Chapter 51 Civil Commitment Process: What Families Can Expect Galen Strebe, Dane County Assistant Corporation Counsel Sarah Henrickson, LCSW, Mental Health Center of Dane County November 17, 2009

Mental Health Act Chapter 51, Wisconsin Statutes Provides legal procedures for voluntary and involuntary admission, treatment and rehabilitation of individuals (adults and minor children) afflicted with mental illness, developmental disability, drug dependency, or alcoholism.

Criteria for Involuntary Civil Commitment The individual has a mental illness, developmental disability, or drug/alcohol dependence. The individual’s illness/disability/ dependence is treatable. The individual is dangerous to him/herself or others, due to the illness/disability/ dependence.

Definition of Mental Illness for Involuntary Civil Commitment A substantial disorder of thought, mood, perception, orientation, or memory, which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the demands of life, but does not include alcoholism.

Definition of Developmental Disability for Involuntary Civil Commitment A disability attributable to brain injury, cerebral palsy, epilepsy, autism, Prader-Willi syndrome, or mental retardation, which is expected to continue indefinitely, and which constitutes a substantial handicap to the afflicted individual.

Definition of Drug Dependence for Involuntary Civil Commitment A disease which is characterized by the dependency of an individual who uses one or more drugs to the extent that the individual’s health is substantially impaired, or his/her social or economic functioning is substantially disrupted.

Definition of Alcoholism for Involuntary Civil Commitment A disease which is characterized by the dependency of an individual on alcohol, to the extent that his/her health is substantially impaired or endangered, and his/her social or economic functioning is substantially disrupted.

Alcohol and Drug Commitments Rarely done for minor children because very difficult to prove legal standards. Requires established pattern of use, which causes substantial impairment of health and functioning, and which causes dangerous-ness to self or others.

Standards of Dangerousness Required for Involuntary Civil Commitment Recent acts, attempts or threats of suicide or serious bodily harm to self. Recent acts, attempts, or threats of serious bodily harm to others, or violent behavior which places others in reasonable fear of serious physical harm. A pattern of recent acts or omissions which evidences impaired judgment causing the individual to be an inadvertent danger to self.

Standards of Dangerousness Required for Involuntary Commitment (cont.) 4) Mental illness causes the individual to be so gravely disabled that he/she is unable to satisfy life’s basic needs for nourishment, medical care, shelter, or safety. 5) Individual’s psychiatric treatment history, coupled with his/her present mental deterioration due to incompetent decision to refuse psychotropic medication, causes likelihood that the individual will lose ability to function independently in the community.

Definitions of Treatment for Involuntary Civil Commitment Statutory: Those psychological, educational, social, chemical, medical, or somatic techniques designed to bring about the rehabilitation of an individual who has mental illness, developmental disability, drug dependency, or alcoholism. Jury Instruction: An individual is a proper subject for treatment if the administration of treatment techniques may control, improve, or cure his/her mental illness, developmental disability, drug dependency, or alcoholism.

Methods of Initiating an Involuntary Civil Commitment Proceeding Law Enforcement Emergency Detention Treatment Director Emergency Detention Three Party - Petition for Examination

Law Enforcement Emergency Detention (ED) Law enforcement officers may take individual into custody, file a statement of emergency detention (ED), and detain that individual at an approved mental health facility based upon the officers’ belief, from either personal observation or reliable reports of others, that the individual is mentally ill, developmentally disabled, or drug dependent, and dangerous to self or others, and needs treatment.

Law Enforcement Emergency Detention (cont.) Law enforcement officers must consult with crisis staff/mental health workers of the county department of community programs. County department must approve the need for detention of the individual before law enforcement officers can do an ED. The receiving mental health facility/unit usually requires medical clearance of the individual prior to detention, to check for medical problems, drug or alcohol use, and to evaluate the individual’s mental status.

Treatment Director Emergency Detention (ED) The Treatment Director of a mental health facility/unit may file statement of Emergency Detention (ED) and detain patient who is admitted to the facility/unit. ED must allege that the patient is mentally ill, developmentally disabled, or drug dependent, and dangerous to self or others, and needs treatment. Treatment Director ED usually occurs when an individual is voluntarily admitted to a facility/unit, and later refuses treatment and/or requests discharge.

Three Party - Petition for Examination Three adults sign a sworn petition drafted by the County Corporation Counsel. At least one of the petitioners (signers) must have personal knowledge of the individual’s dangerous behavior. Petition must allege that the individual is mentally ill, developmentally disabled, or drug dependent, and dangerous to self or others, and a proper subject for treatment.

Three Party - Petition for Examination (cont.) Petitioners who have not directly observed the individual’s dangerous behavior must provide a basis for their belief that the allegations are true. The County Corporation Counsel files the petition with the court. After review, the judge may order detention of the individual by law enforcement to a mental health facility, or may just set the case for a probable cause hearing without detention. This process may take several days or more, and should not be used in emergency situations.

Probable Cause Hearing Court hearing must be held within 72 hours of individual’s detention at a mental health facility (excluding weekends and holidays). Witnesses testify from personal observations about the allegations of dangerousness in the petition or ED, and doctor testifies about mental illness, disability, or dependence, and treatment. After the hearing, the judge determines if there is probable cause (reason) to believe the allegations, and cause to detain and treat the individual at a mental health facility.

Probable Cause Hearing: Four Possible Outcomes Case is dismissed for lack of sufficient evidence that the individual is mentally ill or dangerous. Settlement Agreement is approved by the court. Case is converted to temporary guardianship and protective placement or services, if the individual is developmentally disabled and not treatable. Probable cause is found: Final hearing is scheduled within 14 days of detention Two doctors are appointed by the court to examine the individual and to submit written reports, with their opinions and recommendations, to the court.

Final Hearing (Trial) Court hearing held within 14 days of the individual’s detention at a mental health facility, or 30 days if there is no detention after probable cause hearing. Witnesses testify from personal observations about the dangerous behavior, and court appointed examiners (psychologists and/or psychiatrists) testify about mental illness, disability or dependence, and treatment. After the hearing, the judge determines if there is clear and convincing evidence to commit the individual either inpatient or outpatient initially, and whether the individual is competent to refuse psychotropic medications.

Final Hearing: Four Possible Outcomes Case is dismissed for lack of clear and convincing evidence that the individual is mentally ill, or is dangerous, or is treatable. Settlement Agreement is approved by court. Conversion to guardianship and protective placement/services if untreatable condition. Order of Involuntary Civil Commitment for treatment.

Chapter 51 Court Hearings: Rights of Minors Minors have the right to: be represented by adversary counsel at public expense. have a closed hearing. request an open hearing. remain silent. present and cross-examine witnesses. have a jury trial.

Chapter 51 Court Hearings: Rights of Parents or Legal Guardians Parents/Legal Guardians have the right to: participate in the court hearing(s). be represented by counsel (at their own expense).

Settlement Agreement A negotiated contract for treatment between the individual, his/her attorney, and the County Corporation Counsel, and approved by the court. Waives the court hearings for a specified period of time, up to 90 days. Cannot be extended at end of time period, if individual is compliant with treatment.

Settlement Agreement (cont.) Includes a list of treatment conditions the individual must comply with, including the maximum time (number of days) of inpatient treatment. Failure to comply with the treatment conditions may result in return to a mental health facility and continuation of court proceedings.

Order of Involuntary Civil Commitment for Treatment If there is clear and convincing evidence that the individual is mentally ill, developmentally disabled, or drug dependent, and dangerous to self or others, and a proper subject for treatment, an individual may be committed by court order to the care and custody of the county department of community programs for inpatient and/or outpatient treatment for up to 6 months.

Outpatient Treatment Conditions Committed individuals are given this document upon discharge to outpatient treatment, informing them to comply with the listed conditions deemed necessary to ensure treatment and safety in the community. The individual’s failure to comply with the conditions may result in his/her return to a mental health facility by law enforcement. Psychotropic medications may not be administered involuntarily (forcibly) as an outpatient treatment condition.

Order To Treat The court may order that medication may be administered to an individual regardless of his/her consent (involuntarily and/or forcibly): After a finding of probable cause, effective only until the final hearing. After an order of commitment is granted, effective for the duration of the commitment.

Order To Treat (cont.) The court must find sufficient evidence to believe that the individual is not competent to refuse, due to illness/disability/dependence, because he/she is: Incapable of expressing an understanding of the risks, benefits, and alternatives of medications; OR Incapable of applying an understanding of the medications to his/her own condition to make an informed choice to accept or refuse.

Extension of Commitment (Recommitment) Prior to expiration of a commitment, the county department to which an individual is committed may file a recommendation to extend the commitment. County Corporation Counsel files petition for recommitment alleging the individual continues to need treatment, is dangerous without treatment, and is unlikely to comply without court ordered treatment. Order of Extension of Commitment can be up to 12 months, if the court finds that there is a “substantial likelihood that the individual would become a proper subject for commitment if treatment was withdrawn.”

Monitoring Settlement Agreement/ Treatment Conditions of Commitment Noncompliance does not automatically result in returning the individual to a more restrictive environment (redetention to a mental health facility). Need for redetention is based on level of noncompliance, dangerous behavior, and/or potential for dangerousness. If individual is unstable and in need of inpatient treatment and willing to comply, he/she can be voluntarily admitted without court involvement.

Why Are Minor Children ED’d? Effective 8/1/06, Wisconsin law permits parents/legal guardians to sign their minor child into a psychiatric hospital for treatment without the child’s consent. However if the child is physically combative and/or unwilling to accept treatment, voluntary admission may be inappropriate or unavailable.

Where Are Minor Children Admitted for ED’s? Mendota Mental Health Institute, Madison Adolescent males Children under 12 (only until January 1, 2010) No adolescent females Winnebago Mental Health Institute, Oshkosh Male and female children and adolescents Private hospitals and county facilities Unlike the state institutions, these hospitals/facilities are not required to accept emergency detentions, but some do at their discretion.

Are There Specialty Treatment Units For Minor Children? Developmental Disabilities: Winnebago and Mendota must accept EDs but often transfer to Northern or Central WI Center. Alcohol and Drug Treatment: Anchorage Unit at Winnebago treats dual diagnoses (AODA and mental illness).

What Can Families Expect from the Treatment Facility? Consultation with social worker and/or treating psychiatrist. Information about assessment of the child and treatment recommendations. Parental consent must be obtained prior to administering any medication changes. Family phone calls and visits allowed as appropriate. Social worker will coordinate discharge plan with family and community providers.

What Can Families Expect After Discharge to Outpatient Treatment? If case is dismissed, there is no further court involvement unless a new involuntary civil commitment case is initiated. If individual is discharged under settlement agreement or treatment conditions of commitment, county of residence will provide services and monitoring, and will determine if/when individual needs to return to inpatient treatment.

Contact Information Galen Strebe Dane County Assistant Corporation Counsel 210 Martin Luther King Blvd Rm 419 Madison, WI 53703 Phone: 608-266-9004 Fax: 608-267-2504 E-mail: strebe@co.dane.wi.us Sarah Henrickson, LCSW Youth Crisis, Mental Health Center of Dane County 625 W. Washington Avenue Phone: 608-280-2610 Fax: 608-280-2704 E-mail: sarah.henrickson@mhcdc.org