State Supreme Court expands protections for involuntarily committed people

A.W. Bradley

By Margo Kirchner

​Trial courts must issue specific factual findings on why a person is a danger to self or others before extending an involuntary commitment, the Wisconsin Supreme Court recently held.

Moreover, said the court, general concerns regarding a person’s mental state, inability to maintain employment, and inability to care for oneself are not sufficient for a finding of dangerousness. Justice Ann Walsh Bradley authored the court’s opinion in Langlade County v. D.J.W.

Chief Justice Patience Drake Roggensack dissented, saying she would have recommitted D.J.W. on grounds that Langlade County never even raised in Circuit Court or on appeal. Justice Rebecca Grassl Bradley also dissented, on different grounds.

In January 2017, a circuit court in Langlade County found D.J.W. mentally ill, dangerous, and in need of treatment. The court committed D.J.W. to custody for six months and ordered involuntary treatment and medication. In June 2017, Langlade County petitioned to recommit D.J.W. for a year.

The Circuit Court appointed Dr. John Coates to examine D.J.W. in connection with possible recommitment. Though Coates wrote a report following the examination, at the July 2017 recommitment hearing the County presented only Coates’ oral testimony. The report was not admitted as evidence.

Coates testified at the hearing that D.J.W. had schizophrenia, a history of hallucinations over three years, and an illogical thought process with “grandiose illusions.” Coates said D.J.W. reported seeing the devil and hearing voices in the months prior to the hearing and that D.J.W.’s illness was treatable with psychotropic medication.

When asked whether D.J.W. was a danger to himself or others, Coates opined that if D.J.W. were to end treatment he would likely exacerbate his illness and experience hallucinations. But, said Coates, “the greater risk is just his inability to properly care for himself and to properly socialize if he goes untreated.”

Coates noted that D.J.W. had been living with his parents, quit his job because he thought he was the Messiah, and obtained disability benefits. To the doctor, these facts suggested that D.J.W. could not independently care for himself and would be homeless if his parents did not provide shelter. Coates thought D.J.W.’s judgment was still impaired.

Coates testified that he did not know if D.J.W. was suicidal or homicidal. But, he said, acutely psychotic individuals’ actions are unpredictable and for D.J.W. suicidal and homicidal ideations were possible.

Coates reiterated that the “major danger” to D.J.W. was that if he stopped medications he would be delusional and hallucinating and unable to interact appropriately with others. Coates continued: “So the major danger is to himself. I don’t think he’s necessarily a violent man that’s going to go out and harm others.”
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On cross-examination, when pressed about how D.J.W. quitting his job showed dangerousness, Coates responded that D.J.W. lost his employment and could not provide for his basic needs, had been found disabled, and would be homeless without his parents’ help.

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D.J.W. was the sole witness opposing the County’s petition. He confirmed much of what Coates said, testifying that he heard voices, saw things that others did not, and believed he was the Messiah with a mission of ending global warming. He said he received help from his family and obtained disability benefits. He said he disliked his medication.

Following the hearing, Langlade County Circuit Judge Gregory E. Grau recommitted D.J.W. for one year. Grau found that D.J.W. suffered from a treatable mental illness and that given D.J.W.’s hallucinations and delusions he would be a significant danger to himself. Further, Grau found that D.J.W. was incapable of understanding the advantages and disadvantages of treatment, so he ordered involuntary medication.

D.J.W. unsuccessfully challenged the orders in the Wisconsin Court of Appeals.

The Supreme Court accepted the case last year, even though by then the recommitment order had ended and D.J.W.’s own case was moot. The court found that the question of what evidence is required to support involuntary commitment was of great importance and that it often evades appellate review, justifying continuation of the case to give necessary guidance to circuit courts.

Between oral argument in the Supreme Court and issuance of the court’s decision, D.J.W. passed away. The court found that D.J.W.’s case should continue despite his death given the significant liberty interests at stake in involuntary commitment proceedings.

D.J.W.’s initial commitment and treatment required findings of dangerousness based on acts or omissions preceding that time. Ann Walsh Bradley wrote that under applicable statutes, recommitment requires a new finding of dangerousness.

 “It is not enough that the individual was at one point dangerous…. ‘[E]ach extension hearing requires proof of current dangerousness,’” she said.

The county bore the burden to show dangerousness through clear and convincing evidence.

The statute allowing commitments specifies five ways for the County to establish dangerousness. In D.J.W.’s initial proceedings, the court found that D.J.W. had an inability to satisfy basic needs for nourishment, medical care, shelter or safety causing a “substantial probability” of death, serious physical injury, debilitation or disease.

In the recommitment proceedings Langlade County failed in the lower courts to cite any specific statutory section under which D.J.W. was dangerous. Then, before the Supreme Court it chose a new one, arguing that D.J.W. had impaired judgment causing a substantial probability of physical injury to himself or others.

The Supreme Court found the “conflicting messages from the County and the court of appeals regarding the statutory basis for this commitment” unacceptable.
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“[T]o avoid this problem in the future, . . . circuit courts in recommitment proceedings are to make specific factual findings with reference to the… (specific statute section) on which the recommitment is based,” said Bradley. Such findings provide clarity and protection for patients regarding the basis for recommitment and ensure the soundness of judicial decisions, wrote Bradley.

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“It is not enough that the individual was at one point dangerous…. ‘[E]ach extension hearing requires proof of current dangerousness.’” – A.W. Bradley

The court then agreed with D.J.W. that the County failed to support a finding of dangerousness under either statutory section it cited.

Coates had testified to D.J.W.’s inability to care for himself. But inability to care for oneself does not equate with a substantial probability that death or serious injury, debilitation, or disease would occur if treatment terminated, as required by statute, said Bradley. “Nothing in Dr. Coates’ testimony even hints at a serious physical consequence to D.J.W. if treatment were to be discontinued. His testimony on this subject relied only on generalized propositions with regard to people with schizophrenia, not anything specific To D.J.W.”

Further, she said, because D.J.W.’s family was willing to help him, recommitment was at odds with U.S. Supreme Court precedent that takes such help into account.

Nor did Coates’ testimony support any finding that D.J.W.’s impaired judgment would result in his or others’ physical impairment or injury.

“A diagnosis of schizophrenia, by itself, does not demonstrate the requisite ‘substantial probability of physical impairment,’” she wrote.

Roggensack, in her dissent, said she would have affirmed recommitment under a different standard for dangerousness set forth in the statute.

That standard indicates that an individual can be found dangerous when mental illness renders him incapable of making informed treatment decisions, it is probable that he needs care or treatment to prevent disability or deterioration, and there exists a substantial probability that he will lose the ability to care for himself or control his thoughts or actions.

At no time did Langlade County argue that D.J.W. should be recommitted under that standard.
Roggensack wrote that the court considering a petition for recommitment under her chosen standard should look at the individual’s complete mental health record, not only evidence concerning the time just before the recommitment hearing.

Roggensack looked back at D.J.W.’s history of mental illness and the doctors’ reports filed for D.J.W.’s initial commitment hearing in January 2017. She also referenced Coates’ later report, even though it was not admitted into evidence at the recommitment hearing. In light of that record and the testimony at the hearing, Langlade County met its burden to establish dangerousness,, she wrote.

Justice Rebecca Bradley also dissented. She would have dismissed the case as moot because D.J.W. died while the case was pending.
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In her view, the rationale for reaching the merits of an appeal when a criminal defendant dies, on which the majority relied, did not apply to an appealed civil commitment on discretionary review in the Supreme Court. Further, she said, the majority’s direction to circuit courts regarding required findings could be deduced from prior decisions of the court.