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Tuberculosis Treatment Commitment, § 252.07 – Generally

City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU

Issue/Holding:

¶3 We conclude that Wis. Stat. § 252.07(9)(a) authorizes confinement to a jail for a person with noninfectious tuberculosis who is at a high risk of developing infectious tuberculosis and fails to comply with a prescribed treatment regimen, provided the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement. We further conclude that a circuit court may take into account the cost of placement options when determining the place of confinement under § 252.07(9), but only after determining that two or more placement options fulfill the statutory requirements of proper medical treatment and disease prevention, and that none of these options is significantly less restrictive than the other(s). Technically, the supreme court has “affirmed” the court of appeals, because it has upheld the mandate of commitment. However, the supreme court effectively overruled the lower court in two crucial ways: the place and not merely fact of confinement must be the least restrictive alternative, ¶48; and, remedial contempt did not support Washington’s confinement, ¶68.

Technically, the supreme court has “affirmed” the court of appeals, because it has upheld the mandate of commitment. However, the supreme court effectively overruled the lower court in two crucial ways: the place and not merely fact of confinement must be the least restrictive alternative, ¶48; and, remedial contempt did not support Washington’s confinement, ¶68. Note, as well, not least because the court takes pains to stress it, that TB confinement procedure covers not only those with infectious TB but those who are non-infectious but at high-risk to become infectious, ¶30 n. 10. More: though the court declines to rule on whether “persons with infectious or suspect tuberculosis” may be confined to jail, ¶33 n. 14, the court goes on to all but rule to the contrary, ¶40 n. 18 [“For persons with infectious tuberculosis or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement under Wis. Stat. § 252.07(9)(a) because such a placement would almost certainly increase, not prevent, the risk of transmission of the disease”].

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