Update from the Treatment Advocacy Center, July 19, 2002
The Treatment Advocacy Center filed an amicus brief in the case and our Executive Director, Mary Zdanowicz, was given the unusual privilege for an amicus party of presenting to the Court during oral argument. Read a second brief supporting the standard by Ken Kress, M.A., J.D., Ph.D., professor of law and director of the Civil Commitment Project at the University of Iowa College of Law. Professor Kress is on the board of directors of the Treatment Advocacy Center.
ANALYSIS OF DECISION
On July 12, the Wisconsin Supreme Court resoundingly rebuffed a constitutional challenge to that state’s “Fifth Standard,” which is among the nation’s broadest treatment placement criteria.
The unanimous Court found that those meeting the Fifth Standard are in a condition that constitutes “dangerousness” under both the U.S. and Wisconsin Constitutions. But the Court’s definition of what is dangerous fell soundly within the realm of what most would call “need for treatment.”
As in the case, State of Wisconsin v. Dennis H., the constitutionality of the Fifth Standard was at issue. An adverse ruling could have stricken the progressive treatment standard from Wisconsin law.
Under the Fifth Standard a person can be placed in treatment if a court finds a substantial probability that "if left untreated," he or she will "lack services necessary for his or her health or safety and suffer severe mental, emotional or physical harm that will result in the loss of the individual's ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions."
Although not identical, the criteria are similar to those in the Treatment Advocacy Center’s Model Law.
While they attacked the Fifth Standard on a number of legal fronts, the central assertion of the lawyers for Dennis H. was that the statute is unconstitutional because it lacks a requirement of imminent dangerousness to self or others.
Consistently put forth by opponents of treatment law reform as forbidding any commitments not based on the danger of immediate physical harm is the 1975 decision of the U.S. Supreme Court case of O’Connor v. Donaldson. Predictably, Dennis H.’s attorneys relied on this consistent but unproven argument.
And the seven members of the Wisconsin Supreme Court did not buy it, ruling that “The fifth standard thus fits easily within the O'Connor formulation: even absent a requirement of obvious physical harm such as self-injury or suicide, a person may still be "dangerous to himself" if "he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends." Rather than using O’Connor to strike down the Fifth Standard, the Court used the case to justify it.
Moreover, as you can tell from the following excerpts from the opinion, the Court clearly looked not just at the law but also appreciated the compelling need for earlier treatment interventions.
The court also looked at a number of issues that concern us, including lack of insight, the perils facing someone incapable of making informed treatment decisions, and the “revolving door” that laws like the Fifth Standard are designed to stop. Some excerpts follow.
“Mentally ill persons who meet the fifth standard's definition are clearly dangerous to themselves because their incapacity to make informed medication or treatment decisions makes them more vulnerable to severely harmful deterioration than those who are competent to make such decisions. The state has a strong interest in providing care and treatment before that incapacity results in a loss of ability to function.”
“The fifth standard's focus is on dangerousness to self -- dangerousness of a particularly insidious nature because it is chronic and cyclical (measured by treatment history and recent acts or omissions), and brought on by mental illness that produces an incapacity to make medication or treatment decisions as well as a substantial probability of an incapacity to care for oneself.”
“Moreover, by requiring dangerousness to be evidenced by a person's treatment history along with his or her recent acts or omissions, the fifth standard focuses on those who have been in treatment before and yet remain at risk of severe harm, i.e., those who are chronically mentally ill and drop out of therapy or discontinue medication, giving rise to a substantial probability of a deterioration in condition to the point of inability to function independently or control thoughts or actions. See Darold A. Treffert, The MacArthur Coercion Studies: A Wisconsin Perspective, 82 Marq. L. Rev. 759, 780 (1999). The statute represents the fruition of the efforts of the Wisconsin State Medical Society and the Alliance for the Mentally Ill [now NAMI-Wisconsin], professional organizations which recognized a need for a law that could be applied to those victims of mental illness who fell through the cracks under the old statutory scheme. See id.”
“The fifth standard applies to mentally ill persons whose mental illness renders them incapable of making informed medication decisions and makes it substantially probable that, without treatment, disability or deterioration will result, bringing on a loss of ability to provide self-care or control thoughts or actions. It allows the state to intervene with care and treatment before the deterioration reaches an acute stage, thereby preventing the otherwise substantially probable and harmful loss of ability to function independently or loss of cognitive or volitional control. There is a rational basis for distinguishing between a mentally ill person who retains the capacity to make an informed decision about medication or treatment and one who lacks such capacity. The latter is helpless, by virtue of an inability to choose medication or treatment, to avoid the harm associated with the deteriorating condition.”