1995 - 1996 LEGISLATURE
March 22, 1995 - Introduced by Senators Rosenzweig, Rude, Panzer, Buettner,
Darling, Schultz
and Huelsman, cosponsored by Representatives Ourada,
Bock, Robson, Schneiders, Meyer, Goetsch, Urban, Krug, Hahn, Gronemus,
Owens, Brandemuehl
and Lehman. Referred to Committee on Health, Human
Services and Aging.
SB119,1,4 1An Act to amend 51.20 (7) (d), 51.61 (1) (g) 4., 51.67, 880.01 (7m), 971.14 (3) (dm)
2and 971.16 (3) of the statutes; relating to: modifying the standards for
3incompetency to refuse medication or treatment and to refuse psychotropic
4medication.
Analysis by the Legislative Reference Bureau
Currently, certain patient rights apply to individuals who receive services for
mental illness, developmental disability, alcoholism or drug dependency. These
individuals include persons who are: voluntarily admitted to treatment facilities;
detained on an emergency basis; detained prior to a probable cause hearing to
determine if the individual is a proper subject for treatment and is dangerous;
involuntarily civilly committed and recommitted; conditionally transferred between
treatment facilities or from a treatment facility to the community; involuntarily
committed for emergency treatment for alcoholism or involuntarily committed for
alcoholism; and, in criminal trials, committed after the individual has been bound
over for trial or found guilty and found incompetent or committed after a finding has
been made that the individual is not guilty by reason of mental disease or defect.
Among these patient rights is the right to refuse medication or treatment except as
ordered by a court or in a situation in which the medication or treatment is necessary
to prevent serious physical harm to the patient or others. However, a court may order
that an individual be administered medication or treatment involuntarily under the
following situations:
1. At or after a hearing to determine probable cause for the individual's
commitment but prior to the final commitment order, if the court determines that
there is probable cause to believe that the individual is not competent to refuse
medication or treatment and that the medication or treatment will have therapeutic
value and will not unreasonably impair the ability of the individual to prepare for
or participate in subsequent legal proceedings.

2. Following a final commitment order, if the court determines that the
individual is not competent to refuse medication or treatment.
3. After a court has found that it is probable that a defendant committed the
offense charged, after a defendant has been bound over for trial or after a finding of
guilty has been rendered by a jury or made by a court, if reason to doubt the
defendant's competency arises.
4. When a defendant is found not guilty by reason of mental disease or defect
and the state proves by clear and convincing evidence that the person is not
competent to refuse medication or treatment.
Also, a court may order that an individual be administered psychotropic
medication involuntarily if the court determines after a hearing that there is
probable cause to believe that an individual is a fit subject for guardianship and
protective placement or services and that unless the protective services, including
psychotropic medication, are provided, 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, as evidenced by at least 2 previous
episodes.
For the purpose of these court determinations, the standard for incompetency
to refuse medication or treatment is that, because of mental illness, developmental
disability, alcoholism or drug dependence, the individual is incapable of expressing
an understanding of the advantages and disadvantages of accepting medication or
treatment, and the alternatives to accepting the particular medication or treatment
offered, after the advantages, disadvantages and alternatives have been explained
to the individual. The standard for incompetency to refuse psychotropic medication
is similar: that, because of chronic mental illness, an individual is incapable of
expressing an understanding of the advantages and disadvantages of accepting
treatment, and the alternatives to accepting the particular treatment offered, after
the advantages, disadvantages and alternatives have been explained to the
individual.
This bill changes one of the standards for incompetency to refuse medication or
treatment to require that the individual in question be incapable of expressing an
understanding of the advantages and disadvantages of accepting treatment as the
treatment applies to his or her mental illness, developmental disability, alcoholism
or drug dependence. The bill similarly changes one of the standards for
incompetency to refuse psychotropic medication to require that the individual be
incapable of expressing an understanding of the advantages and disadvantages of
accepting treatment as the treatment applies to his or her chronic mental illness.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB119, s. 1 1Section 1. 51.20 (7) (d) of the statutes is amended to read:
SB119,3,19
151.20 (7) (d) If the court determines after hearing that there is probable cause
2to believe that the subject individual is a fit subject for guardianship and protective
3placement or services, the court may, without further notice, appoint a temporary
4guardian for the subject individual and order temporary protective placement or
5services under ch. 55 for a period not to exceed 30 days, and shall proceed as if
6petition had been made for guardianship and protective placement or services. If the
7court orders only temporary protective services for a subject individual under this
8paragraph, the individual shall be provided care only on an outpatient basis. The
9court may order psychotropic medication as a temporary protective service under
10this paragraph if it finds that there is probable cause to believe that the allegations
11under s. 880.07 (1m) (c) and (cm) apply, that the individual is not competent to refuse
12psychotropic medication and that the medication ordered will have therapeutic
13value and will not unreasonably impair the ability of the individual to prepare for
14and participate in subsequent legal proceedings. An individual is not competent to
15refuse psychotropic medication if, because of chronic mental illness, the individual
16is incapable of expressing an understanding of the advantages and disadvantages of
17accepting treatment as the treatment applies to his or her chronic mental illness, and
18the alternatives to accepting the particular treatment offered, after the advantages,
19disadvantages and alternatives have been explained to the individual.
SB119, s. 2 20Section 2. 51.61 (1) (g) 4. of the statutes is amended to read:
SB119,4,321 51.61 (1) (g) 4. For purposes of a determination under subd. 2. or 3., an
22individual is not competent to refuse medication or treatment if, because of mental
23illness, developmental disability, alcoholism or drug dependence, the individual is
24incapable of expressing an understanding of the advantages and disadvantages of
25accepting medication or treatment as the medication or treatment applies to his or

1her mental illness, developmental disability, alcoholism or drug dependence
, and the
2alternatives to accepting the particular medication or treatment offered, after the
3advantages, disadvantages and alternatives have been explained to the individual.
SB119, s. 3 4Section 3. 51.67 of the statutes is amended to read:
SB119,5,4 551.67 Alternate procedure; protective services. If, after hearing under
6s. 51.13 (4) or 51.20, the court finds that commitment under this chapter is not
7warranted and that the subject individual is a fit subject for guardianship and
8protective placement or services, the court may, without further notice, appoint a
9temporary guardian for the subject individual and order temporary protective
10placement or services under ch. 55 for a period not to exceed 30 days. The court may
11order psychotropic medication as a temporary protective service under this section
12if it finds that there is probable cause to believe the individual is not competent to
13refuse psychotropic medication and that the medication ordered will have
14therapeutic value and will not unreasonably impair the ability of the individual to
15prepare for and participate in subsequent legal proceedings. An individual is not
16competent to refuse psychotropic medication if, because of chronic mental illness, the
17individual is incapable of expressing an understanding of the advantages and
18disadvantages of accepting treatment as the treatment applies to his or her chronic
19mental illness
, and the alternatives to accepting the particular treatment offered,
20after the advantages, disadvantages and alternatives have been explained to the
21individual. If the court orders temporary protective placement for an individual
22under the age of 22 years in a center for the developmentally disabled, this placement
23may be made only at the central center for the developmentally disabled unless the
24department authorizes the placement or transfer to the northern or southern center
25for the developmentally disabled. Any interested party may then file a petition for

1permanent guardianship or protective placement or services, including medication,
2under ch. 55. If the individual is in a treatment facility, the individual may remain
3in the facility during the period of temporary protective placement if no other
4appropriate facility is available.
SB119, s. 4 5Section 4. 880.01 (7m) of the statutes is amended to read:
SB119,5,116 880.01 (7m) "Not competent to refuse psychotropic medication" means that,
7because of chronic mental illness, as defined in s. 51.01 (3g), a person is incapable
8of expressing an understanding of the advantages and disadvantages of accepting
9treatment as the treatment applies to his or her chronic mental illness, and the
10alternatives to accepting the particular treatment offered, after the advantages,
11disadvantages and alternatives have been explained to the person.
SB119, s. 5 12Section 5. 971.14 (3) (dm) of the statutes is amended to read:
SB119,5,2313 971.14 (3) (dm) If sufficient information is available to the examiner to reach
14an opinion, the examiner's opinion on whether the defendant needs medication or
15treatment and whether the defendant is not competent to refuse medication or
16treatment for the defendant's mental condition. The defendant is not competent to
17refuse medication or treatment if, because of mental illness, developmental
18disability, alcoholism or drug dependence, the defendant is incapable of expressing
19an understanding of the advantages and disadvantages of accepting medication or
20treatment as the medication or treatment applies to his or her mental illness,
21developmental disability, alcoholism or drug dependence
, and the alternatives to
22accepting the particular medication or treatment offered, after the advantages,
23disadvantages and alternatives have been explained to the defendant.
SB119, s. 6 24Section 6. 971.16 (3) of the statutes is amended to read:
SB119,6,20
1971.16 (3) Not less than 10 days before trial, or at any other time that the court
2directs, any physician or psychologist appointed under sub. (2) shall file a report of
3his or her examination of the defendant with the judge, who shall cause copies to be
4transmitted to the district attorney and to counsel for the defendant. The contents
5of the report shall be confidential until the physician or psychologist has testified or
6at the completion of the trial. The report shall contain an opinion regarding the
7ability of the defendant to appreciate the wrongfulness of the defendant's conduct or
8to conform the defendant's conduct with the requirements of law at the time of the
9commission of the criminal offense charged and, if sufficient information is available
10to the physician or psychologist to reach an opinion, his or her opinion on whether
11the defendant needs medication or treatment and whether the defendant is not
12competent to refuse medication or treatment for the defendant's mental condition.
13The defendant is not competent to refuse medication or treatment if, because of
14mental illness, developmental disability, alcoholism or drug dependence, the
15defendant is incapable of expressing an understanding of the advantages and
16disadvantages of accepting medication or treatment as the medication or treatment
17applies to his or her mental illness, developmental disability, alcoholism or drug
18dependence
, and the alternatives to accepting the particular medication or
19treatment offered, after the advantages, disadvantages and alternatives have been
20explained to the defendant.
SB119,6,2121 (End)
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