Individuals with Alzheimer’s Disease Cannot Be Involuntarily Committed Under Chapter 51

By 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 commitment.

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 permanent.

“[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 interest.

“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 disorder.”

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 disease.

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.

Concurring opinion

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.

Attorneys

William Bendt, corporation counsel for Fond Du Lac County, represented the county. Assistant State Public Defender Donald Lang represented Helen E.F.

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 Assoc.