Important New Wisconsin Supreme Court Case

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 Instead, they just called a doctor to testify that if treatment were withdrawn, the person would likely need to be recommitted.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.

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