Corporation Counsel

Department Report

Statutory Position• Wis. Stat. s. 59.42(1) – may employ a

corporation counsel.

• Calumet Ordinance 2-62 establishes position of Corporation Counsel.

Statutory DutiesO Ordinance 2-62 – “as established by

statute and as otherwise prescribed by the County Board.”

O Wis. Stat. s.59.42 – “are limited to civil matters and may include giving legal opinions to the board, and its committees and interpreting the powers and duties of the board and county officers.”

Municipal Generalist – excerpt from job descriptionO Draft, revise, review and approve all legal papers

in the performance of the Duties of the Board, e.g. resolutions, Code of Ordinances, contracts for goods and services, intergovernmental contracts, deeds, rental or lease contracts, policies and other legal documents.

O Represents the County in civil litigation (prosecution and defense). E.g. mental health, alcohol and drug commitments, child support hearings, guardianships and protective placement hearings, Department of Human Services Hearings, Planning and Zoning hearings, Zoning Board of Adjustment hearings, tax foreclosure proceedings, bankruptcy, personnel matters, collections, etc.

Statutory Duties cont. . . .

O Wis. Stat. s. 51.20(4) – Mental Health Commitments.

O The Corporation Counsel is the only attorney in Wisconsin who can prosecute involuntary mental health commitments and must prepare all court documents.

Ch. 51 - Mental Health Commitments

O There are three ways that a person could become subject to an involuntary mental health commitmentO Wis. Stat. s. 51.15 – Emergency DetentionO Wis. Stat. s. 51.20 – Three Party PetitionO Wis. Stat. s. 51.20 – Treatment Director Hold

“Emergency Detention”

O Can be done by law enforcement or any person authorized to take a child in custody under ch. 48 or ch. 938 (e.g. social worker).

O Must believe the individual is :O Mentally ill; or,O Drug Dependent; or,O Developmentally disabled.

O Dangerous to themselves or others.O A proper subject for treatment.

What does it mean to be Dangerous

O There are five “standards” under Wisconsin Statute that describe the types of “dangerousness” that a mentally ill, developmentally disabled or drug dependent person must exhibit before they can be involuntarily committed.

O Usually the issue of contention at trial.

Person is dangerous if . . .

O Evidences substantial probability of physical harm to self by:O Recent threats of or attempts at suicide, or

O Examples: drug overdose, hanging, use of firearm, carbon monoxide poisoning, cutting wrists or other areas of the body.

O Recent threats of or attempts at serious bodily harm.O Examples: cutting behavior not leading to

significant blood loss, banging head on hard objects, etc.

Person is dangerous if . . .

O Evidence of substantial probability of physical harm to others by:O Others are placed in reasonable fear of violent

behavior and serious physical harm, as evidenced by a recent overt act, attempt, or threat to do such harm.O We focus on the subject’s mental state and

objective acts of the subject.O Is objective, not subjective – can have a class of

persons.O The class of persons in fear does not need to know

of the person’s actions or thoughts.

Person is dangerous if . . .

O Has judgment so impaired that a substantial probability exists of physical impairment or injury to self or others, as shown by a pattern of recent acts or omissions.O Not eating or drinking due to paranoia which can

lead to medical complications.O Not caring for dependent minor children or placing

them in harms way.O Not taking necessary medication for physical

ailments, e.g. diabetes, heart conditions, etc.O But the person must refuse or be unwilling to

seek services on their own in the community.O Can convert to protective placement if the

person would benefit.

Person is dangerous if . . .

O Based upon recent acts or omissions is unable to satisfy basic needs because of Mental Illness, which establishes a substantial probability that death or serious physical injury, debilitation, or disease will imminently ensue unless prompt and adequate treatment is provided.

O Again, if the person will use community services to treat the illness voluntarily, this standard will not apply.

O Can convert to a protective placement if appropriate.

Person is dangerous if . . .O “5th Standard” – Need a medical doctor to be a petitioner.O For a mentally ill person,

O after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to him or her and

O 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;

O 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

O 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.

O If the person will use community services of their own free will, this provision cannot be used.

O Can also convert to a protective placement if applicable.

Emergency Detention, cont. . .

O There are statutory definitions for mentally ill, drug dependent and developmentally disabled specifically for involuntary mental health commitments.

Definition – Mental Illness

O Mental illness means “a substantial disorder of O thought, O mood, O perception, O orientation, or O memory O which grossly impairs judgment, behavior,

capacity to recognize reality, or ability to meet the ordinary demands of life.”

Definition – Drug Dependent

O Drug dependent means “O a person who uses one or more drugs O to the extent that the person’s health

is substantially impaired or O his or her social or economic

functioning is substantially disrupted.”

Definition – Developmentally Disabled

O Developmentally disabled means O a disability attributable

O to brain injury, cerebral palsy, epilepsy, autism, Prader-Willi syndrome, intellectual disability, or another neurological condition closely related to an intellectual disability or requiring treatment similar to that required for individuals with an intellectual disability,

O which has continued or can be expected to continue indefinitely and constitutes a substantial hardship to the afflicted individual.

What does proper subject for treatment mean?

O Must be capable of rehabilitationO Rehabilitation is the active treatment

to ameliorate impairments and facilitate the person’s capacity to function and does not involve a “cure”.

Involuntary Administration of Medication Wis. Stat. s.51.61(1)

(g)4.b.O Generally an individual has the right to refuse medication

and treatment, but if the person in not competent to refuse medication – we can get a court order that they have to take medications for their mental illness, etc.

O an individual is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual, one of the following is true:O a. The individual is incapable of expressing an understanding of

the advantages and disadvantages of accepting medication or treatment and the alternatives.

O b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

Involuntary Administration of Medication

O The Wisconsin Supreme Court requires:O That the doctor explain the advantages,

disadvantages and alternatives to taking medication to the patient.

O The person has to lack the ability or capacity to apply an understanding to his or her own condition.

O Can the person make a connection between the medications and how they help ameliorate their positive symptoms.

Involuntary Administration of Medication

O The Wisconsin Supreme Court requiresO A determination whether the patient can

rationally choose an option or is their judgment so impaired that they cannot rationally choose whether to take or not take medication.

O A determination whether the patient is able to process and apply the information available to their own condition before making a choice to accept or refuse medication.

O In re the Mental Condition of Melanie L., 2013 WI 67

ProcedureO We have 72 hours from the time the person is

taken into custody to have a probable cause hearing.

O After probable cause hearing the court appoints two examiners, one must be a psychiatrist (MD), one may be a psychologist (PhD).

O After a finding of probable cause, we have 14 days from the time the person is taken into custody to have a final hearing to involuntarily commit the person.

O Right to a 6-person jury if requested 48 hours before final hearing.

O Independent examiner reports are due 48 hours

before the final hearing.

Procedure Cont. . .O Initial commitment is for 6 months.O Treatment must be in the least restrictive

environment which can include either inpatient or outpatient treatment. Treatment is left to the HHSD (51.42 Board).

O Commitment can be extended for up to 12 months at a time, but must file petition to extend.

O In an extension hearing you don’t have to prove current “dangerousness”.

O Can show that based upon treatment record the person would be subject to commitment if treatment were withdrawn.

Statutory Rights of the Person

O To be represented by legal counsel. The State Public Defender will appoint counsel for you. They may hire their own attorney.

O To consult with counsel before a request is made for voluntary treatment.

O To refuse to converse with examining physicians, psychologists or to other personnel as anything they say may be used as evidence against you at future hearings to consider your commitment.

O To refuse medication that renders them unable to adequately defend against your commitment, unless it is ordered by the Court, or if it is necessary to prevent serious physical harm to themselves or others.

O To be examined by a physician.

O To have a jury trial, if requested more than 48 hours prior to a final hearing.

O To contact a member of their immediate family.

My Staff is responsible for . . .

O Drafting documentsO Notices of HearingO Notices of RightsO Witness listsO MotionsO OrdersO Transport OrdersO Subpoenas

My staff is responsible for

O Scheduling hearings with the CourtO Notifying the SPD about the caseO Communicating to the SPD about the caseO Ensuring witnesses will be at hearings O Coordinating with Human Services StaffO Tracking recommitmentsO Ensuring individual is transported to court

I am responsible forO Overseeing staff.O Conferring with HHSD on strategy and

the needs of the Department and Individual.

O Discussing the case with opposing counsel.

O Prosecution of the case (call witnesses for testimony, negotiation, arguments to court, etc.).

O Discussing the case with witnesses, including court appointed examiners.

StatisticsO 2012 – 93 Emergency DetentionsO 2013 – 106 Emergency DetentionsO 2014 – 105 Emergency DetentionsO 2015 – As of June 18, 2015 – 38

Emergency Detentions