STATE of Wisconsin EX REL. Joyce JONES and David Galicia, M.D., individually and as representatives of the classes of persons similarly situated, Petitioners-Appellants, STATE of Wisconsin EX REL. STATE PUBLIC DEFENDER, Attempted Intervenor and Appellant, v. Richard GERHARDSTEIN, M.D., the Milwaukee County Combined Community Services Board, Donald Percy, and The Wisconsin Department of Health & Social Services, Respondents-Petitioners.
No. 85-1718
Supreme Court of Wisconsin
Argued September 8, 1987. Decided December 21, 1987.
416 N.W.2d 883
For the respondents-petitioners the cause was argued by F. Thomas Creeron, III, assistant attorney general, with whom on the briefs was Donald J. Hanaway, attorney general.
For the petitioners-appellants and attempted intervenor and appellant, there were briefs and oral argument by Thomas K. Zander, Legal Aid Society of Milwaukee, Inc., Milwaukee.
There were amicus curiae briefs by Herbert S. Bratt, Edward S. Levin and Wisconsin Psychiatric Association, Inc., Milwaukee; Sally L. Wencel, H. B. Maroney, II and State Medical Society of Wisconsin, Madison; Dianne Greenely and Wisconsin Coalition for Advocacy, Inc., Madison and Thomas E. Dixon, Jr., Michael Perlin and Mary Burke, The National Mental Health Association, National Mental Health Consumer‘s Association, and The Mental Health Association of Wisconsin, Madison.
STEINMETZ, J. This court accepted the petition for review to decide whether the involuntary administration of psychotropic1 medication to persons committed pursuant to Chapter 51 of the Wisconsin Statutes violates their right to equal protection under the
The Wisconsin Department of Health and Social Services (a state agency) and the Milwaukee County Combined Community Services Board (a county agency) as petitioners raise several jurisdictional and procedural issues. They claim the courts lacked personal jurisdiction based on inadequate service of process. They further challenge the habeas corpus jurisdiction of the trial court to raise the substantive constitutional issue. Finally, petitioners argue that Jones and Galicia lacked standing to bring the action commenced because there was no case or controversy and because this was not a proper class action. Alternatively, they claim that the action was properly dismissed by the trial court as moot.
The respondents, Joyce Jones and David Galicia, M.D., were involuntarily committed for psychiatric treatment. This action was commenced on September 28, 1979, by the filing of a petition for habeas corpus and for declaratory and injunctive relief on behalf of Jones against Richard Gerhardstein, M.D. and the Milwaukee County Combined Community Services Board created pursuant to
At the first hearing, the county made an oral motion to dismiss the action as moot because Jones was no longer in the custody of the 51.42 board, her commitment having expired.
On October 16, 1979, an additional petitioner, David Galicia, M.D., was added to the lawsuit which implicated the state‘s responsibilities under chs. 51 and 971, Stats. Galicia had been involuntarily committed to the custody of the Wisconsin Department of Health and Social Services pursuant to
Jones and Galicia filed a motion on November 5, 1979, purporting to state a class action covering all individuals who at that time or in the future might be involuntarily treated following commitment pursuant to
On June 20, 1985, the trial court issued a memorandum decision dismissing the amended petition as moot and denying the motion for class certification. On August 2, 1985, the court issued findings of fact and conclusions of law denying the motion for intervention and the motion for reconsideration. The court issued a judgment dismissing the action for lack of case or controversy and for mootness. This judgment was appealed to the court of appeals.
The court of appeals rejected all arguments of the state and county and reversed the trial court. State ex rel. Jones v. Gerhardstein, 135 Wis. 2d 161, 400 N.W.2d 1 (Ct. App. 1986). The court of appeals found the treatment authorization provisions of
The state and county petitioned this court for review of that decision.
The state and county claim the courts lack personal jurisdiction over petitioners based on inadequate service of process. A review of the record reveals that on September 28, 1979, Attorney Robert A. McKnight, principal assistant corporation counsel for Milwaukee county, admitted service of the writ of habeas corpus, the order granting writ of habeas corpus and the petition for writ of habeas corpus on behalf of Dr. Gerhardstein and the 51.42 board. On October 1, 1979, Esther K. Hetzel, Dr. Gerhardstein‘s secretary, admitted service of these same documents on behalf of Dr. Gerhardstein. On October 16, 1979, Attorney McKnight admitted service of the amended writ of habeas corpus and the amended petition for the writ “on behalf of Gerhardstein and the 51.42 Board.” The following day, Attorney Barbara Jaffe, legal counsel for the state, admitted service of these same amended documents on behalf of Donald Percy and the Wisconsin Department of Health and Social Services. Service of these documents was also admitted by the attorney general‘s office on October 19, 1979.5
The second basis for the personal jurisdiction challenge raised by the county is that neither Dr. Gerhardstein nor Attorney McKnight were proper agents to accept service of process on behalf of the 51.42 board because neither of these individuals “had custody of the patients.”
Dr. Gerhardstein, when served, was a “director” within the meaning of
Once jurisdiction was thus obtained over Dr. Gerhardstein, the responsibilities of the 51.42 board were implicated. Moreover, Attorney McKnight accepted not only the original documents, but the amended documents as well.
The amended writ of habeas corpus and amended petition for writ of habeas corpus were served on R. A. McKnight “on behalf of Gerhardstein & 51.42 Board.” Dr. Gerhardstein had already been served with original documents and therefore assistant corporation counsel was accepting the amended documents as attorney “on behalf of” the doctor. This court stated in Fontaine v. Milwaukee County Expressway Comm., 31 Wis. 2d 275, 279, 143 N.W.2d 3 (1966):
“When an attorney-at-law formally acknowledges the receipt of a document as an attorney on behalf of a client, it may be presumed (in the absence of сontradiction) that he was authorized by the client to accept it.”
The amended documents were also served on Donald Percy and the Wisconsin Department of Health and Social Services by substituted service on “Barbara S. Jaffe, Legal Counsel on behalf of Donald Percy, Wis. Dept. of H&SS.” Service of the amended documents was statutorily sufficient under secs.
The first writ for habeas corpus and order was signed by circuit court Judge John E. McCormick on September 28, 1979, ordering Joyce Jones to be produced in court and further ordering the county: “[T]o show cause why the forcible administration of psychotropic drugs to the above-named petitioners should not be declared contrary to law, as alleged in the attached petition.” In the order granting the writ, Judge McCormick, pursuant to
Though the action was commenced as a writ of habeas corpus and service was proper therein, Jones and Galicia also sought declaratory judgment relief. This court has held that in the determination of public questions, courts may treat an action for an extraordinary writ as if it were an action for declaratory judgment. In this case, it is even stronger in that the pleadings, original and amended, have sought declaratory and injunctive relief.
Notwithstanding the propriety of invoking jurisdiction with the writ of habeas corpus, this case was also commenced as a declaratory judgment action; jurisdiction was well-grounded in this case. As this court stated in bin-Rilla v. Israel, 113 Wis. 2d 514, 521, 335 N.W.2d 384 (1983):
“In ordinary civil cases, as in pro se prisoner petition cases, we look to the facts pleaded, not to the label given the papers filed, to determine whether the party should be granted relief. State ex rel. Furlong v. Waukesha Cty. Ct., 47 Wis. 2d 515, 522, 177 N.W.2d 333 (1970) (petition for a writ of prohibition treated as a petition for writ of habeas corpus); Beane v. City of Sturgeon Bay, 112 Wis. 2d 609, 334 N.W.2d 235 (1983).”
State ex rel. Racine County v. Schmidt, 7 Wis. 2d 528, 536, 97 N.W.2d 493 (1959) stated:
“Even where mandamus was determined not to be a proper remedy, however, this court has, in order to avoid unnecessary delay in the determination of public questions, treated an action in mandamus as if it were an action for dеclaratory relief. Thus a final decision has been reached with a minimum of uncertainty.”
Also in Racine County the court stated:
“Even so, we conclude that where the circuit court within its discretion decided that mandamus was not the appropriate remedy, the court should have expedited the matter by following the suggestion of the Young and Silgen Cases and proceeding as if the action in so far as it pertains to sec. 51.08 were an action for declaratory relief.” Id. at 537. See also State ex rel. Young v. Maresch, 225 Wis. 225, 273 N.W. 225 (1937) and Silgen v. Fond du Lac, 225 Wis. 335, 274 N.W. 256 (1937).
The requirements for an action for declaratory judgment were stated in Lister v. Board of Regents, 72 Wis. 2d 282, 306, 240 N.W.2d 610 (1976):
“The basic requirement in asserting a claim for declaratory relief is that there be a ‘justiciable controversy.’ Under this requirement, a controversy is not a proper subject for declaratory relief unless it: (1) Involves a claim of right on the part of the plaintiff which is asserted against one who has
an interest in contesting it; (2) is between two persons whose interests are adverse; (3) involves a legally protectible interest in the person seeking declaratory relief; and (4) is ripe for judicial determination. These prerequisites to the maintenance of a declaratory judgment action are designed primarily to insure that a bona fide controversy exists and that the court, in resolving the questions raised, will not be acting in a merely advisory capacity.” (Footnote omitted.)
The amended petition for writ of habeas corpus meets the requirements for seeking declaratory judgment relief.
The state and county claim that any initially existing case or controversy was rendered moot in the trial court and on appeal because the commitments of Jones and Galicia expired shortly after the action was filed. We stated in In Matter of G.S., 118 Wis. 2d 803, 805, 348 N.W.2d 181 (1984):
“This court has consistently adhered to the rule that a case is moot when a determination is sought upon some matter which, when rendered, cannot have any practical legal effect upon a then existing controversy .... It is generally thought to be in the interest of judicial economy to avoid litigating issues that will not affect real parties to an existing controversy....”
However, we recognized in G.S. that:
“[T]his court has carved out certain exceptions to this general rule where: the issues are of great public importance; the constitutionality of a statute is involved; the precise situation under consideration arises so frequently that a definitive decision is essential to guide the trial courts; the issue
is likely to arise again and should be resolved by the court to avoid uncertainty; or, a question is capable and likely of repetition and yet evades review because the appellate process usually cannot be completed and frequently cannot even be undertaken within a time that would result in a practical effect upоn the parties.” Id.
In that case, which also involved forcible administration of psychotropic drugs to an involuntarily committed individual, we declined to apply the exceptions to the mootness doctrine. We stated:
“The personal liberty issues raised by involuntary commitment and forced psychotropic drugging are of public importance and susceptible to recurrence, but the potentially significant ramifications of a supreme court opinion on these subjects cannot be adequately measured when rendered outside an existing dispute.” Id. at 806.
However, G.S. is distinguishable from the case at bar. The parties in G.S. conceded during oral argument that the issues were moot; no such concession is made in this case. Additionally, the state and county concede here that psychotropic drugs are forcibly administered to all patients; this concession was not made in G.S. This court is now convinced the issue regarding the constitutionality of the involuntary application of drugs to mentally competent persons who have been involuntarily committed is an issue of such statewide and pressing nature that it must be decided.
The present case is procedurally more similar to the one presented in State ex rel. Watts v. Combined Community Services, 122 Wis. 2d 65, 362 N.W.2d 104 (1985). Watts involved a class action comprised of
“The issues are of great public concern with regular recurrence and due to the limited period of confinement of ten days and fifteen days respectively under sec. 55.06(9)(d) and (e), a limited opportunity exists to bring the issues before the courts. By the time the issues are scheduled before trial courts, the petitioners similarly situated are likely no longer to be detained for diagnosis or treatment. The case is within the exception to the rule that this court does not consider moot issues as stated In Matter of G.S., 118 Wis. 2d 803, 805, 348 N.W.2d 181 (1984).” Id. at 71.
Though the commitments of both Jones and Galicia ended shortly after the commencement of the instant action, their histories of multiple hospitalizations demonstrate that the case and controversy created by the nonconsensual administration of psychotropic drugs to such individuals is clearly capable of repetition, yet it evades review due to the nature of intermittent commitments of individuals.
Even if the case were moot as to the named persons, however, it would qualify for consideration, in that societal treatment of involuntarily committed individuals is an issue of great public importance. As such, all the exceptions to mootness are sufficiently present in this case. Moreover, the state and county concede that psychotropic drugs are invоluntarily given to all types of patients, so the issue arises frequently and affects a continuing class.
Before deciding the merits of the substantive constitutional issue, the respondent class requests that this court review the denial of the public defender‘s motion to intervene. The motion was brought under
Dr. Galicia was licensed to practice medicine in Wisconsin in 1971 as a psychiatrist. In the course of his practice as a psychiatrist, he treated hundreds of patients with the drug lithium carbonate. From December, 1977, through April, 1978, when he was a criminally committed patient at Central State Hospital, this drug was administered to him over his objections.
The parties’ stipulations and testimonial evidence reveal that both Jones and Galicia objected to receiving the psychotropic drugs administered to them during the periods of involuntary hospitalization, and that neither had ever been declared incompetent by any court. Petitioners have also conceded that although both were released from custody shortly after the action began, both had a history of multiple involuntary hospitalizations. They have also conceded that psychotropic drugs can cause adverse effects and are administered to involuntarily committed individuals without their informed consent. The state and county conceded, “We have forcibly treated all the patients, competent or incompetent, that have been committed.”
Medical experts of both parties testified about the substantial potential side effects caused by psychotropic drugs. It is undisputed that some of these drugs cause numerous side effects that are more prevalent than with any other drugs used in medicine. These side effects include, but are not limited to the following: dry mouth; dizziness; lowered blood pressure; skin itching; urinary retention; constipation; agranulocytosis (condition which damages blood producing system and can result in death); acute dyskinesia (involuntary movements of muscle system, e.g., inability to keep legs still or paralysis causing eyeballs to roll up into the head); tardive dyskinesia (involuntary movements of fingers and mouth, e.g., sucking movements and inability to keep tongue in or out of mouth);10 dystonic reaction (involving muscle spasms of neck, back or eyes); parkinsonism (causing mask-like facial expression and difficulty walking upright); akathisia (inability to sit still); lethargy; sudden unexplаined death (probably caused by irregular heart beat).
The medical experts testified that in psychology and psychiatry the concepts of mental illness and competency are not synonymous. An individual may be psychotic, yet nevertheless capable of evaluating the advantages and disadvantages of taking psychotropic drugs and making an informed decision. There was testimony that forcing psychotropic drugs on a competent individual who does not consent to their administration can be untherapeutic. There was agreement that under emergency circumstances within the hospital setting when the committed individuals posed an immediate threat of physical harm to themselves or others, informed consent should not be required to administer psychotropic drugs necessary to contain the emergency.
According to the testimony, the current practice at the Milwaukee County Mental Health Complex is to not inform patients about the side effects of psychotropic drugs, much less obtain their informed consent for the administration of these drugs. Yet, it was stated that all professional literature indicates that obtaining prior informed consent makes treatment using psychotropic drugs more effective and rapid than when they are forced on an individual.
There was testimony that on two examinations of Joyce Jones in October, 1979, she was experiencing side effects from the psychotropic drug mallaril of
Testimony of the medical experts indicated that 66 percent of precommitment detainees were competent to make decisions to receive drugs, 11 percent were incompetent to decide and 23 percent were unascertainable. The standard of competence used was the one set forth in
ranges оf patients competent to decide to receive psychotropic drugs were, according to the testimony, 33 percent to 90 percent.
Joyce Jensen testified on behalf of the respondent class. She stated that she was a registered nurse who had worked in that capacity for nine years. She testified that she was involuntarily committed in late May 1979, after a suicide threat made as a result of severe depression caused by her divorce and the loss of custody of her daughter. Immediately prior to her involuntary commitment, she had been refused voluntary admission to the Milwaukee County Mental Health Complex. While an involuntarily committed patient at the Milwaukee County Mental Health Complex, Jensen was forcibly injected with prolixin, a major tranquilizer. She took another major tranquilizer, haldol, under threat of forcible injection. These drugs caused her to experience a dry mouth, difficulty writing, nervousness, stiff muscles, difficulty driving a car and inability to hold a job.
Jensen testified that she had objected to the fact that these drugs were forced on her without receiving a pregnancy test, as had been the case in 1978 when she was, in fact, pregnant.
There was expert testimony that individuals who are found incompetent to stand trial under
The experts agreed that no involuntarily committed individual in Wisconsin currently has the right to refuse to take these drugs, but the use of psychotropic drugs is not an essential form of treatment for individuals who are competent to decide whether to accept such drugs and who decline to take them. In fact, the forcing of psychotropic drugs on such an individual would adversely affect the rapport of the psychiatrist-patient relationship.
The experts stated that there are alternatives to administering psychotropic drugs, e.g., psychosocial treatment, verbal psychotherapy, milieu therapy.12 It was apparent from the testimony that the environment to which the patient is discharged, critical, unsupportive relatives versus supportive relatives, is generally more important for recovery than the treatment modality used at the hospital.
Involuntarily committed individuals are denied the right of informed consent regarding the administration of psychotropic drugs, even if they are competent to refuse such drugs, and when they pose no immediate emergency danger to themselves or others in the institutional setting. This right is denied by
This court is asked to determine that the administration of psychotropic drugs to individuals not determined incompetent, without their informed consent, is a violation of a constitutional right to privacy under the
The constitutionality of a statute is a question of law which this court reviews de novo. Bachowski v. Salamone, 139 Wis. 2d 397, 404, 407 N.W.2d 533, 536 (1987). In Chappy v. LIRC, 136 Wis. 2d 172, 185, 401 N.W.2d 568, 574 (1987), we stated:
“‘In analyzing a statute‘s constitutionality, [e]very presumption must be indulged to sustain the law if at all possible and, wherever doubt exists as to a legislative enactment‘s constitutionality, it must be resolved in favor of constitutionality.’ . . . Thus ‘[i]f there is any reasonable basis upon which the legislation may constitutionally rest, the court must assume that the legislature had such fact in mind and passed the act pursuant thereto.‘”
. . .
There is no denial of equal protection if a reasonable basis exists for classification. Voit v. Madison Newspapers, Inc., 116 Wis. 2d 217, 226, 341 N.W.2d 693 (1984). Where the classification does not involve a suspect class, equal protection is denied only if the legislature has made an irrational or arbitrary classification. State v. Bleck, 114 Wis. 2d 454, 468-69, 338 N.W.2d 492 (1983).
We find that there is beyond a reasonable doubt an irrational disparity of rights afforded to the class of persons involuntarily committed under
If a court has found probable cause to believe that a precommitment detainee is mentally ill, a proper subject for treatment and dangerous under
We agree with the court of appeals that there is no rational basis for granting the right of informed consent to precommitment detainees under
The state and county argue that the abrogation of the committed individual‘s right to informed consent is justified because all involuntarily committed individuals have been found to be dangerous to themselves or others. Dangerousness is a prerequisite to involuntary commitment; however, such a finding is in no certain way related to whether the person is competent to accept or refuse psychotropic drugs. Moreover, the dangerousness finding for involuntarily committed individuals is not argued by any party on this record to be synonymous with incompetency to make choices about medical treatment.
While dangerousness may legitimately justify the state‘s authority to involuntarily commit an individu-
This court finds no rational distinction between the voluntary acceptance of psychotropic drugs by precommitment detainees and the nonconsensual administration of the same drugs for involuntarily committed individuals. In each class competency to choose must be presumed unless the condition of the individual is shown to be otherwise.
The state and county argue that prior to the probable cause hearing, there is no finding that the person is dangerous or is a proper subject for any kind of treatment. Until that hearing, the only reason the person is detained is either because a law enforcement officer has determined that the subject appears to meet the standard for commitment under
The state and county then argue that in stark contrast to the probable cause finding of dangerousness, once the burden of proof has been met under
The state and county err in presuming that the finding of dangerousness makes voluntary treatment impossible. That is not a universally held opinion in psychiatric expertise or even in this record. In concluding that a finding of dangerousness terminates the right of the patient to refuse treatment, the state and county ignore the fact that the patient may be otherwise mentally competent to decide. The right to equal protection cannot be ignored even if it is more difficult for the treating facilities and more expensive for the governmental units involved. There is no corollary shown in this case between dangerousness and mental incompetence to make decisions regarding
The whole purpose of the development of the law outside the field of mental competency has been to recognize that the patient through informed consent makes the choices of bodily treatment. Medical doctors advise the patient on available alternative courses of treatment, but it is the рatient who ultimately consents to the treatment. As long as a person is competent to make such choices which do not affect others, then that individual should be
Our decision is not meant to undermine or intrude upon the professional judgment of treating physicians. This judgment is still important to the determination by a competent patient to accept psychotropic drugs. It is also valuable to a court determining the competency of an individual to make treatment decisions.
Institutional attitudes towards committed persons have changed. In the past, in most states psychiatric patients were generally presumed legally incompetent for all purposes. This presumрtion of incompetency has been reversed. Appropriate treatment remains at the heart of the state‘s endeavor. The issue presented here is whether the state has full autonomy in determining the treatment to be used or whether a competent individual may demand lesser intrusive treatment than psychotropic drugs.
When the class of involuntarily committed individuals is compared to psychiatric and medical patients voluntarily admitted to treatment facilities under
The fact that an individual has been committed under
We do not agree with the rationale of Stensvad v. Reivitz, 601 F. Supp. 128 (W.D. Wis. 1985), that involuntary treatment using psychotropic drugs must be considered to be within the contemplation of the committing court. An involuntary commitment is not equivalent to a finding of incompetency with respect to involuntary treatment decisions. Also, we do not agree that constitutional safeguards are satisfied merely because psychotropic drugs must be prescribed by a physician. Stensvad held the statutory scheme at issue may well insure that “antipsychotic drugs are administered in a professionally acceptable manner.” Id. at 131. These professional standards arguably satisfy due process requirements. Youngberg v. Romeo, 457 U.S. 307, 323 (1982). However, the use of professional standards does not alone guarantee equal application of the law to the two classes involved here. We are not bound by the decision in Stensvad and decline to follow it. Groppi v. Wisconsin, 400 U.S. 505, 507 (1971), Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).
Our holding in this case is consistent with the law in other jurisdictions. In Massachusetts the supreme
In Opinion of the Justices, 123 N.H. 296, 465 A.2d 484, 490 (1983), the New Hampshire Supreme Court interpreted its state constitution to require a prior finding of incompetency with “procedural protection to the patient” before forcibly administering psychotropic drugs to involuntarily committed patients.
The Colorado Supreme Court in People v. Medina, 705 P.2d 961 (Colo. 1985) held that under Colorado common law, psychotropic drugs may be administered to nonconsenting involuntarily committed individuals in nonemergency situations only after a judicial determination that there is clear and convincing evidence that the individual is incapable of making an informed treatment decision. In addition, that court required finding that: (a) the treatment with such drugs is necessary to prevent a significant and likely long-term deterioration in the individual‘s mental condition or to prevent the likelihood of the individuals causing serious harm to self or others in the institution; (b) a less intrusive treatment alternative is not available; and (c) the individual‘s need for treatment with such drugs is sufficiently compelling to
In Rivers v. Katz, 67 N.Y.2d 485, 495, 495 N.E.2d 337, 341-42 (1986), the New York Court of Appeals recognized a state constitution and common law right of involuntarily committed individuals to exercise informed consent for the administration of psychotropic drugs. The court rejected the state‘s argument that committed individuals were presumptively incompetent to exercise informed consent, stating:
“We conclude, however, that neither the fact that appellants are mentally ill nor that they have been involuntarily committed, without more, constitutes a sufficient basis to conclude that they lack the mental capacity to comprehend the consequences of their decision to refuse medication that poses a significant risk to their physical well-being. Indeed, it is well accepted that mental illness often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently, that mentally ill persons retain the capacity to function in a competent manner. . . . Nor does the fact of mental illness result in the forfeiture of a person‘s civil rights, . . . including the fundamental right to make decisions concerning one‘s own body. . . . Professor Brooks points out that ‘there is ample evidence that many patients, despite their mental illness are capable of making rational and knowledgeable decisions about medications: The fact that a mental patient may disagree with the psychiatrist‘s judgment about the benefit of medication outweighing the cost does not make the patient‘s decision incompetent.‘”
. . .
The New York court also held that a committed individual‘s right to exercise informed consent could only be overridden after a judicial hearing at which
The constitutional infirmity of the lack of equal protection between the statutory treatment of precommitment detainees and involuntarily committed individuals as to the involuntary application of psychotropic drugs is eliminated when the procedures and standards set forth in the first five sentences of
“[I]ndividual is not competent to refuse medication . . . because of mental illness, developmental disability, alcoholism, or drug dependence [so that] the individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment, and the alternatives to accepting the particular treatment offered, after the advantages, disadvantages and alternatives have been explained to the individual.”
Sec. 51.61(1)(g) .
Under the remedial scheme announced in this case and also stated by the court of appeals, if the authority to which the individual is committed wishes to have authorization to forcibly administer psychotropic drugs to committed individuals, it can petition
If the judge or court commissioner at the commitment hearing or subsequent proceedings, finds probable cause to believe that the individual is incompetent to make the personal decision to accept or reject psychotropic drugs under
As with the commitment hearing, this finding of probable cause must initially be made in an adversarial setting in order to avoid having individuals routine-
Jones and Galicia ask also for a guardian to monitor the drug administration once the determination of incompetency is made; however, this issue was not presented in the petition for review or ordered by the court to be briefed under
By the Court. -The decision of the court of appeals is affirmed.
LOUIS J. CECI, J. (dissenting). The majority notes, but fails to attach proper significance to, the following fact: contrary to precommitment detention under ch. 51, Stats., underlying the involuntary commitment of individuals pursuant to ch. 51 is a determination of “dangerousness” established by “clear and convincing evidence.” See
With this distinction in mind, it is important to recall the following oft-quoted principle: “There is a strong presumption supporting the constitutionality of any classification made by the Wisconsin legislature.” State ex rel. Watts v. Combined Community Services Board of Milwaukee County, 122 Wis. 2d 65, 79, 362 N.W.2d 104 (1985) (citations omitted). Consequently, “[i]f there is any reasonable basis upon which the legislation may constitutionally rest, the1 (cont.)
Recently, this court restated the standard to be applied in determining the constitutionality of a statute challenged on equal protection grounds: “‘[U]nless a statute may be said to affect a “fundamental right” or to create a classification based on a “suspect” criterion, the standard this court uses in reviewing the constitutionality of a statutory classification is the “rational basis” test.‘” Treiber v. Knoll, 135 Wis. 2d 58, 70, 398 N.W.2d 756 (1987) (quoting Hilber v. State, 89 Wis. 2d 49, 54, 277 N.W.2d 839 (1979)). It is my opinion that the distinction between involuntarily committed individuals and precommitment detainees not only satisfies the lower “rational basis” level of judicial scrutiny, but would further satisfy a “strict scrutiny” analysis. “Under strict scrutiny, a statutory classification will be upheld only if the classification promotes compelling government interests and if it is narrowly drawn to express only such interests.” Id. The distinction at bar is necessary to promote a most “compelling” state interest: the treatment of the mentally ill. See
As a final note, I would comment that even if the distinction between precommitment detainees and involuntarily committed individuals could be disregarded such that an equal protection analysis would be appropriate, the analysis employed by the majority does not accord the protection it deems necessary. Specifically, if equal protection requires that involuntarily committed individuals be provided the process outlined under
For the reasons stated, I dissent.
Notes
. . .
“2. Is dangerous because the individual:
“a. Evidences a substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm;
“b. Evidences a substantial probability of physical harm to other individuals as manifested by evidence of recent homicidal or other violent behavior, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm. . . .
“с. Evidences such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that there is a substantial probability of physical impairment or injury to himself or herself. The probability of physical impairment or injury is not substantial under this subparagraph if reasonable provision for the subject individual‘s protection is available in the community . . . .
“d. Evidences behavior manifested by recent acts or omissions that, due to mental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness. No substantial probability of harm under this subparagraph exists if reasonable provision for the individual‘s treatment and protection is available in the community . . . .”
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
“Equality; inherent rights. Section 1. All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.”
“(13) DISPOSITION. (a) At the conclusion of the proceedings the court shall:
“. . .
“3. If the allegations specified in sub. (1)(a) are proven, order commitment to the care and custody of the appropriate county department under s. 51.42 or 51.437, or if inpatient care is not required order commitment to outpatient treatment under care of such county department; or
“4. If the individual is an inmate of a state prison and the allegations under sub. (1)(a) or (ar) are proven, order commitment to the department and either authorize the transfer of the inmate to a state treatment facility or if inpatient care is not needed authorize treatment on an outpatient basis in the prison; or
“5. If the allegations specified in sub. (1)(a) are proven and the subject individual is a nonresident, order commitment to the department.”
“(8) TREATMENT. When an individual is detained under this section, the director and staff of the treatment facility may treat the individual during detention, if the individual consents. The individual has a right to refuse medication and treatment as provided in s. 51.61(g) and (h). The individual shall be advised of that right by the director of the facility or his or her designee, and a report of all treatment provided shall be filed by that person with the court.”
“(c) During detention a physician may order the administration of such medications and therapies as are permitted under s. 51.61(1)(g) and (h). The subject individual may consent to treatment but only after he or she has been informed of his or her right to refuse treatment and has signed a written consent to such treatment. A report of all treatment which is provided, along with any written consent, shall be filed with the court by the director of the treatment facility in which the subject individual is detained, or his or her designee.”
“757.69 Powers and duties of court commissioners. (1) On authority delegated by a judge, which may be by a standard order, and with the approval of the chief judge of the judicial administrative district, a court commissioner appointed under s. 757.68 may:
“. . .
“(h) Hear petitions for commitment and conduct probable cause hearings under ss. 51.20 and 51.45, advise a person alleged to be mentally ill of his or her rights under the United States and Wisconsin constitutions and, if the person claims or appears to be unable to afford counsel, refer the person to the authority for indigency determinations specified under s. 977.07(1).”