State v. D. E. C.

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.
December 27, 2024
A party may file with the Supreme Court a
Samuel A. Christensen 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 Nos. 2024AP1789-CR Cir. Ct. Nos. 2023CF43
2022CF132
2024AP1799-CR
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN,

PLAINTIFF-RESPONDENT,

V.

D. E. C.,

DEFENDANT-APPELLANT.

APPEAL from an order of the circuit court for Jackson County:
ANNA L. BECKER, Judge. Dismissed as moot.

APPEAL from an order of the circuit court for Clark County:
ANNA L. BECKER, Judge. Affirmed.1

1
These appeals were consolidated for briefing and disposition by an order dated
September 11, 2024. See WIS. STAT. RULE 809.10(3). All references to the Wisconsin Statutes
are to the 2021-22 version unless otherwise noted.
Nos. 2024AP1789-CR
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Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

¶1 BLANCHARD, J. D.E.C. challenges a circuit court order
authorizing the Wisconsin Department of Health Services (“the department”) to
involuntarily medicate D.E.C., consistent with the department’s proposed
individual treatment plan, for the purpose of restoring him to competency so that
he can stand trial in a Clark County criminal case. More specifically, D.E.C.
argues that the involuntary medication order violates his right to due process
because it fails to meet two factors required under Sell v. United States, 539 U.S.
166 (2003): that it is sufficiently individualized so as to significantly further the
State’s interest in proceeding to trial, and that it is medically appropriate. See id.
at 180-81. We conclude that the involuntary medication order does not violate
D.E.C.’s right to due process. The proposed treatment plan is not
unconstitutionally generic and is medically appropriate when it is considered in
the context of evidence in the record, which notably includes the testimony of
D.E.C.’s treating psychiatrist at an evidentiary hearing. Accordingly, we affirm
the involuntary medication order.2

BACKGROUND

¶2 In August 2022, D.E.C. was charged in Clark County with felony
offenses. Some challenges to involuntary medication orders call for consideration

2
This is a consolidated appeal challenging a circuit court order entered in both a Clark
County criminal case and a Jackson County criminal case. It is undisputed that the circuit court
dismissed the Jackson County case on October 2, 2024, and the State argues that this renders
moot that aspect of the appeal. D.E.C. does not develop an argument on the mootness topic and
in any case does not provide a basis to think that there is anything about the Jackson County case
that requires separate attention in this opinion. Accordingly, we dismiss the Jackson County case
portion of this appeal as moot and do not address it further.

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of the nature of the criminal charge or charges pending against the defendant. See,
e.g., State v. J.D.B., 2024 WI App 61, ¶¶35-53, ___ Wis. 2d ___, 13 N.W.3d 525
(analyzing whether the State had an important interest in the prosecution, the first
factor under Sell). But not in this appeal. As discussed below, the parties limit
their arguments to issues that do not depend on the nature of the charges against
D.E.C. The dispute is whether the medications and dosages listed in the individual
treatment plan, as placed in context by the testimony of D.E.C.’s treating
psychiatrist during a circuit court evidentiary hearing, meet two Sell factors.

¶3 D.E.C. was initially evaluated by mental health professionals in
January 2023 while he was being held in the Jackson County Jail. In September
2023, counsel for D.E.C. filed a letter with the circuit court questioning D.E.C.’s
competency to assist in his defense. In November 2023, D.E.C. was examined for
competency. He was diagnosed with schizophrenia and untreated symptoms that
rendered him incompetent to proceed to trial. On December 20, 2023, the court
ordered D.E.C. committed for treatment pursuant to WIS. STAT. § 971.14(5), based
on a finding that D.E.C. was incompetent to assist in his defense. He was re-
examined in March 2024 in the jail, while awaiting transfer to the Wisconsin
Resource Center, in Winnebago, Wisconsin, with the transfer occurring on July 1,
2024.

¶4 In a July 8, 2024 report, a clinical psychologist stated that D.E.C.
“remained unmedicated and psychotic” and was “confused, disorganized, and
delusional at baseline.” This psychologist concluded that D.E.C. “continues to
lack substantial mental capacity to understand the pending proceedings
meaningfully to assist in his defense,” and “is likely to be restored to competency
within the permissible timeframe,” if “provided psychiatric treatment” in the
Wisconsin Resource Center.

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¶5 On July 19, 2024, the department filed a motion asking the circuit
court to approve an involuntary medication order to treat D.E.C. to competency,
consistent with an “individual treatment plan” completed by two psychiatrists,
Dr. Marley Kercher and Dr. Benjamin Title. See WIS. STAT. § 971.14(5)(am)
(describing circumstances under which the department may move for a hearing for
the court to determine whether a defendant is not competent to refuse needed
medication or treatment, accompanied by a supporting expert examiner);
§ 971.14(3)(dm) (describing necessary elements of the examiner’s report).

¶6 The treatment plan submitted by the psychiatrists has two major
sections, with the second section generating the issues in this appeal. For context,
we note that the first section summarizes the psychiatrists’ sources of information,
provides mental health diagnoses of D.E.C., describes unsuccessful efforts to
provide treatment voluntarily, and briefly asserts why they concluded that
involuntary administration of medication is needed.

¶7 The second section of the treatment plan is titled, in bolded
capitalized letters, “Medication Treatment to Be Provided.” Immediately below is
this sentence: “The following oral medications are proposed for treatment either
in combination or in succession to restore the defendant’s competency to stand
trial.” Next comes a grid that lists six medications, each to be provided for
“[t]reatment of symptoms of psychosis” and each stating a dosage range.3 We
generally refer to this as “the oral medications grid.”

3
The oral medications grid lists the following, with dosage ranges stated in milligrams
per 24-hour period, to be administered in amounts less than or equal to the specified number of
milligrams: aripiprazole (up to 30 mg); risperidone (up to 8 mg); paliperidone (up to 12 mg);
olanzapine (up to 20 mg); haloperidol (up to 30 mg); and fluphenazine (up to 40 mg).

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¶8 Below the oral medications grid, the treatment plan states: “The
following medications are proposed to be given by injection if the defendant is
unable or unwilling to take the proposed medication.” Following this is a second
grid listing four injectable medications, each to “[t]reat symptoms of psychosis,”
with dosage ranges for each.4 We generally refer to this as “the injectable
medications grid.”

¶9 Below the injectable medications grid are explanatory notes. These
include the following:

● “Treatment will be provided by a physician.”

● “The defendant may consent to treatment with alternative medications in
lieu of or in addition to involuntary medication when such treatment is
medically appropriate.”

● “Progress reports” regarding the “effects of treatment and progress
toward competency restoration” will be provided to the circuit court on the
schedule established in WIS. STAT. § 971.14(5)(b) for required periodic
reexaminations.

● “Additional medications to address side effects or allergic reactions will
be provided when necessary.”

¶10 This last note relates to a third grid, which concludes the treatment
plan and which we generally refer to as “the additional medications.” The

4
The injectable medications grid lists the following, with amounts stated in terms of
ranges: aripiprazole LAI (Maintena) (300-400 mg every 4 weeks); paliperidone LAI (Invega)
(78-234 mg every 4 weeks); haloperidol decanoate (100-400 mg every 4 weeks); and
fluphenazine LAI (12.5-100 mg every 2-3 weeks).

Dr. Kercher made clear in her testimony at the hearing that the four medications listed in
the injectable medications grid with names that match four of the medications in the oral
medications grid are in fact injectable formulations of the same medications. This has not been
disputed at any point by D.E.C.

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additional medications are introduced with the following sentence: “Additional
names of Medication for [D.E.C.]” This grid reflects the following:

● Three medications to be injected (Haldol, up to 10 milligrams;
ziprasidone, up to 20 milligrams; and olanzapine, up to 5 milligrams) as
“back up” in the event that D.E.C. refused an oral dose of one or more
unspecified medications.5

● One medication to be given orally (Cogentin, up to 4 milligrams within
24 hours) in the event of extrapyramidal symptoms, that is, involuntary
movements caused by medications.6

● Two medications (hydroxyzine, oral dose, up to 400 milligrams within
24 hours; diphenhydramine, oral dose, up to 150 milligrams within 24
hours) in the event of extrapyramidal symptoms, anxiety, or insomnia.

● Any of three benzodiazepine medications (lorazepam, clonazepam, or
diazepam) in the event of agitation, severe anxiety, or insomnia, at up to 10
milligrams within 24 hours, orally, but injected “if available and indicated
based on response and within standard of care by peers.”

● One medication (propranolol, up to 80 milligrams within 24 hours,
orally) in the event D.E.C. experiences akathisia.7

¶11 On its face, this means that each of the eight types of additional
medications is to be administered, at or under the maximum stated dose level, as
necessary to resolve an identified circumstance or complication (e.g., refusal to
take an oral medication, or insomnia).

5
A suggestion was made at the hearing by defense counsel, not contradicted by anyone,
that injectable Haldol, included in the additional medications, is the same as haloperidol
decanoate, which is listed in the injectable medications grid.
6
Only the acronym “EPS” appears in this entry, but D.E.C. provides support on appeal
for the definition of “EPS” that we provide in the text.
7
D.E.C. provides support on appeal for the assertion that “propranolol is another ‘EPS’
medication, [because] ‘akathisia’ is itself an extrapyramidal symptom.”

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¶12 On July 26, 2024, the circuit court held a hearing on the
department’s motion. The only witness was Dr. Kercher, the medical director of
the Wisconsin Resource Center.8 She identified herself as D.E.C.’s treating
psychiatrist.

¶13 At the time of the hearing, and continuing on appeal, D.E.C. did not
dispute any of the following points made by Dr. Kercher in her testimony, with
each of these points being credited or implicitly credited by the circuit court.
Based on relevant records and personal assessments of D.E.C., Dr. Kercher
diagnosed him as having schizophrenia. She observed that he: had expressed
paranoia; was “very disorganized,” “withdrawn,” “unstable;” and displayed
various “grim or disruptive behaviors.” Dr. Kercher’s interactions with D.E.C.
convinced her that he did not understand attempts by doctors to explain to him the
value to his well-being of taking antipsychotic medications, with the result that he
could not make an informed decision about whether to take them voluntarily.
Further, D.E.C. was not able to participate in efforts to restore him to competency
without the administration of medication. The Wisconsin Resource Center staff
had attempted “psychoeducational” methods with D.E.C. that were less intrusive
than involuntary medication, but given D.E.C.’s “untreated underlying mental
illness symptoms, he simply isn’t able to participate or engage in those.”
Dr. Kercher further testified, to a reasonable degree of medical certainty, that
D.E.C.’s “symptoms would be best treated with a trial of antipsychotic

8
Dr. Kercher testified that the other signatory on the treatment plan, Dr. Title, also had
professional interactions with D.E.C. while working as a senior psychiatry resident under
Dr. Kercher’s supervision. But Dr. Title did not testify at the hearing or submit any separate
information to the court.

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medications” and that this would be in his medical interests, even if the
administration needed to take place without his consent.

¶14 On 16 occasions, D.E.C. had been offered the opportunity to
voluntarily take one “very common” antipsychotic medication—aripiprazole, the
oral formulation of which is listed in the oral medications grid and the injectable
formulation of which is listed in the injectable medications grid. See supra
notes 3-4. But he accepted only one dose.

¶15 D.E.C. also does not dispute that he was “antipsychotic naïve,”
which Dr. Kercher explained means that there was no documented history of his
being treated with antipsychotic medications in the past and that his schizophrenia
appeared to be a “newly emergent psychotic process.”

¶16 We now turn to testimony related to the specific contents of the
treatment plan proposed by the two psychiatrists and explained by Dr. Kercher.

¶17 Dr. Kercher testified that implementation of this plan by the doctors
she works with would “dramatically improve [D.E.C.’s] thought process,” “allow
him to be less paranoid,” and “allow him to be less isolative and more able and
willing and comfortable to engage with others on his treatment teams to participate
… in the competency restoration process.” “[T]here is a very high likelihood” that
application of the treatment plan would render him competent and allow him to
assist his attorney with his criminal defense, as well as being in his overall medical
interests. Dr. Kercher opined that the benefits to D.E.C. of the medications to be
provided under the treatment plan would outweigh any potential side effects.

¶18 As to the specifics of the medications listed in the treatment plan,
Dr. Kercher testified that they included both “first-generation” antipsychotics and

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“second-generation” antipsychotics. She distinguished between the typical effects
experienced by patients from the two categories. “Typically,” for someone who is
antipsychotic naïve, “modern standard practices” call for starting a patient who is
new to antipsychotics on a second-generation version, in part because adverse side
effects tend to be “less likely” with them than with the first-generation
antipsychotics.

¶19 As an example of a second-generation antipsychotic, Dr. Kercher
cited aripiprazole, the medication referenced above as having been offered to
D.E.C. and refused by him except in one instance and which is listed twice in the
treatment plan. She expressed the view that D.E.C. should be started on a
medication listed in the oral medications grid (such as aripiprazole, or perhaps
paliperidone, if that were better tolerated or more effective), and then, if the effects
of that oral medication were positive, move him to an injectable formulation of the
same medication. This is because the “standard recommended practice” for
treatment of an antipsychotic-naïve patient would be to start him on a second-
generation medication (which she identified as aripiprazole, risperidone,
paliperidone, and olanzapine) as opposed to a first-generation medication
(haloperidol and fluphenazine). At one point she refined her testimony on these
topics to say that she would not recommend for him an initial trial of any
medication other than aripiprazole.

¶20 Dr. Kercher testified that two rationales call for eventually moving
patients to an injectable, long-acting formulation over continuing with an initially
tried oral formulation. One rationale is that the “relapse rate” (defined as the rate
of hospital readmission for those on outpatient status) is lower for injectable
formulations. The other rationale is that there tend to be fewer “peaks and
troughs” for patients on injectables, which is better because the goal is to help

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patients achieve a “steady-state.” But Dr. Kercher rejected defense counsel’s
suggestion in his questioning that the oral formulation of paliperidone should be
removed from the treatment plan in favor of the injectable formulation based on
these long-term advantages. This is because medical professionals “always …
need” to start a patient on the oral formulation of a medication before
administering the injectable formulation, in order “to assess efficacy and
tolerability” of the medication.

¶21 Defense counsel asked Dr. Kercher if she thought that the proposed
treatment plan should be edited to drop first-generation medications haloperidol
and fluphenazine from the oral medications grid, because second-generation
versions are generally preferred. At first she responded, “I don’t have a problem
with doing that.” But she proceeded to qualify that answer, based on the
observation that some patients have “drug-specific side effects that are
idiosyncratic”—such as the “rare” side effect of a drop in the white blood cell
count. Because of that, she testified, it would be appropriate to give treatment
providers the ability to “more readily” move from a second-generation psychotic
to a first-generation one. Later in her testimony, she elaborated on this point. She
testified that D.E.C. might have an “idiosyncratic” negative reaction to second-
generation medications and, in that case, it “would be considered reasonable and
advisable to consider going directly to another medication, like haloperidol, in
another class.” She also clarified that haloperidol and fluphenazine “are not
[medications] that would be the first go-tos,” but that she did not think it made
sense to eliminate those as possibilities.

¶22 Defense counsel expressed the view that the proposed treatment plan
appeared to permit “all six” of the medications in the oral medications grid to be
administered “right now.” Dr. Kercher agreed that this could be a literal

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interpretation of the treatment plan if taken out of proper context, but she made
clear that this would not be the approach taken by the doctors here.

¶23 Taking a step back, Dr. Kercher testified that the degree of
specificity that psychiatrists use in drafting proposed treatment plans presents a
“conundrum,” because they want to address “complete” options, but at the same
time they want to avoid indicating that all medications could or would be
administered “all at once.” She testified that she had received “feedback from
various courts regarding the appropriateness of being very inclusive versus being
very restrictive[,] in case we need to switch from one medication to another. We
oftentimes don’t have that flexibility if we don’t include more medications in the
treatment plan.”

¶24 Defense counsel asked about the recommended dosage ranges in the
treatment plan, starting with aripiprazole at up to 30 milligrams within a 24-hour
period. Counsel asserted that public guidance from the U.S. Food and Drug
Administration (“FDA”) states that dosages of this medication “higher than 10 to
15 milligrams are not generally any more effective” than staying within that range.
In responding, Dr. Kercher appeared to confirm her understanding that there is
FDA guidance to this effect, and added, “I wouldn’t start higher than [10-15
milligrams] right off the bat.” But she further testified that it could be appropriate
to increase the dosage of aripiprazole for D.E.C. “to what is considered the
maximum recommended dosage before abandoning” a trial in the event that there
were “no side effects noted, but there appears to be still suboptimal response” in
terms of efficacy.

¶25 Along similar lines, defense counsel asserted that separate FDA
guidance states that when dosages of olanzapine—which is included in the

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treatment plan at up to 20 milligrams per day—are greater than 10 milligrams a
day, they are not “shown to be any more effective” than at the 10-milligrams level.
Dr. Kercher’s answers were similar here. She did not challenge counsel’s
assertion about the existence of such guidance from the FDA, but she suggested
that she disagreed with it. She testified that the maximum of 20 milligrams per
day was included in the treatment plan based on the drug manufacturer’s
“recommended maximal dosage range,” because in “many instances” patients
“respond … favorably and tolerably to dosages up to” the manufacturer’s
maximum. She added,

[B]ut at this point, … I wouldn’t go immediately to that
dose because I don’t see anything in [D.E.C.’s]
presentation that would warrant that, and we always start
with the lowest possible dose and work upwards to, again,
achieve a balance of efficacy and tolerability.

¶26 Defense counsel asked whether it would be “safer” for D.E.C. “to
have a treatment plan adopted by the Court today that contemplates the safer range
versus … these maximum potentials that are out there?” Dr. Kercher disagreed,
on the ground that “these dosage ranges are still considered safe according to the
manufacturer’s guidelines.” She added that doctors administering medications to
D.E.C. would be “obviously medically and ethically obliged to” use “good clinical
judgment and not us[e] more [medication] than is deemed necessary.” At the
same time, she testified, “it’s standard practice” to give each patient “a robust
trial” on a particular medication “before moving onto another medication that may
or may not be more effective and may potentially be more … morbid.” By “more
morbid,” she presumably meant more likely to cause severe side effects or
complications.

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¶27 Defense counsel asked whether it is true that there has been no
“safety testing performed as to doses” of fluphenazine “as high as what’s being
recommended,” 40 milligrams within a 24-hour period. Dr. Kercher indicated that
she was not aware of “specific literature” to that effect. She testified that “we use”
“Stahl’s,” a publication that gives “maximum dosage range[s].”9 Counsel asked,
“[W]hat [are] the dosages for fluphenazine at which a therapeutic effect is usually
achieved?” Dr. Kercher responded:

In my experience, it can be up to 20 milligrams.…
I’ve rarely used dosage[s] beyond that. That’s typically
more, again, in individuals who have been treatment
resistant to other medications and have required a longer
term of treatment. You start … very low and just work up
as needed.

¶28 After the close of evidence, the prosecutor argued that the State had
carried its burden of showing that an order of involuntary medication, consistent
with the proposed treatment plan, would be appropriate. As part of that argument,
the prosecutor contended that “it’s important to allow the department flexibility in
providing a specialized treatment plan” for D.E.C., and that it would not be
“appropriate for courts to micromanage” how mental health professionals treat
their patients.

¶29 Defense counsel argued that there was a mismatch between what he
characterized as the “complete latitude” allowed to the department under the
submitted treatment plan and what Dr. Kercher testified would be the actual

9
No one asked Dr. Kercher to elaborate on the reference to “Stahl’s” at the hearing, but
D.E.C. states on appeal that this was likely a reference to Stephen M. Stahl, STAHL’S ESSENTIAL
PSYCHOPHARMACOLOGY PRESCRIBER’S GUIDE (Meghan M. Grady, 8th ed. 2024), and the State
does not take a contrary position.

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appropriate treatment for D.E.C., in light of the fact that Dr. Kercher “is not the
only clinician who is going to be dealing with” D.E.C.

¶30 In addition to making that broad point, defense counsel made the
following two specific requests in the alternative: (1) for an order that the
treatment plan be limited to the exclusive administration of aripiprazole, on the
ground that, according to counsel, it was “the only” medication that Dr. Kercher
testified “that she wanted and needs [to administer] right now”; or (2) for an order
that the treatment plan be limited to only the second-generation antipsychotics,
eliminating all first-generation antipsychotics.

¶31 The circuit court ordered involuntary medication, consistent with the
proposed treatment plan, rejecting all of D.E.C.’s arguments. The court relied on
Dr. Kercher’s testimony that, as the court put it, Dr. Kercher and her colleagues
are “planning to start” the application of the treatment plan by administering to
D.E.C. only aripiprazole, “at the lowest dose appropriate to address the symptoms
that would cause the least amount of side effects,” and move up in dosage and then
on to other alternatives only as doctors determined the balance of efficacy and
tolerability permitted. The court stated that the fact that the treatment plan
identifies additional medications is “to [D.E.C.’s] benefit rather than to his
detriment because it gives the doctor an opportunity to immediately change [to a
different] medication if [the first] could be harmful.” D.E.C. appeals.10

10
On September 5, 2024, this court granted D.E.C.’s motion to continue an automatic
stay of the challenged circuit court order pending our disposition of this appeal. Putting to one
side the specific issue of mootness raised by dismissal of the Jackson County case, see supra
footnote 2, neither side has suggested in briefing or by motion to this court that this appeal is
moot, and we do not address this topic further.

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DISCUSSION

¶32 Before a circuit court may approve a plan to forcibly medicate an
accused person to attempt to restore the person’s competency to stand trial in a
criminal case, the State must prove all of the following: (1) the State has an
important interest in proceeding to trial; (2) involuntary medication will
significantly further that State interest; (3) involuntary medication is necessary to
further that State interest; and (4) involuntary medication is medically appropriate.
Sell, 539 U.S. at 180-81 (interpreting the Fifth Amendment Due Process Clause,
applicable to the State under the Fourteenth Amendment). The State must “prove
the factual components of each of the four factors by clear and convincing
evidence.” State v. Green, 2021 WI App 18, ¶16, 396 Wis. 2d 658, 957 N.W.2d
583, aff’d in part, 2022 WI 30, 401 Wis. 2d 542, 973 N.W.2d 770.

¶33 In this appeal, D.E.C. does not challenge the State’s ability to prove
the first and third Sell factors. He argues that the State did not meet its burden on
the second and fourth factors, namely, to prove that involuntary medication
consistent with the treatment plan will significantly further the State’s interest or
that it is medically appropriate.

¶34 Regarding the individual treatment plan that accompanies a request
for an order of involuntary medication, which is the focus of this appeal, this court
has explained the following basic principles. Submission of such a plan to the
court is a necessary step “to fulfilling the second, third, and fourth Sell
requirements.” Green, 396 Wis. 2d 658, ¶37. Further, we adopted an approach
reflected in federal appellate court opinions interpreting Sell, under which, “‘[a]t a
minimum,’” such a plan must identify:

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“(1) the specific medication or range of medications that
the treating physicians are permitted to use in their
treatment of the defendant, (2) the maximum dosages that
may be administered, and (3) the duration of time that
involuntary treatment of the defendant may continue before
the treating physicians are required to report back to the
court....”

Green, 396 Wis. 2d 658, ¶38 (quoting United States v. Chavez, 734 F.3d 1247,
1253 (10th Cir. 2013), which in turn quoted United States v. Hernandez-Vasquez,
513 F.3d 908, 916-17 (9th Cir. 2008)).

¶35 Turning to our standard of review, Wisconsin law is not settled. See
id., ¶18; J.D.B., 2024 WI App 61, ¶¶33-34 (noting that the majority of federal
courts review Sell factors two, three, and four as fact questions subject to clearly
erroneous review). The parties in this appeal disagree about whether it is a clearly
erroneous standard or a de novo standard. As we did in Green and J.D.B., here
we do not resolve the applicable standard of review, because we would reach the
same conclusion on both factors two and four regardless of which of standard of
review we apply. See Green, 396 Wis. 2d 658, ¶20; J.D.B., 2024 WI App 61,
¶34. We conclude that the circuit court did not clearly err in making any pertinent
finding and that, on our independent review, the court did not err in ordering
involuntary medication consistent with the treatment plan.

¶36 We address D.E.C.’s two primary arguments in turn.11

11
D.E.C. also briefly suggests as an alternative ground for reversal that the duration of
the involuntary medication ordered here is not sufficiently established in the individual treatment
plan because, as summarized above, what the plan calls “progress reports” are tied to the
requirement of periodic reexaminations in WIS. STAT. § 971.14(5)(b), which the department is
required to conduct at established intervals. The treatment plan states in pertinent part:

(continued)

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I. Sell Factor Two: Failure to Show That Involuntary Medication
Consistent with the Plan Would Significantly Further the State’s
Interest and Be Substantially Unlikely to Have Interfering Side
Effects

¶37 Stated more fully, factor two of the Sell test requires the State to
present sufficient proof that “involuntary medication will significantly further” the
State’s interests in trying the defendant because “administration of the drugs is
substantially likely to render the defendant competent to stand trial.” Sell, 539
U.S. at 181 (emphasis in original). Further, the State must prove that
“administration of the drugs is substantially unlikely to have side effects that will
interfere significantly with the defendant’s ability to assist counsel in conducting a
trial defense, thereby rendering the trial unfair.” Id.

¶38 There is no reasonable dispute here that two of the three minimum
requirements for treatment plans stated in Green have been met. See Green, 396
Wis. 2d 658, ¶38. The maximum dosages of all listed medications (including the
time periods for administration of each dose) are given in the treatment plan, and it

The effects of treatment and progress towards competency
restoration will be reported to the court as statutorily required at
3 months after commitment, 6 months after commitment, 9
months after commitment and within 30 days prior to the
expiration of commitment. Progress reports will be provided
earlier should treatment be successful prior to the statutorily
required timeframe.

Putting aside the fact that D.E.C. did not raise this issue in the circuit court, he now fails to
present a developed argument, and we reject it on that ground. See State v. Pettit, 171 Wis. 2d
627, 647, 492 N.W.2d 633 (Ct. App. 1992) (this court need not review issues that are
inadequately briefed). Among other problems, D.E.C. fails to explain one of his major premises,
which is that department examiners providing the periodic reviews of the ability of the defendant
to be restored to competency as required under § 971.14(5)(b) would fail to provide the circuit
court with a summary of the defendant’s recent medication history and responses to medications.

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also states the length of time that involuntary treatment of D.E.C. may continue
before the department is required to report back to the court. See supra note 11.

¶39 Part of D.E.C.’s argument is to the effect that the treatment plan does
not meet the third minimum requirement of stating “‘the specific medication or
range of medications that the treating physicians are permitted to use in their
treatment of the defendant,’” see Green, 396 Wis. 2d 658, ¶38 (quoted source
omitted), because numerous medications are listed and the plan does not guarantee
which particular medications will in fact be administered and in what sequence.
D.E.C. acknowledges that Dr. Kercher testified about how the plan would be
implemented, but he argues in part that the circuit court order is nonetheless
unconstitutional because the circuit court failed to “incorporate any restrictions
from [Dr. Kercher’s] testimony into its order.” We disagree that D.E.C. has
identified any “incorporat[ion]” or amendment to the order or the treatment plan
that is required under Sell.

¶40 We conclude that D.E.C.’s argument fails to account for five
significant considerations reflected in Dr. Kercher’s testimony. This testimony
provided valuable context for the circuit court’s consideration of the order, which
is to be implemented by doctors consistent with the treatment plan.

¶41 The first important consideration is that Dr. Kercher testified that the
proposed treatment plan was based on multiple assessments of D.E.C. that she
personally made and that were made by a senior resident psychiatrist under her
supervision and a review of all available relevant records related to D.E.C. These
facts differ sharply from those in Green and in J.D.B., and there are no analogs
here to the significant lapses by the department noted in Green and J.D.B.

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¶42 In Green, the State failed to meet its evidentiary burden “because it
failed to present an individual treatment plan based on a medically informed
record.” Green, 396 Wis. 2d 658, ¶2. The circuit court in Green engaged in a
mere “pro-forma” review based on testimony of a psychiatrist who gave only
conditional support for a treatment plan that was signed by a prosecutor and not by
any physician. Id., ¶¶3, 22, 26, 44. Moreover, the psychiatrist’s “opinion was not
based on a review of Green’s medical history or treatment records,” and the
psychiatrist “had not evaluated Green for the purpose of prescribing medication
for him.” Id., ¶32. The result was a merely “generic treatment plan with a
medication and dosage that are generally effective for a defendant’s condition.”
Id., ¶34. When asked whether the medication stated in the plan was substantially
likely to render Green competent to stand trial, the psychiatrist merely testified
that “on paper” it “would be an appropriate treatment,” but that given varying
individual responses to particular medications, “there’s not a single antipsychotic
medication that is universally effective.” Id., ¶26. The psychiatrist suggested that
it would be treatment providers at the department’s facility who would be deciding
whether to proceed with the treatment plan proposed by the State, or a different
treatment plan, “based on information from Green’s medical records” that were
reviewed by this psychiatrist. Id. In sum, the department got it backwards in
Green. Instead of presenting to the circuit court, and explaining, a treatment plan
that had been tailored to this purpose for the defendant, the department asked the
court to entirely delegate to the department what medications would be effective
and not harmful based on information that the testifying witness had not reviewed.
See id., ¶44.

¶43 Here, in contrast, we have “a medically informed record.” See
Green, 396 Wis. 2d 658, ¶2. Dr. Kercher provided testimony to the circuit court

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outlining an approach that she represented was tailored to D.E.C.’s individual
situation, consistent with the specifics stated in the plan. She also described how
the listed medications would be trialed with D.E.C. This included clarifying
testimony, both on direct and cross examination, regarding the overall goal,
consistent with the second Sell factor, to balance efficacy and tolerability. This
testimony expanded on the plan’s listing of the medications in three separate grids,
with some language explaining how the grids are interrelated.

¶44 In J.D.B., the treatment plan was “not adequately individualized,”
because “the record … [was] wanting in many critical respects.” J.D.B., 2024 WI
App 61, ¶61. The testifying physician was so obviously inattentive that he
overlooked “significant” medical history that in part involved medication that had
been administered to the defendant to prevent seizures resulting from a head
injury. Id., ¶¶9-11, 13, 60. There is no such evidence here.

¶45 The second important consideration here is that, as Dr. Kercher
explained in her testimony, D.E.C. was antipsychotic naïve, that is, he lacked a
medical history of prior antipsychotic medication experience. When someone
lacks such a history, treatment providers may have a head start in zeroing in on
one or more antipsychotics (and perhaps also zeroing in on specific dosages) that
might be effective for a patient and not cause significant side effects. In contrast,
Dr. Kercher explained, the odds are higher with an antipsychotic naïve patient that
treatment providers will need to try, and reject, a series of medications before
identifying one that is most appropriate. And, given the absence of a medical
history for D.E.C. on antipsychotics, the ranges for D.E.C.’s medications might
logically need to be relatively larger than the ranges should be for someone with a
track record of dosages on one or more identified medications.

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¶46 This is a reasonable explanation for including multiple medications
with relatively large dosage ranges as alternatives; the department was not limited
to including in the treatment plan only the medications that Dr. Kercher described
as “first go-tos” with narrow dosage ranges. In J.D.B., it was problematic that
there was “a veritable suite of potential medications” in the treatment plan, even
though the circuit court was provided with “no evidence” regarding either the
specification of a sequence for their administration or the reason or reasons that no
sequence could be specified. See J.D.B., 2024 WI App 61, ¶58. Similarly, in
Green there was insufficient concrete evidence provided to help the circuit court
understand how a facially “generic” treatment satisfied Sell. See Green, 396 Wis.
2d 658, ¶34. In contrast here, a reasonable explanation was provided.

¶47 The third important consideration is that Dr. Kercher testified that
“we always start with the lowest possible dose and work upwards” in dosage. She
then gave an example, for aripiprazole, that a “lowest possible dose” might be “10
to 15 milligrams.” This testimony gave a context to the dosage ranges and time
periods for dosages reflected in the treatment plan, and D.E.C. did not provide the
circuit court with a good reason to question whether the treatment plan would be
safely administered. Further, Dr. Kercher specifically described an intention to
first administer aripiprazole to D.E.C. at a low dosage, beginning with the oral
formulation, and if that were successful, to not move to any of the other
medications. Therefore, aside from aripiprazole (or perhaps paliperidone, she
explained, if that were better tolerated or more effective), the other listed
medications were presented conditionally, in the sense that they were to be
administered as dictated by what Dr. Kercher testified would be “a balance of
efficacy and tolerability” within the dosages specified in the plan. In contrast, in
J.D.B., while the treatment plan stated maximum dosages, “there is no evidence or

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Nos. 2024AP1789-CR
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indication that there is a maximum amount of a particular medication that can be
administered in a given period of time,” such as per day or per month. See J.D.B.,
2024 WI App 61, ¶¶18, 56-57.

¶48 The fourth important consideration is also on the dosage topic.
Dr. Kercher explained that the ranges listed in the treatment plan—at least some of
which reach manufacturer recommended maximums, which she testified she
believed to be generally safe guidelines—were established based in part on the
following principle: it is preferable to give a patient “a robust trial” on a particular
medication “before moving onto another medication that may or may not be more
effective and may potentially be more” dangerous.

¶49 The fifth important consideration is that Dr. Kercher provided
illuminating distinctions between first-generation and second-generation
antipsychotics and also between antipsychotics that are to be administered orally
and those by injection. These broad points provided the circuit court with context
to understand how the medical doctors who will administer the medication or
medications—the treatment plan states that “[t]reatment will be provided by a
physician”—would reasonably interpret the three grids listing medications to fit
D.E.C.’s circumstances.

¶50 These five considerations together persuade us that the circuit court
did not commit error in approving involuntary medication, consistent with the
treatment plan, because it will significantly further the State’s interest in
proceeding to a trial at which D.E.C. could adequately assist counsel. It is true
that the treatment plan provides a relatively broad degree of flexibility to the
treating doctors, depending on D.E.C.’s reactions to various medications and
dosage levels. But Dr. Kercher provided reasons for this and D.E.C. is incorrect in

22
Nos. 2024AP1789-CR
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arguing that it reflects “no meaningful limitation” on the types and amounts of
medications that may be administered, when considered in light of the testimony
credited by the circuit court.

¶51 Taking at least some of D.E.C.’s arguments to their logical
conclusions, he argues in effect that his involuntary medication consistent with the
treatment plan violates his due process rights because the order or the plan does
not contain something resembling an exhaustively annotated flowchart with the
goal of explicitly excluding authorization for each possible outcome that is
incompatible with restoring competency or that risks harsh side effects. Such a
hypothetical flowchart would begin with a single medication at a narrow range of
dosages, and then trace through each possible subsequent medication and narrow
dosage range, explaining step-by-step all permissible medications and the specific
anticipated effectiveness and side effects that might be experienced. Or, as a
functional alternative, imagine a long list of protocols and procedures that would
strictly account for the only allowable sequences of medications and dosages,
explaining in detail the risks and benefits of each possible alternative treatment
route. Assuming that such an annotated flowchart or list is ever used in the
medical world as a feasible treatment plan, D.E.C. fails to identify authority that
such a precise, granular prediction of the alternative sequences of events was

23
Nos. 2024AP1789-CR
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necessary, and we do not discern this requirement in Sell.12 Instead, the State must
show the “substantial likelihood” that the plan will result in successful treatment
based on “evidence specific to the individual,” which does not require a listing of
each and every medical consideration or procedure that a testifying psychiatrist
may testify about. See Green, 396 Wis. 2d 658, ¶33.

¶52 We also understand D.E.C. to more narrowly, and more reasonably,
contend that the treatment plan was deficient to the extent that it failed to
explicitly capture some of the broader principles that Dr. Kercher addressed in her
testimony which would more readily allow the plan to be interpreted by doctors
consistently with the Sell factors. In particular, D.E.C. highlights two applications
of the plan that he argues would be facially authorized, and that would lower the
likelihood that the State could bring D.E.C. to competence or would create a
substantial risk of serious side effects: the use of any combination of the listed
medications without meaningful limitation; and more specifically, the use of
injectable medication without first attempting to stabilize D.E.C. on an oral
counterpart.
12
This is not to say that an involuntary treatment order cannot violate Sell on the ground
that the submitted individual treatment plan is defectively non-specific, even if there is some
supporting evidence presented by a psychiatrist at a hearing. The department would be well
advised to include significant details in its plans to provide clarity for everyone involved,
including to assist circuit courts in the task of applying the standards under Sell. For example, as
we established in Green, at a minimum each plan must state “(1) the specific medication or range
of medications that the treating physicians are permitted to use in their treatment of the defendant,
(2) the maximum dosages that may be administered, and (3) the duration of time that involuntary
treatment of the defendant may continue before the treating physicians are required to report back
to the court.” Green, 396 Wis. 2d 658, ¶38.

But we do not interpret Sell or case law applying it to generally require that orders or
treatment plans be amended to reflect any and all of the specific standards or protocols that
testifying doctors may reference at evidentiary hearings. And, as we explain in the text, here we
conclude that the treatment plan, considered in the context of a record that includes Dr. Kercher’s
testimony, has a sufficient level of detail.

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Nos. 2024AP1789-CR
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¶53 As for the reference in the treatment plan to combinations of
medications, there was no suggestion in Dr. Kercher’s testimony that the treatment
plan could be reasonably interpreted by doctors at the Wisconsin Resource Center
to call for the improper administration of multiple medications at the same time.
Dr. Kercher repeatedly spoke in terms of administration of a single medication,
and defense counsel never asked about whether administration of more than one
medication at one time was contemplated. Further, Dr. Kercher conveyed the
idea, which is consistent with a reasonable interpretation of the face of the
treatment plan, that doctors would follow the plan to allow for the minimum
dosages (within the ranges and time periods specified in the plan) to produce
effective and safe outcomes, focusing on one medication at time.

¶54 One aspect of the plan addresses D.E.C.’s more specific concern
with the use of injectable medications without having first stabilized him using an
oral medication. The plan specifies that any or all of the four injectable
antipsychotic medications could be administered only if D.E.C. is “unable or
unwilling to take” one of the listed oral antipsychotic medications. The circuit
court had a sufficient evidentiary basis to conclude that, through administration as
needed of various medications, doctors would execute the plan in way that would
significantly further the State’s interests in proceeding to a criminal trial because
D.E.C. would be substantially likely to become competent to stand trial, and that
doing so would be substantially unlikely to have side effects that will interfere
significantly with his ability to assist counsel.

¶55 It is true that some of Dr. Kercher’s testimony was framed in terms
of what she personally would do as D.E.C.’s treating psychiatrist or of what she
would “recommend” that others do. It would have made a better record if the
prosecutor had asked her to clarify these references. But the most reasonable

25
Nos. 2024AP1789-CR
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interpretation of her testimony, and the way it appears to have been understood
and credited by the circuit court, was the following. Dr. Kercher was providing
contextual testimony as to how the treatment plan would be reasonably understood
by the medical doctors responsible for following it in an ethical manner. For these
reasons, we reject D.E.C.’s suggestion that the circuit court operated from the
inaccurate premise that the order did not need to be amended to address any of the
considerations testified to by Dr. Kercher based on either of two erroneous
assumptions that the court might have made. The first erroneous assumption
would be that Dr. Kercher herself (as opposed to other doctors) would personally
oversee and administer all aspects of the treatment plan. The second erroneous
assumption would be that Dr. Kercher would merely make recommendations to
other doctors that could be rejected by them in a manner inconsistent with
Dr. Kercher’s testimony.

¶56 More broadly, D.E.C. takes issue with the proposition that a
treatment plan can pass muster under Sell based in significant part on evidence not
directly addressed in the report itself. He argues that the circuit court, by failing to
explicitly incorporate certain aspects of Dr. Kercher’s testimony into the written
order or the plan, delegated to the treating physicians in their own professional
judgment whether the approved treatment plan complies with Sell, contrary to
Green. See Green, 396 Wis. 2d 658, ¶¶43-44. However, D.E.C. fails to provide a
supported argument explaining how the due process safeguards required by Sell
are not meaningfully addressed by interpreting the treatment plan here in light of
the detailed, medically and individually based testimony provided by Dr. Kercher,
the likes of which were missing in Green and J.D.B.

¶57 To recap, the circuit court here was informed—through a
combination of the contents of the reports it had received, the individual treatment

26
Nos. 2024AP1789-CR
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plan, and Dr. Kercher’s testimony on direct and cross examination—as to the
specific need for the administration of the antipsychotic medication or medications
listed in the plan, in defined dosage ranges and as appropriate for D.E.C. in
particular. The court was specifically assured through Dr. Kercher’s testimony
that doctors would move him from the lowest possibly effective doses of one
medication to the same for another medication each time that a given medication
was not effective or was causing significant adverse effects. This was sufficient.

¶58 At one point, in explaining its decision, the circuit court observed
that only a physician, and not a court, is “qualified to say whether one medication
or another medication” is appropriate for a patient. D.E.C. suggests that, in
making this observation, the court signaled that it did not understand that the law
assigns to courts alone the critical role of determining whether involuntary
medication, consistent with a proposed treatment plan, satisfies the Sell factors
regarding a specific defendant, and that courts are not allowed to delegate that role
to individual treatment providers or to any state agency generally. See Green, 396
Wis. 2d 658, ¶44 (circuit courts cannot delegate to physicians their responsibilities
to determine whether the Sell factors have been met). The court’s intended
meaning in making this particular comment is not entirely clear. But we disagree
that the court’s challenged ruling violated these legal principles, for reasons we
have discussed. Moreover, the court went on to explain that it was rejecting
defense requests—which included limiting the treatment plan to the administration
of a single medication, aripiprazole—by relying on Dr. Kercher’s testimony, based
on multiple personal assessments of D.E.C. and an explanation of why it was
important and necessary to provide multiple medication options.

¶59 D.E.C. suggests that Dr. Kercher’s expression of concern about
allowing sufficient “flexibility” in treatment plans to allow the department to make

27
Nos. 2024AP1789-CR
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effective use of plans ignores the fact that the department could return as needed to
obtain court approval to add medications or change dosage amounts, under
deadlines that D.E.C. submits would not cause undue delay. See WIS. STAT.
§ 971.14(5)(am). The State counters that Sell does not require the department to
engage in “piece-meal” court-approved treatment, which the State submits would
have the practical effect of “preclud[ing] the State from involuntarily medicating
anyone due to the strict 12-month maximum period for restoring a defendant to
competency once the defendant is committed.” See § 971.14(5)(a)1.

¶60 It is true that the constitutional standards cannot “bend to
accommodate Wisconsin statutory procedures,” and instead the procedures “must
bend to comply with constitutional standards.” See Green, 396 Wis. 2d 658, ¶47.
Our ruling today does not rest on the State’s argument about the practical effects
of such a ruling on the ability of the State to cause defendants to be restored to
competency in general. But as we have discussed, here Dr. Kercher consistently
described what she explained is an effective and safe approach that doctors would
use. This included describing reasons to conclude that the medications and
dosages listed in the plan hold the prospect of furthering the State’s interest at
issue consistent with D.E.C.’s right to due process, satisfying Sell’s factor two. As
part of that record, the circuit court was not presented with evidence establishing
that any medication or category of medications in the treatment plan, administered
by a doctor consistently with Dr. Kercher’s testimony, would not significantly
further the State’s interest in proceeding to trial with D.E.C.’s competency
restored or would result in the risk of side effects likely to interfere significantly
with his ability to assist counsel.

¶61 Up to this point in this opinion, we have explained why we reject
D.E.C.’s argument that the circuit court erred in denying defense counsel’s broad

28
Nos. 2024AP1789-CR
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request to deny the requested order based on a disconnect between the terms of the
treatment plan and the testimony of Dr. Kercher. On appeal, D.E.C. does not
present a developed, separate argument that the circuit court was required, as
D.E.C. asked the court in the alternative, to order that the treatment plan be limited
to the exclusive administration of aripiprazole or order that the treatment plan be
limited to only the second-generation antipsychotics, and therefore we do not
separately address those requests.

¶62 In sum on this issue, we conclude that, taking into account the entire
record, including both the treatment plan and the hearing testimony, the State
proved by clear and convincing evidence that the second Sell factor was met.

II. Sell Factor Four: Failure to Show That the Treatment Plan Is
Medically Appropriate

¶63 The fourth Sell factor requires the State to prove that the planned
forced administration of medication is “medically appropriate,” which means that
administration of medications as specified in the treatment plan would be “in the
patient’s best medical interest in light of his [or her] medical condition.” See Sell,
539 U.S. at 181.

¶64 It is true that WIS. STAT. § 971.14(4)(b) imposes an obligation on
“whoever administers the medication or treatment to the defendant” to “observe
appropriate medical standards.” But our supreme court has explained that “Sell
requires the circuit court to conclude that the administration of medication is
medically appropriate, not merely that the medical personnel administering the
drugs observe appropriate medical standards in the dispensation thereof.” See
State v. Fitzgerald, 2019 WI 69, ¶29, 387 Wis. 2d 384, 929 N.W.2d 165
(emphasis in original).

29
Nos. 2024AP1789-CR
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¶65 D.E.C. argues that the State failed to prove that the treatment plan is
medically appropriate in multiple respects. We reject D.E.C.’s argument, based in
part on Dr. Kercher’s testimony about how the plan allows doctors, on a step-by-
step basis, to balance the efficacy and the tolerability of each medication referred
to in the plan that doctors deem it necessary to try. We address each contention in
turn.

¶66 D.E.C. points out that, as summarized above, Dr. Kercher did not
dispute defense counsel’s assertion that the maximum dosages in the plan for
aripiprazole and olanzapine exceed what FDA states are effective dosages. But
the circuit court implicitly credited Dr. Kercher’s testimony, based on her
professional experience, that the treatment plan would benefit D.E.C. without
adverse side effects, including potentially moving up to the maximum dosages
recommended by the manufacturer if the course of treatment dictated that. At the
hearing, defense counsel asked probing questions but did not impeach Dr. Kercher
in any significant way and did not present any contrary testimony.

¶67 D.E.C. raises two objections to the inclusion of fluphenazine in the
treatment plan. We conclude that both objections are insufficiently supported by
the record and forfeited, and we further conclude it would not be appropriate to
overlook forfeiture. See Northbrook Wisconsin, LLC v. City of Niagara, 2014
WI App 22, ¶20, 352 Wis. 2d 657, 843 N.W.2d 851 (“Arguments raised for the
first time on appeal are generally deemed forfeited.” (citing State v. Van Camp,
213 Wis. 2d 131, 144, 569 N.W.2d 577 (1997))); State v. Ndina, 2009 WI 21, ¶30,
315 Wis. 2d 653, 761 N.W.2d 612 (“The purpose of the ‘forfeiture’ rule is to
enable the circuit court to avoid or correct any error with minimal disruption of the
judicial process, eliminating the need for appeal.”); Townsend v. Massey, 2011
WI App 160, ¶25, 338 Wis. 2d 114, 808 N.W.2d 155 (“[T]he forfeiture rule

30
Nos. 2024AP1789-CR
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focuses on whether particular arguments have been preserved, not on whether
general issues were raised before the circuit court.”). Application of the forfeiture
rule is appropriate in many instances to ensure that parties and circuit courts have
“notice and a fair opportunity to address issues and arguments, enabling courts to
avoid or correct any errors with minimal disruption of the judicial process.” See
Thompson v. Ouellette, 2023 WI App 7, ¶13, 406 Wis. 2d 99, 986 N.W.2d 338.
That said, the rule is one of judicial administration, and “under appropriate
circumstances, we can overlook a party’s forfeiture and address the merits of an
unpreserved argument.” See id., ¶15.

¶68 D.E.C.’s first objection is based in part on the testimony,
summarized above, that Dr. Kercher gave in response to defense counsel’s
assertion that there has been no “safety testing performed as to doses” of
fluphenazine at the plan’s listed maximum dosage level of 40 milligrams within a
24-hour period. She responded that she was not aware of “specific literature,” but
that she relied on STAHL’S ESSENTIAL PSYCHOPHARMACOLOGY PRESCRIBER’S
GUIDE for a maximum dosage. She further testified that she had “rarely used” a
dose for fluphenazine above 20 milligrams, repeating that the approach doctors
would use in following the treatment plan would be to start at the lowest dosage
level that might be effective and safe. On appeal, D.E.C. quotes the publicly
available FDA “label” for fluphenazine, which states, “Daily doses up to 40 mg
may be necessary; controlled clinical studies have not been performed to
demonstrate safety of prolonged administration of such doses.” D.E.C. argues that
the plan was not medically appropriate because it proposed to “make D.E.C. the
guinea pig,” but he does not support that assertion. Defense counsel at the hearing
did not ask Dr. Kercher to explain her understanding of the significance of this

31
Nos. 2024AP1789-CR
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statement regarding an absence of controlled clinical studies, leaving us with
insufficient context in which to evaluate this argument.

¶69 It would not be appropriate to overlook the forfeiture of this
fluphenazine argument. Assuming without deciding that under a reasonable
interpretation of the treatment plan, as explained by Dr. Kercher’s testimony,
D.E.C. might be subjected to “prolonged administration” (however long that might
mean to a psychiatrist) of 40 milligrams of fluphenazine, we lack a sufficient
factual basis to conclude that the absence of controlled clinical studies would
render that treatment medically inappropriate. The reasons for applying the
forfeiture rule are especially strong here. See Gruber v. Village of N. Fond du
Lac, 2003 WI App 217, ¶27, 267 Wis. 2d 368, 671 N.W.2d 692 (application of the
forfeiture rule may be especially warranted when the forfeited argument might
have been undermined by contrary evidence).

¶70 D.E.C.’s second fluphenazine-related objection is based entirely on
one passage in STAHL’S ESSENTIAL PSYCHOPHARMACOLOGY PRESCRIBER’S
GUIDE in which the authors suggest that psychiatrists might “consider” using “a
mood-stabilizing anticonvulsant” to avoid prescribing a dose of fluphenazine
“above normal dosing.” This passage was not shown to Dr. Kercher during her
testimony to give her an opportunity to explain her view. Applying the forfeiture
rule is appropriate here as well, because on its face this passage merely suggests
one approach to be considered and does not purport to describe what is medically
appropriate.

¶71 Separately, D.E.C. argues that it was not medically appropriate to
include injectable haloperidol decanoate in the treatment plan, given that D.E.C.
was antipsychotic naïve, because the FDA “label” for Haldol states that “patients

32
Nos. 2024AP1789-CR
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should be previously stabilized on antipsychotic medication before considering a
conversion to haloperidol decanoate.” Here again, D.E.C. did not pose this issue
to Dr. Kercher, and therefore we lack a proper context to consider it. Applying the
forfeiture rule is appropriate in part in light of the unambiguous and unchallenged
testimony by Dr. Kercher that doctors “always” administer injectable
antipsychotics only after an initial trial on an oral formulation.

¶72 D.E.C. also objects for the first time on appeal to one aspect of the
additional medications, specifically the inclusion of an injectable formulation of
lorazepam. This appears in the listing of “Benzodiazepine (lorazepam,
clonazepam, diazepam),” in the event of “[a]gitation/severe anxiety/insomnia,” up
to or equal to 10 milligrams within any 24-hour period orally, but injected “if
available and indicated based on response and within standard of care by peers.”
D.E.C. contends that injectable lorazepam is an antianxiety medication used
exclusively to sedate, and therefore it could not be an appropriate part of a
treatment plan for a patient with schizophrenia. D.E.C. bases this argument on a
brief quotation from an article appearing in a National Institutes of Health
publication and on the state Department of Health Services form used for purposes
of an informed consent for medication—although neither of these sources, so far
as D.E.C. suggests, addresses any aspect of the treatment of schizophrenia.

¶73 Disregarding this benzodiazepine argument as forfeited is also
appropriate here. There is virtually no end to the details from selected portions of
medical literature and regulatory references that a defendant could cobble together
in an appeal from an order for involuntary medication that might raise the
possibility of an issue with medical appropriateness, at least in the eyes of courts
who lack medical training or experience. Here, we could not reasonably reverse
the challenged order based on these isolated references now submitted by counsel,

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when neither this court nor the circuit court was able to consider contextual
evidence on this topic by Dr. Kercher or by any other qualified witness.

¶74 D.E.C. argues that the State failed to present the circuit court with
clear and convincing evidence of medical appropriateness, and that this is one
reason that he must resort on appeal to authority from outside the record. Put
differently, he contends that rejecting his medical appropriateness arguments
based on forfeiture amounts to shifting to the defense the State’s burden to prove
that the plan complies with Sell. It is true that the prosecutor here posed
surprisingly few questions to Dr. Kercher regarding the nature of the medications
and dosage ranges, and that it was only during cross examination by defense
counsel that Dr. Kercher provided her more robust explanations. We acknowledge
that it could be a risky approach for the State to use a minimalist approach on
direct examination in these cases, and the defendant does not assume the burden of
filling in gaps left by such an approach.

¶75 But we conclude that here, the totality of the evidence that the circuit
court had before it by the time of its challenged decision was, in the words of
Green, a “medically informed record.” See Green, 396 Wis. 2d 658, ¶2. The fact
that D.E.C. can now identify publicly available medical details that might have
provided additional material for cross examination does not demonstrate a
constitutional infirmity. The State’s burden did not require the prosecutor to elicit
testimony from Dr. Kercher addressing all potentially disputable aspects of the
proposed dosages in the treatment plan. Further, D.E.C. fails to support an
argument that defense counsel could not have, at the time of the hearing, used or
used more clearly the publicly available materials that he now cites; these are not
materials that have only appeared publicly since the hearing. Having said that, we

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2024AP1799-CR

also see no reason to think that doing so would have made a difference in the
outcome, given the “medically informed record” before the court.

¶76 D.E.C. briefly asserts that it is “worth noting” that the additional
medications were not discussed at the evidentiary hearing. It is true that neither
the State nor the defense asked Dr. Kercher about the additional medications. But
on its face, this grid has the apparent purpose of listing and briefly explaining
additional medications, at specified dosages, that may be used to counteract
potential, identified side effects or complications. This would appear to be
entirely in the spirit of Sell’s direction to allow court review of all medications that
might be administered. And, nothing in Dr. Kercher’s testimony indicated that the
treatment plan included any inappropriate medications. If there was anything in
the additional medications that appeared inappropriate to defense counsel,
Dr. Kercher was available to testify on that topic.

¶77 Separately, we are sincerely sympathetic to D.E.C.’s expressions of
concern on appeal about the time and efforts that criminal defense attorneys must
devote in order to mount focused challenges to the testimony of psychiatrists
involving complicated medical topics. This is only one of many areas of the law
in which much is asked of criminal defense attorneys. But we note that defense
counsel here was able to pose illuminating questions to Dr. Kercher focusing on
the issues that D.E.C. now raises on appeal. The fact that the circuit court credited
all of Dr. Kercher’s responses does not take away from the fact that D.E.C.
appeared to be ably represented at the evidentiary hearing. Further, the court did
not in any way inhibit or cut short the cross examination.

¶78 In sum on this issue, taking into account the entire record, including
both the treatment plan and the hearing testimony, the State proved by clear and

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2024AP1799-CR

convincing evidence that the order for involuntary medication is medically
appropriate.

CONCLUSION

¶79 We conclude that the circuit court did not clearly err or misapply
legal standards in determining that the department’s involuntary medication of
D.E.C., consistent with the individual treatment plan, will significantly further the
State’s interest in proceeding to trial and that it is medically appropriate.

By the Court.—Order dismissed as moot; order affirmed.

Recommended for publication in the official reports.

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