¶1¶ 46. (concurring). Both mental illness and dangerousness are necessary to satisfy the requirements of substantive due process for involuntary civil commitment in Wisconsin.
¶2¶ 47. The so-called fifth standard was enacted to allow for the hospitalization and treatment of individuals with a history of mental health treatment who become incapable of making rational treatment decisions and refuse treatment. For such individuals, refusing timely treatment could lead to substantial mental deterioration. For family members and friends, a loved one's refusal of timely treatment can result in an agonizing and helpless vigil as that individual's mental, emotional, and physical condition deteriorates.
¶3¶ 48. A court must balance the desires of mental health professionals, friends, and family members who believe that care and treatment are in the best interests of a person who is mentally ill, and the constitutional liberty interests of individuals to be free from unwanted and unnecessary restraints. In recent decades, this balance has been struck by requiring proof of mental *389illness and imminent dangerousness to self or others before permitting involuntary civil commitment.
¶4¶ 49. The fifth standard comes perilously close to upsetting this balance. It passes constitutional muster for me only so long as courts require significant evidence of the statutory elements, and treatment is in fact provided. For the reasons set forth, I write separately.
¶5¶ 50. I am authorized to state that Justices WILLIAM A. BABLITCH and ANN WALSH BRADLEY join this opinion.
¶6See O'Connor v. Donaldson, 422 U.S. 563, 573-76 (1975) (state cannot confine nondangerous person without more); Lessard v. Schmidt, 379 F.Supp. 1376, 1381 (E.D. Wis. 1974), vacated and remanded on other grounds, 421 U.S. 957 (1975), reinstated 413 F.Supp. 1318 (E.D. Wis. 1976) (mandating dangerousness as a constitutional prerequisite to involuntary hospitalization).