In the Matter of The Mental Commitment of Helen E.F.Fond Du Lac County v. Helen E.F.

• Decision Date: 27 April 2011
• Docket Number: No. 2010AP2061.,2010AP2061.
• Citation: 798 N.W.2d 707,2011 WI App 72,333 Wis.2d 740
• Parties: In the Matter of the Mental Commitment of HELEN E.F.Fond du Lac County, Petitioner–Respondent,†v.Helen E.F., Respondent–Appellant.
• Court: Wisconsin Court of Appeals

333 Wis.2d 740

798 N.W.2d 707

2011 WI App 72

In the Matter of the Mental Commitment of HELEN E.F.Fond du Lac County, Petitioner–Respondent,†

v.Helen E.F., Respondent–Appellant.

No. 2010AP2061.

Court of Appeals of Wisconsin.

Submitted on Briefs Dec. 8, 2010.Opinion Filed April 27, 2011.

On behalf of the respondent-appellant, the cause was submitted on the briefs of Donald T. Lang, assistant state public defender, Madison.On behalf of the petitioner-respondent, the cause was submitted on the brief of William J. Bendt of Fond du Lac County Corporation Counsel, Fond du Lac.Nonparty briefs were filed by Maren Beermann of Coalition of Wisconsin Aging Groups, Madison; Andrew T. Phillips and Daniel J. Borowski of Phillips Borowski, S.C., Mequon, for Wisconsin Counties Association; and Kristin M. Kerschensteiner of Disability Rights Wisconsin, Madison.Before BROWN, C.J., ANDERSON and REILLY, JJ.ANDERSON, J.

Helen E.F. appeals from an order for commitment and an order for involuntary medication. The evidence presented at trial was insufficient to sustain Helen's Wis. Stat. ch. 51 (2009–10) ¹ involuntary commitment as a matter of law given that Helen, who is afflicted with Alzheimer's disease, does not suffer from a qualifying mental condition and is not a proper subject for treatment. We therefore reverse and remand the orders and instruct the trial court to proceed not inconsistently with this opinion.

Standard of Review

¶ 2 Construction of a statute is a question of law. As to questions of law, this court is not required to give special deference to the trial court's determination. Hucko v. Joseph Schlitz Brewing Co., 100 Wis.2d 372, 376, 302 N.W.2d 68, 71 (Ct.App.1981). When interpreting a statute, we begin with the language of the statute. State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110. We give words their common and ordinary meaning unless those words are technical or specifically defined. Id. We do not read the text of a statute in isolation, but look at the overall context in which it is used. Id., ¶ 46. When looking at the context, we read the text “as part of a whole; in relation to the language of surrounding or closely related statutes; and reasonably, to avoid absurd or unreasonable results.” Id. Thus, the scope, context, and purpose of a statute are relevant to a plain-meaning interpretation “as long as the scope, context, and purpose are ascertainable from the text and structure of the statute itself.” Id., ¶ 48. If the language is clear and unambiguous, we apply the plain words of the statute and ordinarily proceed no further. Id., ¶ 46.

¶ 3 The inquiry does not stop if a statute is ambiguous, meaning that “it is capable of being understood by reasonably well-informed persons in two or more senses.” Id., ¶ 47. If a statute is ambiguous, we may turn to extrinsic sources. Id., ¶ 51. Extrinsic sources are sources outside the statute itself, including the legislative history of the statute. Id. We sometimes use legislative history to confirm the plain meaning of an unambiguous statute, but we will not use legislative history to create ambiguity where none exists. Id.

Facts

¶ 4 The facts are not in dispute. Helen is an eighty-five-year-old woman with Alzheimer's dementia. Her condition has regressed to the point that “she is very limited in any verbal communication.” Helen's appearance at the proceedings in this case was waived because “she would not understand or comprehend or be able to participate meaningfully.”

¶ 5 Motion to Dismiss: Prior to the probable cause hearing on May 18, 2010, Helen's attorney moved the court to dismiss the Wis. Stat. ch. 51 proceeding. In support of the motion, Helen's attorney outlined the procedural history of Helen's confinement.

¶ 6 Helen's attorney explained that Helen was taken to St. Agnes Hospital on April 12, 2010. On April 15, 2010, a probable cause hearing was conducted on a prior Wis. Stat. ch. 51 petition. Following this hearing, the court commissioner concluded there was not sufficient probable cause to proceed. At that point, the ch. 51 petition was converted to a Wis. Stat. ch. 55 protective placement action and a thirty-day temporary guardianship was issued.

¶ 7 The thirty-day-time period to proceed with the Wis. Stat. ch. 55 protective placement expired on May 15 and a second Wis. Stat. ch. 51 petition was filed. Helen's attorney argued that contrary to the teaching of State ex rel. Sandra D. v. Getto, 175 Wis.2d 490, 498 N.W.2d 892 (Ct.App.1993), the filing of this new ch. 51 petition constituted an impermissible attempt “to circumvent this time limit.” Counsel argued the new ch. 51 petition must be dismissed, because “[y]ou can't keep detaining and detaining and detaining an individual once that time period has expired.”

¶ 8 Insisting that the new Wis. Stat. ch. 51 proceeding was the product of “a separate petition,” Fond du Lac County argued that Helen “hasn't been detained continuously under the old order” because after the thirty-day-time period expired for the Wis. Stat. ch. 55 protective placement action and a thirty-day temporary guardianship, “she was wheeled off the unit, and then she was brought back on.” The County argued that because she was off the unit, that ended the thirty-day order and therefore, “[t]his [was] a new detention.” When pressed as to how long Helen was “wheeled off the unit,” the County responded:

She was off the unit. It doesn't matter how long she was off the unit. She was off the unit. And that ended the 30–day order. This is a new detention. This is a new detention. It doesn't matter if it's two seconds; it split in two, it is not continuous.

¶ 9 The County further defended the filing of the second Wis. Stat. ch. 51 petition, maintaining it was based on new information since the prior ch. 51 petition was dismissed. According to the County, at the time the prior ch. 51 petition was dismissed, it appeared that Helen's disruptive behavior was the product of a medical problem, i.e., a urinary tract infection. The County argued that inasmuch as Helen's disruptive behavior has continued even after this medical condition was treated, it now appears that Helen's disruptive behavior is the product of her dementia. The County further argued:

[Y]ou can have a [Wis. Stat. ch.] 51 on someone with dementia, in that dementia is treatable in some way and this one is treated. She is not going to get cognitively better, but it's going to improve or control the aggressiveness, the physical aggressiveness that she is showing....

Helen's attorney maintained the position that the filing of a new Wis. Stat. ch. 51 petition constituted an end run around the government's failure to comply with the time limits of a prior Wis. Stat. ch. 55 proceeding. The trial court denied Helen's motion to dismiss without explanation: “I'll deny your motion.”

¶ 10 Probable cause hearing. During the probable cause hearing that immediately followed the court's denial of Helen's motion to dismiss, the County presented testimony from psychiatrist Dr. Brian Christenson. Christenson treated Helen during her initial Wis. Stat. ch. 51 emergency detention at St. Agnes on April 12, 2010, and throughout the subsequent thirty-day Wis. Stat. ch. 55 emergency placement order. In Christenson's opinion, Helen suffers from “[s]enile dementia of Alzheimer's type.” Christenson explained that this “progressive loss of brain function, brain deterioration” is exhibited in the following ways:

[S]he is extremely confused and forgetful and disoriented and agitated, aggressive, uncooperative, anxious, incontinent, and unable to carry on conversations; it grossly impaired her judgment and she is unable to make any decisions regarding her own self care.

Christenson was “not certain” whether Helen's agitation and aggressiveness was related to the dementia or the urinary tract infection, but believed it was “most likely predominantly from the dementia.”

¶ 11 With regard to whether Helen's dementia was subject to treatment, Christenson indicated “the cognitive deterioration is not treatable, but the psychiatric complications of her dementia are treatable,” in that “her agitation, aggressiveness, combativeness can be treated with medications that can have some calming effects.” Helen is “completely unable to understand” the advantages and disadvantages of the medication. In Christenson's opinion, Helen poses a danger to herself and others through her combativeness with treatment staff and “could harm herself inadvertently.”

¶ 12 Christenson noted that when Helen was taken off the unit at St. Agnes, he “[did not] think she was placed anywhere.” Further, Christenson acknowledged that Helen was off the unit “[n]ot very long” and that he believed she was wheeled off the unit because of a problem with the expiration of the Wis. Stat. ch. 55 thirty-day-time period. The court found sufficient probable cause to proceed.

¶ 13 Final commitment hearing. The final commitment hearing was conducted on May 28, 2010. The sole witness at the hearing, psychiatrist Dr. Robert Rawski, testified that Helen “suffers from Alzheimer's Dementia with a behavioral disturbance,” that Helen “has progressive dementia” and “has been in a nursing home for the last six years.” Rawski explained that Helen's “dementia has progressed to the point where she is very limited in any verbal communication” and she is “so cognitively impaired by her dementia” that she is unable to express an understanding of the advantages or disadvantages of medication.

Rawski further explained that Alzheimer's dementia can involve behavioral disturbances such as “poor judgment, aggression towards others, periods of agitation [and] wandering.” And that “[c]ognitively, [dementia] is not considered to be a treatable mental disorder. It's a progressive mental defect that is not treatable.” Rawski indicated, however, that the behavioral disturbances resulting from dementia are...