An interested person is given the opportunity, in guardianship and protective placement proceedings, to participate in many ways, including: requesting a different location for the hearing if the proposed ward is unable to attend due to physical inaccessibility or lack of transportation; complaining to the court if they suspect fraudulent activity by the guardian; and requesting an independent medical or psychological examination of the proposed ward.
This bill codifies the Wisconsin Court of Appeals' decision in Coston v. Joseph P., 586 N.W.2d 52 (Ct. App. 1998), by providing that an interested person may participate in the hearing on the guardianship and protective placement petition at the court's discretion. In that case, 2 interested persons, who were relatives of the subject of the petition, asserted that they had a right to participate in the hearing. The court disagreed, saying that the rights of interested persons to participate in guardianship and protective placement hearings are specific and limited. However, the court also stated that a circuit court is not foreclosed from allowing for the participation of interested persons, if the court decides to exercise its discretion to allow interested persons to participate to the extent it deems appropriate.
Procedures for Protective Services Order
Current law provides that the court may order protective services for an individual for whom a determination of incompetency is made if the individual entitled to the protective services will otherwise incur a substantial risk of physical harm or deterioration or will present a substantial risk of physical harm to others. However, no procedures are specified in statute for obtaining a court order for protective services.
This bill includes court-ordered protective services under the revised procedural provisions for protective placement.
Procedures for Emergency Protective Services
Under current law, s. 55.05 (4) provides that emergency protective services may be provided for not more than 72 hours when there is reason to believe that if the services are not provided, the person entitled to the services or others will incur a substantial risk of serious physical harm. No procedures are specified in the statute for obtaining a court order for emergency protective services.
This bill establishes procedures for obtaining emergency protective services. Under the bill, if the provider of the emergency protective services has reason to believe that protective services must continue to be provided beyond the 72-hour period, a petition for court-ordered protective services may be filed. If a petition is filed, a preliminary hearing must be held within 72 hours, excluding Saturdays, Sundays, and holidays, to establish probable cause to believe that the grounds for court-ordered protective services are present. If probable cause is found, the court may order protective services for up to 60 days, pending a hearing on the petition for court-ordered protective services.
Emergency Protective Placements
This bill makes several changes to the law governing emergency protective placements.
Current law provides that a sheriff, police officer, fire fighter, guardian, or authorized representative of a county board or an agency designated by a county board may make an emergency protective placement of an individual if, based on their personal observation, it appears probable that the individual meets the criteria for emergency placement. The bill provides that emergency placement may be made by the persons listed above based on a reliable report made to them as well as based on their personal observation.
Current law provides that an individual may be protectively placed on an emergency basis if it appears probable that the individual will suffer irreparable injury or death or will present a substantial risk of serious physical harm to others as a result of developmental disabilities, infirmities of aging, chronic mental illness, or other like incapacities. The bill amends this language to provide that an individual described above may be protectively placed on an emergency basis if it appears probable that the individual is so totally incapable of providing for his or her own care or custody as to create a substantial risk of serious physical harm to himself or herself or others as a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities if not immediately placed. This new language is the same as current s. 55.06 (2) (c), which sets forth one of the standards which must be met for protective placement on a non-emergency basis.
Current law provides that a person may be protectively placed on an emergency basis in an appropriate medical or protective placement facility.
The bill requires each county department to designate at least one appropriate medical facility or protective placement facility as an intake facility for the purpose of emergency protective placements.
Voluntary Administration of Medication, Including Psychotropic Medication, to an Incompetent Person
Under current laws relating to guardianship, a petition for guardianship of a person who is alleged to be incompetent may further allege that the person is not competent to refuse psychotropic medication and that the psychotropic medication is, under several criteria, necessary. If the petition contains these allegations, and if, at hearing, the court finds that the person is not competent to refuse psychotropic medication and that the medication is necessary, the court must appoint a guardian to consent to or refuse the medication on behalf of the person and order development of a treatment plan, including psychotropic medication, for the person. If the person substantially fails to comply with the treatment plan and if certain conditions are met, the court may authorize the person's guardian to consent to the forcible administration of psychotropic medication to the person.
This bill defines "psychotropic medication" and authorizes the guardian of a nonprotesting ward with whom the guardian has discussed the receipt of medication, including psychotropic medication, to give an informed consent to the voluntary receipt by the ward of the medication, without the necessity of court procedures for approval.
Involuntary Administration of Psychotropic Medication
This bill provides that a guardian may be authorized to consent to involuntary administration of psychotropic medication to a ward and involuntary administration of psychotropic medication as a protective service if certain requirements are met. The bill also specifies that psychotropic medication may not be involuntarily administered to a person who has been protectively placed except by the procedure created in the bill.
In the bill, "psychotropic medication" is defined as a prescription drug that is used to treat or manage a psychiatric symptom or challenging behavior. "Involuntary administration of psychotropic medication" is defined to include all of the following: placing psychotropic medication in a person's food or drink with knowledge that the person protests receipt of the psychotropic medication; forcibly restraining a person to enable administration of psychotropic medication; and requiring a person to take psychotropic medication as a condition to receiving privileges or benefits.
Petition
The bill requires a petition for involuntary administration of psychotropic medication as a protective service to meet all requirements for a protective services petition under ch. 55 and in addition requires the petition to allege all of the following:
1. A physician has prescribed psychotropic medication for the person.
2. The person is not competent to refuse psychotropic medication. "Not competent to refuse psychotropic medication" means that as a result of developmental disabilities, degenerative brain disorder, serious and persistent mental illness, or other like incapacities, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to the individual, the individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives to accepting treatment or the individual is substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives to treatment to his or her medical or psychiatric condition in order to make an informed choice as to whether to accept or refuse psychotropic medication.
3. The person has refused to take psychotropic medication voluntarily or attempting to administer psychotropic medications to the person voluntarily is not feasible or is not in the person's best interests. If the petition alleges that the person has refused to take psychotropic medication voluntarily, the petition must identify the reasons for the person's refusal. The petition must also contain evidence showing that a reasonable number of documented attempts to administer psychotropic medication voluntarily using appropriate interventions that could reasonably be expected to increase the person's willingness to take the medication voluntarily, have been made and have been unsuccessful. If the petition alleges that attempting to administer psychotropic medications to the person voluntarily is not feasible or is not in the best interests of the person, the petition must identify specific reasons supporting that allegation.
4. The person's condition for which psychotropic medication has been prescribed is likely to be improved by psychotropic medication and the person is likely to respond positively to psychotropic medication.
5. That unless psychotropic medication is administered involuntarily, the person will incur an immediate or imminent substantial probability of physical harm, impairment, injury, or debilitation or will present a substantial probability of physical harm to others. The substantial probability of physical harm, impairment, injury, or debilitation may be shown either by evidence that the person has a history of at least 2 episodes, one of which has occurred within the previous 24 months, that indicate a pattern of overt activity, attempts, threats to act, or omissions that resulted from the person's failure to participate in treatment, including psychotropic medication, and that resulted in a finding of probable cause for commitment under s. 51.20 (7), a settlement agreement approved by a court under s. 51.20 (8) (bg) or commitment ordered under s. 51.20 (13), or by evidence that the subject individual meets one of the dangerousness criteria set forth in the mental health law, in s. 51.20 (1) (a) 2. a. through e.
The bill requires a petition for involuntary administration of psychotropic medication to include a written statement signed by a physician who has personal knowledge of the person that provides general clinical information regarding the appropriate use of psychotropic medication for the person's condition and specific data that indicates the person's current symptoms necessitate the use of the psychotropic medication.
The bill specifies that the corporation counsel shall be provided notice of any petition for involuntary administration of psychotropic medication and may assist in the proceedings on any such petition.
Guardian ad Litem Report
The bill requires the guardian ad litem appointed for a person who is the subject of a petition for involuntary administration of psychotropic medication as a protective service to report to the court his or her conclusion as to whether the person is competent to refuse psychotropic medication, whether the allegations in the petition pertaining to the person's dangerousness are true, whether the person refuses to take the psychotropic medication voluntarily, and whether the involuntary administration of the psychotropic medication is in the best interest of the person.
Appointment of Legal Counsel
The bill requires the court to appoint legal counsel on behalf of a person who is the subject of a petition for involuntary administration of psychotropic medication as a protective service.
Independent Evaluation
The bill provides that if requested by the person who is the subject of the petition, or anyone on his or her behalf, the person has the right to an independent medical or psychological evaluation relevant to the issues of whether the allegations in the petition are true and whether involuntary administration of psychotropic medication is in the best interest of the person. The person has the right to present a report of the independent evaluation or the evaluator's personal testimony as evidence at the hearing. The evaluation shall be performed at the expense of the person who is the subject of the petition unless the person is indigent. If the person is indigent, the evaluation shall be performed at the expense of the county where the petition is filed.
Court Order
The bill provides that the court may authorize a guardian to consent to involuntary administration of psychotropic medication to a ward and may order involuntary administration of psychotropic medication to the person as a protective service, with the guardian's consent, if the court or jury finds by clear and convincing evidence that the requirements for involuntary administration of psychotropic medication established in the bill have been met, psychotropic medication is necessary for treating the specific condition outlined in the physician's statement and all other requirements for ordering protective services under ch. 55 have been met.
The bill specifies that if the court issues an order authorizing a guardian to consent to involuntary administration of psychotropic medications, the order must specify the methods of involuntary administration of psychotropic medication to which the guardian may consent. An order authorizing the forcible restraint of a person must require a registered nurse, a licensed practical nurse, a physician or a physician's assistant to be present at all times that psychotropic medication is administered in this manner. An order must require the person or facility administering psychotropic medication to maintain records noting each instance of involuntary administration of psychotropic medication that identify the methods of administration utilized.
The court must also order development of a treatment plan that includes a plan for involuntary administration of psychotropic medication to the person with consent of the guardian. If the person resides in a hospital or nursing home, the hospital or nursing home must develop the plan; otherwise the county department or an agency designated by it must develop the plan. The court must review the plan and approve or disapprove the plan. The court must order the county department or an agency designated by it to ensure that psychotropic medication is administered in accordance with the treatment plan.
Enforcement
The bill specifies that if a person who is subject to an order for involuntary administration of psychotropic medication refuses to take the medication and it is necessary for the person to be transported to an appropriate facility so that the person may be forcibly restrained for administration, the corporation counsel may file a statement of noncompliance with the court. The statement must be signed by the guardian and the director (or designee) of the county department or the agency designated by it to develop and administer the treatment plan. Upon receipt of the statement, the court may issue an order authorizing the sheriff or other law enforcement agency to take the person into custody and transport the person to an appropriate facility for administration of psychotropic medication using forcible restraint, with consent of the guardian.
Annual Review of Order Authorizing Involuntary Administration of Psychotropic Medication
The bill specifies an order authorizing a guardian to consent to involuntary administration of psychotropic medication as a protective service must be reviewed by the court annually under generally the same procedure that protective placements are reviewed ("Watts" reviews).
County Department Review and Report
The bill requires the county department of the county of residence of any individual who is subject to an order authorizing involuntary administration of psychotropic medication as a protective service to annually review the status of the individual. If, in an annual review, the individual or his or her guardian or guardian ad litem request termination of the order and the court provides a full due process hearing or a full due process hearing is provided pursuant to a petition for termination of the order, the county is not required to review the status of the individual until one year after the court issues a final order after the full due process hearing.
If the individual is, or subsequently becomes, subject to an order for protective placement, the annual review shall be conducted simultaneously with the annual review of the individual's protective placement.
The county of residence of an individual who is subject to an order authorizing involuntary administration of psychotropic medication and whose placement is in a different county may enter into an agreement under which the county of placement performs all or a part of the county duties specified in the bill.
The county review must include a written evaluation of the physical, mental, and social condition of the individual that are relevant to the continued need for the order for involuntary administration of psychotropic medication. The review must be made part of the individual's permanent record. The county department must inform the individual's guardian of the review and invite the individual and his or her guardian to submit comments concerning the individual's need for protective placement or protective services. In performing the review, the county department or contractual agency staff member performing the review must visit the individual and must contact the individual's guardian. The review may not be conducted by a person who is an employee of a facility in which the individual resides or from which the individual receives services.
By the first day of the 11th month after the initial order is made, and annually thereafter, the county must do all of the following:
1. File a report of the review with the court that issued the order.
2. File with the court a petition for annual review of the order.
3. Provide the report to the individual and the individual's guardian.
The report must contain information on all of the following:
1. Whether the individual continues to meet the standards for protective services.
2. Whether the individual is not competent to refuse psychotropic medication as set forth in s. 55.14 (1) (b).
3. Whether the individual continues to refuse to take psychotropic medication voluntarily or attempting to administer psychotropic medication to the individual voluntarily is not in the best interests of the individual as set forth in s. 55.14 (3) (c).
4. Whether the individual's condition for which psychotropic medication has been prescribed has been improved by psychotropic medication and the person has responded positively to psychotropic medication.
5. Whether the individual continues to meet the dangerousness criteria set forth in s. 51.20 (1) (a) 2. a. to e.
6. A summary of the comments of the individual and the individual's guardian and the county's response to those comments.
7. The comments, if any, of any staff member at any facility at which the individual is placed or receives services or at which psychotropic medication is administered to the individual which are relevant to the continued need for the order.
Responsibilities of the Guardian Ad Litem
The court is required to appoint a guardian ad litem after it receives the report from the county described above. The guardian ad litem is required to do all of the following:
1. Review the report filed by the county, the annual report of the guardian, and any other reports on the individual's condition that are relevant to the continued need for involuntary administration of psychotropic medication.
2. Meet with the individual and contact the individual's guardian and orally explain to the individual and guardian all of the following:
a. The procedure for review of the order for involuntary administration of psychotropic medication.
b. The right to appointment of legal counsel.
c. The right to request performance of an independent evaluation.
d. The contents of the report submitted to the court by the county.
e. That a termination or modification of the order may be ordered by the court.
f. The right to a hearing and an explanation that the individual or the individual's guardian may request a full due process hearing.
The guardian ad litem must provide all of the information described above to the individual and the individual's guardian in writing.
3. Review the individual's condition and rights with the individual's guardian.
4. Ascertain whether the individual wishes to exercise any of his or her rights (the right to appointment of legal counsel, to request an independent evaluation, and to a full due process hearing).
5. File a written report with the court within 30 days after appointment that includes a discussion of whether the individual appears to continue to meet the standards for the order. The report must also state whether any of the following applies:
a. The guardian ad litem, the individual, or the individual's guardian request an independent evaluation.
b. The individual or the individual's guardian requests termination of the order.
c. The individual or the individual's guardian requests, or the guardian ad litem recommends, that legal counsel be appointed for the individual.
d. The individual or his or her guardian or guardian ad litem requests a full due process hearing.
6. Certify to the court that he or she has complied with the requirements described under items 1., 2., 3., and 4., above.
Court Review of Reports, Hearing, and Order
The bill requires the court that issues an order for involuntary administration of psychotropic medication to review, not more than 12 months after the initial order and annually thereafter, the reports of the county and the guardian ad litem, described above, and the annual report filed by the guardian under s. 880.38 (3), stats. In its review, the court must determine whether any of the following is necessary:
1. Performance of an independent evaluation of the physical, mental, and social condition of the individual that are relevant to the issue of the continued need for the order. If the court determines that an independent evaluation is necessary, the evaluation shall be performed at the expense of the individual unless the individual is indigent. If the individual is indigent, the evaluation is performed at the expense of the responsible county department. The court must order the performance of an independent evaluation if any of the following applies:
a. The report submitted by the county is not timely filed or the court determines that the report fails to meet the statutory requirements.
b. Following review of the guardian ad litem's report, the court determines that independent evaluation is necessary.
c. The individual or the individual's guardian or guardian ad litem requests an independent evaluation.
2. Obtaining any other information with respect to the individual.
3. Appointment of legal counsel. If the court appoints legal counsel and it appears that the individual is indigent, the court shall refer the individual to the authority for indigency determinations under s. 977.07 (1). The court must order legal counsel for an individual if any of the following applies:
a. Following review of the guardian ad litem's report, the court determines that legal counsel for the individual is necessary.
b. The individual or the individual's guardian or guardian ad litem requests appointment of legal counsel.
