(dissenting). The majority opinion appears to hold that Oyarbide could not have been acting under § 51.15, Stats. — and thus was not entitled to the protections of the immunity provisions of §51.15(11) — because: (1) §51.15 deals with "emergency" detention; and (2) Oyarbide did not take Mott into custody because Mott "was already in custody." As a result, the majority concludes that Oyarbide is not immune from liability for his actions under § 51.15(11). I respectfully disagree.
Although Mott was in custody at the time he was interviewed by Oyarbide, the court had ordered his release earlier in the day, subject only to his being interviewed by "somebody from Dane County Mental Health" prior to release in order to determine whether the county could "offer him some services" and, in addition, whether an emergency detention proceeding under ch. 51, Stats., "might be in order."1
Oyarbide was on duty that day and Mott was brought to him for an interview. Oyarbide was told that Mott had come from the legal system and was to be interviewed before his release later that afternoon. Oyarbide interviewed Mott for approximately fifty-five minutes and concluded that while Mott was suffering from an "acute reaction to stress," he did not meet the *761"mental illness" criteria for detention under § 51.15(1), Stats. Oyarbide offered Mott the services and assistance of the mental health center and Mott was released from j ail that evening.
As indicated, approximately one month later Mott physically assaulted Kell, injuring her severely, and she sued Oyarbide and the Mental Health Center of Dane County, Inc.,2 claiming that Oyarbide was negligent in, among other things, authorizing Mott's release instead of instituting emergency commitment proceedings under § 51.15, Stats.
The trial court granted summary judgment dismissing the action, concluding that, because Oyarbide was "the mental health professional... [who] decide[d] whether detention [wa]s necessary" under §51.15, STATS., he was acting "in accordance" with the statute within the meaning of § 51.15(11). I agree with that determination.
Section 51.15(l)(a), Stats., provides that an individual may be "take[n] . . . into custody" by a law enforcement officer, or a person authorized to detain juveniles, if certain conditions are met. Other portions of the statute include other persons in the process, including the "director and staff" of any treatment facility (or the director's "designee"), who are given, among other things, the authority to release detained individuals in certain situations. See § 51.15(4), (5), (6), (8), (9), and (10), STATS.
In deposition testimony submitted in connection with his summary judgment motion, Oyarbide testified that in cases where he is called upon to determine whether a person is a proper subject for emergency *762detention and his examination leads him to conclude in the affirmative, he drafts the "standard form" documents and gives them to a law enforcement officer who then signs the papers and proceeds to take the subject into physical custody. It is thus Oyarbide who determines whether emergency detention proceedings are to be initiated under § 51.15, Stats., in a particular case, and Kell does not dispute that he plays that role. Indeed, her lawsuit seeks recovery for Oyarbide's actions in that capacity— determining not to detain Mott under the statute.3
It would be anomalous to read the statute as providing immunity to the person — the law enforcement officer — who takes physical custody of the individual, while rendering the person who decides whether to initiate the proceedings leading up to that action — or, as here, determines not to initiate them — subject to suit for that act. I agree with Oyarbide that the language of § 51.15(11), Stats., indicating that immunity is granted to "[a]ny individual acting in accordance with this section" means what it says. In my opinion, in carrying out the court's order as it was conveyed to him, Oyarbide was evaluating Mott as a subject for emergency detention under § 51.15, and was thus acting in accordance with the section when, after a lengthy interview in which he concluded that the criteria for detention were not present, he authorized Mott's release.
I would thus reject Kell's argument — which the majority adopts — that Oyarbide was not acting under § 51.15, STATS. I would affirm the trial court's decision *763that he was indeed acting under the statute and would affirm its judgment dismissing the action against him.
The written minutes of Mott's appearance did not specifically indicate that he was to be interviewed for possible detention, but stated only that he "be held in custody until 5:00 p.m. today for the purpose of being interviewed by Dane CoEunty] Mental Health."
Kell also named as defendants several members of the Dane County Sheriffs Department and the Dane County Clerk of Courts. Those parties were dismissed from the suit.
As indicated above, the gravamen of Kell's complaint is that Oyarbide "failed to . .. commence a Chapter 51 proceeding and released [Mott] from custody." (Emphasis added.)