                                                        2017 WI 57

                  SUPREME COURT           OF   WISCONSIN
CASE NO.:              2016AP46-FT
COMPLETE TITLE:        In the matter of the mental commitment of J.W.J:

                       Waukesha County,
                                 Petitioner-Respondent,
                            v.
                       J.W.J.,
                                 Respondent-Appellant-Petitioner.
                         REVIEW OF A DECISION OF THE COURT OF APPEALS
                          Reported at 370 Wis. 2d 262, 881 N.W.2d 359
                                      (2016 – Unpublished)

OPINION FILED:         June 8, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         January 17, 2017

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Waukesha
   JUDGE:              William Domina

JUSTICES:
   SEPARATE WRITING:   ABRAHAMSON, J. writes separately, joined by A.W.
                       BRADLEY, J.
  CONCURRED:
  DISSENTED:
  NOT PARTICIPATING:

ATTORNEYS:


       For the respondent-appellant-petitioner, there were briefs
filed by and an oral argument by Kaitlin A. Lamb, assistant
state public defender.


       For the petitioner-respondent, there was a brief filed by
and oral argument by Robert J. Mueller, corporation counsel.
                                                                2017 WI 57
                                                       NOTICE

                                             This opinion is subject
                                             to further editing and
                                             modification.   The final
                                             version will appear in
                                             the bound volume of the
                                             official reports.
No. 2016AP46-FT
(L.C.    2009ME1158)
No.
STATE OF WISCONSIN                       :         IN SUPREME COURT

In the matter of the mental commitment of
J.W.J:



Waukesha County,                                           FILED
          Petitioner-Respondent,
                                                       JUN 8, 2017
    v.                                                   Diane M. Fremgen
                                                      Clerk of Supreme Court
J.W.J.,

          Respondent-Appellant-Petitioner.




    REVIEW of a decision of the Court of Appeals.        Affirmed.



    ¶1    DANIEL KELLY, J.      The petitioner, J.W.J., is an adult

suffering from paranoid schizophrenia.        He is currently subject

to an involuntary commitment order and an order requiring him to

undergo   treatment    and   take   medication   prescribed      for    his
condition.   Waukesha County seeks to extend those orders for an
                                                                  No.     2016AP46-FT



additional year; Mr. J. says further involuntary commitment and

treatment    will    not   rehabilitate     him,   so   he   is    not    a    proper

subject     for     treatment     within    the    meaning    of        Wis.   Stat.

§ 51.20(1) (2015–16).1          We review the unpublished decision of the

court of appeals2 affirming the Waukesha County circuit court's

extension of those orders.3

                                 I.   BACKGROUND

     ¶2     Mr. J. is a 55-year-old man who has suffered from

mental health or substance abuse issues for most of his life.

He has been subject to commitment orders almost continuously

from 1990 to 2008, at which time he started an 18-month prison

term.     Upon release in 2009 he was adjudged so psychotic and

threatening to others that he was immediately subjected to a new

set of commitment orders that have been in place since then.

     ¶3     On June 16, 2015, Waukesha County filed a petition to

extend Mr. J.'s involuntary commitment and treatment orders.                       At

the time of the petition, Mr. J. was attending his appointments,

receiving medication, and living independently in the community.
The County's current petition represents the sixth extension of

Mr. J.'s commitment and treatment orders.




     1
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
     2
       In re Mental Commitment of J.W.J., No.                             2016AP46,
unpublished slip op., (Wis. Ct. App. May 4, 2016).
     3
         The Honorable William Domina presiding.


                                        2
                                                         No.    2016AP46-FT



    ¶4   Mr.    J.'s   medical   records   provide   a   sense      of   his

longstanding,   continual   struggles   from   his   youth     up   through

2014:

    Mr. J[4] has a lengthy history of drug and alcohol
    abuse.   Marijuana, LSD and barbiturates abuse started
    at the age of 15 if not earlier. In 1979, at the age
    of 17, he experienced an LSD overdose which required
    treatment at the . . . Child and Adolescent Center.
    He was diagnosed with Drug Induced Schizophrenia.

    [I]n-patient   treatment   periods  extend   from   1980
    through 2014 . . . ; approximately 12 psychiatric
    admissions    to    the    [Mental   Health     Center].
    Additionally,       psychiatric       treatment       at
    the . . . Resource Center during his incarceration.

    Mr. J. has a history of criminal behaviors over the
    years including car theft, robberies, two DWI, burning
    down a field as well as a 2008 conviction for selling
    marijuana out of a [store] . . . he ran in [a certain
    municipality].   His prison sentence was 18 months.
    During this period of time he became quite upset and
    wrote a threatening letter to his mother as well as
    [a] sexually explicit letter to the female warden.
    Mr. J was committed in 2009 . . . [and] has been under
    commitment almost consistently since 1990.

    Over the course of mental health treatment Mr. J. has
    shown a significant lack of insight into his mental
    illness and a lengthy history of not cooperating with
    taking   psychiatric  medications.     Many   of  his
    hospitalizations occurred after a period of refusing
    medications with the expected results that Mr. J.
    became increasingly more paranoid, rambling/pressured
    speech, sleep problems, often times experiencing
    command-type auditory hallucinations to kill himself
    or others along with depression and/or agitated

    4
       As submitted to the court, the medical records redact all
but the first letter of Mr. J.'s last name, a convention we
follow without noting every instance in which we engage in such
elision.


                                   3
                                                   No.   2016AP46-FT


     behaviors.     Significant alcohol usage has    also
     continued over the years. Mr. J. continues to insist
     that it is the psychotropic medications which causes
     all of his mental health symptoms.

     The   last   hospitalization . . . 3/1/14   to   3/27/14
     occurred   after   he  was   taken  by   the   Sheriff's
     Department to get his IM [intramuscular] injection
     which he had previously refused to get.      Mr. J. was
     noted by the attending MD to be rambling and bizarre.
     Patient complained of "the beast" throwing glass
     around his apartment. He wanted the police to get him
     a tank and bombs so that he could kill the beast. He
     was then admitted to the [Mental Health Center].5
     ¶5     The Recommitment Report filed along with the County's

petition to extend Mr. J.'s commitment described Mr. J.'s status

in 2015:6

     Mr. J. is making his appointments and is receiving his
     IM medication.    He has been [sic] maintained his
     current housing and remains [in] the community. There
     [have] been no inpatient hospitalizations this past
     year.    Mr. J. is experiencing a number of medical
     problems    which  may   be    due   to  his    current
     medication. . . .      His   diagnoses  are    Axis   I
     Schizophrenia, Alcohol Use Disorder and History of
     Cannabis Use Disorder.    He continues to state he is
     allergic to all psychotropic medication.     He at the
     last shot appointment said the medication makes him

     5
       This material comes from a Report of Examination (dated
July 1, 2015) prepared by Dr. Richard J. Koch. Doctor Koch is a
licensed psychologist and has seen Mr. J. on five occasions
between 1990 and 2004.   He also performed an assessment of Mr.
J.'s condition in 2014, although he had to rely on medical
records and other generally available information because Mr. J.
refused a personal examination. Dr. Koch submitted this Report
in support of the County's petition to extend Mr. J.'s
involuntary commitment.
     6
       This report was submitted by Mr. Robert C. Walker, LCSW,
on behalf of the Waukesha County Community Human Services
Department.


                                 4
                                                                            No.      2016AP46-FT


       feel like he is being murdered every night. Given the
       medication changes being made and Mr. J's lack of
       insight into his illness [the advanced practice nurse
       prescriber] is requesting an extension of the current
       commitment.
       ¶6        Doctor Koch tried to personally examine Mr. J. in 2015

in   connection         with     his    involuntary     commitment        but      could    not

because Mr. J. would not allow it:                           "Mr. J. contacted this

examiner by telephone and he quickly stated that he would not

cooperate        in     a    personal    interview      and    he    would        not   answer

questions over the telephone.                       Mr. J. disconnected the call
prior      to    this       examiner    being    able   to    read    him      his    rights."

Consequently, Dr. Koch based the Report on Mr. J.'s existing

medical records and other information he was able to assemble

without a personal examination.

       ¶7        Dr. Koch's evaluation resulted in this assessment:

       This past treatment year Mr. J. has not been
       hospitalized.   He has maintained his current housing
       and remains in the community.       Mr. J. has been
       compliant with psychotropic medications but he has
       stated that he is "allergic" to all psychotropic
       medications.   He continues to show lack of insight
       into his illness.
Dr. Koch checked the boxes in the Report that indicate it was

his opinion, to a reasonable degree of professional certainty,

that       Mr.   J.   is     mentally    ill,7      dangerous,8      is   an      appropriate




       7
       The form defines "mentally ill" as "a substantial disorder
of thought, mood, perception, orientation or memory which
grossly impairs judgment, behavior, capacity to recognize
reality, or the ability to meet the ordinary demands of life."


                                                5
                                                                                        No.    2016AP46-FT



subject       for           outpatient        treatment,              and        that     psychotropic

medication would be therapeutically valuable to him.                                               Dr. Koch

also wrote that Mr. J.'s mental illness makes him "substantially

incapable         of        applying     an        understanding            of     the        advantages,

disadvantages           and     alternatives             in    order        to    make    an       informed

choice       as        to     whether     to        accept           or     refuse        psychotropic

medication."                Dr. Koch concluded that "[t]here is nothing in

[Mr. J.'s] record to suggest there has been any significant

change in his status.                   He continues to be a patient who has a

history of improved behaviors when appropriately medicated and

deterioration in the ability to function in the community when

not appropriately medicated."

       ¶8     At the hearing on the County's petition to extend Mr.

J.'s       commitment,          Dr.    Koch         testified          consistently            with       his

report.           In    particular,           he    said        Mr.       J.'s    schizophrenia           is

treatable          "to         the       extent               that        when          treated        with

medications . . . his behavior is improved and he can survive in

the community."                He explained that this treatment lessens the
disordering of Mr. J.'s thought, mood, and perception.

       ¶9     Dr. Koch also explained why he believes Mr. J. is

dangerous.             He     testified       that       Mr.     J.'s       "history          is    one   of

inconsistent utilization of psychotropic medications.                                          When he's


       8
       Dr. Koch checked the box on the form that expresses his
belief that Mr. J. is dangerous because "[t]here is a
substantial likelihood, based on this individual's treatment
record, that this individual would be a proper subject for
commitment if treatment were withdrawn."


                                                     6
                                                                No.     2016AP46-FT



not    appropriately    medicated,     he     becomes      increasingly       more

agitated, paranoid, grandiose at times, and he started having

hallucinations, demand hallucinations to either harm himself or

others."      However, "[w]hen he's taking medications, while some

of    those   experiences   and   symptoms     may   still     be    present,   he

doesn't act on them."

       ¶10    Doctor Koch said he does not believe Mr. J. would take

his medications absent a court order to do so:                  "[T]he current

evidence from the extension report as well as my prior history

with him and his behaviors indicates that when not ordered to

take    psychotropic   medications     that    he    doesn't    do     it."     And

without his medications, Dr. Koch said, Mr. J. would require

confinement for inpatient care.

       ¶11    When the hearing concluded, the circuit court granted

the County's petition.        It found that Mr. J. continues to suffer

from a mental illness (in the form of paranoid schizophrenia),

he is a proper subject for treatment and benefits from it, he

can function in the community in large part because of this
treatment, and he satisfies the definition of "dangerousness"

because if treatment were to cease, he would be a proper subject

for    commitment.      The    court   extended      Mr.      J.'s    involuntary

commitment order for 12 months.            It also extended the medication

and    treatment   order,   which   requires     Mr.    J.,    inter    alia,   to

attend his appointments, take his medications as prescribed, not

engage in any acts or attempts or threats to harm himself or

others, and not take any non-prescription controlled substances
or alcoholic beverages.
                                       7
                                                                            No.    2016AP46-FT



       ¶12     The court of appeals, in a concise opinion, affirmed

the circuit court in all respects.                   The court of appeals applied

the analytical framework we described in Fond du Lac County v.

Helen E.F., 2012 WI 50, 340 Wis. 2d 500, 814 N.W.2d 179, and

found that because Mr. J. has rehabilitative potential, he was a

"proper subject of treatment."

       ¶13     We granted Mr. J's petition for review and now affirm.

                              II.     STANDARD OF REVIEW

       ¶14     This case requires us to interpret provisions of Wis.

Stat.    ch.    51.        While      our    review     of     questions          of    law    is

independent from the circuit court and court of appeals, we

benefit from their analyses.                 State v. Steffes, 2013 WI 53, ¶15,

347 Wis. 2d 683, 832 N.W.2d 101.

       ¶15     We must also review whether the County has met its

burden of proof to support extension of Mr. J.'s commitment.

This presents a mixed question of law and fact.                               We uphold a

circuit      court's      findings      of    fact     unless        they     are       clearly

erroneous.           K.N.K.      v.   Buhler,        139     Wis. 2d 190,          198,        407
N.W.2d 281      (Ct.      App.   1987).        Whether       the    facts     satisfy         the

statutory standard is a question of law that we review de novo.

Id.

                                      III. ANALYSIS

       ¶16     Mr.   J.    wishes     to     live    his     life    free     of       Waukesha

County's commitment and medication orders because he believes

they have brought him as much rehabilitation as they are capable

of    bringing.        Waukesha       County,       however,       says   that         Mr.    J.'s


                                              8
                                                                    No.    2016AP46-FT



condition will deteriorate if the orders lapse, making him a

danger to himself and those around him.

    ¶17     There is, of course, an inherent tension between the

public's interest in involuntarily treating an individual and

that individual's liberty interest.9                On the treatment side, the

people of Wisconsin have recognized the challenges that mental

illness,     developmental        disabilities,         and     substance        abuse

present——both to the public and the individuals suffering from

such disorders.        So "[i]t is the policy of the state to assure

the provision of a full range of treatment and rehabilitation

services . . . for        all     mental        disorders     and     developmental

disabilities and for mental illness, alcoholism and other drug

abuse."     Wis. Stat. § 51.001(1).

    ¶18     However, not all who could benefit from such services

will partake of them.           And of those who will not, there will be

a subset whose condition will make them dangerous——either to

themselves, or to others.              To ward against the danger their

condition     presents,     our       statutes      provide     for       involuntary
commitment     when:        "1.       The       individual    is    mentally      ill

or . . . drug    dependent       or   developmentally         disabled     and   is   a


    9
       See, e.g., Addington v. Texas, 441 U.S. 418, 425 (1979) (A
"civil commitment for any purpose constitutes a significant
deprivation of liberty that requires due process protection.");
In re Melanie L., 2013 WI 67, ¶43, 349 Wis. 2d 148 ("The
forcible injection of medication into a nonconsenting person's
body represents a substantial interference with that person's
liberty." (Quoting Washington v. Harper, 494 U.S. 210, 229
(1990))).


                                            9
                                                                                No.    2016AP46-FT



proper      subject     for       treatment[;         and]        2.   The      individual        is

dangerous . . . ."           Wis. Stat. § 51.20(1).

      ¶19    Because         of      the     liberty         interests            affected        by

involuntary        commitment,             public       policy         favors         outpatient

treatment whenever possible:                 "To protect personal liberties, no

person who can be treated adequately outside of a hospital,

institution       or   other      inpatient          facility       may    be    involuntarily

treated in such a facility."                    Wis. Stat. § 51.001(2).                     Indeed,

the court must use the least restrictive means of delivering

effective     treatment:             "There      shall       be    a   unified         system     of

prevention of such conditions and provision of services which

will assure all people in need of care access to the least

restrictive          treatment          alternative           appropriate             to      their

needs . . . ."           § 51.001(1).                  Further         circumscribing            the

imposition on an individual's liberty, the initial commitment

order may not exceed six months.                        Wis. Stat. § 51.20(13)(g)1.

And   the    order     may     not      issue    at    all        unless     the      county     can

establish      the     required         elements       with        clear     and       convincing
evidence.     § 51.20(13)(e).

      ¶20    Upon each petition to extend a term of commitment, a

county must establish the same elements with the same quantum of

proof.       Helen     E.F.,      340    Wis. 2d 500,         ¶20.         However,         it   may

satisfy     the   "dangerousness"            prong      by    showing        "a       substantial

likelihood, based on the subject individual's treatment record,

that the individual would be a proper subject for commitment if

treatment were withdrawn."                 Wis. Stat. § 51.20(1)(am).                      An order


                                                10
                                                                      No.    2016AP46-FT



extending     involuntary        commitment    may        not    exceed     one     year.

§ 51.20(g)1.

                            A.      Mr. J.'s challenge

     ¶21    Mr.    J.'s     challenge    is    a    narrow       one——he     does     not

dispute his mental illness or his dangerousness, only that he is

a "proper subject of treatment" within the meaning of Wis. Stat.

§ 51.20(1).10         "Treatment,"        in       this     context,        carries    a

specialized       meaning.          It   comprises        "those      psychological,

educational,      social,    chemical,     medical        or     somatic    techniques

designed    to    bring     about    rehabilitation         of    a   mentally      ill,

alcoholic, drug dependent or developmentally disabled person."

Wis. Stat. § 51.01(17) (emphasis added).

     ¶22    And so we arrive at the heart of Mr. J.'s argument——he

does not believe he can be rehabilitated.                         If he cannot be

rehabilitated, he cannot be a proper subject of treatment or an

involuntary commitment order.             Our focus, therefore, is on the

meaning of "rehabilitation."

     ¶23    As Mr. J. acknowledges, this is not the first time we
have had to address this statutorily-undefined term.                          In Helen

E.F. we separated treatments into two camps:                       Those that bring


     10
       Mr. J. questions only whether he is a "proper subject for
treatment." Because he does not argue he is not mentally ill or
dangerous within the meaning of Wis. Stat. § 51.20(1), we
understand he has conceded those issues.       See Racine Steel
Casings, Div. of Evans Products Co. v. Hardy, 144 Wis. 2d 553,
557 n.1, 426 N.W.2d 33 (1988) (stating that where an issue "was
neither briefed nor argued before the court in oral argument, we
do not address this issue").


                                         11
                                                                       No.   2016AP46-FT



about rehabilitation, and those that do not.                        We said we could

recognize the former by their ability to control the disorder in

question:

    If treatment will maximize the individual functioning
    and maintenance of the subject, but not help in
    controlling or improving their disorder, then the
    subject   individual   does  not   have   rehabilitative
    potential, and is not a proper subject for treatment.
    However, if treatment will go beyond controlling
    activity and will go to controlling the disorder and
    its   symptoms,   then   the  subject   individual   has
    rehabilitative potential, and is a proper subject for
    treatment.
Helen E.F., 340          Wis. 2d 500,     ¶36 (citing         C.J. v. State, 120

Wis. 2d 355,      362,    354       N.W.2d 219       (Ct.   App.     1984)   (internal

alterations, quotations, and citations omitted)).

    ¶24     Mr.     J.      asserts       that         this        understanding     of

"rehabilitation" cannot properly account for some of the unique

characteristics of paranoid schizophrenia, which deficiency can

lead to an inaccurate conclusion that the individual is a proper

subject of treatment. Specifically, he assigns four weaknesses

to our framework:

    1. When evaluating a patient with paranoid schizophrenia, it

       is difficult to decide whether a treatment is controlling

       "behaviors" as opposed to "symptoms."

    2. Our analysis does not say which, or how many, symptoms

       the treatment must be able to control before we deem the

       patient to have rehabilitative potential.

    3. Picking      up     on   a    concern     discussed     by     the    concurring
       opinion      in     Helen      E.F.,    Mr.    J.    says    our   analysis   is


                                          12
                                                                          No.     2016AP46-FT



          sufficiently imprecise that a physician's word choice (as

          opposed to the patient's actual condition) could be the

          deciding      factor      in    concluding         a   person    is     a    proper

          subject for treatment.

     4. Again referring to a concern raised in the Helen E.F.

          concurring opinion, Mr. J. worries we might determine

          rehabilitative            potential           based      on      the        general

          characteristics of a class of disorder, as opposed to

          focusing on the symptoms and condition of the individual

          patient who is the subject of the involuntary commitment

          petition.

     ¶25    Based on these perceived deficiencies, Mr. J. asks us

to   modify       our       Helen        E.F.        framework     for     understanding

"rehabilitation" as follows:

     If treatment will maximize the individual functioning
     and maintenance of the subject, but not help in
     controlling or improving their disorder, then the
     subject   individual  does   not have  rehabilitative
     potential, and is not a proper subject for treatment.
     However, if treatment will go beyond controlling
     activity and will go to controlling improving the his
     or her disorder and its symptoms, then the subject
     individual has rehabilitative potential, and is a
     proper subject for treatment.11
     ¶26    We revisit Helen E.F. to determine whether its logic

is   supple      enough      to     accurately          evaluate        whether       someone

suffering       from    a   condition           like    paranoid    schizophrenia          is

capable    of    rehabilitation           within       the   meaning      of    Wis.    Stat.

     11
       Strikethroughs represent Mr. J.'s proposed deletions,
while underlined material represents proposed additions.


                                                13
                                                                                  No.    2016AP46-FT



§ 51.20(1).         In doing so, we will consider each of Mr. J.'s

concerns in turn.

         IV. POTENTIAL MODIFICATIONS OF HELEN E.F. FRAMEWORK

                     A.        "Behaviors" versus "Symptoms"

      ¶27    Mr.     J.'s         first        argument      that       Helen       E.F.       cannot

appropriately          distinguish         between         rehabilitative                and     non-

rehabilitative            treatments            relies           on      some           rhetorical

prestidigitation.              In    Helen       E.F.,      we    juxtaposed            treatments

affecting nothing more than an individual's "activities" with

those   that    affect       "symptoms."             We    said       only    the       latter   are

rehabilitative.         Mr. J. responds that "activities" are really no

different from "behaviors," and so one may just as readily ask

whether     there    is     any     difference        between         treatments         affecting

"behaviors" and those affecting "symptoms."                             If there isn't, he

says, then Helen E.F.'s explanatory power is an illusion.

      ¶28    To turn "activity" (the word we used in Helen E.F.)

into his preferred term, "behavior," he notes that the American

Psychiatric Association says "[s]chizophrenia is characterized
by delusions, hallucinations, disorganized speech and behavior,

and     other      symptoms         that        cause       social           or     occupational

dysfunction."           Referring         to    an   online       dictionary,            he    finds

"behavior" defined as an "observable                         activity         in a human or

animal."        From      this       he    concludes         that,       if        schizophrenia

manifests (at least in part) as a behavior, and a behavior is an

activity,       then      he      may     safely          substitute          "behavior"         for

"activity"      in     the      Helen      E.F.      framework.               The       transitive


                                                14
                                                                       No.    2016AP46-FT



principle, however, functions much more neatly in mathematics

than it does in semantics.

       ¶29    Mr. J. certainly has reason to attempt this dictional

substitution.         Doctor     Koch     frequently        referred     to   Mr.    J.'s

behavior when describing the effectiveness of the treatment he

was    receiving      under    the     involuntary        commitment      order.       By

melding behaviors and activities, Mr. J. can then challenge us

to describe how a behavior might differ from a symptom.

       ¶30    Assuming we would be unable to rise to this challenge,

Mr. J. proposes we eliminate any reference to activities or

symptoms from the assessment of rehabilitative potential.                              He

invites us, instead, to inquire only into whether the treatment

would       improve   his     disorder.         By    the    phrase     "improve      his

disorder," we take Mr. J. to mean that treatment would need to

continually improve his condition until he experiences either a

cure    or    a   plateau     beyond    which        no   further      improvement     is

possible.12       We decline this invitation.

       ¶31    Furthermore, we decline Mr. J.'s challenge to find a
distinction       between      "behaviors"      and       "symptoms"     because      its

premise is invalid.           The proper disjunctive categories in Helen

E.F.    are    "activities"      and    "symptoms,"         and   we   can    tell   them

       12
       We also understand Mr. J.'s position to be that if he
reaches a plateau beyond which no further improvement is
possible, he may no longer be subjected to involuntary
commitment. This makes sense when withdrawal of treatment would
not inevitably result in the deterioration of his condition.
However, as we discuss in part IV.E., this is not Mr. J.'s
circumstance.


                                           15
                                                                    No.     2016AP46-FT



apart.    When we developed the framework for determining whether

someone has rehabilitative potential we leaned heavily on C.J.

The court of appeals in that case juxtaposed "habilitation" and

"rehabilitation."         The     former       relates     to     the     control     of

activities:

    [H]abilitation is more closely related to daily living
    needs and skills than to treatment of a particular
    disorder.    A practical definition of habilitation
    would include eating, dressing, hygiene, minimum
    social skills and such other things that facilitate
    personal maintenance and functioning. Habilitation is
    a concept frequently associated with the long-term
    care of the developmentally disabled.    It is possible
    that controlling a person's activities by restricting
    his or her freedom and putting him or her on a
    carefully   defined   regimen would   be   part  of   a
    habilitation program.

C.J., 120 Wis. 2d at 359–60.
    ¶32    Rehabilitation,        on    the     other      hand,    addresses        the

control   of    symptoms.        It    comprises     "treatment         going   beyond

custodial care to affect the disease and symptoms . . . ."                           Id.

at 360.    But rehabilitation is not synonymous with cure.                           Id.

And it "has a broader meaning than returning an individual to a

previous level of function."             Id.     Thus, "[a]n individual with

an incurable physical or mental illness or disability may still

be considered capable of rehabilitation and able to benefit from

treatment in the sense that symptoms can be controlled and the

ability to manage the illness ameliorated."                 Id.

    ¶33    To   the    extent    we    need    to   find    a   lexical      home    for

"behavior,"     we    conclude    it    most    comfortably        resides      in   the




                                         16
                                                                          No.     2016AP46-FT



"symptom" side of our analytical dichotomy.13                            The C.J. court

described "behaviors" as the immediate consequences of C.J.'s

symptoms.          The psychiatrist said "the primary symptom" of C.J.'s

paranoid schizophrenia "is recurrent delusions."                               Id. at 357.

He then observed that these delusions "impair his judgment and

behavior."             Id.   Impaired behavior was the direct consequence of

C.J.'s       primary          symptom.        When    we     addressed        Helen    E.F.'s

condition,             "behavior"     carried       the     same    significance.          She

suffered          from       Alzheimer's     Disease,        the     symptoms     of    which

included "progressive dementia, memory loss, the inability to

learn new information, and limited verbal communication."                               Helen

E.F.,       340    Wis. 2d 500,        ¶3.      Her       resulting    behavior       included

agitation and aggression.                 Id., ¶4.

       ¶34        By     contrast,       "activities"        (which     the     C.J.     court

equated to those things addressed by habilitation) relate to

functional         capabilities          such   as    "eating,        dressing,       hygiene,

minimum       social         skills   and    such    other    things     that    facilitate

personal maintenance and functioning."                             C.J., 120 Wis. 2d at
360.        In Helen E.F. we found that Helen's treatment could not




       13
       A "symptom" is "any morbid phenomenon or departure from
the normal in structure, function, or sensation, experienced by
the patient and indicative of disease."      Symptom, Stedman's
Medical Dictionary (28th ed. 2006).


                                                17
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reach her primary symptoms.14               Instead, it could "maximize [only]

her functioning and maintenance."                 Helen E.F., 340 Wis. 2d 500,

¶37 (internal marks omitted).                 The court of appeals maintained

the   same    distinction          in    Milwaukee   County    Combined     Community

Services Board v. Athans, describing habilitation (control of

activities) as treatment "which assist[s] an impaired person's

ability      to    live       in   the    community,"   whereas       rehabilitation

(control          of        symptoms)      "ameliorate[s]          impairments     and

facilitate[s]          an    individual's     capability      to   function."      107

Wis. 2d 331, 336, 320 N.W.2d 30 (Ct. App. 1982) (quoting U.S.

Dep't of Health, Ed. and Welfare, Health Planning Taxonomy 4

(1979)).15


      14
       We did observe, however, that medication could ameliorate
Helen E.F.'s anxiety and aggression. Fond du Lac Cty. v. Helen
E.F., 2012 WI 50, ¶38, 340 Wis. 2d 500, 814 N.W.2d 179.      But
these behaviors were incidental to the analysis because
controlling them had no effect on her dementia, memory loss, or
any of her other primary symptoms.      Thus, controlling these
incidental   behaviors   could  not   establish  a   basis   for
rehabilitative potential.
      15
       Athans' reference to an individual's "capability to
function," at first take, appears to blur the distinction
between rehabilitative and habilitative treatments. In context,
however, the line holds.   Resorting to a Department of Health,
Education and Welfare document that has nothing to do with our
statutory structure was perhaps not the most helpful source of
authority.    But the Athans court was juxtaposing the same
concepts we are distinguishing here. So the quote could best be
understood as recognizing that the amelioration of impairments
(symptoms) will have the effect of improving the patient's
capability to function (his activities).    The key is that the
rehabilitative treatment addresses itself to the symptom, not
the activities.


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       ¶35    Ultimately,              the      distinction              we     draw        between

rehabilitation and habilitation depends on whether the focus of

the    treatment         is      endogenous      to        the    patient       (symptoms)       or

exogenous     (activities).              A    symptom        is     an    expression        of   the

disorder at work within the patient.                             It is the symptom itself

that is harmful, and because it manifests from within, it is

endogenous.         On the other hand, an inability to engage in a

specific activity, such as feeding oneself, grooming, dressing,

etc., focuses on the manipulation of something exogenous to the

patient——food,           clothes,       washing       implements,         and    so     on.      The

patient      suffers       harm       because     he       cannot    turn       those    external

things to his benefit.

       ¶36    Habilitation, therefore, refers to interventions that

help a patient put exogenous things to his benefit (that is,

activities).              Rehabilitation,             to    the     contrary,          refers    to

improving          the        patient's         condition           through       ameliorating

endogenous factors such as symptoms and behaviors.                                    That is why

we    said    in    Helen        E.F.    that     "if       treatment         will     go     beyond
controlling activity and will go to controlling the disorder and

its   symptoms,          then    the    subject        individual         has   rehabilitative

potential,         and     is     a    proper     subject         for     treatment."            340

Wis. 2d 500,         ¶36        (internal       alterations,         quoted       source,        and

quotation marks omitted).                    Because we are able to distinguish

between activities and symptoms, this part of Mr. J.'s argument

does not disclose a need to modify the Helen E.F. analytical

framework.


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             B.      How Many Symptoms Must a Treatment Control?

       ¶37     Mr.       J.    also    says       we       should    modify       the    Helen      E.F.

framework because we were not especially precise in determining

which symptoms a treatment must be able to control before we

conclude a patient has rehabilitative potential.                                    Specifically,

he notes we provided no qualifier for the term "symptoms" in the

test we adopted, did not say whether the controlled symptoms had

to be the most obvious or disabling ones, and did not quantify

the    number       of    symptoms         a     treatment        must      control.           When   we

referred       to        Helen      E.F.'s           condition,        we        said    "there       is

uncontroverted            evidence             that        Helen's     underlying          disorder,

Alzheimer's         Disease,          as    well       as     the     vast       majority      of     its

symptoms, do not respond to treatment techniques . . . ."                                           Id.,

¶38    (emphasis         added).           Mr.    J.       concludes     from      this     that      our

framework requires the treatment to leave less than the "vast

majority of [the disorder's] symptoms" unimproved, but how much

less is an open question.

       ¶38     This       is    a   fair       observation.            We    provided          no   such
measure,       however,         because          none       was     necessary.           The    expert

testimony in Helen E.F. demonstrated that Alzheimer's Disease

"is incurable and untreatable; the only available medical remedy

is maintenance——not treatment——of the disease as it progresses."

Id.,    ¶37.         We       concluded         that       "medical      techniques         can     only

maximize       the       functioning           and     maintenance          of    an     individual"

suffering from this disorder.                              Id. (internal alterations and

quotations omitted).                So treatment would reach only habilitative
matters.          The only symptoms/behaviors we were told could be
                                                      20
                                                                   No.    2016AP46-FT



affected by medical treatment were her anxiety and aggression.

These,      however,     were    secondary     to     her   primary       symptoms:

progressive dementia, memory loss, the inability to learn new

information,       and    limited     verbal        communication.          Medical

treatment could not reach any of these.                All treatment could do

was palliate some of the minor aspects of her condition.                         So it

was apparent she did not have rehabilitative potential.

      ¶39    There may come a day when we need to quantify and

qualify the symptoms a treatment must reach before concluding a

patient has rehabilitative potential.               But this is not that day.

      ¶40    The    uncontroverted      facts       show    that    Mr.     J.     has

rehabilitative potential.            Doctor Koch said Mr. J.'s paranoid

schizophrenia was a "substantial disorder of his thought, mood,

and     perception"      that    "grossly    impair[s]      his     judgment       and

behavior."         Mr.   J.     expresses    these     disorders     by    becoming

"agitated,      paranoid,        grandiose     at     times,"      with     "demand

hallucinations to either harm himself or others."                   The treatment

he receives lessens the disordering of his thought, mood, and
perception.        And while some of these experiences and symptoms

may still be present while under treatment, he does not act on

them.    In fact, his treatment is so effective at controlling his

symptoms that he can live in society while taking his treatment

as an outpatient.        Doctor Koch said that, without treatment, Mr.

J.'s condition would inevitably decline to the point he would

have to be confined so he could receive inpatient treatment.

      ¶41    The policy of this State is to provide treatment in
"the least restrictive alternative appropriate to" a patient's
                                        21
                                                                             No.     2016AP46-FT



needs.         Wis.    Stat.       § 51.001(1).          If     a    treatment        controls

symptoms to such a degree that withdrawing it would subject the

patient to a more restrictive treatment alternative, then the

treatment controls enough symptoms to establish the patient has

rehabilitative potential.                  The court of appeals said in C.J.

that rehabilitation "has a broader meaning than returning an

individual to a previous level of function," 120 Wis. 2d at 360,

so    simple    logic       requires    that       it   means       at    least     that.      If

treatment is withdrawn, Mr. J.'s symptoms will worsen to the

point that a more restrictive level of care would be necessary

(confinement          for        inpatient     treatment);               reintroduction        of

treatment would return him to the previous level (treatment as

an outpatient).         It is enough that treatment can accomplish this

to demonstrate the patient has rehabilitative potential.                                    Thus,

to resolve this case, there is no need to identify the number or

significance of the symptoms the treatment controls.

                            C.     Dispositive Word Choices

       ¶42     Mr. J. is also concerned that our Helen E.F. framework
may lead to outcomes that turn not on medical prognosis, but on

the    words    a     physician      may     choose     to    describe        his    patient's

condition and prospects.               The concurring opinion in Helen E.F.

described that very risk:

       The individuals in the two cases [C.J. and Athans]
       suffered from the same condition——chronic paranoid
       schizophrenia——yet the two courts reached opposite
       results on the possibility of "rehabilitation."   The
       results appear driven by the words chosen by expert
       medical   witnesses  describing   the  impact various
       medications would have on the individual.

                                              22
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Helen E.F., 340 Wis. 2d 500, ¶51 (Abrahamson, J., concurring).

       ¶43     This is certainly a legitimate concern.                  But it arises

not    from        the   need   to     distinguish        between      symptoms      and

activities, but from the need to make distinctions based on

expert medical testimony at all.                 If we adopt Mr. J.'s revision

to our framework, we would not cease making such distinctions.

We would simply shift to distinguishing between treatments that

improve a patient's disorder and those that do not.                              Expert

medical testimony, of course, would guide us in that task.                            So

if we are currently at risk of deciding wrongly because of the

vagaries      of    an   expert's     choice     of    words,   Mr.    J.'s    proposed

change will do nothing to protect us.                    It would just give us an

opportunity to err in making a different distinction.

              D.     Group versus Individualized Determinations

       ¶44     Finally, Mr. J. believes we need to emphasize that the

Helen E.F. framework inquires into whether the specific patient

at issue has rehabilitative potential.                   That is to say, he wants

to ensure we are not developing a taxonomy of ailments, one
branch of which comprises conditions that have rehabilitative

potential, while the other branch contains those that do not.

He    again    finds     expression    of   his       concern   in    the    Helen   E.F.

concurring opinion:

       A tension exists in the texts of the statutes
       [Chapters 51 and 55] (and the application of the
       statutes) between on the one hand lumping together all
       people with a certain condition and on the other hand
       considering   the   symptoms  and   conduct   of   the
       individual.    The tension between the more rigid
       categories of people with a certain condition and the

                                            23
                                                                       No.    2016AP46-FT


       more flexible behavioral standards is palpable in the
       majority opinion.     Does this opinion govern all
       Alzheimer's patients or only Helen E.F.?
340 Wis. 2d 500, ¶47 (Abrahamson, J., concurring).

       ¶45    We can see the genesis of Mr. J.'s concern.                       In Helen

E.F.    we       described      Alzheimer's      Disease        as    "incurable     and

untreatable; the only available medical remedy is maintenance——

not treatment——of the disease as it progresses."                              Id., ¶37.

This   is    a    categorical     statement      and    strongly       suggests    that,

because of the nature of Alzheimer's Disease and the state of
medical      science,      no   one   suffering        from    that    condition     has

rehabilitative potential.             While that may be true as a medical

matter (emphasis on "may"), it does not mean that our Helen E.F.

framework countenances the automatic relegation of such patients

to the non-rehabilitative category.

       ¶46    Our analysis explicitly requires an inquiry into each

individual's condition and potential for rehabilitation.                          It is,

in fact, shot through with references to the individual:

       If treatment will maximize the individual functioning
       and maintenance of the subject, but not help in
       controlling or improving their disorder, then the
       subject   individual   does  not   have   rehabilitative
       potential, and is not a proper subject for treatment.
       However, if treatment will go beyond controlling
       activity and will go to controlling the disorder and
       its   symptoms,   then   the  subject   individual   has
       rehabilitative potential, and is a proper subject for
       treatment.
Id., ¶36 (emphasis added; internal alterations and quotations

omitted).         There    is    always   hope    that        seemingly      intractable

conditions        like     Alzheimer's        Disease         may     someday     become
tractable.           Our     standard     for     determining          rehabilitative

                                          24
                                                                           No.        2016AP46-FT



potential does not foreclose that possibility.                        We evaluate each

individual individually.

                     E.     Clear and Convincing Evidence

      ¶47   Mr.   J.      says    the       County   did     not    establish         he   is    a

proper subject of treatment under either the Helen E.F. rubric

or his proposed revision.                   His objection is largely that his

disorder is not continuing to improve.                        He acknowledges he is

not   getting      worse        but     asserts       that     unless       treatment           is

continually       improving           his     condition,       he     does        not       have

rehabilitative potential.               He does not say why this should be

so, and no supporting rationale immediately suggests itself.

      ¶48   As we discussed at length, supra, Mr. J.'s treatment

is achieving laudable results.                     Currently, he can integrate in

society while receiving his treatment as an outpatient.                                 Without

treatment, his condition will deteriorate to the point that an

involuntary commitment order will subject him to confinement so

he can receive treatment as an inpatient.                           If we adopted Mr.

J.'s argument, we would condemn him to a never-ending yo-yo of
uncontrolled      paranoid        schizophrenia,           followed        by    involuntary

confinement     for       inpatient         treatment      until     his    symptoms         are

controlled     and        his    inpatient         commitment       order        is     lifted,

followed by another bout of uncontrolled paranoid schizophrenia,

and on and on ad mortem.                Nothing in law or logic instructs us




                                              25
                                                                    No.       2016AP46-FT



to ignore this reality, so we will not.16                      The County provided

clear and convincing evidence that treatment controls Mr. J.'s

symptoms to such an extent that he can integrate into society

without posing a threat to himself or others and that withdrawal

of   treatment    would   eventually        require    his      confinement       so   he

could receive inpatient treatment.                 Consequently, the evidence

is   sufficient    to   demonstrate     Mr.    J.     is   a    proper    subject      of

treatment within the meaning of Wis. Stat. § 51.20(1).

                                V.     CONCLUSION

      ¶49    Mr. J. did not challenge the circuit court's factual

findings, and both the circuit court and the court of appeals

properly    applied     Helen   E.F.   to    conclude      Mr.     J.    is   a   proper

subject of treatment because he has rehabilitative potential.

Consequently, we affirm the court of appeals.

      By    the   Court.—The    decision      of    the    court    of    appeals      is

affirmed.


      16
        Mr. J. also asserted he should not be subject to an
involuntary commitment order because Chapter 51 is meant to be
used for "short term treatment and rehabilitation intended to
culminate with re-integration of the committed individual into
society," and he has already been subject to such orders
continuously since 2009.       Presumably, Mr. J. meant this
observation to support his bid to be free of Waukesha County's
orders.    However, this might instead suggest he would be a
candidate for involuntary, long-term protective placement under
Wis. Stat. ch. 55. But because he did not develop this argument
and no one has briefed how chapters 51 and 55 complement (or
don't complement) each other, we will not consider it here. See
Clean Wisconsin, Inc. v. Pub. Serv. Comm'n of Wis., 2005 WI 93,
¶180 n.40, 282 Wis. 2d 250, 700 N.W.2d 768 ("We will not address
undeveloped arguments.").


                                        26
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      ¶50   SHIRLEY S. ABRAHAMSON, J.                     I renew my concern that

the Helen E.F. case set forth a confusing and unpredictable test

to interpret a "proper subject for treatment" under Chapter 51.

Fond du Lac County v. Helen E.F., 2012 WI 50, 340 Wis. 2d 500,

814   N.W.2d 179.          The    instant     opinion      continues          and   possibly

magnifies the problem.

      ¶51   In     Helen      E.F.,    this       court    analyzed           and   compared

Chapters 51 and 55 of the Wisconsin Statutes.                          Despite the fact

that Chapters 51 and 55 ostensibly serve different purposes,

there is substantial overlap and similarity between some aspects

of    the   two    chapters.          Helen       E.F.,     340        Wis. 2d 500,      ¶45

(Abrahamson, C.J., concurring).

      ¶52   But one important and undisputed distinction between

Chapters 51 and 55 is the length of the treatment or commitment

that each chapter provides.              Mr. J. has been under Chapter 51

for almost a decade.             Although an initial Chapter 51 commitment

cannot exceed six months and extensions are possible, Wis. Stat.
§ 51.20(13)(g), Chapter 55 applies to a commitment caused by "a

disability       that    is      permanent       or   likely      to     be     permanent."

§ 55.08(1)(d).          See Helen E.F., 340 Wis. 2d 500, ¶¶29, 44.                       The

majority opinion, ¶48 n.16, slides over this issue.

      ¶53   This distinction matters.                  Although both provide for

involuntary commitments, Chapter 55 contains numerous additional




                                             1
                                                       No.   2016AP46-FT.ssa


procedures and protections for an individual subject to a long-

term commitment that Chapter 51 simply doesn't.1

     ¶54   Because   the   court   is   faced   with   interpreting     and

applying Chapter 51 to Mr. J., I briefly restate my concerns

with the Helen E.F. test.

     ¶55   Although I agree with the majority opinion that Mr.

J.'s suggested revisions of the Helen E.F. test are unavailing,

I remain concerned that the Helen E.F. tests is also unavailing.

     ¶56   "Rehabilitation" appears to be the linchpin of this

statutory definition.      See Milwaukee Cty. Combined Cmty. Servs.




     1
       See also Wisconsin Coalition for Advocacy, Rights &
Reality II, An Action Guide to the Rights of People with
Disabilities in Wisconsin 342 (2001):

     In   general,  Chapter   55  is used for  long-term
     placement or services while Chapter 51 is used for
     more time-limited treatment.

           . . . .

     This is a helpful way to separate the two statutes,
     but there will be many situations where they overlap.
     For example, a person with a permanent disability like
     mental retardation would ordinarily receive services
     under Chapter 55, but could also have a mental health
     crisis which would be handled under Chapter 51 with
     either voluntary or involuntary treatment.     Persons
     with chronic mental illness who are incompetent and
     have a guardian can probably be served under either
     Chapter 51 or 55.    Some younger persons with severe
     mental health needs who live in group homes or in
     their own apartments with intensive services such as
     Community Support Programs (CSP) may be under Chapter
     55 orders.   Others in exactly the same situation are
     under Chapter 51 commitments which are renewed year
     after year. This varies by county.


                                    2
                                                               No.   2016AP46-FT.ssa


Bd. v. Athans, 107 Wis. 2d 331, 334-36, 320 N.W.2d 30 (Ct. App.

1982).

    ¶57   The      line      between         controlling      activity       versus

controlling the symptoms and the disorder——that is, whether an

individual is habilitable or rehabilitable——is not any brighter

or clearer to me in the instant opinion than in Helen E.F..

    ¶58   Unfortunately, the court maintains the confusing test

it adopted in Helen E.F., failing to differentiate Chapter 51

commitments from Chapter 55 commitments.

    ¶59   I renew my suggestion that "it may be time for the

legislature to reassess the goals and intended scope of the two

chapters."      Helen     E.F.,   2012   WI     50,    ¶56   (Abrahamson,     C.J.,

concurring) (citing Wis. Stat. §§ 13.83(1)(c), 13.92(2)(j)).

    ¶60   For these reasons, I write separately.

    ¶61   I   am   authorized      to    state        that   Justice   ANN   WALSH

BRADLEY joins this opinion.




                                         3
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