Helen E.F. v. Helen E.F.

• Decision Date: 18 May 2012
• Docket Number: No. 2010AP2061.,2010AP2061.
• Citation: 814 N.W.2d 179,2012 WI 50,340 Wis.2d 500
• Parties: In the Matter of the Mental Commitment of HELEN E.F. Fond du Lac County, Petitioner–Respondent–Petitioner, v. Helen E.F., Respondent–Appellant.
• Court: Wisconsin Supreme Court

340 Wis.2d 500

814 N.W.2d 179

2012 WI 50

In the Matter of the Mental Commitment of HELEN E.F.

Fond du Lac County, Petitioner–Respondent–Petitioner,

v.Helen E.F., Respondent–Appellant.

No. 2010AP2061.^†

Supreme Court of Wisconsin.

Argued Dec. 2, 2011.

Decided May 18, 2012.

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.

MICHAEL J. GABLEMAN, J.

[340 Wis.2d 502]¶ 1 We review a published decision of the court of appeals ¹ 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 (2009–10).² 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. We conclude that Helen is not a proper subject for 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. FACTS AND PROCEDURAL HISTORY

¶ 3 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. She suffers from Alzheimer's Disease,³ and her symptoms include progressive dementia, memory loss, the inability to learn new information, and limited verbal communication.

¶ 4 Helen began exhibiting aggressive behavior in early April 2010. This behavior included agitation and aggression manifested 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. While receiving treatment at the emergency room, Helen continued to exhibit the same behaviors that she had exhibited in the nursing home—agitation and aggression.

¶ 5 Due to Helen's behavior, a Fond du Lac police officer placed her in the hospital's behavioral health unit under emergency detention pursuant to Wis. Stat. § 51.15, and Fond du Lac County (“County”) initiated a ch. 51 proceeding to involuntarily commit her for treatment. At the statutorily required probable cause hearing 72 hours ⁴ later, on April 15, 2010, a court commissioner concluded that no probable cause existed to proceed under ch. 51. 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. At the preliminary (probable cause) hearing for this second ch. 51 petition, the 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 hearing ⁶ on the second Wis. Stat. ch. 51 petition, the circuit court heard testimony from Dr. Robert Rawski, one of two physicianswho 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 Based on Dr. Rawski's uncontroverted testimony, the circuit court found that Helen was a proper subject 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.

¶ 9 Helen appealed, and the court of appeals reversed and remanded the cause to the circuit court. Fond du Lac County v. Helen E.F., 2011 WI App 72, ¶ 34, 333 Wis.2d 740, 798 N.W.2d 707. The court of appeals determined, inter alia, that the primary purpose of Wis. Stat. ch. 51 is to provide treatment, and because Alzheimer's Disease does not respond to treatment, involuntary commitment under ch. 51 was inappropriate. Id., ¶ 27. 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. STANDARD OF REVIEW

¶ 10 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. DISCUSSION

¶ 11 The legislature has consistently demonstrated its concern for the protection of individuals suffering from mental infirmities. This is the announced legislative purpose of two chapters of the Wisconsin statutes: Chapter 51, the “Mental Health Act,” and Chapter 55, the “Protective Service System.” SeeWis. Stat. § 51.001(1) (“It is the policy of the state to assure the provision of a full range of treatment and rehabilitation services....”); § 55.001 (“This chapter is designed to establish ... protective services and protective placements, [and] to assure their availability to all individuals when in need of them....”). 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). These rules, set forth in chs. 55 and 51, require that counties must commit or place individuals in institutions in accordance with the individual's specific situation, rather than choosing which chapter to apply in a given case. 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 with incurable disorders, while ch. 51 was designed to facilitate the treatment of mental illnesses suffered by those capable of rehabilitation. To demonstrate why ch. 55 provides the most appropriate 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 Beginning with protective placement, Wis. Stat. § 55.08 requires that a circuit court determine that 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 a substantial risk of serious harm to ... herself” because of “a developmental disability, 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.” § 55.08(1)(a-d).

[340 Wis.2d 508]¶ 15 Similarly, in order to be eligible for protective services, a circuit court must determine that the following elements are met. 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...