WHA, Wisconsin Counties Association File Brief Aimed at Preventing Influx of New Emergency Detentions

November 05, 2020

The Wisconsin Supreme Court received a joint amicus brief from WHA, the Wisconsin Counties Association and the Wisconsin Association of County Corporation Counsels on November 3 asking that the Court uphold the constitutionality of Wisconsin’s mental health re-commitment statute
Together, the three organizations raised concerns that Wisconsin would see a “revolving door” of new Chapter 51 emergency detentions if the Court invalidates the re-commitment statute in Waupaca County v. K.E.K.  Previously, a Waupaca County district court and the District IV Court of Appeals upheld the constitutionality of the Chapter 51 re-commitment statute. 
The appellant, K.E.K. is an individual who was re-committed to involuntary treatment by order of a Waupaca County court on a finding, supported by medical evidence, that K.E.K. posed a “substantial likelihood, based on [her] treatment record,” that she would pose a danger to herself or others if treatment were withdrawn.  K.E.K. argues that the “substantial likelihood” standard for re-commitment is unconstitutional and that a county must present a “current overt act or omission establishing dangerousness” in order to continue an involuntary commitment. 
“Our courts have acknowledged the ‘clear intent of the Legislature in amending sec. 51.20(1)(am)…was to avoid the ‘revolving door’ phenomena whereby there must be proof of a recent overt act to extend the commitment but because the patient was still under treatment, no overt acts occurred and the patient was released from treatment only to commit a dangerous act and be recommitted,’” states the joint amicus brief.  For hospitals, the revolving door would result in “more resources spent to safely manage, evaluate and stablilize an unnecessary influx of involuntary patients in psychiatric crisis coming to general emergency departments.” 
Wisconsin Attorney General Josh Kaul also filed an amicus brief in support of the constitutionality of the re-commitment statute. Kaul’s amicus brief also raised concerns that invalidating the re-commitment statute would increase the number of emergency detentions in Wisconsin.
Oral arguments in the case are scheduled for November 17, 2020.
If you have questions about the case, contact WHA General Counsel Matthew Stanford.

This story originally appeared in the November 05, 2020 edition of WHA Newsletter