June 13, 2017 – A man suffering from paranoid schizophrenia will continue to be the subject of a Waukesha County involuntary commitment order because he was determined to be “a proper subject for treatment” under Wis. Stat. section 51.20(1).
In Waukesha County v. J.W.J., 2017 WI 57 (June 8, 2017), the Wisconsin Supreme Court affirmed an appeals court decision that the commitment should be renewed and that Mr. J. was a proper subject for treatment because he has rehabilitative potential.
Mr. J., a 55-year-old Waukesha County resident, has been subject to involuntary commitment orders for treatment of his paranoid schizophrenia for decades.
Mr. J. has argued that further involuntary commitment and treatment will not rehabilitate him, so he is not a “proper subject for treatment.”
Mr. J. has had struggles with mental illness through much of his life. In addition to serving an 18-month jail sentence, he has had several hospitalizations that occurred after a period of refusing medication, with the result that Mr. J. became increasingly more paranoid, exhibited rambling speech, and experienced command-type auditory hallucinations to kill himself or others.
At the time of the county’s petition to the Waukesha Circuit Court to extend the involuntary commitment in 2015, Mr. J. had been attending his appointments, receiving medication, and living independently in the community. He had no further inpatient hospitalizations during the previous order.
The medical expert called by the county to testify noted that Mr. J. had been compliant with psychotropic medications but Mr. J. stated he is “allergic” to them. In the expert’s opinion, Mr. J. is “mentally ill, dangerous, and is an appropriate subject for outpatient treatment, and that psychotropic medication would be therapeutically valuable to him.”
Deborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.
The expert further noted that, “Mr. J. continues to be a patient who has a history of improved behaviors when appropriately medicated and deterioration in the ability to function in the community when not appropriately medicated.”
Justice Daniel Kelly, in drafting the court’s opinion, noted that the state’s statutes provide for involuntary commitment when an individual is mentally ill, is a proper subject for treatment, and the individual is dangerous.
One of the ways the county can satisfy the “dangerousness” prong of the test when petitioning to extend a term of commitment is by showing “a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for treatment if treatment were withdrawn.”
In this case, Mr. J. did not dispute his mental illness or his dangerousness, only that he is a “proper subject for treatment.” The heart of his argument was that he does not believe he can be rehabilitated, and if he cannot be rehabilitated, then he cannot be a proper subject for treatment that is subject to an involuntary commitment order.
Mr. J. argued that the court’s definition of “rehabilitation” should be modified to only inquire into whether the treatment would “improve his disorder,” which by his definition, would mean that treatment would need to continually improve his condition until he experienced either a cure or a plateau beyond which no further improvement is possible. The court declined to do so.
Instead, Justice Kelly wrote, “[R]ehabilitation is not synonymous with cure. … An individual with an incurable physical or mental illness or disability may still be considered capable of rehabilitation and able to benefit from treatment in the sense that symptoms can be controlled and the ability to manage the illness ameliorated.”
“The uncontroverted facts show that Mr. J. has rehabilitative potential,” Justice Kelly noted. “[H]is treatment is so effective at controlling his symptoms that he can live in society while taking his treatment as an outpatient.”
In contrast, as the medical expert noted in the circuit court hearing, without treatment Mr. J.’s condition would inevitably decline to the point he would have to be confined so he could receive inpatient treatment.
As a result, the supreme court concluded that if a treatment “controls symptoms to such a degree that withdrawing it would subject the patient to a more restrictive treatment alternative, then the treatment controls enough symptoms to establish the patient has rehabilitative potential.”
Justice Shirley Abrahamson wrote separately, joined by Justice Ann Walsh Bradley, noting problems with the court’s test for determining rehabilitative potential.
Mr. J. challenged the analytical framework, established in Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179, which reviews whether treatment can control symptoms to the point that a patient is deemed to have rehabilitative potential.
Abrahamson noted that Mr. J. has been in committed under Ch. 51 for almost a decade. Ch. 51 are intended as short-term commitments, whereas Wis. Stat. chapter 55 governs commitments of persons with disabilities that are likely to be permanent.
“This distinction matters,” she wrote. “Although both provide for involuntary commitments, Chapter 55 contains numerous additional procedures and protections for an individual subject to a long-term commitment that Chapter 51 simply doesn't.”
“Unfortunately, the court maintains the confusing test it adopted in Helen E.F., failing to differentiate Chapter 51 commitments from Chapter 55 commitments.”
Justice Abrahamson suggested that the Wisconsin Legislature should “reassess the goals and intended scope of the two chapters.”