Establishing standards and procedures for use of and periodic review of the use of psychotropic drugs on inmates in a county jail or house of correction who are being treated in the jail or house of correction under a commitment based on a petition under sub. (1) (a)
Providing for the periodic review and evaluation of the appropriateness of and the need for the use of psychotropic drugs on, and the need for the continuation of treatment for, each inmate committed under sub. (1) (ar)
History: 1975 c. 430
; 1977 c. 26
; 1977 c. 187
; 1977 c. 428
; 1977 c. 447
; Sup. Ct. Order, 83 Wis. 2d xiii; 1979 c. 32
; Sup. Ct. Order, eff. 1-1-80; 1979 c. 110
s. 60 (1)
; 1979 c. 175
; 1979 c. 300
; 1981 c. 20
; 1981 c. 390
; 1983 a. 27
; 1983 a. 474
; 1985 a. 29
, 3200 (56)
, 3202 (56)
; 1985 a. 139
; 1987 a. 27
; Sup. Ct. Order, 141 Wis. 2d xiii (1987); 1987 a. 366
; 1989 a. 31
; 1993 a. 98
; 1995 a. 77
; Sup. Ct. Order No. 96-08
, 207 Wis. 2d xv (1997); 1997 a. 35
; 1999 a. 83
; 2001 a. 16
; 2001 a. 38
; 2003 a. 33
; 2005 a. 22
; 2007 a. 20
; 2009 a. 137
; 2013 a. 20
; 2015 a. 195
; 2017 a. 34
See also s. DOC 314.01
, Wis. adm. code.
NOTE: 1987 Wis. Act 366
, which amended this section, contains notes by the Legislative Council following many of the statutes affected.
NOTE: 1987 Wis. Act 394
, which affected this section, contains a prefatory note and notes following the sections.
Judicial Council Committee's Note, 1981: The final sentence of sub. (1) (am) allows the court to consider the subject individual's conduct during or subsequent to the crime as “recent" for purposes of involuntary civil commitment under this section, if the individual is proceeded against during, or immediately upon discharge from, a commitment for examination or treatment for incompetency to proceed as a criminal defendant. The relevancy of evidence of the individual's conduct prior to the crime is to be determined by the court. The revised statute requires the subject individual's dangerousness to be evidenced by acts, attempts, threats, omissions or behavior referred to in sub. (1) (a) 2. Prior law allowed commitment of such an individual upon a showing that there was a substantial likelihood, based on the treatment record, that he or she would be a proper subject for commitment if treatment were withdrawn. [Bill 765-A]
Judicial Council Note, 1988: The amendment to sub. (2) allows notice of hearings to be given by telephone. The time at which such notice is given and the person to whom it is given must be noted in the case file. [Re Order effective Jan. 1, 1988]
Appointed counsel has the same function, duties, and responsibilities as an attorney retained by the person involved as that person's attorney. The duties include preserving the confidences and secrets of a client, exercising independent professional judgment on behalf of the client, representing the client competently, and representing the client zealously within the bounds of the law. State ex rel. Memmel v. Mundy, 75 Wis. 2d 276
, 249 N.W.2d 573
The due process standard for hearings under this section is more flexible than the standard for criminal proceedings. In Matter of Parham, 95 Wis. 2d 21
, 289 N.W.2d 326
(Ct. App. 1979).
The 14-day time limit in sub. (7) (c) is mandatory and refers to calendar days, not business days. State ex rel. Lockman v. Gerhardstein, 107 Wis. 2d 325
, 320 N.W.2d 27
(Ct. App. 1982).
A person may be a proper subject for treatment even though a cure is unlikely. In Matter of Mental Condition of C.J. 120 Wis. 2d 355
, 354 N.W.2d 219
(Ct. App. 1984).
The 45-day limit in sub. (13) (g) 2. applies only to an original commitment order and does not bar subsequent extensions of the order. In Matter of M.J. 122 Wis. 2d 525
, 362 N.W.2d 190
(Ct. App. 1984).
The use of telephone testimony by physicians did not a violate the petitioner's due process rights. In Matter of W.J.C. 124 Wis. 2d 238
, 369 N.W.2d 162
(Ct. App. 1985).
Hearings under sub. (12) are open unless the court grants the subject individual's motion for closure. Wisconsin State Journal v. Circuit Court for Dane County, 131 Wis. 2d 515
, 389 N.W.2d 73
(Ct. App. 1986).
An individual's counsel may not withdraw a jury demand without the individual's consent. In Matter of S.B., 138 Wis. 2d 409
, 406 N.W.2d 408
Sub. (13) (c) 2. does not permit the committing court to specify a treatment method in addition to the facility. In Matter of J.R.R. 145 Wis. 2d 431
, 427 N.W.2d 137
(Ct. App. 1988).
Under sub. (13) (g) 3. an individual has a right to a jury trial in proceedings to extend a commitment. In Matter of Mental Condition of G.O.T. 151 Wis. 2d 629
, 445 N.W.2d 697
(Ct. App. 1989).
There is a bright-line rule prohibiting a circuit court from accepting petitions drafted by persons not authorized to do so under sub. (4). In Matter of S.P.B. 159 Wis. 2d 393
, 464 N.W.2d 102
(Ct. App. 1990).
The services of appointed counsel for non-indigent individuals in civil commitment hearing should be paid for by the county. State ex. rel. Chiarkas v. Skow, 160 Wis. 2d 123
, 465 N.W.2d 625
The assurance of representation by adversary counsel under sub. (3) does not preclude self-representation when a waiver of counsel is knowingly and competently made. In Matter of Condition of S.Y. 162 Wis. 2d 320
, 469 N.W.2d 836
The sub. (16) (c) provision for a hearing on a petition within 30 days of filing is directory and violation is not grounds for release. State v. R.R.E. 162 Wis. 2d 698
, 470 N.W.2d 283
When a recommitment hearing under sub. (13) (g) 3. is before the same judge who conducted the original commitment proceeding, a request for substitution under s. 801.58 is not allowed. Serocki v. Circuit Court for Clark County, 163 Wis. 2d 152
, 471 N.W.2d 49
Sub. (15) does not authorize the appeal of a court commissioner's order to the court of appeals; proper review is a new hearing by the circuit court. In Matter of Mental Condition of C.M.B. 165 Wis. 2d 703
, 478 N.W.2d 385
An involuntary commitment may not be ordered on summary judgment. Matter of Mental Condition of Shirley J.C. 172 Wis. 2d 371
, 493 N.W.2d 382
(Ct. App. 1992).
A probable cause determination made by a court commissioner under sub. (7) may be reviewed by the circuit court, but nothing gives the subject a right to review. Factors to consider in deciding whether to grant review are discussed. Milwaukee County v. Louise M. 205 Wis. 2d 162
, 555 N.W.2d 807
The 14-day deadline under sub. (7) (c) is subject to reasonable extension when the need for the extension is caused solely by the conduct and manipulation of the detained subject. County of Milwaukee v. Edward S. 2001 WI App 169
, 247 Wis. 2d 87
, 633 N.W.2d 241
By expressing the time requirement in sub. (7) (a) in terms of hours rather than days, the legislature manifested its intent that the clock start running immediately “after the individual arrives at the facility," rather than the next day. The “exclude-the-first-day" rule of s. 990.001 (4) (a) and (d) does not apply in the context of this section under which 72 hours means 72 hours. Matter of the Mental Commitment of Ryan E. M. 2002 WI App 71
, 252 Wis. 2d 490
, 642 N.W.2d 592
Sub. (1) (a) 2. e. is constitutional. It does not: 1) allow involuntary commitment upon a finding of mental illness alone and contains an ascertainable standard of commitment, and thus is not vague or overbroad; 2) create a class of persons who can be involuntarily committed upon a finding of mere mental or emotional harm, and thus does not violate equal protection; and 3) violate substantive due process because the constitution does not require proof of imminent physical harm prior to commitment for treatment. State v. Dennis H. 2002 WI 104
, 255 Wis. 2d 359
, 647 N.W.2d 851
Sub. (1) (a) 2. e. may be used to involuntarily commit persons with dual diagnoses of mental illness and either drug dependency or developmental disability. The plain meaning of “these services" in sub. (1) (a) 2. e. includes medication. The ch. 55 exclusion in sub. (1) (a) 2. e. includes an individual who is already subject to an order for protective placement or services, if there is another placement or additional services available under ch. 55 that would be effective in reducing the probability of the requisite harm to less than a substantial probability. This exclusion may apply to an individual who is not yet subject to a ch. 55 order but who is eligible for one. Involuntary administration of medication under s. 55.14 may be one of the additional services that would satisfy this exclusion, if the guardian consents and depending on the individual's circumstances. Dane County v. Kelly M. 2011 WI App 69
, 333 Wis. 2d 719
, 798 N.W.2d 697
Rehabilitation is a necessary element of treatment under ch. 51. Because there are no techniques that can be employed to bring about rehabilitation from Alzheimer's disease, an individual with the disease cannot be rehabilitated. Accordingly, an Alzheimer's patient is not a proper subject for ch. 51 treatment. Fond du Lac County v. Helen E. F. 2012 WI 50
, 340 Wis. 2d 500
, 814 N.W.2d 179
The availability of a non-unanimous 6-person jury in a commitment trial under this section does not violate equal protection. Chapter 980 committees are subject to increased liberty restraints when compared to ch. 51 committees. The legislative decision to allow the added protection of a 12-person unanimous jury in ch. 980 commitment trials, but not in ch. 51 commitment trials, is rationally related to different treatment needs and differing levels of dangerousness that s. 51.20 and ch. 980 seek to address, as well as stricter rules concerning confinement in ch. 980. Milwaukee County v. Mary F.-R., 2013 WI 92
, 351 Wis. 2d 273
, 839 N.W.2d 581
The state has a compelling interest in providing care and assistance to those who suffer from a mental disorder. The state's interest in caring for and assisting individuals who suffer from mental illness is particularly strong in the context of a prison because an inmate must rely on prison authorities to treat his or her medical needs; if the authorities fail to do so, those needs will not be met. Sub. (1) (ar) is facially constitutional because it is reasonably related to the state's legitimate interest in providing care and assistance to inmates suffering from mental illness. Winnebago County v. Christopher S. 2016 WI 1
, 366 Wis. 2d 1
, 878 N.W.2d 109
“Treatment," in the context of a “proper subject of treatment" within the meaning of sub. (1) carries a specialized meaning. As set forth in s. 51.01 (17), “treatment” comprises “those psychological, educational, social, chemical, medical or somatic techniques designed to bring about rehabilitation of a mentally ill, alcoholic, drug dependent or developmentally disabled person.” Waukesha County v. J.W.J. 2017 WI 57
, 375 Wis. 2d 542
, 895 N.W.2d 783
“Rehabilitation,” as used in s. 51.01 (17), addresses the control of symptoms. It comprises treatment going beyond custodial care to affect the disease and symptoms. But rehabilitation is not synonymous with cure. A symptom is an expression of the disorder at work within the patient. Rehabilitation refers to improving the patient's condition through ameliorating endogenous factors such as symptoms and behaviors. If a treatment controls symptoms to such a degree that withdrawing it would subject the patient to a more restrictive treatment alternative, then the treatment controls enough symptoms to establish the patient has rehabilitative potential. Waukesha County v. J.W.J. 2017 WI 57
, 375 Wis. 2d 542
, 895 N.W.2d 783
The grant of a statutory right to counsel under sub. (3) is a grant of a right to effective assistance of counsel. The applicable standard for evaluating a claim of ineffective assistance of counsel is the two-prong standard announced in
, 466 U.S. 668
. A movant must demonstrate that 1) counsel's performance was deficient and 2) the movant was prejudiced by counsel's deficient performance. Winnebago County v. J.M. 2018 WI 37
, 381 Wis. 2d 28
, 911 N.W.2d 41
A corporation counsel has discretion to refuse to file a petition for examination after receiving signed statements under oath that meet the requirements contained in sub. (1) if the corporation counsel determines that it is not in the interests of the public to file the petition. A good faith discretionary determination on the part of the corporation counsel that the filing of a petition for examination would not be in the interests of the public is not susceptible to challenge in a mandamus action. OAG 4-10
Under sub. (2), a court can entertain proceedings for involuntary commitment of a person admitted as a voluntary inpatient. 68 Atty. Gen. 97.
Sub. (14) requires a sheriff to transport the subject of a petition under s. 51.20 at all stages of the proceedings, regardless of reimbursement. 68 Atty. Gen. 225.
An individual in the custody of a sheriff for transport to, from, and during an involuntary commitment hearing has rights to the least restrictive restraint appropriate. 71 Atty. Gen. 183
The duties and obligations of a corporation counsel in involuntary civil commitment proceedings under this chapter are discussed. 79 Atty. Gen. 129
Under sub. (14), the director of the county department under s. 51.42 or 51.437 may request the sheriff of the county in which an individual was placed under emergency detention to transport that individual to another designated inpatient facility prior to the initial court hearing under ch. 51, and the sheriff must do so within a reasonable time. 80 Atty. Gen. 299
The state cannot confine, without more, nondangerous persons capable of surviving safely in freedom alone or with help from family or friends. O'Connor v. Donaldson, 422 U.S. 563
Due process does not require states to use the “beyond a reasonable doubt" standard in civil commitment proceedings. Addington v. Texas, 441 U.S. 418
In signing a commitment application, a county employee was in essence acting as a witness in a judicial proceeding and as such was entitled to immunity. Martens v. Tremble, 481 F. Supp. 831
Persons confined in a state hospital under ss. 51.20, 51.37, 971.14, 971.17 and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325
Beyond Overt Violence: Wisconsin's Progressive Civil Commitment Statute as a Marker of a New Era in Mental Health Law. Erickson, Vitacco, and Van Rybroek, 89 MLR 359 (2005).
The privilege against self-incrimination in civil commitment proceedings. 1980 WLR 697.
Care and custody of persons. 51.22(1)(1)
Except as provided in s. 51.20 (13) (a) 4.
, any person committed under this chapter shall be committed to the county department under s. 51.42
serving the person's county of residence, and such county department shall authorize placement of the person in an appropriate facility for care, custody and treatment according to s. 51.42 (3) (as) 1r.
or 51.437 (4rm) (a)
Except for admissions that do not involve the department or a county department under s. 51.42
or a contract between a treatment facility and the department or a county department, admissions under ss. 51.10
, and 51.45 (10)
shall be through the county department under s. 51.42
serving the person's county of residence, or through the department if the person to be admitted is a nonresident of this state. Admissions through a county department under s. 51.42
shall be made in accordance with s. 51.42 (3) (as) 1r.
or 51.437 (4rm) (a)
. Admissions through the department shall be made in accordance with sub. (3)
Whenever an admission is made through the department, the department shall determine the need for inpatient care of the individual to be admitted. Unless a state-operated facility is used, the department may only authorize care in an inpatient facility which is operated by or under a purchase of service contract with a county department under s. 51.42
or an inpatient facility which is under a contractual agreement with the department. Except in the case of state treatment facilities, the department shall reimburse the facility for the actual cost of all authorized care and services from the appropriation under s. 20.435 (5) (da)
. For collections made under the authority of s. 46.10 (16)
, moneys shall be credited or remitted to the department no later than 60 days after the month in which collections are made. Such collections are also subject to s. 46.036
or special agreement. Collections made by the department under ss. 46.03 (18)
shall be deposited in the general fund.
If a patient is placed in a facility authorized by a county department under s. 51.42
and the placement is outside the jurisdiction of that county department under s. 51.42
, the placement does not transfer the patient's residence to the county of the facility's location while such patient is under commitment or placement.
The board to which a patient is committed shall provide the least restrictive treatment alternative appropriate to the patient's needs, and movement through all appropriate and necessary treatment components to assure continuity of care.
The standard for determining whether the state has adequately protected a patient's rights is whether professional judgment was in fact exercised. Youngberg v. Romeo, 457 U.S. 307
In this section:
“Registration records" include all the records of the department, county departments under s. 51.42
, treatment facilities, and other persons providing services to the department, county departments, or treatment facilities, that are created in the course of providing services to individuals for mental illness, developmental disabilities, alcoholism, or drug dependence.
“Treatment records" include the registration and all other records that are created in the course of providing services to individuals for mental illness, developmental disabilities, alcoholism, or drug dependence and that are maintained by the department; by county departments under s. 51.42
and their staffs; by treatment facilities; or by psychologists licensed under s. 455.04 (1)
or licensed mental health professionals who are not affiliated with a county department or treatment facility. Treatment records do not include notes or records maintained for personal use by an individual providing treatment services for the department, a county department under s. 51.42
, or a treatment facility, if the notes or records are not available to others.
(2) Informed consent.
An informed consent for disclosure of information from court or treatment records to an individual, agency, or organization must be in writing and must contain the following: the name of the individual, agency, or organization to which the disclosure is to be made; the name of the subject individual whose treatment record is being disclosed; the purpose or need for the disclosure; the specific type of information to be disclosed; the time period during which the consent is effective; the date on which the consent is signed; and the signature of the individual or person legally authorized to give consent for the individual.
Except as provided in pars. (b)
, and (d)
, the files and records of the court proceedings under this chapter shall be closed but shall be accessible to any individual who is the subject of a petition filed under this chapter.
An individual's attorney or guardian ad litem and the corporation counsel shall have access to the files and records of the court proceedings under this chapter without the individual's consent and without modification of the records in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals, or other actions relating to detention, admission, or commitment under this chapter or ch. 971
, or 980
Authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney shall have access to the files and records of court proceedings under this chapter for use in the prosecution of any proceeding or any evaluation conducted under ch. 980
, if the files or records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under ch. 980
is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under ch. 980
The files and records of court proceedings under this chapter may be released to other persons with the informed written consent of the individual, pursuant to lawful order of the court which maintains the records or under s. 51.20 (13) (cv) 4.
The department of corrections shall have access to the files and records of court proceedings under this chapter concerning an individual required to register under s. 301.45
. The department of corrections may disclose information that it obtains under this paragraph as provided under s. 301.46
(4) Access to registration and treatment records. 51.30(4)(a)(a) Confidentiality of records.
Except as otherwise provided in this chapter and ss. 118.125 (4)
, 610.70 (3)
, all treatment records shall remain confidential and are privileged to the subject individual. Such records may be released only to the persons designated in this chapter or ss. 118.125 (4)
, 610.70 (3)
, or to other designated persons with the informed written consent of the subject individual as provided in this section. This restriction applies to elected officials and to members of boards appointed under s. 51.42 (4) (a)
or 51.437 (7) (a)
Access without informed written consent.
Notwithstanding par. (a)
, treatment records of an individual may be released without informed written consent in the following circumstances, except as restricted under par. (c)
To an individual, organization or agency designated by the department or as required by law for the purposes of management audits, financial audits, or program monitoring and evaluation. Information obtained under this paragraph shall remain confidential and shall not be used in any way that discloses the names or other identifying information about the individual whose records are being released. The department shall promulgate rules to assure the confidentiality of such information.
To the department, the director of a county department under s. 51.42
, or a qualified staff member designated by the director as is necessary for, and only to be used for, billing or collection purposes. Such information shall remain confidential. The department and county departments shall develop procedures to assure the confidentiality of such information.
For purposes of research as permitted in s. 51.61 (1) (j)
if the research project has been approved by the department and the researcher has provided assurances that the information will be used only for the purposes for which it was provided to the researcher, the information will not be released to a person not connected with the study under consideration, and the final product of the research will not reveal information that may serve to identify the individual whose treatment records are being released under this subsection without the informed written consent of the individual. Such information shall remain confidential. In approving research projects under this subsection, the department shall impose any additional safeguards needed to prevent unwarranted disclosure of information.
To qualified staff members of the department, to the director of the county department under s. 51.42
which is responsible for serving a subject individual or to qualified staff members designated by the director as is necessary to determine progress and adequacy of treatment, to determine whether the person should be transferred to a less restrictive or more appropriate treatment modality or facility or for the purposes of s. 51.14
. Such information shall remain confidential. The department and county departments under s. 51.42
shall develop procedures to assure the confidentiality of such information.
Within the treatment facility where the subject individual is receiving treatment confidential information may be disclosed to individuals employed, individuals serving in bona fide training programs or individuals participating in supervised volunteer programs, at the facility when and to the extent that performance of their duties requires that they have access to such information.
Within the department to the extent necessary to coordinate treatment for mental illness, developmental disabilities, alcoholism or drug abuse of individuals who have been committed to or who are under the supervision of the department. The department shall promulgate rules to assure the confidentiality of such information.
For treatment of the individual in a medical emergency, to a health care provider who is otherwise unable to obtain the individual's informed consent because of the individual's condition or the nature of the medical emergency. Disclosure under this subdivision shall be limited to that part of the records necessary to meet the medical emergency.
In this subdivision, “diagnostic test results" means the results of clinical testing of biological parameters, but does not mean the results of psychological or neuropsychological testing.
To a health care provider, or to any person acting under the supervision of the health care provider who is involved with an individual's care, if necessary for the current treatment of the individual. Information that may be released under this subdivision is limited to the individual's name, address, and date of birth; the name of the individual's provider of services for mental illness, developmental disability, alcoholism, or drug dependence; the date of any of those services provided; the individual's medications, allergies, diagnosis, diagnostic test results, and symptoms; and other relevant demographic information necessary for the current treatment of the individual.
To appropriate persons in accordance with s. 980.031 (4)
and to authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney for use in the prosecution of any proceeding or any evaluation conducted under ch. 980
, if the treatment records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under ch. 980
is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subdivision. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this subdivision for any purpose consistent with any proceeding under ch. 980
To a facility which is to receive an individual who is involuntarily committed under this chapter, ch. 48
, or 975
upon transfer of the individual from one treatment facility to another. Release of records under this subdivision shall be limited to such treatment records as are required by law, a record or summary of all somatic treatments, and a discharge summary. The discharge summary may include a statement of the patient's problem, the treatment goals, the type of treatment which has been provided, and recommendation for future treatment, but it may not include the patient's complete treatment record. The department shall promulgate rules to implement this subdivision.
To a correctional facility or to a probation, extended supervision and parole agent who is responsible for the supervision of an individual who is receiving inpatient or outpatient evaluation or treatment under this chapter in a program that is operated by, or is under contract with, the department or a county department under s. 51.42
, or in a treatment facility, as a condition of the probation, extended supervision and parole supervision plan, or whenever such an individual is transferred from a state or local correctional facility to such a treatment program and is then transferred back to the correctional facility. Every probationer, parolee or person on extended supervision who receives evaluation or treatment under this chapter shall be notified of the provisions of this subdivision by the individual's probation, extended supervision and parole agent. Release of records under this subdivision is limited to: