April 27, 2011 – Noting the issue as one of “great public import,” the District II Wisconsin Court of Appeals today concluded that persons with Alzheimer’s disease cannot, as a matter of law, be involuntarily committed to an institution for treatment and rehabilitation.
In April 2010, Fond du lac County instituted Wis. Stat. chapter 51 involuntary commitment proceedings against an 85-year-old woman (Helen) suffering from Alzheimer’s disease. Helen lives in a nursing home, suffers from dementia, and has limited verbal communication.
In general, chapter 51 allows counties to petition for the involuntary commitment and treatment of mentally ill, drug dependent or developmentally disabled persons who evidence “a substantial probability of physical harm” to themselves or others.
When Helen’s behavior became disruptive and aggressive, staff transported her to a hospital. Shortly thereafter, the county instituted involuntary commitment proceedings, arguing that treatment would not cure Helen’s dementia, but would control her aggressive behavior. A psychiatrist testified that Helen’s agitation and aggressiveness could be treated with medications that have calming effects.
Ultimately, the circuit court ruled for the county, finding grounds for Helen’s involuntary commitment and medicinal treatment. Helen, whose appearance at all proceedings was waived because “she would not understand or comprehend or be able to participate meaningfully,” appealed through her court-appointed state public defender.
In Fond du lac County v. Helen E.F., 2010AP2061 (April 27, 2011), a Wisconsin appeals court reversed, holding that persons with “degenerative brain disorders” like Alzheimer’s cannot be committed involuntarily for rehabilitation and treatment under chapter 51.
However, the opinion – written by Judge Daniel Anderson – makes clear that persons with Alzheimer's disease can still be involuntarily committed for residential care and custody under chapter 55. That custody and care could include involuntary administration of psychotropic medication to manage challenging behavior. The distinction is that persons with Alzheimer's disease can't be involuntarily committed for treatment under chapter 51.
Issue of great import
The appeals court cited a report entitled “Handcuffed: A Report of the Alzheimer’s Challenging Behaviors Task Force,” which indicates that 110,000 Wisconsin residents are living with Alzheimer’s disease.
The task force was convened following the death of Richard Peterson, an 85-year-old man with late stage dementia, who was placed under emergency detention for challenging behavior and later transported to the Milwaukee County Behavioral Health Division “where his family found him tied in a wheel chair with no jacket or shoes,” the report notes. He later developed pneumonia and died.
Noting the importance of protecting people living with Alzheimer’s, the court explained that “all too often,” facilities rely on chapter 51 commitments to remove residents with challenging behaviors. The task force reported that using chapter 51 to deal with challenging behaviors in persons with dementia – or administering psychotropic drugs – can lead to trauma, complications, and even death. The report noted that more “promising practices” can help facilities manage challenging behaviors.
“One way to measure the greatness of our society is to look at how we treat our weakest members,” Judge Anderson wrote. The court also relied on the task force report to conclude that Wisconsin counties are not uniform in the way they apply chapter 51 to people who have Alzheimer’s disease.
“Helen’s case provides the opportunity to clarify the proper application of Wis. Stat. ch. 51 and eliminate the variation in ways counties apply the law to people who have Alzheimer’s and related dementias,” Judge Peterson wrote.
Persons with Alzheimer’s not subject to chapter 51
Persons with Alzheimer’s suffer from a “degenerative brain disorder,” which is not a qualifying mental condition that will subject such persons to involuntary commitment proceedings, the appeals court held.
Although chapter 51 allows involuntary commitment of mentally ill, drug dependent, or developmentally disabled persons who evidence “a substantial probability of physical harm” to themselves or others, the appeals court concluded that “degenerative brain disorder” falls outside what is considered “mentally ill” or “developmentally disabled” as those terms are defined.
The court also concluded that persons with Alzheimer’s could not be “treated” as that term is defined in chapter 51 because “rehabilitation is a necessary element of treatment” and “there are no techniques that can be employed that can bring about rehabilitation from Alzheimer’s.”
In short, the court concluded that Helen was not a proper subject for involuntary commitment and treatment. In making that conclusion, the court ruled that no person can be involuntarily committed under chapter 51 as a result of behaviors stemming from Alzheimer’s disease.
Persons with "degenerative brain disorders" still subject to chapter 55
In general, chapter 55 allows a court to order the protective placement of individuals who demonstrate a need for residential care and custody. The statute specifically includes persons with "degenerative brain disorders" as among those subject to protective placement if they are incapable of providing for their own care or custody and thus create a substantial risk of serious harm to themselves or others.
Thus, while chapter 51 does not specifically mention persons with "degenerative brain disorders" as among those subject to involuntary commitment, chapter 55 does. Thus, persons with Alzheimer's disease are still subject to involuntary commitment for residential care, which could include involuntary administration of medication.