State v. Maurice Hardy

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
May 2, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2022AP1018 Cir. Ct. No. 2002CI2

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

IN RE THE COMMITMENT OF MAURICE HARDY:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

MAURICE HARDY,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
JEAN M. KIES, Judge. Reversed and cause remanded with directions.

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2022AP1018

¶1 PER CURIAM. Maurice Hardy appeals an order of the circuit court
extending an involuntary medication order to treat Hardy’s schizophrenia. We
conclude that the State did not prove by clear and convincing evidence that Hardy
was not competent to refuse medication, nor did the State prove that the
medication order was necessary to prevent serious physical harm to Hardy or
others. See WIS. STAT. § 51.61(1)(g)3. (2021-22).1 Accordingly, we reverse the
circuit court’s order and remand this matter with directions to deny the State’s
motion for involuntary medication.

BACKGROUND

¶2 In 2003, the Milwaukee County Circuit Court committed Hardy to
the Department of Health Services (DHS), after determining that he was a sexually
violent person pursuant to WIS. STAT. ch. 980. Hardy has been at the Sand Ridge
Secure Treatment Center since that time.

¶3 On October 8, 2020, the circuit court entered an order authorizing
the involuntary administration of psychotropic medication to Hardy, pursuant to
WIS. STAT. § 51.61(1)(g)3. On September 27, 2021, DHS filed a petition to
extend the involuntary medication order. The petition included multiple
supporting documents, including a report from Hardy’s treating psychiatrist.

¶4 Hardy’s psychiatrist, Dr. Jeffrey A. Drexler, testified at a hearing on
the petition. Dr. Drexler testified that he had been treating Hardy since October
2020, that Hardy was schizophrenic, and that Hardy’s primary symptoms were

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2022AP1018

delusions, paranoia, and auditory hallucinations. Specifically, Dr. Drexler testified
that Hardy thinks people are negatively speaking about him and threatening him;
his delusions are also hypersexual. Dr. Drexler stated that Hardy’s delusions
“can” be dangerous “because one of his delusions which he still has is that people
come into his room at night…. He stays up at night. He guards the door. He
thinks people come in and either have assaulted him or will assault him.”
Dr. Drexler further testified that the staff at Sand Ridge expressed concern that
Hardy “would strike out because he would believe people were coming in to
attack him at night, and he still thinks that.”

¶5 Dr. Drexler also testified about Hardy’s specific medications, telling
the circuit court that Hardy has been prescribed Paxil to help control his
hypersexual impulsivity, as well as Olanzipine, an antipsychotic and mood
stabilizer. Dr. Drexler stated that while the manufacturer of Olanzipine
recommends a maximum dose of twenty milligrams, he tripled Hardy’s dose
because of the pervasiveness of Hardy’s symptoms. Dr. Drexler stated that it is
common to prescribe a higher than recommended dose of this specific drug, but
that Hardy had not previously been on such a high dosage. Dr. Drexler described
multiple side effects of the drug and stated that while he informed Hardy about the
common side effects, he did not provide Hardy with the “complete list” of side
effects, including the potential for increased liver enzymes.

¶6 Dr. Drexler also acknowledged that Hardy has never acted on any
hypersexual delusions or hallucinations, nor has he assaulted or threatened to
assault anyone since detained at Sand Ridge in 2003. Dr. Drexler also
acknowledged that Hardy had not acted violently during his confinement when he
was not taking medication. He expressed concern, however, that Hardy could
become violent without the medication and that Hardy did not believe that he had

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No. 2022AP1018

a mental illness warranting medication. Dr. Drexler did not believe that Hardy
was competent to decide whether to take his medications and stated that Hardy
would not take medication without a court order; however, he acknowledged that
there had been periods where Hardy accepted his medications without a court
order.

¶7 The circuit court granted the petition to extend Hardy’s involuntary
medication order, finding that Hardy was schizophrenic, suffered from delusions,
could pose a threat to Sand Ridge staff without medication, was not competent to
make medication determinations for himself, and that the side effects of the
medications had been properly explained to him. This appeal follows.

DISCUSSION

¶8 Under WIS. STAT. § 51.61(1)(g)3., a patient may be involuntarily
medicated if: (1) “the individual is not competent to refuse medication”; or
(2) “the medication ... is necessary to prevent serious physical harm to the
individual or others.” See id. The State bears the burden to prove that medication
is necessary to prevent serious physical harm to the individual or others by clear
and convincing evidence. See Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶37,
349 Wis. 2d 148, 833 N.W.2d 607. This court reviews the circuit court’s factual
findings for clear error. See id., ¶38. Whether the State met its burden of proof by
applying facts to the standard and interpreting the statute are legal issues this court
reviews independently. See id., ¶39.

¶9 Pursuant to WIS. STAT. § 51.61(1)(g)4., “an 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

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No. 2022AP1018

the following is true: (1) “[t]he individual is incapable of expressing an
understanding of the advantages and disadvantages of accepting medication or
treatment and the alternatives[,]” or (2) “[t]he 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.” See id.

¶10 Here, the circuit court’s analysis relied on the second factor, finding
that Hardy was incapable of making an informed choice with regard to whether to
accept his psychotropic medication. The record does not support this
determination. Dr. Drexler testified that Hardy accepted psychotropic medications
before the circuit court authorized involuntary medication. He also testified that
since the order authorizing involuntary medication was issued in October 2020,
Hardy voluntarily took all prescribed medication except for one dose. Moreover,
the record does not clearly establish that all of the advantages and disadvantages
of Hardy’s medications were fully presented to him. While Dr. Drexler testified
that he generally does not explain the laundry list of side effects medications can
cause, focusing instead on the main side effects, Dr. Drexler acknowledged that he
did not explain Olanzipine’s potential to cause liver impairment. Specifically,
Dr. Drexler stated that increased liver enzymes, particularly on Hardy’s tripled
dose, were a possibility for Hardy. The record establishes that when on a lower
dose, Hardy accepted his medications willingly. That Hardy expressed reluctance
to take a triple dose does not demonstrate incompetence. Accordingly, the State
did not meet its burden to show that Hardy was substantially incapable of applying
the advantages and disadvantages of accepting medication.

¶11 We also conclude that the State did not meet its burden to show that
that medication is necessary to prevent serious physical harm to Hardy or others.

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No. 2022AP1018

Dr. Drexler’s primary concern was that Hardy could “strike out” and that Sand
Ridge staff have expressed concerns regarding the same; however, Dr. Drexler
testified that Hardy has had no history of violence or threats of violence during his
eighteen years of confinement. While Hardy has delusions and has expressed that
he feels threatened, Dr. Drexler acknowledged that Hardy has not actually acted
on those delusions. In short, the State did not establish the severity of any risk that
Hardy allegedly posed either to himself or others.

¶12 For the foregoing reasons, we conclude that the State did not meet its
burden to show either that Hardy was incompetent to refuse his medication or that
the medication was necessary to prevent serious physical harm to Hardy or others.
Accordingly, we reverse the circuit court order mandating involuntary medication
and remand this matter with directions to deny the State’s motion for involuntary
medication.

By the Court.—Order reversed and cause remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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