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SVP Commitments: Conditions of Confinement: Blanket Policy of Restraint During Transport

Richard Thielman v. Leean, 2002 WI App 33
Companion case: Thielman v. Leean, 282 F.3d 478 (7th Cir. 2002)For Thielman: Mary Kennelly


¶1. The Department of Health and Family Services (DHFS) appeals the circuit court’s order enjoining DHFS from transporting Richard Thielman and similarly committed ch. 980 patients to and from treatment facilities such as Wisconsin Resource Center (WRC) in full restraints without first making individualized determinations that restraints are needed during transport. The circuit court determined that DHFS’s transportation policy for ch. 980 patients violated Wis. Stat. § 51.61(1)(i) (1999-2000). Because we conclude that § 51.61(1)(i) grants broad discretionary power to DHFS sufficient to permit its treatment facilities to transport ch. 980 patients in restraints for security reasons and because there is nothing in the language of the statute that requires treatment facilities to exercise that discretion for each individual patient, rather than on the basis of its experience with ch. 980 patients as a group and the individualized prior finding of sexual dangerousness that each ch. 980 patient has had made, we reverse the circuit court’s order….¶7. Convicted sex offenders involuntarily detained or committed under ch. 980 are subject to certain provisions under both ch. 980 and ch. 51. State v. Anthony D.B., 2000 WI 94, ¶11, 237 Wis. 2d 1, 614 N.W.2d 435. Additionally, they are entitled to patients’ rights set forth in ch 51. Id. at ¶15. Wisconsin Stat. § 51.61(1)(i) governs the use of restraints on mental health patients, including ch. 980 patients during transportation to and from treating facilities. …

¶8. DHFS argues that Wis. Stat. § 51.61(1)(i) permits the department’s use of a blanket policy for transporting all ch. 980 patients in full restraints for security reasons. DHFS explains that it formulated its policy for ch. 980 patients based on prior individual determinations of dangerousness that courts have made in each case and its experience transporting ch. 980 patients that has shown the need to protect the public from danger during transports. We agree that § 51.61(1)(i) gives DHFS the authority to decide whether to use full restraints during transport and that it does not prohibit exercising this authority through a policy that covers all ch. 980 patients within its care.

The 7th Circuit, in the case cited above, held that this policy doesn’t violate the constitution. This case says that the policy doesn’t violate statutory proscription, namely, § 51.61(1)(i).

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