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Guardianship: Protective Placement

Walworth County v. Therese B., 2003 WI App 223

Issue/Holding: Procedural due process in guardianship and protective placement proceedings is governed by the analysis used in mental commitments, W.J.C. v. Vilas County, 124 Wis. 2d 238, 240, 369 N.W.2d 162 (Ct. App. 1985), which in turn adopts Mathews v. Eldridge, 424 U.S. 319 (1976):

¶11 … The Mathews test “involves balancing three factors: 1) The private interest affected by the official action, 2) the risk of erroneous deprivation of the interest through the procedures used and the probable value of additional or substitute procedural safeguards, and 3) the government’s interest.” W.J.C., 124 Wis. 2d at 240.…

¶16 Our balancing of the Mathews factors leads us to conclude that permitting an examining professional to be nothing more than a conduit for the opinions of others would violate a proposed ward’s due process rights. In a guardianship and protective placement proceeding, the finder of fact might make a decision that will result in a life sentence to a nursing home. See Watts, 122 Wis. 2d at 76-77. That decision is essentially a medical question that turns on the meaning of facts interpreted by expert psychiatrists and psychologists. Parham v. J.R., 442 U.S. 584, 609 (1979). Therefore, it is crucial that the examining professional reach his or her conclusion through an independent evaluation of the proposed ward and not through a review of the opinions of other expert psychiatrists and psychologists.

¶17 This is not to say that the proposed ward’s rightful refusal to participate in the court-ordered evaluation will obstruct a guardianship and protective placement proceeding. When the proposed ward has refused to cooperate, the examining professional is still free to review all of the records that are available in reaching his or her opinion. It is well settled that an expert may rely upon reports and information provided by others: “[I]t is proper for a physician to make a diagnosis based in part upon medical evidence of which he has no personal knowledge but which he gleaned from the reports of others.” Vinicky v. Midland Mut. Cas. Ins. Co., 35 Wis. 2d 246, 254, 151 N.W.2d 77 (1967). An expert is permitted to base an opinion on hearsay if it is of a type customarily relied upon in that field in forming opinions. In the medical field, the evidence contained in treatment records is routinely relied upon by physicians to treat a patient; if it is deemed trustworthy enough to support treatment decisions, it is trustworthy enough to support a professional opinion. Id. at 254-55.

¶18 Due process requires that the examining professional, when confronted with an uncooperative individual, engage in an independent review of all of the records that are available. Due process prevents the examining professional from regurgitating the opinions of other physicians and psychologists, without independently confirming the facts those opinions are based upon.

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