Commitment hearings must be held in 10 days

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The hearing pursuant to sec. 51.35(1)(e) to transfer an outpatient to inpatient status must be held within 10 days or the court lacks jurisdiction, the Wisconsin Court of Appeals held on Oct. 1.

In November 2001, Elizabeth M.P., had a commitment to the Fond du Lac County Department of Community Programs extended for treatment of her mental illness, until Nov. 3, 2002. The court found Elizabeth incompetent to refuse psychotropic medication and entered an order for involuntary medication and treatment pursuant to sec 51.61(1)(g) and (h).

In March 2002, Elizabeth was transferred from a locked inpatient facility to the Bletzinger House, a group home treatment facility. However, on May 28, 2002, a notice to transfer Elizabeth back to inpatient status was filed pursuant to sec. 51.35(1).

An affidavit by the corporation counsel for Fond du Lac County, attached to this notice, indicated that, since Elizabeth’s outpatient placement, she had refused to take her court-ordered medication, had become delusional, argumentative and aggressive, and had failed to take her psychotropic medication as prescribed.

The affidavit further indicated that Elizabeth’s mental condition had substantially deteriorated, that she was unable to meet the demands of everyday life, and that she had violated conditions of her commitment by failing to comply with recommended treatment.

The same day, the circuit court signed an order directing the sheriff’s department to take Elizabeth into custody and transfer her to the Fond du Lac County Health Care Center’s acute unit.

On June 13, Elizabeth filed a motion for her immediate release from inpatient treatment, arguing that a hearing to review her transfer to inpatient status was not held within ten days of the transfer, as required by sec. 51.35(1)(e)3.

On June 19, the circuit court denied this motion, finding that the transfer to inpatient status was made pursuant to sec. 51.35(1)(e)1, not sec. 51.35(1)(e)3. The court further concluded that a transfer under sec. 51.35(1)(e)1 does not require a hearing within ten days of the transfer. The court also found that Elizabeth had the right to judicial review of her transfer and ordered a judicial review hearing at a future time and date.

On July 9, the judicial review hearing took place, and the court approved the transfer, finding that the least restrictive environment consistent with Elizabeth’s needs was inpatient status. Elizabeth appealed, and the court of appeals reversed in a decision by Judge Snyder.

The Statute

Section 51.35(1)(e) provides in relevant part: “1. Whenever any transfer between different treatment facilities results in a greater restriction of personal freedom for the patient and whenever the patient is transferred from outpatient to inpatient status, the department or the county department specified under par. (a) shall inform the patient both orally and in writing of his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent, and the right to petition a court in the county in which the patient is located or the committing court for a review of the transfer.

“2. In addition to the rights and requirements specified in subd. 1., within 24 hours after any transfer which results in a greater restriction of personal freedom for the patient for a period of more than 5 days or any transfer from outpatient to inpatient status for a period of more than 5 days and if the transfer is due to an alleged violation of a condition of a transfer to less restrictive treatment, the department or the county department specified under par. (a) shall ensure that the patient is provided a written statement of the reasons for the transfer and the facts supporting the transfer and oral and written notice of all of the following: (a). The requirements and rights under subds. 3. to 5. (b). The patient’s right to counsel. (c). The patient’s right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent. (d). The rights of the patient’s counsel to investigate the facts specified in the written statement of reasons for the transfer, to consult with the patient prior to the patient’s waiving a hearing under subd. 3., to represent the patient at all proceedings on issues relating to the transfer, and to take any legal steps necessary to challenge the transfer.

“3. Within 10 days after the transfer specified in subd. 2., a hearing shall be held on whether the form of treatment resulting from the transfer is least restrictive of the patient’s personal liberty, consistent with the treatment needs of the patient, and on whether the patient violated a condition of a transfer to less restrictive treatment that resulted in a transfer under subd. 2. The hearing shall be held before a hearing officer designated by the director of the facility to which the patient has been transferred.

The hearing officer may not be a person who has had direct responsibility for making treatment decisions for or providing treatment to the subject individual. The patient may appear at the hearing, either personally or by counsel, and may present and cross-examine witnesses and present documentary evidence. The hearing may be waived by the patient only after consultation with counsel. Any waiver made shall be in writing and witnessed by the patient’s counsel.”

Applicability

The court rejected the County’s argument that, because the transfer of Elizabeth was done pursuant to subdivision 1, rather than 2, no hearing need be held within 10 days, as required in subdivision 3.

The court found, “sec. 51.35(1)(e)1 and (1)(e)2 seem to indicate different forms of transfers. The provisions suggest that while only one transfer provision and its various subdivisions all serve to protect the rights of patients, subdivision 2 exists to further protect the rights of those whose transfer ‘results in a greater restriction of personal freedom for the patient for a period of more than 5 days or any transfer from outpatient to inpatient status for a period of more than 5 days’ where the transfer ‘is due to an alleged violation of a condition of a transfer to less restrictive treatment.’ Sec. 51.35(1)(e)2.”

The court concluded that the transfer occurred pursuant to subdivision 2, because it resulted in a greater restriction of personal freedom.

The court noted that the notice given to Elizabeth related the rights enumerated in subdivisions 3 through 5, rights that mirror the transfer provisions in subdivision 2. In addition, one of the reasons for the transfer was failure to take court-ordered medications, indicating that the transfer was “due to an alleged violation of a condition of transfer to less restrictive treatment,” quoting subdivision 2.

Mandatory Hearing

Thus, the court concluded that the only question remaining is whether the provision in sec. 51.35(1)(e)3 for a hearing within 10 days is mandatory or directory, and concluded it was mandatory.

The court reasoned, “Sec. 51.35(1)(e)3 states that ‘a hearing shall be held on whether the form of treatment resulting from the transfer is least restrictive of the patient’s personal liberty, consistent with the treatment needs of the patient, and on whether the patient violated a condition of a transfer to less restrictive treatment’ within ten days of transfer. The use of the word ‘shall’ suggests that the provision must be interpreted as mandatory. In fact, the normal interpretation of this statutory language is that ‘the word “shall” is presumed mandatory when it appears in a statute,’” quoting State v. Sprosty, 227 Wis. 2d 316, 324, 595 N.W.2d 692 (1999).

The court acknowledged that, on occasion, statutory time limits have been held discretionary notwithstanding use of the word, “shall.”

The court quoted the governing principles set forth in State ex rel. Marberry v. Macht, 2003 WI 79, par. 17, 262 Wis. 2d 720, 665 N.W.2d 155, and include “the existence of penalties for failure to comply with the limitation, the statute’s nature, the legislative objective for the statute, and the potential consequences to the parties, such as injuries or wrongs.”

The court also cited Karow v. Milwau-kee County Civil Service Commission, 82 Wis. 2d 565, 572, 263 N.W.2d 214 (1978), in which the Wisconsin Supreme Court stated, “a time limit may be construed as directory when allowing something to be done after the time prescribed would not result in an injury. But where the failure to act within the statutory time limit does work an injury or wrong, this court has construed the time limit as mandatory.”

The court then noted that both it and the Wisconsin Supreme Court have held that the liberty interest of a patient in a civil commitment hearing is substantial, citing Shirley J.C. v. Walworth County, 172 Wis. 2d 371, 375, 493 N.W.2d 382 (Ct. App. 1992), and State v. Dennis H., 2002 WI 104, par. 48, 255 Wis. 2d
359, 647 N.W.2d 851 (Abrahamson, C.J., concurring).

Shall/May

The court further concluded that the statute indicates the legislature was aware of the distinct meaning of the terms “shall” and “may,” and intended that “shall” be interpreted to be mandatory.

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The court quoted a portion of subdivision 3 as follows: “The hearing shall be held before a hearing officer designated by the director of the facility to which the patient has been transferred. The hearing officer may not be a person who has had direct responsibility for making treatment decisions for or providing treatment to the subject individual. The patient may appear at the hearing, either personally or by counsel, and may present and cross-examine witnesses and present documentary evidence.

The hearing may be waived by the patient only after consultation with counsel. Any waiver shall be in writing and witnessed by the patient’s counsel (emphases added by court).”

The court concluded, “that the statute differentiates between ‘may’ and ‘shall’ indicates that the patient may choose to behave as he or she sees fit, but the State must comply with the duties imposed upon it by the statute. Thus, the interpretation of the word ‘shall’ in sec. 51.35(1)(e) as mandatory is supported by the logic of Sprosty.”

The court added, “This conclusion, that the hearing is mandatory, is further supported by the language of Wis. Stat. sec. 51.35(1)(e)3: ‘The hearing may be waived by the patient only after consultation with counsel. Any waiver made shall be in writing and witnessed by the patient’s counsel.’ When a hearing must be waived and can only be waived in writing after consultation with legal counsel, such a provision can only be construed as mandatory.”

Accordingly, the court held that the circuit court lacked jurisdiction to transfer her to inpatient status, and ordered that she be returned to outpatient status.

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David Ziemer can be reached by email.