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Petitioner isn’t required to present testimony of a physician or psychologist at a ch. 51 extension hearing

Dodge County v. L.A.S., 2017AP302, District 4, 8/17/17 (one-judge decision; ineligible for publication); case activity

Under § 51.20(9)(a) the circuit court must appoint two licensed physicians or psychologists to examine and write reports on an individual subject to involuntary commitment proceedings. This requirement applies only to the initial commitment proceeding, not to the proceeding to extend a commitment.

At L.A.S.’s extension hearing the County’s only witness was a nurse practitioner who was treating L.A.S. (¶4). L.A.S. argued the nurse practitioner’s testimony wasn’t sufficient to support the extension order because she’s not a physician or psychologist, as required by § 51.20(9)(a), and so can’t provide the necessary expert opinion evidence. (¶¶4, 7).  The court of appeals rejects the argument based on the statute’s text:

¶10     …. Upon applications for extensions of involuntary commitment, “the court shall proceed under subs. (10) to (13).” Wis. Stat. § 51.20(13)(g)3. Subsections (10) through (13) do not contain any provision requiring examination, reporting, or testimony by a licensed physician or psychologist. Wis. Stat. § 51.20(10)(13). Accordingly, by the plain meaning of the language in Wis. Stat. §§ 51.20(13)(g)3. and 51.20(10)-(13), the County was not required to present testimony of a licensed physician or psychologist in support of its petition to extend L.A.S.’s involuntary commitment.

L.A.S. creatively argues that sub. (9)’s requirements apply to extension proceedings by “context” and implication, given that the elements of proof at initial commitment hearings and extension hearings are nearly identical and that it would be absurd to allow anyone to provide an opinion about whether there’s a basis for extending a commitment. But the court insists it will not read language into the statute give the “plain, clear words” of § 51.20(13)(g)3. (¶12). And even though sub. (9)’s requirements don’t apply to extension proceedings, that doesn’t mean anyone can provide the necessary opinion evidence; the rules of evidence require sufficient foundation for the witness to qualify as an expert and offer the necessary opinion testimony. (¶13). Other than the fact she wasn’t a physician or psychologist, there’s no apparent dispute about the qualification of the witness at L.A.S.’s hearing. She testified she was “a board certified advance practice psychiatric and adult nurse practitioner” who does mental health diagnosis and treatment and has worked with hundreds of psychiatric patients. (¶4)

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