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COA attempts to clarify Chapter 51 recommitment standard

Winnebago County v. S.H., 2020 WI App 46; case activity

The court of appeals rarely publishes opinions in “fast track” cases. It took that unusual step here. The opinion strives to show the type of evidence that is sufficient for a recommitment even though the mentally ill person has taken all of her medication and has maintained stable housing and employment for two years.

Dr. Vicente, the only witness at Sarah’s recommitment hearing, diagnosed her with schizophrenia and opined that if treatment were withdrawn she would become the proper subject of commitment. He did so based upon records indicating that in the past when she was off commitment she stopped medication, which led to another commitment. He also testified that since 2017 he had observed no “paranoid ideation” in her except for one instance in July 2018 (i.e. during the recommitment that the county was seeking to extend.) The relapse was “caused by a previous change in medication.”  According to the doctor, Sarah was:

focus[ing] on an injury from a chiropractor from years ago. She was also talking about problems with her father in the past and about her supervisor that caused her stress in the past of which she brought a baseball bat to work so some of the old things that had been bothering her were resurfacing. Opinion, ¶5 .

The court of appeals held this evidence sufficient to recommit Sarah. It distinguished her case from the recent “defense win” where the county’s doctor, parroting the statute, merely testified that if treatment were withdrawn the person would become acutely psychotic, and past psychotic episodes led to commitments.  See our post on Winnebago County v. L.F.-G., 2019AP2010. The court of appeals refused to infer from this evidence that if treatment were withdrawn L.F.-G would become dangerous.

In Sarah’s case, there “appeared” to have been an episode during the recommitment that was about to expire where a doctor changed her meds, she exhibited paranoid ideation, she had problems with her supervisor, and she took her baseball bat to work (no details on what, if anything, she did with the bat).  We say “appeared” because it is hard to discern from the decision whether these events actually occurred, or whether Sarah just talked about them, during the recommitment the county wanted to extend. This incident combined with the doctor’s testimony that Sarah would stop medication if she weren’t committed provided the “necessary link” between her past dangerousness and the likelihood that it would recur. Opinion, ¶17.

The court of appeals reminded the bench and the bar that to obtain involuntary medication the county’s doctor must link his testimony back to the statutory standards. Outagamie Cty. v. Melanie L., 2013 WI 67, ¶¶94-97, 349 Wis. 2d 148, 833 N.W.2d 607 . Ditto for an initial commitment. Marathon Cty. v. D.K., 2020 WI 8, ¶¶53-54, 390 Wis. 2d 50, 937 N.W.2d 901.

It also noted that Langlade Cty. v. D.J.W., 2020 WI 41, 391 Wis. 2d. 231, ___ N.W.2d ___ requires circuit courts deciding recommitment cases to make findings linked back to the specific subdivision of  §51.20(1)(a)2 that the recommitment is based on. Opinion, ¶14

The court of appeals said that in Sarah’s case both the county and the circuit court failed to link evidence of dangerousness back to any subdivision of §51.20(1)(a)2. But it gave them a pass because this recommitment predated D.J.W. (decided April 24, 2020) and because there was sufficient evidence to support the recommitment (see above).

The court of appeals also held that:

[N]either the statute nor the applicable case law requires an expert or the circuit court to speculate on the precise course of an individual’s impending decompensation by identifying specific future dangerous acts or omissions the individual might theoretically undertake without treatment. Opinion, ¶13.

Then what does D.J.W. stand for? It literally requires courts to “make specific factual findings with reference to reference to the subdivision paragraph of §51.20(1)(a)2 on which the recommitment is based.” D.J.W., ¶40. And §51.20(1)(a)2’s standards of dangerousness literally require the county to prove that a person attempted or threatened of suicide, engaged in violent or homicidal behavior, displayed an inability to feed himself and so forth.

Perhaps the court of appeals meant that before D.J.W. a county did not have to specify future acts of dangerousness. But that seems odds too. D.J.W. holds that the “specific factual findings” requirement for recommitments is “manifest in the language of Wis. Stat. §51.20(1)(am). D.J.W., ¶41 (emphasis supplied). If a requirement is “manifest in the language” of a forty-year old statute why would it only apply starting April 2020?

Note to appellate lawyers: As in D.J.W., the court of appeals indicates that it will not consider the doctor’s written report when reviewing the sufficiency of the evidence if the county fails to move the report into evidence. Opinion, ¶2 n.3. Note to trial lawyers: If the doctor’s report contains hearsay, object.

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