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Court of appeals erases line between civil commitments and protective placements

Marathon County v. P.X., 2017AP1497, 6/26/18, District 3, (1-judge opinion, ineligible for publication); case activity

P.X. is autistic, non-verbal, intellectually and developmentally disabled and has obsessive compulsive disorder and pica. The question is whether he is capable of “rehabilitation,” which would make him a proper subject for treatment on Chapter 51. If not, then he should be placed under Chapter 55. The court of appeals held that even though P.X.’s disabilities cannot be cured and he can never function in society, his OCD and pica could be controlled with medication, so Chapter 51 applies. Under Chapter 51, a person can be committed to a mental institution for years, but Chapter 55 bars protective placement in a unit for the acutely mentally ill. See §55.12(2). This decision seems to let the county accomplish through Chapter 51 what it cannot do through Chapter 55. Let’s hope P.X. petitions SCOW for review.

SCOW first tried to explain when a person is the proper subject for treatment under Chapter 51 versus when the person should be protectively placed under Chapter 55 in Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179.  It held that a person is not capable of rehabilitation when treatment will simply maximize his functioning and maintenance. But if treatment will go beyond controlling activity and control the person’s disorder and its symptoms, then he is capable of rehabilitation under Chapter 51. Id. at ¶36.

That test seemed workable when applied to Helen E.F. who had Alzheimer’s disease. But it has not proved workable when applied to psychiatric disorders like schizophrenia, a point raised in Waukesha County v. J.W.J., 2017 WI 57, 375 Wis. 2d 542, 895 N.W.2d 783. SCOW attempted to clarify the test by saying a person is capable of rehabilitation when  a symptom or behavior “manifests from within” and treatment controls or improves it. A person is capable of only habilitation when interventions “put exogenous things to his benefit (that is, activities).” Id. ¶¶35-36. Clear as mud, right? So we can’t really blame the court of appeals  for what happened in this case.

P.X. was undergoing his 5th Chapter 51 extension. At the hearing, one doctor testified that P.X. was capable of rehabilitation because while treatment had not improved his behavior and could not cure him, it could control his behaviors. A second doctor agreed with the latter assessment but concluded that P.X.’s treatment was “habilitative” because it kept him in a safe, stable environment. He saw P.X. as incapable of rehabilitation because “[y]ou cannot create intellectual capacity for someone who biologically does not have it.”

The court of appeals held that both opinions provided clear and convincing evidence that P.X. was capable of rehabilitation because medication controlled his pica and OCD, made him less aggressive/destructive and more compliant, and improved his mood. Opinion ¶¶17-18. It held that it does not matter that treatment will never allow P.X. to function and live in the community:

¶20 . . . There may be several aspects of P.X.’s disorders that require a ch. 55 placement, and he is indeed currently subject to one. However, nothing in Helen E.F. or J.W.J. forecloses the possibility that an individual may be simultaneously placed under both ch. 51 and ch. 55 orders. See J.W.J., 375 Wis. 2d 542, ¶¶51, 53 (Abrahamson, J., concurring) (explaining “there is substantial overlap and similarity between some aspects of the two chapters,” but despite that the chapters “ostensibly serve different purposes”).

Abrahamson’s J.W.J. concurrence correctly notes that the Helen E.F. sets forth a “confusing and unpredictable test” and that the J.W.J. majority opinion “possibly magnifies” the problem.  We see it at 2x power in this case.  As noted at the outset, under Chapter 55, the county cannot protectively place a person in a unit for the acutely mentally ill. He must be placed in a nursing home, a public medical institution, a center for the developmentally disabled, or other appropriate facility. It’s true the county can commit the subject of a Chapter 55 placement to a mental institution under Chapter 51. See §55.12(2). But what purpose does that serve? A person can also be administered involuntary medication under Chapter 55–an argument that P.X. made but the court of appeals ignored. Chapter 55 provides more protections for a person than Chapter 51. See Abrahamson’s dissent ¶¶51-59 in J.W.J. So when we’re talking about long-term care for a person who qualifies under both chapters, should we be erring on the side of commitment under Chapter 51?



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