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Conduct during ch. 51 exams supported inference person was danger to herself

Marathon County v. R.O., 2016AP1898-FT, 2/27/17, District 3 (one-judge decision; ineligible for publication); case activity

In 2016 R.O. was detained under § 51.15 after she was evicted and went to a local shelter but wasn’t able to do the paperwork to stay at the shelter. According to the two doctors who examined her while she was under emergency detention, R.O. was angry, defiant, irritable, displayed some paranoia, refused to cooperate with certain parts of the exams, and ‘lacked insight” into her illness. (¶¶2-6). These observations, in conjunction with information in her records describing past episodes that ended in hospitalization, were sufficient to justify the circuit court’s finding she was dangerous to herself.

¶13     We conclude the County met its burden of establishing through clear and convincing evidence that R.O. was dangerous to herself under Wis. Stat. § 51.20(1)(a)2.c.… Testimony by Dr. Coates and Dr. Starr established that during both examinations, R.O. consistently possessed impaired judgment affecting her ability to care for herself. Both experts observed she was uncooperative, delusional, and lacked any insight into her current psychotic disorder. They also opined R.O. was at a high risk of causing herself significant harm because her inability to recognize that, without treatment, her current behavior would not allow her to obtain shelter and employment. They also examined R.O.’s medical records, which showed multiple hospitalizations (some of which were relatively recent) arising from similar concerns brought upon by her mental illness and inability to care for herself.


¶16     This mode of behavior showed R.O. was dangerous because of her inability to adequately care for herself…. R.O.’s behavior during the examinations provides evidence of a pattern of impaired judgment due to her failure to acknowledge any need to care for herself or receive treatment. Even during the hearing, R.O. continued, on multiple occasions, to claim the medical records being referenced were not her own. Furthermore, the doctors’ testimonies about the examinations help to establish risk of harm when coupled with inferences drawn from her medical records relating to her current condition, most importantly the January 14, 2016, and August 10, 2015, incidents.

“…[S]ome of which [hospitilazations] were relatively recent” (¶13) is a bit generous. R.O. was hospitalized in 2007 and 2012, but more recently, in 2011, 2012, 2015, and earlier in 2016, she got herself to crisis centers for help (¶6)—not to mention that it was her act of seeking help at a shelter that got her ensnared in the system this time around. The dangerousness standard at issue requires “such impaired judgment … that there is a substantial probability of physical impairment or injury” to herself, and substantial probability means “much more likely than not.” (¶12, citing State v. Curiel, 227 Wis. 2d 389, 415, 597 N.W.2d 697 (1999)). But the statute also makes clear that the probability of physical impairment or injury is not substantial “if reasonable provision for the subject individual’s protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services….” The court of appeals doesn’t fully analyze R.O.’s actions in light of these two parts of the standard, but the court does clearly credit the examiners’ opinions about a substantial probability of harm and concludes the circuit court could infer R.O. wasn’t really able to find or accept services in her current state. (¶¶16, 17).

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