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SCOW: Not all transfers of patients to more restrictive settings are subject to review within 10 days under § 51.35(1)(e)

Manitowoc County v. Samuel J.H., 2013 WI 68, on certification from court of appeals; majority opinion by Justice Ziegler; case activity

Transfer of a person committed under ch. 51 to a more restrictive setting within an inpatient placement, or from outpatient to inpatient placement, is subject to § 51.35(1). The statute recognizes two different bases for transfer: reasonable medical or clinical judgment; or violation of treatment conditions by the patient. In Fond du Lac County v. Elizabeth M.P., 2003 WI App 232, ¶¶26, 28, 267 Wis. 2d 739, 672 N.W.2d 88, the court of appeals suggested § 51.35(1)(e) mandated a review hearing within 10 days for all transferred patients, regardless of the basis for the transfer. Other parts of the decision, however, say the statute provides different review procedures that vary based on the reason for the transfer. Id., ¶¶17-19.

Samuel was transferred from outpatient to inpatient status for medical reasons, but the transfer wasn’t reviewed within 10 days. (¶6). He complained to the circuit court, which held a hearing to review the transfer some two-and-a-half months after it happened. (¶¶8-13). The circuit court concluded that the plain language of § 51.35(1)(e) did not require a hearing within 10 days for patients transferred for medical reasons. (¶¶14-15). The supreme court agrees:

¶19  We hold that Wis. Stat. § 51.35(1)(e) does not require a hearing to be conducted within ten days of a transfer when the transfer is based on reasonable medical and clinical judgment under§ 51.35(1)(e)1. We withdraw any language from Elizabeth M.P. to the contrary. We further hold that a hearing must be conducted within ten days of a transfer when (1) the transfer “results in a greater restriction of personal freedom for the patient for a period of more than 5 days” or is “from outpatient to inpatient status for a period of more than 5 days” and (2) the transfer is based on “an alleged violation of a condition of a transfer to less restrictive treatment” under § 51.35(1)(e)2.-3.

Applying the plain language of § 51.35(1)(e) to this case, Samuel was not entitled to a hearing within ten days of his transfer because his transfer was based on reasonable medical and clinical judgment, not a violation of a treatment condition. (¶33).

Chief Justice Abrahamson concurs in the result. She would not “turn back the clock” to give Samuel a 10-day hearing at this late date, given his transfer was judicially reviewed, but she disagrees with the majority’s reading of the statute. “A reasonable and harmonious reading of §§ 51.35 and 51.60 leads to the conclusion that all patients with outpatient status transferred to inpatient status are referred to counsel and granted a hearing within ten days to determine whether the form of treatment resulting from the transfer is the least restrictive alternative and consistent with the treatment needs of the patient.” (¶52).

After Samuel’s case Manitowoc County started reviewing all transfers within 10 days, despite the circuit court’s ruling, an approach the majority says “may be the better practice” even if it’s not mandatory. (¶33 n.7). Better practice or not, this decision allows counties reviewing all transfers within 10 days to change their practice and afford that procedure only to patients transferred for violating treatment conditions.

And just what procedure is available for a person transferred for medical reasons? Under § 51.35(1)(e)1. the department to which the patient has been committed must inform the patient orally and in writing of “his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, and the right to petition a court in the county in which the patient is located or the committing court for a review of the transfer.” The difference, of course, is that a patient transferred for violating treatment conditions doesn’t have to petition to get a review hearing; instead, § 51.35(1)(e)3. makes the 10-day hearing mandatory. Note, though, that the 10-day review hearing need not be conducted before a judge; the statute permits review by “a hearing officer designated by the director of the facility to which the patient has been transferred.” In cases where review is by a “hearing officer,” even a  patient transferred for violating treatment conditions will have to petition the court to assure review by a judge.

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