The state Department of Health & Social Services has no right to recover on its claim for the period in question. It is undisputed that the defendant Grams is being held only pursuant to a pending criminal charge. There has been no appropriate civil commitment proceedings which would result in an obligation under sec. 46.10 (2), Stats., as claimed by the state.
We have carefully considered the cases upon which the state relies. They are Guardianship of Sprain (1935), 219 Wis. 591, 263 N. W. 648; Guardianship of Radoll (1936), 222 Wis. 539, 269 N. W. 305; and Treglown v. Department of Health and Social Services (1968), 38 Wis. 2d 317, 156 N. W. 2d 363. In each of these cases, there is a consistent rationale—if the individual is com*197mitted to a state institution as the result of criminal proceedings, neither he nor his estate is liable to the Department of Health & Social Services. As stated in Guardianship of Gardner (1936), 220 Wis. 490, 492, 264 N. W. 647:
“The question for determination therefore is whether the confinement of the appellant’s ward in the central hospital is properly referable to his sentence to the state prison. If he was there confined pursuant to such sentence, there can be no recovery.”
We believe that all of these cases taken together stand for the proposition that any confinement or any treatment which is merely an adjunct to the criminal process and is not separately mandated by confinement under the standards of ch. 51, Stats., does not result in a collectible claim.
Grams is held only by virtue of the provisions of sec. 971.14 (5), Stats. The only authority that a court has to hold Grams arises from the fact that he has probably committed a crime and he cannot presently defend himself against the state charges. The only constitutional justification for holding Grams without a civil commitment is enunciated in the standard mandated by Dusky v. United States (1960), 362 U. S. 402, 80 Sup. Ct. 788, 4 L. Ed. 2d 824. The standard there stated is:
“[T]he ‘test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding- — and whether he has a rational as well as factual understanding of the proceedings against him.’ ”
We pointed out in State ex rel. Haskins v. Dodge County Court (1974), 62 Wis. 2d 250, 214 N. W. 2d 575, that the application of this test is not satisfied by a mere finding of psychosis or mental illness. A person may be completely sane and not be competent to stand trial. He may be insane or psychotic and be able to meet the *198test of Bushy and be competent to stand trial. Haskins holds that restraint of liberty under the eompetency-to-stand-trial standard is a criminal confinement arising only on the jurisdictional basis that the defendant has probably committed a crime. If the underlying charge were dismissed, a person so confined must be released forthwith, subject only to the temporary detention provisions set forth in sec. 971.14, Stats., for the purpose of instituting possible civil commitment under ch. 51.
In Haskins, relying upon Jackson v. Indiana (1972), 406 U. S. 715, 92 Sup. Ct. 1845, 32 L. Ed. 2d 435, and State ex rel. Matalik v. Schubert (1973), 57 Wis. 2d 315, 204 N. W. 2d 13, we emphasized that the nature of the incarceration was criminal and that the jurisdiction over the defendant was exclusively in the criminal court in which he was charged.
In the instant case, Grams’ confinement is exclusively referable to the finding by the Columbia county court that he had been charged with a crime and that, because of his inability to properly defend himself, he could not be tried. The fact that there is a superfluous finding of mental illness by the trial court does not change the nature of the confinement to a civil one, warranting a claim by the state for hospitalization and treatment. The criminal court, in the proceedings that were undertaken, had no such jurisdiction.
We conclude, in accordance with the Wisconsin cases cited above, that there can be no recovery where the incarceration is founded on a pending criminal charge or a criminal sentence. The nature of the confinement and the limited nature of the inquiry to which a court may address itself on a competency-to-stand-trial hearing has been clear at least since Dusky, supra. We need indulge in no retroactive application of the law to hold that, during the entire period of Grams’ incarceration, he was held solely on the jurisdictional basis of the criminal charges against him.
*199If further treatment is required, the nature of the confinement must be changed to a civil commitment. Under well-established rules of this court, there then can be a per diem charge against the person hospitalized or against his estate. Under the facts of this case, however, no liability has been incurred to the state for charges prior to a civil commitment under the provisions of ch. 51, Stats.
By the Court. — Order reversed.