Anyone detained and then formally committed under Wisconsin’s civil mental health laws can initially be held and forcibly drugged for six long months. Yet, for years, not a single person has been able to appeal the six-month commitments in court.
What’s the reason for this stunning abrogation of one of the few and arguably most important rights that ordinary, law-abiding, civilly committed mental health patients have? According to an internal review done for the Wisconsin Court of Appeals, between 2018 and 2020 Wisconsin courts apparently never got around to holding those appeals.
The report didn’t explain the reasons in detail, nor say for how many years it’s been going on, but it acknowledged that the problem was rarely or never the fault of the patients. Rather, it appeared related to the fact that Wisconsin pays public defenders a meager $40 an hour, the lowest rate in the nation, and so it sometimes takes months for a public defender to be found and appointed. Next, it usually takes months more for obtaining transcripts, for the state’s attorney to respond, to get a court date, and so forth. Consequently, when the court date for the appeal of the commitment finally arrives, more than six months will have already gone by, and the case will be declared “moot” and summarily thrown out. Every single time.
However, as Wisconsin attorney Elizabeth Rich told Mad in America, this didn’t mean that patients would be freed at any time during this process, when it was impossible to appeal an initial commitment order. At the end of the six months, many patients would be put on new recommitment orders—and would have to launch a whole new appeal from square one.
This is just one of many systemic assaults on psychiatric patients’ rights in Wisconsin that Rich has been fighting against—and in some cases successfully changing. It’s a fight that Rich has made her own, in large part inspired by the death of her son, Andrew.
Carers Demoralized and Disinterested
Elizabeth Rich cannot forget the night in 2017 that Andrew’s journey—and her own—into Wisconsin’s civil commitment system began. “I was visiting friends in North Carolina, and I got a call from police in the middle of the night,” Rich recounted. “I was just beside myself with worry for my son.”
Freelance journalist Michael Simonson previously wrote in depth about Andrew Rich’s story for Mad in America, in which a questionable wellness-check call to 911 by a stranger and dubious police reporting ultimately led to Andrew getting forcibly drugged with antipsychotics for two-and-a-half years. It was a traumatizing experience that eventually resulted in the twenty-nine-year-old killing himself.
Andrew’s slow demise over those years coincided with his mother Elizabeth’s gradual awakening.
With a background in business and corporate law, Elizabeth Rich knew little about Wisconsin’s mental health system when her son was first committed. During the initial days and weeks after Andrew’s arrest by police and detention in hospital, she assumed everything would work out for the best. “I just totally trusted in the system to do the right thing for him to get help,” she said.
However, as the weeks turned into months and years, Rich became increasingly concerned about the myriad of disturbing things she was observing in the hospital, in the psychiatric professionals, in the courts, and in Andrew’s condition. “There was this whole world that I didn’t know anything about,” Rich said.
The Winnebago Mental Health Institute where Andrew was initially detained was aging and run-down, and staff were frequently double-shifting. “Everybody seemed tired and overworked and annoyed.”
Sometimes patients were screaming, fighting back as they were muscled by security guards into four-point restraints on gurneys and had their pants pulled down to be forcibly injected. Andrew repeatedly complained to his mother—and to hospital staff—about what he viewed as the “inhumane” uses of seclusion and chemical and physical restraints against him and other patients. (Later, after a patient died, an investigation was launched that found the hospital guilty of 48 violations of state law.)
The antipsychotic medications appeared to “chemically lobotomize” Andrew, Rich said, sapping any joy from his life. “I saw how miserable it was for him, and how it really didn’t seem like it was doing anything helpful.”
At the same time, she was appalled by the court hearings for Andrew’s successive recommitments to Assisted Outpatient Treatment—forced drugging at home.
Right away, she saw the same mix of disinterest and demoralization as she’d seen in the hospital. “Everybody’s kind of worn out. The judges, lawyers on both sides … Everybody’s just kind of going through the motions. The hearings were clearly just a rubber stamp. Everybody knew what the outcome was going to be before anyone walked in the room.”
She saw no meaningful cross-examinations, no challenging of evidence—nothing that was common in ordinary courtrooms. At each recommitment hearing, a psychiatrist who saw Andrew for barely a few minutes every few months would simply re-describe the events that had led to Andrew’s original hospitalization in 2017—a story which, by this time, Rich believed had been extensively falsified by police, as Andrew had long asserted. (All police camera recordings of the apprehension disappeared.) Yet, this return to the story of his first hospitalization was enough to get Andrew repeatedly recommitted.
“As an attorney, what concerned me was, the hearings seemed very unjust,” said Rich. “I saw a lot of civil liberties issues. I saw systemic constitutional deficiency both in the way the system was set up, and in the way it was operating.”
Rich started studying mental health law and, even before Andrew’s death, decided to dedicate herself to representing people at civil commitment hearings. Since then, Rich has founded a nonprofit, Andrew’s V.O.I.C.E: Victory Over Involuntary Commitment Excesses, and represented about 80 clients in commitment cases. She has continued to be troubled by the routine civil rights abuses she witnesses on a daily basis, which she regularly challenges.
Many public defenders work hard for their clients facing civil commitment, Rich said. However, many others—perhaps, she suspects, in part due to biases and prejudices about “the mentally ill”—encourage their own clients to forgo juries or even hearings altogether, persuading them that they cannot possibly win and that fighting for their rights will only backfire.
As for the psychiatrists, who serve as “experts” in the hearing, they routinely downplay adverse effects of the drugs they’re prescribing, while most judges give “excessive deference to medical opinions,” Rich said.
Some judges even express impatience when a commitment hearing goes on for more than half an hour. “If all you need is a doctor’s opinion, then there’s no point in having a hearing,” Rich said. To help challenge physician opinions, Rich has begun regularly bringing in print-outs of the official US Food and Drug Administration-approved drug labels that list common adverse effects.
Meanwhile, in Rich’s opinion, the evidence used to justify commitments is rarely anywhere near legally sufficient, and is often steeped in bigotry against people labeled with mental disorders. “It’s very common for the doctors to testify in a demeaning and belittling way about the people who are the subject of the commitment.”
In one case, a psychiatrist remarked with scorn that Rich’s client claimed to have “a genius-level IQ,” as if this proved the man was delusional and grandiose. On cross-examination, Rich pointed out that her client had an engineering degree. “You don’t have any evidence that he doesn’t have an IQ in that range, do you?” she asked.
Another client of Rich’s was a fifty-year-old Catholic, celibate woman—yet she was described by the psychiatrist as perilously “hypersexual.” Rich searched through the medical records for the original source of this characterization and found that a case worker had once noted that the woman had had two lovers simultaneously—while in college in her twenties. “The stuff that passes for proof in these cases is just ridiculous,” Rich said.
Who or What Isn’t Dangerous
One of the most egregious and frequent abuses Rich sees is the watering down of what qualifies as “dangerous” behavior that makes a person committable.
Decades ago, the US Supreme Court established that a person must be currently or very imminently physically dangerous in order to be committed and forcibly treated under mental health laws. Under Wisconsin law today, there are five listed, specific definitions of “dangerousness,” such as immediate threats of serious bodily harm, extremely poor self-care, or severely impaired judgment.
However, for years psychiatrists in Wisconsin have often described people as potentially dangerous, without specifying any of the five criteria or providing specific evidence relevant to these criteria. Many recommitments have been based on what Rich called the same “circular logic” that entrapped Andrew—psychiatrists vaguely argue that, if forced treatment were withdrawn, the person would likely become dangerous and committable in the future.
In such situations, Rich explained, it’s virtually impossible to defend anyone against forced treatment. How can a public defender investigate claims and defend a client without knowing specifics of the accusation and the evidence against the person?
When she has pressed psychiatrists, their rationales often seem extremely weak. In one case, she learned that her overly anxious client had simply turned off the water to the group home. “Right now, I’m doing a brief for a client who was wrapping up a package,” Rich said. “She says her dad was mocking her, and so she threw a half a roll of tape at him. Does that truly place him in reasonable fear of substantial bodily injury?”
Wisconsin public defender Jeremy Newman recently challenged a case where his client was recommitted for a year primarily because he’d quit his job and sought disability benefits. In 2020, the Wisconsin Supreme Court agreed with Newman, concluding that it was not sufficient simply to state that the man would likely become dangerous to himself in the future “if treatment were withdrawn.” Instead, the majority stated, Wisconsin civil commitment courts “are to make specific factual findings” related to the state’s statutory, listed dangerousness criteria.
“A lot of cases started getting dismissed,” Rich said. However, she’s seen the tide starting to turn again, in appeals where judges have decided that not specifying any statutory dangerousness criterion is simply a “harmless error” of no real import when people seem “obviously” dangerously crazy.
“I’m so opposed to that [line of argument],” Rich said. “I have a case on appeal where I’m raising it.” Her client had parked his car and, in temperatures only slightly above freezing, was inspired to spiritually “cleanse” himself by undressing and walking through downtown. He walked several blocks before police apprehended him. While this was obviously unusual behavior and possibly a “public indecency” misdemeanor, Rich said it falls far short of the “mentally ill and dangerous” standard.
“We have this narrow corridor of ‘normal,’ and we want everyone to be inside that and, if they’re not, then we want to fix them, and the only tool in the toolbox is forced medication. But there’s nothing dangerous about being naked. The evidence is clear he was not shivering, he did not have frostbite. He’s not hurting anybody, he’s not hurting himself. That’s not dangerous under any Wisconsin legal standard.”
Recognizing People’s Rights
Rich also recently represented one of the many civilly committed people whose appeal date in court arrived so late that his case was declared “moot” and thrown out. In February of 2022, Rich challenged that declaration before the Wisconsin Supreme Court, and won. In June, the Court held that the man’s appeal was not moot because certain consequences of the commitment persisted beyond the six-month period. The Court pointed to his possible lifetime ban from owning guns and his potentially having to subsequently repay to the state the financial costs of his own involuntary hospitalization.
The Court dismissed other concerns she’d raised, such as the long-lasting trauma and stigma of having been forcibly hospitalized. Nevertheless, Rich said she felt like she’d achieved “a great victory.” Although the Wisconsin Supreme Court did not actually mandate that appeals must happen more expeditiously, Rich has noticed a general uptick in how quickly people’s appeals are handled. “They’re cranking decisions out in just six or eight weeks. So they are addressing it.”
To some, all of this might seem like a lot of effort for relatively small wins against such draconian laws and practices. But alongside honoring the life and death of her son, Rich said she’s hoping that her work—and the work of other concerned Wisconsin attorneys with whom she’s been liaising—will have impacts in other ways as well.
One goal, she said, is to continue to educate and remind all lawyers and judges of their true legal and ethical responsibilities in civil commitment cases—to help raise the overall standards of professional practice.
Additionally, she has seen a lot of psychiatric patients, like Andrew, “just give up”—practically and emotionally—in the face of the unchecked powers of mental health authorities. “I want to empower the clients whom I think often feel unheard and unseen. I want to tell them: ‘You have a voice. You have rights. And there are people who care.’”
Through her own cases, blogging, and outreach to journalists and others, Rich hopes to educate the broader public about these many disturbing, yet common, aspects of civil commitment practices in Wisconsin and around the country. “I want to raise awareness among the general public that this world is out there because I think a lot of people don’t know. Are we okay with it?”
Elaborating on this last question, Rich described a recent jury selection process. She was interviewing about twenty potential jury candidates for a commitment hearing, many of whom were politically conservative. Rich asked the group, “How many of you think that it’s okay for the government to require people to be vaccinated against Covid-19?”
No one raised their hand.
Rich continued, “How many of you think it’s okay for the government to require people with cancer to have chemotherapy instead of alternative treatments?” No one raised their hand.
Rich then asked, “How many of you think it’s okay for the government to force someone diagnosed with mental illness to take psychotropic medications?” Again, none of the potential jury members raised their hand.
“I think people don’t know,” Rich concluded. “I think more people than not would be amazed to learn that we strap people down in four-point restraints and pull their pants down and stick a shot in them. I think people would be surprised by that.”