The Wisconsin Supreme Court last July unanimously rejected a constitutional challenge to the state’s "fifth standard," or involuntary commitment law. This law extends the notion of "dangerousness" to include those with mental illness who don’t understand the pros and cons of treatment and nontreatment or who, without psychiatric help, will continue to deteriorate.
In State of Wisconsin v. Dennis H., the court ruled that mentally ill persons who meet the criteria set forth in the fifth standard "are clearly dangerous to themselves because their incapacity to make informed medication or treatment decisions makes them more vulnerable to severely harmful deterioration than those who are competent to make such decisions."
Treffert is a former superintendent of the Winnebago Mental Health Institute and director of mental health programs for Fond du Lac County in Wisconsin and has written extensively on involuntary commitment laws in that state. He has worked with the Wisconsin Medical Society and the National Alliance for the Mentally Ill to achieve reform.
He spoke with Psychiatric News about the struggle to establish and defend some of the nation’s most broad eligibility criteria for the involuntary treatment of people with serious mental illness.
If there were ever problems with unconstitutional vagueness, they rested with Wisconsin’s pre-1970 commitment laws, according to Treffert. For instance, someone with mental illness during this period who "required care and treatment for his or her own welfare" or was a "proper subject for custody and treatment" could be committed against his or her will. Patient rights were not satisfactorily addressed in the law, he said.
In response to a class-action suit, Lessard v. Schmidt, in which attorneys argued that the law was too vague, a federal district court in 1972 handed down a decision that took civil commitment criteria in the other direction.
Although the decision ensured that patient rights became part of Wisconsin commitment law, it also called for involuntary commitment only in cases where there was an "extreme likelihood that if the person is not confined, he will do immediate harm to himself or others based on a finding of a recent overt act, attempt, or threat to do substantial harm to oneself or others."
In the wake of this decision, said Treffert, "we started to see instances of what I call ‘dying with their rights on.’ "
Treffert recalled some cases he wrote about in the 1970s for the AMA journal Prism. In one, two young women drew a crowd as they stood on a street corner staring at one another for hours on end. Police took the young women to a nearby station for questioning, and the women continued to stare, mutely, at one another. Police released the women because despite their behavior, they did not display suicidal or homicidal tendencies and could not be committed.
Just 30 hours later, police found the two women again, "writhing and screaming in a self-made pyre they lit for each other in a suicide pact," Treffert said. One of the women died, and the other was critically injured.
In another case, a woman with anorexia was admitted to a hospital after she had been involved in a family disagreement and refused to eat. She had lost a great deal of weight but refused to submit to a psychiatric exam, and since a judge felt her condition was not dangerous in an immediate sense, she was allowed to go home. "She died from starvation three weeks later," Treffert recalled.
In 1982 Wisconsin Gov. Lee Dreyfus appointed an ad hoc committee to find a way to care for people with serious mental illness who did not qualify for treatment under law but who, without treatment, faced harm or even death. Treffert was one member of the committee, which in 1984 introduced a new standard for involuntary commitment criteria to the state legislature. It was the first of the fifth standard bills. Legislators passed Act 292, or the fifth standard, in 1996.
Treffert noted that opponents of the measure included civil libertarians and some mental health care consumers who believed their rights would be usurped by the standard. To his surprise, some resistance also came from within the profession. "Some community psychiatrists felt that, to some extent, the fifth standard is an affront to their work or that they weren’t doing well enough. Others worried that the standard would drain resources from community programs," he said.
The so-called fifth standard is actually the fifth criterion in Chapter 51 of the Wisconsin State Mental Health Act, under which a person can be involuntarily treated for mental illness. Most states have just three such criteria: a person is a danger to himself or others or is "gravely disabled," meaning that he or she can no longer care for himself or herself. Wisconsin has two "gravely disabled" provisions—requiring that physical injury, disease, or death may result from a person’s mental illness.
The fifth standard requires that each of the following criteria must be met to qualify for involuntary treatment: a person must have a documented history of major mental illness and need care or treatment to prevent further disability or deterioration. In addition, if a lack of treatment will cause deterioration of a person’s mental and physical health, or cause him or her to suffer severe mental, emotional, or physical harm resulting in loss of independent functioning or loss of control over thoughts and actions, and if the person is incapable of understanding the advantages and disadvantages of accepting treatment and its alternatives, he or she can be involuntarily committed under the fifth standard.
The Wisconsin Supreme Court challenge stemmed from a July 2000 petition for involuntary commitment by the father, case manager, and psychiatrist of Dennis H., a man with schizophrenia who refused to eat or drink due to his psychoses.
Similar behavior earlier in his life once led him to be hospitalized for kidney failure. The court found Dennis H. to be "dangerous" under the fifth standard and committed him to inpatient treatment for six months. Dennis, along with attorneys from the state public defender’s office, appealed the court order on a number of grounds—one being that the fifth standard was vague and unconstitutionally broad and another that his due process rights were violated by the law since it didn’t require evidence of an immediate threat of danger to self or others.
The justices on the Wisconsin Supreme Court who heard the case voted unanimously to uphold the constitutionality of the fifth standard, ruling in part that people who meet the fifth standard are dangerous to themselves because their incapacity to make wise treatment decisions can put them in harm’s way and that "the state has a strong interest in providing care and treatment before that incapacity results in a loss of capacity to function."
Treffert said, "I was pleased to see the pendulum return to a more reasonable midpoint between balancing legal concerns and clinical realities." He lauded the court’s opinion that it is not unconstitutional to provide treatment before a patient loses the ability to function and that a person doesn’t have to be a danger to himself or herself or others to receive much-needed treatment.
"This is not just an advance in terms of the Wisconsin law—this decision underscores emerging assisted-treatment statutes in all states."
Treatment Advocacy Center Executive Director Mary Zdanowicz, who presented an oral argument in the case before the Wisconsin Supreme Court, agreed. "The court recognized the importance of preventing the cycle of nontreatment and providing treatment to someone who doesn’t recognize his or her need for treatment before deteriorating into an imminently dangerous condition."
Both Treffert and Zdanowicz called attention to the words of one Wisconsin Supreme Court justice who summed up the pain families often endure while waiting for a family member to become "eligible" for treatment under old standards. "For family members and friends, a loved one’s refusal of timely treatment can result in an agonizing and helpless vigil as that individual’s mental, emotional, and physical condition deteriorates."
The Wisconsin Supreme Court decision is posted at the Treatment Advocacy Center Web site at www.psychlaws.org/StateActivity/Wisconsin/StatevsDennisH.htm. ▪