LRB-4558/2
JEO:cmh:km
1999 - 2000 LEGISLATURE
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
1An Act to amend 6.30 (4), 51.61 (1) (intro.), 980.065 (1m), 980.065 (2), 980.08 (1),
2980.08 (6m), 980.09 (1) (c) and 980.09 (2) (c); and
to create 6.10 (7m), 51.30 (4)
3(b) 25., 801.02 (8), 905.04 (4) (j) and 980.066 of the statutes;
relating to: policies
4concerning treatment and conduct of persons detained during a sexually
5violent person commitment proceeding and persons committed for treatment
6after being found to be a sexually violent person and granting rule-making
7authority.
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
1Section
1. 6.10 (7m) of the statutes is created to read:
AB809,5,11
16.10
(7m) The residence of a person who is detained under s. 980.04 (1) or
2committed under s. 980.06 and placed in institutional care shall be determined by
3applying the standard specified in sub. (1) to the facts that existed on the date that
4the person committed the sexually violent offense that resulted in the sentence,
5placement or commitment that was in effect when the petition against the person
6was filed under s. 980.02 and by considering the person's residence at the place where
7the person resided on the date of that sexually violent offense to be prima facie
8evidence of intent to return to that place. The prima facie evidence of intent to return
9to a place may be rebutted by presenting information that indicates that the person
10would not be likely to return to that place if the person is released from detention or
11institutional care.
AB809, s. 2
12Section
2. 6.30 (4) of the statutes is amended to read:
AB809,6,213
6.30
(4) By mail. Any eligible elector who is located not more than 50 miles from
14his or her legal voting residence
or any person who is detained under s. 980.04 (1) or
15committed under s. 980.06 and placed in institutional care may register by mail on
16a form prescribed by the board and provided by each municipality. The form shall
17be designed to obtain the information required in ss. 6.33 (1) and 6.40 (1) (a) and (b).
18The form shall contain a certification by the elector that all statements are true and
19correct. The form shall be prepostpaid for return when mailed at any point within
20the United States
, and. The form shall be signed by a special registration deputy
, or
21shall be signed and substantiated by one other elector residing in the same
22municipality in which the registering elector resides
or, in the case of a person
23detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional
24care, by a designated employe of the department of health and family services,
25corroborating all material statements therein. The form shall be available in the
1municipal clerk's office and may be distributed by any elector of the municipality.
2The clerk shall mail a registration form to any elector upon written or oral request.
AB809, s. 3
3Section
3. 51.30 (4) (b) 25. of the statutes is created to read:
AB809,6,84
51.30
(4) (b) 25. To a law enforcement agency, as defined in s. 165.83 (1) (b), for
5the purpose of investigating a criminal offense. Records released under this
6subdivision are limited to records concerning a person detained under s. 980.04 (1)
7or committed under s. 980.06 and placed in institutional care that are relevant to the
8investigation of the offense.
AB809, s. 4
9Section
4. 51.61 (1) (intro.) of the statutes is amended to read:
AB809,7,210
51.61
(1) (intro.) In this section, "patient" means any individual who is
11receiving services for mental illness, developmental disabilities, alcoholism or drug
12dependency, including any individual who is admitted to a treatment facility in
13accordance with this chapter or ch. 48 or 55 or who is detained, committed or placed
14under this chapter or ch. 48, 55, 971
, or 975
or 980, or who is transferred to a
15treatment facility under s. 51.35 (3) or 51.37 or who is receiving care or treatment
16for those conditions through the department or a county department under s. 51.42
17or 51.437 or in a private treatment facility. "Patient" does not include persons
18committed under ch. 975 who are transferred to or residing in any state prison listed
19under s. 302.01
or persons detained under s. 980.04 (1) or committed under s. 980.06
20and placed in institutional care. In private hospitals and in public general hospitals,
21"patient" includes any individual who is admitted for the primary purpose of
22treatment of mental illness, developmental disability, alcoholism or drug abuse but
23does not include an individual who receives treatment in a hospital emergency room
24nor an individual who receives treatment on an outpatient basis at those hospitals,
1unless the individual is otherwise covered under this subsection. Except as provided
2in sub. (2), each patient shall:
AB809, s. 5
3Section
5. 801.02 (8) of the statutes is created to read:
AB809,7,94
801.02
(8) No person detained under s. 980.04 (1) or committed under s. 980.06
5and placed in institutional care may commence a civil action or special proceeding,
6including a petition for a writ of certiorari, with respect to conditions in the facility
7in which he or she has been detained or committed until the person has exhausted
8all available administrative remedies provided by the grievance system established
9under s. 980.066 (6).
AB809, s. 6
10Section
6. 905.04 (4) (j) of the statutes is created to read:
AB809,7,1611
905.04
(4) (j)
Investigation of crimes; sexually violent persons. There is no
12privilege under this section as to a communication made by or information
13concerning a person detained under s. 980.04 (1) or committed under s. 980.06 and
14placed in institutional care if the communication or information is relevant to the
15investigation of a criminal offense by a law enforcement agency, as defined in s.
16165.83 (1) (b), and is contained in a record released under s. 51.30 (4) (b) 25.
AB809,7,2319
980.065
(1m) The department shall place If a person
is committed under s.
20980.06
and placed in institutional care, the department shall place the person at the
21secure mental health facility established under s. 46.055, the Wisconsin resource
22center established under s. 46.056 or a secure mental health unit or facility provided
23by the department of corrections under sub. (2).
AB809,8,7
1980.065
(2) The department may contract with the department of corrections
2for the provision of a secure mental health unit or facility for persons committed
3under s. 980.06
and placed in institutional care. The department shall operate a
4secure mental health unit or facility provided by the department of corrections under
5this subsection and shall promulgate rules governing the custody and discipline of
6persons placed by the department in the secure mental health unit or facility
7provided by the department of corrections under this subsection.
AB809, s. 9
8Section
9. 980.066 of the statutes is created to read:
AB809,9,5
9980.066 Policies concerning treatment and conduct of detained and
10committed persons. (1g) Legislative purpose. The legislature finds that patients
11detained under s. 980.04 (1) or committed under s. 980.06 for control, care and
12treatment have different needs for control, care and treatment from other civilly
13committed patients. There are significant clinical differences between patients
14detained or committed under this chapter and other civilly committed patients.
15Patients detained or committed under this chapter are less vulnerable and more
16dangerous as a population than other civilly committed patients. The special
17treatment needs of patients detained or committed under this chapter conflict with
18the patient rights provided under s. 51.61. The type of symptomology and behaviors
19displayed by patients detained or committed under this chapter is better treated in
20an environment of therapeutic levels and strict monitoring of institution privileges.
21When patients detained or committed under this chapter are introduced into an
22environment where they immediately receive a full range of institution privileges
23and patient rights, they are more likely to engage in manipulative and predatory
24behaviors. This undermines the treatment goals for patients detained or committed
25under this chapter and could contribute to an increased recidivism rate. The purpose
1of this section is to provide a therapeutic setting for the control, care and treatment
2of patients detained or committed under this chapter that is safe and secure, that
3prevents acts of victimization through abuse of patient rights and institution
4privileges and that promotes progress in treatment so that the patient becomes less
5likely to engage in acts of sexual violence in the future.
AB809,9,12
6(1r) Definition. In this section, "institution privileges" include liberty to move
7around a facility or a unit within a facility, visitation privileges, access to and use of
8personal property, including clothing, money, bank accounts and televisions, radios
9and other entertainment devices, access to reading material, receipt and sending of
10mail, receipt and making of telephone calls, time to engage in exercise or other
11recreation or leisure activities, and any other activity that may affect institutional
12security or the treatment or safety of a detained or committed person.
AB809,9,25
13(2) Policies relating to treatment and conduct. Subject to sub. (3), the
14department shall establish and implement policies relating to treatment for and
15conduct of persons who have been detained under s. 980.04 (1) or committed under
16s. 980.06 and placed in institutional care. The policies may provide for distinct
17management levels that are based on a person's treatment needs, on the person's
18participation in treatment and conduct, on the management and security needs of
19the facility at which a person is detained or placed and on other relevant factors, as
20determined by the department. The management levels may differ from each other
21as to the responsibilities required of, and the institution privileges allowed to, a
22person assigned to the management level, except that institution privileges may not
23be limited to the extent that the limitations would violate the constitutional rights
24of persons who have been detained under s. 980.04 (1) or committed under s. 980.06
25and placed in institution care. If the policies provide for distinct management levels,
1the policies shall also provide that a person's assignment to a particular
2management level shall be based on the assessment of a qualified professional. The
3policies may also provide for all of the following:
AB809,10,74
(a) That for the purpose of determining the management level at which the
5person is to be placed, a person may be assigned to a management level that provides
6the minimum institution privileges allowed by the constitution for the time period
7reasonably required to complete the assessment.
AB809,10,118
(b) That a person may be assigned to a management level that allows additional
9institution privileges if the person complies with the policies relating to conduct and
10participates in and completes prescribed treatment or any part or phase of prescribed
11treatment.
AB809,10,1812
(c) That a person may be assigned to a management level that limits or denies
13institution privileges if the person violates any policy relating to conduct or fails or
14refuses to participate in or complete prescribed treatment or any part or phase of
15prescribed treatment. The limitation or denial of institution privileges shall be
16reasonably related to the person's treatment needs, to the security or management
17needs of the facility, or to the safety of others, and the limitation or denial of
18institution privileges may not be for the purpose of punishment.
AB809,10,2119
(d) The use of physical restraint and isolation for purposes relating to a person's
20treatment or for purposes of preventing a person from physically harming others or
21protecting a person from being physically harmed by others.
AB809,11,222
(e) That all persons in a facility or in a unit of a facility may be locked in their
23rooms during the night shift, for a specified period during each change of shift by staff
24or as an emergency measure as needed for security purposes. If the policies provide
25for periods of unit-wide or facility-wide isolation, the policies shall require staff to
1periodically review the status of each person to ensure the health and safety of the
2person.
AB809,11,43
(f) The use of physical restraint for security reasons during transport to or from
4the facility in which the person has been detained or placed.
AB809,11,7
5(3) Rights of detained and committed persons. The policies relating to
6treatment and conduct that are established and implemented under sub. (2) shall
7provide the following rights to a person to whom the policies apply: