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May courts presume a person is competent to agree to commitment for treatment if a doctor opines that he isn’t?

Dane County v. N.W., 2019AP48, 8/29/19, District 4 (1-judge opinion, ineligible for publication); case activity

N.W. entered a written stipulation to extend his Chapter 51 involuntary mental commitment. On appeal he argued that due process required the circuit court to conduct a colloquy to determine whether he knowingly, intelligently and voluntarily agreed to the extension before approving it. Ironically, the court of appeals held that in Chapter 51 cases–where a person’s mental capacity to make treatment decisions is directly at issue–circuit courts have no obligation to inquire whether he knows that he is voluntarily agreeing to an involuntary commitment for treatment.

Apparently N.W. signed a document called “Waiver of Recommitment Trial on Extension of Commitment,” which sounds a lot like a guilty plea waiver form. It required N.W. to initial each of the rights that he was surrendering–e.g. the right select a court-appointed doctor, the right to cross-examine witnesses, the right to attend trial, remain silent, the right make the county to satisfy its burden of proof for obtaining an involuntary commitment and medication order and so forth. Opinion, ¶3.

N.W. argued that as with criminal cases and TPRs, circuit courts should be required to conduct colloquys with Chapter 51 respondents. The court of appeals rejected this argument because §48.422(7) and §971.08(1) mandate a  personal colloquy in those types of cases. Chapter 51 does not. Opinion, ¶8. It further noted that unlike a criminal case a Chapter 51 proceeding is not punitive. It’s simply aimed at restoring the person’s mental health in the least restrictive manner. Opinion ¶9.

The court of appeals also stressed that circuit courts do not need inquire into the person’s understanding of his stipulation because Chapter 51 respondents “are statutorily presumed to be competent, including competent to manage their own affairs and enter in contracts.” Opinion, ¶11 (citing §51.59(1)).

A flaw in the court of appeals’ reasoning is its misconception that a stipulated commitment is just another contract that the Chapter 51 respondent is presumed legally competent to make. It isn’t. With this type of stipulation the person is making a mental health treatment decision which a doctor has almost certainly just found him incompetent to make in advance of either a probable cause hearing (for an initial commitment) or a recommitment hearing.

 Consider Zinermon v. Burch, 494 U.S. 113 (1990) where SCOTUS approved a §1983 claim against hospital staff who allowed a heavily medicated, disoriented, possibly psychotic person to agree to a voluntary commitment without first determining whether he was mentally competent to sign the admission forms.  If a mentally person cannot agree to a voluntary commitment before hospital staff has determined that he is competent to do so, then can he agree to one after a doctor has determined that he isn’t?

To be fair, in this case, the court  appeals does not say whether a doctor found N.W. incompetent to make treatment decisions, but presumably that is what happened.  For recommitment proceedings the county is required to file a doctor’s report supporting a petition for recommitment and involuntary medication 21 days prior to the expiration of the original commitment. See §51.20(13)(g)(2r).


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