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Transfer of person committed under ch. 51 from outpatient to inpatient setting was lawful

Jackson County v. T.A.L., 2021AP499, District 4, 8/5/21 (one-judge decision; ineligible for publication); case activity

T.A.L.’s transfer from outpatient status to a locked inpatient unit based on his medical needs didn’t violate the requirements of § 51.35.

A county may transfer a person under ch. 51 commitment to a more restrictive setting either on “reasonable medical and clinical judgment” grounds or on the ground there was “an alleged violation of a condition of a transfer to less restrictive treatment.” § 51.35(1)(a) and (e)1. and 2. (The court refers to the former as a “medical need” transfer and the latter as a “treatment condition violation” transfer.) Transfers based on treatment condition violations have additional procedural requirements, including that the county must hold an administrative hearing on the transfer within 10 days, at which the county must prove the violation by a preponderance of the evidence. § 51.35(1)(e)3. and 4. (¶¶14-16).

T.A.L. was on an outpatient commitment when he made suicidal statements, got intoxicated, sped in his vehicle, leading to a high-speed chase, and stabbed himself multiple times. This behavior led to him being transferred to inpatient status. (¶3).

The county filed a “one-size-fits-all” notice of transfer that, confusingly, referred to both potential grounds for the transfer without indicating which ground it was invoking. (¶¶4-5). A lawyer was appointed to represent T.A.L. (as required by § 51.35(1)(e)1.), and counsel filed a petition for review of the transfer under § 51.35(1)(e)1. At the subsequent hearing the circuit court found the transfer was justified on “medical need” grounds. (¶¶6-10).

T.A.L. argues his transfer was not based on medical need but on alleged violations of his treatment conditions, and the failure to provide the automatic hearing after 10 days invalidates the transfer. (¶18). The court of appeals disagrees:

¶19     The circuit court twice found that T.A.L.’s August 17 transfer to inpatient treatment was based on reasonable medical and clinical judgment: first at the September 9 hearing on T.A.L.’s request for transfer to less restrictive care, and then again at the September 25 review hearing. Based on the evidence and all reasonable inferences therefrom, I cannot conclude that this finding was clearly erroneous. ….

True, the court says, the multipurpose notice of transfer was confusing because it wasn’t clear that the county was relying on the medical need ground and thus listed rights (e.g., the automatic 10-day review hearing) T.A.L. wasn’t entitled to; but the notice did cite the facts on which it relies, and that was enough, particularly given T.A.L. doesn’t identify any deficiency in the notice. (¶¶20-23). The court does not condone the one-size-fits-all notice, however, and the county had advised the court it is no longer using that form. (¶¶4, 22).

T.A.L. also argued his original commitment order doesn’t authorize inpatient treatment, so the only method to transfer him was to allege and prove violation of a treatment condition. (¶24). But this argument wasn’t raised in the circuit court and, the court says, it isn’t supported by legal authority; thus, the court doesn’t fully address the argument beyond noting it “is at odds with the statutory scheme and Wis. Stat. § 51.35 specifically, which sets forth detailed procedures for medical need transfers without reference to the patient’s court-ordered maximum level of care. Thus, our supreme court … applied § 51.35 in a nearly identical factual scenario, to review the transfer of a person committed outpatient and later transferred inpatient, pursuant to the same order, to treat a medical need. See [Manitowoc County v.] Samuel J.H., [2013 WI 68,] 349 Wis. 2d 202, ¶¶6-7, 14, 33[, 833 N.W.2d 109].” (¶24).

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