2005 Wisconsin Act 387

55.01 (6v) "Serious and persistent mental illness" means a mental illness that is severe in degree and persistent in duration, that causes a substantially diminished level of functioning in the primary aspects of daily living and an inability to cope with the ordinary demands of life, that may lead to an inability to maintain stable adjustment and independent functioning without long-term treatment and support, and that may be of lifelong duration. "Serious and persistent mental illness" includes schizophrenia as well as a wide spectrum of psychotic and other severely disabling psychiatric diagnostic categories, but does not include degenerative brain disorder or a primary diagnosis of a developmental disability, as defined in s. 51.01 (5) (a), or of alcohol or drug dependence.

387,104 Section 104. 55.02 of the statutes is amended to read:

55.02 Protective service system; establishment. The department shall develop a statewide system of protective service for mentally retarded and other developmentally disabled persons, for aged infirm persons, for chronically mentally ill persons, and for persons with other like incapacities incurred at any age in accordance with rules promulgated by the department. The protective service system shall be designed to encourage independent living and to avoid protective placement whenever possible. The system shall use the planning and advice of agencies, including the county department under s. 46.215, 46.22, 46.23, 51.42, or 51.437. The chairperson of each county board of supervisors shall designate a county department under s. 46.215, 46.22, 51.42, or 51.437 that is providing services in his or her county or a joint mechanism of these county departments to have the responsibility for local planning for the protective service system. The chairperson of the Milwaukee County board of supervisors shall designate the county department under s. 46.215 to serve as the county protective services agency for purposes of s. 55.043. The department and these county departments shall cooperate in developing a coordinated system of services. The department shall provide direct services and enter into contracts with any responsible public or private agency for provision of protective services. In each county, the county department designated under this section shall determine the reporting requirements applicable to the county under s. 880.38 (3) 54.25 (1) (a).

387,105 Section 105. 55.03 of the statutes is amended to read:

55.03 Status of guardian. No agency acting as a guardian appointed under ch. 54. or ch. 880 shall, 2003 stats., may be a provider of protective services or placement for its ward under this chapter. Nothing in this chapter shall may be construed to prohibit the transfer of guardianship and legal custody under s. 48.427 or 48.43.

387,106 Section 106. 55.05 (2) (d) of the statutes is amended to read:

55.05 (2) (d) The court may order protective services for an individual for whom a determination of incompetency is made under s. 880.33 54.10 (3) 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. The court may order the involuntary administration of psychotropic medication as a protective service under this paragraph only if a determination of incompetency is made for the individual under s. 880.33 (4m). The court may authorize a guardian to consent to forcible administration of psychotropic medication for an individual only if the court has made a finding under s. 880.33 (4r) (b) that the individual has substantially failed to comply with the administration of psychotropic medication under the individual's treatment plan only under the requirements of s. 55.14.

387,107 Section 107. 55.05 (5) (b) 1. of the statutes is amended to read:

55.05 (5) (b) 1. Guardians of persons who have been found adjudicated incompetent under s. 880.33 may consent to admission to a foster home, group home or community-based residential facility, as defined under s. 50.01 (1g), without a protective placement under s. 55.06 if the home or facility is licensed for fewer than 16 beds. Prior to providing that consent, and annually thereafter, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a home or facility that implements those rights.

387,108 Section 108. 55.05 (5) (b) 2. of the statutes is amended to read:

55.05 (5) (b) 2. Guardians of persons who have been found adjudicated incompetent under s. 880.33 may consent to admission to a nursing home if the person is admitted directly from a hospital inpatient unit for recuperative care for a period not to exceed 3 months, unless the hospital admission was for psychiatric care. Prior to providing that consent, the guardian shall review the ward's right to the least restrictive residential environment and consent only to admission to a nursing home that implements those rights. Following the 3-month period, a placement proceeding under s. 55.06 is required. Admission under this paragraph is not permitted for an individual for whom the primary purpose of admission is for treatment or services related to the individual's mental illness or developmental disability.

387,109 Section 109. 55.06 (1) (intro.) of the statutes is amended to read:

55.06 (1) (intro.) A protective placement under this section is a placement of a ward for the primary purpose of providing care and custody. To be eligible for placement, an individual shall have attained the age of 18, but an individual who is alleged to be developmentally disabled may receive placement upon attaining the age of 14. No protective placement under this section may be ordered unless there is a determination an adjudication of incompetency in accordance with ch. 880 this state, except in the case of a minor who is alleged to be developmentally disabled, and there is a finding of a need for protective placement in accordance with sub. (2) except as provided in subs. (11) and (12). A procedure for adult protective placement may be initiated 6 months prior to an individual's birthday at which he or she first becomes eligible for placement.

387,110 Section 110. 55.06 (1) (a) of the statutes is amended to read:

55.06 (1) (a) The board designated under s. 55.02 department, the county department or an agency designated by it with which the county department contracts under s. 55.05 (2), a guardian, or an interested person may file a petition for appointment of a guardian and for protective services or protective placement for the individual. The department shall provide for a schedule of reimbursement for the cost of such the proceedings based upon the ability to pay of the proposed ward or person individual to be protected.

387,111 Section 111. 55.06 (2) (b) of the statutes is amended to read:

55.06 (2) (b) Except in the case of a minor who is alleged to be developmentally disabled, has either been determined to be adjudicated incompetent by a circuit court, or has had submitted on the minor's behalf a petition for a guardianship;

387,112 Section 112. 55.06 (3) (c) of the statutes is amended to read:

55.06 (3) (c) The A petition under sub. (1) shall be filed in the county of residence of the person individual to be protected, as determined under s. 51.40 or by the individual's guardian or where the individual is physically present due to circumstances including those specified under s. 51.22 (4). If an individual has not received services under ch. 46, 51, or 55 or if an individual has received services under ch. 46, 51, or 55 that have been terminated and has established residence in a county other than that in which the individual resided when the services were received, the court may determine the individual's county of residence. The county of residence under this paragraph is the county of responsibility.

387,113 Section 113. 55.06 (3) (d) of the statutes is created to read:

55.06 (3) (d) The court in which a petition is first filed under par. (c) shall determine venue. The court shall direct that proper notice be given to any potentially responsible or affected county. Proper notice is given to a potentially responsible or affected county if written notice of the proceeding is sent by certified mail to the county's clerk and corporation counsel. After all potentially responsible or affected counties and parties have been given an opportunity to be heard, the court shall determine that venue lies in the county in which the petition is filed under par. (c) or in another county, as appropriate. If the court determines that venue lies in another county, the court shall order the entire record certified to the proper court. A court in which a subsequent petition is filed shall, upon being satisfied of an earlier filing in another court, summarily dismiss the subsequent petition. If any potentially responsible or affected county or party objects to the court's finding of venue, the court may refer the issue to the department for a determination of the county of residence under s. 51.40 (2) (g) and may suspend ruling on the motion for change of venue until the determination under s. 51.40 (2) (g) is final.

387,114 Section 114. 55.06 (4) of the statutes is amended to read:

55.06 (4) A petition for guardianship if required under sub. (2) (b) must be heard prior to placement under this section. If incompetency has been determined under s. 880.33 adjudicated in this state more than one year preceding the filing of an application for protective placement, the court shall review the finding of incompetency.

387,115 Section 115. 55.06 (5) of the statutes is amended to read:

55.06 (5) Notice of a petition for placement shall be served upon the person sought to be placed, by personal service, at least 10 days prior to the time set for a hearing. Upon service of the notice, the person sought to be protected shall be informed of the complete contents of the notice. The person serving the notice shall return a certificate to the circuit judge verifying that the petition has been delivered and notice given. The notice shall include the names of all petitioners. Notice shall also be served personally or by mail upon the person's guardian ad litem, legal counsel, guardian, if any, presumptive adult heirs, and upon other persons who have physical custody of the person to be protected whose names and addresses are known to the petitioner or can with reasonable diligence be ascertained, to any governmental or private body or group from whom the person to be protected is known to be receiving aid, and to such other persons or entities as the court may require. Notice shall also be served personally or by mail upon the department at least 10 days prior to the time set for hearing if the person sought to be protected may be placed in a center for the developmentally disabled. Notice shall also be served personally or by mail, at least 10 days before the time set for hearing, upon the county department that is participating in the program under s. 46.278 of the county of residence of the person sought to be protected, if the person has a developmental disability and may be placed in an intermediate facility or a nursing facility, except that, for a person sought to be protected to whom s. 46.279 (4m) applies, this notice shall instead be served on the department. The individual adjudicated incompetent or proposed incompetent for a determination of incompetency is presumed able to attend the hearing unless, after a personal interview, the guardian ad litem certifies to the court that the person is unable to attend.

387,116 Section 116. 55.06 (6) of the statutes is amended to read:

55.06 (6) Section 880.33 (2) applies Sections 54.42, 54.44, and 54.46 apply to all hearings under this chapter except for transfers of placement under sub. (9) (b), and (c) and (e). A person to be protected shall have a guardian ad litem who is an attorney appointed in accordance with s. 757.48 (1) present at all hearings under this chapter if the person does not have full legal counsel. The court may, however, excuse a personal appearance by a guardian ad litem based on information contained in a written report by the guardian ad litem to the court. If the person is an adult who is indigent, the county of legal settlement shall be liable for guardian ad litem fees. If the person is a child, the person's parents or the county of legal settlement shall be liable for guardian ad litem fees as provided in s. 48.235 (8). The subject individual, attorney or guardian ad litem shall have the right to present and cross-examine witnesses, including any person making an evaluation or review under sub. (8) (c).

387,117 Section 117. 55.06 (8) (c) of the statutes is amended to read:

55.06 (8) (c) A medical, psychological, social, vocational and educational evaluation and review, where necessary, and any recommendations for or against maintenance of partial legal rights as provided in s. 880.33 54.25 (2). Such evaluation and review shall include recommendations for placement consistent with the least restrictive environment required.

387,118 Section 118. 55.06 (10) (c) of the statutes is amended to read:

55.06 (10) (c) Except in the case of a minor who is developmentally disabled and who has a parent or person in the place of a parent, termination of guardianship automatically revokes any protective placement made or protective services provided under this chapter unless the placement or services are continued on a voluntary basis. Notice to this effect shall be given to the ward by the provider of services at the time of termination. If protective placement is made or protective services are provided under this chapter to a minor who is developmentally disabled, the attainment of the age of majority by such the individual automatically revokes any such protective placement made or protective services provided unless the placement or services are continued on a voluntary basis, or there is a finding an adjudication of incompetency and appointment of a guardian pursuant to ch. 880 in this state.

387,119 Section 119. 55.06 (14) of the statutes is amended to read:

55.06 (14) Prior to discharge of an individual from a protective placement, the appropriate board which county department that is responsible for protective placement shall review the need for provision of continuing protective services or for, continuation of full or limited guardianship, or provision for such guardianship, if the individual has no guardian, guardianship. Recommendation shall be made to the court if If the county department's recommendation includes a course of action for which court approval would be required, the county department shall make the recommendation to the court. Prior to discharge of the individual from any state mental health institute or center for the developmentally disabled, the department shall make such the review under s. 51.35.

387,120 Section 120. 55.06 (17) (b) of the statutes is amended to read:

55.06 (17) (b) If the subject is an adult who has been adjudged incompetent under ch. 880 or is a minor, consent for release of information from and access to the court records may be given only as provided in s. 51.30 (5). If the subject is an adult who has been adjudicated incompetent in this state, consent for release of information from and access to court records may be given only as provided in s. 54.75.

387,121 Section 121. 55.14 of the statutes is created to read:

55.14 Involuntary administration of psychotropic medication. (1) In this section:

(a) "Involuntary administration of psychotropic medication" means any of the following:

1. Placing psychotropic medication in an individual's food or drink with knowledge that the individual protests receipt of the psychotropic medication.

2. Forcibly restraining an individual to enable administration of psychotropic medication.

3. Requiring an individual to take psychotropic medication as a condition of receiving privileges or benefits.

(c) "Protest" means make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of psychotropic medication. "Protest" does not mean a discernible negative response to a proposed method of administration of the psychotropic medication.

(d) "Psychotropic medication" means a prescription drug, as defined in s. 450.01 (20), that is used to treat or manage a psychiatric symptom or challenging behavior.

(2) Involuntary administration of psychotropic medication, with consent of a guardian, may be ordered as a protective service only under the requirements of this section.

(3) In addition to the other requirements of this chapter pertaining to petitions for protective services, a petition under this section shall allege that all of the following are true:

(a) A physician has prescribed psychotropic medication for the individual.

(b) The individual is not competent to refuse psychotropic medication.

(c) One of the following is true:

1. The individual has refused to take the psychotropic medication voluntarily. If this is alleged, the petition shall identify, if known, the reasons the individual refuses to take psychotropic medication voluntarily and shall provide 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 individual's willingness to take psychotropic medication voluntarily have been made and have been unsuccessful.

2. Attempting to administer psychotropic medications to the individual voluntarily is not feasible or is not in the best interests of the individual. If this is alleged, the petition must identify specific reasons supporting that allegation.

(d) The individual's condition for which psychotropic medication has been prescribed is likely to be improved by administration of psychotropic medication and the individual is likely to respond positively to psychotropic medication.

(e) Unless psychotropic medication is administered involuntarily, the individual will incur a 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 shall be evidenced by one of the following:

1. The individual's 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 individual'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) (b), or commitment ordered under s. 51.20 (13).

2. Evidence that the individual meets one of the dangerousness criteria set forth in s. 51.20 (1) (a) 2. a. to e.

(4) A petition under this section must include a written statement signed by a physician who has personal knowledge of the individual that provides general clinical information regarding the appropriate use of psychotropic medication for the individual's condition and specific data that indicates that the individual's current condition necessitates the use of psychotropic medication.

(5) The guardian ad litem appointed under s. 55.06 (6) for an individual who is the subject of a petition under this section shall report to the court whether the allegations in the petition required under sub. (3) are true, and whether involuntary administration of psychotropic medication is in the best interests of the individual.

(6) If requested by an individual who is the subject of a petition under this section or anyone on his or her behalf, the individual has the right at his or her own expense, or if indigent at the expense of the county in which the petition is filed, to secure an independent medical or psychological examination relevant to the issue of whether the allegations in the petition required under sub. (3) are true and whether involuntary administration of psychotropic medication is in the best interest of the individual, and to present a report of this independent evaluation or the evaluator's personal testimony as evidence at the hearing.

(7) Upon the filing of a petition under this section, the court shall appoint counsel. A petition under this section shall be heard under s. 55.06 within 30 days after it is filed.

(8) The court may issue an order authorizing an individual's guardian to consent to involuntary administration of psychotropic medication to the individual and may order involuntary administration of psychotropic medication to the individual as a protective service, with the guardian's consent if the court or jury finds by clear and convincing evidence that the allegations in the petition required under sub. (3) are true, all other requirements for involuntary administration of psychotropic medication under this section have been met, psychotropic medication is necessary for treating the condition described in the statement under sub. (4), and all other requirements of this chapter for ordering protective services have been met. An order under this section shall do all of the following:

(a) Direct the development of a treatment plan for the individual specifying the protective services, including psychotropic medication as ordered by the treating physician, that the individual should receive. If the individual resides in a nursing home or hospital, the nursing home or hospital shall develop the treatment plan. If the individual resides elsewhere, the county department or an agency with which it contracts shall develop the treatment plan. The treatment plan shall include a plan for the involuntary administration of psychotropic medication to the individual. The treatment plan is subject to the approval of the guardian and to review and approval by the court. If the court approves the plan, the court shall order the county department or an agency with which it contracts to ensure that protective services, including psychotropic medication, are administered in accordance with the treatment plan.

(b) Order the individual to comply with the treatment plan under par. (a). The order shall provide that if the individual fails to comply with provisions of the treatment plan that require the individual to take psychotropic medications, the medications may be administered involuntarily with consent of the guardian. The order shall specify the methods of involuntary administration of psychotropic medication to which the guardian may consent. An order authorizing the forcible restraint of an individual shall specify that a person licensed under s. 441.06, 441.10, or 448.05 (2) or (5) shall be present at all times that psychotropic medication is administered in this manner and shall require the person or facility using forcible restraint to maintain records stating the date of each administration, the medication administered, and the method of forcible restraint utilized.

(9) If an individual who is subject to an order under this section is not in compliance with the order because he or she refuses to take psychotropic medication as ordered under the treatment plan, and it is necessary for the individual to be transported to an appropriate facility for forcible restraint for administration of psychotropic medication, the corporation counsel shall file with the court a statement of the facts which constitute basis for the noncompliance of the individual. The statement shall be sworn to be true and shall be based upon the information and belief of the person filing the statement. The statement shall be signed by the individual's guardian and by the director or designee of the county department or an agency with which it contracts to develop and administer the treatment plan. Upon receipt of the statement of noncompliance, if the court finds by clear and convincing evidence that the individual has substantially failed to comply with the administration of psychotropic medication as ordered under the treatment plan, the court may issue an order authorizing the sheriff or any other law enforcement agency in the county in which the individual is found or in which it is believed that the individual may be present to take the individual into custody and transport him or her to an appropriate facility for administration of psychotropic medication using forcible restraint, with consent of the guardian.

(10) Nothing in this section prohibits the involuntary administration of psychotropic medication as an emergency protective service under this chapter.

(11) The county department or an agency with which it contracts shall provide to the department a copy of any order issued under this section that applies to any protectively placed individual in the county.

(12) The department shall annually submit to the legislature under s. 13.172 (2) a report regarding orders under this section.

(13) An order under this section is subject to annual review under s. 55.19.

387,122 Section 122. 55.19 of the statutes is created to read:

55.19 Annual review of order authorizing involuntary administration of psychotropic medication. In addition to or in conjunction with the annual review required under s. 55.06 (10), all of the following shall be performed with respect to any individual who is subject to an order under s. 55.14 or an order initially issued under s. 880.33 (4r), 2003 stats., authorizing involuntary administration of psychotropic medication:

(1) County department performance of review. (a) The county department of the individual's county of residence shall, except as provided in sub. (1m), review, in compliance with the requirements of this section, the status of each individual who is the subject of the order. The review shall include a visit to the individual and a written evaluation of the physical, mental, and social condition of the individual that is relevant to the issue of the continued need for the order. The review shall be made a part of the permanent record of the individual. The county department shall inform the guardian of the individual of the review at the time the review is made and shall invite the individual and the guardian to submit comments or information concerning the individual's need for involuntary administration of psychotropic medication or other protective services before completing a report of the review. Not later than the first day of the 11th month after the initial order is made for an individual, except as provided in par. (b), and at least annually thereafter, the county department shall do all of the following:

1. File a report of the review with the court that issued the order.

2. File with the court under subd. 1. a petition for annual review by the court of the order.

3. Provide the report under subd. 1. to the individual and the guardian of the individual.

(b) If, in an annual review of an individual's status under par. (a), the individual or the individual's guardian or guardian ad litem requests termination of the order and a full due process hearing is provided, or if a full due process hearing is provided under a petition for modification or termination of the order, the county department is not required to initiate a subsequent review under par. (a) until the first day of the 11th month after the date that the court issues a final order after the full due process hearing.

(bm) If the individual is subject to a protective placement order, the review under par. (a) shall be conducted simultaneously with any review of the individual's protective placement.

(c) The review under par. (a) 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. The report of the review shall include 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 defined 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 feasible or is not in the best interests of the individual, as specified 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 individual has responded positively to psychotropic medication.

5. If the petitioner alleged under s. 55.14 (3) (e) 2. that the individual meet one of the dangerousness criteria set forth in s. 51.20 (1) (a) 2. a. to e., whether the individual continues to meet the criterion.

6. The comments of the individual and the individual's guardian during the performance of the review, as summarized by the county department, and the response of the county department to the comments.

7. The comments, if any, of a staff member at the facility at which the individual is placed or receives services or at which psychotropic medication is administered to the individual that are relevant to the review of the continued need for the order.

(1m) County agreement. The county of residence of an individual who is subject to an order under s. 55.14 and is protectively placed in a different county may enter into an agreement with that county under which the county of the individual's placement performs all or part of the duties of the county of residence under this section.

(2) Guardian ad litem appointment and report. After a county department has filed a report with a court under sub. (1) (a) 1., the court shall appoint a guardian ad litem in accordance with s. 757.48 (1). The guardian ad litem shall do all of the following:

(a) Review the report filed under sub. (1) (a) 1. and any other relevant reports on the individual's condition and continued need for the order under s. 55.14.

(b) Meet with the individual and contact the individual's guardian and orally explain to the individual and guardian all of the following:

1. The procedure for review of an order for involuntary administration of psychotropic medication.

2. The right of the individual to appointment of legal counsel under sub. (3) (c).

3. That the court may under sub. (3) (b) 1. order performance of an evaluation.