51.20 Annotation
The 14-day time limit in sub. (7) (c) is mandatory and refers to calendar days, not business days. State ex rel. Lockman v. Gerhardstein,
107 Wis. 2d 325,
320 N.W.2d 27 (Ct. App. 1982).
51.20 Annotation
A person may be a proper subject for treatment even though a cure is unlikely. In Matter of Mental Condition of C.J.
120 Wis. 2d 355,
354 N.W.2d 219 (Ct. App. 1984).
51.20 Annotation
The 45-day limit in sub. (13) (g) 2. applies only to an original commitment order and does not bar subsequent extensions of the order. In Matter of M.J.
122 Wis. 2d 525,
362 N.W.2d 190 (Ct. App. 1984).
51.20 Annotation
The use of telephone testimony by physicians did not a violate the petitioner's due process rights. In Matter of W.J.C.
124 Wis. 2d 238,
369 N.W.2d 162 (Ct. App. 1985).
51.20 Annotation
Hearings under sub. (12) are open unless the court grants the subject individual's motion for closure. Wisconsin State Journal v. Circuit Court for Dane County,
131 Wis. 2d 515,
389 N.W.2d 73 (Ct. App. 1986).
51.20 Annotation
An individual's counsel may not withdraw a jury demand without the individual's consent. In Matter of S.B.,
138 Wis. 2d 409,
406 N.W.2d 408 (1987).
51.20 Annotation
Sub. (13) (c) 2. does not permit the committing court to specify a treatment method in addition to the facility. In Matter of J.R.R.
145 Wis. 2d 431,
427 N.W.2d 137 (Ct. App. 1988).
51.20 Annotation
Under sub. (13) (g) 3. an individual has a right to a jury trial in proceedings to extend a commitment. In Matter of Mental Condition of G.O.T.
151 Wis. 2d 629,
445 N.W.2d 697 (Ct. App. 1989).
51.20 Annotation
There is a bright-line rule prohibiting a circuit court from accepting petitions drafted by persons not authorized to do so under sub. (4). In Matter of S.P.B.
159 Wis. 2d 393,
464 N.W.2d 102 (Ct. App. 1990).
51.20 Annotation
The services of appointed counsel for non-indigent individuals in civil commitment hearing should be paid for by the county. State ex. rel. Chiarkas v. Skow,
160 Wis. 2d 123,
465 N.W.2d 625 (1991).
51.20 Annotation
The assurance of representation by adversary counsel under sub. (3) does not preclude self-representation when a waiver of counsel is knowingly and competently made. In Matter of Condition of S.Y.
162 Wis. 2d 320,
469 N.W.2d 836 (1991).
51.20 Annotation
The sub. (16) (c) provision for a hearing on a petition within 30 days of filing is directory and violation is not grounds for release. State v. R.R.E.
162 Wis. 2d 698,
470 N.W.2d 283 (1991).
51.20 Annotation
When a recommitment hearing under sub. (13) (g) 3. is before the same judge who conducted the original commitment proceeding, a request for substitution under s. 801.58 is not allowed. Serocki v. Circuit Court for Clark County,
163 Wis. 2d 152,
471 N.W.2d 49 (1991).
51.20 Annotation
Sub. (15) does not authorize the appeal of a court commissioner's order to the court of appeals; proper review is a new hearing by the circuit court. In Matter of Mental Condition of C.M.B.
165 Wis. 2d 703,
478 N.W.2d 385 (1992).
51.20 Annotation
An involuntary commitment may not be ordered on summary judgment. Matter of Mental Condition of Shirley J.C.
172 Wis. 2d 371,
493 N.W.2d 382 (Ct. App. 1992).
51.20 Annotation
A probable cause determination made by a court commissioner under sub. (7) may be reviewed by the circuit court, but nothing gives the subject a right to review. Factors to consider in deciding whether to grant review are discussed. Milwaukee County v. Louise M.
205 Wis. 2d 162,
555 N.W.2d 807 (1996),
95-0291.
51.20 Annotation
The 14-day deadline under sub. (7) (c) is subject to reasonable extension when the need for the extension is caused solely by the conduct and manipulation of the detained subject. County of Milwaukee v. Edward S.
2001 WI App 169,
247 Wis. 2d 87,
633 N.W.2d 241,
00-1003.
51.20 Annotation
By expressing the time requirement in sub. (7) (a) in terms of hours rather than days, the legislature manifested its intent that the clock start running immediately "after the individual arrives at the facility," rather than the next day. The "exclude-the-first-day" rule of s. 990.001 (4) (a) and (d) does not apply in the context of this section under which 72 hours means 72 hours. Matter of the Mental Commitment of Ryan E. M.
2002 WI App 71,
252 Wis. 2d 490,
642 N.W.2d 592,
01-1175.
51.20 Annotation
Sub. (1) (a) 2. e. is constitutional. It does not: 1) allow involuntary commitment upon a finding of mental illness alone and contains an ascertainable standard of commitment, and thus is not vague or overbroad; 2) create a class of persons who can be involuntarily committed upon a finding of mere mental or emotional harm, and thus does not violate equal protection; and 3) violate substantive due process because the constitution does not require proof of imminent physical harm prior to commitment for treatment. State v. Dennis H.
2002 WI 104,
255 Wis. 2d 359,
647 N.W.2d 851,
01-0374.
51.20 Annotation
Sub. (1) (a) 2. e. may be used to involuntarily commit persons with dual diagnoses of mental illness and either drug dependency or developmental disability. The plain meaning of "these services" in sub. (1) (a) 2. e. includes medication. The ch. 55 exclusion in sub. (1) (a) 2. e. includes an individual who is already subject to an order for protective placement or services, if there is another placement or additional services available under ch. 55 that would be effective in reducing the probability of the requisite harm to less than a substantial probability. This exclusion may apply to an individual who is not yet subject to a ch. 55 order but who is eligible for one. Involuntary administration of medication under s. 55.14 may be one of the additional services that would satisfy this exclusion, if the guardian consents and depending on the individual's circumstances. Dane County v. Kelly M.
2011 WI App 69,
333 Wis. 2d 719,
798 N.W.2d 697,
10-1486.
51.20 Annotation
Rehabilitation is a necessary element of treatment under ch. 51. Because there are no techniques that can be employed to bring about rehabilitation from Alzheimer's disease, an individual with the disease cannot be rehabilitated. Accordingly, an Alzheimer's patient is not a proper subject for ch. 51 treatment. Fond du Lac County v. Helen E. F.
2012 WI 50,
340 Wis. 2d 500,
814 N.W.2d 179,
10-2061.
51.20 Annotation
The availability of a non-unanimous 6-person jury in a commitment trial under this section does not violate equal protection. Chapter 980 committees are subject to increased liberty restraints when compared to ch. 51 committees. The legislative decision to allow the added protection of a 12-person unanimous jury in ch. 980 commitment trials, but not in ch. 51 commitment trials, is rationally related to different treatment needs and differing levels of dangerousness that s. 51.20 and ch. 980 seek to address, as well as stricter rules concerning confinement in ch. 980. Milwaukee County v. Mary F.-R.,
2013 WI 92,
351 Wis. 2d 273,
839 N.W.2d 581,
12-0958.
51.20 Annotation
A corporation counsel has discretion to refuse to file a petition for examination after receiving signed statements under oath that meet the requirements contained in sub. (1) if the corporation counsel determines that it is not in the interests of the public to file the petition. A good faith discretionary determination on the part of the corporation counsel that the filing of a petition for examination would not be in the interests of the public is not susceptible to challenge in a mandamus action.
OAG 4-10.
51.20 Annotation
Under sub. (2), a court can entertain proceedings for involuntary commitment of a person admitted as a voluntary inpatient. 68 Atty. Gen. 97.
51.20 Annotation
Sub. (14) requires a sheriff to transport the subject of a petition under s. 51.20 at all stages of the proceedings, regardless of reimbursement. 68 Atty. Gen. 225.
51.20 Annotation
An individual in the custody of a sheriff for transport to, from, and during an involuntary commitment hearing has rights to the least restrictive restraint appropriate.
71 Atty. Gen. 183.
51.20 Annotation
The duties and obligations of a corporation counsel in involuntary civil commitment proceedings under this chapter are discussed.
79 Atty. Gen. 129.
51.20 Annotation
Under sub. (14), the director of the county department under s. 51.42 or 51.437 may request the sheriff of the county in which an individual was placed under emergency detention to transport that individual to another designated inpatient facility prior to the initial court hearing under ch. 51, and the sheriff must do so within a reasonable time.
80 Atty. Gen. 299.
51.20 Annotation
The state cannot confine, without more, nondangerous persons capable of surviving safely in freedom alone or with help from family or friends. O'Connor v. Donaldson,
422 U.S. 563.
51.20 Annotation
Due process does not require states to use the "beyond a reasonable doubt" standard in civil commitment proceedings. Addington v. Texas,
441 U.S. 418 (1979).
51.20 Annotation
In signing a commitment application, a county employee was in essence acting as a witness in a judicial proceeding and as such was entitled to immunity. Martens v. Tremble,
481 F. Supp. 831 (1979).
51.20 Annotation
Persons confined in a state hospital under ss. 51.20, 51.37, 971.14, 971.17 and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy,
511 F. Supp. 1325 (1981).
51.20 Annotation
Beyond Overt Violence: Wisconsin's Progressive Civil Commitment Statute as a Marker of a New Era in Mental Health Law. Erickson, Vitacco, and Van Rybroek, 89 MLR 359 (2005).
51.20 Annotation
The privilege against self-incrimination in civil commitment proceedings. 1980 WLR 697.
51.22
51.22
Care and custody of persons. 51.22(1)
(1) Except as provided in
s. 51.20 (13) (a) 4. or
5., any person committed under this chapter shall be committed to the county department under
s. 51.42 or
51.437 serving the person's county of residence, and such county department shall authorize placement of the person in an appropriate facility for care, custody and treatment according to
s. 51.42 (3) (as) 1r. or
51.437 (4rm) (a).
51.22(2)
(2) Except for admissions that do not involve the department or a county department under
s. 51.42 or
51.437 or a contract between a treatment facility and the department or a county department, admissions under
ss. 51.10,
51.13, and
51.45 (10) shall be through the county department under
s. 51.42 or
51.437 serving the person's county of residence, or through the department if the person to be admitted is a nonresident of this state. Admissions through a county department under
s. 51.42 or
51.437 shall be made in accordance with
s. 51.42 (3) (as) 1r. or
51.437 (4rm) (a). Admissions through the department shall be made in accordance with
sub. (3).
51.22(3)
(3) Whenever an admission is made through the department, the department shall determine the need for inpatient care of the individual to be admitted. Unless a state-operated facility is used, the department may only authorize care in an inpatient facility which is operated by or under a purchase of service contract with a county department under
s. 51.42 or
51.437 or an inpatient facility which is under a contractual agreement with the department. Except in the case of state treatment facilities, the department shall reimburse the facility for the actual cost of all authorized care and services from the appropriation under
s. 20.435 (7) (da). For collections made under the authority of
s. 46.10 (16), moneys shall be credited or remitted to the department no later than 60 days after the month in which collections are made. Such collections are also subject to
s. 46.036 or special agreement. Collections made by the department under
ss. 46.03 (18) and
46.10 shall be deposited in the general fund.
51.22(4)
(4) If a patient is placed in a facility authorized by a county department under
s. 51.42 or
51.437 and the placement is outside the jurisdiction of that county department under
s. 51.42 or
51.437, the placement does not transfer the patient's residence to the county of the facility's location while such patient is under commitment or placement.
51.22(5)
(5) The board to which a patient is committed shall provide the least restrictive treatment alternative appropriate to the patient's needs, and movement through all appropriate and necessary treatment components to assure continuity of care.
51.22 Annotation
The standard for determining whether the state has adequately protected a patient's rights is whether professional judgment was in fact exercised. Youngberg v. Romeo,
457 U.S. 307 (1982).
51.30(1)(1)
Definitions. In this section:
51.30(1)(am)
(am) "Registration records" include all the records of the department, county departments under
s. 51.42 or
51.437, treatment facilities, and other persons providing services to the department, county departments, or treatment facilities, that are created in the course of providing services to individuals for mental illness, developmental disabilities, alcoholism, or drug dependence.
51.30(1)(b)
(b) "Treatment records" include the registration and all other records that are created in the course of providing services to individuals for mental illness, developmental disabilities, alcoholism, or drug dependence and that are maintained by the department; by county departments under
s. 51.42 or
51.437 and their staffs; by treatment facilities; or by psychologists licensed under
s. 455.04 (1) or licensed mental health professionals who are not affiliated with a county department or treatment facility. Treatment records do not include notes or records maintained for personal use by an individual providing treatment services for the department, a county department under
s. 51.42 or
51.437, or a treatment facility, if the notes or records are not available to others.
51.30(2)
(2) Informed consent. An informed consent for disclosure of information from court or treatment records to an individual, agency, or organization must be in writing and must contain the following: the name of the individual, agency, or organization to which the disclosure is to be made; the name of the subject individual whose treatment record is being disclosed; the purpose or need for the disclosure; the specific type of information to be disclosed; the time period during which the consent is effective; the date on which the consent is signed; and the signature of the individual or person legally authorized to give consent for the individual.
51.30(3)(a)(a) Except as provided in
pars. (b),
(bm),
(c), and
(d), the files and records of the court proceedings under this chapter shall be closed but shall be accessible to any individual who is the subject of a petition filed under this chapter.
51.30(3)(b)
(b) An individual's attorney or guardian ad litem and the corporation counsel shall have access to the files and records of the court proceedings under this chapter without the individual's consent and without modification of the records in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals, or other actions relating to detention, admission, or commitment under this chapter or
ch. 971,
975, or
980.
51.30(3)(bm)
(bm) Authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney shall have access to the files and records of court proceedings under this chapter for use in the prosecution of any proceeding or any evaluation conducted under
ch. 980, if the files or records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under
ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this paragraph. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this paragraph for any purpose consistent with any proceeding under
ch. 980.
51.30(3)(c)
(c) The files and records of court proceedings under this chapter may be released to other persons with the informed written consent of the individual, pursuant to lawful order of the court which maintains the records or under
s. 51.20 (13) (cv) 4.
51.30(3)(d)
(d) The department of corrections shall have access to the files and records of court proceedings under this chapter concerning an individual required to register under
s. 301.45. The department of corrections may disclose information that it obtains under this paragraph as provided under
s. 301.46.
51.30(4)
(4) Access to registration and treatment records. 51.30(4)(a)(a) Confidentiality of records. Except as otherwise provided in this chapter and
ss. 118.125 (4),
610.70 (3) and
(5),
905.03 and
905.04, all treatment records shall remain confidential and are privileged to the subject individual. Such records may be released only to the persons designated in this chapter or
ss. 118.125 (4),
610.70 (3) and
(5),
905.03 and
905.04, or to other designated persons with the informed written consent of the subject individual as provided in this section. This restriction applies to elected officials and to members of boards appointed under
s. 51.42 (4) (a) or
51.437 (7) (a).
51.30(4)(b)
(b)
Access without informed written consent. Notwithstanding
par. (a), treatment records of an individual may be released without informed written consent in the following circumstances, except as restricted under
par. (c):
51.30(4)(b)1.
1. To an individual, organization or agency designated by the department or as required by law for the purposes of management audits, financial audits, or program monitoring and evaluation. Information obtained under this paragraph shall remain confidential and shall not be used in any way that discloses the names or other identifying information about the individual whose records are being released. The department shall promulgate rules to assure the confidentiality of such information.
51.30(4)(b)2.
2. To the department, the director of a county department under
s. 51.42 or
51.437, or a qualified staff member designated by the director as is necessary for, and only to be used for, billing or collection purposes. Such information shall remain confidential. The department and county departments shall develop procedures to assure the confidentiality of such information.
51.30(4)(b)3.
3. For purposes of research as permitted in
s. 51.61 (1) (j) and
(4) if the research project has been approved by the department and the researcher has provided assurances that the information will be used only for the purposes for which it was provided to the researcher, the information will not be released to a person not connected with the study under consideration, and the final product of the research will not reveal information that may serve to identify the individual whose treatment records are being released under this subsection without the informed written consent of the individual. Such information shall remain confidential. In approving research projects under this subsection, the department shall impose any additional safeguards needed to prevent unwarranted disclosure of information.
51.30(4)(b)5.
5. To qualified staff members of the department, to the director of the county department under
s. 51.42 or
51.437 which is responsible for serving a subject individual or to qualified staff members designated by the director as is necessary to determine progress and adequacy of treatment, to determine whether the person should be transferred to a less restrictive or more appropriate treatment modality or facility or for the purposes of
s. 51.14. Such information shall remain confidential. The department and county departments under
s. 51.42 or
51.437 shall develop procedures to assure the confidentiality of such information.
51.30(4)(b)6.
6. Within the treatment facility where the subject individual is receiving treatment confidential information may be disclosed to individuals employed, individuals serving in bona fide training programs or individuals participating in supervised volunteer programs, at the facility when and to the extent that performance of their duties requires that they have access to such information.
51.30(4)(b)7.
7. Within the department to the extent necessary to coordinate treatment for mental illness, developmental disabilities, alcoholism or drug abuse of individuals who have been committed to or who are under the supervision of the department. The department shall promulgate rules to assure the confidentiality of such information.
51.30(4)(b)8.
8. For treatment of the individual in a medical emergency, to a health care provider who is otherwise unable to obtain the individual's informed consent because of the individual's condition or the nature of the medical emergency. Disclosure under this subdivision shall be limited to that part of the records necessary to meet the medical emergency.
51.30(4)(b)8g.am.am. In this subdivision, "diagnostic test results" means the results of clinical testing of biological parameters, but does not mean the results of psychological or neuropsychological testing.
51.30(4)(b)8g.bm.
bm. To a health care provider, or to any person acting under the supervision of the health care provider who is involved with an individual's care, if necessary for the current treatment of the individual. Information that may be released under this subdivision is limited to the individual's name, address, and date of birth; the name of the individual's provider of services for mental illness, developmental disability, alcoholism, or drug dependence; the date of any of those services provided; the individual's medications, allergies, diagnosis, diagnostic test results, and symptoms; and other relevant demographic information necessary for the current treatment of the individual.
51.30(4)(b)8s.
8s. To appropriate persons in accordance with
s. 980.031 (4) and to authorized representatives of the department of corrections, the department of health services, the department of justice, or a district attorney for use in the prosecution of any proceeding or any evaluation conducted under
ch. 980, if the treatment records involve or relate to an individual who is the subject of the proceeding or evaluation. The court in which the proceeding under
ch. 980 is pending may issue any protective orders that it determines are appropriate concerning information made available or disclosed under this subdivision. Any representative of the department of corrections, the department of health services, the department of justice, or a district attorney may disclose information obtained under this subdivision for any purpose consistent with any proceeding under
ch. 980.
51.30(4)(b)9.
9. To a facility which is to receive an individual who is involuntarily committed under this chapter,
ch. 48,
938,
971, or
975 upon transfer of the individual from one treatment facility to another. Release of records under this subdivision shall be limited to such treatment records as are required by law, a record or summary of all somatic treatments, and a discharge summary. The discharge summary may include a statement of the patient's problem, the treatment goals, the type of treatment which has been provided, and recommendation for future treatment, but it may not include the patient's complete treatment record. The department shall promulgate rules to implement this subdivision.
51.30(4)(b)10.
10. To a correctional facility or to a probation, extended supervision and parole agent who is responsible for the supervision of an individual who is receiving inpatient or outpatient evaluation or treatment under this chapter in a program that is operated by, or is under contract with, the department or a county department under
s. 51.42 or
51.437, or in a treatment facility, as a condition of the probation, extended supervision and parole supervision plan, or whenever such an individual is transferred from a state or local correctional facility to such a treatment program and is then transferred back to the correctional facility. Every probationer, parolee or person on extended supervision who receives evaluation or treatment under this chapter shall be notified of the provisions of this subdivision by the individual's probation, extended supervision and parole agent. Release of records under this subdivision is limited to:
51.30(4)(b)10.a.
a. The report of an evaluation which is provided pursuant to the written probation, extended supervision and parole supervision plan.
51.30(4)(b)10.b.
b. The discharge summary, including a record or summary of all somatic treatments, at the termination of any treatment which is provided as part of the probation, extended supervision and parole supervision plan.
51.30(4)(b)10.c.
c. When an individual is transferred from a treatment facility back to a correctional facility, the information provided under
subd. 10. d.
51.30(4)(b)10.d.
d. Any information necessary to establish, or to implement changes in, the individual's treatment plan or the level and kind of supervision on probation, extended supervision or parole, as determined by the director of the facility or the treatment director. In cases involving a person transferred back to a correctional facility, disclosure shall be made to clinical staff only. In cases involving a person on probation, extended supervision or parole, disclosure shall be made to a probation, extended supervision and parole agent only. The department shall promulgate rules governing the release of records under this subdivision.
51.30(4)(b)10m.
10m. To the department of justice or a district attorney under
s. 980.015 (3) (b), if the treatment records are maintained by an agency with jurisdiction, as defined in
s. 980.01 (1d), that has control or custody over a person who may meet the criteria for commitment as a sexually violent person under
ch. 980.
51.30(4)(b)11.
11. To the subject individual's counsel or guardian ad litem and the corporation counsel, without modification, at any time in order to prepare for involuntary commitment or recommitment proceedings, reexaminations, appeals, or other actions relating to detention, admission, commitment, or patients' rights under this chapter or
ch. 48,
971,
975, or
980.
51.30(4)(b)11m.
11m. To the guardian ad litem of the unborn child, as defined in
s. 48.02 (19), of a subject individual, without modification, at any time to prepare for proceedings under
s. 48.133.
51.30(4)(b)12.
12. To a correctional officer of the department of corrections who has custody of or is responsible for the supervision of an individual who is transferred or discharged from a treatment facility. Records released under this subdivision are limited to notice of the subject individual's change in status.
51.30(4)(b)12m.
12m. To any person if the patient was admitted under
s. 971.14,
971.17 or
980.06 or
ch. 975 or transferred under
s. 51.35 (3) or
51.37 and is on unauthorized absence from a treatment facility. Information released under this subdivision is limited to information that would assist in the apprehension of the patient.
51.30(4)(b)15.
15. To personnel employed by a county department under
s. 46.215,
46.22,
51.42 or
51.437 in any county where the county department has established and submitted to the department a written agreement to coordinate services to individuals receiving services under this chapter. This information shall be released upon request of such county department personnel, and may be utilized only for the purposes of coordinating human services delivery and case management. This information shall remain confidential, and shall continue to be governed by this section. Information may be released under this subdivision only if the subject individual has received services through a county department under
s. 51.42 or
51.437 within 6 months preceding the request for information, and the information is limited to:
51.30(4)(b)15.a.
a. The subject individual's name, address, age, birthdate, sex, client-identifying number and primary disability.
51.30(4)(b)15.b.
b. The type of service rendered or requested to be provided to the subject individual, and the dates of such service or request.
51.30(4)(b)16.
16. If authorized by the secretary or his or her designee, to a law enforcement agency upon request if the individual was admitted under
ch. 971 or
975 or transferred under
s. 51.35 (3) or
51.37. Information released under this subdivision is limited to the individual's name and other identifying information, including photographs and fingerprints, the branch of the court that committed the individual, the crime that the individual is charged with, found not guilty of by reason of mental disease or defect or convicted of, whether or not the individual is or has been authorized to leave the grounds of the institution and information as to the individual's whereabouts during any time period. In this subdivision "law enforcement agency" has the meaning provided in
s. 165.83 (1) (b).
51.30(4)(b)17.
17. To the elder-adult-at-risk agency designated under
s. 46.90 (2) or other investigating agency under
s. 46.90 for the purposes of
s. 46.90 (4) and
(5), to an agency, as defined in
s. 48.981 (1) (ag), or a sheriff or police department for the purposes of
s. 48.981 (2) and
(3), or to the adult-at-risk agency designated under
s. 55.043 (1d) for purposes of
s. 55.043. The treatment record holder may release treatment record information by initiating contact with the elder-adult-at-risk agency, agency, as defined in
s. 48.981 (1) (ag), sheriff or police department, or adult-at-risk agency, without first receiving a request for release of the treatment record.
