SB395: Bill Text

SB395, s. 4 Section 4. 51.61 (1) (intro.) of the statutes is amended to read:

SB395,6,24 51.61 (1) (intro.) In this section, "patient" means any individual who is receiving services for mental illness, developmental disabilities, alcoholism or drug dependency, including any individual who is admitted to a treatment facility in accordance with this chapter or ch. 48 or 55 or who is detained, committed or placed under this chapter or ch. 48, 55, 971, or 975 or 980, or who is transferred to a treatment facility under s. 51.35 (3) or 51.37 or who is receiving care or treatment for those conditions through the department or a county department under s. 51.42 or 51.437 or in a private treatment facility. "Patient" does not include persons committed under ch. 975 who are transferred to or residing in any state prison listed under s. 302.01 or persons detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care. In private hospitals and in public general hospitals, "patient" includes any individual who is admitted for the primary purpose of treatment of mental illness, developmental disability, alcoholism or drug abuse but does not include an individual who receives treatment in a hospital emergency room nor an individual who receives treatment on an outpatient basis at those hospitals, unless the individual is otherwise covered under this subsection. Except as provided in sub. (2), each patient shall:

SB395, s. 5 Section 5. 227.01 (13) (sp) of the statutes is created to read:

SB395,7,4 227.01 (13) (sp) Establishes policies under s. 980.066 (2) relating to treatment for and conduct of persons who have been detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care, or establishes a grievance system under s. 980.066 (6).

SB395, s. 6 Section 6. 801.02 (8) of the statutes is created to read:

SB395,7,11 801.02 (8) No person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care may commence a civil action or special proceeding, including a petition for a writ of certiorari, with respect to a policy established under s. 980.066 (2) or an action taken to implement those policies until the person has exhausted all available administrative remedies provided by the grievance system established under s. 980.066 (6).

SB395, s. 7 Section 7. 905.04 (4) (j) of the statutes is created to read:

SB395,7,18 905.04 (4) (j) Investigation of crimes; sexually violent persons. There is no privilege under this section as to a communication made by or information concerning a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care if the communication or information is relevant to the investigation of a criminal offense by a law enforcement agency, as defined in s. 165.83 (1) (b), and is contained in a record released under s. 51.30 (4) (b) 25.

SB395, s. 8 Section 8. 980.065 (1m) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB395,7,25 980.065 (1m) The department shall place If a person is committed under s. 980.06 and placed in institutional care, the department shall place the person at the secure mental health facility established under s. 46.055, the Wisconsin resource center established under s. 46.056 or a secure mental health unit or facility provided by the department of corrections under sub. (2).

SB395, s. 9 Section 9. 980.065 (2) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB395,8,9 980.065 (2) The department may contract with the department of corrections for the provision of a secure mental health unit or facility for persons committed under s. 980.06 and placed in institutional care. The department shall operate a secure mental health unit or facility provided by the department of corrections under this subsection and shall promulgate rules governing the custody and discipline of persons placed by the department in the secure mental health unit or facility provided by the department of corrections under this subsection.

SB395, s. 10 Section 10. 980.066 of the statutes is created to read:

SB395,8,18 980.066 Policies concerning treatment and conduct of detained and committed persons. (1) Definition. In this section, "institution privileges" include liberty to move around a facility or a unit within a facility, visitation privileges, access to and use of personal property, including clothing, money, bank accounts and televisions, radios and other entertainment devices, access to reading material, receipt and sending of mail, receipt and making of telephone calls, access to religious worship or other religious activities, and time to engage in exercise or other recreation or leisure activities.

SB395,9,4 (2) Policies relating to treatment and conduct. Subject to sub. (3), the department shall establish and implement policies relating to treatment for and conduct of persons who have been detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care. The policies may provide for distinct management levels that are based on a person's treatment needs, on the person's participation in treatment and conduct, on the management and security needs of the facility at which a person is detained or placed and on other relevant factors, as determined by the department. The management levels may differ from each other as to the responsibilities required of, and the institution privileges allowed to, a person assigned to the management level. The policies may also provide for all of the following:

SB395,9,8 (a) That a person may be assigned to a management level that allows additional institution privileges if the person complies with the policies relating to conduct and participates in and completes prescribed treatment or any part or phase of prescribed treatment.

SB395,9,12 (b) That a person may be assigned to a management level that limits or denies institution privileges if the person violates any policy relating to conduct or fails or refuses to participate in or complete prescribed treatment or any part or phase of prescribed treatment.

SB395,9,15 (c) The use of physical restraint and isolation for purposes relating to a person's treatment or for purposes of preventing a person from physically harming others or protecting a person from being physically harmed by others.

SB395,9,21 (d) That all persons in a facility or in a unit of a facility may be locked in their rooms during the night shift, for a specified period during each change of shift by staff or as an emergency measure as needed for security purposes. If the policies provide for periods of unit-wide or facility-wide isolation, the policies shall require staff to periodically review the status of each person to ensure the health and safety of the person.

SB395,9,23 (e) The use of physical restraint for security reasons during transport to or from the facility in which the person has been detained or placed.

SB395,10,3 (3) Rights of detained and committed persons. The policies relating to treatment and conduct that are established and implemented under sub. (2) shall provide the following rights to a person to whom the policies apply:

SB395,10,8 (a) The right not to be subjected, without the person's informed written consent, to drastic treatment procedures, such as psychosurgery or electroconvulsive therapy, or experimental treatment or research that involves the use of any drug, ingested substance, surgical procedure or other drastic or extreme behavior modification techniques.

SB395,10,10 (b) The right to be informed of any experimental treatment or research that will be used, or that is being considered for use, to treat the person.

SB395,10,12 (c) The right to refuse psychotropic medication except in an emergency situation or as ordered under sub. (5).

SB395,10,16 (d) The right to reasonable privacy in toileting and bathing, subject to reasonable measures, including video and audio monitoring, that are related to the protection of the person from harm, to the protection of other persons from harm or to other security or management needs of the facility or unit.

SB395,10,21 (4) Competency generally. (a) No person is deemed incompetent to manage his or her affairs, to contract, to hold professional, occupational or motor vehicle operator's licenses, to marry or to obtain a divorce, to vote, to make a will or to exercise any other civil right solely by reason of his or her detention under s. 980.04 (1) or commitment under s. 980.06.

SB395,11,4 (b) Notwithstanding par. (a), the policies relating to treatment and conduct that are established and implemented under sub. (2) may limit the exercise of a civil right by a person who has been detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care or may require the person to obtain the department's approval before exercise of a civil right, if the limitation or the requirement for the department's approval is reasonably related to the person's treatment needs, to the security or management needs of the facility or unit in which the person has been detained or placed or to the safety of others.

SB395,11,17 (5) Competency to refuse psychotropic medication. (a) If a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care is not subject to a court order determining the person to be not competent to refuse psychotropic medication for the defendant's mental condition and if the facility at which the person has been detained or placed determines that the defendant should be subject to such a court order, the department may file with the court, with notice to the person and, if applicable, the person's attorney, a motion for a hearing under the standard specified in s. 51.61 (1) (g) 4., on whether the person is not competent to refuse psychotropic medication. A report on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the defendant needs psychotropic medication and that the person is not competent to refuse psychotropic medication, based on an examination of the person by a licensed physician.

SB395,12,3 (b) Within 10 days after a motion is filed under par. (a), the court, without a jury, shall determine the person's competency to refuse psychotropic medication. At the request of the person or the person's counsel, the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed under this subsection. If the person and the person's counsel waive the opportunity to present other evidence on the issue, the court shall determine the person's competency to refuse psychotropic medication on the basis of the report accompanying the motion. In the absence of these waivers, the court shall hold an evidentiary hearing on the issue. Upon consent of all parties and approval by the court for good cause shown, testimony may be received into the record of the hearing by telephone or live audiovisual means.

SB395,12,10 (c) If, at a hearing under par. (b), the department proves by evidence that is clear and convincing that the person is not competent to refuse psychotropic medication under the standard specified in s. 51.61 (1) (g) 4., the court shall make a determination and issue as part of the detention order under s. 980.04 (1) or the commitment order under s. 980.06, whichever is applicable, an order that the person is not competent to refuse psychotropic medication and that whoever administers the medication to the person shall observe appropriate medical standards.

SB395,12,19 (6) Grievance system. The department shall establish a system by which a person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care may file a grievance concerning a policy established under sub. (2) or an action taken toward the person under those policies. The grievance system shall have written policies and procedures regarding the uses and operation of the grievance system and may provide for an informal process for resolving grievances, a formal process for resolving grievances in cases in which the informal process fails to resolve grievances, and a process to appeal to the director of the unit or facility a decision made as part of any formal process for resolving grievances.

SB395,13,2 (7) Notice of policies and grievance system. A person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care shall, upon admission to the facility at which he or she is detained or placed, be informed orally and in writing of the policies established under sub. (2) and the grievance system established under sub. (6). Copies of the policies relating to conduct shall be posted conspicuously in areas of the facility that are regularly accessible to persons detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care.

SB395,13,7 (8) Applicability. A person detained under s. 980.04 (1) or committed under s. 980.06 and placed in institutional care is subject to the policies established under sub. (2) and is not subject to s. 51.61, 1997 stats., regardless of whether the detention order or commitment order was issued before, on or after the effective date of this subsection .... [revisor inserts date].

SB395, s. 11 Section 11. 980.08 (1) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB395,13,16 980.08 (1) Any person who is committed under s. 980.06 and placed in institutional care may petition the committing court to modify its the commitment order by authorizing placement on supervised release if at least 18 months have elapsed since the initial commitment order was entered or at least 6 months have elapsed since the most recent release petition was denied or the most recent order for supervised release was revoked. The director of the facility at which the person is placed may file a petition under this subsection on the person's behalf at any time.

SB395, s. 12 Section 12. 980.08 (6m) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB395,14,23 980.08 (6m) An order for supervised release places the person in the custody and control of the department. The department shall arrange for control, care and treatment of the person in the least restrictive manner consistent with the requirements of the person and in accordance with the plan for supervised release approved by the court under sub. (5). A person on supervised release is subject to the conditions set by the court and to the rules of the department. Before a person is placed on supervised release by the court under this section, the court shall so notify the municipal police department and county sheriff for the municipality and county in which the person will be residing. The notification requirement under this subsection does not apply if a municipal police department or county sheriff submits to the court a written statement waiving the right to be notified. If the department alleges that a released person has violated any condition or rule, or that the safety of others requires that supervised release be revoked, he or she may be taken into custody under the rules of the department. The department shall submit a statement showing probable cause of the detention and a petition to revoke the order for supervised release to the committing court and the regional office of the state public defender responsible for handling cases in the county where the committing court is located within 72 hours after the detention, excluding Saturdays, Sundays and legal holidays. The court shall hear the petition within 30 days, unless the hearing or time deadline is waived by the detained person. Pending the revocation hearing, the department may detain the person in a jail or in a hospital, center or facility specified by s. 51.15 (2). The state has the burden of proving by clear and convincing evidence that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked. If the court determines after hearing that any rule or condition of release has been violated, or that the safety of others requires that supervised release be revoked, it may revoke the order for supervised release and order that the released person be placed again in an appropriate institution institutional care until the person is discharged from the commitment under s. 980.09 or until again placed on supervised release under this section.

SB395, s. 13 Section 13. 980.09 (1) (c) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB395,15,6 980.09 (1) (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the petitioner shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criterion specified in s. 980.08 (4), whether to modify the petitioner's existing commitment order by authorizing placement on supervised release.

SB395, s. 14 Section 14. 980.09 (2) (c) of the statutes, as affected by 1999 Wisconsin Act 9, is amended to read:

SB395,15,14 980.09 (2) (c) If the court is satisfied that the state has not met its burden of proof under par. (b), the person shall be discharged from the custody or supervision of the department. If the court is satisfied that the state has met its burden of proof under par. (b), the court may proceed to determine, using the criterion specified in s. 980.08 (4), whether to modify the person's existing commitment order by authorizing placement on supervised release.

SB395, s. 15 Section 15. Nonstatutory provisions.

SB395,16,2 (1) Determination of management level for persons committed under chapter 980. If the policies established under section 980.066 (2) of the statutes, as created by this act, relating to treatment for and conduct of persons detained or committed under chapter 980 of the statutes create distinct management levels for those persons, the department of health and family services shall, no later than the first day of the 7th month beginning after the date on which the policies take effect, conduct an assessment of each person in its custody who has been detained under section 980.04 (1) of the statutes or placed in institutional care pursuant to a commitment order issued under section 980.06 of the statutes, regardless of the date on which the detention order or commitment order was issued, to determine the management level at which the person is to be placed.

SB395, s. 16 Section 16. Effective date.

SB395,16,5 (1) This act takes effect on the first day of the 7th month beginning after publication.

SB395,16,6 (End)