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Mental commitment under § 51.20 — authority to place a person committed to outpatient treatment in a group home

Polk County DHS v. Boe H., 2012AP2612, District 3, 5/7/13; court of appeals decision (1-judge, ineligible for publication); case activity

While the circuit court lacked authority to specify that a person committed to outpatient treatment remain in a group home as a condition of the commitment order (¶14), the county department had the authority to place the person in a group home because that placement does not change the nature of his treatment from “outpatient” to “inpatient”:

¶16      Wisconsin Stat. § 51.01(17) defines “treatment” as “those psychological, educational, social, chemical, medical or somatic techniques designed to bring about rehabilitation of a mentally ill … person.”  “Outpatient” and “inpatient” are not defined in § 51.01.  However, Webster’s Third New International Dictionary 1603 (unabr. 1993), defines “outpatient” as “a patient who is not an inmate of a hospital but receives diagnosis or treatment in a clinic or dispensary connected with the hospital – distinguished from inpatient.”  “Inpatient” is defined as “a patient in a hospital or infirmary who receives lodging and food as well as treatment – distinguished from outpatient.”  Id. at 1167.  Based on these definitions, the difference between outpatient and inpatient turns on whether the patient receives treatment in a hospital setting.  See id. at 1167, 1603.

¶17      We conclude Boe is not receiving inpatient treatment in the group home and he continues to be treated on an outpatient basis. Boe’s group home is a community-based residential facility, not a hospital or inpatient facility.  See Wis. Stat. §§ 51.01(9), (10)…. Because the group home is not a hospital or inpatient facility, any services offered at the group home do not constitute inpatient treatment.  Further, the outpatient treatment Boe receives from off-site providers is not changed to inpatient treatment by virtue of his residence in the group home.

Nor does placement in the group home amount only to “habilitation,” which is not authorized by § 51.20, Milwaukee Cnty. Combined Cmty. Servs. Bd. v. Athans, 107 Wis. 2d 331, 336-37, 320 N.W.2d 30 (Ct. App. 1982), because it serves to rehabilitate: “The purpose of Boe’s placement in the group home is to stabilize him on his medication so that he may be further transitioned back into the community” and it “ameliorates his delusions through further medical stabilization, allows him to receive psychiatric treatment on an outpatient basis, and gives him the freedom to interact in the community.” (¶19).

Finally, the fact Boe is committed as an outpatient only to the “care” of the department, and not its “care and custody,” § 51.20(13)(a)3., doesn’t prohibit the placement because it does not amount to “custody”:

¶21      Although the Department lacks “custody” of Boe and therefore cannot place him in an inpatient facility, see Wis. Stat. § 51.20(13)(a), the Department’s community-based placement is a far cry from an involuntary hospital admission.  At the group home, Boe retains the freedom to do what he wishes.  Although he needs permission to leave and must follow the home’s rules, Boe’s case manager testified at the extension hearing that Boe is allowed to come and go from the group home and does in fact leave for visits with his family. …

The court is clearly deferring to the judgment of the treatment providers as to which programs and placements best advance outpatient treatment, but what are the limits, if any, to that deference? For example, while Boe’s placement is “a far cry” from a hospital admission, does that mean a placement in a facility that is more restrictive than Boe’s could constitute unauthorized inpatient placement or “custody”? If so, at what point does the placement change from outpatient to inpatient or to “custody”? Would it matter, for instance, that the placement was meant, like Boe’s, to “transition” him to the community, but the patient’s been there for years and the transition never happens? Or is the court drawing a bright line in ¶¶16-17 and saying that only a hospital placement amounts to inpatient placement or “custody,” so that virtually any other placement is authorized? The decision isn’t clear on these issues, though in defense of the court, neither is § 51.20. These questions will have to be litigated case-by-case based on the particular facts of the placement.

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