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The Fifth Standard for Civil Commitment

Prior to the enactment of the fifth standard legislation (1995 Wisconsin Act 292), there were four standards by which a person could be considered “dangerous” enough to be involuntarily committed to receive treatment for mental illness. The “fifth standard” adds another category to this list.

The previous four standards were:

1. A substantial probability of physical harm to the person, as shown by recent threats of or attempts at suicide or serious bodily harm,

2. A substantial probability of physical harm to other individuals, as shown by certain recent homicidal or other violent behavior, or evidence that others are in fear of the person’s violent behavior and serious physical harm to them, based on a recent act, attempt or threat.

3. Such impaired judgment, shown by evidence of a pattern of the person’s recent acts or omissions, that there is a substantial probability of physical impairment or injury to the person.

4. Behavior, as shown by the person’s recent acts or omissions, that, due to mental illness, the person is unable to satisfy his or her basic needs and there is a substantial probability of the person’s imminent death, serious physical injury, debilitation or disease unless treatment is received.

The new “fifth standard” is a more complicated standard than the above four standards, which require physical harm to self or others.

The fifth standard requires:

The fifth standard will not apply to everyone who has a mental illness. There are certain limitations, such as the requirement of incompetence to make treatment decisions and a past treatment history.

The language of the fifth standard is as follows. An individual must meet all of the requirements in order to be committed under this standard.

A. Incapability, because of mental illness, of expressing an understanding of the advantages and disadvantages of accepting a particular medication or treatment and the alternatives to the medication or treatment, after the advantages, disadvantages and alternatives have been explained to him or her.

OR

Substantial incapability, because of mental illness, of applying an understanding of the advantages and disadvantages of and alternatives to a particular medication or treatment to his or her mental illness, in order to make an informed choice as to whether to accept or refuse medication or treatment, after the advantages and disadvantages and alternatives have been explained to him or her.

AND

B. 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

C. A substantial probability that he or she will, if left untreated, lack services necessary for his or her health or safety

AND

will suffer severe mental harm OR emotional harm OR physical harm

AND

D. That [the harm] will result in the loss of the individual’s ability to function independently In the community OR the loss of cognitive Of volitional (referring to using one’s own free will) control over his or her thoughts or actions.

Defenses to the Fifth Standard

There are some legal responses or tools that a consumer may want to use when one is being judged by the “fifth standard”. These are legal “defenses” that may be used to avoid involuntary commitment. If there is reasonable provision or the individual’s care or treatment available in the community and there is a reasonable probability that the individual will use these services OR if a person is appropriate for protective placement under Ch. 55, then the fifth standard should not be applied.

In order to use this defense, it’s important to be aware of various treatments and medications that are available and that have been successful for you in the past. Preparing an “advance directive” (a document that states your mental and physical health care preferences) may be helpful in directing a treatment plan. Knowing what community resources are available to you could help with your defense. To find out about community services in your area, contact your county Human Services Department or in some counties, the county Department of Community Programs.

In order to be appropriate for protective placement, a person has to meet the following standard:

He/she must be incompetent and have a guardian, have a primary need for residential care and custody, as a result of mental disability be so totally incapable of providing for himself or herself as to create a substantial risk of serious harm to self or others, and have a disability which is or is likely to be permanent. Protective placement requires a special court proceeding, which is spelled out in Chapter 55 of the Wisconsin Statutes.

Procedural Rights

As with all attempts at commitment, you have a right to full due process and are entitled to the services of an attorney to represent you at the probable cause and final commitment hearings. You may request a public defender (or have one appointed) if you are found indigent. A nominal fee may be charged. If you are committed, you may be able to appeal it to a higher court. You should discuss this with your attorney.

If you are committed under the fifth standard…

If the court finds that you meet the requirements to be committed under the fifth standard, a treatment plan for your care should be prepared by the county department of community programs or human services. This plan, which should be made available to you and the court at or prior to the final commitment hearing, must contain goals of treatment, the type of treatment to be provided, the availability of services, and the expected providers and their acceptance of you into their programs. It must address your needs for inpatient care, residential services, community support services, medication and its monitoring, case management, and other services to enable you to live in the community. The plan is a recommendation and is not subject to court approval.

It is important to note that, unlike the other standards, if you are committed under the fifth standard, you lose your right to refuse treatment. This is because you are found to be incompetent to make treatment decisions as a part of the fifth standard.

Time Restrictions

Like other commitments, an initial commitment under the “fifth standard” is limited to six months, but there is a thirty day limit to time in an in-patient facility. The thirty day limit refers to a consecutive period of time. In other words, you could spend up to thirty days on an in-patient status, then spend a period in a community program, and return for another thirty days on an in-patient status again.

The “fifth standard” is found in section 51.20(1 )(a)2.e. (commitment standards) of the Wisconsin statutes. It was enacted in 1995 Wisconsin Act 292. It went into effect in December 1996.