LRB-1983/1
TJD:wlj
2017 - 2018 LEGISLATURE
October 16, 2017 - Introduced by Representatives Jagler, Genrich, Berceau,
Bernier, Born, R. Brooks, Edming, Goyke, Hintz, Horlacher, Kolste,
Loudenbeck, Mason, Pope, Quinn, Riemer, Ripp, Stuck, Tittl, VanderMeer,
Zepnick, Tusler and Spiros, cosponsored by Senators Cowles, Ringhand,
Bewley, Harsdorf, Olsen and Shilling. Referred to Committee on Mental
Health.
AB538,1,5 1An Act to renumber and amend 51.15 (2); to amend 48.207 (1) (h), 48.207 (1m)
2(d), 51.15 (2) (title), 51.15 (4m) (c), 51.15 (5), 51.15 (11), 51.15 (11g), 51.20 (16)
3(e), 322.0767 (1) (e), 322.0767 (1) (f), 938.207 (1) (h), 971.14 (6) (b) and 971.17
4(3) (e); and to create 51.15 (2) (b), 51.17 and 146.816 (2) (b) 4. of the statutes;
5relating to: transfer for emergency detention and warning of dangerousness.
Analysis by the Legislative Reference Bureau
Generally, this bill prohibits the transfer of an individual from a hospital's
emergency department for emergency detention until a hospital employee or medical
staff member determines the transfer is medically appropriate. The bill also
specifies the actions that satisfy the duty to warn of the dangerousness of a person,
and provides immunity from civil and criminal liability for actions taken in good
faith to warn of dangerousness.
Transportation to detention facility
Under current law, a law enforcement officer or certain other persons may take
an individual into custody for purposes of emergency detention if the officer or other
person has cause to believe that the individual is mentally ill, drug dependent, or
developmentally disabled, and that the individual shows any of the following: 1) a
substantial probability of physical harm to himself or herself; 2) a substantial
probability of physical harm to other persons; 3) a substantial probability of physical
impairment or injury to himself or herself due to impaired judgment; or 4) due to

mental illness, the inability to satisfy certain basic needs. The individual may not
be detained by the officer or other person and the facility for more than a total of 72
hours after the individual is taken into custody for the purposes of emergency
detention. The county department of community programs must approve the need
for detention and may not do so unless a psychiatrist, psychologist, or other mental
health professional has performed a crisis assessment on the individual and agrees
with the need for detention and the county department believes the individual will
not voluntarily consent to evaluation, diagnosis, and treatment. Under the bill, if an
individual is in a hospital's emergency department, the law enforcement officer or
other person may not transport the individual for detention until a hospital employee
or medical staff member who is treating the individual determines that the transfer
of the individual to the detention facility is medically appropriate.
Duty to warn
The bill specifies that a health care provider fulfills any duty to warn by taking
any of the following actions: contacting law enforcement or the relevant county
department and disclosing knowledge of potential evidence of the individual's
substantial probability of harm, approving the emergency detention of the
individual if the health care provider is in the position to do so, and taking any other
action that a reasonable health care provider would consider as fulfilling the duty
to warn a third party of substantial probability of harm. The bill explicitly allows any
health care provider and any law enforcement officer to disclose information that an
individual poses a substantial probability of serious bodily harm to another person
in a good faith effort to prevent or lessen a serious and imminent threat to the health
or safety of a person or the public. Under the bill, any person who discloses
information evidencing substantial probability of serious bodily harm or a health
care provider who takes one of the actions that fulfill a duty to warn is not civilly or
criminally liable for actions taken in good faith. The bill explicitly exempts from the
state's requirements for confidentiality of patient health information the good faith
disclosure of protected patient health information made in an effort to prevent or
lessen a serious and imminent threat to the health and safety of a person or the
public.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB538,1 1Section 1. 48.207 (1) (h) of the statutes is amended to read:
AB538,2,32 48.207 (1) (h) A place listed specified in s. 51.15 (2) (d) if the child is held under
3s. 48.20 (5).
AB538,2 4Section 2. 48.207 (1m) (d) of the statutes is amended to read:
AB538,3,2
148.207 (1m) (d) A place listed specified in s. 51.15 (2) (d) if the adult expectant
2mother is held under s. 48.203 (4).
AB538,3 3Section 3. 51.15 (2) (title) of the statutes is amended to read:
AB538,3,44 51.15 (2) (title) Facilities for detention; transport; approval.
AB538,4 5Section 4. 51.15 (2) of the statutes is renumbered 51.15 (2) (a) and amended
6to read:
AB538,3,127 51.15 (2) (a) The Subject to par. (b), the law enforcement officer or other person
8authorized to take a child into custody under ch. 48 or to take a juvenile into custody
9under ch. 938 shall transport the individual, or cause him or her to be transported,
10for detention, if the county department of community programs in the county in
11which the individual was taken into custody approves the need for detention, and for
12evaluation, diagnosis, and treatment if permitted under sub. (8).
AB538,3,22 13(c) The county department may approve the detention only if a physician who
14has completed a residency in psychiatry, a psychologist licensed under ch. 455, or a
15mental health professional, as determined by the department, has performed a crisis
16assessment on the individual and agrees with the need for detention and the county
17department reasonably believes the individual will not voluntarily consent to
18evaluation, diagnosis, and treatment necessary to stabilize the individual and
19remove the substantial probability of physical harm, impairment, or injury to
20himself, herself, or others. For purposes of this subsection paragraph, a crisis
21assessment may be conducted in person, by telephone, or by telemedicine or video
22conferencing technology.
AB538,3,25 23(d) Detention under this section may only be in a treatment facility approved
24by the department or the county department, if the facility agrees to detain the
25individual, or a state treatment facility.
AB538,5
1Section 5. 51.15 (2) (b) of the statutes is created to read:
AB538,4,72 51.15 (2) (b) If an individual is in a hospital's emergency department, the law
3enforcement officer or other person as described under par. (a) may not transport the
4individual for detention until a hospital employee or medical staff member who is
5treating the individual determines that the transfer of the individual to the
6detention facility is medically appropriate and communicates that determination to
7the law enforcement officer or other person.
AB538,6 8Section 6. 51.15 (4m) (c) of the statutes is amended to read:
AB538,4,129 51.15 (4m) (c) Facilities for detention. The treatment director or treatment
10director designee shall transport the individual, or cause him or her to be
11transported, for detention to any of the facilities described in sub. (2) (d) and shall
12approve evaluation, diagnosis, and treatment if permitted under sub. (8).
AB538,7 13Section 7. 51.15 (5) of the statutes is amended to read:
AB538,5,914 51.15 (5) Detention procedure; other counties. In counties having a
15population of less than 750,000, the law enforcement officer or other person
16authorized to take a child into custody under ch. 48 or to take a juvenile into custody
17under ch. 938 shall sign a statement of emergency detention that shall provide
18detailed specific information concerning the recent overt act, attempt, or threat to
19act or omission on which the belief under sub. (1) is based and the names of persons
20observing or reporting the recent overt act, attempt, or threat to act or omission. The
21law enforcement officer or other person is not required to designate in the statement
22whether the subject individual is mentally ill, developmentally disabled, or drug
23dependent, but shall allege that he or she has cause to believe that the individual
24evidences one or more of these conditions. The statement of emergency detention
25shall be filed by the officer or other person with the detention facility at the time of

1admission, and with the court immediately thereafter. The filing of the statement
2has the same effect as a petition for commitment under s. 51.20. When, upon the
3advice of the treatment staff, the director of a facility specified in sub. (2) (d)
4determines that the grounds for detention no longer exist, he or she shall discharge
5the individual detained under this section. Unless a hearing is held under s. 51.20
6(7) or 55.135, the subject individual may not be detained by the law enforcement
7officer or other person and the facility for more than a total of 72 hours after the
8individual is taken into custody for the purposes of emergency detention, exclusive
9of Saturdays, Sundays, and legal holidays.
AB538,8 10Section 8. 51.15 (11) of the statutes is amended to read:
AB538,5,1911 51.15 (11) Liability. Any individual who acts in accordance with this section,
12including making a determination that an individual has or does not have mental
13illness or evidences or does not evidence a substantial probability of harm under sub.
14(1) (ar) 1., 2., 3., or 4. or a determination under sub. (2) (b) that the transfer of an
15individual is medically appropriate
, is not liable for any actions taken in good faith.
16The good faith of the actor shall be presumed in any civil action. Whoever asserts
17that the individual who acts in accordance with this section has not acted in good
18faith has the burden of proving that assertion by evidence that is clear, satisfactory
19and convincing.
AB538,9 20Section 9. 51.15 (11g) of the statutes is amended to read:
AB538,5,2421 51.15 (11g) Other liability. Subsection (11) applies to a director of a facility,
22as specified in sub. (2) (d), or his or her designee, who under a court order evaluates,
23diagnoses or treats an individual who is confined in a jail, if the individual consents
24to the evaluation, diagnosis or treatment.
AB538,10 25Section 10. 51.17 of the statutes is created to read:
AB538,6,2
151.17 Warning of dangerousness. (1) Definition. In this section, “health
2care provider” has the meaning given in s. 146.81 (1).
AB538,6,7 3(2) Authorization. Any health care provider, as permitted by s. 146.816 (2) (b)
44., and any law enforcement officer may make a disclosure of information evidencing
5that an individual poses a substantial probability of serious bodily harm to any other
6person in a good faith effort to prevent or lessen a serious and imminent threat to the
7health or safety of a person or the public.
AB538,6,11 8(3) Duty; health care providers. (a) Any health care provider that reasonably
9believes an individual has a substantial probability of harm to himself or herself or
10to another person under s. 51.15 (1) (ar) 1., 2., 3., or 4. fulfills any duty to warn a 3rd
11party by doing any of the following:
AB538,6,1412 1. Contacting a law enforcement officer regarding the individual and disclosing
13knowledge of potential evidence of a substantial probability of harm under s. 51.15
14(1) (ar) 1., 2., 3., or 4.
AB538,6,1815 2. Contacting the county department that the health care provider reasonably
16believes is responsible for approving the need for emergency detention of the
17individual under s. 51.15 (2) and disclosing knowledge of potential evidence of a
18substantial probability of harm under s. 51.15 (1) (ar) 1., 2., 3., or 4.
AB538,6,2319 3. If the health care provider is an agent of the county department that is
20responsible for approving the need for emergency detention under s. 51.15 (2) and
21is authorized by that county department to approve or disapprove the need for
22emergency detention under s. 51.15 (2), approving the emergency detention of the
23individual.
AB538,6,2524 4. Taking any other action that a reasonable health care provider would
25consider as fulfilling the duty to warn a 3rd party of substantial probability of harm.
AB538,7,7
1(b) If an individual is not in custody of a facility under s. 51.15 (3) and is not
2voluntarily admitted to a inpatient psychiatric unit, a health care provider that takes
3any of the actions under par. (a) has no further duty to any person to seek involuntary
4treatment, emergency detention, emergency stabilization, or commitment of the
5individual; to physically restrain or isolate the individual; to prevent the individual
6from leaving the hospital; or to provide treatment or medication without the
7individual's consent.
AB538,7,12 8(4) Liability. Any person or health care provider that acts in accordance with
9this section is not civilly or criminally liable for actions taken in good faith. The good
10faith of the actor shall be presumed in a civil action. Whoever asserts that the
11individual who acts in accordance has not acted in good faith has the burden of
12proving that assertion by evidence that is clear, satisfactory, and convincing.
AB538,11 13Section 11. 51.20 (16) (e) of the statutes is amended to read:
AB538,7,1714 51.20 (16) (e) If the court determines or is required to hold a hearing, it shall
15thereupon proceed in accordance with sub. (9) (a). For the purposes of the
16examination and observation, the court may order the patient confined in any place
17designated in s. 51.15 (2) (d).
AB538,12 18Section 12. 146.816 (2) (b) 4. of the statutes is created to read:
AB538,7,2119 146.816 (2) (b) 4. For purposes of disclosing information about a patient in a
20good faith effort to prevent or lessen a serious and imminent threat to the health or
21safety of a person or the public.
AB538,13 22Section 13. 322.0767 (1) (e) of the statutes is amended to read:
AB538,8,223 322.0767 (1) (e) If the court-martial determines under par. (a) or (d) that the
24person is not likely to become competent to proceed, the court-martial may order
25that the person be delivered to a facility under s. 51.15 (2) (d), an approved public

1treatment facility under s. 51.45 (2), or an appropriate medical or protective
2placement facility.
Loading...
Loading...