Under Wisconsin law, a court may order a person committed for involuntary mental health treatment if the county proves, by clear and convincing evidence, that the person is mentally ill and meets at least one standard of dangerousness. One of those standards — commonly called the fourth standard, set out at Wis. Stat. § 51.20(1)(a)2.d. — applies when a person’s recent acts or omissions show that, because of mental illness, they are unable to satisfy their basic needs for nourishment, medical care, shelter, or safety, and that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious disease will imminently follow without prompt and adequate treatment. A key question that courts have had to resolve: does that standard require proof of an actual injury, or is it enough to show a serious risk of harm?
Wisconsin’s Court of Appeals addressed that question in Marathon County v. L.A.R. (2022AP1226-FT, December 29, 2022, District 3). The subject of the petition — referred to as Laura — had a documented history of bipolar disorder and had engaged in a series of behaviors that placed her in danger: she started a fire inside her home, flooded a room, and ran out of gas in winter weather during a delusional episode. Laura challenged the commitment, arguing in part that she had not suffered an actual physical injury. The court rejected that argument. The fourth standard is written in terms of probability, not history: it asks whether serious harm is substantially likely to follow imminently, not whether it has already happened. One caution about the weight of that decision. L.A.R. is an unpublished, one-judge opinion, and it is ineligible for publication under Wis. Stat. § 809.23(4)(b). An unpublished opinion is not precedent and binds no Wisconsin court; because this one issued after July 1, 2009 and was authored by a single judge, it may be cited for its persuasive value only, under § 809.23(3)(b). It is a useful illustration of how the fourth standard gets applied to real facts. It is not authority that settles the question.
The practical lesson still holds. In civil commitment proceedings, one line of defense is to argue that whatever behavior prompted the petition was isolated, or not severe enough to meet a statutory standard. Courts applying the fourth standard tend to look at the whole pattern — the trajectory of behavior, the nature of the underlying disorder, and the kinds of risk the person continues to run — rather than waiting for a catastrophic injury to have already occurred. But the statutory limits are real, and they are where the defense lives: the county must still prove a substantial probability of imminent serious harm, and the standard is not met at all if reasonable provision for the person’s treatment and protection is available in the community and there is a reasonable probability the person will use it.
Civil commitment proceedings in Wisconsin move quickly. An initial detention order may be issued before a full hearing; a hearing on whether grounds exist for commitment must follow within days. The person subject to the petition has the right to an attorney, the right to contest the commitment, and the right to request a jury trial. If you or a family member is involved in a civil commitment proceeding in Wisconsin — whether as the subject of the petition or as a family member trying to understand the process — having experienced legal representation from the outset makes a significant difference. Carson Law Office is available for a free initial consultation.
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About the author. Christopher S. Carson, J.D., M.A., has practiced law in Milwaukee for 34 years. He holds an M.A. in International Security Studies from Georgetown University, where he was the Bradley Fellow, was formerly with the American Enterprise Institute, and is a contributing editor at the New English Review. Read the full biography.
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This article is general information about Wisconsin law, not legal advice about your situation, and reading it does not create an attorney-client relationship.