Individuals with Alzheimer’s Disease Cannot Be Involuntarily
Committed Under Chapter 51
The Wisconsin Supreme Court recently ruled that local governments
seeking the involuntary commitment of persons with Alzheimer’s
disease or other incurable disorders must use procedures under Wis.
Stat. ch. 55, which grants greater protections to individuals in
need of long-term care.
By org jforward wisbar Joe Forward, Legal Writer,
State Bar of Wisconsin
May 21, 2012
– Last week the Wisconsin Supreme Court clarified that persons
with Alzheimer’s disease or incurable disorders cannot be
involuntarily committed under a statutory scheme designed for short-term
commitment and treatment of mentally ill individuals.
In 2010, Fond Du Lac County instituted proceedings under the
state’s Alcohol, Drug Abuse, Developmental Disabilities and Mental
Health Act (Wis. Stat.
ch. 51) for the involuntary commitment and treatment of an
85-year-old woman (Helen).
In general, ch. 51 allows a county to petition for involuntary
commitment of persons with mental disorders or illnesses, developmental
disabilities, or alcohol or drug problems.
Helen, who suffers from Alzheimer’s disease and had been living
in a nursing home, began exhibiting aggressive behavior toward
caregivers. She was eventually transported to an emergency room for
medical treatment, resulting in the petition for involuntary
Ultimately, a circuit court granted the county’s petition for
involuntary commitment under ch. 51, which would allow the county to
place Helen in a psychiatric unit, initially for up to six months, and
administer psychotropic medication if deemed necessary to treat her.
However, the court of appeals reversed,
concluding that Helen was not a proper subject for treatment under ch.
51. In Fond
Du Lac County v. Helen E.F., 2012 WI 50 (May 18, 2012), a
Wisconsin Supreme Court unanimously affirmed the court of appeals.
The State Bar’s Elder Law Section, which obtained approval from
the State Bar’s Board of Governors to file an amicus brief in the
case, opposed the use of Wis. Stat. ch. 51 mental commitment proceedings
for persons with Alzheimer’s disease.
Chapter 51 versus Chapter 55
The supreme court ruled that persons with Alzheimer’s disease or
other incurable disorders can only be committed under Wis. Stat.
ch. 55, which governs protective services.
In general, ch. 55 allows a county to involuntarily commit incompetent
persons who have a primary need for residential care and custody and
pose a substantial risk of harm to themselves because of a developmental
disability, degenerative brain disorder, or serious and persistent
mental illness. The condition must be permanent or likely to be
“[Chapter] 55 was specifically tailored by the legislature to
provide for long-term care of individuals with incurable disorders,
while ch. 51 was designed to facilitate the treatment of mental
illnesses suffered by those capable of rehabilitation,” wrote
Justice Michael Gableman.
The court explained that ch. 55 restricts the types of placement
facilities and requires appointment of a guardian ad litem (GAL) to
advocate for the client’s best interest, including whether the use
of psychotropic medication is appropriate under the circumstances.
Under ch. 51, by contrast, individuals can be involuntarily committed
and treated with psychotropic drugs for up to six months initially, in a
wider range of facilities than ch. 55 placements, and with no GAL
appointment required to represent the individual’s best
“Because Helen’s disability is likely to be permanent, she
is a proper subject for protective placement and services under ch. 55,
which allows for her care in a facility more narrowly tailored to her
needs, and which provides her necessary additional process and
protections,” Justice Gableman wrote.
The court also ruled that Helen was not a “proper subject for
treatment,” a requirement to be involuntarily committed under ch.
51, because she was not capable of rehabilitation.
“We conclude that Helen is not a proper subject for treatment
because while her Alzheimer’s Disease may be managed, she is
medically incapable of rehabilitation,” Gableman wrote.
The court followed previous case law to conclude that a person is not
capable of rehabilitation, and thus outside the scope of ch. 51,
“if treatment will maximize the individual functioning and
maintenance of the subject, but not help in controlling or improving the
But treatment cannot control or improve Alzheimer’s disease, the
court explained. That is, psychotropic drugs can ameliorate some
symptoms of Alzheimer’s disease, like the aggression that Helen
was exhibiting, but medication can’t treat the underlying
By contrast, the court explained, ch. 55 does not require a person to
be a proper subject for treatment. “Indeed, ch. 55 has the exact
opposite objective: long-term care of people who will likely never be
cured,” Justice Gableman wrote.
Court does not address dual diagnosis
The court did not answer the question of whether a person can be
involuntarily committed under ch. 51 if the individual has been
diagnosed with Alzheimer’s or some other incurable mental disease,
plus some other condition that would qualify as “treatable”
under ch. 51.
“Instead, like the court of appeals, we ‘leave for another
day the question of what is proper under the law when a person has a
dual diagnosis of Alzheimer’s and a Wis. Stat. ch. 51 qualifying
illness,” Gableman explained.
Chief Justice Shirley Abrahamson wrote a concurring opinion (joined by
Justice Ann Walsh Bradley). She agreed with the majority’s
ultimate conclusion: That ch. 55 was the proper procedure for the county
to take in seeking Helen’s involuntary commitment.
But she wrote separately to explain several concerns, primarily to
highlight the difficulty in interpreting ch. 51 and ch. 55 and the broad
implications of the majority’s opinion.
“The broadest reading of the opinion would be that any person
with an ‘incurable condition’ may not be involuntarily
committed under [chapter 51],” the chief justice wrote.
“Although I agree with the result reached in the majority
opinion, I am concerned that the opinion may have broad implications for
many people who fall within the scope of Chapters 51 and 55 and for
local governments,” she concluded.
William Bendt, corporation counsel for Fond Du Lac County, represented
the county. Assistant State Public Defender Donald Lang represented
Amicus briefs were filed by: the Wisconsin Assoc. of County Corporation
Counsels; the Coalition of Wisconsin Aging Groups; the Alzheimer’s
Assoc. of Southeastern Wisconsin; Disability Rights Wisconsin; the State
Bar of Wisconsin’s Elder Law Section and the Wisconsin Chapter of
the National Academy of Elder Law Attorneys; and the Wisconsin Counties