In Outagamie County v. L.X.D.-O., 2023 WI App 17, ¶36, 407 Wis. 2d 518, 991 N.W.2d 518 (PFR denied), the court of appeals rejected a sufficiency challenge to an involuntary medication order and held that an examiner’s report need not be entered into evidence in order for the circuit court to consider the information contained therein. Now, the court extends L.X.D.-O. to an initial commitment order itself under the same rationale. Opinion, ¶20 n.6.
While disagreeing with P.J.L.’s (“Paul”) challenge to the sufficiency of the evidence to support his 6-month inpatient commitment, the court offers a familiar refrain: “To be sure, the County could have done a more thorough job presenting evidence at the hearing that would have established a stronger link betweek Paul’s behavior and the second standard.” Id. The court expresses agreement with our supreme court’s and its own reminders that “counsel who handle involuntary commitment proceedings of the need to make a detailed and thorough record given the significant infringement on a person’s constitutionally-protected liberty interest that involuntary commitment can impose.” Id., ¶21 (citing Marathon County v. D.K., 2020 WI 8, ¶55, 390 Wis. 2d 50, 937 N.W.2d 901; Winnebago Cnty. Dep’t of Human Servs. v. L.J.F.G., No. 2022AP1589, unpublished slip op. ¶16 n.3 (WI App April 12, 2023)).
As relevant here, two psychiatrists were appointed to examine Paul. Dr. Bales’ report noted that Paul “declined to participate” in the examination and that relied on records from WMHI, including records related to Paul’s emergency detention, a police report, and information gathered from WMHI staff members. Dr. Bales reported that Paul was dangerous under the third standard because he had been threatening and scaring other patients, including urinating on the floor while claiming he was “marking his territory.” Op., ¶6.
At the final hearing, Dr. Bales was the county’s only witness and he testified to being present when Paul arrived at WMHI and to personally being in fear for his own safety. Dr. Bales testified that Paul, while not suicidal was dangerous under the third standard because Paul had previously cut himself. Op., ¶¶6, 10.
The circuit court found Paul dangerous under the second standard. Faced with limited, conclusory, and contradictory testimony, the court of appeals relies on Dr. Bales’ report, and Dr. Bales’ personal observations to hold that Paul evidenced a “substantial probability of physical harm to other individuals.” Op., ¶19.
As we’ve already noted, there are numerous problems with the court of appeals’ effort to distinguish D.J.W. on the issue of whether reports filed with the court are automatically admissible evidence with regard to sufficiency of the evidence challenges. While L.X.D.-O.’s petition for review was denied, hopefully the fact that the court has now extended L.X.D.-O.’s rationale to an initial commitment order forces the supreme court to consider the issue sooner rather than later.