that she had


     9
       Celexa is a "trademark for a preparation of citalopram
hydrobromide."    Dorland's Illustrated Medical Dictionary 305
(29th ed. 2000).   Citalopram hydrobromide is "an antidepressant
compound used in the treatment of major depressive disorder,
administered orally." Id. at 359.
     10
       Lorazepam is defined as "[a]n antianxiety drug of the
benzodiazepine group."   Stedman's Medical Dictionary 1032 (27th
ed. 2000).    See also Dorland's Illustrated Medical Dictionary
1027 (29th ed. 2000) (defining Lorazepam as "a benzodiazepine
with anxiolytic and sedative effects, administered orally in the
treatment of anxiety disorders and short-term relief of anxiety
symptoms and as a sedative-hypnotic agent").
     11
       Two different psychiatrists with the last name of "Dave"
examined Melanie in regard to her Chapter 51 commitment.     Dr.
Indu Dave evaluated Melanie prior to her initial February 2011
commitment.   Dr. Jagdish Dave performed the County's evaluation
of Melanie for its petition for extension and testified at the
extension hearing.   The full name of Dr. Indu Dave is used to
distinguish him from Dr. Jagdish Dave (Dr. Dave).     Dr. Dave's
report and testimony are more important to this case than Dr.
Indu Dave's report.
     12
       As an example, Melanie recounted that she took Lorazepam
when she felt depressed following her miscarriage and when she
was anxious about her upcoming wedding.

                                       11
                                                                          No.       2012AP99



stopped      taking   Celexa      because      she   did     not   feel    anxious      and

believed the Seroquel was sufficient.                  Melanie also informed Dr.

Dave during the interview that she was not happy with Dr. Ambas

(she    "does   not   know      what    she    is    doing");      she    did    not    like

clinical therapist Siebers; and she now had private insurance

and was seeking treatment through another doctor on her own.

       ¶27    Ultimately,       Dr.    Dave's      report    to    the    circuit      court

concluded that Melanie was a proper subject for extension of a

Chapter 51 commitment and that she was incompetent to refuse

psychotropic     medication.            The    doctor's      report      concluded     that

Melanie suffered from Psychotic Disorder, NOS, "a substantial

disorder of thoughts and perception, which grossly impairs her

judgment, capacity to recognize reality, [and] ability to care

for herself."         Dr. Dave reported that Melanie's condition was

treatable, but she would revert to "the previous level of mental

status" if the court did not extend her commitment.                             The doctor

also recommended that the court extend the order for involuntary

administration of medication.                 His report stated that Melanie,
based upon her educational background, was "able to express the

benefits and risk of the psychotropic medication; however, she
is unable to apply such understanding to her advantage and she

is     considered     to   be     not    competent      to     refuse      psychotropic

medication. . . .           The        patient       would        not     comply       with

psychotropic medication without [an] involuntary administration

order from the court."           (Emphasis added.)




                                              12
                                                                                No.     2012AP99



        ¶28     At the hearing on the petition for extension of the

commitment        and      involuntary             medication       orders,       the       County

presented Siebers and Dr. Dave as witnesses.

        ¶29     Siebers        testified            that         there     had        been      no

hospitalizations during Melanie's six-month commitment, and she

was "mostly compliant" with doctor appointments; however, she

needed to be prompted to reschedule appointments, and there was

a   question      about        her    compliance          with    the    medication         order.

"There's        always     concern          when    our    clients       discontinue         their

medications        or     choose       to     adjust       their       medications      without

doctor's advice," Siebers testified.                         She acknowledged speaking

with Melanie only two or three times by telephone since late

May.13        Relying     on    her     more       frequent      conversations        with    Dr.

Ambas, Siebers concluded that Melanie lacked "insight into the

purpose of treatment."

        ¶30     Dr. Dave testified that he discussed with Melanie the

advantages,        disadvantages,             and       alternatives       to    psychotropic

medication.        The doctor also testified that Melanie was able to
express an understanding of the advantages and disadvantages of

medication:        Melanie           knew     which       medications       she       had    been
prescribed, when she took those medications, and the effects of

those        medications       on    her.          However,      Dr.     Dave    repeated     the


        13
       Siebers testified that she had tried several times to
reach Melanie by telephone but, for a time, Melanie's phone was
disconnected.   She testified that she had not been promptly
notified of Melanie's new telephone number.    Melanie told the
court that she had left her new telephone number in a voice
mail.

                                                   13
                                                   No.   2012AP99



conclusion in his written report——that Melanie was not capable

of "applying the benefits of the medication to her advantage."

Dr. Dave's testimony included the following exchanges:

    Q.   Doctor, have you had an opportunity to discuss
    the advantages and disadvantages and alternatives to
    treatment with [Melanie]?

    A.   Yes, I did.

    Q.   And based upon that conversation, do you have an
    opinion to a reasonable degree of medical certainty as
    to whether [Melanie] is substantially incapable of
    applying   an   understanding    of   the   advantages,
    disadvantages, and alternatives to her condition such
    that   she  would   be  able   to   accept  or   refuse
    psychotropic medications on an [informed] basis?

    A.   I do not think that she's capable of applying the
    benefits of the medication to her advantage.

         . . . .

    Q.   Okay.   And the psychotic disorder not otherwise
    specified, Doctor, would that include or manifest
    substantial disruption in thought and perception?

    A.   Yes.

         . . . .

    Q.   And, Doctor, one last question.    To a degree of
    medical certainty, do you have an opinion as to
    whether [Melanie,] if treatment were withdrawn[,]
    would be a proper subject for commitment?

    A.   Yes.

    Q.   And why——why is that?

    A.   Because in my opinion, she is not reliable for
    continuing the treatment on a voluntary basis, and if
    she does not continue recommended treatment, she would
    relapse, and she would end up institutionalized, and
    she would again be initiated a Chapter 51 commitment.


                                 14
                                                                               No.        2012AP99


             . . . .

      [Cross-examination by Mr. Lutgen, Melanie's attorney]

      Q.   And did you discuss the benefits and risks of the
      psychotropic medicines?

      A.     Yes, I did.

      Q.   And Melanie was able to express those benefits
      and risks to you in that conversation?

      A.   She was able to express but was not capable of
      applying it to her advantage.
      ¶31    Melanie       was        present    at       the    hearing       but    did     not

testify, as was her right.                Wis. Stat. § 51.20(5).                Her attorney

did   not   present       other       evidence.           Melanie       did    give   a     brief

unsworn statement to the court.                        Consequently, Circuit Judge

Michael     Gage,    who        had    conducted          the    commitment      hearing       in

February, had the testimony of Dr. Dave, his five-page written

report, and the testimony of Siebers as the evidence upon which

to base his ruling.             Judge Gage may have considered the July 15

letter     signed    by    Siebers       and     Dr.      Ambas    to    the    Register       in

Probate     recommending         that     the        court      extend    the    involuntary

medication order.

      ¶32    The circuit court determined that Melanie had a mental

illness and was a proper subject for treatment under Chapter 51,

extending     both        the     commitment          order       and    the     involuntary

medication order.

      ¶33    With regard to the involuntary medication order, the

circuit     court    found       Melanie    to       be    able    to    "reflect      on     her

treatment and course of treatment in an intelligent way."                                    Yet,

the court commented that this intelligent reflection did not

                                                15
                                                                                 No.      2012AP99



provide       a     basis    to     discount     the     testimony        of     Dr.    Dave    and

Siebers.            The     court      also    noted    that    "the       very    nature       of"

Melanie's           "underlying         diagnostic       malady"          of     paranoia       and

delusional          thinking        "gives     proper     concern         for     and     to    the

reliability          of    her    own    self-assessment . . . ."                 The     circuit

court ultimately concluded that Melanie "is a person that by the

clear greater weight of the evidence is not one who can reliably

apply          an         understanding            of         the         advantages            and

disadvantages . . . of                 not    taking    psychotropic           medications       to

her present circumstance."                    The court's extension order states a

finding       embodying          the     statutory      standard          under    Wis.        Stat.

§ 51.61(1)(g)4.b.14

     ¶34          Melanie appealed only the extension of the involuntary

medication order.                Melanie L., slip op., ¶1.                     She argued that

the statutory standard——which required the County to prove by

clear        and    convincing          evidence       that    she    was       "substantially

incapable          of     applying      an     understanding         of     the    advantages,

disadvantages and alternatives" of medication to her condition——

was not substantiated by the evidence and not met by Dr. Dave's


        14
       While   ordering   the   administration  of  involuntary
medication, the circuit court still hoped that Melanie would be
consulted in treatment decisions:


     It seems to me clear that a treatment provider ought
     to listen very carefully to, be mindful of, and weigh
     in   a  significant   way  [Melanie]'s   concerns  and
     expressed concerns because she's capable of insight,
     and she certainly is an intelligent person and has the
     capacity of thinking clearly to act with insightful
     intelligence.
                                                 16
                                                                            No.         2012AP99



opinion that she was unable to apply an understanding "to her

advantage."          Id., ¶10.       Melanie also argued on appeal that the

circuit      court    based     its    finding       of    incompetence           to    refuse

medication on the fact that she was mentally ill, contrary to

this court's holding in Virgil D. v. Rock County, 189 Wis. 2d 1,

524 N.W.2d 894 (1994).           Id., ¶13.

       ¶35   The      court     of     appeals       affirmed         the     involuntary

medication     extension,        holding    that      despite      the      existence         of

evidence      to      the     contrary,        the        testimony      and       evidence

sufficiently       supported     the     circuit     court's       findings,           and   the

court of appeals was required to give deference to the circuit

court's reasonable inferences and factual findings.                               Id., ¶11.
The court of appeals also concluded that a doctor did not have

to "iterate the specific words of the statute in order for the

evidence to be sufficient."              Id.     Finally, the court of appeals

rejected Melanie's argument that the circuit court based its

decision on the fact that Melanie had a mental illness.                                      Id.,

¶13.

       ¶36   Melanie        petitioned    this     court     for    review,        which      we

granted on November 14, 2012.

                              II. STANDARD OF REVIEW

       ¶37   Melanie contends the County failed to meet its burden

of proving that she was incompetent to refuse medication under

Wis. Stat. § 51.61(1)(g)4.b.                The County bears the burden of

proving Melanie incompetent to refuse medication by clear and

convincing evidence.            Wis. Stat. § 51.20(13)(e); Virgil D., 189

Wis. 2d at 12 n.7.
                                           17
                                                                          No.         2012AP99



       ¶38   We will not disturb a circuit court's factual findings

unless    they      are    clearly      erroneous.          K.N.K.   v.     Buhler,        139

Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987).                               We accept

reasonable inferences from the facts available to the circuit

court.       K.S.    v.    Winnebago      Cnty.,      147    Wis. 2d 575,           578,   433

N.W.2d 291 (Ct. App. 1988).

       ¶39   In evaluating whether the County met its burden of

proof, a court must apply facts to the statutory standard in

Wis.     Stat.      § 51.61(1)(g)4.b.           and    interpret          the       statute.

Applying facts to the standard and interpreting the statute are

questions of law that this court reviews independently.                               Estate
of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶10, 318 Wis. 2d 553,

769 N.W.2d 481 (citation omitted).

                                   III. DISCUSSION

       ¶40   This case requires the court to interpret a statutory

provision——Wis.           Stat.    § 51.61(1)(g)4.b.——that           has        heretofore

evaded    review     in     this    court.        Interpretation       of       a    statute

"begins with the language of the statute.                     If the meaning of the

statute is plain, we ordinarily stop the inquiry.                                Statutory

language is given its common, ordinary, and accepted meaning."

State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58,

¶45, 271 Wis. 2d 633, 681 N.W.2d 110 (internal quotation marks

and citations omitted).                 Ascertaining the plain meaning of a

statute often requires considering a statute's scope, context,

and purpose——based upon the text and structure of the statute——

to   avoid    unreasonable         or    absurd    results.          Id.,       ¶¶46,      48.


                                           18
                                                                         No.        2012AP99



Legislative history may be relevant to confirm a statute's plain

meaning.    Id., ¶51.

      ¶41   Before interpreting Wis. Stat. § 51.61(1)(g)4.b. and

applying the facts of this case to the statute, we review the

development of the law on involuntary medication orders, both in

the United States Supreme Court and in Wisconsin.                                Next, we

examine the evolution of the involuntary medication statute and

interpret the provision at issue in this case, phrase by phrase.

Finally, we apply the facts of Melanie's case to the statute and

conclude that the County failed to prove by clear and convincing

evidence that Melanie was incompetent to refuse medication.

   A. Development of Wisconsin's Competency Standard for Refusing

                                 Involuntary Medication

      ¶42   An        individual's       right    to   refuse         unwanted      medical

treatment     "emanates         from     the     common       law     right    of    self-

determination         and   informed       consent,       the    personal        liberties

protected by the Fourteenth Amendment, and from the guarantee of

liberty     in        Article     I,      [S]ection       1      of     the      Wisconsin

Constitution."           Lenz v.       L.E. Phillips       Career      Dev.    Ctr.,    167
Wis. 2d 53, 67, 482 N.W.2d 60 (1992); see also Cruzan v. Dir.,

Mo.   Dep't      of    Health,     497    U.S.    261,     278      (1990)     (competent

individuals       have      a    protected       Fourteenth         Amendment       liberty

interest in refusing unwanted medical treatment).15


      15
       We do not read these cases as deciding that a minor has a
constitutionally protected liberty interest in refusing unwanted
medical treatment, irrespective of the consequences. Cf. Parham
v. J.R., 442 U.S. 584, 600 (1979)).

                                            19
                                                                             No.        2012AP99



       ¶43     Competent     individuals       also     retain      a       "'significant'

liberty interest in avoiding forced medication of psychotropic

drugs."16      State v. Wood, 2010 WI 17, ¶25, 323 Wis. 2d 321, 780

N.W.2d 63       (citing     Washington     v.       Harper,    494      U.S.        210,       221

(1990)).         "The       forcible    injection        of    medication               into    a

nonconsenting          person's        body         represents          a      substantial

interference with that person's liberty."17                       Harper, 494 U.S. at

229.        However, while a patient has "an interest in remaining

free    from    bodily      intrusion,"       the    state    has       an    interest         in

administering treatment to a patient pursuant to a commitment

order.         Mary    C.    McCarron,     Comment,         The     Right          to    Refuse
Antipsychotic         Drugs:    Safeguarding          the     Mentally         Incompetent

Patient's Right to Procedural Due Process, 73 Marq. L. Rev. 477,

484 (1990) (footnote omitted).                 Current mental health statutes


       16
       Psychotropic is defined as "[a]ffecting the psyche;
denoting, specifically, drugs used in the treatment of mental
illnesses." Stedman's Medical Dictionary 1167 (24th ed. 1982).
       17
       Persons opposed to the involuntary administration of
psychotropic medication argue that these drugs have "serious,
even fatal, side effects." Washington v. Harper, 494 U.S. 210,
229 (1990); see also State ex rel. Jones v. Gerhardstein, 141
Wis. 2d 710, 727, 416 N.W.2d 883 (1987) (listing some of the
most common side effects). Persons who resist forced medication
and other critics also contend that they have a right to be free
from government intrusion directly upon the mind. See generally
Stephan Beyer, Comment, Madness and Medicine: The Forcible
Administration of Psychotropic Drugs, 1980 Wis. L. Rev. 497.
For a more recent description of psychotropic medications and
their potential side effects, see National Institute of Mental
Health, Mental Health Medications, U.S. Dep't of Health & Human
Servs.                                                     (2012),
http://www.nimh.nih.gov/health/publications/mental-health-
medications-/mentalhealthmedications_ln.pdf.

                                          20
                                                              No.     2012AP99



reflect a balance between treating mental illness and protecting

the individual and society from danger on the one hand, and

personal liberty of the individual on the other.18

       ¶44   Wisconsin's modern mental health statutes originated

in Chapter 430, Laws of 1975, also known as the 1976 Mental

Health Act.19      The competency standard for refusing medication

was first articulated in 1978.          § 98, ch. 428, Laws of 1977; see

also Virgil D., 189 Wis. 2d at 11 n.6.            The standard initially

read:

            (g) Prior to the final commitment hearing and
       court commitment orders, [the patient shall] have the
       right to refuse all medication . . . except as ordered
       by the court under this paragraph, or in a situation
       where such medication or treatment is necessary to
       prevent serious physical harm to the patient or to
       others. . . .   An individual is not competent to
       refuse medication if because of mental illness,
       developmental    disability,   alcoholism   or    drug
       dependence, the individual is incapable of expressing
       an understanding of the advantages and disadvantages
       of accepting treatment, and the alternatives to
       accepting the particular treatment offered, after the
       advantages, disadvantages and alternatives have been
       explained to the individual.
Wis.    Stat.   § 51.61(1)(g)      (1977–78).    Initially,   only    persons

detained     pending   a   final    commitment   hearing   could     exercise

       18
       Peter D. Keane, Case Comment, The Use of the Clear and
Convincing Evidence Standard in Civil Commitment Proceedings
Pursuant to the Adam Walsh Act Does Not Violate Due Process——
United States v. Comstock, 627 F.3d 513 (4th Cir. 2010), 7 J.
Health & Biomedical L. 667, 670 (2012).
       19
       Steven K. Erickson, Michael J. Vitacco, & Gregory J. Van
Rybroek, Beyond Overt Violence: Wisconsin's Progressive Civil
Commitment Statute as a Marker of a New Era in Mental Health
Law, 89 Marq. L. Rev. 359, 367 (2005).

                                       21
                                                                            No.        2012AP99



informed consent to refuse medication.                      See id.     Thus, prior to

1987,        involuntarily    committed       persons       in   Wisconsin——even               if

competent——did         not     have     the     statutory           right         to    refuse

medication.       See id.; see also Virgil D., 189 Wis. 2d at 11 n.6.

        ¶45    In State ex rel. Jones v. Gerhardstein, this court

held that the competency standard to refuse medication in Wis.

Stat.        § 51.61(1)(g)     (1985–86)      violated        equal     protection             as

guaranteed       by   the    United   States     and    Wisconsin       Constitutions.

Jones, 141 Wis. 2d 710, 734, 416 N.W.2d 883 (1987).                                The Jones
court concluded that no rational basis existed for the statutory

distinction between those awaiting commitment and those subject

to    a final     commitment order.             Id.    at    737.      The        court      also

concluded that "the patient through informed consent makes the

choices of bodily treatment," id. at 739, and that a presumption

of competence to choose must apply to all individuals regardless

of commitment status.               Id. at 737, 739.                The court further

emphasized that involuntary commitment cannot be equated to a

finding of incompetence because "the concepts of mental illness

and    competency      are    not     synonymous.           An   individual            may    be

psychotic, yet nevertheless capable of evaluating the advantages

and disadvantages of taking psychotropic drugs and making an

informed decision."20          Id. at 728.



        20
       For an analysis of the State ex rel. Jones v.
Gerhardstein decision and its impact on institutional practice,
see Delila M.J. Ledwith, Note, Jones v. Gerhardstein: The
Involuntarily Committed    Mental   Patient's  Right   to  Refuse
Treatment with Psychotropic Drugs, 1990 Wis. L. Rev. 1367.

                                           22
                                                                           No.     2012AP99



        ¶46       As a result of Jones, the legislature amended Wis.

Stat. § 51.61(1)(g) and created subd. 4.                            1987 Wis. Act 366,

§ 18.     The new competency standard was stated as follows:

          (g) [Patients shall h]ave the following rights,
     under the following procedures, to refuse medication
     and treatment:

                       1.   Have the right to refuse all medication
                  and treatment except as ordered by the court
                  under subd. 2, or in a situation in which the
                  medication or treatment is necessary to prevent
                  serious physical harm to the patient or to
                  others.

                         . . . .

                       4.    For purposes of a determination [prior
                  to or following a final commitment order,] an
                  individual is not competent to refuse medication
                  if, because of mental illness, developmental
                  disability, alcoholism or drug dependence, the
                  individual    is   incapable  of   expressing  an
                  understanding of the advantages and disadvantages
                  of accepting treatment, and the alternatives to
                  accepting the particular treatment offered, after
                  the advantages, disadvantages and alternatives
                  have been explained to the individual.
Wis. Stat. § 51.61(1)(g)1. & 4. (1987–88).                              This standard of

competency         to    refuse    medication          applied     to   persons   detained

pending       a    final      commitment    hearing       and    persons   subject to a

final commitment order.              At that time the sole standard to prove

incompetency            was    whether     the        individual    was    "incapable   of

expressing an understanding of the advantages and disadvantages"
of, and alternatives to, accepting the particular medication or

treatment.         Id. (emphasis added).

        ¶47       Seven years later in Virgil D., this court confirmed

that the standard in then-Wis. Stat. § 51.61(1)(g)4. provided

                                                 23
                                                                                  No.        2012AP99



only     one     method     by      which     an    individual          could           be   proven

incompetent to refuse medication.                    Virgil D., 189 Wis. 2d at 5.

In    that     case,   Rock      County     sought    an     order      to     authorize         the

involuntary administration of medication for Virgil D.                                       Id. at

7.     The examining psychiatrist reported that while Virgil D. was

able     to     express       an     understanding          of    the        advantages          and

disadvantages          of   treatment,        he     was        incompetent             to   refuse

medication because he lacked insight into his mental illness and

thus could not exercise informed consent.                               Id.         The circuit
court granted Rock County's petition for involuntary medication

and the court of appeals affirmed.                   Id. at 8.

       ¶48     Reversing the decision on review, this court held that

the interpretation adopted by the lower courts disregarded the

plain language of the statute.                     The Virgil D. court concluded

that §       51.61(1)(g)4.         provided    only    one       standard          by    which    to

prove an individual incompetent to refuse medication.                                        Id. at

11.     The court concluded that the circuit court and the court of

appeals       "erred    when       they   ignored     the       statutory         standard       and

placed       greater    emphasis      on    the    psychiatrists'             testimony         that

Virgil was not competent to refuse medication because he did not

have an appreciation of his own mental illness."                                        Id. at 13

(footnote       omitted).           This    court     said       that    by        reading       the

provision as illustrative rather than exclusive, the two courts

altered the test for competency and changed the meaning of the

statute.       Id. at 9.

       ¶49     The Virgil D. court also affirmed the conclusion in

Jones    that    "[w]hen       a    circuit    court       is    asked       to    determine       a
                                              24
                                                                   No.      2012AP99



patient's competency to refuse medication or treatment pursuant

to § 51.61(1)(g)4[.], Stats., it must presume that the patient

is   competent    to   make   that    decision."        Id.   at   14    (citation

omitted).

      ¶50   Furthermore, the         Virgil    D.   court   concluded      that——in

determining whether the evidence shows a person understands the

advantages,      disadvantages,       and    alternatives     to   a     particular

medication——a     circuit     court    should       "take   into   account"     the

following five factors:

           (a) Whether the patient is able to identify the
      type of recommended medication or treatment;

           (b) whether the patient has previously received
      the type of medication or treatment at issue;

           (c) if    the   patient  has   received  similar
      treatment in the past, whether he or she can describe
      what happened as a result and how the effects were
      beneficial or harmful;

           (d) if the patient has not been similarly
      treated in the past, whether he or she can identify
      the risks and benefits associated with the recommended
      medication or treatment; and

           (e) whether the patient holds any patently false
      beliefs about the recommended medication or treatment
      which would prevent an understanding of legitimate
      risks and benefits.
Id. at 14–15.
      ¶51   Finally, the Virgil D. court reminded circuit courts

that they

      must   maintain  the   distinction  that  this   court
      recognized in Jones between a patient's mental illness
      and his or her ability to exercise informed consent.
      The focus of a hearing on the patient's right to
      exercise informed consent should not be upon whether

                                        25
                                                                          No.     2012AP99


     the court, the psychiatrist or the County believes the
     patient's decision is 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. at 15 (citation omitted).

     ¶52     After     the      Virgil     D.        decision,      the     legislature

responded to the ruling by modifying the statute.                         1995 Wis. Act

268, § 2 created a second, alternative standard in Wis. Stat.

§ 51.61(1)(g)4.       for    competency         to    refuse     medication.         This

alternative     standard      read:      "The    individual         is    substantially

incapable     of     applying     an     understanding         of   the     advantages,

disadvantages and alternatives to his or her mental illness,

developmental disability, alcoholism or drug dependence in order

to make an informed choice as to whether to accept or refuse

medication    or     treatment."         1995 Wis.       Act   268,      § 2    (emphasis

added).     Both standards are now part of Wisconsin law.

           B. The Current Competency Standard for Refusing

                             Involuntary Medication

     ¶53    In sum, under Wis. Stat. § 51.61, a person has the
right to refuse medication unless a court determines that the

person is incompetent to make such a decision.                           The competency

standard in Wis. Stat. § 51.61(1)(g)4. reads:

         4.   For purposes of a determination under subd.
    2. or 3., an individual is not competent to refuse
    medication or treatment if, because of mental illness,
    developmental    disability,    alcoholism  or    drug
    dependence, 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:



                                          26
                                                                             No.        2012AP99


                   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, developmental disability,
              alcoholism or drug dependence in order to make an
              informed choice as to whether to accept or refuse
              medication or treatment.
Wis. Stat. § 51.61(1)(g)4.

        ¶54   There       are      thus     two       ways      under            Wis.      Stat.
§ 51.61(1)(g)4. that a person who is mentally ill and who has

received        the     requisite    explanation          of    the     advantages           and

disadvantages of and alternatives to medication may be found

incompetent to refuse such medication.                         Under subd. 4., subd.

para.     a.,     the     county    petitioner        may      prove        by     clear     and

convincing        evidence      that      the     individual       is       incapable         of

expressing an understanding of the advantages and disadvantages

of accepting the prescribed medication, and the alternatives.

This    is    a   difficult     standard        for   a   county       to    meet       if   the

individual is able to express a reasonable understanding of the

medication.           Virgil D., 189 Wis. 2d at 14.                    That is why the

legislature crafted a somewhat relaxed standard in subd. 4.,

subd. para. b.
        ¶55   Under the second standard, the county petitioner may

prove by clear and convincing evidence that the individual is
substantially incapable of applying the understanding he or she

has of the advantages and disadvantages of the medication (and

the alternatives) to his or her mental illness in order to make

                                            27
                                                                                 No.         2012AP99



an   informed        choice    as   to      whether        to     accept        or    refuse       the

medication.

        ¶56    In this case, the County's expert, Dr. Dave, and the

circuit court recognized that Melanie was able to express an

understanding of the advantages and disadvantages of medication.

Therefore,       the    entire      focus      was        and     is    on      the    competency

standard in 4.b.              This court is required to examine what the

statute       means    by     "substantially             incapable"        of      "applying        an

understanding" to "her              mental      illness"          "in     order       to    make    an

informed choice" "as to whether to accept or refuse medication."

        ¶57    Normally a court begins with the plain language of the

statute and gives the words their common and ordinary meaning.

Kalal, 271 Wis. 2d 633, ¶45.                 Here we will begin by putting the

statute in statutory context.

        ¶58    Wisconsin       Stat.     ch.        51     is     the    statutory           chapter

dealing       with    alcohol, drug         abuse,        developmental            disabilities,

and mental health.            The legislative policy set out in Wis. Stat.

§ 51.001 paints with a broad brush, reading in part that, "[i]t

is the policy of the state to assure the provision of a full

range of treatment and rehabilitation services in the state for

all mental disorders . . . and for mental illness . . . ."                                         The

section       speaks   generally       of    the         "least    restrictive             treatment

alternative."           Wis.    Stat.       § 51.001(1).                Then     it    adds:       "To

protect       personal      liberties,         no        person    who       can      be    treated

adequately outside of a hospital, institution or other inpatient

facility may be involuntarily treated in such a facility."                                       Wis.

Stat.    § 51.001(2).           Hence,       from         the     first      section        of     the
                                               28
                                                                                No.         2012AP99



chapter, we see the tension between the role of the government

to   provide        caring      treatment        (sometimes          involuntarily         and,    if

necessary, by force) and the personal liberty of the individual.

        ¶59    Wisconsin            Stat.        § 51.15        deals        with      emergency

detention,          and    § 51.20     deals      with     involuntary         commitment         for

treatment.           Section 51.61, by contrast, is entitled "Patients

rights."            The    provision       to    be      interpreted      in    this       case    is

contained in the "Patients rights" section of the chapter.

        ¶60    In     this case, there              is    no    dispute      that     Melanie is

afflicted with "mental illness" and no disagreement that she was

properly       committed         to     the      County        for    outpatient       care       and

custody.        She was found to be mentally ill, dangerous because

she evidenced behavior within one or more of the standards under

Wis. Stat. § 51.20(1) or (1m) (but not § 51.20(1)(a)2.e.), and

a proper subject for outpatient treatment.                                Consequently, the

issue before us relates to the control that the County has over

Melanie       with        respect     to    psychotropic             medication      during       her

outpatient commitment.
        ¶61    The court's commitment order in February and its order

on August 17, 2011, make clear that Melanie was not committed
under         the     so-called            "Fifth        Standard"        in        Wis.      Stat.

§ 51.20(1)(a)2.e.                This       is    significant          because      Wis.      Stat.
§ 51.61(1)(g)3m. reads: "Following a final commitment order for

a subject individual who is determined to meet the commitment
standard       under       s.   51.20(1)(a)2.e.,            the      court   shall     issue       an

order permitting medication or treatment to be administered to

the individual regardless of his or her consent."                                      (Emphasis
                                                  29
                                                     No.   2012AP99



added.)     In other words, subd. 3m., which immediately precedes

subd. 4., is not governed by the competency standards in subd.

4.

     ¶62    Subdivision 3m. is not governed by subd. 4. because

the Fifth Standard——Wis. Stat. § 51.20(1)(a)2.e.21——contains many




     21
          Wisconsin Stat. § 51.20(1)(a)2.e. reads:

                                  30
                                                     No.    2012AP99



of the same provisions found in Wis. Stat. § 51.61(1)(g)4.b.;

and to commit a person under the Fifth Standard, the government

must prove these provisions by clear and convincing evidence.




     For an individual, other than an individual who is alleged
to be drug dependent or developmentally disabled, after the
advantages and disadvantages of and alternatives to accepting a
particular medication or treatment have been explained to him or
her and because of mental illness, evidences either incapability
of   expressing    an    understanding   of   the   advantages  and
disadvantages of accepting medication or treatment and the
alternatives,   or    substantial   incapability   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; and
evidences a substantial probability, as demonstrated by both the
individual's treatment history and his or her recent acts or
omissions, that the individual needs care or treatment to
prevent further disability or deterioration and a substantial
probability that he or she will, if left untreated, lack
services necessary for his or her health or safety and suffer
severe mental, emotional, or physical harm that will result in
the loss of the individual's ability to function independently
in the community or the loss of cognitive or volitional control
over his or her thoughts or actions.            The probability of
suffering severe mental, emotional, or physical harm is not
substantial under this subd. 2.e. if reasonable provision for
the individual's care or treatment is available in the community
and there is a reasonable probability that the individual will
avail himself or herself of these services or if the individual
may be provided protective placement or protective services
under ch. 55. Food, shelter, or other care that is provided to
an individual who is substantially incapable of obtaining food,
shelter, or other care for himself or herself by any person
other than a treatment facility does not constitute reasonable
provision for the individual's care or treatment in the
community under this subd. 2.e.       The individual's status as a
minor does not automatically establish a substantial probability
of suffering severe mental, emotional, or physical harm under
this subd. 2.e.



                                31
                                                                         No.         2012AP99



     ¶63   The overlapping language from the two statutes may be

illustrated as follows:

  Wis. Stat. § 51.20(1)(a)2.e.                      Wis. Stat. § 51.61(1)(g)4.b.
1. and because of mental                          1. because of mental illness
illness
2. after the advantages and                       2. after the advantages and
disadvantages of and                              disadvantages of and
alternatives to accepting a                       alternatives to accepting the
particular medication or                          particular medication or
treatment have been explained                     treatment have been explained
to him or her                                     to the individual
3. evidences . . . substantial                    3. the individual is
incapability                                      substantially incapable
4. of applying an understanding                   4. of applying an understanding
of the advantages,                                of the advantages,
disadvantages, and alternatives                   disadvantages and alternatives
to his or her mental illness                      to his or her mental illness
5. in order to make an informed                   5. in order to make an informed
choice                                            choice
6. whether to accept or refuse                    6. whether to accept or refuse
medication or treatment                           medication or treatment
     ¶64   The    obvious          similarity       of   the   language    in       the   two

sections and the fact that they were adopted by the legislature

at   almost      the        same     time     in     199622    indicate        that       the

interpretation         of     one    section        is    likely    to     affect         the

interpretation of the other.                      While the constitutionality of
Wis. Stat. § 51.20(1)(a)2.e. was upheld in State v. Dennis H.,

2002 WI 104, 255 Wis. 2d 359, 647 N.W.2d 851, there has been no

detailed   interpretation            of     the    statutory    language       in    either

     22
       Separate bills creating Wis. Stat. §§ 51.20(1)(a)2.e. and
51.61(1)(g)4.b., respectively,   proceeded along similar tracks
and were enacted into law almost concurrently. 1995 Senate Bill
270, which created the Fifth Standard of dangerousness in
§ 51.20(1)(a)2.e., was enacted as 1995 Wis. Act 292 on April 25,
1996. 1995 Senate Bill 119, which created the 4.b. standard of
competency for refusing medication, was enacted as 1995 Wis. Act
268 on April 22, 1996.

                                             32
                                                                      No.    2012AP99



provision.         Therefore, we will proceed to discuss the language

in Wis. Stat. § 51.61(1)(g)4.b. phrase by phrase.

                        1. "because of mental illness"

        ¶65   Mental illness is a defined term in Wis. Stat. ch. 51:

             (13) (a) "Mental illness" means mental disease to
        such extent that a person so afflicted requires care
        and treatment for his or her own welfare, or the
        welfare of others, or of the community.

             (b) "Mental illness", for purposes of involuntary
        commitment, means a substantial disorder of thought,
        mood, perception, orientation, or memory which grossly
        impairs judgment, behavior, capacity to recognize
        reality, or ability to meet the ordinary demands of
        life, but does not include alcoholism.

Wis. Stat. § 51.01(13).
        ¶66   Thus,     the   phrase    "because   of   mental    illness"     means

because of a substantial disorder of thought, mood, perception,

orientation, or memory which grossly impairs judgment, behavior,

capacity to recognize reality, or meet the ordinary demands of

life.

           2. "after the advantages and disadvantages of and

           alternatives to accepting a particular medication

           or treatment have been explained [to the person]"

     ¶67      This language is largely self-explanatory.                    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

                                          33
                                                                              No.      2012AP99



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.

            3. "the individual is substantially incapable"

      ¶68    Wisconsin Stat. §§ 51.20(1)(a)2.e. and 51.61(1)(g)4.a.

use   the    words        "incapability"              and    "incapable,"       without      any

modifier, before the phrase "expressing an understanding of the

advantages        and    disadvantages           of      accepting      medication."          By

contrast,      some          form    of      the       word       "substantial"      modifies

"incapability"          or     "incapable"          in      the    language     we   seek    to

interpret related to "applying an understanding."

      ¶69    "Incapable"            means    "[l]acking           the   necessary    ability,

capacity, or power" to do something or the inability "to perform

adequately."        The American Heritage Dictionary of the English

Language 911 (3d ed. 1992).                      The word "incompetent" is one of

the words that shows up in the definition of "incapable."                                    Id.

Hence, in the context of Wis. Stat. § 51.61(1)(g)4.a., a person

is "incapable" if, for all practical purposes, the person simply

cannot express the advantages and disadvantages of a medication

or treatment.           This standard is quite rigorous for the county in

terms of proof.

      ¶70    "Substantially incapable" is a less rigorous standard.

"Substantial"           means       "[c]onsiderable               in . . . degree . . . or
                                                 34
                                                                                   No.             2012AP99



extent."           Id.    at     1791.         Thus,         the    phrase        "substantially

incapable" means, to a considerable degree, a person lacks the

ability or capacity to apply an understanding of the advantages

and disadvantages of medication to his or her own condition.

               4. "applying an understanding of the advantages,

               disadvantages and alternatives [of the medication

                 or treatment] to his or her mental illness"

         ¶71    "Apply" means to "make use of as suitable, fitting, or

relevant."             Webster's       Third   New      International             Dictionary              105
(3d. ed. 1986); see also Random House Unabridged Dictionary 102

(2d.      ed.      1993).            Using     this          definition,           "applying               an

understanding"           requires       a   person       to    make       use    of       his      or     her

understanding           for    his     or    her    condition.              Put       another           way,

"applying         an     understanding"            requires         a     person          to       make    a

connection between an expressed understanding of the benefits

and risks of medication and the person's own mental illness.

         ¶72     Melanie argues that the ability to recognize one's own

mental     illness       is    sufficient          to   show       that    one     can         apply      an

understanding of the advantages, disadvantages, and alternatives

to his or her mental illness.                  We disagree.               It may be true that

if   a    person        cannot    recognize         that      he    or     she     has         a    mental

illness,        logically        the    person      cannot         establish          a    connection

between his or her expressed understanding of the benefits and

risks of medication and the person's own illness.                                          However, a

person's        acknowledgment          that   he       or    she   has     a     "mental           health

issue" may not acknowledge the actual problem, or may simply

articulate what doctors and courts want to hear.                                  It is possible
                                               35
                                                                  No.      2012AP99



to conjure up other hypotheticals that would nullify temporary

"recognition" of the problem.

        ¶73   Dr. Robert L. Beilman, testifying for the Alliance of

the     Mentally   Ill       of   Wisconsin    at   the    Assembly     Judiciary

Committee's hearing on 1995 Senate Bill 119, which created Wis.

Stat.     § 51.61(1)(g)4.b.,          pointedly     criticized     the     single

standard discussed in Virgil D.:

             Under current law, a committed person with a
        serious mental illness may rattle off a list of
        medications as requested and actually appear quite
        competent to someone who is not experienced in dealing
        with persons with serious mental illness.

           Ask any [Alliance of the Mentally Ill] family and
      they will all tell you how an ill family member is
      able to pull him/herself together for a good 20-30
      minutes and appear quite articulate and competent when
      appearing at a hearing or a meeting or an appointment.
      The illogical, delusional, paranoid behavior is put on
      a back burner somewhere in that very complex organ,
      the brain. By appearing articulate, due to an ability
      to memorize a list of psychotropic medications, a
      judge may very easily be fooled into thinking the
      person is competent.
Hearing on 1995 S.B. 119 Before the A. Comm. on Judiciary, 1995

Leg.,    92nd   Sess.    1    (Wis.   1995)   (statement    of   Dr.    Robert   L.
Beilman, Alliance for the Mentally Ill of Wis.) (on file with

Wis. Legis. Council).
        ¶74   The import of Dr. Beilman's testimony here is that a

person with a serious mental illness may be able to acknowledge
"issues" and rattle off side effects without being truly able to

apply his or her "understanding" to the person's own problem.




                                         36
                                                                           No.      2012AP99



       ¶75     Inasmuch as the subject of a commitment hearing cannot

be    forced    to    testify,       it    is    the    responsibility        of    medical

experts who appear as witnesses for the county to explain how

they probed the issue of whether the person can "apply" his or

her   understanding         to     his    or    her   own   mental   condition.          The

person's       history        of     noncompliance          in     taking        prescribed

medication is clearly relevant, but it is not determinative if

the    person        can     reasonably          explain     the     reason        for   the

noncompliance.              For     both        the    patient     and      the     medical

professional, facts and reasoning are nearly as important as

conclusions.

                 5. "in order to make an informed choice"

       ¶76     "Informed choice" means 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."        The       American      Heritage      Dictionary     of    the     English

Language 336 (3d ed. 1992).                    The paragraph seeks to evaluate a

person's ability to rationally choose an option.

                6. "whether to accept or refuse medication

                                      or treatment"

       ¶77     This language specifies the options that a person may

choose.      It reinforces the word "choice."

       ¶78     The plain language of the statute gives a person the

right "to refuse medication or treatment," provided the patient

is competent to make that choice.                       Consequently, the court's

determination should not turn on the person's choice to refuse
                                                37
                                                                    No.     2012AP99



to take medication; it should turn on the person's ability to

process and apply the information available to the person's own

condition before making that choice.

                            C. Application of the Law

      ¶79    The County moved to dismiss Melanie's case after this

court accepted the petition for review but before oral argument,

on   grounds    that    Melanie's         case    is   moot.      Her   involuntary

medication order expired one year after the order was issued on

August 17, 2011, and there is no evidence that the County sought

to extend it.

      ¶80    As a general rule, this court "will not consider a

question the answer to which cannot have any practical effect

upon an existing controversy."                  State v. Leitner, 2002 WI 77,

¶13, 253 Wis. 2d 449, 646 N.W.2d 341 (quoting State ex rel. La

Crosse      Tribune    v.     Circuit     Court    for   La    Crosse   Cnty.,   115

Wis. 2d 220, 228, 340 N.W.2d 460 (1983)).                     However, a reviewing

court may decide moot issues under certain circumstances.                     State

v.   Morford, 2004       WI    5,   ¶7,    268    Wis. 2d 300,    674   N.W.2d 349.

This court may decide an otherwise moot issue if the issue:

           (1) is of great public importance; (2) occurs so
      frequently that a definitive decision is necessary to
      guide circuit courts; (3) is likely to arise again and
      a decision of the court would alleviate uncertainty;
      or (4) will likely be repeated, but evades appellate
      review because the appellate review process cannot be
      completed or even undertaken in time to have a
      practical effect on the parties.
Id. (footnote omitted).             We conclude that the 4.b. competency

standard presents an issue of great public importance and is


                                           38
                                                                  No.      2012AP99



likely to arise in future cases.             Moreover, interpreting the

4.b. competency standard is likely to evade appellate review in

many instances because the order appealed from will have expired

before an appeal is completed.        Therefore, we will exercise our

discretion and take up the issues that Melanie asks this court

to review.23

       ¶81   On the facts, this is a close case.                  We appreciate

that    a    circuit   court's   findings    of    fact    are     entitled     to

deference and should not be disturbed unless they are clearly

erroneous.     K.N.K., 139 Wis. 2d at 198.24

       ¶82   Nonetheless,    the    reason        the     court     took      this

technically moot case was to interpret and clarify the law.                     In

these circumstances, the court should not approve a commitment

proceeding that reveals clear deficiencies.                 Consequently, we

reverse.

       ¶83   It is undisputed that the County was required to prove

all elements of its case by clear and convincing evidence.                    Wis.

Stat. § 51.20(13)(e); Virgil D., 189 Wis. 2d at 12 n.7.

       ¶84   As the Supreme Court explained in Cruzan:

       23
       We noted that Wis. Stat. § 51.61(1)(g)4.b. was adopted in
1996 at the same time the legislature adopted the Fifth Standard
in Wis. Stat. § 51.20(1)(a)2.e. See supra, ¶64. We also noted
that Wis. Stat. § 51.60(1)(g)4.b. has evaded detailed review
since its adoption.      See supra, ¶40.     This case presents
questions of statutory interpretation that are ripe for judicial
review, and interpretation of Wis. Stat. § 51.61(1)(g)4.b.
implicates the interpretation of Wis. Stat. § 51.20(1)(a)2.e.
       24
       The fact that the County did not seek to extend Melanie's
commitment can be argued by both sides as vindication of their
positions.

                                     39
                                                                  No.        2012AP99


         "The function of a standard of proof, as that concept
         is embodied in the Due Process Clause and in the realm
         of factfinding, is to        'instruct the factfinder
         concerning the degree of confidence our society thinks
         he   should   have  in   the   correctness    of  factual
         conclusions for a particular type of adjudication.'"
         Addington v. Texas, 441 U.S. 418, 423 (1979) (quoting
         In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J.,
         concurring)).      "This     Court    has   mandated   an
         intermediate standard of proof——'clear and convincing
         evidence'——when the individual interests at stake in a
         state proceeding are both 'particularly important' and
         'more substantial than mere loss of money.'" Santosky
         v.   Kramer,   455  U.S.   745,    756   (1982)  (quoting
         Addington, supra, at 424).
Cruzan, 497 U.S. at 282.

         ¶85   The standard of proof reflects not only the importance

of   a    particular    adjudication      but    also   serves   as     a   societal

judgment       about   how   the   risk   of    error   should   be   distributed

between the litigants.         Id. at 283 (citations omitted).

         ¶86   In this case, the circuit court said:

         [I]t's the court's conclusion that while able to
         understand and appreciate and articulate advantages
         and disadvantages, [Melanie] is a person that by the
         clear greater weight of the evidence is not one who
         can reliably apply an understanding of the advantages
         and disadvantages, the advantages of taking or the
         disadvantages of not taking psychotropic medications
         to her present circumstance.

(Emphasis added.)
         ¶87   We acknowledge that the court may have intended to use

the clear and convincing evidence standard and that Melanie's

counsel did not object to the standard used.                Were this case not

moot, this court could likely remand it to the circuit court for

further consideration.



                                          40
                                                                     No.         2012AP99



       ¶88    Yet the court is disinclined to rationalize the error

because      the   court   is   not   convinced      that    the   County       met   its

burden of proof by clear and convincing evidence.25

       ¶89    As noted previously, the Supreme Court has held that

"a    competent     individual    has      a    protected    Fourteenth     Amendment

liberty interest in refusing unwanted medical treatment."                         Lenz,

167    Wis. 2d at      68–69     (citing        Cruzan,     497    U.S.     at    278).

Moreover,      an    individual       is       presumed     competent      to    refuse

medication or treatment.          Virgil D., 189 Wis. 2d at 14.



       25
       A court's misstatement of the burden                          of     proof      is
analogous to an erroneous jury instruction.

     Whether a party has met its burden of proof is a question
of law that an appellate court reviews de novo.       Brandt v.
Brandt, 145 Wis. 2d 394, 409, 427 N.W.2d 126 (Ct. App. 1990).
If a party must prove its case by clear and convincing evidence,
"[a] mere preponderance of the evidence is not sufficient."
Seraphine v. Hardiman, 44 Wis. 2d 60, 65, 170 N.W.2d 739 (1969).
This is particularly true when the burden of proof has due
process implications. Cruzan v. Dir., Mo. Dep't of Health, 497
U.S. 261, 282 (1990).

     A reviewing court will not reverse a jury instruction if it
generally states the law correctly. Young v. Prof'ls Ins. Co.,
154 Wis. 2d 742, 746, 454 N.W.2d 24 (Ct. App. 1990) (citing
White v. Leeder, 149 Wis. 2d 948, 954, 440 N.W.2d 557, 559
(1989)). However, if "the instruction is erroneous and probably
misleads the jury," a reviewing court will reverse because the
misstatement constitutes prejudicial error.    Id. (citing Leahy
v. Kenosha Mem'l Hosp., 118 Wis. 2d 441, 452, 348 N.W.2d 607,
613 (Ct. App. 1984)) (emphasis added). An erroneous instruction
warrants a new trial if the instruction is prejudicial.      Id.
(citing Hale v. Stoughton Hosp. Ass'n, 126 Wis. 2d 267, 278, 376
N.W.2d 89, 95 (Ct. App. 1985)).    An errant jury instruction is
prejudicial if (1) it probably misled the jury or (2) was an
incorrect statement of the law.         Fischer v. Ganju, 168
Wis. 2d 834, 849-50, 485 N.W.2d 10 (1992) (emphasis added).

                                           41
                                                                                  No.      2012AP99



       ¶90        The circuit court candidly admitted that "[t]here may

be     differing          [inferences]          that      might      be     drawn       from     the

uncontested testimony . . . from Ms. Siebers and Dr. Dave."                                      The

witnesses and the court repeatedly acknowledged that Melanie was

able        to    express       an       understanding          of   the     advantages          and

disadvantages            of    the    prescribed        medication        and    that     she    was

mostly "compliant" with her treatment conditions.                                   Melanie did

not challenge the extension of her commitment, which implies

that    she       recognized         a   problem.         She     was     allegedly       able    to

persuade Dr. Ambas to change her medication.                               If available, the

evidence         of     unexplained        noncompliance         and      problems      resulting

from    that          noncompliance          should     have     been     more     clearly       and

effectively presented in the record than they were.26

       ¶91        Melanie makes much of Dr. Dave's failure to answer

questions using               the    terms    in   the statute:           e.g.,     Melanie      was

incapable of applying an understanding of the medication "to her

advantage."             The corporation counsel posed a question to Dr.

Dave employing the statutory terms.                        When he did not receive an

answer in those terms, he should have required his witness to
expound          upon    his    answer,       so   that    the       circuit      court    and     a


       26
       To illustrate, the July 15 letter to the Register in
Probate, signed by Dr. Ambas and Siebers, contains a single
sentence on involuntary medication: "We also recommend a court
order for Melanie to receive medications due to her limited
insight on the need for such medications." This letter is dated
four days before Melanie's scheduled meeting with Dr. Ambas and
four days before Dr. Ambas allegedly took Melanie's advice and
changed Melanie's prescription to Seroquel.   Dr. Ambas did not
appear as a witness for the County.

                                                   42
                                                                           No.      2012AP99



reviewing      court      did    not    have   to    speculate       upon    Dr.     Dave's

meaning.      As the record stands, we cannot be certain whether Dr.

Dave was applying the standard or changing the standard.

       ¶92    We suspect that Siebers and Dr. Dave were influenced

in part by the frustration that must have arisen from Melanie's

unwillingness to cooperate and comply during her commitment as

fully as they expected and believed she should.                             She violated

some    of    the   conditions         attached     to   the     court's    order.        She

engaged another doctor without clearance from the County.

       ¶93    The   dilemma      facing     the     professionals      was       summed    up

insightfully        in     the    nonparty        brief     of     Disability        Rights

Wisconsin:

       In the case where a commitment is to an outpatient
       community setting and nothing in the record indicates
       that there is any substantial treatment besides
       medication, the commitment and involuntary medication
       questions can easily blend together.     The question
       that might well be in the minds of the mental health
       professional   in   this  type   of  proceeding   is:
       what . . . good is an outpatient commitment order
       unless I can enforce compliance with the sole
       treatment modality?

            This   court   cannot    allow  the involuntary
       medication hearing to drift into an enforcement
       mechanism for a doctor's order that [a] competent
       patient disagrees with or ignores.27
       ¶94    Whatever the circumstances may be, the County bears

the burden of proof on the issue of competency in a hearing on

an   involuntary         medication      order.          These    hearings       cannot   be

perfunctory under the law.               Attention to detail is important.                 A

       27
            Cf. supra, ¶51.

                                            43
                                                                        No.      2012AP99



county cannot expect that a judge concerned about a person with

mental       illness      will     automatically     approve       an      involuntary

medication order, even though the person before the court has

chosen a course of action that the county disapproves.                                 The

county, under Wis. Stat. § 51.61(1)(g)4.b., must prove that the

person is substantially incapable of applying an understanding

of the advantages and disadvantages of particular medication to

her own mental illness.            In our view, the County did not satisfy

its burden by clear and convincing evidence here.                             This court

does not have the option of revising the statute to make the

County's work or burden easier.

       ¶95    In this case, the result might have been different if

the    County       had   produced     additional     evidence        in       terms    of

additional witnesses or additional detail, and if it had more

carefully articulated its case.

                                   IV. CONCLUSION

       ¶96    We reverse the court of appeals.                 The circuit court

misstated the burden of proof.               In any event, the County failed
to    prove    by   clear    and    convincing     evidence    that      Melanie       was

"substantially incapable of applying" an understanding of the
advantages, disadvantages,            and    alternatives     of    her       prescribed

medication to her mental illness in order to make an informed
choice as to whether to accept or refuse the medication.                               The

County did not overcome Melanie's presumption of competence to
make an informed choice to refuse medication.

       ¶97    In particular,        the   medical   expert's       terminology         and

recitation of facts did not sufficiently address and meet the
                                            44
                                                             No.    2012AP99



statutory standard.        Medical experts must apply the standards

set out in the competency statute.         An expert's use of different

language to explain his or her conclusions should be linked back

to the standards in the statute.          When a county disapproves of

the choices made by a person under an involuntary medication

order,     it   should   make   a   detailed   record   of   the   person's

noncompliance in taking prescribed medication and show why the

noncompliance demonstrates the person's substantial incapability

of applying his or her understanding of the medication to his or

her mental illness.



     ¶98    By the Court.—The decision of the court of appeals is

reversed.




                                     45
                                                                                       No.    2012AP99.akz




        ¶99       ANNETTE           KINGSLAND          ZIEGLER,                  J.     (dissenting).

Although         the     majority       undertakes             a    careful      analysis         of   Wis.

Stat.       § 51.61(1)(g)4.b.,               I     disagree               with        the     majority's

application            of   that    statute.           I       conclude       that          the   evidence

presented         was       sufficient       to    support            extending         Melanie        L.'s

involuntary            medication         order.           I       also    dissent          because     the

majority does not properly abide by the standard of review and

defer       to     the      circuit       court's      determinations.                       Instead    of

searching the record for evidence to support the court's order,

the majority searches the record to do the opposite.

                                    I. FACTUAL BACKGROUND

        ¶100 In February 2011, the Outagamie County Circuit Court

ordered that Melanie L. (Melanie) be committed on an outpatient

basis       and    that      she     be    medicated               involuntarily.             Under     the

commitment order, Melanie was subject to a number of outpatient

treatment conditions.1

     ¶101 Before              the       orders     expired,            Outagamie            County     (the

County)       petitioned           to     extend   the             commitment         and    involuntary

medication order for Melanie.                       On August 17, 2011, the circuit

court held a hearing on the petition.




        1
       Relevant to this case, Melanie was ordered to keep her
appointments with court-ordered examiners, take all doses of
prescribed psychotropic medications, and keep case management
advised of her current contact information.         The initial
treatment plan developed by the County also stated that Melanie
"may not be involved in other forms of treatment unless approved
by her therapist at Human Services." See majority op., ¶¶20-21.

                                                   1
                                                                        No.    2012AP99.akz


      ¶102 The court had before it testimony and a written letter

on Melanie's condition from Kate Siebers (Siebers), a clinical

therapist who served as Melanie's caseworker.                          The court also

had   before    it    testimony       and    a     written    report     on        Melanie's

condition     from    Dr.     Jagdish       S.   Dave     (Dr.   Dave),       a    clinical

psychiatrist who performed an independent evaluation of Melanie.

Both Siebers and Dr. Dave concluded that Melanie was incompetent

to refuse medication.

      ¶103 Siebers testified that Melanie was not compliant with

several     terms     of     her    outpatient           treatment.           On    several

occasions,      Melanie       did     not        make     appointments            with    her

psychiatrist or with Siebers, but she would do so only after

prompting from Siebers.               Siebers also testified that Melanie

stopped    taking    medications        without      consulting        Siebers       or   her

doctor.     Further, Melanie stopped seeing her psychiatrist, and

instead,      she    sought     out     a    different       psychiatrist           without

informing     the    County.        According       to    Siebers,     Melanie       lacked

insight into her condition.             Melanie's lack of follow-though in

the treatment indicated that Melanie did not believe medication

or treatment was necessary and did not understand the purpose of

the treatment.

      ¶104 Dr.      Dave    testified       that    Melanie      had   been        diagnosed

with mental disorders that would cause her to have disturbed

thoughts and perceptions, delusions, and paranoid thinking.                               He

testified that Melanie had a history of taking medications for a

few   weeks    and    then    discontinuing          them    without     consulting        a

doctor.     He testified that "she is not reliable for continuing

                                             2
                                                                     No.   2012AP99.akz


the treatment on a voluntary basis, and if she does not continue

recommended treatment, she would relapse, and she would end up

institutionalized."           Dr.      Dave      concluded    that     Melanie      was

incapable of "applying the benefits of the medication to her

advantage."

        ¶105 Melanie did not testify and the County's evidence went

uncontested.     After hearing from the witnesses and reviewing the

documentary materials, the circuit court made findings of fact,

accepted the testimony and reports as credible, and applied the

correct     legal     standard      when        concluding    that     Melanie       was

incompetent    to    refuse      medication.         Simply   stated,      the     court

explained that while Melanie was able to understand the various

treatment     options     available,         she    was   unable     to    apply    her

understanding       of   those    treatment        options    to     her   particular

mental condition.         The court granted the County's petition to

extend Melanie's commitment, and signed an order stating that

Melanie was mentally ill and would be treated in an outpatient

facility.     The court further granted the County's petition to

extend    Melanie's      involuntary        medication    order,     and   signed     an

order     stating     that    due      to       mental    illness,     Melanie      "is

substantially       incapable     of   applying      an    understanding      of    the

advantages, disadvantages and alternatives to [] her condition

in order to make an informed choice as to whether to accept or




                                            3
                                                                    No.   2012AP99.akz


refuse   psychotropic    medications."            Melanie     appealed       only   the

involuntary medication order.2

                               II. ANALYSIS

     ¶106 The factual findings of the circuit court, and all

reasonable inferences drawn from those findings shall not be

disturbed unless they are clearly erroneous.                     K.N.K. v. Buhler,

139 Wis. 2d 190, 198, 407 N.W.2d 281 (Ct. App. 1987); K.S. v.

Winnebago Cnty., 147 Wis. 2d 575, 578, 433 N.W.2d 291 (Ct. App.

1988).

     ¶107 As     stated        by         the      majority,          Wis.       Stat.

§ 51.61(1)(g)4.b.    requires       the       County   to   prove    that    Melanie,

although   possessing     an   understanding           of   the     advantages      and

disadvantages   of      different         medications       or    treatments,       is

"substantially incapable" of making the connection between that

understanding and her mental illness.              Majority op., ¶56.

     ¶108 Here the circuit court held that "while [Melanie is]

able to understand and appreciate and articulate advantages and


     2
       While Melanie's appeal was pending, both the commitment
and the involuntary medication order expired.        The majority
opinion addresses the issue presented, despite its mootness,
because    the    competency    standard   under     Wis.   Stat.
§ 51.61(1)(g)4.b. "presents an issue of great public importance"
and "is likely to evade appellate review."    Majority op., ¶80.
Interestingly, another case heard by this court this term
concluded that it would be inappropriate to address a moot
question even though it "undoubtedly" presented a matter of
great public importance and was likely to recur yet evade
appellate review.   Dane Cnty. v. Sheila W., 2013 WI 63, ¶7, __
Wis. 2d __, __N.W.2d __ (per curium).     The majority does not
attempt to reconcile this disparate treatment, which will likely
leave practitioners and judges unsure of whether and how to
address moot questions when they present issues of great public
importance and are likely to recur yet evade review.

                                          4
                                                                             No.    2012AP99.akz


disadvantages, she is a person that by the clear greater weight

of    the   evidence      is    not    one    who       can       reliably    apply        [that]

understanding . . . to           her    present         circumstances."                  This    is

precisely the finding demanded by the statute.

       ¶109 The    majority       opinion         acknowledges         that    the        circuit

court's factual findings are entitled to deference and should

not    be   disturbed      unless      they       are     clearly       erroneous.              See

majority op., ¶81; K.N.K., 139 Wis. 2d at 198.                          This requirement

is statutory in a case such as this one, where the trial was to

the court and not to a jury: "Findings of fact shall not be set

aside unless clearly erroneous, and due regard shall be given to

the opportunity of the trial court to judge the credibility of

the    witnesses."         Wis.       Stat.       § 805.17(2).           Curiously,             the

majority opinion concludes that there was insufficient evidence

to support Melanie's incompetence to refuse medication, but the

majority    does    not    conclude      that       the       circuit    court's          factual

findings    were   clearly       erroneous.             In    so    doing,    the        majority

substitutes its judgment for that of the circuit court.                                       Thus,

the   majority     violates      the    very      rule       it    recites,        one    of    due

deference to the factual findings of the circuit court.

       ¶110 In reversing, the majority opinion is concerned that

Dr. Dave's substitution of the phrase "to her advantage" for the

statutory     phrase      "to    her    condition"            indicates       that       he     was

treating the commitment and involuntary medication inquiries as

identical.     Majority op., ¶¶91-93.                   But there is no requirement

that an expert witness use any "magic words" during his or her

testimony.     For example, a medical expert's testimony regarding

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the degree of certainty for a diagnosis can meet the standard

using a variety of phrases: "[T]here are '[n]o particular words

of art' that a medical expert must employ in relating his or her

opinion."       Martindale       v.   Ripp,      2001        WI   113,        ¶105,   246

Wis. 2d 67,    629    N.W.2d 698      (Wilcox,    J.,        dissenting)        (quoting

Drexler v. All Am. Life & Cas. Co., 72 Wis. 2d 420, 432, 241

N.W.2d 401 (1976)) (second bracket in original).

        ¶111 Here Dr. Dave did not use the precise language of Wis.

Stat.     § 51.61(1)(g)4.b.      in   his     testimony,          but     his    medical

opinion that Melanie was incompetent to refuse medication was

clear.      There    is   no   requirement    that      he    recite      the    precise

language of the statute during his testimony.

    ¶112 In addition to Dr. Dave's testimony, the majority also

objects to the circuit court's statement of the burden of proof—

"clear greater weight of the evidence" rather than clear and




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convincing         evidence——when       orally     discussing     its     decision.3

Majority         op.,    ¶¶85-87.      The   majority    points   to    the   court's

admission         that    "'[t]here    may   be   differing   [inferences]      that

might       be   drawn    from   the   uncontested      testimony . . . from      Ms.

Siebers and Dr. Dave'" as an indication that County failed to

prove Melanie was incompetent by clear and convincing evidence.

Majority op., ¶90.

    ¶113 The circuit court's use of "clear greater weight of

the evidence" should not lead to reversal.4                   Whatever differing

inferences could possibly have been drawn from the evidence, it

is undisputed what inference was actually drawn by the circuit


        3
       The majority opinion analyzes this case as if it were a
jury trial. It was not. See majority op., ¶88 n.25 (discussing
that the circuit court's misstatement of the burden of proof was
analogous to an erroneous jury instruction). In this case, the
circuit court, not a jury, acted as the fact finder. On appeal,
the reviewing court has a duty to view the evidence in the light
most favorable to court's verdict.       Wis. Stat. § 805.17(2);
Reuben v. Koppen, 2010 WI App 63, ¶19, 324 Wis. 2d 758, 784
N.W.2d 703.   In other words, we search the record for evidence
to sustain the verdict. Id. In this case, the majority opinion
concludes that the circuit court's statement of the "clear
greater weight of the evidence" was an error. See majority op.,
¶88. To reach this determination, the majority opinion assumes
that the circuit court was unaware of the correct burden of
proof.    However, the order of commitment, essentially the
verdict, signed by the circuit court specifically referenced
Wis. Stat. § 51.20(13), which sets forth the clear and
convincing burden of proof.    Reviewing the record in the light
most favorable to the verdict, I conclude that the circuit court
applied the correct burden of proof.
    4
       It is not clear whether the majority opinion relies on the
circuit court's statement "clear greater weight of the evidence"
to support its reversal of the court of appeals. Majority op.,
¶¶87-88.   To the extent that it does, it offers no support for
the contention that failing to recite the exact statutory
language of the burden of proof demands reversal.

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court——Melanie      lacked    the      competence    to   refuse       medication    by

clear and convincing evidence.             The written order signed by the

circuit   court     clearly   and      precisely     states     that     Melanie    "is

substantially     incapable       of    applying     an   understanding       of    the

advantages, disadvantages and alternatives to [] her condition

in order to make an informed choice as to whether to accept or

refuse psychotropic medications."               Failure to verbally state the

exact standard is not reversible error.                   See State v. Echols,

175 Wis. 2d 653, 672, 499 N.W.2d 631 (1993) (holding that "[a]

trial court is not required to recite 'magic words' to set forth

its findings of fact") (quoting Monson v. Madison Family Inst.,

162 Wis. 2d 212, 215 n.3, 470 N.W.2d 853 (1991) (holding that a

circuit court's failure to label specific conduct egregious is

immaterial    when    such    a     finding     is   implicit     in    the   court's

decision)); Englewood Cmty. Apartments Ltd. P'ship v. Alexander

Grant & Co., 119 Wis. 2d 34, 39 n.3, 349 N.W.2d 716 (Ct. App.

1984) (noting that, where a circuit court's implicit finding is

clear,    failure    to   recite       "magic    words"    does    not    result     in
reversible error).

     ¶114 In this case, the circuit court was satisfied by clear

and convincing evidence that Melanie was incompetent to refuse

medication.     Wis. Stat. §§ 51.20(13)(e), 51.61(1)(g)4.b.                   Though

the circuit court did not recite the precise language of the

burden of proof, the court's reliance on the expert testimony

and reports in concluding that Melanie was incompetent to refuse

medication demonstrates that the court was satisfied by clear

and convincing evidence.

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        ¶115 Finally,            the     majority       insists      that      the     evidence

presented          by     the    County    inadequately         supported       the     circuit

court's conclusions, and it opines that the outcome of the case

would        be    different       if     the     County       had    offered        additional

witnesses and detail regarding Melanie's incapacity.                                   Majority

op., ¶¶94-95.5

        ¶116 Given         that    the    County      provided       written    reports      and

uncontested testimony both from the County employee who oversaw

Melanie's          case,    as    well    as    an     independent       psychiatrist        who

evaluated          her,    it     is    unclear       what    additional       evidence      the

majority would have the circuit court consider.                                 Furthermore,

the         majority       opinion        ignores       that      this      testimony        was

uncontroverted.             Melanie presented no expert testimony and she

chose not to testify herself.

        ¶117 I conclude that the County satisfied its burden by

clear        and   convincing          evidence.        See    supra,     ¶¶102-04.          The

circuit court had a written letter and testimony from Melanie's


        5
       As discussed in footnote 3, the circuit court, not a jury,
acted as the fact finder in this case. The reviewing court has
a duty to view the evidence in the light most favorable to the
court's   verdict.     Wis.   Stat.   § 805.17(2);  Reuben,   324
Wis. 2d 758, ¶19.    Here, the circuit court cited the proper
legal standard and concluded that the standard was fulfilled.
The court's order stated that due to mental illness, Melanie "is
substantially incapable of applying an understanding of the
advantages, disadvantages and alternatives to [] her condition
in order to make an informed choice as to whether to accept or
refuse psychotropic medications."   The majority opines that its
conclusion might be different had the County presented more
evidence.   See majority op., ¶95.     In doing so, however, the
majority fails to search the record for evidence to sustain the
verdict and fails to view the testimony and reports in the light
most favorable to the court's determinations.

                                                  9
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caseworker, who provided evidence that Melanie was noncompliant

with the terms of her outpatient treatment by failing to keep in

contact with the County and her doctors, changing care providers

without prior approval, and self-adjusting her medications.                         The

circuit court also had a written report and testimony from Dr.

Dave, who informed that court that Melanie's illness caused her

to    have   disturbed      thoughts   and        perceptions,    delusions,        and

paranoid thinking.       Dr. Dave concluded that Melanie was unlikely

to    continue   treatment      voluntarily,        as   evidenced     by    her   past

noncompliance.        From this evidence, the circuit court properly

concluded that the County satisfied its burden to prove by clear

and convincing evidence that Melanie was substantially incapable6

of applying an understanding of the advantages, disadvantages,

and   alternatives     of    her   prescribed        medication   to       her   mental

illness in order to make an informed choice as to whether to

accept or refuse the medication.

       ¶118 An involuntary medication order takes effect only if

patients     cannot     apply      their        knowledge   of    medications        or

treatments to their illness, which can be evidenced by failing

to take medications as prescribed.                Here, Melanie failed to take

her medications as prescribed.

       ¶119 The majority opinion once again creates a substantial

hurdle for counties to clear before an individual who has been


       6
       The majority's interpretation of "substantially incapable"
as "to a considerable degree" should not be read as changing the
standard required to prove that a person is incompetent to
refuse medication under Wis. Stat. § 51.61(1)(g)4.b.     Majority
op., ¶70.

                                           10
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committed because he or she has been found to be a danger to

himself,     herself,    or   others    under   a     Chapter      51   can    be

involuntarily medicated.       In Virgil D., the court interpreted a

portion of Wis. Stat. § 51.61 to limit when treatment could be

involuntarily      administered.       Virgil   D.    v.   Rock    Cnty.,     189

Wis. 2d 1, 9-11, 524 N.W.2d 894 (1994).              The legislature passed

Wis. Stat. § 51.61(1)(g)4.b. in response to Virgil D., which

added a second way for counties to prove that a patient is

incompetent to refuse medication.           1995 Wis. Act 268, § 2.           Now

the majority opinion repeats the roadblock Virgil D. created.

Therefore,    as    a   practical   matter,     the    majority's       elevated

standard will result in counties being unable to properly treat

those mentally ill individuals who are a danger to themselves or

others.

     ¶120 For the foregoing reasons, I respectfully dissent.

     ¶121 I am authorized to state that Justices PATIENCE DRAKE

ROGGENSACK and MICHAEL J. GABLEMAN join this dissent.




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