51.61(1)(g)4.
4. For purposes of a determination under
subd. 2. or
3., an individual is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual, one of the following is true:
51.61(1)(g)4.a.
a. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.
51.61(1)(g)4.b.
b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.
51.61(1)(h)
(h) Have a right to be free from unnecessary or excessive medication at any time. No medication may be administered to a patient except at the written order of a physician. The attending physician is responsible for all medication which is administered to a patient. A record of the medication which is administered to each patient shall be kept in his or her medical records. Medication may not be used as punishment, for the convenience of staff, as a substitute for a treatment program, or in quantities that interfere with a patient's treatment program. Except when medication or medical treatment has been ordered by the court under
par. (g) or is necessary to prevent serious physical harm to others as evidenced by a recent overt act, attempt or threat to do such harm, a patient may refuse medications and medical treatment if the patient is a member of a recognized religious organization and the religious tenets of such organization prohibit such medications and treatment. The individual shall be informed of this right prior to administration of medications or treatment whenever the patient's condition so permits.
51.61(1)(i)1.1. Except as provided in
subd. 2., have 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. Isolation or restraint may be used only when less restrictive measures are ineffective or not feasible and shall be used for the shortest time possible. When a patient is placed in isolation or restraint, his or her status shall be reviewed once every 30 minutes. Each facility shall have a written policy covering the use of restraint or isolation which ensures that the dignity of the individual is protected, that the safety of the individual is ensured and that there is regular, frequent monitoring by trained staff to care for bodily needs as may be required. Isolation or restraint may be used for emergency situations only when it is likely that the patient may physically harm himself or herself or others. The treatment director shall specifically designate physicians who are authorized to order isolation or restraint, and shall specifically designate licensed psychologists who are authorized to order isolation. In the instance where the treatment director is not a physician, the medical director shall make the designation. In the case of a center for the developmentally disabled, use shall be authorized by the director of the center. The authorization for emergency use of isolation or restraint shall be in writing, except that isolation or restraint may be authorized in emergencies for not more than one hour, after which time an appropriate order in writing shall be obtained from the physician or licensed psychologist designated by the director, in the case of isolation, or the physician so designated in the case of restraint. Emergency isolation or restraint may not be continued for more than 24 hours without a new written order. Isolation may be used as part of a treatment program if it is part of a written treatment plan and the rights specified in this subsection are provided to the patient. The use of isolation as a part of a treatment plan shall be explained to the patient and to his or her guardian, if any, by the person who undertakes such treatment. Such treatment plan shall be evaluated at least once every 2 weeks. Patients who have a recent history of physical aggression may be restrained during transport to or from the facility. Persons who are committed or transferred under
s. 51.35 (3) or
51.37 or under
ch. 971 or
975 and who, while under this status, are transferred to a hospital, as defined in
s. 50.33 (2), for medical care may be isolated for security reasons within locked facilities in the hospital. Patients who are committed or transferred under
s. 51.35 (3) or
51.37 or under
ch. 971 or
975 may be restrained for security reasons during transport to or from the facility.
51.61(1)(i)2.
2. Patients in the maximum security facility at the Mendota Mental Health Institute may be locked in their rooms during the night shift and for a period of no longer than one hour and 30 minutes during each change of shift by staff to permit staff review of patient needs. Patients in the maximum security facility at the Mendota Mental Health Institute may also be locked in their rooms on a unit-wide or facility-wide basis as an emergency measure as needed for security purposes to deal with an escape or attempted escape, the discovery of a dangerous weapon in the unit or facility or the receipt of reliable information that a dangerous weapon is in the unit or facility or to prevent or control a riot or the taking of a hostage. A unit-wide or facility-wide emergency isolation order may only be authorized by the director of the unit or maximum security facility or his or her designee and shall be approved within one hour after it is authorized by the director of the Mendota mental health facility or the director's designee. An emergency order for unit-wide or facility-wide isolation may only be in effect for the period of time needed to preserve order while dealing with the situation and may not be used as a substitute for adequate staffing. During a period of unit-wide or facility-wide isolation, the status of each patient shall be reviewed every 30 minutes to ensure the safety and comfort of the patient and each patient who is locked in a room without a toilet shall be given an opportunity to use a toilet at least once every hour, or more frequently if medically indicated. Each unit in the maximum security facility at the Mendota Mental Health Institute shall have a written policy covering the use of isolation which ensures that the dignity of the individual is protected, that the safety of the individual is secured and that there is regular, frequent monitoring by trained staff to care for bodily needs as may be required. Each policy shall be reviewed and approved by the director of the Mendota Mental Health Institute or the director's designee.
51.61(1)(j)
(j) Have 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. Such proposed research shall first be reviewed and approved by the institution's research and human rights committee created under
sub. (4) and by the department before such consent may be sought. Prior to such approval, the committee and the department shall determine that research complies with the principles of the statement on the use of human subjects for research adopted by the American Association on Mental Deficiency, and with the regulations for research involving human subjects required by the U.S. department of health and human services for projects supported by that agency.
51.61(1)(k)
(k) Have a right not to be subjected to treatment procedures such as psychosurgery, or other drastic treatment procedures without the express and informed consent of the patient after consultation with his or her counsel and legal guardian, if any. Express and informed consent of the patient after consultation with the patient's counsel and legal guardian, if any, is required for the use of electroconvulsive treatment.
51.61(1)(L)
(L) Have the right to religious worship within the facility if the patient desires such an opportunity and a member of the clergy of the patient's religious denomination or society is available to the facility. The provisions for such worship shall be available to all patients on a nondiscriminatory basis. No individual may be coerced into engaging in any religious activities.
51.61(1)(m)
(m) Have a right to a humane psychological and physical environment within the hospital facilities. These facilities shall be designed to afford patients with comfort and safety, to promote dignity and ensure privacy. Facilities shall also be designed to make a positive contribution to the effective attainment of the treatment goals of the hospital.
51.61(1)(n)
(n) Have the right to confidentiality of all treatment records, have the right to inspect and copy such records, and have the right to challenge the accuracy, completeness, timeliness or relevance of information relating to the individual in such records, as provided in
s. 51.30.
51.61(1)(o)
(o) Except as otherwise provided, have a right not to be filmed or taped, unless the patient signs an informed and voluntary consent which specifically authorizes a named individual or group to film or tape the patient for a particular purpose or project during a specified time period. The patient may specify in such consent periods during which, or situations in which, the patient may not be filmed or taped. If a patient is legally incompetent, such consent shall be granted on behalf of the patient by the patient's guardian. A patient in Goodland Hall at the Mendota Mental Health Institute may be filmed or taped for security purposes without the patient's consent, except that such a patient may not be filmed in patient bedrooms or bathrooms for any purpose without the patient's consent.
51.61(1)(p)
(p) Have reasonable access to a telephone to make and receive telephone calls within reasonable limits.
51.61(1)(q)
(q) Be permitted to use and wear his or her own clothing and personal articles, or be furnished with an adequate allowance of clothes if none are available. Provision shall be made to launder the patient's clothing.
51.61(1)(r)
(r) Be provided access to a reasonable amount of individual secure storage space for his or her own private use.
51.61(1)(s)
(s) Have reasonable protection of privacy in such matters as toileting and bathing.
51.61(1)(u)
(u) Have the right to present grievances under the procedures established under
sub. (5) on his or her own behalf or that of others to the staff or administrator of the treatment facility or community mental health program without justifiable fear of reprisal and to communicate, subject to
par. (p), with public officials or with any other person without justifiable fear of reprisal.
51.61(1)(v)
(v) Have the right to use his or her money as he or she chooses, except to the extent that authority over the money is held by another, including the parent of a minor, a court-appointed guardian of the patient's estate or a representative payee. If a treatment facility or community mental health program so approves, a patient or his or her guardian may authorize in writing the deposit of money in the patient's name with the facility or program. Any earnings attributable to the money accrue to the patient. The treatment facility or community mental health program shall maintain a separate accounting of the deposited money of each patient. The patient or his or her guardian shall receive, upon written request by the patient or guardian, a written monthly account of any financial transactions made by the treatment facility or community mental health program with respect to the patient's money. If a patient is discharged from a treatment facility or community mental health program, all of the patient's money, including any attributable accrued earnings, shall be returned to the patient. No treatment facility or community mental health program or employee of such a facility or program may act as representative payee for a patient for social security, pension, annuity or trust fund payments or other direct payments or monetary assistance unless the patient or his or her guardian has given informed written consent to do so or unless a representative payee who is acceptable to the patient or his or her guardian and the payer cannot be identified. A community mental health program or treatment facility shall give money of the patient to him or her upon request, subject to any limitations imposed by guardianship or representative payeeship, except that an inpatient facility may, as a part of its security procedures, limit the amount of currency that is held by a patient and may establish reasonable policies governing patient account transactions.
51.61(1)(w)1.1. Have the right to be informed in writing, before, upon or at a reasonable time after admission, of any liability that the patient or any of the patient's relatives may have for the cost of the patient's care and treatment and of the right to receive information about charges for care and treatment services.
51.61(1)(w)2.
2. If the patient is a minor, if the patient's parents may be liable for the cost of the patient's care and treatment and if the patient's parents can be located with reasonable effort, the treatment facility or community mental health program shall notify the patient's parents of any liability that the parents may have for the cost of the patient's care and treatment and of their right to receive information under
subd. 3., except that a minor patient's parents may not be notified under this subdivision if the minor patient is receiving care under
s. 51.47 without the consent of the minor patient's parent or guardian.
51.61(1)(w)3.
3. A patient, a patient's relative who may be liable for the cost of the patient's care and treatment or a patient's guardian may request information about charges for care and treatment services at the treatment facility or community mental health program. If a treatment facility or community mental health program receives such a request, the treatment facility or community mental health program shall promptly provide to the individual making the request written information about the treatment facility's or community mental health program's charges for care and treatment services. Unless the request is made by the patient, the guardian of a patient adjudged incompetent under
ch. 880, the parent or guardian of a minor who has access to the minor's treatment records under
s. 51.30 (5) (b) 1. or a person designated by the patient's informed written consent under
s. 51.30 (4) (a) as a person to whom information may be disclosed, information released under this subdivision is limited to general information about the treatment facility's or community mental health program's charges for care and treatment services and may not include information which may not be disclosed under
s. 51.30.
51.61(1)(x)
(x) Have the right to be treated with respect and recognition of the patient's dignity and individuality by all employees of the treatment facility or community mental health program and by licensed, certified, registered or permitted providers of health care with whom the patient comes in contact.
51.61(2)
(2) A patient's rights guaranteed under
sub. (1) (p) to
(t) may be denied for cause after review by the director of the facility, and may be denied when medically or therapeutically contraindicated as documented by the patient's physician or licensed psychologist in the patient's treatment record. The individual shall be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right in an informal hearing before the director of the facility or his or her designee. There shall be documentation of the grounds for withdrawal of rights in the patient's treatment record. After an informal hearing is held, a patient or his or her representative may petition for review of the denial of any right under this subsection through the use of the grievance procedure provided in
sub. (5) or, alternatively or in addition to the use of such procedure, may bring an action under
sub. (7).
51.61(3)
(3) The rights accorded to patients under this section apply to patients receiving services in outpatient and day-service treatment facilities, as well as community mental health programs, insofar as applicable.
51.61(4)(a)(a) Each facility which conducts research upon human subjects shall establish a research and human rights committee consisting of not less than 5 persons with varying backgrounds to assure complete and adequate review of research activities commonly conducted by the facility. The committee shall be sufficiently qualified through the maturity, experience and expertise of its members and diversity of its membership to ensure respect for its advice and counsel for safeguarding the rights and welfare of human subjects. In addition to possessing the professional competence necessary to review specific activities, the committee shall be able to ascertain the acceptability of proposals in terms of commitments of the facility and federal regulations, applicable law, standards of professional conduct and practice, and community attitudes.
51.61(4)(b)
(b) No member of a committee may be directly involved in the research activity or involved in either the initial or continuing review of an activity in which he or she has a conflicting interest, except to provide information requested by the committee.
51.61(4)(c)
(c) No committee may consist entirely of persons who are officers, employees or agents of or are otherwise associated with the facility, apart from their membership on the committee.
51.61(4)(d)
(d) No committee may consist entirely of members of a single professional group.
51.61(4)(e)
(e) A majority of the membership of the committee constitutes a quorum to do business.
51.61(5)(a)(a) The department shall establish procedures to assure protection of patients' rights guaranteed under this chapter, and shall, except for the grievance procedures of the Mendota and Winnebago mental health institutes and the state centers for the developmentally disabled, implement a grievance procedure which complies with
par. (b) to assure that rights of patients under this chapter are protected and enforced by the department, by service providers and by county departments under
ss. 51.42 and
51.437. The procedures established by the department under this subsection apply to patients in private hospitals or public general hospitals.
51.61(5)(b)
(b) The department shall promulgate rules that establish standards for the grievance procedure used as specified in
par. (a) by the department, county departments under
ss. 51.42 and
51.437 and service providers. The standards shall include all of the following components:
51.61(5)(b)1.
1. Written policies and procedures regarding the uses and operation of the grievance system.
51.61(5)(b)2.
2. A requirement that a person, who is the contact for initiating and processing grievances, be identified within the department and in each county department under
ss. 51.42 and
51.437 and be specified by each service provider.
51.61(5)(b)4.
4. A formal process for resolving grievances, in cases where the informal process fails to resolve grievances to the patient's satisfaction.
51.61(5)(b)5.
5. A process for notification of all patients of the grievance process.
51.61(5)(b)6.
6. Time limits for responses to emergency and nonemergency grievances, as well as time limits for deciding appeals.
51.61(5)(b)7.
7. A process which patients may use to appeal unfavorable decisions within the department or county department under
s. 51.42 or
51.437 or through the service provider.
51.61(5)(b)8.
8. A process which may be used to appeal final decisions under
subd. 7. of the department, county department under
s. 51.42 or
51.437 or service provider to the department of health and family services.
51.61(5)(b)9.
9. Protections against the application of sanctions against any complainant or any person, including an employee of the department, county department under
s. 51.42 or
51.437 or service provider who assists a complainant in filing a grievance.
51.61(5)(c)
(c) Each county department of community programs shall attach a statement to an application for recertification of its community mental health programs or treatment facilities that are operated by or under contract with the county. The statement shall indicate if any complaints or allegations of violations of rights established under this section were made during the certification period immediately before the period of recertification that is requested and shall summarize any complaints or allegations made. The statement shall contain the date of the complaint or allegation, the disposition of the matter and the date of disposition. The department shall consider the statement in reviewing the application for recertification.
51.61(5)(d)
(d) No person may intentionally retaliate or discriminate against any patient or employee for contacting or providing information to any official or to an employee of any state protection and advocacy agency, or for initiating, participating in, or testifying in a grievance procedure or in an action for any remedy authorized under this section. Whoever violates this paragraph may be fined not more than $1,000 or imprisoned for not more than 6 months or both.
51.61(6)
(6) Subject to the rights of patients provided under this chapter, the department, county departments under
s. 51.42 or
51.437 and any agency providing services under an agreement with the department or those county departments have the right to use customary and usual treatment techniques and procedures in a reasonable and appropriate manner in the treatment of patients who are receiving services under the mental health system, for the purpose of ameliorating the conditions for which the patients were admitted to the system. The written, informed consent of any patient shall first be obtained, unless the person has been found not competent to refuse medication and treatment under
s. 51.61 (1) (g). In the case of a minor, the written, informed consent of the parent or guardian is required. Except as provided under an order issued under
s. 51.14 (3) (h) or
(4) (g), if the minor is 14 years of age or older, the written, informed consent of the minor and the minor's parent or guardian is required. A refusal of either a minor 14 years of age or older or the minor's parent or guardian to provide written, informed consent for outpatient mental health treatment is reviewable under
s. 51.14.
51.61(7)(a)(a) Any patient whose rights are protected under this section who suffers damage as the result of the unlawful denial or violation of any of these rights may bring an action against the person, including the state or any political subdivision thereof, which unlawfully denies or violates the right in question. The individual may recover any damages as may be proved, together with exemplary damages of not less than $100 for each violation and such costs and reasonable actual attorney fees as may be incurred.
51.61(7)(b)
(b) Any patient whose rights are protected under this section may bring an action against any person, including the state or any political subdivision thereof, which wilfully, knowingly and unlawfully denies or violates any of his or her rights protected under this section. The patient may recover such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees. It is not a prerequisite to an action under this paragraph that the plaintiff suffer or be threatened with actual damages.
51.61(7)(c)
(c) Any patient whose rights are protected under this section may bring an action to enjoin the unlawful violation or denial of rights under this section and may in the same action seek damages as provided in this section. The individual may also recover costs and reasonable actual attorney fees if he or she prevails.
51.61(7)(d)
(d) Use of the grievance procedure established under
sub. (5) is not a prerequisite to bringing an action under this subsection.
51.61(7m)
(7m) Whoever intentionally deprives a patient of the ability to seek redress for the alleged violation of his or her rights under this section by unreasonably precluding the patient from doing any of the following may be fined not more than $1,000 or imprisoned for not more than 6 months or both:
51.61(7m)(b)
(b) Communicating, subject to
sub. (1) (p), with a court, government official or staff member of the protection and advocacy agency that is designated under
s. 51.62 or with legal counsel.
51.61(8)
(8) Any informed consent which is required under
sub. (1) (a) to
(i) may be exercised by the patient's legal guardian if the patient has been adjudicated incompetent and the guardian is so empowered, or by the parent of the patient if the patient is a minor.
51.61(9)
(9) The department shall promulgate rules to implement this section.
51.61(10)
(10) No person who, in good faith, files a report with the appropriate examining board concerning the violation of rights under this section by persons licensed, certified, registered or permitted under
ch. 441,
446,
450,
455 or
456, or who participates in an investigation of an allegation by the appropriate examining board, is liable for civil damages for the filing or participation.
51.61 Annotation
A patient in a state facility recovered fees under sub. (7) (c) from the county. Matter of Protective Placement of J. S.
144 Wis. 2d 670,
425 N.W.2d 15 (Ct. App. 1988).
51.61 Annotation
The court may order an agency to do planning and the implementation work necessary to fulfill the obligation to order placement conforming to ss. 55.06 (9) (a) and 51.61 (1) (e). In Matter of J.G.S.
159 Wis. 2d 685,
465 N.W.2d 227 (Ct. App. 1990).
51.61 Annotation
A nurse's decision to take a mental health patient on a recreational walk is not treatment under sub. (1) (f), and no cause of action was created under this section for injuries incurred when the patient fell. Erbstoeaer v. American Casualty Co.
169 Wis. 2d 637,
486 N.W.2d 549 (Ct. App. 1992).
51.61 Annotation
Sub. (1) (g) 4. is not merely illustrative; it establishes the only standard by which a court may determine whether a patient is competent to refuse psychotropic medication. Factors to be considered in determining whether this competency standard is met are discussed. Mental Condition of Virgil D.
189 Wis. 2d 1,
524 N.W.2d 894 (1994).
51.61 Annotation
Sub. (1) (k) is unconstitutionally overbroad because it prevents all patients unable to give "express and informed" consent from receiving electroconvulsive treatment under any circumstances, even when the treatment may be life saving. Professional Guardianships, Inc. v. Ruth E.J.
196 Wis. 2d 794,
540 N.W.2d 213 (Ct. App. 1995).
51.61 Annotation
Court commissioners, including probate court commissioners, have the authority to conduct a hearing under s. 51.61 (1) (g). Carol J. R. v. County of Milwaukee,
196 Wis. 2d 882,
540 N.W.2d 233 (Ct. App. 1995).
51.61 Annotation
In an action for negligence and malpractice, when a provider's treatment techniques or deficiencies were part and parcel of the plaintiff's claim, it was appropriate to award costs and attorney fees under sub. (7) (a). Wright v. Mercy Hospital,
206 Wis. 2d 448,
557 N.W.2d 846 (Ct. App. 1996).
51.61 Annotation
Sub. (7) contemplates two separate and distinct causes of action. Par. (a) applies when the denial of a patient's rights have caused actual damages. Par. (b) does not require damages, but allows recovery if the patient's rights were violated wilfully, knowingly, and unlawfully. Schaidler v. Mercy Medical Center of Oshkosh, Inc.
209 Wis. 2d 457,
563 N.W.2d 554 (Ct. App. 1997).
51.61 AnnotationNonconsensual drug therapy did not violate due process. Stensvad v. Reivitz,
601 F. Supp. 128 (1985).
51.62
51.62
Protection and advocacy system. 51.62(1)
(1)
Definitions. In this section:
51.62(1)(ag)1.
1. An act, omission or course of conduct by another that is inflicted intentionally or recklessly on an individual with developmental disability or mental illness and that does at least one of the following:
51.62(1)(ag)1.a.
a. Results in bodily harm or great bodily harm to the individual.
51.62(1)(ag)1.b.
b. Intimidates, humiliates, threatens, frightens or otherwise harasses the individual.
51.62(1)(ag)2.
2. The forcible administration of medication to an individual with developmental disability or mental illness, with the knowledge that no lawful authority exists for the forcible administration.
51.62(1)(ag)3.
3. An act to an individual with developmental disability or mental illness that constitutes first degree, 2nd degree, 3rd degree or 4th degree sexual assault as specified under
s. 940.225.
51.62(1)(am)
(am) "Developmental disability" means a severe, chronic disability of a person that is characterized by all of the following:
51.62(1)(am)1.
1. Is attributable to a mental or physical impairment or a combination of a mental and a physical impairment.
51.62(1)(am)2.
2. Is manifested before the person has attained the age of 22.
51.62(1)(am)4.
4. Results in substantial functional limitation in at least 3 of the following areas of major life activity:
