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COA rejects defense based on ch. 55 exclusion to 5th standard

Waukesha v. L.J.E., 2022AP292, 10/5/22, District 2, (1-judge opinion, ineligible for publication); case activity

“Evans”  was diagnosed with bipolar disorder with psychotic features, a condition considered permanent but manageable with medication. When the County sought to commit her under the 5th standard, she argued that it failed to prove that she did not satisfy one of the “exclusions” to the 5th standard. Specifically, the 5th standard does not apply where the individual may be provided protective placement or services under ch. 55. The court of appeals rejected that argument.

Evans did not challenge the circuit court’s factual findings or conclusion that she satisfied the first part of §51.20(1)(a)2.e. She focused on what the circuit court omitted from its analysis–any discussion of the 2nd or “protective placement or services” exclusion to the 5th standard.

The purpose of the exclusion is “to avoid commitment for treatment if it is reasonably probable that … placement or services available under Wis. Stat. ch. 55 will provide the needed treatment.” Dane County v. Kelly M., 2011 WI App 69, ¶21, 333 Wis. 2d 719, 798 N.W.2d 697.” (Opinion, ¶16).

Evans argued that the County failed to prove that her needs couldn’t be met through less restrictive ch. 55 services–i.e. a §55.14 medication order.

The court of appeals acknowledged that the ch. 55 exclusion applies to people currently under a protective placement as well as people who are merely eligible for protective placement.  It noted that Evans was not under a protective placement, and it held that she was not eligible for one,

According to the court of appeals, §55.05 and §55.08 make clear that only “incompetent” adults are eligible for protective placement. Competency determinations are governed by §54.10(3)(a). Nothing in the record indicated that Evans had a guardian, which proved that the circuit court had not found her incompetent under §54.01(16). Therefore, she was not eligible for protective services. Opinion, ¶¶20-22.

A circuit court may declare a person incompetent, appoint a guardian, and order a protective placement or services all in one proceeding. So the fact that Evans wasn’t under a guardianship seems irrelevant.  The question is whether she was eligible for one.

The court of appeals also held Evans wasn’t eligible for ch. 55 placement or services because those are designed to provide long-term care for people with incurable disorders. Here, two doctors testified that Evans’s bipolar disorder could be treated with medication. She only needed to be committed for a short time until her medication reached therapeutic effect she continued to take it.  Opinion, ¶24.

As ch. 51 practitioners well know, in Wisconsin people diagnosed with bipolar or schizoaffective disorder are never committed for a “short time.” Under the court of appeals’ reasoning, these people don’t qualify for ch. 55 placement or services because they don’t need long-term care, but then they are continually recommitted under ch. 51 for years or decades on the theory that if they are released, they might stop their medication and decompensate.

 

 

 

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