Waukesha County v. J.W.J. , 375 Wis. 2d 542 ( 2017 )

2017 WI 57
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP46-FT
COMPLETE TITLE: In the matter of the mental commitment of J.W.J:
Waukesha County,
Petitioner-Respondent,
v.
J.W.J.,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 370 Wis. 2d 262, 881 N.W.2d 359
(2016 – Unpublished)
OPINION FILED: June 8, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 17, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Waukesha
JUDGE: William Domina
JUSTICES:
SEPARATE WRITING: ABRAHAMSON, J. writes separately, joined by A.W.
BRADLEY, J.
CONCURRED:
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
filed by and an oral argument by Kaitlin A. Lamb, assistant
state public defender.
For the petitioner-respondent, there was a brief filed by
and oral argument by Robert J. Mueller, corporation counsel.
2017 WI 57
NOTICE
This opinion is subject
to further editing and
modification. The final
version will appear in
the bound volume of the
official reports.
No. 2016AP46-FT
(L.C. 2009ME1158)
No.
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of
J.W.J:
Waukesha County, FILED
Petitioner-Respondent,
JUN 8, 2017
v. Diane M. Fremgen
Clerk of Supreme Court
J.W.J.,
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 DANIEL KELLY, J. The petitioner, J.W.J., is an adult
suffering from paranoid schizophrenia. He is currently subject
to an involuntary commitment order and an order requiring him to
undergo treatment and take medication prescribed for his
condition. Waukesha County seeks to extend those orders for an
No. 2016AP46-FT
additional year; Mr. J. says further involuntary commitment and
treatment will not rehabilitate him, so he is not a proper
subject for treatment within the meaning of Wis. Stat.
§ 51.20(1) (2015–16).1 We review the unpublished decision of the
court of appeals2 affirming the Waukesha County circuit court's
extension of those orders.3
I. BACKGROUND
¶2 Mr. J. is a 55-year-old man who has suffered from
mental health or substance abuse issues for most of his life.
He has been subject to commitment orders almost continuously
from 1990 to 2008, at which time he started an 18-month prison
term. Upon release in 2009 he was adjudged so psychotic and
threatening to others that he was immediately subjected to a new
set of commitment orders that have been in place since then.
¶3 On June 16, 2015, Waukesha County filed a petition to
extend Mr. J.'s involuntary commitment and treatment orders. At
the time of the petition, Mr. J. was attending his appointments,
receiving medication, and living independently in the community.
The County's current petition represents the sixth extension of
Mr. J.'s commitment and treatment orders.
1
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
In re Mental Commitment of J.W.J., No. 2016AP46,
unpublished slip op., (Wis. Ct. App. May 4, 2016).
3
The Honorable William Domina presiding.
2
No. 2016AP46-FT
¶4 Mr. J.'s medical records provide a sense of his
longstanding, continual struggles from his youth up through
2014:
Mr. J[4] has a lengthy history of drug and alcohol
abuse. Marijuana, LSD and barbiturates abuse started
at the age of 15 if not earlier. In 1979, at the age
of 17, he experienced an LSD overdose which required
treatment at the . . . Child and Adolescent Center.
He was diagnosed with Drug Induced Schizophrenia.
[I]n-patient treatment periods extend from 1980
through 2014 . . . ; approximately 12 psychiatric
admissions to the [Mental Health Center].
Additionally, psychiatric treatment at
the . . . Resource Center during his incarceration.
Mr. J. has a history of criminal behaviors over the
years including car theft, robberies, two DWI, burning
down a field as well as a 2008 conviction for selling
marijuana out of a [store] . . . he ran in [a certain
municipality]. His prison sentence was 18 months.
During this period of time he became quite upset and
wrote a threatening letter to his mother as well as
[a] sexually explicit letter to the female warden.
Mr. J was committed in 2009 . . . [and] has been under
commitment almost consistently since 1990.
Over the course of mental health treatment Mr. J. has
shown a significant lack of insight into his mental
illness and a lengthy history of not cooperating with
taking psychiatric medications. Many of his
hospitalizations occurred after a period of refusing
medications with the expected results that Mr. J.
became increasingly more paranoid, rambling/pressured
speech, sleep problems, often times experiencing
command-type auditory hallucinations to kill himself
or others along with depression and/or agitated
4
As submitted to the court, the medical records redact all
but the first letter of Mr. J.'s last name, a convention we
follow without noting every instance in which we engage in such
elision.
3
No. 2016AP46-FT
behaviors. Significant alcohol usage has also
continued over the years. Mr. J. continues to insist
that it is the psychotropic medications which causes
all of his mental health symptoms.
The last hospitalization . . . 3/1/14 to 3/27/14
occurred after he was taken by the Sheriff's
Department to get his IM [intramuscular] injection
which he had previously refused to get. Mr. J. was
noted by the attending MD to be rambling and bizarre.
Patient complained of "the beast" throwing glass
around his apartment. He wanted the police to get him
a tank and bombs so that he could kill the beast. He
was then admitted to the [Mental Health Center].5
¶5 The Recommitment Report filed along with the County's
petition to extend Mr. J.'s commitment described Mr. J.'s status
in 2015:6
Mr. J. is making his appointments and is receiving his
IM medication. He has been [sic] maintained his
current housing and remains [in] the community. There
[have] been no inpatient hospitalizations this past
year. Mr. J. is experiencing a number of medical
problems which may be due to his current
medication. . . . His diagnoses are Axis I
Schizophrenia, Alcohol Use Disorder and History of
Cannabis Use Disorder. He continues to state he is
allergic to all psychotropic medication. He at the
last shot appointment said the medication makes him
5
This material comes from a Report of Examination (dated
July 1, 2015) prepared by Dr. Richard J. Koch. Doctor Koch is a
licensed psychologist and has seen Mr. J. on five occasions
between 1990 and 2004. He also performed an assessment of Mr.
J.'s condition in 2014, although he had to rely on medical
records and other generally available information because Mr. J.
refused a personal examination. Dr. Koch submitted this Report
in support of the County's petition to extend Mr. J.'s
involuntary commitment.
6
This report was submitted by Mr. Robert C. Walker, LCSW,
on behalf of the Waukesha County Community Human Services
Department.
4
No. 2016AP46-FT
feel like he is being murdered every night. Given the
medication changes being made and Mr. J's lack of
insight into his illness [the advanced practice nurse
prescriber] is requesting an extension of the current
commitment.
¶6 Doctor Koch tried to personally examine Mr. J. in 2015
in connection with his involuntary commitment but could not
because Mr. J. would not allow it: "Mr. J. contacted this
examiner by telephone and he quickly stated that he would not
cooperate in a personal interview and he would not answer
questions over the telephone. Mr. J. disconnected the call
prior to this examiner being able to read him his rights."
Consequently, Dr. Koch based the Report on Mr. J.'s existing
medical records and other information he was able to assemble
without a personal examination.
¶7 Dr. Koch's evaluation resulted in this assessment:
This past treatment year Mr. J. has not been
hospitalized. He has maintained his current housing
and remains in the community. Mr. J. has been
compliant with psychotropic medications but he has
stated that he is "allergic" to all psychotropic
medications. He continues to show lack of insight
into his illness.
Dr. Koch checked the boxes in the Report that indicate it was
his opinion, to a reasonable degree of professional certainty,
that Mr. J. is mentally ill,7 dangerous,8 is an appropriate
7
The form defines "mentally ill" as "a substantial disorder
of thought, mood, perception, orientation or memory which
grossly impairs judgment, behavior, capacity to recognize
reality, or the ability to meet the ordinary demands of life."
5
No. 2016AP46-FT
subject for outpatient treatment, and that psychotropic
medication would be therapeutically valuable to him. Dr. Koch
also wrote that Mr. J.'s mental illness makes him "substantially
incapable of applying an understanding of the advantages,
disadvantages and alternatives in order to make an informed
choice as to whether to accept or refuse psychotropic
medication." Dr. Koch concluded that "[t]here is nothing in
[Mr. J.'s] record to suggest there has been any significant
change in his status. He continues to be a patient who has a
history of improved behaviors when appropriately medicated and
deterioration in the ability to function in the community when
not appropriately medicated."
¶8 At the hearing on the County's petition to extend Mr.
J.'s commitment, Dr. Koch testified consistently with his
report. In particular, he said Mr. J.'s schizophrenia is
treatable "to the extent that when treated with
medications . . . his behavior is improved and he can survive in
the community." He explained that this treatment lessens the
disordering of Mr. J.'s thought, mood, and perception.
¶9 Dr. Koch also explained why he believes Mr. J. is
dangerous. He testified that Mr. J.'s "history is one of
inconsistent utilization of psychotropic medications. When he's
8
Dr. Koch checked the box on the form that expresses his
belief that Mr. J. is dangerous because "[t]here is a
substantial likelihood, based on this individual's treatment
record, that this individual would be a proper subject for
commitment if treatment were withdrawn."
6
No. 2016AP46-FT
not appropriately medicated, he becomes increasingly more
agitated, paranoid, grandiose at times, and he started having
hallucinations, demand hallucinations to either harm himself or
others." However, "[w]hen he's taking medications, while some
of those experiences and symptoms may still be present, he
doesn't act on them."
¶10 Doctor Koch said he does not believe Mr. J. would take
his medications absent a court order to do so: "[T]he current
evidence from the extension report as well as my prior history
with him and his behaviors indicates that when not ordered to
take psychotropic medications that he doesn't do it." And
without his medications, Dr. Koch said, Mr. J. would require
confinement for inpatient care.
¶11 When the hearing concluded, the circuit court granted
the County's petition. It found that Mr. J. continues to suffer
from a mental illness (in the form of paranoid schizophrenia),
he is a proper subject for treatment and benefits from it, he
can function in the community in large part because of this
treatment, and he satisfies the definition of "dangerousness"
because if treatment were to cease, he would be a proper subject
for commitment. The court extended Mr. J.'s involuntary
commitment order for 12 months. It also extended the medication
and treatment order, which requires Mr. J., inter alia, to
attend his appointments, take his medications as prescribed, not
engage in any acts or attempts or threats to harm himself or
others, and not take any non-prescription controlled substances
or alcoholic beverages.
7
No. 2016AP46-FT
¶12 The court of appeals, in a concise opinion, affirmed
the circuit court in all respects. The court of appeals applied
the analytical framework we described in Fond du Lac County v.
Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179, and
found that because Mr. J. has rehabilitative potential, he was a
"proper subject of treatment."
¶13 We granted Mr. J's petition for review and now affirm.
II. STANDARD OF REVIEW
¶14 This case requires us to interpret provisions of Wis.
Stat. ch. 51. While our review of questions of law is
independent from the circuit court and court of appeals, we
benefit from their analyses. State v. Steffes, 2013 WI 53, ¶15,
347 Wis. 2d 683, 832 N.W.2d 101.
¶15 We must also review whether the County has met its
burden of proof to support extension of Mr. J.'s commitment.
This presents a mixed question of law and fact. We uphold a
circuit court's findings of fact unless they are clearly
erroneous. K.N.K. v. Buhler, 139 Wis. 2d 190, 198, 407
N.W.2d 281 (Ct. App. 1987). Whether the facts satisfy the
statutory standard is a question of law that we review de novo.
Id.
III. ANALYSIS
¶16 Mr. J. wishes to live his life free of Waukesha
County's commitment and medication orders because he believes
they have brought him as much rehabilitation as they are capable
of bringing. Waukesha County, however, says that Mr. J.'s
8
No. 2016AP46-FT
condition will deteriorate if the orders lapse, making him a
danger to himself and those around him.
¶17 There is, of course, an inherent tension between the
public's interest in involuntarily treating an individual and
that individual's liberty interest.9 On the treatment side, the
people of Wisconsin have recognized the challenges that mental
illness, developmental disabilities, and substance abuse
present——both to the public and the individuals suffering from
such disorders. So "[i]t is the policy of the state to assure
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." Wis. Stat. § 51.001(1).
¶18 However, not all who could benefit from such services
will partake of them. And of those who will not, there will be
a subset whose condition will make them dangerous——either to
themselves, or to others. To ward against the danger their
condition presents, our statutes provide for involuntary
commitment when: "1. The individual is mentally ill
or . . . drug dependent or developmentally disabled and is a
9
See, e.g., Addington v. Texas, 441 U.S. 418, 425 (1979) (A
"civil commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.");
In re Melanie L., 2013 WI 67, ¶43, 349 Wis. 2d 148 ("The
forcible injection of medication into a nonconsenting person's
body represents a substantial interference with that person's
liberty." (Quoting Washington v. Harper, 494 U.S. 210, 229
(1990))).
9
No. 2016AP46-FT
proper subject for treatment[; and] 2. The individual is
dangerous . . . ." Wis. Stat. § 51.20(1).
¶19 Because of the liberty interests affected by
involuntary commitment, public policy favors outpatient
treatment whenever possible: "To protect personal liberties, no
person who can be treated adequately outside of a hospital,
institution or other inpatient facility may be involuntarily
treated in such a facility." Wis. Stat. § 51.001(2). Indeed,
the court must use the least restrictive means of delivering
effective treatment: "There shall be a unified system of
prevention of such conditions and provision of services which
will assure all people in need of care access to the least
restrictive treatment alternative appropriate to their
needs . . . ." § 51.001(1). Further circumscribing the
imposition on an individual's liberty, the initial commitment
order may not exceed six months. Wis. Stat. § 51.20(13)(g)1.
And the order may not issue at all unless the county can
establish the required elements with clear and convincing
evidence. § 51.20(13)(e).
¶20 Upon each petition to extend a term of commitment, a
county must establish the same elements with the same quantum of
proof. Helen E.F., 340 Wis. 2d 500, ¶20. However, it may
satisfy the "dangerousness" prong by showing "a substantial
likelihood, based on the subject individual's treatment record,
that the individual would be a proper subject for commitment if
treatment were withdrawn." Wis. Stat. § 51.20(1)(am). An order
10
No. 2016AP46-FT
extending involuntary commitment may not exceed one year.
§ 51.20(g)1.
A. Mr. J.'s challenge
¶21 Mr. J.'s challenge is a narrow one——he does not
dispute his mental illness or his dangerousness, only that he is
a "proper subject of treatment" within the meaning of Wis. Stat.
§ 51.20(1).10 "Treatment," in this context, carries a
specialized meaning. It comprises "those psychological,
educational, social, chemical, medical or somatic techniques
designed to bring about rehabilitation of a mentally ill,
alcoholic, drug dependent or developmentally disabled person."
Wis. Stat. § 51.01(17) (emphasis added).
¶22 And so we arrive at the heart of Mr. J.'s argument——he
does not believe he can be rehabilitated. If he cannot be
rehabilitated, he cannot be a proper subject of treatment or an
involuntary commitment order. Our focus, therefore, is on the
meaning of "rehabilitation."
¶23 As Mr. J. acknowledges, this is not the first time we
have had to address this statutorily-undefined term. In Helen
E.F. we separated treatments into two camps: Those that bring
10
Mr. J. questions only whether he is a "proper subject for
treatment." Because he does not argue he is not mentally ill or
dangerous within the meaning of Wis. Stat. § 51.20(1), we
understand he has conceded those issues. See Racine Steel
Casings, Div. of Evans Products Co. v. Hardy, 144 Wis. 2d 553,
557 n.1, 426 N.W.2d 33 (1988) (stating that where an issue "was
neither briefed nor argued before the court in oral argument, we
do not address this issue").
11
No. 2016AP46-FT
about rehabilitation, and those that do not. We said we could
recognize the former by their ability to control the disorder in
question:
If treatment will maximize the individual functioning
and maintenance of the subject, but not help in
controlling or improving their disorder, then the
subject individual does not have rehabilitative
potential, and is not a proper subject for treatment.
However, if treatment will go beyond controlling
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.
Helen E.F., 340 Wis. 2d 500, ¶36 (citing C.J. v. State, 120
Wis. 2d 355, 362, 354 N.W.2d 219 (Ct. App. 1984) (internal
alterations, quotations, and citations omitted)).
¶24 Mr. J. asserts that this understanding of
"rehabilitation" cannot properly account for some of the unique
characteristics of paranoid schizophrenia, which deficiency can
lead to an inaccurate conclusion that the individual is a proper
subject of treatment. Specifically, he assigns four weaknesses
to our framework:
1. When evaluating a patient with paranoid schizophrenia, it
is difficult to decide whether a treatment is controlling
"behaviors" as opposed to "symptoms."
2. Our analysis does not say which, or how many, symptoms
the treatment must be able to control before we deem the
patient to have rehabilitative potential.
3. Picking up on a concern discussed by the concurring
opinion in Helen E.F., Mr. J. says our analysis is
12
No. 2016AP46-FT
sufficiently imprecise that a physician's word choice (as
opposed to the patient's actual condition) could be the
deciding factor in concluding a person is a proper
subject for treatment.
4. Again referring to a concern raised in the Helen E.F.
concurring opinion, Mr. J. worries we might determine
rehabilitative potential based on the general
characteristics of a class of disorder, as opposed to
focusing on the symptoms and condition of the individual
patient who is the subject of the involuntary commitment
petition.
¶25 Based on these perceived deficiencies, Mr. J. asks us
to modify our Helen E.F. framework for understanding
"rehabilitation" as follows:
If treatment will maximize the individual functioning
and maintenance of the subject, but not help in
controlling or improving their disorder, then the
subject individual does not have rehabilitative
potential, and is not a proper subject for treatment.
However, if treatment will go beyond controlling
activity and will go to controlling improving the his
or her disorder and its symptoms, then the subject
individual has rehabilitative potential, and is a
proper subject for treatment.11
¶26 We revisit Helen E.F. to determine whether its logic
is supple enough to accurately evaluate whether someone
suffering from a condition like paranoid schizophrenia is
capable of rehabilitation within the meaning of Wis. Stat.
11
Strikethroughs represent Mr. J.'s proposed deletions,
while underlined material represents proposed additions.
13
No. 2016AP46-FT
§ 51.20(1). In doing so, we will consider each of Mr. J.'s
concerns in turn.
IV. POTENTIAL MODIFICATIONS OF HELEN E.F. FRAMEWORK
A. "Behaviors" versus "Symptoms"
¶27 Mr. J.'s first argument that Helen E.F. cannot
appropriately distinguish between rehabilitative and non-
rehabilitative treatments relies on some rhetorical
prestidigitation. In Helen E.F., we juxtaposed treatments
affecting nothing more than an individual's "activities" with
those that affect "symptoms." We said only the latter are
rehabilitative. Mr. J. responds that "activities" are really no
different from "behaviors," and so one may just as readily ask
whether there is any difference between treatments affecting
"behaviors" and those affecting "symptoms." If there isn't, he
says, then Helen E.F.'s explanatory power is an illusion.
¶28 To turn "activity" (the word we used in Helen E.F.)
into his preferred term, "behavior," he notes that the American
Psychiatric Association says "[s]chizophrenia is characterized
by delusions, hallucinations, disorganized speech and behavior,
and other symptoms that cause social or occupational
dysfunction." Referring to an online dictionary, he finds
"behavior" defined as an "observable activity in a human or
animal." From this he concludes that, if schizophrenia
manifests (at least in part) as a behavior, and a behavior is an
activity, then he may safely substitute "behavior" for
"activity" in the Helen E.F. framework. The transitive
14
No. 2016AP46-FT
principle, however, functions much more neatly in mathematics
than it does in semantics.
¶29 Mr. J. certainly has reason to attempt this dictional
substitution. Doctor Koch frequently referred to Mr. J.'s
behavior when describing the effectiveness of the treatment he
was receiving under the involuntary commitment order. By
melding behaviors and activities, Mr. J. can then challenge us
to describe how a behavior might differ from a symptom.
¶30 Assuming we would be unable to rise to this challenge,
Mr. J. proposes we eliminate any reference to activities or
symptoms from the assessment of rehabilitative potential. He
invites us, instead, to inquire only into whether the treatment
would improve his disorder. By the phrase "improve his
disorder," we take Mr. J. to mean that treatment would need to
continually improve his condition until he experiences either a
cure or a plateau beyond which no further improvement is
possible.12 We decline this invitation.
¶31 Furthermore, we decline Mr. J.'s challenge to find a
distinction between "behaviors" and "symptoms" because its
premise is invalid. The proper disjunctive categories in Helen
E.F. are "activities" and "symptoms," and we can tell them
12
We also understand Mr. J.'s position to be that if he
reaches a plateau beyond which no further improvement is
possible, he may no longer be subjected to involuntary
commitment. This makes sense when withdrawal of treatment would
not inevitably result in the deterioration of his condition.
However, as we discuss in part IV.E., this is not Mr. J.'s
circumstance.
15
No. 2016AP46-FT
apart. When we developed the framework for determining whether
someone has rehabilitative potential we leaned heavily on C.J.
The court of appeals in that case juxtaposed "habilitation" and
"rehabilitation." The former relates to the control of
activities:
[H]abilitation is more closely related to daily living
needs and skills than to treatment of a particular
disorder. A practical definition of habilitation
would include eating, dressing, hygiene, minimum
social skills and such other things that facilitate
personal maintenance and functioning. Habilitation is
a concept frequently associated with the long-term
care of the developmentally disabled. It is possible
that controlling a person's activities by restricting
his or her freedom and putting him or her on a
carefully defined regimen would be part of a
habilitation program.
C.J., 120 Wis. 2d at 359–60.
¶32 Rehabilitation, on the other hand, addresses the
control of symptoms. It comprises "treatment going beyond
custodial care to affect the disease and symptoms . . . ." Id.
at 360. But rehabilitation is not synonymous with cure. Id.
And it "has a broader meaning than returning an individual to a
previous level of function." Id. Thus, "[a]n individual with
an incurable physical or mental illness or disability may still
be considered capable of rehabilitation and able to benefit from
treatment in the sense that symptoms can be controlled and the
ability to manage the illness ameliorated." Id.
¶33 To the extent we need to find a lexical home for
"behavior," we conclude it most comfortably resides in the
16
No. 2016AP46-FT
"symptom" side of our analytical dichotomy.13 The C.J. court
described "behaviors" as the immediate consequences of C.J.'s
symptoms. The psychiatrist said "the primary symptom" of C.J.'s
paranoid schizophrenia "is recurrent delusions." Id. at 357.
He then observed that these delusions "impair his judgment and
behavior." Id. Impaired behavior was the direct consequence of
C.J.'s primary symptom. When we addressed Helen E.F.'s
condition, "behavior" carried the same significance. She
suffered from Alzheimer's Disease, the symptoms of which
included "progressive dementia, memory loss, the inability to
learn new information, and limited verbal communication." Helen
E.F., 340 Wis. 2d 500, ¶3. Her resulting behavior included
agitation and aggression. Id., ¶4.
¶34 By contrast, "activities" (which the C.J. court
equated to those things addressed by habilitation) relate to
functional capabilities such as "eating, dressing, hygiene,
minimum social skills and such other things that facilitate
personal maintenance and functioning." C.J., 120 Wis. 2d at
360. In Helen E.F. we found that Helen's treatment could not
13
A "symptom" is "any morbid phenomenon or departure from
the normal in structure, function, or sensation, experienced by
the patient and indicative of disease." Symptom, Stedman's
Medical Dictionary (28th ed. 2006).
17
No. 2016AP46-FT
reach her primary symptoms.14 Instead, it could "maximize [only]
her functioning and maintenance." Helen E.F., 340 Wis. 2d 500,
¶37 (internal marks omitted). The court of appeals maintained
the same distinction in Milwaukee County Combined Community
Services Board v. Athans, describing habilitation (control of
activities) as treatment "which assist[s] an impaired person's
ability to live in the community," whereas rehabilitation
(control of symptoms) "ameliorate[s] impairments and
facilitate[s] an individual's capability to function." 107
Wis. 2d 331, 336, 320 N.W.2d 30 (Ct. App. 1982) (quoting U.S.
Dep't of Health, Ed. and Welfare, Health Planning Taxonomy 4
(1979)).15
14
We did observe, however, that medication could ameliorate
Helen E.F.'s anxiety and aggression. Fond du Lac Cty. v. Helen
E.F., 2012 WI 50, ¶38, 340 Wis. 2d 500, 814 N.W.2d 179. But
these behaviors were incidental to the analysis because
controlling them had no effect on her dementia, memory loss, or
any of her other primary symptoms. Thus, controlling these
incidental behaviors could not establish a basis for
rehabilitative potential.
15
Athans' reference to an individual's "capability to
function," at first take, appears to blur the distinction
between rehabilitative and habilitative treatments. In context,
however, the line holds. Resorting to a Department of Health,
Education and Welfare document that has nothing to do with our
statutory structure was perhaps not the most helpful source of
authority. But the Athans court was juxtaposing the same
concepts we are distinguishing here. So the quote could best be
understood as recognizing that the amelioration of impairments
(symptoms) will have the effect of improving the patient's
capability to function (his activities). The key is that the
rehabilitative treatment addresses itself to the symptom, not
the activities.
18
No. 2016AP46-FT
¶35 Ultimately, the distinction we draw between
rehabilitation and habilitation depends on whether the focus of
the treatment is endogenous to the patient (symptoms) or
exogenous (activities). A symptom is an expression of the
disorder at work within the patient. It is the symptom itself
that is harmful, and because it manifests from within, it is
endogenous. On the other hand, an inability to engage in a
specific activity, such as feeding oneself, grooming, dressing,
etc., focuses on the manipulation of something exogenous to the
patient——food, clothes, washing implements, and so on. The
patient suffers harm because he cannot turn those external
things to his benefit.
¶36 Habilitation, therefore, refers to interventions that
help a patient put exogenous things to his benefit (that is,
activities). Rehabilitation, to the contrary, refers to
improving the patient's condition through ameliorating
endogenous factors such as symptoms and behaviors. That is why
we said in Helen E.F. that "if treatment will go beyond
controlling 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." 340
Wis. 2d 500, ¶36 (internal alterations, quoted source, and
quotation marks omitted). Because we are able to distinguish
between activities and symptoms, this part of Mr. J.'s argument
does not disclose a need to modify the Helen E.F. analytical
framework.
19
No. 2016AP46-FT
B. How Many Symptoms Must a Treatment Control?
¶37 Mr. J. also says we should modify the Helen E.F.
framework because we were not especially precise in determining
which symptoms a treatment must be able to control before we
conclude a patient has rehabilitative potential. Specifically,
he notes we provided no qualifier for the term "symptoms" in the
test we adopted, did not say whether the controlled symptoms had
to be the most obvious or disabling ones, and did not quantify
the number of symptoms a treatment must control. When we
referred to Helen E.F.'s condition, we said "there is
uncontroverted evidence that Helen's underlying disorder,
Alzheimer's Disease, as well as the vast majority of its
symptoms, do not respond to treatment techniques . . . ." Id.,
¶38 (emphasis added). Mr. J. concludes from this that our
framework requires the treatment to leave less than the "vast
majority of [the disorder's] symptoms" unimproved, but how much
less is an open question.
¶38 This is a fair observation. We provided no such
measure, however, because none was necessary. The expert
testimony in Helen E.F. demonstrated that Alzheimer's Disease
"is incurable and untreatable; the only available medical remedy
is maintenance——not treatment——of the disease as it progresses."
Id., ¶37. We concluded that "medical techniques can only
maximize the functioning and maintenance of an individual"
suffering from this disorder. Id. (internal alterations and
quotations omitted). So treatment would reach only habilitative
matters. The only symptoms/behaviors we were told could be
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No. 2016AP46-FT
affected by medical treatment were her anxiety and aggression.
These, however, were secondary to her primary symptoms:
progressive dementia, memory loss, the inability to learn new
information, and limited verbal communication. Medical
treatment could not reach any of these. All treatment could do
was palliate some of the minor aspects of her condition. So it
was apparent she did not have rehabilitative potential.
¶39 There may come a day when we need to quantify and
qualify the symptoms a treatment must reach before concluding a
patient has rehabilitative potential. But this is not that day.
¶40 The uncontroverted facts show that Mr. J. has
rehabilitative potential. Doctor Koch said Mr. J.'s paranoid
schizophrenia was a "substantial disorder of his thought, mood,
and perception" that "grossly impair[s] his judgment and
behavior." Mr. J. expresses these disorders by becoming
"agitated, paranoid, grandiose at times," with "demand
hallucinations to either harm himself or others." The treatment
he receives lessens the disordering of his thought, mood, and
perception. And while some of these experiences and symptoms
may still be present while under treatment, he does not act on
them. In fact, his treatment is so effective at controlling his
symptoms that he can live in society while taking his treatment
as an outpatient. Doctor Koch said that, without treatment, Mr.
J.'s condition would inevitably decline to the point he would
have to be confined so he could receive inpatient treatment.
¶41 The policy of this State is to provide treatment in
"the least restrictive alternative appropriate to" a patient's
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needs. Wis. Stat. § 51.001(1). If a treatment controls
symptoms to such a degree that withdrawing it would subject the
patient to a more restrictive treatment alternative, then the
treatment controls enough symptoms to establish the patient has
rehabilitative potential. The court of appeals said in C.J.
that rehabilitation "has a broader meaning than returning an
individual to a previous level of function," 120 Wis. 2d at 360,
so simple logic requires that it means at least that. If
treatment is withdrawn, Mr. J.'s symptoms will worsen to the
point that a more restrictive level of care would be necessary
(confinement for inpatient treatment); reintroduction of
treatment would return him to the previous level (treatment as
an outpatient). It is enough that treatment can accomplish this
to demonstrate the patient has rehabilitative potential. Thus,
to resolve this case, there is no need to identify the number or
significance of the symptoms the treatment controls.
C. Dispositive Word Choices
¶42 Mr. J. is also concerned that our Helen E.F. framework
may lead to outcomes that turn not on medical prognosis, but on
the words a physician may choose to describe his patient's
condition and prospects. The concurring opinion in Helen E.F.
described that very risk:
The individuals in the two cases [C.J. and Athans]
suffered from the same condition——chronic paranoid
schizophrenia——yet the two courts reached opposite
results on the possibility of "rehabilitation." The
results appear driven by the words chosen by expert
medical witnesses describing the impact various
medications would have on the individual.
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No. 2016AP46-FT
Helen E.F., 340 Wis. 2d 500, ¶51 (Abrahamson, J., concurring).
¶43 This is certainly a legitimate concern. But it arises
not from the need to distinguish between symptoms and
activities, but from the need to make distinctions based on
expert medical testimony at all. If we adopt Mr. J.'s revision
to our framework, we would not cease making such distinctions.
We would simply shift to distinguishing between treatments that
improve a patient's disorder and those that do not. Expert
medical testimony, of course, would guide us in that task. So
if we are currently at risk of deciding wrongly because of the
vagaries of an expert's choice of words, Mr. J.'s proposed
change will do nothing to protect us. It would just give us an
opportunity to err in making a different distinction.
D. Group versus Individualized Determinations
¶44 Finally, Mr. J. believes we need to emphasize that the
Helen E.F. framework inquires into whether the specific patient
at issue has rehabilitative potential. That is to say, he wants
to ensure we are not developing a taxonomy of ailments, one
branch of which comprises conditions that have rehabilitative
potential, while the other branch contains those that do not.
He again finds expression of his concern in the Helen E.F.
concurring opinion:
A tension exists in the texts of the statutes
[Chapters 51 and 55] (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
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more flexible behavioral standards is palpable in the
majority opinion. Does this opinion govern all
Alzheimer's patients or only Helen E.F.?
340 Wis. 2d 500, ¶47 (Abrahamson, J., concurring).
¶45 We can see the genesis of Mr. J.'s concern. In Helen
E.F. we described Alzheimer's Disease as "incurable and
untreatable; the only available medical remedy is maintenance——
not treatment——of the disease as it progresses." Id., ¶37.
This is a categorical statement and strongly suggests that,
because of the nature of Alzheimer's Disease and the state of
medical science, no one suffering from that condition has
rehabilitative potential. While that may be true as a medical
matter (emphasis on "may"), it does not mean that our Helen E.F.
framework countenances the automatic relegation of such patients
to the non-rehabilitative category.
¶46 Our analysis explicitly requires an inquiry into each
individual's condition and potential for rehabilitation. It is,
in fact, shot through with references to the individual:
If treatment will maximize the individual functioning
and maintenance of the subject, but not help in
controlling or improving their disorder, then the
subject individual does not have rehabilitative
potential, and is not a proper subject for treatment.
However, if treatment will go beyond controlling
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., ¶36 (emphasis added; internal alterations and quotations
omitted). There is always hope that seemingly intractable
conditions like Alzheimer's Disease may someday become
tractable. Our standard for determining rehabilitative
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No. 2016AP46-FT
potential does not foreclose that possibility. We evaluate each
individual individually.
E. Clear and Convincing Evidence
¶47 Mr. J. says the County did not establish he is a
proper subject of treatment under either the Helen E.F. rubric
or his proposed revision. His objection is largely that his
disorder is not continuing to improve. He acknowledges he is
not getting worse but asserts that unless treatment is
continually improving his condition, he does not have
rehabilitative potential. He does not say why this should be
so, and no supporting rationale immediately suggests itself.
¶48 As we discussed at length, supra, Mr. J.'s treatment
is achieving laudable results. Currently, he can integrate in
society while receiving his treatment as an outpatient. Without
treatment, his condition will deteriorate to the point that an
involuntary commitment order will subject him to confinement so
he can receive treatment as an inpatient. If we adopted Mr.
J.'s argument, we would condemn him to a never-ending yo-yo of
uncontrolled paranoid schizophrenia, followed by involuntary
confinement for inpatient treatment until his symptoms are
controlled and his inpatient commitment order is lifted,
followed by another bout of uncontrolled paranoid schizophrenia,
and on and on ad mortem. Nothing in law or logic instructs us
25
No. 2016AP46-FT
to ignore this reality, so we will not.16 The County provided
clear and convincing evidence that treatment controls Mr. J.'s
symptoms to such an extent that he can integrate into society
without posing a threat to himself or others and that withdrawal
of treatment would eventually require his confinement so he
could receive inpatient treatment. Consequently, the evidence
is sufficient to demonstrate Mr. J. is a proper subject of
treatment within the meaning of Wis. Stat. § 51.20(1).
V. CONCLUSION
¶49 Mr. J. did not challenge the circuit court's factual
findings, and both the circuit court and the court of appeals
properly applied Helen E.F. to conclude Mr. J. is a proper
subject of treatment because he has rehabilitative potential.
Consequently, we affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
16
Mr. J. also asserted he should not be subject to an
involuntary commitment order because Chapter 51 is meant to be
used for "short term treatment and rehabilitation intended to
culminate with re-integration of the committed individual into
society," and he has already been subject to such orders
continuously since 2009. Presumably, Mr. J. meant this
observation to support his bid to be free of Waukesha County's
orders. However, this might instead suggest he would be a
candidate for involuntary, long-term protective placement under
Wis. Stat. ch. 55. But because he did not develop this argument
and no one has briefed how chapters 51 and 55 complement (or
don't complement) each other, we will not consider it here. See
Clean Wisconsin, Inc. v. Pub. Serv. Comm'n of Wis., 2005 WI 93,
¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 ("We will not address
undeveloped arguments.").
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No. 2016AP46-FT.ssa
¶50 SHIRLEY S. ABRAHAMSON, J. I renew my concern that
the Helen E.F. case set forth a confusing and unpredictable test
to interpret a "proper subject for treatment" under Chapter 51.
Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500,
814 N.W.2d 179. The instant opinion continues and possibly
magnifies the problem.
¶51 In Helen E.F., this court analyzed and compared
Chapters 51 and 55 of the Wisconsin Statutes. Despite the fact
that Chapters 51 and 55 ostensibly serve different purposes,
there is substantial overlap and similarity between some aspects
of the two chapters. Helen E.F., 340 Wis. 2d 500, ¶45
(Abrahamson, C.J., concurring).
¶52 But one important and undisputed distinction between
Chapters 51 and 55 is the length of the treatment or commitment
that each chapter provides. Mr. J. has been under Chapter 51
for almost a decade. Although an initial Chapter 51 commitment
cannot exceed six months and extensions are possible, Wis. Stat.
§ 51.20(13)(g), Chapter 55 applies to a commitment caused by "a
disability that is permanent or likely to be permanent."
§ 55.08(1)(d). See Helen E.F., 340 Wis. 2d 500, ¶¶29, 44. The
majority opinion, ¶48 n.16, slides over this issue.
¶53 This distinction matters. Although both provide for
involuntary commitments, Chapter 55 contains numerous additional
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No. 2016AP46-FT.ssa
procedures and protections for an individual subject to a long-
term commitment that Chapter 51 simply doesn't.1
¶54 Because the court is faced with interpreting and
applying Chapter 51 to Mr. J., I briefly restate my concerns
with the Helen E.F. test.
¶55 Although I agree with the majority opinion that Mr.
J.'s suggested revisions of the Helen E.F. test are unavailing,
I remain concerned that the Helen E.F. tests is also unavailing.
¶56 "Rehabilitation" appears to be the linchpin of this
statutory definition. See Milwaukee Cty. Combined Cmty. Servs.
1
See also Wisconsin Coalition for Advocacy, Rights &
Reality II, An Action Guide to the Rights of People with
Disabilities in Wisconsin 342 (2001):
In general, Chapter 55 is used for long-term
placement or services while Chapter 51 is used for
more time-limited treatment.
. . . .
This is a helpful way to separate the two statutes,
but there will be many situations where they overlap.
For example, a person with a permanent disability like
mental retardation would ordinarily receive services
under Chapter 55, but could also have a mental health
crisis which would be handled under Chapter 51 with
either voluntary or involuntary treatment. Persons
with chronic mental illness who are incompetent and
have a guardian can probably be served under either
Chapter 51 or 55. Some younger persons with severe
mental health needs who live in group homes or in
their own apartments with intensive services such as
Community Support Programs (CSP) may be under Chapter
55 orders. Others in exactly the same situation are
under Chapter 51 commitments which are renewed year
after year. This varies by county.
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No. 2016AP46-FT.ssa
Bd. v. Athans, 107 Wis. 2d 331, 334-36, 320 N.W.2d 30 (Ct. App.
1982).
¶57 The line between controlling activity versus
controlling the symptoms and the disorder——that is, whether an
individual is habilitable or rehabilitable——is not any brighter
or clearer to me in the instant opinion than in Helen E.F..
¶58 Unfortunately, the court maintains the confusing test
it adopted in Helen E.F., failing to differentiate Chapter 51
commitments from Chapter 55 commitments.
¶59 I renew my suggestion that "it may be time for the
legislature to reassess the goals and intended scope of the two
chapters." Helen E.F., 2012 WI 50, ¶56 (Abrahamson, C.J.,
concurring) (citing Wis. Stat. §§ 13.83(1)(c), 13.92(2)(j)).
¶60 For these reasons, I write separately.
¶61 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
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