(dissenting). I dissent. I agree with the trial court and the court of appeals that this case is governed by Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286 (1974), and that this case cannot be distinguished from Scales. The majority opinion holds that absent arrest or the curtailment of an individual’s freedom created by the police, the police, in questioning that individual, have no duty to advise him of his constitutional rights regardless of the motivation of the police, their belief in that individual’s guilt, or the evidence in their possession. That result is contrary to this court’s decision in Scales. That result is also contrary to the *289language and intent of Miranda v. Arizona, 384 U.S. 486 (1966).
The majority correctly states that Miranda held “statements of the defendant obtained from questions asked while in custody or otherwise deprived of his freedom of action in any significant way could not be used as evidence against him, unless preceded by the Miranda warnings.” Supra at 282. (Emphasis in original.) However, the majority’s conclusion that this deprivation of freedom must be caused or created by the police ignores the clear language of Miranda. In Miranda, the Court stated: “[T]oday, then, there can be no doubt that the fifth amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.” 384 U.S. at 467. (Emphasis supplied.) The concern in Miranda, therefore, was with the custodial atmosphere in which the police questioned an individual, and the psychological effect of that atmosphere on the individual, not with who caused or created a curtailment of freedom. The court stated, “we concern ourselves primarily with this interrogation atmosphere and the evils it can bring.” Id. at 456. The court also stated “. . . we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented,” Id. at 448 (emphasis supplied), and that warning an individual of his rights “is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere.” Id. at 468.
In this case, Douglas Clappes was being treated for injuries in a hospital emergency room. His mental and physical condition, so soon after an injury, would, under Wisconsin law, be enough to preclude the use of any statements he made in a defense against a civil suit arising out of those injuries. See sec. 904.12, Stats. That *290provision, which prohibits the admission into evidence of statements of injured parties made within 72 hours of the injury, is based on the policy that admission of such evidence would be “. . . unfair because the physical and mental condition of the injured person might prevent him from properly safeguarding his rights.” Schueler v. Madison, 49 Wis. 2d 695, 708, 183 N.W.2d 116 (1971). This policy suggests that Clappes may have been in a condition in which he was susceptible to suggestion and thus more prone to incriminate himself.
The majority holds that officers need affirmatively initiate the custodial situation with an arrest; their presence and questioning of a suspect whose freedom is restricted for other reasons is not, alone, enough to create “custodial interrogation.” To require an arrest, however, is to elevate form over substance. As the Supreme Court said in Miranda, it is the psychological effect on the defendant, created by being “. . . taken into custody or otherwise [being] deprived of his freedom of action in any significant way” that is significant. 384 U.S. at 444.
In this case, the officers, while questioning Clappes, stood on either side of his head. They filled his view of the world to the same extent that an interrogation room would to an uninjured defendant. One officer, using a loud voice, asked Clappes, “. . . you were driving; is that right?” The question was asked again in a loud voice. The accusatorial tone and physical position of the officers created the psychological element of interrogation that the Supreme Court was so concerned about in Miranda; namely, the perception of the defendant that he is cut off from all support. The officers in this case affirmatively contributed to the creation of a custodial atmosphere, to the deprivation of Clappes’ freedom of action; Clappes therefore had a right to be informed of his constitutional rights.
*291The majority opinion is also contrary to the statements of this court in Scales. In Scales, this court stated: The emphasis of Miranda ... is upon the necessity of extending constitutional rights to persons in the presence of overwhelming police power and who are cut off from contact, for the time being at least, from family, friends, and counsel.” Id. at 491-92. The majority opinion in this case notes the presence of physicians and nurses at the time the defendant was being questioned and the control that these medical personnel had over the defendant. However, this does not change the fact that the defendant was deprived of his freedom, was subjected to police interrogation, and was cut off from family, friends and counsel during the interrogation. Further, the questioning of the police was accusatorial and instilled in the defendant the impression that the police were merely confirming information already in their possession. (See supra at 280.) As this court stated in Scales: “Police officers cannot take advantage of a coercive situation which limits an accused’s freedom of action and then proceed to interrogate him without proper admonitions.” Id. at 492.
The majority seeks to distinguish Scales on the basis that the defendant in that case had already been placed under arrest at the time of questioning. However, the defendant Scales was not aware that an arrest had been made. Scales, like Clappes, was severely injured and immobilized on a hospital bed when questioned. The controlling factor in Scales, and in the present case, was not that an arrest had been made, but that a custodial atmosphere and coercive situation were created by police presence. Admissions obtained under such circumstances in the absence of Miranda warnings constitute a violation of the fifth amendment privilege against self-incrimination.
*292Courts in other jurisdictions have squarely addressed the issue now before this court, and have concluded that Miranda warnings were required under circumstances analogous to those present in this case.1 In Shedrick v. State, 10 Md. App. 579, 271 A.2d 773 (1970), officers took a statement at a hospital from a defendant who had been treated for injuries at the hospital, without fully advising the defendant of his constitutional rights. The court held that the statement was a product of “custodial interrogation” within the meaning of Miranda, and that full Miranda warnings were therefore required. Similarly, in Howard v. State, 217 So. 2d 548 (Ala. 1969), the defendant was questioned in a hospital following an automobile accident. The court stated that being in the hospital was the equivalent of detention and that “we would be naive if we believed that Howard could have freely walked away. . . .” 217 So. 2d at 549.
The critical factor in determining whether police had a duty to advise an individual of his constitutional rights is not whether it was the police who caused or created the deprivation of freedom. Rather, when an individual’s freedom of action has been deprived in any significant way, and when the presence of the authorities creates a custodial atmosphere where the individual is cut off from the psychological support of friends, family or counsel, the authorities must advise the individual of his constitutional rights before questioning him. The Scales rule requiring that a person in the situation presented in Scales and in this case be apprised of his or her Miranda rights is sound as a matter of public policy *293and is a necessary requirement for the administration of the criminal justice system. I therefore dissent.
I am authorized to state that Justice Shirley S. Abra-HAMSON joins in this dissent.
Cases that have found police questioning of a defendant in a hospital prior to arrest to require Miranda warnings include: State v. Ross, 183 Neb. 1, 157 N.W.2d 860 (1968); Howard v. State, 44 Ala. App. 595, 217 So. 2d 548 (1969); Shedrick v. State, 10 Md. App. 579, 271 A.2d 773 (1970); Commonwealth v. D’Nicuola, 448 Pa. 54, 292 A.2d 333 (1972).