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In a “close case,” COA affirms recommitment under 4th standard of dangerousness

Waupaca County v. H.I.B., 2021AP2026, 4/7/22, District 4 (1-judge opinion ineligible for publication); case activity

It is uncontested that “Hazel” has done well for three commitments in a row. Yet the court of appeals has affirmed her 4th Chapter 51 recommitment  because the jury could have inferred a “substantial probability” of death or serious injury from evidence that was “only suggestive” and that “lacked details such as dates and clear descriptions of conduct.”

Hazel was diagnosed with bipolar disorder. Her case was tried to a jury where the point of contention was whether, if treatment were withdrawn, she would be dangerous under §51.20(1)(am) and (a)2.d, the 4th standard. Under that standard, a person is dangerous if she shows

behavior manifested by recent acts or omissions that, due to mental illness, she is unable to satisfy basic needs for nourishment medical care, shelter, or safety without prompt adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious physical disease will ensue unless she receives prompt and adequate treatment for this mental illness.

To show that Hazel would satisfy this standard if treatment were withdrawn, the county offered evidence that in 2017 or 2018, when she was not committed, she stopped taking her medication (as was her 14th Amendment right), she drank alcohol, became paranoid and threatening, and was hospitalized. Opinion, ¶13.

Hazel, who is very independent, maintains her home, makes medical appointments, shops for groceries, gardens, and so forth by herself. The county countered these positives with an instance in 2018 when Hazel had not taken her medication, did a lot of yardwork, became dehydrated, was hospitalized, then moved to a group home for the mentally ill and became “very, very sick.” Opinion, ¶18.

The county also called an examiner, who testified that if Hazel were not recommitted she would stop medication because she does not want it and does not think she’s mentally ill. Then she would become dangerous because she would lack the ability to care for herself. Opinion, ¶15.

SCOW holds an examiner’s testimony that without treatment a person would be unable to care for himself does not satisfy the 4th standard of dangerousness. The 4th standard requires of evidence of a substantial probability of death, serious physical injury and so forth. Langlade County. v. D.J.W., 2020 WI 41, ¶35, 391 Wis. 2d 231, 942 N.W.2d 277. Like the examiner in D.J.W., the examiner in this case did not testify to a substantial probability of death, serious physical injury, etc.

Furthermore, the court of appeals incorrectly restated the 4th standard as  requiring evidence that “a lack of treatment would lead to a deterioration in Hazel’s mental health and that this presented a imminent risk of grave self-care related harms.” Then it held that the jury could infer that Hazel satisfied this standard from evidence was “only suggestive” and “lacked detail such as dates and clear description of conduct.”  Opinion, ¶¶23-29.

Another problem with this decision is that the instances of alleged dangerousness–prior hospitalizations and dehydration from yardwork–appear to have occurred before her original commitment. SCOW has held that the evidence of dangerousness for a recommitment cannot be borrowed from the original commitment. Portage County v. J.W.K., 2019 WI 54, ¶27, 386 Wis. 2d 672, 927 N.W.2d 509.

Lastly, SCOW says that Chapter 51 is designed for “short-term treatment” and return to society. Fond du Lac County v. Helen E.F., 2012 WI 50, ¶25, 340 Wis. 2d 500, 814 N.W.2d 500.  Here, the examiner testified that Hazel had been doing well for three years but he wouldn’t release her from commitment until she had a “lengthy period of time where she’s increasingly independent of . . . medication monitoring people.” Opinion, ¶17.  (Emphasis supplied). Four years seems like a long-term treatment, not a short-term treatment. And if Hazel, a grandma in her 70s, cannot win release from the county’s clutches by managing well for three years in a row, isn’t she looking at a lifetime Chapter 51 commitment?



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