SB197: Bill Text

LRB-2109/1

GMM:kaf:kat

1997 - 1998 LEGISLATURE

1997 Senate BILL 197

May 7, 1997 - Introduced by Senators Rosenzweig, Huelsman, Roessler, Panzer, Farrow, Zien, Schultz and Drzewiecki, cosponsored by Representatives Gard, Walker, Albers, Brandemuehl, Ainsworth, Ziegelbauer, Powers, Lazich, F. Lasee, Musser, M. Lehman, Ladwig, Harsdorf, Goetsch, Gunderson, Schafer, Ott, Hahn, Owens, Huebsch and Sykora. Referred to Committee on Health, Human Services, Aging, Corrections, Veterans and Military Affairs.

SB197,1,9 An Act to repeal 51.13 (1) (b), 51.13 (2) (b) and (d) and (3) (b), 51.13 (4) (g) 1. and 51.13 (7) (title), (a) and (b); to renumber and amend 51.13 (7) (c); to amend 51.13 (1) (a), 51.13 (1) (c), 51.13 (1) (d), 51.13 (1) (e), 51.13 (2) (a), 51.13 (3) (c), 51.13 (3) (e), 51.13 (4) (a) (intro.), 51.13 (4) (c), 51.13 (4) (d), 51.13 (4) (g) (intro.), 51.13 (6) (a), 51.14 (3) (a), 51.14 (3) (b) 3., 51.14 (3) (b) 4., 51.14 (3) (g), 51.14 (3) (h) (intro.), 51.14 (4) (a), 51.14 (4) (b), 51.14 (4) (c), 51.14 (4) (g) (intro.), 51.20 (16) (a), 51.22 (2), 51.30 (5) (a), 51.30 (5) (b) 1., 51.30 (5) (b) 2., 51.35 (3) (a), 51.35 (3) (b), 51.35 (3) (g) and 51.61 (6); and to create 51.46 of the statutes; relating to: mental health treatment of minors

Analysis by the Legislative Reference Bureau

Under current law, the Mental Health Act distinguishes between minors under 14 years of age and minors 14 years of age or over with regard to giving informed consent for treatment for mental illness, developmental disability, alcoholism or drug dependence (mental health treatment), voluntary admission to and discharge from an inpatient facility for mental health treatment, reexamination under or modification or cancellation of an involuntary commitment order, transfers from a juvenile secured correctional facility to an inpatient facility for mental health treatment and access and consent to the release of court records and treatment records. This bill eliminates the distinction between a minor under 14 years of age and a minor 14 years of age or over with regard to those areas of the Mental Health Act.

Specifically, under current law, subject to certain exceptions, before a minor may receive mental health treatment, the written, informed consent of the minor's parent or guardian is required. If, however, the minor is 14 years of age or over, the written, informed consent of the minor is also required, subject to certain exceptions. This bill eliminates the requirement that a minor 14 years of age or over provide his or her written, informed consent, in addition to that of his or her parent or guardian, before he or she may receive mental health treatment.

Under current law, subject to certain exceptions, before a minor may be admitted voluntarily to an inpatient facility for mental health treatment, the minor's parent who has legal custody of the minor or the minor's guardian must execute an application for voluntary admission to the facility. If, however, the minor is 14 years of age or over, the minor must also execute the application for voluntary admission to the facility. This bill eliminates the requirement that a minor 14 years of age or over execute the application for voluntary admission to an inpatient facility, along with his or her parent or guardian, before the minor may be admitted to the facility.

Under current law, if a minor 14 years of age or over wishes to be admitted to an inpatient facility, but the minor's parent who has legal custody of the minor or the minor's guardian refuses to execute the application for admission or cannot be found, the minor may petition the court assigned to exercise jurisdiction under the children's code (juvenile court) for approval of the admission. This bill permits a minor under 14 years of age to petition the juvenile court for approval of his or her admission to an inpatient facility if the minor's parent or guardian refuses to execute the application for admission or cannot be found.

Under current law, a minor 14 years of age or over who is voluntarily admitted to an inpatient facility may request that he or she be discharged from the facility and, subject to certain exceptions, must be discharged within 48 hours after submission of the request. A minor under 14 years of age, however, may be discharged on his or her request only after a hearing before the juvenile court to determine the continued appropriateness of the admission. This bill eliminates the requirement that a minor 14 years of age or over who has been voluntarily admitted to an inpatient facility be discharged within 48 hours after his or her request and instead requires the juvenile court to hold a hearing on such a request to determine the continued appropriateness of the admission, as is the case for minors under 14 years of age under current law.

Under current law, a minor 14 years of age or over, but not a minor under 14 years of age, who has been involuntarily committed for mental health treatment may petition the juvenile court for an order that his or her mental condition be reexamined or for an order modifying or cancelling his or her commitment. This bill eliminates the right of a minor 14 years of age or over to petition for such a reexamination, modification or cancellation.

Under current law, a minor may be transferred from a juvenile secured correctional facility to an inpatient facility if the juvenile court finds that the transfer is appropriate and consistent with the needs of the minor and, if the minor is 14 years of age or over, that the transfer is voluntary on the part of the minor. This bill eliminates the requirement that a minor 14 years of age or over must consent to being transferred from a juvenile correctional facility to an inpatient facility. Under the bill, only the minor's parent or guardian need consent, as is the case for minors under 14 years of age under current law.

Under current law, a minor 14 years of age or over may have access to his or her court records and treatment records on the same basis as an adult, but a minor under 14 years of age may have access to his or her court records only in the presence of his or her parent, guardian, counsel, guardian ad litem or a judge and a minor under 14 years of age may have access to his or her treatment records only in the presence of his or her parent, guardian, counsel, guardian ad litem or a staff member of the treatment facility. This bill permits a minor 14 years of age or over to have access to his or her court records or treatment records only in the presence of a person whose presence is required under current law for a minor under 14 years of age.

Under current law, subject to certain exceptions, confidential information in a minor's court records or treatment records may be released only on the consent of the minor's parent, guardian or person in the place of a parent, except that if the minor is 14 years of age or over, the minor may consent to the release of such information without the consent of his or her parent, guardian or person in place of a parent. This bill eliminates the right of a minor 14 years of age or over to consent to the release of confidential information in his or her court records or treatment records without the consent of his or her parent, guardian or person in place of a parent.

Finally, the bill permits a minor's parent or guardian to consent to have the minor tested for drugs or alcohol without the consent of the minor.

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:

SB197, s. 1 Section 1. 51.13 (1) (a) of the statutes is amended to read:

SB197,3,7 51.13 (1) (a) Except as provided in s. 51.45 (2m), the application for voluntary admission of a minor who is under 14 years of age to an approved inpatient treatment facility shall be executed by a parent who has legal custody of the minor or the minor's guardian. Any statement or conduct by a minor under the age of 14 indicating that the minor does not agree to admission to the facility shall be noted on the face of the application and shall be noted in the petition required by sub. (4).

SB197, s. 2 Section 2. 51.13 (1) (b) of the statutes is repealed.

SB197, s. 3 Section 3. 51.13 (1) (c) of the statutes is amended to read:

SB197,4,17 51.13 (1) (c) If a minor 14 years of age or older wishes to be admitted to an approved inpatient treatment facility but a parent with legal custody or the guardian refuses to execute the application for admission or cannot be found, or if there is no parent with legal custody, the minor or a person acting on the minor's behalf may petition the court assigned to exercise jurisdiction under chs. 48 and 938 in the county of residence of the parent or guardian for approval of the admission. A copy of the petition and a notice of hearing shall be served upon the parent or guardian at his or her last-known address. If, after a hearing, the court determines that the parent parent's or guardian's consent is unreasonably withheld or, that the parent or guardian cannot be found or that there is no parent with legal custody, and that the admission is proper under the standards prescribed in sub. (4) (d), it shall approve the minor's admission without the parent parent's or guardian's consent. The court may, at the minor's request, temporarily approve the admission pending hearing on the petition. If a hearing is held under this subsection, no review or hearing under sub. (4) is required.

SB197, s. 4 Section 4. 51.13 (1) (d) of the statutes is amended to read:

SB197,4,24 51.13 (1) (d) A minor against whom a petition or statement has been filed under s. 51.15, 51.20 or 51.45 (12) or (13) may be admitted under this section. The court may permit the minor to become a voluntary patient pursuant to this section upon approval by the court of an application executed pursuant to par. (a), (b) or (c), and the judge shall then dismiss the proceedings under s. 51.15, 51.20 or 51.45. If a hearing is held under this subsection, no hearing under sub. (4) is required.

SB197, s. 5 Section 5. 51.13 (1) (e) of the statutes is amended to read:

SB197,5,11 51.13 (1) (e) A minor may be admitted immediately upon the approval of the application executed under par. (a) or (b) by the treatment director of the facility or his or her designee or, in the case of a center for the developmentally disabled, the director of the center or his or her designee, and the director of the appropriate county department under s. 51.42 or 51.437 if such the county department is to be responsible for the cost of the minor's therapy and treatment. Approval shall be based upon an informed professional opinion that the minor is in need of psychiatric services or services for developmental disability, alcoholism or drug abuse, that the treatment facility offers inpatient therapy or treatment which is appropriate for the minor's needs and that inpatient care in the facility is the least restrictive therapy or treatment consistent with the minor's needs.

SB197, s. 6 Section 6. 51.13 (2) (a) of the statutes is amended to read:

SB197,5,19 51.13 (2) (a) A minor may be admitted to an inpatient treatment facility without complying with the requirements of this section if the admission does not involve the department or a county department under s. 51.42 or 51.437, or a contract between a treatment facility and the department or between a treatment facility and a county department. The application for voluntary admission of a minor who is 14 years of age or over shall be executed by the minor and a parent who has legal custody of the minor or the minor's guardian.

SB197, s. 7 Section 7. 51.13 (2) (b) and (d) and (3) (b) of the statutes are repealed.

SB197, s. 8 Section 8. 51.13 (3) (c) of the statutes is amended to read:

SB197,5,25 51.13 (3) (c) A minor under 14 years of age and his or her parent or guardian shall also be informed by the director or his or her designee, both orally and in writing, in easily understandable language, of the minor's right to a hearing to determine continued appropriateness of the admission as provided in sub. (7).

SB197, s. 9 Section 9. 51.13 (3) (e) of the statutes is amended to read:

SB197,6,5 51.13 (3) (e) Writing materials for use in requesting a hearing or discharge under this section shall be made available to minors at all times by every inpatient treatment facility. The staff of each such facility shall assist minors in preparing and submitting requests for discharge or hearing hearings.

SB197, s. 10 Section 10. 51.13 (4) (a) (intro.) of the statutes is amended to read:

SB197,6,14 51.13 (4) (a) (intro.) Within 3 days of after the admission of a minor under sub. (1), or within 3 days of after application for admission of the minor, whichever occurs first, the treatment director of the facility to which the minor is admitted or, in the case of a center for the developmentally disabled, the director of the center, shall file a verified petition for review of the admission in the court assigned to exercise jurisdiction under chs. 48 and 938 in the county in which the facility is located. A copy of the application for admission and of any relevant professional evaluations shall be attached to the petition. The petition shall contain all of the following:

SB197, s. 11 Section 11. 51.13 (4) (c) of the statutes is amended to read:

SB197,6,17 51.13 (4) (c) A copy of the petition shall be provided by the petitioner to the minor and his or her parents or guardian within 5 days of after admission.

SB197, s. 12 Section 12. 51.13 (4) (d) of the statutes is amended to read:

SB197,7,15 51.13 (4) (d) Within 5 days of after the filing of the petition, the court assigned to exercise jurisdiction under chs. 48 and 938 shall determine, based on the allegations of the petition and accompanying documents, whether the admission is voluntary on the part of the minor if the minor is 14 years of age or older and whether there is a prima facie showing that the minor is in need of psychiatric services, or services for developmental disability, alcoholism or drug abuse, that the treatment facility offers inpatient therapy or treatment which is appropriate to the minor's needs, and that inpatient care in the treatment facility is the least restrictive therapy or treatment consistent with the needs of the minor. If such a showing is made, the court shall permit voluntary admission. If the court is unable to make such those determinations based on the petition and accompanying documents, it shall the court may dismiss the petition as provided in par. (h); or order additional information to be produced as it deems necessary for the court to make such review, and make such those determinations within 14 days of after admission or application for admission, whichever is sooner; or it may hold a hearing within 14 days of after admission or application for admission, whichever is sooner. If a notation of the minor's unwillingness appears on the face of the petition, or if a hearing has been requested by the minor, the minor's counsel, parent or guardian, the court shall hold a hearing to review the admission within 14 days of after admission or application for admission, whichever is sooner, and shall appoint counsel to represent the minor if the minor is unrepresented. If the court deems considers it necessary, it the court shall also appoint a guardian ad litem to represent the minor.

SB197, s. 13 Section 13. 51.13 (4) (g) (intro.) of the statutes is amended to read:

SB197,8,6 51.13 (4) (g) (intro.) If the court finds that the minor is in need of psychiatric services, or services for developmental disability, alcoholism or drug abuse in an inpatient facility, and that the inpatient facility to which the minor is admitted offers therapy or treatment which that is appropriate for the minor's needs and which that is the least restrictive therapy or treatment consistent with the minor's needs and, in the case of a minor aged 14 or older, the application is voluntary on the part of the minor, it, the court shall permit voluntary admission. If the court finds that the therapy or treatment in the inpatient facility to which the minor is admitted is not appropriate or is not the least restrictive therapy or treatment consistent with the minor's needs, the court may order placement in or transfer to another more appropriate or less restrictive inpatient facility, except that the court may not permit or order placement in or transfer to the northern or southern centers for the developmentally disabled of a minor unless the department gives approval for the placement or transfer, and if the order of the court is approved by all of the following if applicable:

SB197, s. 14 Section 14. 51.13 (4) (g) 1. of the statutes is repealed.

SB197, s. 15 Section 15. 51.13 (6) (a) of the statutes is amended to read:

SB197,8,16 51.13 (6) (a) A minor may be admitted to an inpatient treatment facility without review of the application under sub. (4) for diagnosis and evaluation or for dental, medical or psychiatric services for a period not to exceed 12 days. The application for short-term admission of a minor shall be executed by the minor's parent or guardian, and by the minor if he or she is 14 years of age or older. A minor may not be readmitted to an inpatient treatment facility for psychiatric services under this paragraph within 120 days of after a previous admission under this paragraph.

SB197, s. 16 Section 16. 51.13 (7) (title), (a) and (b) of the statutes are repealed.

SB197, s. 17 Section 17. 51.13 (7) (c) of the statutes is renumbered 51.13 (7) and amended to read:

SB197,9,14 51.13 (7) (title) Court hearing Continued appropriateness of admission. Any minor under 14 years of age who is voluntarily admitted under this section may submit a written request to the court for a hearing to determine the continued appropriateness of the admission. If the director or staff of the inpatient treatment facility to which a minor under the age of 14 is admitted observes conduct by the minor which demonstrates an unwillingness to remain at the facility, including but not limited to a written expression of opinion or unauthorized absence, the director shall file a written request with the court to determine the continued appropriateness of the admission. A request which that is made personally by a minor under this paragraph subsection shall be signed by the minor but need not be written or composed by him or her. A request for a hearing under this paragraph which subsection that is received by staff or the director of the facility in which the child minor is admitted shall be filed with the court by the director. The court shall order a hearing upon request if no hearing concerning the minor's admission has been held within 120 days of receipt of before the request is received. The court shall appoint counsel and, if the court deems considers it necessary, a guardian ad litem to represent the minor and if. If a hearing is held, the court shall hold the hearing within 14 days of after the request, unless the parties agree to a longer period. After the hearing, the court shall make disposition dispose of the matter in the manner provided in sub. (4).

SB197, s. 18 Section 18. 51.14 (3) (a) of the statutes is amended to read:

SB197,9,20 51.14 (3) (a) Either a A minor 14 years of age or older or his or her parent or guardian may petition the mental health review officer in the county in which the parent or guardian has residence for a review of a refusal of either the minor or his or her parent or guardian to provide the informed consent for outpatient mental health treatment required under s. 51.61 (6).

SB197, s. 19 Section 19. 51.14 (3) (b) 3. of the statutes is amended to read:

SB197,9,23 51.14 (3) (b) 3. The facts substantiating the petitioner's minor's belief that the minor he or she needs outpatient mental health treatment.

SB197, s. 20 Section 20. 51.14 (3) (b) 4. of the statutes is amended to read:

SB197,10,4 51.14 (3) (b) 4. Any available information which substantiates the appropriateness of the particular treatment sought for by the minor and that the particular treatment sought is the least restrictive treatment consistent with the needs of the minor.

SB197, s. 21 Section 21. 51.14 (3) (g) of the statutes is amended to read:

SB197,10,11 51.14 (3) (g) Within 21 days after the filing of a petition under this subsection, the mental health review officer shall hold a hearing on the refusal of the minor or the minor's parent or guardian to provide informed consent for outpatient treatment. The mental health review officer shall provide notice of the date, time and place of the hearing to the minor and the minor's parent or guardian at least 96 hours prior to the hearing.

SB197, s. 22 Section 22. 51.14 (3) (h) (intro.) of the statutes is amended to read:

SB197,10,20 51.14 (3) (h) (intro.) If following the hearing under par. (g) and after taking into consideration the recommendations, if any, of the county department under s. 51.42 or 51.437 made under par. (e), the mental health review officer finds all of the following, he or she shall issue a written order that, notwithstanding the written, informed consent requirement of s. 51.61 (6), the written, informed consent of the minor, if the minor is refusing to provide consent, or the written, informed consent of the minor's parent or guardian, if the parent or guardian is refusing to provide consent, is not required for outpatient mental health treatment for the minor:

SB197, s. 23 Section 23. 51.14 (4) (a) of the statutes is amended to read:

SB197,11,3 51.14 (4) (a) Within 21 days after the issuance of the order by the mental health review officer under sub. (3) or if the requirements of sub. (3) (f) are satisfied, the minor or his or her parent or guardian may petition a court assigned to exercise jurisdiction under ch. chs. 48 and 938 in the county of residence of the minor's parent or guardian for a review of the refusal of either the minor or his or her the parent or guardian to provide the informed consent for outpatient mental health treatment required under s. 51.61 (6).

SB197, s. 24 Section 24. 51.14 (4) (b) of the statutes is amended to read:

SB197,11,7 51.14 (4) (b) The petition in par. (a) shall conform to the requirements set forth in sub. (3) (b). If the minor has refused to provide informed consent, a notation of this fact shall be made on the face of the petition.

SB197, s. 25 Section 25. 51.14 (4) (c) of the statutes is amended to read:

SB197,11,15 51.14 (4) (c) If a notation of a minor's refusal to provide informed consent to outpatient mental health treatment appears on the petition, the court shall, at least 7 days prior to the time scheduled for the hearing, appoint counsel to represent the minor if the minor is unrepresented. If the minor's parent or guardian has refused to provide informed consent and the minor is unrepresented, the court shall appoint counsel to represent the minor, if requested by the minor or determined by the court to be in the best interests of the minor.

SB197, s. 26 Section 26. 51.14 (4) (g) (intro.) of the statutes is amended to read: