LRB-2898/1
TJD:sac:rs
2013 - 2014 LEGISLATURE
September 13, 2013 - Introduced by
Joint Legislative Council. Referred to
Committee on Corrections.
AB360,1,8
1An Act to repeal 51.15 (2) (a), (b) and (c), 51.20 (13) (g) 2. and 51.20 (13) (g) 2m.;
2to renumber and amend 51.15 (1) (a);
to consolidate, renumber and
3amend 51.15 (2) (intro.) and (d);
to amend 51.15 (1) (title), 51.15 (3), 51.15 (4)
4(a), 51.15 (4) (b), 51.15 (5) and (9), 51.20 (1) (a) 2. c., 51.20 (2) (b), 51.20 (2) (d),
551.20 (7) and (8) (b) and (bm), 51.20 (13) (g) 1., 51.20 (13) (g) 2r. and 905.04 (4)
6(a); and
to create 51.15 (1) (ag) and 51.15 (4) (c) of the statutes;
relating to:
7emergency detention, involuntary commitment, and privileged
8communications and information.
Analysis by the Legislative Reference Bureau
This bill is explained in the Notes provided by the Joint Legislative Council in
the bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
Joint Legislative Council prefatory note: This bill was prepared for the Joint
Legislative Council's Special Committee on Review of Emergency Detention and
Admission of Minors Under Chapter 51.
The bill makes the following changes to Wisconsin laws dealing with emergency
detention, involuntary commitment, and privileged communications and information:
1. Current law allows a law enforcement officer or other specified persons to take
a person into custody on an emergency detention basis if certain criteria are met. The bill
modifies this statute to require a determination "...that taking the person into custody is
the least restrictive alternative appropriate to the person's needs." [Section 2.]
2. Current law provides standards for emergency detention and involuntary
commitment. The 3rd standard of dangerousness allows for commitment if there is a
substantial probability of physical impairment or injury to himself or herself due to
impaired judgment. The bill modifies this language to also include a substantial
probability of physical impairment or injury to others. [Sections 2 and 11.]
3. Under current law, an emergency detention of an individual under the 4th
standard of dangerousness must be due to the individual's mental illness or drug
dependency, which results in the individual's inability to satisfy certain basic needs which
will result in death or serious harm to the individual. The bill deletes the reference to
drug dependency from the 4th standard of emergency detention, to make this standard
consistent with the 4th standard for involuntary commitment. [Section 2.]
4. The bill creates a "purpose" statement for the emergency detention statute. The
statement says that the purpose of emergency detention is to provide, on an emergency
basis, treatment by the least restrictive means possible, to individuals who meet all of the
following criteria: (a) are mentally ill, drug dependent, or developmentally disabled; (b)
evidence one of the statutory standards of dangerousness; and (c) are reasonably believed
to be unable or unwilling to cooperate with voluntary treatment. [
Section 3.]
5. The bill provides that the county department may approve an emergency
detention only if the county department reasonably believes the individual will not
voluntarily consent to evaluation, diagnosis, and treatment necessary to stabilize the
individual and remove a substantial probability of physical harm, impairment, or injury
to himself, herself, or others. [Section 4.]
6. Under current law, emergency detention may occur in a hospital approved by
the department of health services as a detention facility or under contract with the county
department, an approved public treatment facility, a center for the developmentally
disabled, a state treatment facility, or an approved private treatment facility if the facility
agrees to detain the individual. The bill consolidates the references to these facilities to
provide that detention may occur in a treatment facility approved by the department or
county department, if the facility agrees to detain the individual, or a state treatment
facility. [Sections 4
, 13, and 14.]
7. Current law provides that upon arrival at an emergency detention facility, the
custody of the individual who is the subject of an emergency detention is transferred to
the facility. However, current law does not specify when custody begins prior to the
individual's arrival at a facility. The bill provides that an individual is deemed to be in
custody when the individual is under the physical control of the law enforcement officer,
or other person authorized to take a child or juvenile into custody, for the purposes of
emergency detention. [Section 6
.]
8. Current law provides different procedures for emergency detention in counties
with a population of 500,000 or more and those with a population of less than 500,000.
The bill increases the population threshold to 750,000, so that those procedures will
continue to apply only to Milwaukee County. [Sections 7 and 10
.]
9. Current law in counties with a population of 500,000 or more requires that the
treatment director of the facility in which the person is detained, or his or her designee,
must determine within 24 hours whether the person is to be detained. If the individual
is detained, the treatment director or designee may supplement in writing the statement
filed by the law enforcement officer or other person undertaking the emergency
detention. The bill modifies this statute to provide that when calculating the 24 hours,
any period delaying that determination that is directly attributable to evaluation or
stabilizing treatment of non-psychiatric medical conditions of the individual shall be
excluded from the calculation. [Sections 8 and 9
.]
10. Current law provides that an individual must be informed of his or her rights,
by the director of the emergency detention facility, at the time of detention. The bill
amends this provision to state that the individual must be informed of his or her rights
at the time of the individual's arrival at the emergency detention facility. [Section 10
.]
11. Under current law, a hearing to determine probable cause to believe the
allegations in an emergency detention petition must be held within 72 hours after the
individual arrives at the emergency detention facility. This bill amends this provision to
specify that the hearing must be held within 72 hours after the individual is taken into
custody.
Also under current law, an individual who is the subject of a petition for
commitment may waive the required time periods for probable cause and final hearings
and be ordered to obtain treatment under a settlement agreement. If the individual fails
to comply with the settlement agreement, the individual may be detained for a period not
to exceed 72 hours. This amendment provides that the probable cause hearing must be
held within 72 hours from the time that the person is taken into custody. [Section 14.]
12. Generally, current law provides that the first order of involuntary commitment
is for up to 6 months, and all subsequent consecutive orders of commitment are for up to
one year. However, current law provides that commitments that are based on the 4th
standard of dangerousness may not continue longer than 45 days in any 365-day period.
The bill eliminates that provision with respect to persons committed under the 4th
standard of dangerousness. [Section 16
.]
13. Current law provides that an involuntary commitment of an inmate in a state
prison or county jail or house of correction ends on the inmate's date of release on parole
or extended supervision. The bill repeals this provision. [Section 17.]
14. Current law provides that a patient has a privilege to refuse to disclose and to
prevent any other person from disclosing confidential communications made or
information obtained or disseminated for purposes of diagnosis or treatment of the
patient's physical, mental, or emotional condition, among the patient and various
specified health care providers, including physicians, psychologists, social workers,
marriage and family therapists, and professional counselors. Current law also provides
that there is no privilege for communications and information relevant to an issue in
proceedings to hospitalize the patient for mental illness or various other types of
proceedings. The bill modifies this exception to the privilege statute to substitute
"commitment" for "hospitalization" and to refer to "probable cause or final proceedings"
to commit the patient for mental illness under s. 51.20. [Section 19.]
AB360,1
1Section
1. 51.15 (1) (title) of the statutes is amended to read:
AB360,3,22
51.15
(1) (title)
Basis for detention
; purpose.
AB360,2
3Section
2
. 51.15 (1) (a) of the statutes is renumbered 51.15 (1) (ar) and 51.15
4(1) (ar) (intro.), 3. and 4., as renumbered, are amended to read:
AB360,4,6
151.15
(1) (ar) (intro.) A law enforcement officer or other person authorized to
2take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938
3may take an individual into custody if the officer or person has cause to believe that
4the individual is mentally ill, is drug dependent, or is developmentally disabled,
that
5taking the person into custody is the least restrictive alternative appropriate to the
6person's needs, and that the individual evidences any of the following:
Note: The amendment adds a criterion that must be considered when determining
whether to take a person into custody for an emergency detention: that taking the person
into custody is the least restrictive alternative appropriate to the person's needs.
AB360,4,177
3. A substantial probability of physical impairment or injury to himself or
8herself
or other individuals due to impaired judgment, as manifested by evidence of
9a recent act or omission. The probability of physical impairment or injury is not
10substantial under this subdivision if reasonable provision for the individual's
11protection is available in the community and there is a reasonable probability that
12the individual will avail himself or herself of these services or, in the case of a minor,
13if the individual is appropriate for services or placement under s. 48.13 (4) or (11) or
14938.13 (4). Food, shelter or other care provided to an individual who is substantially
15incapable of obtaining the care for himself or herself, by any person other than a
16treatment facility, does not constitute reasonable provision for the individual's
17protection available in the community under this subdivision.
Note: This amendment modifies the 3rd standard of dangerousness for emergency
detention to allow for detention if there is a substantial probability of an injury or
impairment to others due to an individual's impaired judgment.
AB360,5,1518
4. Behavior manifested by a recent act or omission that, due to mental illness
19or drug dependency, he or she is unable to satisfy basic needs for nourishment,
20medical care, shelter, or safety without prompt and adequate treatment so that a
21substantial probability exists that death, serious physical injury, serious physical
1debilitation, or serious physical disease will imminently ensue unless the individual
2receives prompt and adequate treatment for this mental illness
or drug dependency.
3No substantial probability of harm under this subdivision exists if reasonable
4provision for the individual's treatment and protection is available in the community
5and there is a reasonable probability that the individual will avail himself or herself
6of these services, if the individual may be provided protective placement or protective
7services under ch. 55, or, in the case of a minor, if the individual is appropriate for
8services or placement under s. 48.13 (4) or (11) or 938.13 (4). The individual's status
9as a minor does not automatically establish a substantial probability of death,
10serious physical injury, serious physical debilitation or serious disease under this
11subdivision. Food, shelter or other care provided to an individual who is
12substantially incapable of providing the care for himself or herself, by any person
13other than a treatment facility, does not constitute reasonable provision for the
14individual's treatment or protection available in the community under this
15subdivision.
Note: This amendment deletes references to drug dependency from the 4th
standard of dangerousness for emergency detentions which makes this 4th standard
consistent with the 4th standard of dangerousness for commitment under s. 51.20 (1) (a)
2. d.
AB360,3
16Section
3
. 51.15 (1) (ag) of the statutes is created to read:
AB360,5,1917
51.15
(1) (ag) The purpose of this section is to provide, on an emergency basis,
18treatment by the least restrictive means appropriate to the individual's needs, to
19individuals who meet all of the following criteria:
AB360,5,2020
1. Are mentally ill, drug dependent, or developmentally disabled.
AB360,5,2121
2. Evidence one of the standards set forth in par. (ar) 1. to 4.
AB360,5,2322
3. Are reasonably believed to be unable or unwilling to cooperate with
23voluntary treatment.
AB360,4
1Section
4
. 51.15 (2) (intro.) and (d) of the statutes are consolidated,
2renumbered 51.15 (2) and amended to read:
AB360,6,153
51.15
(2) Facilities for detention. The law enforcement officer or other person
4authorized to take a child into custody under ch. 48 or to take a juvenile into custody
5under ch. 938 shall transport the individual, or cause him or her to be transported,
6for detention, if the county department of community programs in the county in
7which the individual was taken into custody approves the need for detention, and for
8evaluation, diagnosis, and treatment if permitted under sub. (8)
to any of the
9following facilities: (d) An approved private. The county department may approve
10the detention only if the county department reasonably believes the individual will
11not voluntarily consent to evaluation, diagnosis, and treatment necessary to
12stabilize the individual and remove the substantial probability of physical harm,
13impairment, or injury to himself, herself, or others. Detention may only be in a
14treatment facility
approved by the department or the county department, if the
15facility agrees to detain the individual
, or a state treatment facility.
AB360,5
16Section
5. 51.15 (2) (a), (b) and (c) of the statutes are repealed.
Note: The amendment consolidates references to the types of facilities that may
be used for emergency detention. Under the amendment, a person may be detained in
a treatment facility approved by the department or the county department, if the facility
agrees to detain the individual, or in a state treatment facility. Section 51.01 (19), stats.,
defines a "treatment facility" as "any publicly or privately operated facility or unit thereof
providing treatment of alcoholic, drug dependent, mentally ill or developmentally
disabled persons, including but not limited to inpatient and outpatient treatment
programs, community support programs and rehabilitation programs."
Section 51.01 (15), stats., defines "state treatment facility" as "any of the
institutions operated by the department for the purpose of providing diagnosis, care or
treatment for mental or emotional disturbance, developmental disability, alcoholism or
drug dependency and includes but is not limited to mental health institutes."
AB360,6
17Section
6
. 51.15 (3) of the statutes is amended to read:
AB360,7,318
51.15
(3) Custody. An individual is in custody when the individual is under
19the physical control of the law enforcement officer, or other person authorized to take
1a child into custody under ch. 48 or to take a juvenile into custody under ch. 938, for
2the purposes of emergency detention. Upon arrival at the facility
, under sub. (2),
3custody of the individual is
deemed to be in the custody of transferred to the facility.
Note: Current law provides that an emergency detention facility has custody of
an individual when the individual arrives at the facility. However, current law does not
specify how it is determined who has custody of an individual before arrival at the facility.
This amendment specifies that an individual is deemed to be "in custody" when the
individual is under the physical control of the law enforcement officer, or other person
authorized to take a child into custody under ch. 48 or to take a juvenile into custody
under ch. 938, for the purposes of emergency detention. Upon arrival at the facility,
custody of the individual is transferred to the facility.
AB360,7
4Section
7
. 51.15 (4) (a) of the statutes is amended to read:
AB360,7,175
51.15
(4) (a) In counties having a population of
500,000 750,000 or more, the
6law enforcement officer or other person authorized to take a child into custody under
7ch. 48 or to take a juvenile into custody under ch. 938 shall sign a statement of
8emergency detention which shall provide detailed specific information concerning
9the recent overt act, attempt, or threat to act or omission on which the belief under
10sub. (1) is based and the names of the persons observing or reporting the recent overt
11act, attempt, or threat to act or omission. The law enforcement officer or other person
12is not required to designate in the statement whether the subject individual is
13mentally ill, developmentally disabled, or drug dependent, but shall allege that he
14or she has cause to believe that the individual evidences one or more of these
15conditions. The law enforcement officer or other person shall deliver, or cause to be
16delivered, the statement to the detention facility upon the delivery of the individual
17to it.
Note: Emergency detention procedures for Milwaukee County differ from the
procedures in the rest of the state. This amendment raises the Milwaukee County
population threshold from 500,000 to 750,000, to ensure that Dane County, the only other
Wisconsin county whose population is approaching 500,000, is not made subject to these
special procedures.
AB360,8
18Section
8
. 51.15 (4) (b) of the statutes is amended to read:
AB360,8,21
151.15
(4) (b) Upon delivery of the individual, the treatment director of the
2facility, or his or her designee, shall determine within 24 hours
, except as provided
3in par. (c), whether the individual shall be detained, or shall be detained, evaluated,
4diagnosed and treated, if evaluation, diagnosis and treatment are permitted under
5sub. (8), and shall either release the individual or detain him or her for a period not
6to exceed 72 hours after
delivery of the individual
is taken into custody for the
7purposes of emergency detention, exclusive of Saturdays, Sundays and legal
8holidays. If the treatment director, or his or her designee, determines that the
9individual is not eligible for commitment under s. 51.20 (1) (a), the treatment director
10shall release the individual immediately, unless otherwise authorized by law. If the
11individual is detained, the treatment director or his or her designee may supplement
12in writing the statement filed by the law enforcement officer or other person, and
13shall designate whether the subject individual is believed to be mentally ill,
14developmentally disabled or drug dependent, if no designation was made by the law
15enforcement officer or other person. The director or designee may also include other
16specific information concerning his or her belief that the individual meets the
17standard for commitment. The treatment director or designee shall then promptly
18file the original statement together with any supplemental statement and
19notification of detention with the court having probate jurisdiction in the county in
20which the individual was taken into custody. The filing of the statement and
21notification has the same effect as a petition for commitment under s. 51.20.
AB360,9
22Section
9
. 51.15 (4) (c) of the statutes is created to read:
AB360,9,223
51.15
(4) (c) When calculating the 24 hours under par. (b) in which a treatment
24director determines whether an individual should be detained, any period delaying
25that determination that is directly attributable to evaluation or stabilizing
1treatment of non-psychiatric medical conditions of the individual is excluded from
2the calculation.
Note: The amendment to s. 51.15 (4) (b) and creation of s. 51.15 (4) (c) tolls the
24-hour time period for the treatment director's determination as to whether the
individual should be detained, if the subject individual must be evaluated and treated for
non-psychiatric medical conditions.
AB360,10
3Section
10
. 51.15 (5) and (9) of the statutes are amended to read:
AB360,9,224
51.15
(5) Detention procedure; other counties. In counties having a
5population of less than
500,000 750,000, the law enforcement officer or other person
6authorized to take a child into custody under ch. 48 or to take a juvenile into custody
7under ch. 938 shall sign a statement of emergency detention that shall provide
8detailed specific information concerning the recent overt act, attempt, or threat to
9act or omission on which the belief under sub. (1) is based and the names of persons
10observing or reporting the recent overt act, attempt, or threat to act or omission. The
11law enforcement officer or other person is not required to designate in the statement
12whether the subject individual is mentally ill, developmentally disabled, or drug
13dependent, but shall allege that he or she has cause to believe that the individual
14evidences one or more of these conditions. The statement of emergency detention
15shall be filed by the officer or other person with the detention facility at the time of
16admission, and with the court immediately thereafter. The filing of the statement
17has the same effect as a petition for commitment under s. 51.20. When, upon the
18advice of the treatment staff, the director of a facility specified in sub. (2) determines
19that the grounds for detention no longer exist, he or she shall discharge the
20individual detained under this section. Unless a hearing is held under s. 51.20 (7)
21or 55.135, the subject individual may not be detained by the law enforcement officer
22or other person and the facility for more than a total of 72 hours
after the individual
1is taken into custody for the purposes of emergency detention, exclusive of
2Saturdays, Sundays, and legal holidays.
Note: This amendment provides that this emergency detention procedure applies
in counties with a population less than 750,000.
AB360,10,9
3(9) Notice of rights. At the time of
detention arrival at the facility, under sub.
4(2), the individual shall be informed by the director of the facility or such person's
5designee, both orally and in writing, of his or her right to contact an attorney and a
6member of his or her immediate family, the right to have an attorney provided at
7public expense, as provided under s. 51.60, and the right to remain silent and that
8the individual's statements may be used as a basis for commitment. The individual
9shall also be provided with a copy of the statement of emergency detention.
Note: Under current law, an individual must be informed at the time of emergency
detention regarding the individual's rights as a person under an emergency detention.
This amendment specifies that the individual must be informed of these rights at the time
the individual in custody arrives at the facility.
AB360,11
10Section
11
. 51.20 (1) (a) 2. c. of the statutes is amended to read:
AB360,11,411
51.20
(1) (a) 2. c. Evidences such impaired judgment, manifested by evidence
12of a pattern of recent acts or omissions, that there is a substantial probability of
13physical impairment or injury to himself or herself
or other individuals. The
14probability of physical impairment or injury is not substantial under this subd. 2. c.
15if reasonable provision for the subject individual's protection is available in the
16community and there is a reasonable probability that the individual will avail
17himself or herself of these services, if the individual may be provided protective
18placement or protective services under ch. 55, or, in the case of a minor, if the
19individual is appropriate for services or placement under s. 48.13 (4) or (11) or 938.13
20(4). The subject individual's status as a minor does not automatically establish a
21substantial probability of physical impairment or injury under this subd. 2. c. Food,
1shelter or other care provided to an individual who is substantially incapable of
2obtaining the care for himself or herself, by a person other than a treatment facility,
3does not constitute reasonable provision for the subject individual's protection
4available in the community under this subd. 2. c.
Note: This amendment modifies the 3rd standard of dangerousness for emergency
detention to allow for detention if there is a substantial probability of injury or
impairment to others due to an individual's impaired judgment.
AB360,12
5Section
12. 51.20 (2) (b) of the statutes is amended to read:
AB360,12,36
51.20
(2) (b) If the subject individual is to be detained, a law enforcement officer
7shall present the subject individual with a notice of hearing, a copy of the petition
8and detention order and a written statement of the individual's right to an attorney,
9a jury trial if requested more than 48 hours prior to the final hearing, the standard
10upon which he or she may be committed under this section and the right to a hearing
11to determine probable cause for commitment within 72 hours after the individual
12arrives at the facility is taken into custody under s. 51.15, excluding Saturdays,
13Sundays and legal holidays. The officer shall orally inform the individual that he or
14she is being
taken into custody detained as the result of a petition and detention
15order issued under this chapter. If the individual is not to be detained, the law
16enforcement officer shall serve these documents on the subject individual and shall
17also orally inform the individual of these rights. The individual who is the subject
18of the petition, his or her counsel and, if the individual is a minor, his or her parent
19or guardian, if known, shall receive notice of all proceedings under this section. The
20court may also designate other persons to receive notices of hearings and rights
21under this chapter. Any such notice may be given by telephone. The person giving
22telephone notice shall place in the case file a signed statement of the time notice was
23given and the person to whom he or she spoke. The notice of time and place of a
1hearing shall be served personally on the subject of the petition, and his or her
2attorney, within a reasonable time prior to the hearing to determine probable cause
3for commitment.
AB360,13
4Section
13
. 51.20 (2) (d) of the statutes is amended to read:
AB360,12,125
51.20
(2) (d) Placement shall
only be made in a
hospital that is approved by the
6department as a detention facility or under contract with a county department under
7s. 51.42 or 51.437, approved public treatment facility, mental health institute, center
8for the developmentally disabled under the requirements of s. 51.06 (3), state
9treatment facility, or in an approved private treatment facility
approved by the
10department or the county department, if the facility agrees to detain the subject
11individual
, or in a state treatment facility. Upon arrival at the facility, the individual
12is considered to be in the custody of the facility.
Note: The amendments to this statute reflect the changes in Section 4 of the draft.
AB360,14
13Section
14
. 51.20 (7) and (8) (b) and (bm) of the statutes are amended to read:
AB360,12,2114
51.20
(7) Probable-cause hearing. (a) After the filing of the petition under
15sub. (1), if the subject individual is detained under s. 51.15 or this section the court
16shall hold a hearing to determine whether there is probable cause to believe the
17allegations made under sub. (1) (a) within 72 hours after the individual
arrives at the
18facility is taken into custody under s. 51.15 or this section, excluding Saturdays,
19Sundays and legal holidays. At the request of the subject individual or his or her
20counsel the hearing may be postponed, but in no case may the postponement exceed
217 days from the date of detention.
Note: Under current law, a hearing to determine probable cause to believe the
allegations in an emergency detention petition must be held within 72 hours after the
individual arrives at the emergency detention facility. This amendment specifies that the
hearing must be held within 72 hours after the individual is taken into custody.