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Court of appeals reverses fifth-standard commitment for failure to examine effect of ch. 55 services

Fond du Lac County v. J.L.H., 2020AP2049, 3/24/21, District 2 (one-judge decision; ineligible for publication); case activity

Wisconsin Stat. § 51.20(1)(a)e. lays out the “fifth standard” for dangerousness; a person can be committed under it if his or her mental illness prevents him or her from understanding the advantages and disadvantages of treatment, and a lack of treatment will cause a substantial probability that the person will be harmed and become unable to function. But there’s a limitation on this standard that the other standards lack: a person can’t be dangerous under it if care is available, either in the community at large or through ch. 55, that diminishes the threat of harm so that it is not substantial.

J.L.H. appears to be under a ch. 55 protective placement order (“appears to be” because there’s some factual dispute about it, but that’s what the circuit court said, and the court of appeals defers to that factual finding). She was also committed under ch. 51; this is the appeal from the May 2020 extension of that commitment.

The court of appeals fleshed out what it called the “ch. 55 exclusion” to the fifth standard in Dane County v. Kelly M., 2011 WI App 69, 333 Wis. 2d 719, 798 N.W.2d 697. Among other things, Kelly M. held that under the fifth standard it’s not enough for the petitioner to show there’s no current ch. 55 order providing adequate protection. If a developmental disability renders a person potentially eligible for placement or services under ch. 55–which services can include involuntary medication, § 55.12(9) & § 55.14(2)–the petitioner must show that these services would not reduce dangerousness below the level of substantial probability of harm.

Here, the circuit court found J.L.H. to be subject to a ch. 55 protective placement order, but didn’t inquire whether it could provide services that would satisfy the ch. 55 exception. (And even if, as the county contends, no order exists, that fact alone wouldn’t satisfy Kelly M.; the county would still have to prove that an order could not provide sufficient protection.) Thus, the court of appeals reverses the ch. 51 commitment and remands so that the circuit court may conduct the inquiry required by § 51.20(1)(a)e. and Kelly M.

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