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Court of appeals affirms orders for commitment and involuntary medication under the 5th standard

Rock County v. B.A.G., 2018AP782, 7/26/18, District 4, (1-judge opinion, eligible for publication); case activity

B.A.G. challenged a court order to commit and medicate him under §51.20(1)(a)2e (the 5th standard). His main objection appears to be that being undressed outside in cold weather was insufficient evidence to commit him. The court of appeals does not articulate the challenge he lodged against the medication order. Regardless, he lost on both issues. However, the court of appeals opinion on the medication order suggests a possible defect in the statute.

A court may commit a person under the 5th standard if the county offers clear and convincing evidence of these following:

(1) the individual is mentally ill; (2) the individual is unable to make an informed choice as to whether to accept or refuse treatment because of mental illness; (3) the individual shows a substantial probability that he or she needs care or treatment to prevent further disability or deterioration, based upon his or her treatment history and recent acts or omissions; (4) the individual evidences a substantial probability that he or she will lack services necessary for health and safety if he or she is left untreated; and, (5) the individual evidences a substantial probability that he or she will suffer mental, emotional, or physical harm if left untreated, resulting in the loss of either the individual’s ability to function independently in the community or the individual’s cognitive or volitional control over any thoughts or actions. Opinion ¶14.

The record is confidential, so B.A.G’s precise argument against commitment is unknown. He seems to argue that being outside in the winter rambling with his pants down is not enough to satisfy points (3) or (5) above. He also seems to argue that he was never in “imminent danger” and that he displayed the ability to go to a shelter for housing and food. The court of appeals ruled against him because the record contained evidence that he was disoriented,  couldn’t determine how to get home, had been recently hospitalized twice after making threats of violence against other members of his group home, and kept stopping his meds. Opinion ¶32. It further held that the 5th standard does not have an “imminent danger” requirement. Id. ¶33.  And it held that the fact that a mentally ill person can get food and housing from a homeless shelter is not proof that he can get care and treatment in the community. Id. ¶30.

About imminent dangerouness, State v. Dennis H., 2002 WI 104, ¶37, 255 Wis. 2d 359, 647 N.W.2d 851 indeed holds that the government does not have to prove imminent dangerousness to self or others in order to get a commitment.  On the other hand, Abrahamson’s concurrence asserts that the government must prove both “mental illness and imminent dangerousness to self or others.” Id., ¶48 (emphasis supplied).

Regarding the medication order, the court of appeals upheld it simply because “pursuant to WIS. STAT.§ 51.61(1)(g)3m., “following a final commitment order” under the fifth standard,“the court shall issue an order permitting medication or treatment to be administered to the individual regardless of his or her consent.” Opinion ¶37.

Chapter 51 is designed so that commitment standards are listed in §51.20(1)(a)2 and medication standards are listed in §51.61(1)(g). People committed under §51.20(1)(a)2.a through d still have the right to refuse all medication or treatment unless it is necessary to prevent serious physical harm to the patient or others. §51.61(1)(g)1. But people committed under the 5th standard automatically get involuntary medication just based on the commitment standard. This doesn’t seem fair because the plain language of the 5th standard refers only to “mental, emotional, or physical harm.” It does not require “serious mental, emotional or physical harm,” so it is easier to administer involuntary medication to people committed under this standard. Dennis H. does not address this “serious” discrepancy.

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