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Evidence at recommitment hearing established mental illness and dangerousness under 3rd standard

Waukesha County v. G.M.M., 2022AP1207, 1/18/23, District 2, (1-judge opinion, ineligible for publication); case activity

This appeal involves a recommitment under the 3rd standard of dangerousness. G.M.M. argued that the county presented insufficient evidence of both mental illness and dangerousness. She also argued that the circuit court failed to make the findings required under Langlade County v. D.J.W., 2020 WI 41, ¶59, 391 Wis. 2d 231, 942 N.W.2d 277.  The court of appeals rejected all 3 claims.

Mental illness. G.M.M. faulted the county’s examiner, Dr. VerWert, for diagnosing her with schizophrenia her based just on the county’s report and on his conversations with her and her sister. He should have looked at her medical records, considered other diagnoses, and done a full diagnostic examination consistent with the DSM. Opinion, ¶19, ¶24.  The court of appeals holds–without citation to authority–that doctors can diagnose people without those things.

¶24 No Wisconsin law to which G.M.M. has directed this court required VerWert to consult other diagnoses, review G.M.M.’s medical records, or perform a full diagnostic evaluation consistent with the DSM before determining that her condition meets the definition of “mental illness” under WIS. STAT. ch. 51. Nor does the fact that VerWert responded in the affirmative to questions phrased in the words of the definition of that statutory term render his opinions insufficient. That pattern of questions and answers is the nature of these types of cases and serves an important purpose: ensuring, by reference to the statutory language, that an individual is not committed unlawfully. See Outagamie County v. Melanie L., 2013 WI 67, ¶91, 349 Wis. 2d 148, 833 N.W.2d 607 (reversing commitment order where expert did not use statutory terminology).

Dangerousness. At the recommitment stage, the county doesn’t have to show recent acts to establish dangerousness. It just has to show that if treatment were withdrawn, the person would satisfy one of the 5 standards of dangerousness. The 1st, 2nd, 4th, and 5th standards all require the county to show that without treatment the person would cause death or serious physical harm to herself or other (1st and 2nd), or would suffer serious physical injury, debilitation or disease (4th), or severe mental, emotion or physical harm (5th).

Now look at the 3rd standard. For an initial commitment the county must prove a “pattern of recent acts or omissions” such that there is a substantial probability of physical impairment or physical injury to self or others. At the recommitment stage, no pattern and no recent acts are necessary. Wis. Stat. §51.20(1)(am). The injury doesn’t have to be “serious” or “severe.” A scratch or bruise would seem to suffice. The 3rd standard also provides that the probability of harm is not “substantial” if there are reasonable services of the person’s protection in the community and it is reasonably probable the person will use them.

In G.M.M.’s case, the county presented evidence from a doctor and a social worker that before her initial commitment, G.M.M. was delusional, psychotic,  fearful of germs, refused to go medical appoints [during the pandemic, mind you] and was sometimes aggressive with her family. In fact, she once threw a remote control at the wall and grabbed a phone out of her sister’s hand and cause the phone to hit her sister on the cheek. Opinion, ¶7.

None of that behavior recurred during G.M.M.’s initial commitment, and the doctor admitted that she wasn’t saying wanted to kill herself or harm her sister. However, she still expressed some delusions and denied the need for medication. Therefore . . . you know what’s coming next . . . if she were not recommitted she would stop her medication. That is, she wouldn’t take advantage of services in the community. Her prior aggression would recur, and she might injure herself or others. That evidence is sufficient for a recommitment under the 3rd standard of dangerousness. Opinion, ¶¶25-29.

D.J.W. From the court of appeals’ opinion it is hard to discern the D.J.W. argument in this case. The opinion says that G.M.M. argued that the circuit court did not make the factual findings required by D.J.W. But the opinion also says that Dr. VerWert, the county, and the circuit court all specified the 3rd standard of dangerousness. Opinion, ¶¶31-32. So was G.M.M. actually arguing that the circuit court failed to find facts to support each element in the 3rd standard? We don’t have the briefs and can’t tell.



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