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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) (7)
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)(a) (a) Using the grievance procedure specified in sub. (5).
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) (ag) "Abuse" means any of the following:
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)3. 3. Is likely to continue indefinitely.
51.62(1)(am)4. 4. Results in substantial functional limitation in at least 3 of the following areas of major life activity:
51.62(1)(am)4.a. a. Self-care.
51.62(1)(am)4.b. b. Receptive and expressive language.
51.62(1)(am)4.c. c. Learning.
51.62(1)(am)4.d. d. Mobility.
51.62(1)(am)4.e. e. Self-direction.
51.62(1)(am)4.f. f. Capacity for independent living.
51.62(1)(am)4.g. g. Economic self-sufficiency.
51.62(1)(am)5. 5. Requires a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of lifelong or extended duration and are individually planned and coordinated.
51.62(1)(b) (b) "Inpatient health care facility" has the meaning provided under s. 50.135 (1), except that it does include community-based residential facilities as defined under s. 50.01 (1g).
51.62(1)(bm) (bm) "Mental illness" means mental disease to such extent that a person so afflicted requires care and treatment for his or her welfare, or the welfare of others, or of the community and is an inpatient or resident in a facility rendering care or treatment or has been discharged from the facility for not more than 90 days.
51.62(1)(br) (br) "Neglect" means an act, omission or course of conduct that, because of the failure to provide adequate food, shelter, clothing, medical care or dental care, creates a significant danger to the physical or mental health of an individual with developmental disability or mental illness.
51.62(1)(c) (c) "Protection and advocacy agency" means an entity designated by the governor to implement a system to protect and advocate the rights of persons with developmental disabilities, as authorized under 42 USC 6012 or mental illness, as authorized under 42 USC 10801 to 10851.
51.62(2) (2)Designation.
51.62(2)(a)(a) The governor shall designate as the protection and advocacy agency a private, nonprofit corporation that is independent of all of the following:
51.62(2)(a)1. 1. A state agency.
51.62(2)(a)2. 2. The council on developmental disabilities and the council on mental health.
51.62(2)(a)3. 3. An agency that provides treatment, services or habilitation to persons with developmental disabilities or mental illness.
51.62(2)(b) (b) After the governor has designated a protection and advocacy agency under par. (a), the protection and advocacy agency so designated shall continue in that capacity unless and until the governor redesignates the protection and advocacy agency to another private, nonprofit corporation that meets the requirements of par. (a). The governor may redesignate this private, nonprofit corporation the protection and advocacy agency only if all of the following conditions are met:
51.62(2)(b)1. 1. Good cause exists for the redesignation.
51.62(2)(b)2. 2. Prior notice and an opportunity to comment on a proposed redesignation has been given to all of the following:
51.62(2)(b)2.a. a. The council on developmental disabilities and the council on mental health.
51.62(2)(b)2.b. b. Major organizations, in the state, of persons with developmental disabilities or mental illness and families and representatives of these persons.
51.62(2)(c) (c) If the governor has designated a protection and advocacy agency before July 20, 1985, that entity shall continue in that capacity unless and until the governor redesignates the protection and advocacy agency to another private, nonprofit corporation that meets the requirements of par. (a).
51.62(3) (3)Agency powers and duties.
51.62(3)(a)(a) The protection and advocacy agency may:
51.62(3)(a)1. 1. Pursue legal, administrative and other appropriate remedies to ensure the protection of the rights of persons with developmental disabilities or mental illness and to provide information on and referral to programs and services addressing the needs of persons with developmental disabilities or mental illness.
51.62(3)(a)2. 2. Have access to records as specified under ss. 51.30 (4) (b) 18. and 146.82 (2) (a) 9.
51.62(3)(a)2m. 2m. Have immediate access to any person with mental illness or developmental disability, regardless of age, who has requested services or on whose behalf services have been requested from the protection and advocacy agency or concerning whom the protection and advocacy agency has reasonable cause to believe that abuse, neglect or a violation of rights has occurred.
51.62(3)(a)3. 3. Contract with a private, nonprofit corporation to confer to that corporation the powers and duties specified for the protection and advocacy agency under this subsection, except that the corporation may have access to records as specified under ss. 51.30 (4) (b) 18. and 146.82 (2) (a) 9. only if all of the following conditions are met:
51.62(3)(a)3.a. a. The contract of the corporation with the protection and advocacy agency so provides.
51.62(3)(a)3.b. b. The department has approved the access.
51.62(3)(b) (b) The protection and advocacy agency shall pay reasonable costs related to the reproducing or copying of patient health care or treatment records.
51.62(3m) (3m)Funding. From the appropriation under s. 20.435 (7) (md), the department may not distribute more than $75,000 in each fiscal year to the protection and advocacy agency for performance of community mental health protection and advocacy services.
51.62(4) (4)Departmental duties. The department shall provide the protection and advocacy agency with copies of annual surveys and plans of correction for intermediate care facilities for the mentally retarded on or before the first day of the 2nd month commencing after completion of the survey or plan.
51.63 51.63 Private pay for patients. Any person may pay, in whole or in part, for the maintenance and clothing of any mentally ill, developmentally disabled, alcoholic or drug dependent person at any institution for the treatment of persons so afflicted, and his or her account shall be credited with the sums paid. The person may also be likewise provided with such special care in addition to those services usually provided by the institution as is agreed upon with the director, upon payment of the charges therefor.
51.63 History History: 1975 c. 430.
51.64 51.64 Reports of death required; penalty; assessment.
51.64(1)(1) In this section:
51.64(1)(a) (a) "Physical restraint" includes all of the following:
51.64(1)(a)1. 1. A locked room.
51.64(1)(a)2. 2. A device or garment that interferes with an individual's freedom of movement and that the individual is unable to remove easily.
51.64(1)(a)3. 3. Restraint by a treatment facility staff member of a person admitted or committed to the treatment facility, by use of physical force.
51.64(1)(b) (b) "Psychotropic medication" means an antipsychotic, antidepressant, lithium carbonate or a tranquilizer.
51.64(2) (2)
51.64(2)(a)(a) No later than 24 hours after the death of a person admitted or committed to a treatment facility, the treatment facility shall report the death to the department if one of the following applies:
51.64(2)(a)1. 1. There is reasonable cause to believe that the death was related to the use of physical restraint or a psychotropic medication.
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