Fond du Lac County v. Helen E. F.

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Justia Opinion Summary

Helen E.F. was an 85-year-old woman with Alzheimer's Disease. Helen was transported to the emergency room in the city of Fond du Lac for medical treatment. While there, Helen exhibited agitated and aggressive behavior. A police officer placed Helen under emergency detention pursuant to Wis. Stat. 51.15, and Fond du Lac County initiated a chapter 51 proceeding to involuntarily commit her for treatment. The circuit court eventually granted the petition for Helen's involuntary commitment for up to six months in a locked psychiatric unit. The court of appeals reversed, determining that the primary purpose of chapter 51 was to provide treatment, and because Alzheimer's Disease does not respond to treatment, involuntary commitment under chapter 51 was inappropriate. The Supreme Court affirmed, holding that Helen was more appropriately treated under the provisions of chapter 55, the protective service system, which would allow for her care in a facility more narrowly tailored to her needs and provide her necessary additional process and protections.

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2012 WI 50 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2010AP2061 In the matter of the mental commitment of Helen E. F.: Fond du Lac County, Petitioner-Respondent-Petitioner, v. Helen E. F., Respondent-Appellant. REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at: 333 Wis. 2d 740, 798 N.W. 2d 707 (Ct. App 2011 Published) PDC No: 2011 WI App 72 OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: May 18, 2012 December 2, 2011 Circuit Fond Du Lac Richard J. Nuss ABRAHAMSON, C.J., concurs (Opinion filed). BRADLEY, J., joins concurrence. PROSSER, J., did not participate. ATTORNEYS: For the petitioner-respondent-petitioner there were briefs filed and oral argument by William J. Bendt, corporation counsel. For the respondent-appellant, there was a brief and oral argument by Donald T. Lang, assistant state public defender. An amicus curiae brief was filed by Dawn N. Klockow, Chilton and Ryan O Rourke, Manitowoc, for the Wisconsin Association of County Corporation Counsels; Maren Beermann, Madison, for the Coalition of Wisconsin Aging Groups and Tom Hlavacek, Milwaukee, for the Alzheimer s Association of Southeastern Wisconsin; Kristin M. Kerschensteiner, Madison, for Disability Rights Wisconsin; Carol J. Wessels and Nelson, Irvings & Waeffler, S.C., Wauwatosa, and Peter E. Grosskopf and Grosskopf & Black LLC, Eau Claire, for the Elder Law Section of the State Bar of Wisconsin and the Wisconsin Chapter of the National Academy of Elder Law Attorneys; and Andrew T. Phillips, Daniel J. Borowski, Patrick C. Henneger and Phillips Borowski, S.C., Mequon, for the Wisconsin Counties Association. 2 2012 WI 50 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2010AP2061 (L.C. No. 2010ME146) STATE OF WISCONSIN : IN SUPREME COURT In the matter of the mental commitment of Helen E. F.: FILED Fond du Lac County, Petitioner-Respondent-Petitioner, v. MAY 18, 2012 Diane M. Fremgen Clerk of Supreme Court Helen E. F., Respondent-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 MICHAEL J. GABLEMAN, J. We review Affirmed. a published decision of the court of appeals1 reversing an order of the circuit court for Fond du Lac County, Richard J. Nuss, Judge. ¶2 We are asked to decide whether Helen E.F. ("Helen") may be involuntarily committed under Wis. Stat. ch. 51 (20091 Fond du Lac County v. Helen E.F., 2011 WI App 72, 333 Wis. 2d 740, 798 N.W.2d 707. No. 10).2 2010AP2061 After reviewing chs. 51 and 55, we hold that Helen is more appropriately treated under the provisions provided in ch. 55 rather than those in ch. 51. 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. conclude that Helen is not a proper subject for We treatment because while her Alzheimer's Disease may be managed, she is not medically capable of rehabilitation, as required by the chapter. For these reasons, we agree with the court of appeals that Helen was improperly committed under ch. 51 and we therefore affirm. I. ¶3 FACTS AND PROCEDURAL HISTORY The facts of this case are undisputed. Helen E.F. ( Helen ) is an 85-year-old woman who resided in a Fond du Lac, Wisconsin nursing home for six years prior to the commencement of this action. symptoms include She suffers from Alzheimer's Disease,3 and her progressive dementia, memory loss, the 2 All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 3 Alzheimer's Disease is a "neurodegenerative disorder characterized by . . . neuropathologic changes." Edward T. Bope & Rick D. Kellerman, Conn s Current Therapy 901 (2011). In other words, the disease is a "progressive, irreversible brain disorder that robs those who have it of memory and overall mental and physical function, and eventually leads to death." Christopher I. Wright, et al., Massachusetts General Hospital Comprehensive Clinical Psychiatry 234 (Theodore A. Stern, et al., ed. 2008). 2 No. inability to learn new information, and 2010AP2061 limited verbal communication. ¶4 Helen began exhibiting April 2010. manifested aggressive behavior in early This behavior included agitation and aggression by striking out at caregivers while toileting, dressing, and bathing, and refusing both meals and medication. On April 12, 2010, Helen was transported to the St. Agnes Hospital emergency room in the city of Fond du Lac for medical treatment. Helen While receiving treatment at the emergency room, continued to exhibit the same behaviors that she had exhibited in the nursing home agitation and aggression. ¶5 placed Due to Helen s behavior, a Fond du Lac police officer her in the hospital s behavioral health unit under emergency detention pursuant to Wis. Stat. § 51.15, and Fond du Lac County ("County") involuntarily commit her initiated for a ch. 51 treatment. At proceeding the to statutorily required probable cause hearing 72 hours4 later, on April 15, 2010, a court commissioner concluded existed to proceed under ch. 51. that no probable cause The court commissioner then converted the ch. 51 petition to a ch. 55 protective placement action and issued an order for a 30-day protective placement.5 ¶6 On May 15, 2010, the day the 30-day time period to proceed with a Wis. Stat. ch. 55 placement expired, the County filed a second ch. 51 petition. 4 See Wis. Stat. § 51.20(7)(a). 5 See Wis. Stat. § 51.20(7)(d). 3 At the preliminary (probable No. cause) hearing for this second ch. 51 petition, the 2010AP2061 circuit court heard testimony from Dr. Brian Christenson, who treated Helen during her 30-day ch. 55 emergency placement at the St. Agnes Behavioral Health Unit. In the course of testifying about Helen's condition, Dr. Christenson stated that he believed that Helen suffered from "senile dementia of the Alzheimer s type," more commonly known as Alzheimer's Disease. Additionally, Dr. Christenson testified that Helen's "cognitive deterioration is not treatable . . . ." ¶7 At the final commitment hearing6 on the second Wis. Stat. ch. 51 petition, the circuit court heard testimony from Dr. Robert Rawski, one of two physicians who had been appointed by the circuit court to examine Helen.7 Dr. Rawski testified that although Helen suffered from Alzheimer's Disease, which "is not considered to be a treatable mental disorder," he believed Helen was a proper subject for treatment because her behavioral disturbances were controllable through medications. ¶8 circuit Based on Dr. court found Rawski's that Helen uncontroverted was a testimony, proper subject the for involuntary commitment under Wis. Stat. ch. 51, and granted the petition for Helen s involuntary commitment for up to six months in a locked psychiatric unit. 6 See generally Wis. Stat. § 51.20(10). 7 See Wis. Stat. § 51.20(9)(a). Pursuant to § 51.20(9)(a), the circuit court appointed Dr. Rawski and Dr. Sangita Patel. Although Dr. Patel provided a written report, she did not provide testimony at the final commitment hearing. 4 No. ¶9 Helen appealed, and the court of appeals reversed and remanded the cause to the circuit court. Helen E.F., N.W.2d 707. the 2010AP2061 2011 WI App 72, Fond du Lac County v. ¶34, 333 Wis. 2d 740, 798 The court of appeals determined, inter alia, that primary purpose of Wis. Stat. ch. 51 is to provide treatment, and because Alzheimer's Disease does not respond to treatment, involuntary inappropriate. commitment Id., ¶27. under ch. 51 was Accordingly, the court of appeals determined that Helen was not a proper subject for treatment under ch. 51. Id., ¶1. The County petitioned this court for review, which we granted on August 31, 2011. II. ¶10 STANDARD OF REVIEW This case requires us to construe specific provisions of Wis. Stat. ch. 51. The interpretation of a statute is a question of law that we review de novo. Hocking v. City of Dodgeville, 2010 WI 59, ¶17, 326 Wis. 2d 155, 785 N.W.2d 398. We interpret statutes independently, but benefit from both our prior analyses and those of prior courts. State v. Henley, 2010 WI 97, ¶29, 328 Wis. 2d 544, 787 N.W.2d 350. III. ¶11 The legislature DISCUSSION has consistently demonstrated its concern for the protection of individuals suffering from mental infirmities. chapters of This is the announced legislative purpose of two the Wisconsin statutes: Chapter 51, the "Mental Health Act," and Chapter 55, the "Protective Service System." See Wis. Stat. § 51.001(1) ("It is the policy of the state to assure the provision of a full 5 range of treatment and No. rehabilitation services . . . ."); § 55.001 ("This 2010AP2061 chapter is designed to establish . . . protective services and protective placements, [and] to assure their availability individuals when in need of them . . . ."). to all The existence of these two different chapters demonstrates that the legislature has created two separate and distinct avenues by which counties may provide medical placement and services to those persons who, because of some disability, are "impaired" in their daily lives and unable obtain such services for themselves. ¶12 In constructing these two avenues, the legislature also established strict rules and boundaries for the provision of care to disabled individuals, demonstrating its commitment "to plac[ing] the least possible restriction on personal liberty and [on the] exercise of constitutional rights consistent with due process." Wis. Stat. § 55.001; see also § 51.001(2) (voicing concern for the personal liberties of those committed under ch. 51). require that institutions These counties in situation, rather given case. rules, must accordance set forth in commit or place with than choosing the which chs. 55 individuals individual's chapter and to 51, in specific apply in a Accordingly, we begin our analysis by reviewing both chs. 55 and 51 to determine which contains the mechanisms most suited to Helen's condition. A. CHAPTERS 55 AND 51 ¶13 Wis. Stat. ch. 55 provides Helen with the best means of care. This is so because ch. 55 was specifically tailored by the legislature to provide for long-term care of individuals 6 No. with incurable disorders, while ch. 51 was 2010AP2061 designed to facilitate the treatment of mental illnesses suffered by those capable of rehabilitation. the most appropriate To demonstrate why ch. 55 provides statutory framework for treating individuals such as Helen, we begin with an overview of its procedures, which provide for both protective placement and services. ¶14 § 55.08 Beginning requires with that protective a circuit placement, court Wis. determine that Stat. four elements are met before ordering a protective placement under ch. 55. The individual to be protected must: 1) have "a primary need for residential care and custody"; 2) be "an adult who has been determined to be incompetent by a circuit court"; 3) be "so totally incapable of providing for . . . her own care or custody as to create herself" a because substantial risk of of "a developmental serious harm disability, to . . . degenerative brain disorder, serious and persistent mental illness, or other like incapacit[y]"; and 4) have "a disability that is permanent or likely to be permanent." ¶15 services, Similarly, a circuit elements are met. in § 55.08(1)(a-d). order court to must be eligible determine that for the protective following First, the individual must be "determined to be incompetent by a circuit court." Wis. Stat. § 55.08(2)(a). Second, the circuit court must determine that "[a]s a result of developmental disability, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual will incur a substantial risk of physical harm or 7 No. 2010AP2061 deterioration or will present a substantial risk of physical harm to others if protective services are not provided." § 55.08(2)(b). ¶16 These elements must be stated in a petition for protective services or protective placement filed by the county with the circuit court. the petitioner protected, as exists. must well See Wis. Stat. § 55.075. provide as § 55.09(1-2). to notice that to the individual's Upon filing, individual guardian, to be if one If the individual has no guardian, the court must appoint a guardian ad litem ("GAL") on behalf of the individual.8 ¶17 § 55.10(4)(b). Except in the case of emergency services, the circuit court must hold a hearing to determine whether the four elements for protective placement and two elements for services are met by clear and convincing evidence. § 55.10(4)(d); see also § 55.08. court may take testimony from protective Wis. Stat. At this hearing, the circuit the individual or individuals assigned to conduct the required comprehensive analysis of the individual to be protected. See § 55.11. the hearing, order the court may 8 a At the conclusion of protective placement and Because one of the required elements for both protective placement and services under Wis. Stat. § 55.08(1) is a finding by the circuit court that the individual in need of protective services is incompetent, the requirements of §§ 54.01(16) and 54.10(3) apply. Therefore, it is impossible under the current statutory scheme for an individual to be subject to protective placement or services under ch. 55 without the benefit of a guardian ad litem. See § 55.10(4)(b); see also §§ 54.10(3); 54.40(1). 8 No. services at a "nursing home[], public medical 2010AP2061 institution[] . . . or [at] [an]other appropriate facilit[y]," but may not order placement at "units for the acutely mentally ill." § 55.12(2). The circuit court may, however, order protective placement a in "locked unit" if the court makes finding determining that such placement is necessary. ¶18 a specific Id. While protective services are ongoing, the protected individual may be subject to the involuntary administration of psychotropic medication if "the individual will incur a substantial probability of physical harm, impairment, injury, or debilitation physical harm allowing for or to will present others." administration a Wis. of substantial Stat. probability § 55.14(3)(e).9 psychotropic medication of By in a process closely monitored by the circuit court, ch. 55 permits full treatment of individuals with disorders like Alzheimer's 9 A person exhibits "substantial probability of physical harm, impairment, injury, or debilitation" if one of the following is true: [A] history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act, or omissions that resulted from the individual's failure to participate in treatment, including psychotropic medication, and that resulted in a finding of probable cause for commitment . . . ." Evidence that the individual meets one of the dangerousness criteria set forth in s. 51.20(1)(a)2. a. to e. Wis. Stat. § 55.14(3)(e)1.-2. 9 No. 2010AP2061 Disease while restricting the liberty of the person only insofar as is strictly necessary. ¶19 See § 55.14(3)(a-e). In addition to the protective placement and services procedures outlined above, Wis. Stat. ch. 55 also provides for emergency services, if needed. petition for emergency See § 55.13. services, the Upon filing of a court must hold a preliminary hearing to determine whether probable cause exists to believe protective that the placement § 55.13(2). individual or is services a proper under subject § 55.08.10 for See If the court determines that probable cause exists, it may order emergency protective services for up to 60 days, pending a final hearing pursuant to § 55.10, and may order the involuntary administration of psychotropic medication. See § 55.13(3); § 55.14(10). ¶20 Turning to Wis. Stat. ch. 51, that chapter, unlike ch. 55, has the principal purpose of "assur[ing] the provision of a full range of treatment and rehabilitation services . . . for all mental disorders and developmental disabilities and for mental illness, alcoholism and other drug abuse." § 51.001(1); see also Rolo v. Goers, 174 Wis. 2d 709, 721-22, 497 N.W.2d 724 (1993). similar Although the procedures for commitment in ch. 51 are to those contained in ch. 55, there are important differences in the elements the state must prove for each. 10 In At this probable cause hearing, a petition for guardianship must accompany the petition for protective services if the individual does not already have a guardian. Wis. Stat. § 55.13(2). 10 No. order to subject be subject individual to must a ch. 51 meet involuntary three 2010AP2061 commitment, criteria: the a subject individual must be 1) "mentally ill"; 2) "a proper subject for treatment"; and 3) "dangerous" to themselves or to others. § 51.20(1)(a)1.-2.; cf. Steven Erickson, et al., Beyond Overt Violence: Wisconsin's Progressive Civil Commitment Statute as a Marker of a New Era in Health Law, 89 Marq. L. Rev. 359, 368-71 (2005). A subject individual may be involuntarily committed under ch. 51 only when the county proves each of the elements above; therefore, if the circuit court determines that even one of the elements is not met, the subject individual may not be committed under ch. 51. See §§ 51.20(1)(a), (7)(c), (10)(c).11 B. CHAPTER 55, NOT CHAPTER 51, IS THE APPROPRIATE MECHANISM FOR PROVIDING CARE FOR HELEN ¶21 While procedures, Wis. they Stat. serve chs. 55 and substantially 51 have different similar purposes. Chapter 51 is designed to accommodate short-term commitment and treatment of mentally ill individuals, while ch. 55 provides for long-term care permanent or for individuals likely to be with disabilities permanent. See that are § 51.20(13)(g) (stating that a commitment under ch. 51 is not to exceed six months); § 51.20(1)(a) (stating that the individual subject to commitment § 55.08(1)(d) must be (stating a that proper ch. 55 11 subject placement for is treatment); allowed only Chapter 51 requires similar procedures for involuntary commitment, so we do not review the totality of those procedures here. 11 No. 2010AP2061 where the individual to be protected suffers from "a disability that is permanent or likely to be permanent"). turn to three specific differences To that end, we between the chapters, ultimately holding that the procedures and protections provided by ch. 55 are a better fit for Helen and her particular disorder. 1. PLACEMENT ¶22 First, if care were provided to Helen pursuant to Wis. Stat. ch. 55, rather than ch. 51, she could be attended to with the fewest possible constraints on her freedom consistent with her own protection and the safety of the public. The balancing of those interests is required by both chapters, see Wis. Stat. § 55.001 (requiring restriction on placement personal with liberty "the . . . ."); least possible § 51.001 (stating that it is the purpose of the chapter to provide "the least restrictive treatment individual's] needs"), alternative as well as appropriate by general to principles mental health law and constitutional jurisprudence. v. Romeo, 457 U.S. 307, 321 (1982) [the (emphasizing of Youngberg "the proper balance between the legitimate interests of the State and the rights of the involuntarily committed to reasonable conditions of safety and freedom from unreasonable restraints."). ¶23 more In the case of Helen, Wis. Stat. ch. 55 allows for a appropriate does ch. 51. balancing of these important interests than For an individual committed under ch. 51 may be placed in any mental health unit without an additional finding by the circuit court, while under ch. 55, an individual may not 12 No. 2010AP2061 be placed in units for the acutely mentally ill. This is an important of Helen, distinction, an 85 committed to patients. publicly year-old a under Alzheimer's facility See or because that § 51.01(19) privately the language Disease tends to acutely ("'Treatment operated patient, or could mentally facility' facility ch. 51, ill means unit be any thereof providing treatment of alcoholic, drug dependent, mentally ill or developmentally disabled persons . . . ."). Thus, ch. 55 excludes certain facilities that Helen might otherwise be placed in pursuant to ch. 51. Because it is more narrowly tailored to her specific condition, and because it affords her additional process designed to ensure the appropriateness of her facility, we conclude that ch. 55 better balances Helen's interest in liberty with the County's interest in protecting the public and in affording her the care she requires. 2. GUARDIAN AD LITEM ¶24 the Second, while Wis. Stat. ch. 51 does not provide for appointment of a GAL, ch. 55 requires it. This is an important protection of the individual's interests that confirms our conclusion circumstances. require the that ch. 55 is better suited to Helen's § 51.10(4)(b) ("The court shall in all cases appointment of an attorney as guardian ad litem . . . ."). The appointment of a GAL ensures that individuals like are Helen provided adequate and specialized care, thus bolstering our determination that ch. 55 is the most appropriate means of providing care for Helen. 13 No. ¶25 in Wis. 2010AP2061 The legislature provided for the appointment of a GAL Stat. ch. 55 proceedings because it recognized that individuals subject to the chapter need an additional advocate for their best interests, given that ch. 55 is focused on the provision of conditions. GAL); see long-term care to individuals with incurable See § 55.195(1-9) (explaining the duties of the Jennifer M. v. Maurer, 2010 WI App 8, ¶7, 323 Wis. 2d 126, 779 N.W.2d 436 (stating that a GAL provides "an advocate necessary for the best because, interest in the of context the ward.") of Helen's A GAL is Alzheimer's Disease, a ch. 55 protective placement is likely to extend for a much longer term than treatment in the ch. 51 context. See § 55.195(4) (stating that one of the GAL's duties under ch. 55 is to "[r]eview the annual report and relevant reports on the ward's condition and protective services."). goal of ch. 51 is to treat and Conversely, the rehabilitate the subject individual, which ideally ends by returning her to society. By contrast, of ch. 55 is designed for long-term management disorders that cannot be treated, and therefore are unlikely to subside, meaning that the individual in need of protection is unlikely to return to society. Thus, periodic assessments by a GAL of the individual's situation are essential to the continual provision of appropriate care. ¶26 In Helen's case, the appointment of a GAL would have served two purposes. Most importantly, a GAL would have been helpful in providing a recommendation to the court regarding Helen's need for protective services. 14 Although Helen's No. 2010AP2061 appointed counsel also had Helen's best interests in mind, a GAL would have provided a second set of watchful eyes sensitive to Helen's needs at each step of the commitment process and on a regular basis after the issuance of a protective order. See Wis. Stat. §§ 55.10(b); 55.195(1-9). ¶27 Additionally, a GAL would have provided the court with an individualized report regarding the provision of psychotropic medication, which the record reflects was a central component of Helen's care. Under Wis. Stat. ch. 55, a GAL must advise the court before he or she may order the involuntary administration of psychotropic medication whether that administration is in the best interest of the patient. See § 55.14(5). Further, the GAL must file periodic reports with the court outlining the need for continued protective placement and services, see § 55.18(2), and the need for psychotropic continued medication, see involuntary administration § 55.19(2). In short, of the GAL would have provided the court with advice as to Helen's best interest regarding pendency and ch. 55. continuance of Such assistance psychotropic in advice would overseeing however, the court throughout protective the placement have given Helen's sensitivity to her unique needs. ch. 51, medication was the care court with the under valuable particular Because the County utilized forced to act without that helpful assistance. ¶28 Accordingly, the GAL requirement in Wis. Stat. ch. 55, and its absence from ch. 51, supports our conclusion that Helen should receive care pursuant to ch. 55. 15 No. 2010AP2061 3. REHABILITATION VERSUS LONG-TERM CARE ¶29 Finally, as we have already stated, the legislature designed Wis. Stat. ch. 55 to be used for long-term care, see § 55.08(1)(d) (stating that one of the requirements for protective placement is that "[t]he individual has a disability that is permanent or likely to be permanent."), while ch. 51 is used for short term treatment and rehabilitation intended to culminate with re-integration of the committed individual into society, see § 51.20(1)(a)1. (stating that the subject individual must be a proper subject for treatment). ¶30 to an In order to be a proper subject for treatment pursuant involuntary individual must § 51.01(17). commitment be under capable of Wis. Stat. ch. 51, "rehabilitation." an See 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. ¶31 In reaching this conclusion, we are assisted by two decisions from the Wisconsin court of appeals. court decided that the subject individuals In one, the could not be rehabilitated, see Milwaukee Cnty. Combined Cmty. Servs. Bd. v. Athans, 107 Wis. 2d 331, 337, 320 N.W.2d. 30 (Ct. App. 1982), and in the rehabilitated, other that the see C.J. v. N.W.2d 219 (Ct. App. 1984). analysis of whether Helen subject State, individual 120 could Wis. 2d 355, be 354 These cases are instructive to our is a proper subject for treatment under Wis. Stat. ch. 51, and whether ch. 55 or 51 is a more appropriate avenue for Helen's 16 care. As with the statutory No. analysis above, this precedent confirms that 2010AP2061 ch. 55 better accommodates Helen's needs and those of the County. a. ATHANS ¶32 Athans, In Athans, the court of appeals found that Theodora a chronic paranoid schizophrenic, "was not a proper subject for treatment because rehabilitation in her case was not possible."12 107 Wis. 2d at 333. The physician who examined Athans, Dr. Kennedy, stated that he believed that she could be treated, but only in the sense that treatment involved long-term stabilization, or management of the disease. Brief for Respondents at 10, Athans, 107 Wis. 2d 331 (Nos. 81-1288, 811290). However, Dr. Kennedy further testified that attempted treatment of her underlying condition (or rehabilitation, as the court viewed it) would "have as much effect on her as water on a duck's back." ¶33 could not testimony delusional Id. at 10. Therefore, the court of appeals determined that Athans be of rehabilitated, Dr. Kennedy scheme including sedation." no because that matter it Athans what understood "would the treatment Athans, 107 Wis. 2d at 333. the change not from her attempted, As a result, in the absence of any possibility of rehabilitation, the court 12 The Athans case actually involved two subject individuals: Athans, who suffered from chronic paranoid schizophrenia, and Haskins, who suffered from the compulsive disorder of pyromania. Milwaukee Cnty. Combined Cmty. Servs. Bd. v. Athans, 107 Wis. 2d 331, 333-34, 320 N.W.2d. 30 (Ct. App. 1982). The analysis in Athans of the second individual, Gerald Haskins, is not relevant to our discussion of the case. 17 No. 2010AP2061 concluded that Athans was not a proper subject for treatment. See id. at 333, 337. b. C.J. ¶34 that Two years later, in C.J., the court of appeals found another individual also suffering from chronic paranoid schizophrenia was a proper subject for treatment because, unlike with Athans, rehabilitation was possible. 120 Wis. 2d at 356. In drawing this conclusion, the court of appeals relied upon the fact that treatment could help C.J., the subject individual, by effecting a change in his underlying disorder. ¶35 In defending its conclusion, the See id. at 362. court distinguished C.J. from Athans on several bases. of appeals It reasoned: The experts in Athans testified that neither of the persons named in the petitions was [a] proper subject for treatment. Furthermore, there was testimony in the case of the schizophrenic that her delusional scheme would not change no matter what treatment was tried and that hospitalization might actually be harmful. There can be little question that the expert testimony in Athans led to the trial court's finding that the two individuals, Athans and Haskins, were not proper subjects for treatment because these disorders could not be helped in any way. Id. at 361 (internal citations omitted). The C.J. court went on to juxtapose the facts of Athans with the facts before it: We are satisfied that the Athans case involved two people who might be helped in terms of maximizing their individual functioning and maintenance, even though they could not be helped in controlling or improving their disorders. In this case, we have evidence that C.J. will benefit from treatment that will go beyond controlling his activity it will go to controlling his disorder and its symptoms. As such, Athans is inapposite to this case. 18 No. 2010AP2061 Id. at 362 (emphasis added). Accordingly, the court of appeals held of that C.J. was capable rehabilitation because treatment had the potential to "control[] his disorder." ¶36 proper Id. In so holding, the court of appeals provided a useful and well-constructed fact-based test for determining whether a subject individual is capable of rehabilitation, and therefore treatable under "maximize[e] Wis. the[] Stat. § 51.01(17). If individual functioning and treatment will maintenance" of the subject, but not "help[] in controlling or improving their disorder[]," then rehabilitative treatment. will "go the subject potential, and is individual not C.J., 120 Wis. 2d at 362. beyond controlling . . . a does proper not have subject for However, if treatment activity" and will "go to controlling [the] disorder and its symptoms," then the subject individual has rehabilitative potential, and is a proper subject for treatment. Id. We believe the court of appeals' test accurately reflects the interests embodied in chs. 51 and 55, and we therefore bring it to bear in the case at bar. ¶37 Applying that test here, we conclude that while the medical techniques employed in Helen's case "maximiz[e] [her] . . . functioning and maintenance," as was the case in Athans, those techniques are unfortunately unlikely to rehabilitate her. Viewed in this light, it is apparent that Helen's situation more closely mirrors Athans' than it does C.J.'s. This is so because, given the current state of medical science, Helen's Alzheimer's Disease is incurable and untreatable; the only available medical remedy is maintenance not treatment of the 19 No. disease as it progresses. 2010AP2061 See Jinny Tavee & Patrick Sweeney, The Cleveland Clinic Foundation, Current Clinical Medicine 893 (William D. Carey, ed., 2d ed. 2010). Because Helen's Alzheimer's Disease is not treatable and medical techniques can only "maximiz[e] the[] . . . functioning and maintenance" of an individual, C.J., 120 Wis. 2d at 362, we conclude that Helen cannot be rehabilitated within the meaning of Wis. Stat. ch. 51. By the plain terms of § 51.01(17) (requiring the subject individual to be capable of rehabilitation), therefore, Helen cannot be cared for pursuant to ch. 51. ¶38 symptoms There is, (anxiety to be and sure, some aggression) medication. Nevertheless, that fact does not alter the result, is uncontroverted ameliorated evidence that by Helen's Disease there be certain with associated that Alzheimer's as may evidence psychotropic Helen's underlying disorder, Alzheimer's Disease, as well as the vast majority of its symptoms, do not respond to treatment techniques designed to bring about rehabilitation. See Jinny Tavee & Patrick Sweeney, The Cleveland Clinic Foundation, Current Clinical Medicine 893 (William D. Carey, ed., 2d ed. 2010) (stating that temporary improvements may occur with medication, but no known cure for Alzheimer's Disease currently exists). a proper reflect, subject as it individual] will controlling [her] for did treatment, in benefit C.J., from the record "evidence treatment activity it disorder and its symptoms." In order for Helen to be will go would that that to have [the will subject go beyond controlling C.J., 120 Wis. 2d at 362. 20 to [her] In No. 2010AP2061 Helen's case, the only evidence on the point contained in the record is the testimony of Drs. Christenson and Rawski, who testified that while her activity may be managed, her disorder cannot be controlled. Therefore, C.J. is inapposite here, and Helen's condition must be considered untreatable and incurable. Accordingly, Wis. Stat. ch. 51, with its requirement that the individual be a proper subject for treatment, is ill-suited to her situation. ¶39 By requirement contrast, and Stat. imposes thus Wis. no ch. 55 such contains bar on no Helen's such care. Indeed, ch. 55 has the exact opposite objective: long-term care of people who objective, will the likely never legislature be noted cured. in Explaining § 55.08(1)(d) that that individuals in need of protective services are those who have "a disability that is permanent or likely to be permanent." Therefore, because Helen's disability is consistent with this purpose, in that it is not treatable given the current state of medical science, believe that and the therefore procedures likely in to ch. 55, be not permanent, we ch. 51, are appropriate. ¶40 We do not address whether an individual who has Alzheimer's Disease as well as a Wis. Stat. ch. 51 qualifying illness may be involuntarily committed under ch. 51. Instead, like day the court of appeals, we "leave for another the question of what is proper under the law when a person has a duel diagnosis of Alzheimer's and a Wis. Stat. ch. 51 qualifying illness." Helen E.F., 333 Wis. 2d 740, ¶34 n.6. 21 We trust the No. circuit court judges of our state to exercise 2010AP2061 their sound discretion in employing the powers assigned to them by ch. 51. ¶41 In sum, Wis. Stat. ch. 55, unlike ch. 51, is better suited for Helen's situation because her Alzheimer's Disease is not treatable. Because ch. 55 provides additional processes and protections for Helen, it is better suited to her needs and those of the County. error to proceed Accordingly, the circuit court was in under ch. 51 correct to reverse and remand. IV. ¶42 and the court of appeals was We therefore must affirm. CONCLUSION We are asked to decide whether Helen E.F. ("Helen") may be involuntarily committed under Wis. Stat. ch. 51. reviewing chs. 51 and 55, we hold that Helen After is more appropriately treated under the provisions provided in ch. 55 rather than those in ch. 51. 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. conclude that Helen is not a proper subject for We treatment because while her Alzheimer's Disease may be managed, she is not medically capable of rehabilitation, as required by the chapter. For these reasons, we agree with the court of appeals that Helen was improperly committed under ch. 51 and we therefore affirm. By the Court. The decision of the court of affirmed. ¶43 DAVID T. PROSSER, J., did not participate. 22 appeals is No. 23 2010AP2061 No. ¶44 SHIRLEY S. ABRAHAMSON, C.J. 2010AP2061.ssa (concurring). I agree that Chapter 55 of the Wisconsin Statutes appears to provide the proper procedural avenue for Helen E.F. toward Helen long-term E.F. care Chapter and 55 protection, also Chapter 55 is geared which features is suitable procedural for mechanisms allowing for emergency detention and involuntary administration of psychotropic medication when either is necessary in specific circumstances. ¶45 See Wis. Stat. §§ 55.12, 55.14. I write separately for two reasons. First, I write to note some of the difficulties in interpreting Chapters 51 and 55. Despite the fact that the chapters ostensibly serve different purposes, there is substantial overlap and similarity between some aspects of the two chapters. times, to determine whether Chapter It is a challenge, at 51, 55, or both are available in a particular case. ¶46 Second, I write to highlight what I see as possible implications of the majority opinion. group of people is subject to A wide and heterogeneous Chapter 51, 55, or both. Throughout the chapters, the legislature seemingly attempted to categorize people, providing different procedures for different categories, such as people with "degenerative brain disorders," people with "developmental disabilities," people "mentally ill," and people who are "drug dependent." who are But the legislature also considers which procedural mechanisms are to be used based on the person's behavior, which does not necessarily hinge on the statutory category into which the person falls. 1 No. ¶47 2010AP2061.ssa A tension exists in the texts of the statutes (and the application of the statutes) between on the one hand lumping together all people with a certain condition and on the other hand considering the symptoms and conduct of the individual. The tension between the more rigid categories of people with a certain condition and the more flexible behavioral standards is palpable in the majority opinion. Does this opinion govern all Alzheimer's patients or only Helen E.F.? ¶48 The requirements for involuntary commitment under Wis. Stat. § 51.20 present an example of the tension and difficulty of interpreting Chapters 51 and 55. individual be "mentally "developmentally disabled." One requirement is that the ill," Wis. "drug Stat. dependent," § 51.20(1)(a)1. or The enumeration of specific categories suggests that the legislature intended to limit the reach of a provision and exclude certain categories of people. Yet, as argued in its non-party brief, Disability the statute Rights then Wisconsin furnishes a definition of mental illness for the purposes of involuntary commitment that "is so broad it can't be said to categorically rule out much of anything."1 1 See Wis. Stat. § 51.01(13)(b) ("'Mental illness', for purposes of involuntary commitment, means a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but does not include alcoholism."). See also Wis. Stat. § 55.01(4m) ("'Mental illness' means mental disease to the extent that an afflicted person requires care, treatment or custody for his or her own welfare or the welfare of others or of the community."). 2 No. ¶49 2010AP2061.ssa Another requirement for involuntary commitment under Wis. Stat. § 51.20 is that the individual be "a proper subject for treatment," Wis. Stat. § 51.20(1)(a)1., which is defined to mean that "rehabilitation" must be possible for the individual. See Wis. Stat. § 51.01(17). ¶50 The two cases discussed by the majority opinion, Athans and C.J., are illustrative of the malleability of the statutory definition of treatment and the tension inherent in the statutes between a defined category or condition and an individual's behavior.2 ¶51 same The individuals in the two cases suffered from the condition chronic courts reached opposite "rehabilitation." by expert paranoid schizophrenia yet results on the the two possibility of The results appear driven by the words chosen medical witnesses describing the impact various medications would have on the individual. ¶52 The court of appeals in Athans concluded that the individual could not be rehabilitated; the court of appeals in C.J. determined that individual involved. distinction rehabilitation between maintenance . . . [and] for the possible for the The court of appeals in C.J. saw a clear (a) a "maximizing . . . individual described was program capable functioning and controlling . . . activity" individual in 2 Athans); and (b) of a (as program See majority op., ¶¶32-36 (discussing Milwaukee County Combined Cmty. Servs. Bd. v. Athans, 107 Wis. 2d 331, 320 N.W.2d 30 (Ct. App. 1982), and C.J. v. State, 120 Wis. 2d 355, 354 N.W.2d 219 (Ct. App. 1983)). 3 No. capable of "controlling [a] disorder and described for the individual in C.J.).3 its 2010AP2061.ssa symptoms" (as In the court of appeals opinion, the former did not constitute rehabilitation, and the latter did. and clear The line between the two does not seem so bright to me. The difference may very well lie in the experts' framing of the effects of a treatment program. ¶53 These difficulties that are just arise in examples of determining the interpretive whether a person is subject to Chapter 51, 55, or both. ¶54 Today's majority opinion provides a potentially powerful tool for an individual seeking to avoid involuntary commitment under Chapter 51. The broadest reading of the opinion would be that any person with an "incurable" condition may not be involuntarily committed under Wis. Stat. § 51.20. See majority op., ¶37. Individuals with conditions that might otherwise appear to qualify for involuntary commitment under the category "developmental disability"4 may now argue that they are not proper subjects for "treatment" because their condition is incurable. ¶55 Although I majority opinion, I 3 agree am with concerned the that result the reached opinion in may the have C.J., 120 Wis. 2d at 362. 4 See Wis. Stat. § 51.20(1)(a)1. (establishing that a person with a developmental disability is potentially subject to involuntary commitment). See also Wis. Stat. § 51.01(5)(a) (defining "developmental disability" to include disabilities such as cerebral palsy, epilepsy, autism, Prader-Willi syndrome, and mental retardation); Wis. Stat. § 51.01(5)(b) (defining "developmental disability for purposes of involuntary commitment" to exclude cerebral palsy and epilepsy). 4 No. 2010AP2061.ssa broad, unforeseen implications for many people who fall within the scope of Chapters 51 and 55 and for local governments.5 ¶56 Because of the difficulties that arise in determining whether a person with a certain condition or a certain behaviors may be subject to Chapter 51, 55, or both, I suggest it may be time for the legislature to scope of the two chapters. reassess the goals and intended See Wis. Stat. §§ 13.83(1)(c)1., 13.92(2)(j).6 ¶57 For the reasons set forth, I write separately. ¶58 I am authorized to state that Justice ANN WALSH BRADLEY joins this opinion. 5 The court received five non-party briefs in this case, which suggests that the case may have particularly broad impact. In favor of Helen E.F.'s position, we received briefs from Disability Rights Wisconsin, the Elder Law Section of the State Bar of Wisconsin and the Wisconsin Chapter of the National Academy of Elder Law Attorneys, and the Coalition of Wisconsin Aging Groups and Alzheimer's Association of Southeastern Wisconsin. In favor of the County, we received briefs from the Wisconsin Counties Association and the Wisconsin Association of County Corporation Counsels. 6 The Joint Legislative Council has established a Special Committee on Legal Interventions for Persons with Alzheimer's Disease and Related Dementias. "The Special Committee is directed to review and develop legislation to clarify the statutes regarding guardianship, protective placement, involuntary commitment, and involuntary treatment as they apply to vulnerable adults with a dementia diagnosis who may or may not have a co-occurring psychiatric diagnosis." Summary of April 24, 2012 Joint Legislative Council Mail Ballot, available at http://legis.wisconsin.gov/lc/committees/jointcouncil/files/2012 /april24_summary_jlc_web.pdf (last visited May 14, 2012). 5