Rob Wipold, a Canadian author, recently wrote an article about Elizabeth Rich’s work to reform mental health law and to represent people like Andrew whose civil liberties are being taken away due to unfair application of antiquated mental health laws. You can read the article here: https://www.madinamerica.com/2022/09/attorney-rich-unjust-commitments/ Rob has written a book that will be released in January 2023: “Your Consent is Not Required: The Rise in Psychiatric Detentions, Forced Treatment, and Abusive Guardianships.”
We received some good news from the Wisconsin Supreme Court when it decided Sauk County v. S.A.M., a case that Elizabeth Rich argued before the Court on February 28. In a 4-3 decision on June 23, 2022, the Supreme Court reversed the Court of Appeals’ dismissal of S.A.M.’s appeal of his involuntary commitment as moot.
For decades, Wisconsin appellate courts have dismissed most appeals from expired involuntary commitment orders as moot. That means that many people were denied their constitutional and statutory right to appeal orders committing them to government custody and medicating them against their will. The Court now holds that such appeals are not moot because they carry collateral consequences–gun bans and financial liability for the cost of “care”–that persist beyond the expiration of the commitment.
The decision was a great victory on the mootness issue; however, the Court rejected S.A.M.’s argument that his recommitment should be vacated on due process and sufficiency of the evidence grounds.
In Wisconsin, in order to commit a person involuntarily, the County must prove that the person is (i) mentally ill; (ii) treatable; and (iii) dangerous. There are five standards of dangerousness. S.A.M. had argued that due process requires that the County give him notice of which of the five standards of dangerousness it is alleging apply to him. Without that notice, preparation of a defense is very difficult. Defense counsel needs to develop a strategy, select defense witnesses, and cross examine the County’s witnesses, all with the objective of disproving dangerous.
The Court construed this argument to be that S.A.M.’s argument rested solely on another case, Langlade County v. D.J.W. That case was decided after S.A.M.’s hearing, so it did not apply. The silver lining here is that the Court did not foreclose the argument that a person undergoing recommitment has a due process right to notice of the dangerousness standard that the County is proceeding under. We will continue the fight on that issue.
The Court also rejected S.A.M.’s challenge to the sufficiency of the evidence. In the past, before his commitment, S.A.M. had threatened self-harm (while drinking to excess) and failed to take his medications. There had been no significant issues during his commitment, but a doctor testified that “past actions are the best indicators of future actions,” and the Court found this good enough. We disagree. We will continue to challenge commitments based on thin evidence such as this.
As we have written previously, Wisconsin commits more people to involuntary commitment and forced drugging per capita than any state in the nation. There are many reasons for this, but the State’s penchant for allowing commitments based on flimsy evidence, as in S.A.M.’s case, is certainly one of them.
Bruce Vielmetti of the Milwaukee Journal Sentinel wrote an excellent article about the case, which you can find here: https://www.jsonline.com/story/news/2022/06/28/appeals-involuntary-commitments-wisconsin-might-soon-move-faster/7710178001/
Most psychiatrists today look to their “Bible” when diagnosing people they think are “mentally ill.” That Bible is the DSM-5, short for Diagnostic and Statistical Manual, 5th Edition. The DSM-5 lists nearly 300 “disorders.” These include internet addiction, gender “incongruence” disorder (formerly called gender identity disorder in the DSM-4), childhood mood swing disorder, and hypersexual disorder, all of which are arguably just part of being a human. Children are diagnosed with ADHD because they have trouble sitting still and paying attention. Is this really abnormal? Mainstream science is finally starting to question this. See this article: Allsopp, K., Read, J., Corcoran, R., & Kinderman, P. (2019). Heterogeneity in psychiatric diagnostic classiﬁcation. Psychiatry Research, 279, 15-22. https://doi.org/10.1016/j.psychres.2019.07.005 ↩”This paper comes to the arguably alarming conclusion that the DSM is not only conceptually problematic but ‘scientifically meaningless.’ The very fact that there is considerable overlap between disorders and that two people can (so the DSM says) have the same disorder but share none of the same symptoms, it is argued, contradicts the very purpose and relevance of a system that was based on discerning ‘discrete disorders.’ And it must be noted that Allsopp et al’s paper is not a theoretical paper in a psychotherapy journal, but a study in a psychiatry journal.” See https://www.madinamerica.com/2019/09/dsm-problems-mask-dark-reality/ The 297 disorders include, for example, “oppositional disorder.” That means a teenager rebelling against his parents. Um, isn’t that what teenagers do? Or misophonia–a reaction to sounds like snapping gum or dripping water. I guess I have that one–I dislike the sound of snapping gum. My late husband, a plumber, could not stand the sound of dripping or running water. I wanted to set up a Buddhist-like fountain in the backyard, and he said, “I can’t live with that. When I hear running water, I hear a problem I have to deal with.” Are these disorders? I would say no. Of major concern to me, as one who has lost my husband, son, and father, is the elimination of the “bereavement exclusion” which existed in the DSM-4. Now, apparently, we have a specifically allowed time to grieve the death of our loved ones. If we don’t “snap out of it,” we need to take antidepressants. This is an example of how over the top we have come in our need to label normal human reactions as “disorders.” PTSD is another one. I would call it PTS, without the D. Because it’s a normal human response to trauma. We need to completely re-think our approach to this non-scientific, non-evidence-based approach that too often forces unwanted and unnecessary “care” on people exhibiting normal behavior.
Elizabeth Rich, President of Andrew’s V.O.I.C.E., is preparing for oral argument before the Wisconsin Supreme Court in an important case raising constitutional issues in involuntary civil commitments.
The case will be argued at 9:45 A.M. on February 28, 2022. You can find the oral argument schedule here: https://www.wicourts.gov/supreme/sc_oralargs.jsp You can watch and listen to the argument for free in real time on the Supreme Court’s website here: https://www.wicourts.gov/opinions/soralarguments.htm; or for a paid subscription to WisconsinEye ($7.99 per month), you can listen any time during or after the argument here: https://wiseye.org/schedule/.
The issues for review are: (1) Whether SAM’s appeal from his recommitment is moot because it expired before SAM filed his notice of appeal; (2) Whether the county failed to meet its burden of proving dangerousness by clear and convincing evidence; and (3) Whether SAM was denied procedural due process because the county failed to provide particularized notice of the basis for his recommitment, including which standard of dangerousness was being alleged. Additionally, the court asked the parties to address how the Supreme Court might use its statutory and constitutional powers to address the persistent problem of involuntary commitment proceedings being dismissed as moot because the commitments–through no fault of the respondents–expire before the respondents are able to exercise their statutory and constitutional rights to appeal them.
These constitutional issues are BIG. Mootness in mental health cases has become a pressing problem in Wisconsin. All agree that involuntary civil commitment represents a massive curtailment of liberty; yet Wisconsin appellate courts continue to dismiss as moot appeals of commitments that have expired before decisions are rendered. If that is a correct application of the mootness doctrine, then a startling 100% of appeals of initial commitments would be dismissed as moot. And 50-60% of recommitment appeals are subject to dismissal for mootness because the recommitments expired before appeals could be filed. These appellants will be denied their constitutional and statutory right to appeal their involuntary commitments, all due to the application of a doctrine of judicial economy.
SAM also argues that he was denied procedural due process because he did not receive particularized notice of the basis for his recommitment. The County must prove a person is dangerous in order to support an involuntary commitment or a recommitment. Wisconsin statute §51.20(1)(a)(2)a-e sets out five standards of dangerousness. In addition, there is a “recommitment” standard set forth at Wis. Stat. §51.20(1)(a)(2)(am), which provides that dangerousness can be proven if, based on a person’s treatment record, there is a substantial likelihood that the person would be a proper subject for commitment if treatment were withdrawn. As noted in a previous post, however, the County cannot rely upon this provision alone; it must still prove current dangerousness in order to recommitment the individual.
What happens routinely, and what happened to SAM, is that the hearing proceeds with no notice of what standard of dangerousness is being alleged. This is problematic because defense counsel cannot adequately prepare a defense without this information. Particularized notice lets defense counsel know what claim must be refuted at the recommitment hearing. Without treatment, will the client become suicidal, homicidal, unable to care for himself or access community services, all of the above, or something else? Particularized notice also helps the circuit court to prepare for objections, draft jury instructions, and assess the sufficiency of the evidence.
Currently, respondents to involuntary commitments in Wisconsin face a moving target when defending against the government’s deprivation of their civil liberties. SAM proposes that basic principles of due process require that respondents be given notice of why the proposed deprivation is occurring; and that they not be deprived of their right to appeal based on delays over which they have no control.
On April 24, 2020, the Wisconsin Supreme Court issued an important decision interpreting Chapter 51, which is the Wisconsin statute governing involuntary civil commitment. The case is Langlade County v. D.J.W., 2020 WI 41. You can read the full decision here: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=258827 If you want to skip the blog post and just get to the conclusion, here it is. For more than twenty years, Wisconsin counties seeking a recommitment did not need to prove that a person was dangerous under one of the five standards of dangerousness set forth in Wis. Stat. §51.20(1)(a)(2). Instead, they just called a doctor to testify that if treatment were withdrawn, the person would likely need to be recommitted. Boom, twelve more months of involuntary commitment. Not any more. Now, counties are to specify how the person is currently dangerous, and circuit courts “are to make specific factual findings with reference to the subdivision paragraph of §51.20(1)(a)2 on which the recommitment is based.” This is a big deal! Read on to learn more.
Let’s start with this: Wisconsin’s involuntary commitment rate is higher than any other state in the nation–BY A LOT. According to a report for the Substance Abuse and Mental Health Services (SAMHSA), the annual commitment rate among states ranges from 0.23 to 43.8 per 1,000 adults diagnosed with serious mental illness. The average is 9.4 per 1,000, with Wisconsin the highest at 43.8. Here is a link to the study: https://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=258827 The SAMHSA study cites to the NRI state surveys survey, available at http://www.nri-inc.org/. That study shows that Wisconsin has, by far, the highest number of civil commitments in the nation. The data is from 2015, which is the most recent available. But it shows Wisconsin reporting 10,563 involuntary civil commitments! The next highest number is 5,090 in Kentucky. Most states report a few thousand, a few hundred, or less. Are we really the craziest state in the nation? Or is something else going on?
We have seen evolving–or perhaps, more accurately, devolving–standards for dangerousness as a criterion for involuntary civil commitment over the past 20 years. In 1972, Wisconsin led the nation with the Lessard v. Schmidt case and its requirement of imminent dangerousness for involuntary civil commitment. By the end of the 1970’s, nearly every state had revised its commitment statutes to conform to the civil liberty principles articulated in Lessard.
Enter Wisconsin psychiatrist Darryl Treffert. Treffert famously authored a letter, “Dying with Their Rights On,” which was published in 1973 by the American Journal of Psychiatry. Catchy, right? Catch on it did. Treffert offered anecdotal evidence that respecting civil liberties of people diagnosed with mental illness would have bad results.
Treffert’s arguments started to take hold about 20-30 years ago, when groups like the Treatment Advocacy Center began advocating for what is euphemistically called “Assisted Outpatient Treatment (“AOT”). It sounds so helpful, doesn’t it? But what that really means is involuntary treatment and forced drugging. Robert Whittaker and Michael Simonson authored an excellent article on this topic which featured Andrew’s story on the Mad in America website. You can read it here: https://www.madinamerica.com/2019/07/twenty-years-kendras-law-case-aot/
Wisconsin fell in line with other states that bought into the idea that we had to close the “revolving door” for people who had a long history of diagnosed mental illness and who cycled in and out of treatment. In 1983, Wisconsin adopted its version of the AOT law. You can find it at Wis. Stat. §51.20(1)(am). The law allowed the government to work around establishing that a person it sought to recommit was dangerous: it had only to show that, if treatment were withdrawn, the person would become the proper subject of commitment. What most Wisconsin counties would do is put on a doctor to testify about past incidents–sometimes years before the recommitment hearing–and then conclude that if treatment were withdrawn, the person would stop medication and /or decompensate.
That’s what happened to Andrew at his recommitment hearings. How could he prove a negative? Doesn’t that impermissibly shift the County’s burden of proof to the respondent? And by the way, Andrew was not a “revolving door” mental patient. He had no history of mental illness, and before the single incident that caused all the excitement, he had never had what is labeled a psychotic episode or any kind of mental health hospitalization. At Andrew’s hearing, we testified that, two and one-half years after the initial commitment, he was steadily employed, getting raises and promotions. He was living independently and taking good care of his duplex and yard. He was engaged with family, enjoying family Sunday dinners, and interacting with friends. He had his own health insurance, and his family would provide help and support as needed. Yet the County would not let go of him. Why not? We may never know the answer. (But I am looking. Following the money is usually a good place to start. Excessive deference to medical experts, and how the doctors are compensated for their role in all of this is a topic for another blog post.)
Back to D.J.W. When testifying at his recommitment hearing, he said he was the Messiah and had been sent to find a way to stop global warming. (Hardly a dangerous goal.) Two doctors testified that he had schizophrenia and was delusional. (Might be true; not enough to show dangerousness.) Records that one of the doctors reviewed indicated that once in the past, D.J.W. had held a knife and stood in the doorway to his mother’s room. (Not imminent; not enough to show dangerousness.) The doctors agreed that he had not exhibited harmful or threatening behavior to himself or others while under his commitment. They also agreed, however, that there was a substantial likelihood that he would become a proper subject for treatment if treatment were withdrawn.
On appeal, D.J.W. argued that the County had failed to prove that he was dangerous. But according to the court of appeals, the County is not required to offer evidence of threatening or violent behavior. Nor is it required to offer proof of recent overt threats or violent behavior to support a recommitment order. It just has to show that if treatment were withdrawn, there is a substantial likelihood, based upon the individual’s treatment record, that he would become “a proper subject for treatment.” This is a correct summary of Wisconsin’s recommitment statute, but like the statute itself, this reasoning is circular. After an initial commitment, a person can undergo endless recommitments based solely on the fact scenario that led to the initial commitment. It ignores the possibility that a person might recover from diagnosed mental illness, or that he might enter remission and be able to return to the community without forced treatment.
That’s exactly what happened to Andrew. He had two recommitment hearings. Both times, the doctor simply parroted what had been the basis for the initial commitment. There was absolutely no evidence that Andrew was dangerous to himself or others in the years since. He lost hope that he’d ever be free again. And he had good reason for his fear. Endless recommitments are the rule, rather than the exception, in Wisconsin. In one case, a woman was recommitted for the 26th time! https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=252216 Or this case, where a man has been recommitted more than 35 times. https://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=107481
Did you notice the infinity symbol in the image at the top of this post? The infinite loop is the perfect symbol for Wisconsin’s system of endless recommitments. Such a system undermines the purpose of a Chapter 51 commitment, which is supposed to provide treatment that will help someone diagnosed with mental illness improve. Someone who will never improve–such as a person who is cognitively disabled, or someone with dementia–is not a proper subject of a Chapter 51 commitment. Chapter 51 is designed to rehabilitate a person through short-term commitments with the goal of returning the person to society, whereas Chapter 55 is designed for long term commitments. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶¶13, 25, 340 Wis. 2d 500, 814 N.W.2d 179. Wisconsin’s infinite loop approach to Chapter 51 commitments–committing a person annually for 25 or 35 years–clearly violates the letter and the spirit of this rule of law.
The D.J.W. case is important in that going forward, the government must identify precisely which of the five standards of dangerousness apply to the person it is seeking to recommit. That is an improvement over past practice, which ran roughshod over civil liberties and led to Wisconsin’s dubious distinction of having far more people on involuntary commitments than any other state in the nation. But it does not go far enough. Wisconsin’s recommitment statute is unconstitutional. The United States Supreme Court has held that the government cannot commit a person just because he is mentally ill. He has to be dangerous and incapable of living in the community with the support of family or friends. Even if a person’s commitment was initially permissible, it cannot constitutionally continue if its basis no longer exists. O’Connor v. Donaldson, 422 U.S. 563, 575 (1975). We will keep coming at the Legislature to amend this unfair statute, and at the courts to hold it unconstitutional.
On October 23, 2019, Senator John Cornyn (R-TX) announced the introduction of the Restoring, Enhancing, Strengthening and Promoting Our Nation’s Safety Efforts (RESPONSE) Act. His efforts come in the wake of two Texas mass shootings in El Paso and Midland-Odessa. When horrible tragedies happen, it’s human nature to want to do something–anything–to prevent future harm. After 9-11, for example, we got the Patriot Act. Like the Patriot Act, however, the RESPONSE Act will not accomplish its intended goal. And also like the Patriot Act, the RESPONSE Act will impose severe and unnecessary restrictions on the civil liberties of people alleged to be mentally ill.
The RESPONSE Act is based upon tired, soundly debunked theories that there is a link between mass violence and psychiatric disability. See this article https://bigthink.com/politics-current-affairs/gun-violence-mental-illness, in which the American Psychiatric Association says blaming mental illness for gun violence is “simplistic” and inaccurate.” As noted in the article, countless studies have found that there is no conclusive evidence that marks the mentally ill with having a greater predisposition for gun violence. Nonetheless, based on the erroneous assumption to the contrary, the Act would expand involuntary mental health treatment, including long-acting injectable antipsychotic drugs.
As noted by the author of this article, http://theconversation.com/guns-and-mental-illness-a-psychiatrist-explains-the-complexities-121480, we need to think carefully about what we label as “mental illness.” The Act does not define mental illness. Should we take guns away from veterans with PTSD? From dentists with depression? From people with OCD who pick at their skin? Even if we limit the definition to “serious” mental illnesses, conventionally used as a term for people diagnosed with schizophrenia and bipolar disorder, only 3-4% of violent acts are committed by people with that label.
It’s no surprise that the proposed legislation is largely silent on the issue of gun control. Sen. Cornyn is highly ranked by the National Rifle Association (NRA) for his long-standing opposition to gun control legislation (such as expanding background checks for gun buyers). The NRA is a significant contributor to Sen. Cornyn’s campaign funds, to the tune of about $200,000 in donations. And he is up for reelection next year.
Politically motivated legislation such as this will do nothing to address gun violence in the U.S. Instead, it will fuel prejudice, fear, and marginalization of people with mental health issues. We know that gun violence is not a mental health issue. This bill is not the answer to gun violence.
I’ve linked to an article below about how a now-fired police officer hand-cuffed two six-year-olds, in separate incidents, and hauled them off to jail to be booked, complete with mug shots and fingerprinting. Um, what??? This treatment of first graders acting out at school in the form of temper tantrums is astoundingly inappropriate–yet not uncommon.
We have come to a place where law enforcement, in the interest of “public safety,” is handcuffing and otherwise restraining and traumatizing vast numbers of our vulnerable and marginalized populations: children, the homeless, the emotionally sensitive, and those diagnosed with mental illness. This must stop.
When I go to court to represent a person subject to involuntary civil commitment proceedings, they are often restrained not just with handcuffs, but belly chains and ankle shackles. They are treated not only as criminals, but as the most dangerous sort of lawbreakers–someone who might savagely attack anyone in the courtroom if they were not nearly immobilized by chains.
This, to me, shocks the conscience in its ignorance and cruelty. In any courtroom, there is at least one fully-armed bailiff; usually more than one. In addition, the individual who is the subject of the involuntary commitment is escorted from the lockdown inpatient or other facility by at least one armed “transport” official. So, at a minimum, there are two fully armed officers ready and able to control any unexpected dangerous outburst. But those outbursts, in my experience, don’t happen. The unsubstantiated notion that people diagnosed with mental illness are somehow dangerous lunatics is based in fear, not in well-documented science. Fear-based control is never rational, and always a threat to civil liberties.
Being handcuffed and restrained is an affront to human dignity. It is a humiliating, painful, degrading experience. It is especially damaging to sensitive, emotional people, who are most likely to be diagnosed with mental illness. Police and sheriff’s departments who mandate this treatment on a routine basis, with no CIT or other assessment of whether it is necessary, need to re-evaluate their unnecessary, inhumane and, in some states, unlawful policies.
We understand the quandary of law enforcement in dealing with people in emotional crisis. Officers responding to a mental health call have to balance criminal law, patient rights, patient safety, their own safety, the safety of the patient’s family members. Obviously, police usually aren’t the best people for the job. We need to stop sending law enforcement, especially officers untrained in how to deal with people in emotional crisis, to handle these situations.
This should be seen as an evolving cultural decency standard regarding coercion and punishment, similar to what has happened across the country regarding the practice of shackling pregnant women who are giving birth while incarcerated. See Hall et al., “Pregnant Women and the Use of Corrections Restraints and Substance Use Commitment,” Journal of the American Academy of Psychiatry and the Law, September, 2015, 43 (3) 359-368.
And we should stop it. #wecanandmustdobetter
We are exhibiting at the NARPA (National Association for Rights Protection and Advocacy) Conference this weekend in Hartford, CT. Lots of great seminars here, including William Brooks, J.D. on “Enforcing Rights Against Forced Treatment Through Damages Actions;” Susan Stefan, J.D., “Everything You Ever Wanted to Know about EMTLA;” Lee Coleman, M.D., “Better Education of Attorneys and Investigators Resisting Psychiatric Oppression;” Julie Zito, Ph.D., “Combating Five Myths on Psychotropic Medication Treatments;” Aaryce Hayes, M.S.W., “How to Review Investigations of Seclusions and Restraints;” Ron Bassman et al., “Building Community to Combat Forced Treatment and Rights Violations.” Lots to learn here. And it’s a great opportunity to build our network of attorneys, experts, volunteers and other contributors.
Here’s a fascinating read from January 2018. A psychiatrist writes that one of his patients threatened to jump off a bridge if the doctor prescribed a particular psychotropic medication to him. At first, the doctor took the same patronizing attitude that I’ve observed many adopt with my clients. The doctor asked the patient which side effects were bothering him. The patient gave a typical list. The listed side effects aren’t enumerated in the article, but I am guessing they were similar to what my son Andrew complained of: lethargy, difficulty concentrating, inability to read a book, occasional slurred speech. The doctor gave the stock response: What has a greater negative impact on your life–those side effects, or another manic episode?
But then, the doctor did something I’ve never heard of. He took the meds himself. He journaled, every 30 minutes, about the effects he was experiencing for the next 24 hours. It’s a must-read, especially for anyone who believes forced drugging of people is OK because “it’s for their own good.” Maybe every doctor should be required to take a dose of these meds. Only then can they make a reasonable determination that these known side effects are no big deal.
This article tells of how the Cedar Rapids police are starting to use crisis intervention instead of traditional escalation of force in mental health cases. That’s…better than nothing. But really, law enforcement has no place in dealing with a person in a psychotic state. They don’t have the training to de-escalate the situation, and too often it ends with the death of the person in crisis. Using non-violent de-escalation techniques is more time-consuming. It’s also more humane, and there really is no excuse for not doing it. It’s like corporal punishment for children. It’s certainly easier, and more efficient, to beat them into submission. But it’s inhumane and barbaric to do so.
Here’s a recent story from Madison, Wisconsin, where police used traditional brute force to subdue a non-violent, black 17-year-old. The teenager was on an involuntary civil commitment. Such commitments have “treatment conditions” that require the individual to keep appointments with doctors, submit to regular urine screens (to confirm that prescribed medications are being taken and that non-prescribed drugs are not), and other restrictions. If treatment providers allege that the conditions are not being complied with, the standard response is not to pick up the phone and ask the person to reschedule the missed appointment or otherwise address the concern. Rather, the police are called. They show up with flashing red lights. They bang on the door, then handcuff the person (who has not committed a crime), throw them into the squad car and haul them to a locked inpatient facility. In the Madison case, the police took the extra steps of throwing the child against a wall and punching him before they hauled him off. I’m also attaching video footage taken from the home security system showing this brutality. This shameful mistreatment must stop. https://madison.com/ct/news/local/govt-and-politics/extraordinarily-disappointing-madison-police-union-calls-out-rhodes-conway-over/article_d36b270d-b3c6-545c-8aaf-45225749f7c5.html?utm_source=dlvr.it&utm_medium=facebook
Edit: At some time after I posted this, the home video footage showing the brutal attack on the teenager was taken down. I don’t know who was responsible, but I am disappointed that the video is not available to expose the mistreatment of the teen.