WHA Courtroom Advocacy: WI Supreme Court Upholds Re-Commitment Statute

February 11, 2021

The Wisconsin Supreme Court upheld the constitutionality of Wisconsin’s mental health re-commitment statute in a 5-2 decision on Feb. 9. The Wisconsin Hospital Association (WHA), the Wisconsin Counties Association and the Wisconsin Association of County Corporation Counsels filed an amicus brief with the court in November supporting the constitutionality of the re-commitment statute. 
Together, the three organizations raised concerns to the Supreme Court that Wisconsin would see a “revolving door” of new Chapter 51 emergency detentions if the court invalidated the re-commitment statute in Waupaca County v. K.E.K . The Supreme Court agreed and concluded that “addressing the ‘revolving door’ phenomena is a reasonable basis for the different evidentiary avenues [for re-commitment] and the fifth standard.” 
The case was brought by an individual identified as K.E.K. 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likelihood, based on [her] treatment record,” that she would pose a danger to herself or others if treatment were withdrawn.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. argued that the “substantial likelihood” standard for re-commitment was 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,’” stated the WHA joint amicus brief. For hospitals, the revolving door would result in “more resources spent to safely manage, evaluate and stabilize 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.
If you have questions about the case, contact WHA General Counsel Matthew Stanford.

This story originally appeared in the February 11, 2021 edition of WHA Newsletter