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.
4. Holding of a full due process hearing.
Upon completion of its review, the court must order either a summary hearing or
a full due process hearing. A summary hearing may be held in court or may be held by
other means such as by telephone or by a videoconference. The court must hold a full due
process hearing if any of the following applies:
a. The individual or the individual's guardian or guardian ad litem requests a full
due process hearing.
b. The report of the guardian ad litem indicates that the individual no longer meets
standards for the order.
c. The report of the guardian ad litem indicates that the individual objects to the
order.
Following the summary hearing or the full due process hearing, the court must do
one of the following:
1. Order the continuation of the order. The court shall make this order if it finds
that the individual continues to meet the standards for involuntary administration of
psychotropic medication. The court must include the information relied upon as a basis
for the order and make findings based on the factors set forth in s. 55.14 (3) in support
of the need for continuation of the order.
2. Terminate the order. The court shall make this order if it determines that the
individual no longer meets the standards for involuntary administration of psychotropic
medication. If the court terminates an order, it must review the needs of the individual
with respect to protective services and order protective services if it determines the
individual meets the standards for protective services that are not currently being
provided.
The bill requires the court to provide a copy of its order to the individual, the
individual's guardian, guardian ad litem and legal counsel, the residential facility in
which the individual is protectively placed, if any, and the county department.
Other Provisions
The bill repeals the following statutory provisions in ch. 880, relating to a
guardian's authority to consent to administration, including forcible administration, of
psychotropic medication to a ward: (1) s. 880.01 (7m), which defines "not competent to
refuse psychotropic medication" for purposes of ch. 880; (2) s. 880.07 (1m), which sets
forth required contents of a petition alleging that a person for whom guardianship is
sought is not competent to refuse psychotropic medication; and (3) s. 880.33 (4m) and (4r),
which set forth procedures under which the guardian may consent to or refuse
psychotropic medication on behalf of the ward, including consent to forcible
administration of psychotropic medication.
The bill specifies that any orders issued under those provisions remain in effect
until modified or terminated by the court. The bill also specifies that orders authorizing
involuntary administration of psychotropic medication originally issued under s. 880.33
(4r), which is repealed by the bill, are subject to annual review as described above.
These provisions are replaced by the procedures created by the bill.
The bill specifies that involuntary administration of psychotropic medication may
be ordered as an emergency protective service.
The bill requires counties to provide to the department a copy of any order for
involuntary administration of psychotropic medications to any protectively placed person
in the county.
The bill requires the DHFS to annually submit to the legislature a report regarding
orders for involuntary administration of psychotropic medication.
Involuntary Administration of Medication and Involuntary Medical Treatment
Other Than Psychotropic Medication
