Protective placement due to incompetency requires that, as a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious harm to himself or herself or others.

By definition, brain dysfunction may qualify an individual for such protective custody. Is this yet another way in which evidence of brain dysfunction is a double-edge for a criminal defendant? I have previously reported on the use of brain dysfunction to substantiate a finding of future dangerousness for civil commitment of sexually violent predators. In the case today, the Petitioner’s degenerative brain disorder was at issue to determine whether the Petitioner could be unwillingly placed in protective custody. Because of discrepancy between the expert testimony on the presence of degenerative brain disorder, the case was remanded for further evidentiary findings. We may be on the precipice of a brave new world of protective custody for brain disorders.

Degenerative Brain Disorder, Protective Custody
In the matter of the Protective Placement of JIM, 2011 WL 891043 (Wis. App. 2011)
Petitioner appealed the order requiring his protective placement due to incompetency arguing that the evidence was insufficient to support the order. On appeal, Petitioner argued that the protective placement order did not reflect the record of the hearing, and that the circuit court’s findings were inadequate to allow the Court of Appeals to review the sufficiency of the evidence. The Court of Appeals reversed and remanded for further findings. The County ordered two expert evaluations—a psychiatric one and one by a protective placement specialist from Health and Human Services (“HHS”). Both found Petitioner to have impaired insight and judgment and to be an appropriate candidate for protective placement outside a locked unit. The County had to prove Petitioner had a primary need for residential care and custody, had been determined to be incompetent by a circuit court, as a result of developmental disability, brain disorder or other serious persistent mental illness. The psychiatrist, however, had expressly testified that the Petitioner did not have a degenerative brain disorder, while the HHS specialist said that she thought at the time the guardianship petition was filed he had a degenerative brain disorder, rather than a serious and persistent mental illness. This discrepancy, together with others and the fact that the least restrictive placement was not used since Petitioner was placed in a locked unit supported the Court of Appeals finding that there was insufficient evidence supporting the elements required for protective placement. The court therefore reversed and remanded for findings by the circuit court including an additional evidentiary hearing, if necessary.