AB809: Bill Text

LRB-4558/2

JEO:cmh:km

1999 - 2000 LEGISLATURE

1999 Assembly BILL 809

February 29, 2000 - Introduced by Representative Huebsch, cosponsored by Senator George, by request of Department of Health and Family Services. Referred to Committee on Judiciary and Personal Privacy.

AB809,1,7 An Act to amend 6.30 (4), 51.61 (1) (intro.), 980.065 (1m), 980.065 (2), 980.08 (1), 980.08 (6m), 980.09 (1) (c) and 980.09 (2) (c); and to create 6.10 (7m), 51.30 (4) (b) 25., 801.02 (8), 905.04 (4) (j) and 980.066 of the statutes; relating to: policies concerning treatment and conduct of persons detained during a sexually violent person commitment proceeding and persons committed for treatment after being found to be a sexually violent person and granting rule-making authority.

Analysis by the Legislative Reference Bureau

This bill makes changes in the statutory rights afforded to persons detained or committed under the sexually violent person law. Current law and the changes made by this bill are described in more detail below.

Current law

Current law provides a procedure for involuntarily committing sexually violent persons to the department of health and family services (DHFS) for control, care and treatment. A sexually violent person is a person who has committed certain sexually violent offenses and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.

A procedure for the involuntary commitment of a sexually violent person is begun by the filing of a petition that alleges that the person is a sexually violent person. The petition must be filed shortly before the person is going to be released from confinement that resulted from the commission of a sexually violent offense. The court in which the petition is filed must review the petition and decide whether to detain the person in a facility approved by DHFS pending a trial to determine whether the person is a sexually violent person. If, after the trial, a person is found by a judge or jury to be a sexually violent person, the person must be committed to the custody of DHFS and placed in institutional care.

A person detained pending trial or placed in institutional care under the sexually violent person law has the same patient rights accorded under the mental health statutes to other persons who have been civilly committed for mental health treatment. Among these patient rights are the following:

1) A right to refuse all medication and treatment. This right, however, may be denied in a situation in which the medication or treatment is necessary to prevent serious physical harm to the patient or to others or when a court has found that the individual is not competent to refuse medication or treatment either because the individual is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives to medication or treatment or because the individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness in order to make an informed choice as to whether to accept or refuse medication or treatment.

2) A right to be free from physical restraint and isolation except for emergency situations or when isolation or restraint is a part of a treatment program. Generally, isolation or restraint may be used only when less restrictive measures are ineffective or not feasible, must be used for the shortest time possible, and, when used, are subject to frequent period review. However, patients at the maximum security facility at the Mendota Mental Health Institute may, under certain specified conditions, be locked in their rooms during the night shift, during each change of shift by staff and when needed for security purposes during certain emergencies, such an escape or attempted escape.

3) A right not to be subjected to experimental research without the express and informed consent of the patient and of the patient's guardian, after consultation with independent specialists and the patient's legal counsel, and a right not to be subjected to electroconvulsive treatment or certain drastic treatment procedures, such as psychosurgery, without the express and informed consent of the patient after consultation with his or her counsel and legal guardian, if any.

4) A right not to be filmed or taped without the informed and voluntary consent of the patient, except that certain patients may generally be filmed or taped for security purposes without informed consent.

5) A right to access to a telephone to make and receive telephone calls, within reasonable limits, and a right to be permitted to see visitors each day.

6) A right to use and wear his or her own clothing and personal articles and to use his or her money as he or she chooses.

7) A right to present grievances under a grievance procedure that DHFS must establish to assure that these rights are protected and enforced (except that certain institutions, such as Mendota Mental Health Institute, establish their own grievance procedures).

The patient rights guaranteed under current law may be denied for cause after review by the director of the facility in which the patient is residing and may be denied for medical or therapeutic reasons, as documented by the patient's physician or licensed psychologist in the patient's treatment record. The patient may have the withdrawal of the right reviewed by using an informal hearing procedure or the established grievance procedure or by bringing a civil action for an injunction or money damages.

What this bill does

This bill provides that a person who has been detained pending a trial in a sexually violent person proceeding or who has been committed to institutional care after being found to be a sexually violent person is not subject to the patient rights provisions of the mental health statutes. Instead, the bill requires DHFS to establish and implement policies relating to treatment for and conduct of these persons.

Under the bill, the policies established and implemented by DHFS may provide for distinct management levels that are based on a person's treatment needs, on the person's participation in treatment and conduct, on the management and security needs of the facility at which a person is detained or placed and on other relevant factors, as determined by DHFS. Except as noted below, instead of guaranteeing a specific set of rights that may be denied for cause or for medical reasons, as current law does, the management levels may differ from each other as to the responsibilities required of, and the institution privileges allowed to, a person assigned to the management level. The assignment of a person to a particular management level must be based on the assessment of a qualified professional.

The bill specifies that the policies established and implemented by DHFS may provide for a person to be assigned to a management level that allows additional institution privileges if the person complies with the policies relating to conduct and participates in and completes prescribed treatment or any part or phase of prescribed treatment. Likewise, the policies may provide for a person to be assigned to a management level that limits or denies institution privileges if the person violates any policy relating to conduct or fails or refuses to participate in or complete prescribed treatment or any part or phase of prescribed treatment. The limitation or denial of institution privileges may not be for the purpose of punishment and must be reasonably related to the person's treatment needs, to the security or management needs of the facility, or to the safety of others. The institution privileges that may be granted or denied based on a person's management level include liberty to move around the facility, visitation privileges, access to and use of personal property, receipt and sending of mail, receipt and making of telephone calls, and time to engage in exercise or other recreation or leisure activities. The bill specifies also that the policies may provide for the use of physical restraint and isolation for purposes relating to a person's treatment, to protect persons from physical harm, and to provide security while transporting a person to or from a facility, and during night shift, shift changes and emergencies.

The policies established under the bill must also provide certain rights to persons detained or committed to institutional care under the sexually violent person law, including the right to refuse psychotropic medication except in an emergency situation or when a court has determined, under the same standard provided under current law (see item 1 under Current law, above), that a person is not competent to refuse psychotropic medication, and the right not to be subjected, without the person's informed written consent, to drastic treatment procedures, such as psychosurgery or electroconvulsive therapy, or to experimental treatment or research that involves the use of any drug, ingested substance, surgical procedure or other drastic or extreme behavior modification techniques.

The bill also requires DHFS to establish a system by which a person may file a grievance concerning the policies or an action taken under the policies. The grievance system must be in writing and may provide for an informal process for resolving grievances, a formal process for resolving grievances in cases in which the informal process fails to resolve grievances, and a process to appeal to the director of the unit or facility a decision made as part of any formal process for resolving grievances. A person may not commence any kind of civil action relating to conditions in the facility in which he or she is detained or committed until he or she has first gone through the grievance process established by DHFS.

Finally, the bill provides that a person who has been detained or committed to institutional care under the sexually violent person law is not deemed incompetent to manage his or her affairs, to contract, to hold professional, occupational or motor vehicle operator's licenses, to marry or to obtain a divorce, to vote, to make a will or to exercise any other civil right solely by reason of his or her detention or commitment. However, the policies relating to treatment and conduct that are established and implemented under the bill may limit the exercise of a civil right by a person or may require the person to obtain the approval of DHFS before exercise of a civil right, if the limitation or the requirement for approval is not for the purpose of punishment and is reasonably related to the person's treatment needs, to the security of the facility or unit in which the person has been placed or to the safety of others. With respect to the right of a person to vote, the bill specifically provides that the person's residence as an elector is to be determined based on his or her residence at the time he or she committed the sexually violent offense that was the basis for the petition that initiated the sexually violent person commitment proceeding and that the person is presumed to intend to return to that residence unless he or she presents information that indicates that he or she would not be likely to return to that residence if released from detention or institutional care.

For further information see the state 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:

AB809, s. 1 Section 1. 6.10 (7m) of the statutes is created to read:

AB809,5,11 6.10 (7m) The residence of a person who is detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care shall be determined by applying the standard specified in sub. (1) to the facts that existed on the date that the person committed the sexually violent offense that resulted in the sentence, placement or commitment that was in effect when the petition against the person was filed under s. 980.02 and by considering the person's residence at the place where the person resided on the date of that sexually violent offense to be prima facie evidence of intent to return to that place. The prima facie evidence of intent to return to a place may be rebutted by presenting information that indicates that the person would not be likely to return to that place if the person is released from detention or institutional care.

AB809, s. 2 Section 2. 6.30 (4) of the statutes is amended to read:

AB809,6,2 6.30 (4) By mail. Any eligible elector who is located not more than 50 miles from his or her legal voting residence or any person who is detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care may register by mail on a form prescribed by the board and provided by each municipality. The form shall be designed to obtain the information required in ss. 6.33 (1) and 6.40 (1) (a) and (b). The form shall contain a certification by the elector that all statements are true and correct. The form shall be prepostpaid for return when mailed at any point within the United States, and. The form shall be signed by a special registration deputy, or shall be signed and substantiated by one other elector residing in the same municipality in which the registering elector resides or, in the case of a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care, by a designated employe of the department of health and family services, corroborating all material statements therein. The form shall be available in the municipal clerk's office and may be distributed by any elector of the municipality. The clerk shall mail a registration form to any elector upon written or oral request.

AB809, s. 3 Section 3. 51.30 (4) (b) 25. of the statutes is created to read:

AB809,6,8 51.30 (4) (b) 25. To a law enforcement agency, as defined in s. 165.83 (1) (b), for the purpose of investigating a criminal offense. Records released under this subdivision are limited to records concerning a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care that are relevant to the investigation of the offense.

AB809, s. 4 Section 4. 51.61 (1) (intro.) of the statutes is amended to read:

AB809,7,2 51.61 (1) (intro.) In this section, "patient" means any individual who is receiving services for mental illness, developmental disabilities, alcoholism or drug dependency, including any individual who is admitted to a treatment facility in accordance with this chapter or ch. 48 or 55 or who is detained, committed or placed under this chapter or ch. 48, 55, 971, or 975 or 980, or who is transferred to a treatment facility under s. 51.35 (3) or 51.37 or who is receiving care or treatment for those conditions through the department or a county department under s. 51.42 or 51.437 or in a private treatment facility. "Patient" does not include persons committed under ch. 975 who are transferred to or residing in any state prison listed under s. 302.01 or persons detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care. In private hospitals and in public general hospitals, "patient" includes any individual who is admitted for the primary purpose of treatment of mental illness, developmental disability, alcoholism or drug abuse but does not include an individual who receives treatment in a hospital emergency room nor an individual who receives treatment on an outpatient basis at those hospitals, unless the individual is otherwise covered under this subsection. Except as provided in sub. (2), each patient shall:

AB809, s. 5 Section 5. 801.02 (8) of the statutes is created to read:

AB809,7,9 801.02 (8) No person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care may commence a civil action or special proceeding, including a petition for a writ of certiorari, with respect to conditions in the facility in which he or she has been detained or committed until the person has exhausted all available administrative remedies provided by the grievance system established under s. 980.066 (6).

AB809, s. 6 Section 6. 905.04 (4) (j) of the statutes is created to read:

AB809,7,16 905.04 (4) (j) Investigation of crimes; sexually violent persons. There is no privilege under this section as to a communication made by or information concerning a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care if the communication or information is relevant to the investigation of a criminal offense by a law enforcement agency, as defined in s. 165.83 (1) (b), and is contained in a record released under s. 51.30 (4) (b) 25.

AB809, s. 7 Section 7. 980.065 (1m) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

AB809,7,23 980.065 (1m) The department shall place If a person is committed under s. 980.06 and placed in institutional care, the department shall place the person at the secure mental health facility established under s. 46.055, the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2).

AB809, s. 8 Section 8. 980.065 (2) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

AB809,8,7 980.065 (2) The department may contract with the department of corrections for the provision of a secure mental health unit or facility for persons committed under s. 980.06 and placed in institutional care. The department shall operate a secure mental health unit or facility provided by the department of corrections under this subsection and shall promulgate rules governing the custody and discipline of persons placed by the department in the secure mental health unit or facility provided by the department of corrections under this subsection.

AB809, s. 9 Section 9. 980.066 of the statutes is created to read:

AB809,9,5 980.066 Policies concerning treatment and conduct of detained and committed persons. (1g) Legislative purpose. The legislature finds that patients detained under s. 980.04 (1) or committed under s. 980.06 for control, care and treatment have different needs for control, care and treatment from other civilly committed patients. There are significant clinical differences between patients detained or committed under this chapter and other civilly committed patients. Patients detained or committed under this chapter are less vulnerable and more dangerous as a population than other civilly committed patients. The special treatment needs of patients detained or committed under this chapter conflict with the patient rights provided under s. 51.61. The type of symptomology and behaviors displayed by patients detained or committed under this chapter is better treated in an environment of therapeutic levels and strict monitoring of institution privileges. When patients detained or committed under this chapter are introduced into an environment where they immediately receive a full range of institution privileges and patient rights, they are more likely to engage in manipulative and predatory behaviors. This undermines the treatment goals for patients detained or committed under this chapter and could contribute to an increased recidivism rate. The purpose of this section is to provide a therapeutic setting for the control, care and treatment of patients detained or committed under this chapter that is safe and secure, that prevents acts of victimization through abuse of patient rights and institution privileges and that promotes progress in treatment so that the patient becomes less likely to engage in acts of sexual violence in the future.

AB809,9,12 (1r) Definition. In this section, "institution privileges" include liberty to move around a facility or a unit within a facility, visitation privileges, access to and use of personal property, including clothing, money, bank accounts and televisions, radios and other entertainment devices, access to reading material, receipt and sending of mail, receipt and making of telephone calls, time to engage in exercise or other recreation or leisure activities, and any other activity that may affect institutional security or the treatment or safety of a detained or committed person.

AB809,9,25 (2) Policies relating to treatment and conduct. Subject to sub. (3), the department shall establish and implement policies relating to treatment for and conduct of persons who have been detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care. The policies may provide for distinct management levels that are based on a person's treatment needs, on the person's participation in treatment and conduct, on the management and security needs of the facility at which a person is detained or placed and on other relevant factors, as determined by the department. The management levels may differ from each other as to the responsibilities required of, and the institution privileges allowed to, a person assigned to the management level, except that institution privileges may not be limited to the extent that the limitations would violate the constitutional rights of persons who have been detained under s. 980.04 (1) or committed under s. 980.06 and placed in institution care. If the policies provide for distinct management levels, the policies shall also provide that a person's assignment to a particular management level shall be based on the assessment of a qualified professional. The policies may also provide for all of the following:

AB809,10,7 (a) That for the purpose of determining the management level at which the person is to be placed, a person may be assigned to a management level that provides the minimum institution privileges allowed by the constitution for the time period reasonably required to complete the assessment.

AB809,10,11 (b) That a person may be assigned to a management level that allows additional institution privileges if the person complies with the policies relating to conduct and participates in and completes prescribed treatment or any part or phase of prescribed treatment.

AB809,10,18 (c) That a person may be assigned to a management level that limits or denies institution privileges if the person violates any policy relating to conduct or fails or refuses to participate in or complete prescribed treatment or any part or phase of prescribed treatment. The limitation or denial of institution privileges shall be reasonably related to the person's treatment needs, to the security or management needs of the facility, or to the safety of others, and the limitation or denial of institution privileges may not be for the purpose of punishment.

AB809,10,21 (d) The use of physical restraint and isolation for purposes relating to a person's treatment or for purposes of preventing a person from physically harming others or protecting a person from being physically harmed by others.

AB809,11,2 (e) That all persons in a facility or in a unit of a facility may be locked in their rooms during the night shift, for a specified period during each change of shift by staff or as an emergency measure as needed for security purposes. If the policies provide for periods of unit-wide or facility-wide isolation, the policies shall require staff to periodically review the status of each person to ensure the health and safety of the person.

AB809,11,4 (f) The use of physical restraint for security reasons during transport to or from the facility in which the person has been detained or placed.

AB809,11,7 (3) Rights of detained and committed persons. The policies relating to treatment and conduct that are established and implemented under sub. (2) shall provide the following rights to a person to whom the policies apply:

AB809,11,12 (a) The right not to be subjected, without the person's informed written consent, to drastic treatment procedures, such as psychosurgery or electroconvulsive therapy, or experimental treatment or research that involves the use of any drug, ingested substance, surgical procedure or other drastic or extreme behavior modification techniques.

AB809,11,14 (b) The right to be informed of any experimental treatment or research that will be used, or that is being considered for use, to treat the person.

AB809,11,16 (c) The right to refuse psychotropic medication except in an emergency situation or as ordered under sub. (5).

AB809,11,21 (d) The right to reasonable privacy in toileting and bathing, subject to reasonable measures, including video and audio monitoring and collecting specimens for urinalysis, that are related to the protection of the person from harm, to the protection of other persons from harm, to treatment needs or to other security or management needs of the facility or unit.

AB809,12,2 (4) Competency generally. (a) No person is deemed incompetent to manage his or her affairs, to contract, to hold professional, occupational or motor vehicle operator's licenses, to marry or to obtain a divorce, to vote, to make a will or to exercise any other civil right solely by reason of his or her detention under s. 980.04 (1) or commitment under s. 980.06.

AB809,12,7 (b) Notwithstanding par. (a), the policies relating to treatment and conduct that are established and implemented under sub. (2) may limit the exercise of a civil right by a person who has been detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care or may require the person to obtain the department's approval before exercise of a civil right, if both of the following apply:

AB809,12,10 1. The limitation or requirement for the department's approval is reasonably related to the person's treatment needs, to the security or management needs of the facility or to the safety of others.

AB809,12,12 2. The limitation or requirement for the department's approval is not for the purpose of punishment.

AB809,12,25 (5) Competency to refuse psychotropic medication. (a) If a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care is not subject to a court order determining the person to be not competent to refuse psychotropic medication for the defendant's mental condition and if the facility at which the person has been detained or placed determines that the defendant should be subject to such a court order, the department may file with the court, with notice to the person and, if applicable, the person's attorney, a motion for a hearing under the standard specified in s. 51.61 (1) (g) 4., on whether the person is not competent to refuse psychotropic medication. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the defendant needs psychotropic medication and that the person is not competent to refuse psychotropic medication, based on an examination of the person by a licensed physician.

AB809,13,11 (b) Within 10 days after a motion is filed under par. (a), the court, without a jury, shall determine the person's competency to refuse psychotropic medication. At the request of the person or the person's counsel, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this subsection. If the person and the person's counsel waive the opportunity to present other evidence on the issue, the court shall determine the person's competency to refuse psychotropic medication on the basis of the report accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. Upon consent of all parties and approval by the court for good cause shown, testimony may be received into the record of the hearing by telephone or live audiovisual means.

AB809,13,18 (c) If, at a hearing under par. (b), the department proves by evidence that is clear and convincing that the person is not competent to refuse psychotropic medication under the standard specified in s. 51.61 (1) (g) 4., the court shall make a determination and issue as part of the detention order under s. 980.04 (1) or the commitment order under s. 980.06, whichever is applicable, an order that the person is not competent to refuse psychotropic medication and that whoever administers the medication to the person shall observe appropriate medical standards.

AB809,14,2 (6) Grievance system. The department shall establish a system by which a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care may file a grievance concerning a policy established under sub. (2) or an action taken toward the person under those policies. The grievance system shall have written policies and procedures regarding the uses and operation of the grievance system and may provide for an informal process for resolving grievances, a formal process for resolving grievances in cases in which the informal process fails to resolve grievances, and a process to appeal to the director of the unit or facility a decision made as part of any formal process for resolving grievances.

AB809,14,9 (7) Notice of policies and grievance system. A person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care shall, upon admission to the facility at which he or she is detained or placed, be informed orally and in writing of the policies established under sub. (2) and the grievance system established under sub. (6). Copies of the policies relating to conduct shall be posted conspicuously in areas of the facility that are regularly accessible to persons detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care.

AB809,14,14 (8) Applicability. A person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care is subject to the policies established under sub. (2) and is not subject to s. 51.61, 1997 stats., regardless of whether the detention order or commitment order was issued before, on or after the effective date of this subsection .... [revisor inserts date].

AB809,14,16 (9) Rules. The department may promulgate rules establishing guidelines for the exercise of discretion under this section.