1. Assistant Corporation Counsel for Dane County
LAW ENFORCEMENT TRAINING EMERGENCY DETENTIONS AND CH. 51 CIVIL COMMITMENTS
Richard Greenlee
Assistant Corporation Counsel for Dane County
(608)
February 17, 2016

2. PART I: Emergency Detentions

3. Actors:
County Corporation Counsel: Required by law to “represent the public interests” in all Chapter 51 proceedings.
Police Officers: Designated to perform Emergency Detentions because they are the peacekeepers in society, and protectors of public safety.
Crisis Intervention: Assist police and evaluating appropriateness of Emergency Detention and when appropriate help law enforcement facilitate EDs.

4. Elements of an E.D. Wis. Stat. § 51.15(1) -
Police officer must have CAUSE TO BELIEVE that
The Person is
Mentally Ill
Drug Dependent, or
Developmentally Disabled
2. Dangerous to themselves or others
AND
3. That taking the individual into custody is the least restrictive alternative appropriate to the individual’s needs

5. “Reasonable Cause”
(b) The officer's or other person's belief shall be based on any of the following:
A specific recent overt act or attempt or threat to act or omission by the individual which is observed by the officer
A specific recent overt act or attempt or threat to act or omission observed by another individual which is reliably reported to the officer by any other person.

6. Mental Illness or other:
A substantial disorder of THOUGHT, MOOD, PERCEPTION, JUDGMENT or MEMORY which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life.
Note: Dementia IS a M.I. for the purposes of an E.D.
Someone could also be Developmentally Disabled or Drug Dependent

7. Dangerousness There are 4 Standards for Dangerousness on an E.D.
Intentional harm to self, as evidenced by recent attempts or threats of suicide or intentional serious bodily harm to self;
Intentional harm to others, as evidenced by recent acts, attempts or threats of serious physical harm to others, or behavior which places others in reasonable fear of serious physical harm;
Evidences such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself or other individuals;
Evidences behavior manifested by recent acts or omissions that, due to mental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness.

8. What does RECENT mean? It depends…
There is no “Hard and Fast” rule about what constitutes a recent act or omission.
It depends…
48 hours is probably a pretty good rule of thumb, BUT is not prohibitive
A good question to ask yourself (or Crisis) “Is the behavior a part of the same acute M.I. episode?”
If yes, probably ok to use that behavior as part of the E.D.
Older information may be useful as well in assessing the subject’s current level of functioning relative to prior behavior.

9. Least Restrictive Alternative
Purpose of an E.D. is to provide for the treatment of individuals in the “least restrictive means appropriate to the individual’s needs.” Wis. Stat. § 51.15(1)(ag)
Unwilling or unable to cooperate with voluntary treatment.
Crisis must approve the detention before an E.D. can be completed:
In deciding whether to approve or disapprove the E.D., a Crisis assessment must be conducted by a Mental Health Professional Change in the law. Wis. Stat. § 51.15(2).
Involuntary treatment must be necessary to stabilize the individual and remove the substantial probability of physical harm, impairment, or injury to himself, herself, or others.
As a part of that assessment, the MHP should be exploring whether there is a lesser restrictive means of achieving treatment and safety with patient.
The goal is the divert individuals out of the involuntary system if possible and appropriate.

10. Practicalities in the Field
The Form: ME – 901 Statement of Emergency Detention by a Law Enforcement Officer
Available electronically at or just type “Wisconsin circuit court forms” into the Google
The 1st most important thing: Make sure its LEGIBLE.
It is probably going to get faxed at least 2 times by the time I start reading it.
E-filing someday, but not today

11. The 2nd most important thing:
Filling out the ME - 901
The 2nd most important thing:
The narrative section should identify WHO saw, heard, or observed WHAT and WHEN.
At lest one witness should have personally observed the Dangerous behavior.
Need to have NAME, and PHONE NUMBER for each witness. Include address if known.
If Law Enforcement Officers are going to be witnesses, its important that the number on the ME-901 actually be capable of reaching you, i.e. dispatch, precinct, etc.
DO NOT just attach a copy of the police report.

12. Who Fills out the ME-901???
Is it OK to have Crisis fill out the ME-901?
Yes, BUT……
You are signing a court document similar to an affidavit on a search warrant
Ultimately, you need to be comfortable that there is reasonable cause to believe the information in the ME-901.
It is the Law Enforcement Officer’s responsibility to ensure that the information is accurate, true and legible, even if someone else filled out the form.

13. Where does it go?
A copy of the ME – 901 with a notice of rights of detention must be filed with:
the Probate Court, AND
the “Detention Facility” at the time of admission.
It is the Law Enforcement Officers responsibility to make sure that the forms get where they are supposed to go!
There may be sometimes when it is necessary to fax the ME-901 into probate before transport to the Detention Facility

14. Custody and the Clock So, what does this mean….?
A Probable Cause Hearing must happen within 72 hours of the “time of detention.”
The clock starts running as soon as the person “is under the physical control of the law enforcement officer… for the purposes of emergency detention.” Wis. Stat. § 51.15(3)
So, what does this mean….?

15. Custody Cont. -They’re Voluntary until they’re not!
-There is a spectrum of when someone is detained:
- The easy one:
Show up on scene. Individual is known to law enforcement, has a known mental illness, is actively hallucinating and wandering into an active traffic situation. LE asks would you come to the hospital voluntarily he says “F#$K Y$% I ain’t seeing no Doc.” You take him into custody on scene, cuff him, call crisis, and transport to hospital for evaluation.
-The not so easy one:
Show up on scene. Individual is known to law enforcement, has a known mental illness, is actively hallucinating and wandering into an active traffic situation. LE asks would you come to the hospital voluntarily he says “Potato,” but he goes and sits in the back of your squad without cuffs and with minor “convincing.” At the hospital he refuses treatment, gets agitated and at that point is put in cuffs.

16. Custody Cont. - The one where we all go “come on, really…..”
Show up on scene. Individual is known to law enforcement, has a known mental illness, is actively hallucinating and wandering into an active traffic situation. LE asks would you come to the hospital voluntarily he says “F#$K Y$% I ain’t seeing no Doc.” You take him into custody on scene, cuff him, call crisis, and transport to hospital for evaluation. Get to the hospital, he refuses treatment, tries to attack a nurse and is impossible draw blood from. Hospital gives him a sedative for his own safety, and finally after being there for 3 hours already they get blood. Wait another 45 mins for blood work to come back so he can be medically cleared and transported to WMHI, when all of a sudden, his labs reveal reduced kidney functioning and WMHI says he is too medically fragile to be admitted. The local hospital is saying he doesn’t really need to be admitted medically, but are willing to do it as long as he is transported up to WMHI as soon as Winnebago is satisfied that his kidney functioning has returned to normal which the doctor thinks should happen in the next 12 – 24 hours The Hospital also says that they will not “detain him” while he is on the medical unit.

17. Custody: the take aways…
Accurate and clear documentation via police report can make a big difference in being able to accurately determine when custody was taken.
Make sure you get the ME-901 in as soon as you reasonably can. This way, even if custody was triggered earlier than you may think, we still have plenty of time.
This also may mean that you are going to have to fax to ME-901 twice, once when you have all the witnesses and narrative filled in and again once you know where you are going to detention. This is OK!
The earlier you get the ME-901 to the Court/Corp. Counsel the more time we have to figure things out

18. PART II: The Court Process

19. Within 72 Hours of Detention Within 14 Days of Detention
Detained at Trxt Facility for PC Hearing
No PC,
Subject released
Dismissal, subject released
Settlement Agreement,
usually with some inpatient stay
Settlement Agreement,
usually with some inpatient stay
3 Party Petition
Emergency Detention
by LE or Treatment Director
PC found, Final Hearing Ordered, Subject Detained at Treatment Facility
Probable Cause Hearing
Final Hearing on Commitment
Commitment Ordered, Subject Detained at Treatment Facility
Tx’ers determine when released
Convert to Temporary Guardianship and Protective Placement,
Must find community placement within 30 days
Convert to Temporary Guardianship and Protective Placement,
Must find community placement within 30 days
Ordered to Appear for
PC Hearing at Courthouse

20. The Probable Cause Hearing
Held within 72 hours of detention in front of a Court Commissioner (excludes weekends and legal holidays)
Issue is whether there is Probable Cause to believed that the subject is:
Mentally Ill
A proper subject for treatment, AND
Dangerous to themselves or others
Normal rules of evidence apply so hearsay is generally not admissible unless it fits within an exception
In Dane County, almost always witness are allowed to testify by phone.

21. Outcomes
Dismissal for insufficient evidence of mental illness or dangerousness, or for procedural defects (i.e. no rights given or time limits missed).
Order for Final Hearing with either detention at a treatment facility, or release back into outpatient care w/ treatment conditions. If the treatment conditions are violated can be sent back to a treatment facility.
Settlement Agreement – Treatment Contract
Maximum of 90 days.
Designates maximum number of days of inpatient treatment.
If patient does not comply with treatment the individual is returned to hospital, for commitment hearing within 14 days.
If patient complies with treatment, the case is dismissed after 90 days.
Conversion of case to Guardianship and Protective Placement if the person’s abnormal mental condition is not treatable.

22. Outcomes Cont.
If PC is found, then the FINAL HEARING must be held within 14 days of detention (including weekends and legal holidays).
Have to prove the exact same elements at Final Hearing, but by clear and convincing evidence.
All of the same outcomes are available, except instead of being bound over for hearing, an Order of Commitment for treatment for up to 6 months.
If committed, there is typically some length of inpatient stay, followed by monitoring in the community under a conditional release

23. Police Officer Liability
Chapter 51 has a liability shield in it for individuals acting in “good faith” in an emergency detention.
Police officers have immunity for any actions taken in good faith, regardless of the police officer’s decision to emergently detain or not.
In civil law suit against police, the plaintiff must prove lack of good faith by evidence that is clear, satisfactory, and convincing.

24. Emergency Detention v. Criminal Arrest
E. D. provides treatment for mental illness vs. jail provides punishment for behavior that stems from the mental illness. Treatment is usually more appropriate.
Family, friends, and society expect treatment for the mentally ill, not punishment.
Punishment alone is not deterrent for mentally ill persons who don’t realize their wrongdoing or cannot control their behavior. 

25. The End
Thanks!