Dual diagnosis does not preclude involuntary commitment for treatment, appeals court says

By Joe Forward, Legal Writer, State Bar of Wisconsin

May 3, 2011 – A dual diagnosis does not mean a person can’t be involuntarily committed for treatment, a Wisconsin appeals court recently concluded. In addition, the court clarified situations that arise when chapters 51 and 55 provisions collide.

Dane County filed a petition to involuntarily commit Kelly, a developmentally disabled woman with bipolar affective disorder. Kelly, who was subject to an order for protective placement and services under chapter 55, began exhibiting dangerous behavior before the petition was filed.

The Dane County Circuit Court ordered that Kelly be committed to the county's custody for outpatient treatment, with a condition that she take all psychotropic medication prescribed.

Under Wis. Stat. chapter 51, persons may be involuntarily committed for treatment if they are mentally ill, drug dependent or developmentally disabled, and exhibit dangerous behaviors. Under section 51.20(1)(a)2.e, a mentally ill person that cannot understand the advantage or disadvantage of accepting medication or treatment demonstrates a dangerous behavior, the so-called fifth standard.

The crux of this issue is that the fifth standard to determine dangerousness contemplates mentally ill persons only, not persons alleged to be drug dependent or developmentally disabled.

Kelly argued that the fifth standard of determining a person’s dangerous behavior does not apply “if the individual is both mentally ill and either drug dependent of developmentally disabled.” The county argued that a dual diagnosis does not preclude commitment.

In Dane County v. Kelly M., 2010AP1486 (April 28, 2011), the District IV Wisconsin Court of Appeals sided with the county, concluding the relevant chapter 51 provisions do not preclude commitment of a mentally ill person “simply because the person is also drug dependent or developmentally disabled.”

The appeals court – in an opinion written by Judge Margaret Vergeront – reasoned that the purpose of the fifth standard is to protect mentally ill persons who cannot make decisions about treatment.

“We see no logical reason to exclude persons from this preventative alternative” based on a dual diagnosis, Judge Vergeront wrote. The court rejected the argument that “it is difficult to separate the effects of a mental illness from the effects of drug dependency and developmental disability.”

Substantial probability and interaction with chapter 55

The fifth standard also requires the county to show evidence of a substantial probability that the individual needs care or treatment to prevent further deterioration and will lack “services” necessary for health and safety if left untreated. Kelly argued that medication does not constitute a “service.”

The appeals court disagreed: “There is no dispute that this definition includes the medications that Kelly was prescribed. These medications are therefore ‘services’ and Kelly has acknowledged that she did not consistently ‘avail’ herself of them.”

The court also rejected Kelly’s argument that the “substantial probability” of suffering severe mental, emotional, or physical harm that allows involuntary commitment under the fifth standard of chapter 51 is not present if the person is subject to protective placement services under chapter 55.

In other words, Kelly argued that she could not be involuntarily committed under the fifth standard in chapter 51 if already subject to placement and services under chapter 55.

“It is unreasonable to preclude persons from being committed for treatment under the fifth standard simply because they are or could be the subject of a Wis. Stat. ch. 55 order,” Judge Vergeront wrote.

The court rejected several of the county’s interpretations before concluding that such an exclusion would apply only if “there is another placement or additional services available under Wis. Stat. ch. 55 that would be effective in reducing the probability of the requisite harm to less than a substantial probability.”

The court noted that remanding the case for further proceedings was unnecessary because Kelly recently died, but explained in a footnote that these significant issues “frequently arise and their resolution will provide guidance to circuit courts and litigants.”