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Defense win! Alzheimer’s diagnosis means person is not a “proper subject for treatment” under Chapter 51

Fond du Lac County v. Helen E. F., 2012 WI 50, affirming 2011 WI App 72; for Helen E.F.: Donald T. Lang, SPD, Madison Appellate; case activity

Someone suffering from Alzheimer’s Disease is not a fit subject for commitment under ch. 51 but, instead, guardianship proceedings under ch. 55.

¶13  Wis. Stat. ch. 55 provides Helen with the best means of care.  This is so because ch. 55 was specifically tailored by the legislature to provide for long-term care of individuals with incurable disorders, while ch. 51 was designed to facilitate the treatment of mental illnesses suffered by those capable of rehabilitation.  To demonstrate why ch. 55 provides the most appropriate statutory framework for treating individuals such as Helen, we begin with an overview of its procedures, which provide for both protective placement and services.

¶14  Beginning with protective placement, Wis. Stat. § 55.08 requires that a circuit court determine that four elements are met before ordering a protective placement under ch. 55.  The individual to be protected must: 1) have “a primary need for residential care and custody”; 2) be “an adult who has been determined to be incompetent by a circuit court”; 3) be “so totally incapable of providing for . . . her own care or custody as to create a substantial risk of serious harm to . . . herself” because of “a developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacit[y]”; and 4) have “a disability that is permanent or likely to be permanent.”  § 55.08(1)(a-d).

¶20  Turning to Wis. Stat. ch. 51, that chapter, unlike ch. 55, has the principal purpose of “assur[ing] the provision of a full range of treatment and rehabilitation services . . . for all mental disorders and developmental disabilities and for mental illness, alcoholism and other drug abuse.” § 51.001(1); see also Rolo v. Goers, 174 Wis. 2d 709, 721-22, 497 N.W.2d 724 (1993).  Although the procedures for commitment in ch. 51 are similar to those contained in ch. 55, there are important differences in the elements the state must prove for each.  In order to be subject to a ch. 51 involuntary commitment, a subject individual must meet three criteria: the subject individual must be 1) “mentally ill”; 2) “a proper subject for treatment”; and 3) “dangerous” to themselves or to others.  § 51.20(1)(a)1.-2.; cf. Steven Erickson, et al., Beyond Overt Violence: Wisconsin’s Progressive Civil Commitment Statute as a Marker of a New Era in Health Law, 89 Marq. L. Rev. 359, 368-71 (2005).  A subject individual may be involuntarily committed under ch. 51 only when the county proves each of the elements above; therefore, if the circuit court determines that even one of the elements is not met, the subject individual may not be committed under ch. 51.  See §§ 51.20(1)(a), (7)(c), (10)(c).[11]

¶21  While Wis. Stat. chs. 55 and 51 have similar procedures, they serve substantially different purposes.  Chapter 51 is designed to accommodate short-term commitment and treatment of mentally ill individuals, while ch. 55 provides for long-term care for individuals with disabilities that are permanent or likely to be permanent.  See § 51.20(13)(g) (stating that a commitment under ch. 51 is not to exceed six months); § 51.20(1)(a) (stating that the individual subject to commitment must be a proper subject for treatment); § 55.08(1)(d) (stating that ch. 55 placement is allowed only where the individual to be protected suffers from “a disability that is permanent or likely to be permanent”).  To that end, we turn to three specific differences between the chapters, ultimately holding that the procedures and protections provided by ch. 55 are a better fit for Helen and her particular disorder.

The court continues: care under ch. 55 offers less restrictive treatment alternatives than under ch. 51; guardian ad litem is required under ch. 55, and not supported at all under ch. 51; long-term care is the goal of ch. 55 while rehabilitation is the goal of ch. 51, ¶¶22-31. Milwaukee Cnty. Combined Cmty. Servs. Bd. v. Athans, 107 Wis. 2d 331, 337, 320 N.W.2d. 30 (Ct. App. 1982) and C.J. v. State, 120 Wis. 2d 355, 354 N.W.2d 219 (Ct. App. 1984), lauded as “instructive.” The latter case, more particularly, (¶36) “provides a useful and well-constructed fact-based test for determining whether a subject individual is capable of rehabilitation, and therefore treatable under Wis. Stat. § 51.01(17). If treatment will “maximize[e] the[] individual functioning and maintenance” of the subject, but not “help[] in controlling or improving their disorder[],” then the subject individual does not have rehabilitative potential, and is not a proper subject for treatment.  C.J., 120 Wis. 2d at 362.” Application of that test results in placement under ch. 55: “In sum, Wis. Stat. ch. 55, unlike ch. 51, is better suited for Helen’s situation because her Alzheimer’s Disease is not treatable.  Because ch. 55 provides additional processes and protections for Helen, it is better suited to her needs and those of the County.  Accordingly, the circuit court was in error to proceed under ch. 51 and the court of appeals was correct to reverse and remand,” ¶41. A two-justice concurrence sums up the possible implications:

¶54  Today’s majority opinion provides a potentially powerful tool for an individual seeking to avoid involuntary commitment under Chapter 51.  The broadest reading of the opinion would be that any person with an “incurable” condition may not be involuntarily committed under Wis. Stat. § 51.20.  See majority op., ¶37.  Individuals with conditions that might otherwise appear to qualify for involuntary commitment under the category “developmental disability”[16] may now argue that they are not proper subjects for “treatment” because their condition is incurable.

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