State v. Jarrod J. Johnson

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 24, 2022
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. 2021AP2046-CR Cir. Ct. No. 2008CF831

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

JARROD J. JOHNSON,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Milwaukee County:
MILTON L. CHILDS, SR., 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. 2021AP2046-CR

¶1 PER CURIAM. Jarrod J. Johnson appeals an order entered by the
trial court, in which the trial court granted a motion for his involuntary medication
and treatment pursuant to WIS. STAT. § 971.17(3) (2019-20).1 We conclude that
the factors in Sell v. United States, 539 U.S. 166 (2003), were erroneously applied
when the trial court granted the State’s motion.2 We also conclude that Johnson
forfeited his argument that the reports3 submitted by Johnson’s treating
psychiatrist, Dr. Odette Anderson, were erroneously considered as evidence. We
further conclude that the State failed to meet its burden to show that Johnson was
dangerous and that Dr. Anderson provided Johnson with a reasonable explanation
of the advantages and disadvantages of, and alternatives to, treatment with the
psychotropic medication, Haloperidol. Accordingly, we reverse the trial court’s
order, and we remand this matter with directions to deny the motion for
involuntary medication and treatment.

BACKGROUND

¶2 Johnson was charged with arson in 2008, after he reportedly set fire
to his apartment because he believed the government had placed cameras inside
his apartment and was filming and monitoring him. Johnson was found not guilty

1
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.
2
We refer to the motion as a motion by the State. However, we recognize that the
statute specifies that a motion of this type is one made by the “institution.” See WIS. STAT.
§ 971.17(3). In this case, Dr. Odette Anderson filed this motion as a representative of the
Mendota Mental Health Institute (MMHI), which is an institution operated by the State.
3
Dr. Anderson submitted two documents dealing with the motion for involuntary
medication—one dated September 13, 2021, and one dated October 27, 2021. Dr. Anderson,
counsel, and the trial court interchangeably refer to the documents as reports or letters. For
consistency and ease of reading, we refer to them as reports.

2
No. 2021AP2046-CR

by reason of mental disease or defect (NGI) and committed for an indeterminate
time, not to exceed twenty-five years. He was sent to a mental health facility for
treatment from which Johnson was subsequently discharged on conditional release
for the first time in 2011. His release was revoked in 2013, and Johnson was again
placed at a mental health facility. Johnson was discharged on conditional release
for a second time in April 2020. His second conditional release was revoked, and
Johnson was placed at MMHI starting on May 11, 2021.

¶3 On September 13, 2021, MMHI, by Dr. Anderson, filed a motion for
involuntary medication and treatment pursuant to WIS. STAT. § 971.17(3)(c).
Dr. Anderson filed a corresponding report in which she described Johnson’s
treatment history, beginning from the time he was originally committed until the
time of her report. She further described that, since the time of Johnson’s return to
MMHI, he had been declining recommendations to start medication, and
Johnson’s “symptoms and concerning behaviors have been increasing in
frequency and severity.” Dr. Anderson then provided several examples of
Johnson’s symptoms and concerning behaviors, including threatening letters that
Johnson had written, aggressive and hostile interactions with MMHI staff,
incidents involving Johnson throwing his lunch tray, and urinating on the walls,
floor, and linens in his room. Ultimately, Dr. Anderson wrote, “Mr. Johnson has a
chronic history of poor insight into the seriousness of his illness and the
importance of treatment with psychotropic medication. He has had a history of
declining his prescribed psychotropic medication.” Dr. Anderson requested an
order to involuntarily medicate Johnson because he “clearly has a disorder of
cognition and impaired reality testing which grossly impairs his judgment.” She
also requested an order to involuntarily medicate Johnson because he “is not
capable of repeating back information presented to him regarding the risk,

3
No. 2021AP2046-CR

benefits, and alternatives to taking medication,” and she stated that Johnson “is not
capable of applying this information to his current situation.”

¶4 The trial court set the motion for a hearing. When the hearing was
rescheduled, Dr. Anderson sent a supplemental report to the trial court on
October 27, 2021, in which she requested a new hearing date as a result of her
increasing concerns over what she described as Johnson’s deteriorating condition.
In her report, Dr. Anderson explained that Johnson had begun to decline his meals,
was not eating, and had been placed on suicide watch. Thus, she requested that
the court reschedule the hearing for an earlier date so that she may be able to treat
Johnson as soon as possible.

¶5 The trial court held a hearing on November 9, 2021, at which
Dr. Anderson testified. Dr. Anderson testified that she began treating Johnson in
August 2021 and they had been meeting “sometimes on a monthly basis” but
“usually on a weekly or more frequent basis.” In all, she estimated that she had
met with Johnson approximately twenty times. Based on these meetings and a
review of Johnson’s treatment records, Dr. Anderson diagnosed Johnson with
schizoaffective disorder, bipolar type.

¶6 She further testified that although she had prescribed a psychotropic
medication—Haloperidol—to treat Johnson’s condition,4 he had not been on
medication since he arrived back at MMHI in May. She testified that Johnson had
refused to take the medication that she had prescribed. Dr. Anderson

4
Dr. Anderson testified that Johnson had not been prescribed Haloperidol before, but he
had been on other medications in the same class as Haloperidol that have been successful at
treating his condition.

4
No. 2021AP2046-CR

acknowledged that Johnson was currently being treated with certain alternatives to
medication; however, she anticipated that Johnson would not demonstrate any
improvement without taking a medication.

¶7 Some of the alternatives that Dr. Anderson described included using
restraints and seclusion in order to control Johnson’s behaviors and calm him
down over an eighteen hour period in August 2021. She also described a method
she called “show of force,” in which staff make their presence known to a patient
in order to de-escalate a situation before other methods, such as restraints or
seclusion, would become necessary. She similarly described another method
called “chill time” where staff would send a patient to his or her room to calm
down and de-escalate a situation. She further testified that it had been months
since Johnson had been restrained and secluded because staff were able to
successfully intervene using “show of force” and “chill time” methods before
Johnson’s behavior escalated. Despite these methods, Dr. Anderson was of the
opinion that there was not any other less intrusive means than medication to
restore Johnson to where he was before, and she testified that Johnson “has
required a lot of these types of interventions.”

¶8 Overall, she described Johnson’s mental state as declining, and she
based her description of Johnson’s mental state on Johnson’s symptoms of
psychosis and significant mood symptoms. She also testified that Johnson had
recently been “declining oral intake” and, even though the situation had improved,
that has been one of her primary concerns. She further acknowledged the
threatening letters Johnson had written, but she testified that there was little risk
that those letters posed a harm to others as a result of Johnson’s current placement
at MMHI.

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No. 2021AP2046-CR

¶9 At the conclusion of Dr. Anderson’s testimony, both parties argued
their respective positions under the Sell factors, and the trial court summarized the
testimony from Dr. Anderson and granted the motion for involuntary medication.5
In the amended order for placement filed after the hearing, the trial court
additionally checked the box on the form that it found that the involuntary
administration of medication was needed because Johnson was not competent to
refuse medication or treatment as a result of his mental illness, which rendered
him “incapable of expressing an understanding of the advantages and
disadvantages of accepting psychotropic medication or treatment and the
alternatives.” Johnson now appeals.6

DISCUSSION

I. Application of the Sell Factors to Johnson’s Case

¶10 As a threshold matter, we address the application of the Sell factors
to the motion for involuntary medication and treatment that were applied below.
On appeal, the State argues that the Sell factors do not apply to a motion for
involuntary medication and treatment within the context of a commitment
following a NGI finding, but rather, the analysis in this case must proceed under

5
We pause to note the lack of findings in the hearing transcript. As will be explained
below, particularly in light of the detail described in Outagamie County v. Melanie L., 2013 WI
67, 349 Wis. 2d 148, 833 N.W.2d 607, as necessary for the involuntary medication and treatment
of a person, the trial court must do more than merely summarize the witness’s testimony, and it
must make specific factual findings and then explain why those facts meet the standard for
involuntary medication.
6
Johnson filed a motion for conditional release prior to the filing of the motion
requesting an order for involuntary medication and treatment. Johnson withdrew his motion for
conditional release at the conclusion of the hearing addressing the motion for involuntary
medication and treatment. Johnson’s motion for conditional release is not at issue in this appeal.

6
No. 2021AP2046-CR

WIS. STAT. § 971.17(3). We agree, and we conclude that the application of the
Sell factors to Johnson’s case, as an individual under a commitment order entered
under a finding of NGI, was in error.

¶11 Johnson was found not guilty by reason of mental disease or defect,
and Johnson has been at MMHI as the subject of a commitment order entered
under WIS. STAT. § 971.17(3). “After the person has been committed to an
institution, it sometimes becomes necessary to make a decision about forcibly
medicating him or her.” State v. Wood, 2010 WI 17, ¶31, 323 Wis. 2d 321, 780
N.W.2d 63. When confronted with this situation, “[i]f the [S]tate proves by clear
and convincing evidence that the committed person is not competent to refuse
medication, the court may issue an order permitting the institution to administer
medication and treatment without the person’s consent.” Id.; see also
§ 971.17(3)(b)-(c). The standard set forth in WIS. STAT. § 971.16(3) applies for
determining if a committed person is not competent to refuse medication and
treatment. Wood, 323 Wis. 2d 321, ¶31. The standard set forth in § 971.16(3)
provides:

The defendant 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 defendant, one of the following is true:

(a) The defendant is incapable of expressing an
understanding of the advantages and disadvantages of
accepting medication or treatment and the alternatives.

(b) The defendant 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.

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No. 2021AP2046-CR

¶12 The Sell factors, while also applicable to situations involving
involuntary medication, have clearly been stated to apply to proceedings in which
a criminal defendant is involuntarily medicated for purposes of restoring the
defendant’s competency to proceed to trial.7 “In Sell, the United States Supreme
Court addressed ‘whether the Constitution permits the Government to administer
antipsychotic drugs involuntarily to a mentally ill criminal defendant—in order to
render that defendant competent to stand trial for serious, but nonviolent, crimes.’”
State v. Fitzgerald, 2019 WI 69, ¶13, 387 Wis. 2d 384, 929 N.W.2d 165 (citation
omitted); see also State v. Green, 2021 WI App 18, ¶14 n.9, 396 Wis. 2d 658, 957
N.W.2d 583, aff’d in part, 2022 WI 30, ___ N.W.2d ___.

¶13 Restoring Johnson to competency for trial is not the situation that is
presented here. Instead, we address an order for involuntary medication requested
in the context of a commitment order entered following a finding of NGI. Such a
situation has its own procedures under WIS. STAT. § 971.17(3) that we have set
forth above. See Wood, 323 Wis. 2d 321, ¶29 (“WIS. STAT. § 971.17(3)(c), the
provision at issue here, specifically applies to the involuntary medication of
persons committed after being adjudged NGI for a crime.”). Thus, the Sell factors
were improperly applied below to evaluate the motion for involuntary medication
given the context of Johnson’s commitment at MMHI under § 971.17(3).

¶14 Moreover, “Sell’s standard was for the involuntary medication of a
criminal defendant incompetent to stand trial,” and there is a standard separate
from Sell that applies to “different” purposes “related to the individual’s

7
Our supreme court described the four Sell factors in State v. Fitzgerald, 2019 WI 69,
¶¶13-17, 387 Wis. 2d 384, 929 N.W.2d 165, and most recently in State v. Green, 2022 WI 30,
¶¶15-16, ___ N.W.2d ___.

8
No. 2021AP2046-CR

dangerousness, or purposes related to the individual’s own interests where refusal
to take drugs puts his [or her] health gravely at risk.” Winnebago Cnty. v. C.S.,
2020 WI 33, ¶28, 391 Wis. 2d 35, 940 N.W.2d 875 (citations omitted). The court
further stated that the Sell “standard will permit involuntary administration of
drugs solely for trial competence purposes in certain instances.” Id., ¶27 (citation
omitted). Thus, when confronted with an involuntary medication order outside of
the context of restoring a defendant to competency, our supreme court concluded,
“This case is not controlled by the Sell … factors. Rather, this case … involves
involuntary medication of an inmate for a ‘different purpose’ than competence to
stand trial.” Id., ¶30 (emphasis in original).

¶15 Johnson raises several arguments in response to the State’s argument
that Sell does not apply to his case. First, Johnson argues that a finding of
incompetence alone is constitutionally insufficient to support an order for
involuntary medication and the failure to apply the Sell factors violates his right to
equal protection. We reject Johnson’s arguments on these points as undeveloped
and unsupported by legal authority. See State v. Pettit, 171 Wis. 2d 627, 646-47,
492 N.W.2d 633 (Ct. App. 1992). Johnson also argues that judicial estoppel
applies and requires us to reject the State’s argument. Judicial estoppel is an
equitable rule applied at the court’s discretion, and we do not accept Johnson’s
invitation to apply it here, given that Johnson’s argument requires us to ignore the
law as it is correctly stated. See State v. English-Lancaster, 2002 WI App 74,
¶18, 252 Wis. 2d 388, 642 N.W.2d 627.

¶16 Thus, having established the correct standard to apply under WIS.
STAT. §§ 971.17(3) and 971.16(3), we next address the primary issue in this case,
namely whether the State has met its burden to show that Johnson is not competent
to refuse medication or treatment. The application of the facts to the standard is a

9
No. 2021AP2046-CR

question of law that this court reviews independently. See Outagamie Cnty. v.
Melanie L., 2013 WI 67, ¶39, 349 Wis. 2d 148, 833 N.W.2d 607.

¶17 Furthermore, in analyzing whether Johnson is not competent to
refuse medication or treatment, we note that we must bear in mind that “a person
competent to make medical decisions has a ‘significant’ liberty interest in
avoiding forced medication of psychotropic drugs.” Wood, 323 Wis. 2d 321, ¶25.
“The forcible injection of medication into a nonconsenting person’s body
represents a substantial interference with that person’s liberty.” Melanie L., 349
Wis. 2d 148, ¶43 (citation omitted). Thus, we start from a place where “a person
has the right to refuse medication unless a court determines that the person is
incompetent to make such a decision.” See id., ¶53. “Moreover, an individual is
presumed competent to refuse medication or treatment.” Id., ¶89.

II. Dr. Anderson’s Reports Are Properly Considered as Evidence

¶18 Johnson first argues that Dr. Anderson’s two reports cannot be used
to support the order for involuntary medication because the State never moved
them into evidence. Thus, he argues that the evidence is limited to Dr. Anderson’s
testimony, and Dr. Anderson’s testimony is insufficient to support the motion for
involuntary medication and treatment. We reject this contention because Johnson
failed, despite several opportunities, to object to the use of Dr. Anderson’s reports
below. See State v. Huebner, 2000 WI 59, ¶10, 235 Wis. 2d 486, 611 N.W.2d
727 (“Issues that are not preserved at the circuit court, even alleged constitutional
errors, generally will not be considered on appeal.”). A review of the record
shows that the parties and the trial court clearly relied on the reports, and Johnson
cannot now complain of their use without having raised the issue below.

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No. 2021AP2046-CR

¶19 During the hearing, the State questioned Dr. Anderson regarding the
two reports that she wrote, and after confirming that she wrote them, the State
asked the trial court to take “judicial notice” of her reports.8 After trial counsel
stated that there was no objection, the trial court took judicial notice of the reports.
Again, at the conclusion of Dr. Anderson’s testimony, the State stated that it was
relying on Dr. Anderson’s testimony and what she filed in her two reports in
support of its case, and trial counsel did not object. Then, in rendering its oral
ruling, the trial court noted that it had reviewed both of Dr. Anderson’s reports in
preparation for the hearing. At no point did trial counsel object to the use of
Dr. Anderson’s reports during the proceedings below. Indeed, trial counsel used
the reports in cross-examining Dr. Anderson.

¶20 Consequently, we conclude that Johnson has forfeited any argument
regarding the use of Dr. Anderson’s reports as evidence to support the order, and
we conclude that the evidence is not limited to Dr. Anderson’s testimony. See
State v. Caban, 210 Wis. 2d 597, 608, 563 N.W.2d 501 (1997). Thus, using both
Dr. Anderson’s reports and her testimony, we turn to the question of whether the
State met its burden to prove by clear and convincing evidence that Johnson was
not competent to refuse medication or treatment. Even considering
Dr. Anderson’s reports, we conclude that it has not.

8
In highlighting this portion of the record, we note that one of Johnson’s arguments is
that Dr. Anderson’s reports are not properly subject to judicial notice. As a result of our
conclusion, we do not address whether Dr. Anderson’s reports are properly subject to judicial
notice, and we simply provide this portion of the record as one of the several opportunities
presented below that trial counsel had to object to the use of Dr. Anderson’s reports.

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No. 2021AP2046-CR

III. Dangerousness

¶21 First we address whether the State introduced sufficient evidence to
support a finding that Johnson was dangerous. Addressing the issue whether WIS.
STAT. § 971.17(3) requires a finding of present dangerousness that serves as a
basis for a court considering whether to issue an order for involuntary medication,
our supreme court stated, “[W]e are satisfied that WIS. STAT. § 971.17(3), at a
minimum, implicitly provides for such a finding [of dangerousness].” Wood, 323
Wis. 2d 321, ¶34. The court went on to state:

We reach that conclusion based on the language of
§ 971.17(3)(a) that includes requirements for a
determination of dangerousness at the time of commitment,
the language of § 971.17(3)(c) requiring a doctor’s
examination and report when an institution seeks an order
to medicate the patient involuntarily, and the language of
§ 971.17(4)(d) setting forth requirements for periodic
reviews, which include a dangerousness determination.

Id.

¶22 The court explained that the “statutory language of WIS. STAT.
§ 971.17(3)(a) requires a finding that is the equivalent of one of dangerousness at
the time of commitment.” Id., ¶35. It noted that the statute provides “[t]he court
shall order institutional care if it finds by clear and convincing evidence that
conditional release of the person would pose a significant risk of bodily harm to
himself or herself or to others or of serious property damage.” Id. (quoting
§ 971.17(3)(a)). Further, the court noted that if the institution files a motion for an
order for involuntary medication, “the statute further requires a licensed physician
to examine the individual and to issue a written report indicating that the person
‘needs medication or treatment and that the person is not competent to refuse
medication or treatment.’” Id., ¶36 (quoting § 971.17(3)(c)). It then stated that

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No. 2021AP2046-CR

“[w]e are satisfied that such an assessment further encompasses an assessment of
‘a significant risk.’” Id. Finally, the court explained that “the court must reassess
dangerousness when the committed individual petitions for conditional release….”
Id., ¶37.

¶23 The court then concluded that “[t]hose requirements, taken together,
create at least an implicit finding of dangerousness, if not an express finding, that
serves as the basis for a court to consider granting a motion for an involuntary
medication order.” Id., ¶38. Thus, to obtain an order to involuntarily medicate
Johnson, the State was required to show, by clear and convincing evidence, that
Johnson was dangerous to himself or others. We note that the State does not
dispute that it had that burden on appeal. Rather, it argues that it met that burden.
We disagree.

¶24 In its brief on appeal, the State’s only reference to Johnson being
dangerous is its statement that “[t]he State sought an involuntary medication order
primarily because Johnson was trying to starve himself to death in institutional
care.” In her report9 and her testimony, Dr. Anderson indicated that Johnson was
dangerous because he was refusing to eat and had sent threatening letters to the
mayor of Madison, a judge, and the clerk of courts. However, Dr. Anderson also
acknowledged that Johnson was now taking one or two meals a day, plus some
snacks from MMHI’s canteen, and was no longer losing as much weight. She also
acknowledged that Johnson had written threatening letters; however, she also

9
In her initial report dated September 10, 2021, Dr. Anderson did not raise any issue
about Johnson refusing to eat. It was not until she submitted her supplemental report dated
October 27, 2021, that she mentions that she is concerned about Johnson not eating. In that report
she states that Johnson “started to decline meals intermittently approximately ten days ago, and
then, for approximately the past five days, has now been declining all meals.”

13
No. 2021AP2046-CR

testified that the letters were not a threat that he could implement based on his
current placement at MMHI.

¶25 Moreover, Dr. Anderson testified that Johnson was being treated
with alternatives to medication. As noted, some of the alternatives that
Dr. Anderson described included a method she called “show of force,” in which
staff make their presence known to a patient in order to de-escalate a situation
before other methods, such as restraints or seclusion, would become necessary.
She similarly described another method called “chill time” where staff would send
a patient to his or her room to calm down and de-escalate a situation. Although
she testified that in August 2021, Johnson required three seclusion and restraint
events over an eighteen hour period of time in order to calm him down, she also
testified that it had been months since Johnson had been restrained and secluded
because staff were able to successfully intervene using “show of force” and “chill
time” methods before Johnson’s behavior escalated.

¶26 We also note that the trial court did not make any factual findings to
support a determination that Johnson was dangerous to himself or others. See
Langlade Cnty. v. D.J.W., 2020 WI 41, ¶¶44-45, 47, 391 Wis. 2d 231, 942
N.W.2d 277 (stating that dangerousness is a legal determination for which
“specific factual findings” should be made). Rather, the court merely referred to
the doctor’s testimony stating:

[Dr. Anderson] noted that there was a decline of
oral intake but he has been improving since that time. And
the positives are, definitely, that he’s been, you know,
eating more frequently than what he was before and not
losing as much weight. But again, this was a concern with
the facility, regards to his intake of food.

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No. 2021AP2046-CR

Thus, we conclude that the trial court did not make any factual findings to support
a determination that Johnson was dangerous to himself or to others, and also failed
to connect any factual findings to any legal determination that Johnson was
dangerous. See D.J.W., 391 Wis. 2d 231, ¶¶44-45, 47.

¶27 Given that Dr. Anderson recognized improvement in the danger
Johnson posed to himself, the fact that the trial court made no finding that Johnson
was dangerous to himself or anyone else, Johnson’s inability to carry out a threat
of harm to others in the letters he sent because of his placement in MMHI, and
Dr. Anderson’s testimony regarding the success of the alternative treatment
methods used at MMHI, we thus conclude that the State failed to meet its burden
to show by clear and convincing evidence that Johnson is dangerous to himself or
others.

IV. Dr. Anderson’s Explanation of Haloperidol

¶28 Next, Johnson argues that the State failed to show that Dr. Anderson
provided him with a reasonable explanation of Haloperidol and failed to explain
“the advantages and disadvantages of and alternatives to accepting the particular
medication or treatment” to Johnson. See WIS. STAT. § 971.16(3). The State
argues that we should accept reasonable inferences that Dr. Anderson had
explained the advantages and disadvantages of Haloperidol, and alternatives to it,
to Johnson. We do not agree, and we conclude that the State failed to meet its

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No. 2021AP2046-CR

burden to show that Johnson was provided the explanation of Haloperidol to
which he was entitled.10

¶29 Addressing identical statutory language regarding an order for
involuntary medication entered within the context of WIS. STAT. § 51.61(1)(g)4.b.,
our supreme court stated:

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 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.

Melanie L., 349 Wis. 2d 148, ¶67. Thus, we use the standard articulated by our
supreme court in Melanie L. to evaluate Johnson’s argument, and under this
standard to provide Johnson a “reasonable explanation” of the proposed
medication, we conclude that Dr. Anderson’s reports and testimony fall short.

¶30 Dr. Anderson testified at the hearing that she prescribed Haloperidol
for Johnson. Yet, she did not explain why she chose Haloperidol when Johnson
had been successfully treated with other medications. She also failed to explain

10
Because we conclude that the State failed to meet its burden to show that Johnson
received an explanation of the advantages and disadvantages of and alternatives to Haloperidol,
we do not reach the question of whether Johnson is “incapable of expressing an understanding” or
“substantially incapable of applying” the advantages, disadvantages, or alternatives to
Haloperidol as required by WIS. STAT. § 971.16(3)(a)-(b).

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No. 2021AP2046-CR

why the other methods currently being employed, such as show of force and chill
time, are not reasonable alternatives to Haloperidol.

¶31 Furthermore, and most importantly, Dr. Anderson also failed to
explain the details of the conversations she had with Johnson regarding
Haloperidol, its advantages, its disadvantages, and any alternatives to the
medication. Instead, she simply stated that she had conversations with Johnson
generally:

Q And is he able to understand the benefits to the
psychotropic medications that are prescribed to him?

A Not at this time, no.

Q Okay. And have you personally, like, talked
through those, the benefits and the pros and cons of taking
the medications, with Mr. Johnson?

A Yes.

Q And what is his—had he—what has his reaction
been, or what does he do with that information?

A He says that he does not need to take any
psychotropic medication because he is fine. He believes he
is healthy. He does not believe that he has a mental illness,
certainly not a significant one. He believes that his reports
of being neglected by medical staff here at the institute,
about being wronged by various staff members at the
institute, are correct.

¶32 She further described, “And we do work with Mr. Johnson quite
frequently, at least once per week, if not more, to provide psycho-education and
encouragement and to repeat to him the benefits of allowing treatment. And that
really has not effectively swayed him to date.” At no point, however, did
Dr. Anderson provide the details of the pros and cons and the psycho-education
that were provided to Johnson as part of the reasonable explanation owed to
Johnson in the face of being involuntarily medicated using Haloperidol.

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No. 2021AP2046-CR

¶33 We again note the lack of findings by the trial court regarding this
issue. The court merely summarized Dr. Anderson’s testimony, without making
any factual findings or connecting any factual findings to the applicable standard.
For example, the court stated that

[Dr. Anderson] did have a conversation with [Johnson] and
she feels that he is not able to understand the benefits of
psychotropic meds. She went over the pros and cons of the
medication with [Johnson], he feels that he doesn’t need to
take the meds, that he’s fine and healthy, and she feels he
really has no insight into his current diagnosis.

The trial court went on to say, “The med proposed, [Dr. Anderson] kind of went
into details, in regards to the specific medication that is being asked for [] Johnson
to take. I believe that he has not taken it in the past.”

¶34 However, the court does not state what Dr. Anderson told Johnson
about the advantages and disadvantages of Haloperidol, and the alternatives to it.
In fact, Dr. Anderson did not tell the court what the advantages and disadvantages
of Haloperidol are. She testified that she believed that Johnson had not taken
Haloperidol before and, therefore, since he has not taken it, it is not known how he
would respond to it. She also testified that she was not aware of what side effects,
if any, Johnson had from medications that he took in the past and it may be true
that he had no side effects from those medications. For example, she testified that
Johnson had taken Lurasidone in the past and it worked. The question is then
what did she tell Johnson during her discussions with him about Haloperidol and
what did she tell him about alternatives such as Lurasidone that worked for him in
the past.

¶35 “These hearings cannot be perfunctory under the law. Attention to
detail is important.” Melanie L., 349 Wis. 2d 148, ¶94. When Dr. Anderson

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No. 2021AP2046-CR

responded to questioning in general terms, she should have been required to
expound on her answers to provide the details required to show that Johnson was
provided a reasonable explanation of Haloperidol.11 See id., ¶91. Thus, under the
standard set forth in Melanie L., we conclude that Dr. Anderson’s general
descriptions are insufficient, and we reject the State’s arguments to accept, as
reasonable inferences, that Dr. Anderson provided a reasonable explanation to
Johnson of the advantages and disadvantages of, as well as alternatives to,
Haloperidol. Accordingly, we conclude that the State has failed to meet its burden
because it failed to show that Johnson was provided a reasonable explanation of
Haloperidol.

CONCLUSION

¶36 In sum, we conclude that the Sell factors were inappropriately
applied to the motion for involuntary medication or treatment, and the motion

11
In reaching our conclusion, we also note that we have had a previous occasion to
recognize that Haldol, the brand name for Haloperidol, has several potentially severe side effects:

Haldol certainly can cause side effects, including sedation,
slurred speech, a tremor, a feeling of muscle restlessness that we
refer to as akathisia, a phenomenon that is certainly like tremors
but referred to as parkinsonism because it mimics the appearance
of individuals who have Parkinson’s disease. It has the potential
to affect cardiac conduction and heart rhythm. It has an impact
on what’s called the QT interval, which is part of the
electrocardiograph rhythm, and it can certainly have some
metabolic side effects as well in terms of its impacts on weight
gain and blood sugar.

State v. Green, 2021 WI App 18, ¶23, 396 Wis. 2d 658, 957 N.W.2d 583, aff’d in part, 2022 WI
30, ___ N.W.2d ___. The record here is silent as to whether any of these side effects were
explained to Johnson, and given the substantial nature of these side effects and the applicable
standard, we cannot ignore the record’s silence on the details of the information provided to
Johnson.

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No. 2021AP2046-CR

should be evaluated under WIS. STAT. §§ 971.17(3) and 971.16(3). We also
conclude that Dr. Anderson’s reports are properly considered as evidence in this
case because Johnson forfeited his argument by failing to object to the use of
Dr. Anderson’s reports at the time of the hearing. Nevertheless, even considering
the reports, we further conclude that the State failed to meet its burden to show
that Johnson is not competent to refuse medication, both because it failed to prove
that Johnson was dangerous and because it failed to prove that Johnson was given
a reasonable explanation of the advantages, disadvantages, and alternatives to
Haloperidol. Consequently, we reverse the order of the trial court, and we remand
this matter with directions to vacate the order for involuntary medication and to
deny the 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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