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Mental Commitment – “Fifth Standard”

Dane County v. Kelly M., 2011 WI App 69 (recommended for publication); for Kelly M.: Ruth N. Westmont, Ashley J. Richter; case activity

Kelly M. appeals a commitment order premised on the “fifth standard,” inability by reason of mental illness to understand the advantages and disadvantages of medication or treatment for the mental illness.

¶3        We conclude as follows:  (1) Commitment is available under the fifth standard for individuals who have dual diagnoses—that is, a diagnosis of mental illness and, in addition, a diagnosis of either drug dependency or developmental disability.  (2) Medication is a “service” within the meaning of the community services exclusion of the fifth standard.  Thus, Kelly did not come within this exclusion because of her failure to consistently take her medication.  (3) Individuals who are already under an order for protective placement or services under Wis. Stat. ch. 55, as well as individuals who are not already under such an order but who are a proper subject of such an order, come within the ch. 55 exclusion in the fifth standard if there are placement or services available under ch. 55 that would be effective, as we describe more specifically in this opinion.  Services under ch. 55 include the involuntary administration of medication under § 55.14.

The court dispatches the first two issues quickly, under a plain-meaning construction of statutory text, ¶¶8-17. Analysis of the 3rd issue, which turns on the relationship between the 5th standard and ch. 55, is more elaborate. By express terms, § 51.20(1)(a)2.e (“ch. 55 exclusion”) embodies legislative intent “to avoid commitment for treatment if it is reasonably probable that a person will make use of available services for treatment in the community or that placement or services available under Wis. Stat. ch. 55 will provide the needed treatment,” ¶21. The court thus concludes:

¶32      In summary, we conclude that the ch. 55 exclusion in the fifth standard includes an individual who is already subject to an order for protective placement or services, if there is another placement or additional services available under Wis. Stat. ch. 55 that would be effective in reducing the probability of the requisite harm to less than a substantial probability.  This exclusion also may apply to an individual who is not yet subject to a ch. 55 order but who is eligible for one.  We further conclude that involuntary administration of medication under § 55.14 may be one of the additional services that would satisfy this exclusion, if the guardian consents and depending on the individual’s circumstances.

¶33      In this case, the circuit court did not rule on the scope of the ch. 55 exclusion, see footnote 8, and did not make findings on whether an order under Wis. Stat. § 55.14 would be effective for Kelly.  In addition, the evidence does not show whether Kelly’s guardian would have consented.  We would ordinarily remand for further proceedings on this issue.  However, because we have been informed that Kelly has recently died, see footnote 2, further proceedings on this issue are unnecessary.

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