Applicability of Ch. 51 Emergency Detention, Involuntary Commitment,
and Conversion to Individuals With Dementia
The bill specifies that "mental illness," for purposes of ch. 51 involuntary
commitment, does not include dementia.
The bill specifies that a law enforcement officer may take a person into custody for
emergency detention under ch. 51 only if, based on observation and currently available
information, the individual does not appear to have dementia.
The bill specifies that a person who has dementia or who, based on observation and
currently available information, appears to have dementia, may not be involuntarily
committed under ch. 51 unless he or she is competent.
Under current law, if the court determines, after a hearing on probable cause for
involuntary commitment under ch. 51, that there is probable cause to believe that the
subject individual is a fit subject for guardianship and protective placement or services,
the court may appoint a temporary guardian and order temporary protective placement
or services under ch. 55 for a period not to exceed 30 days, and must proceed as if a petition
had been made for guardianship and protective placement or services. This procedure
is commonly referred to as a "conversion" from ch. 51 to ch. 55. Under current law, if the
individual is in a ch. 51 treatment facility at the time of conversion, the individual may
remain in the facility during the period of temporary protective placement if no other
appropriate facility is available.
The bill specifies that if an individual is in a ch. 51 treatment facility at the time
of conversion, and the individual has or appears to have dementia, the individual may
remain in that facility only if the facility is identified by a county as a dementia crisis unit,
as described below, and the unit provides an environment that is appropriate for the
individual.
Requirement That Corporation Counsel Assist in Prosecuting
Conversion Cases
Current law provides that the corporation counsel of the county in which a petition
under ch. 55 is brought may, or if requested by the court, must, assist in conducting
proceedings under this chapter.
The bill specifies that the corporation counsel of the county in which a petition
under ch. 55 is brought must assist in conducting ch. 55 proceedings if both of the
following are true: (a) the proceedings were initiated under ch. 51 and subsequently
converted to ch. 55 proceedings; and (b) the subject individual has dementia.
County Designation of Dementia Crisis Unit for Emergency and
Temporary Protective Placements
The bill requires each county department to identify at least one location as a
dementia crisis unit for the purpose of emergency and temporary protective placement
for behavioral or psychiatric evaluation, diagnosis, services, or treatment. The county
may not identify a location as a dementia crisis unit unless it finds that the location is
qualified and equipped to provide, and competent in providing, the diagnosis, evaluation
and treatment of dementia and medical, psychiatric, and behavioral care to individuals
with dementia and it provides a therapeutic environment that is appropriate for, and
designed to prevent harm to, individuals with dementia. Medical facilities need not be
located on the premises, but the capacity to provide diagnosis and treatment for medical
conditions must be available.
The bill requires the county department to solicit information and advice from the
public, including family caregivers of individuals with dementia, organizations
concerned with Alzheimer's disease and dementia, the treatment of mental illness or the
provision of long-term care, and any other appropriate individuals or organizations, to
aid it in carrying out its responsibility to designate one or more locations as dementia
crisis units.
The county department must implement a procedure to periodically review and
update the designation of one or more locations as dementia crisis units as necessary and
appropriate.
County and Department of Health Services Reports
The bill requires each county department to prepare and submit a report to the
Department of Health Services (DHS) that identifies each location that it has designated
as a dementia crisis unit for the purpose of emergency and temporary protective
placements. The report must specify the capacity of each designated unit, describe the
process used to solicit information and advice from the public and summarize the
information and advice received. The report must be updated whenever the county newly
designates a unit or revokes a unit's designation.
The bill also requires each county department to annually prepare and submit a
report to DHS that states the total number of petitions for emergency protective
placement or temporary transfer of an individual with dementia to a dementia crisis unit
filed in the county and the total number of those petitions that resulted in a placement
in a dementia crisis unit.
The bill requires DHS, by June 30 of each even-numbered year, to submit to the
legislature a report that includes all of the following:
(a) Identification of the dementia crisis units designated by counties and the
capacity of those units, as provided in reports submitted to DHS by county departments.
(b) A summary of the procedures used by counties to solicit information and advice
from the public when making dementia crisis unit designations, as provided in reports
submitted to DHS by county departments.
(c) A summary of the information provided to DHS by counties regarding the
number of petitions filed for emergency protective placement or temporary transfer of an
individual with dementia to a dementia crisis unit.
IAPM as an Emergency Protective Service for Individuals With Dementia
Current Law
Under current law, involuntary administration of psychotropic medication (IAPM)
may be ordered as a protective service under s. 55.14. "Involuntary administration of
psychotropic medication" means any of the following:
1. Placing psychotropic medication in an individual's food or drink with knowledge
that the individual protests receipt of the psychotropic medication.
2. Forcibly restraining an individual to enable administration of psychotropic
medication.
3. Requiring an individual to take psychotropic medication as a condition of
receiving privileges or benefits.
Under current law, all of the requirements applicable to a petition for protective
services must be met, including the filing of a petition for guardianship if the individual
does not already have a guardian. In addition, a petition continuing extensive allegations
specific to the issue of IAPM must be filed, a guardian ad litem must make a report to the
court, the individual's physician must provide a detailed written statement, and the
individual has a right to an independent medical or psychological examination. The court
must hold a hearing on the petition for IAPM within 30 days. If the individual does not
already have a guardian, a petition for guardianship must be heard, and a guardian
appointed, before the hearing on the petition for IAPM. IAPM may not begin until the
court has issued the order.
Under current law, emergency protective services may be provided to an individual
for up to 72 hours, without a court order, if there is reason to believe that if those services
are not provided, the individual, or others, will incur a substantial risk of serious physical
harm. The services may not be provided for longer than 72 hours unless a petition for
protective services is filed, a hearing is held, and the court finds probable cause to believe
the criteria for the provision of protective services exist. If the individual is not under
guardianship, a petition for guardianship must accompany the petition for protective
services.
There is some disagreement as to whether, under current law, IAPM may be
provided as an emergency protective service under s. 55.135.
The Bill
The bill creates a procedure under which IAPM may be provided as an emergency
protective service to an individual with dementia, or a person who, based on observation
and currently available information, appears to have dementia. The bill specifies that
IAPM may be provided as an emergency protective service to these individuals only by
following the procedures created in the bill.
The bill does not specify whether, or by what procedures, IAPM may be provided
as an emergency protective service to individuals who do not have, or do not appear to
have, dementia.
Under the bill, IAPM may be provided as an emergency protective service for an
individual with dementia only if all of the following are true:
(a) A physician has prescribed the psychotropic medication for the individual.
(b) The individual is not competent to refuse psychotropic medication. "Not
competent to refuse psychotropic medication" means that, as a result of dementia, serious
and persistent mental illness, or other like incapacities, and after the advantages and
disadvantages of and alternatives to accepting the particular psychotropic medication
have been explained to an individual, one of the following is true:
(1) The individual is incapable of expressing an understanding of the advantages
and disadvantages of accepting treatment and the alternatives to accepting treatment.
(2) The individual is substantially incapable of applying an understanding of the
advantages and disadvantages of accepting treatment and the alternatives to accepting
treatment to his or her condition in order to make an informed choice as to whether to
accept or refuse psychotropic medication.
(c) The individual's condition for which psychotropic medication has been
prescribed is likely to be improved by administration of psychotropic medication and the
individual is likely to respond positively to psychotropic medication.
(d) Unless psychotropic medication is administered involuntarily, the individual
will incur a substantial probability of physical harm, impairment, injury or debilitation
or will present a substantial probability of physical harm to others.
(e) If the individual is not currently placed in a dementia crisis unit, unless
psychotropic medication is administered involuntarily, there is a substantial likelihood
that the individual may be subject to involuntary admission to a dementia crisis unit for
psychiatric treatment.
(f) If the individual resides in a nursing home, community-based residential
facility, adult family home, or residential care apartment complex ("a facility"), all of the
following are true:
1. A physical examination of the individual has been conducted, and a physician
has determined and documented in writing that there is a reasonable probability that the
behavior is not caused by a physical condition or illness that could be treated successfully
by means other than psychotropic medication.
2. The facility has made reasonable efforts to address or accommodate the behavior
or condition for which IAPM is requested and these efforts are documented in the
individual's plan of care.
3. The facility has prepared detailed documentation of the behaviors or condition
of the individual leading to the request for IAPM.
(g) The individual meets the standards for protective services under s. 55.08 (2).
If the individual is under guardianship, a good faith effort to obtain the consent of
the guardian must be made before IAPM is provided as an emergency protective service.
A county department or agency with which the county department contracts that
provides IAPM as an emergency protective service to an individual must immediately file
a petition for IAPM to the individual as a protective service under s. 55.14. The petition
must meet all of the requirements of s. 55.14. (The bill makes changes to the required
contents of a petition for IAPM as a protective service for an individual with dementia.
Those changes are described below.)
The petition must be served on the individual, the individual's guardian, the
individual's legal counsel and guardian ad litem, if any, and the county department.
A preliminary hearing must be held within 72 hours of administration of the first
dose of psychotropic medication, excluding Saturdays, Sundays, and legal holidays, to
establish probable cause that the criteria under s. 55.14 are present.
The county department or agency that provides IAPM as an emergency protective
service must provide the individual with written notice and orally inform the individual
of the time and place of the preliminary hearing.
If the court finds probable cause to believe that the criteria under s. 55.14 are
present and that the medication will not unreasonably impair the ability of the individual
to prepare for or participate in subsequent legal proceedings, it may order IAPM to
continue to be provided as an emergency protective service for up to 30 days pending the
hearing under s. 55.14.
If the individual is not under guardianship, a petition for guardianship must be
filed at the same time that the petition for IAPM as a protective service is filed. If IAPM
is ordered for an individual who does not have a guardian, the court must appoint a
temporary guardian for the individual.
IAPM as a Non-Emergency Protective Service for Individuals With
Dementia
Evidence of Harm, Impairment, Injury or Debilitation
Current Law. Under current law, IAPM may not be ordered as a protective service
unless, in addition to other requirements, it is shown that unless psychotropic medication
is administered involuntarily, the individual will incur a substantial probability of
physical harm, impairment, injury, or debilitation or will present a substantial
probability of physical harm to others. The substantial probability of physical harm,
impairment, injury, or debilitation must be evidenced by one of the following:
1. The individual's history of at least 2 episodes, one of which has occurred within
the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act,
or omissions that resulted from the individual's failure to participate in treatment,
including psychotropic medication, and that resulted in a finding of probable cause for
commitment under s. 51.20 (7), a settlement agreement approved by a court under s.
51.20 (8) (bg), or commitment ordered under s. 51.20 (13).
2. Evidence that the individual meets one of the dangerousness criteria set forth
in s. 51.20 (1) (a) 2. a. to e.
The Bill. The evidence of the substantial probability of physical harm,
impairment, injury, or debilitation that is required under current law is linked to
standards and findings under ch. 51. The bill specifies that individuals with dementia
are not subject to ch. 51 detention and involuntary commitment procedures. Accordingly,
the bill changes the evidence required to prove a substantial probability of physical harm,
impairment, injury, or debilitation for cases in which the individual who is the subject of
the petition has dementia. Specifically, the bill removes specific references to provisions
in ch. 51 and replaces them with new provisions which are modeled on the standards of
ch. 51 but modified to be more appropriate for cases involving individuals with dementia.
Under the bill, for individuals with dementia, the substantial probability of physical
harm, impairment, injury, or debilitation must be shown by evidence of recent acts,
attempts, or behavior of the individual, a pattern of recent acts or omissions of the
individual, or by evidence that the individual or others are placed at substantial risk of
serious physical harm to them, as evidenced by a recent overt act, attempt, or threat to
do serious physical harm by the individual.
Physician Statement
Current Law. Under current law, a petition for IAPM as a protective service must
include a written statement signed by a physician who has personal knowledge of the
individual that provides general clinical information regarding the appropriate use of
psychotropic medication for the individual's condition and specific data that indicates
that the individual's current condition necessitates the use of psychotropic medication.
The Bill. Under the bill, if the individual has dementia, the physician statement
must also state that a physician has determined and documented in writing that there
is a reasonable probability that the behavior for which treatment with psychotropic
medication is sought is not caused by a physical condition or illness that could be treated
successfully by means other than psychotropic medication.
Requirement Applicable to Certain Long-Term Care Facilities
Current Law. Current law authorizing IAPM as a protective service does not
contain any requirements regarding efforts made by a long-term care facility to address
behaviors by means other than psychotropic medication.
The Bill. Under the bill, if the individual who is the subject of a petition for IAPM
has dementia and resides in a nursing home, a community-based residential facility, an
adult family home, or a residential care apartment complex, the petition must allege that
reasonable efforts have been made to address or accommodate the behavior or condition
for which treatment with psychotropic medication is sought. Evidence of the facility's
response to the individual's behavior or condition, as documented in records maintained
by the facility, must be attached to the petition.
Emergency Protective Placement of an Individual With Dementia in an
Dementia Crisis Unit
Current Law
Under current law, an individual may be placed in a protective placement facility
(but not a dementia crisis unit) without a court order if it appears probable that an
individual is so totally incapable of providing for his or her own care or custody as to create
a substantial risk of serious physical harm to himself or herself or others as a result of
developmental disability, degenerative brain disorder, serious and persistent mental
illness, or other like incapacities if not immediately placed. This is referred to as an
"emergency protective placement".
The person making the emergency protective placement must file a petition for
permanent protective placement, and a probable cause hearing must be held within 72
hours. If probable cause for permanent protective placement is found, the court may
order temporary protective placement in the dementia crisis unit for up to 30 days
pending the final hearing on permanent placement.
Under current law, emergency protective placement may not be made to a unit for
the acutely mentally ill, and no individual who is subject to an order for protective
placement or services may be involuntarily transferred to, detained in, or committed to
a treatment facility for care except under s. 51.15 or 51.20.
The Bill
The bill allows a sheriff, police officer, fire fighter, guardian, or authorized
representative of a county department or an agency with which it contracts to take an
individual into custody and transport them to a medical facility or a dementia crisis unit
if it appears probable that the individual is so totally incapable of providing for his or her
own care or custody as to create a substantial risk of serious physical harm to himself or
herself or others as a result of dementia, mental illness, or a psychiatric condition if not
immediately placed and, in addition, all of the following are true:
(a) The individual has dementia, or based on observation and currently available
information, appears to have dementia.
(b) The individual has engaged in behavior that creates a substantial risk of
serious physical harm to himself or herself or others as manifested by recent acts or
omissions.
(c) It appears probable that unless the individual is admitted to a dementia crisis
unit for behavioral or psychiatric evaluation, diagnosis, services, or treatment, the
individual will incur a substantial probability of physical harm, impairment, injury, or
debilitation or will present a substantial probability of physical harm to others. The
substantial probability shall be shown by evidence of recent acts, attempts, or behavior
of the individual, a pattern of recent acts or omissions by the individual, or by evidence
that the individual or others are placed at substantial risk of serious physical harm to
them, as evidenced by a recent overt act, attempt, or threat to do serious physical harm
by the individual.
An individual who has been detained as described above may be admitted to a
dementia crisis unit as an emergency protective placement if both of the following are
true:
(d) A physician has conducted a physical examination of the individual and
determined and documented in writing that there is a reasonable probability that the
behavior is not caused by a physical condition or illness that could be treated safely and
appropriately in a setting other than a dementia crisis unit and the physician
recommends that the individual be placed in a dementia crisis unit for behavioral or
psychiatric evaluation, diagnosis, services, or treatment.
(e) The placement is in an environment that is appropriate for the individual.
The person who takes an individual into custody must prepare a statement at the
time of detention providing specific factual information concerning the person's
observations, or reports made to the person, and the basis for emergency placement. If
the individual is admitted to a dementia crisis unit, the statement must be filed with the
director of the dementia crisis unit. The director or designee must provide the individual
with a copy of the statement by the person making emergency protective placement.
If the individual was detained at a facility other than the dementia crisis unit to
which they are admitted, an individual who is authorized to detain the individual may
transport them to the dementia crisis unit.
At the time of admission, the director of the dementia crisis unit, or the director's
designee, must inform the individual, orally and in writing, of his or her right to contact
an attorney and a member of his or her immediate family and the right to have an
attorney provided at public expense.
False Statements; Liability. The bill provides that whoever signs a statement,
described above, while knowing the information in the statement is false, is guilty of a
Class H felony. The bill also provides that a person who acts in accordance with any of
the provisions pertaining to emergency protective placement is not liable for any actions
performed in good faith.
Petition. The person making the emergency protective placement must file a
petition for protective placement that alleges that the individual meets the grounds for
protective placement and that all of the items listed in items (a) through (e), above, are
true.
Probable Cause Hearing. A probable cause hearing must be held within 96
hours of detention, excluding Saturdays, Sundays, and legal holidays. An individual is
considered to be detained when he or she is taken into custody for the purpose of
emergency protective placement. At the request of the subject individual, or his or her
counsel or guardian ad litem, the probable cause hearing may be postponed, but in no case
may the postponement exceed 7 days from the date of emergency protective placement.
If the individual is not under guardianship, a petition for guardianship must accompany
the petition for protective placement. The bill provides that if the court finds that the
individual has dementia but is not likely to be found incompetent or that protective
placement is otherwise not appropriate, the court may elect to treat the petition as a
petition for involuntary commitment under ch. 51.
Order for Temporary Protective Placement in a Dementia Crisis Unit. The
court may, at the probable cause hearing, order temporary protective placement of the
individual in a dementia crisis unit for up to 45 days, pending the hearing on the petition
for permanent protective placement. The court may make this order if it finds probable
cause to believe that the grounds for emergency protective placement exist and all of the
allegations listed in items (a) through (e), above, are true. The court may order protective
services as may be required. If the court does not find probable cause for placement in
a dementia crisis unit but does find probable cause for placement in a protective
placement facility other than a dementia crisis unit, it shall so order.
Transportation Upon Discharge. The order, and any subsequent extension of
the order, must state that the county in which the original order for protective placement
of the individual was issued is responsible for transportation of the individual to any
facility to which placement of the individual is ordered upon discharge of the individual
from the dementia crisis unit.
Final Hearing on Protective Placement. The hearing on permanent protective
placement must be held within 45 days after the emergency protective placement in a
dementia crisis unit. At the hearing on the permanent protective placement petition, the
court may order placement in a protective placement facility, but not a dementia crisis
unit. If continued placement in the dementia crisis unit is desired, a petition for extension
of the order for temporary placement must be filed, as described below. Current law
provides the right to a jury trial if demanded by the individual sought to be protected or
his or her attorney or guardian ad litem. The court must require a comprehensive
evaluation of the individual, and the individual has the right to secure an independent
evaluation as provided in s. 55.11 (2).
Extension of Temporary Protective Placement in a Dementia Crisis Unit
Under the bill, the order for temporary placement in the dementia crisis unit may
be extended for 60 days beyond the initial 45-day temporary placement period if certain
requirements are met. A petition for extension of the temporary placement must be filed
prior to the hearing on the petition for permanent protective placement. If the court
orders permanent protective placement of the individual, the hearing on the petition for
extension is held immediately after that order is issued. If the court does not order
permanent protective placement of the individual, the petition for extension must be
dismissed. If requested, a jury trial must be held. Allegations similar to those required
to be proven at the probable cause hearing must be proven. The court must also appoint
2 examiners, as is required for involuntary commitments under ch. 51, to examine the
individual and provide a report to the court before the hearing or trial. The court may
order an extension for a period of not more than 60 days.
Subsequent Extensions of Temporary Protective Placement in an
Dementia Crisis Unit
