01-0374 In Re the commitment of Dennis H.: State v. Dennis H.

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“The so-called “fifth standard,” Wis. Stat. § 51.20(1)(a)2.e., was enacted in 1995, see 1995 Wis. Act 292, and provides that “an individual, other than an individual who is alleged to be drug dependent or developmentally disabled,” is considered ‘dangerous’ if: ‘[A]fter the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to him or her and because of mental illness, evidences either incapability of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives, or substantial incapability of applying an understanding of the advantages, disadvantages, and alternatives to his or her mental illness in order to make an informed choice as to whether to accept or refuse medication or treatment; and evidences a substantial probability, as demonstrated by both the individual’s treatment history and his or her recent acts or omissions, that the individual needs care or treatment to prevent further disability or deterioration and a substantial probability that he or she will, if left untreated, 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. The probability of suffering severe mental, emotional or physical harm is not substantial under this subd.2.e. if reasonable provision for the individual’s care or treatment is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services or if the individual is appropriate for protective placement under § 55.06. Food, shelter or other care that is provided to an individual who is substantially incapable of obtaining food, shelter or other care for himself or herself by any person other than a treatment facility does not constitute reasonable provision for the individual’s care or treatment in the community under this subd.2.e. The individual’s status as a minor does not automatically establish a substantial probability of suffering severe mental, emotional, or physical harm under this subd.2.e.’ Wis. Stat. § 51.20(1)(a)2.e.

“[T]he fifth standard does not allow involuntary commitment upon a finding of mental illness alone, and contains an ascertainable standard of commitment, and is therefore not unconstitutionally vague or overbroad. Furthermore, the fifth standard does not create a class of persons who can be involuntarily committed upon a finding of mere mental or emotional harm, and therefore does not violate equal protection. Finally, the fifth standard does not violate substantive due process, because the constitution does not require proof of imminent physical harm prior to commitment for treatment.”

Affirmed.

Appeal from an order of the Circuit Court for Milwaukee County, Manian, J., Sykes, J., Abrahamson, J., concurring.

Attorneys:

For Appellant: Ellen Henak, Thomas K. Zander, Milwaukee

For Respondent: Thomas J. Balistreri, James E. Doyle, Madison