SB387: Bill Text

LRB-3619/1

DAK:wlj:jf

2003 - 2004 LEGISLATURE

2003 Senate BILL 387

January 14, 2004 - Introduced by Senators Roessler, A. Lasee and Cowles, cosponsored by Representatives Jensen, Hundertmark, Ladwig, Krawczyk, Hines, Gunderson, F. Lasee, Wasserman, Townsend, Seratti, Petrowski and Taylor. Referred to Committee on Health, Children, Families, Aging and Long Term Care.

SB387,1,9 An Act to repeal 51.13 (1) (b) and 51.13 (1) (c) 2.; and to amend 51.13 (1) (a), 51.13 (1) (b), 51.13 (1) (c) 1., 51.13 (1) (c) 3., 51.13 (2) (a), 51.13 (2) (b), 51.13 (2) (d), 51.13 (3) (b), 51.13 (3) (c), 51.13 (4) (d), 51.13 (4) (g) (intro.), 51.13 (4) (g) 1., 51.13 (6) (a), 51.13 (7) (title), 51.13 (7) (a), 51.13 (7) (b), 51.13 (7) (c), 51.14 (3) (a), 51.20 (16) (a), 51.30 (5) (a), 51.30 (5) (b) 1., 51.30 (5) (b) 2., 51.35 (3) (a), 51.35 (3) (b), 51.35 (3) (g) and 51.61 (6) of the statutes; relating to: eliminating the distinction between a minor under 14 years of age and a minor 14 years of age or older with regard to informed consent for treatment for mental illness, transfer, discharge, and access to records.

Analysis by the Legislative Reference Bureau

Currently, the mental health laws distinguish between minors under 14 years of age and minors 14 years of age or older with regard to giving informed consent for outpatient treatment for mental illness or developmental disability; voluntary admission to and discharge from an inpatient facility for treatment and rehabilitation of mental illness or developmental disability; reexamination under, or modification or cancellation of, an involuntary commitment order for treatment for mental illness or developmental disability; transfer from a juvenile secured correctional facility to an inpatient facility for treatment for mental illness or developmental disability; access and consent to the release of court records and treatment records; and informed consent for medication and treatment. No distinction exists between a minor under 14 years of age and a minor 14 years of age or older with regard to treatment for alcoholism or drug abuse. This bill eliminates the distinction between a minor under 14 years of age and a minor 14 years of age or older with regard to treatment for mental illness under the mental health laws.

Specifically, under current law, subject to certain exceptions, before a minor 14 years of age or older may receive outpatient treatment or general medication and treatment for mental illness or developmental disability, the written, informed consent of both the minor and the minor's parent or guardian is required. This bill eliminates the requirement that a minor 14 years of age or older, except for a minor whose parent or guardian refuses to execute the admission application or cannot be found, provide his or her written, informed consent, in addition to that of his or her parent or guardian, before he or she may receive outpatient treatment or general medication and treatment for mental illness.

Under current law, subject to certain exceptions, before a minor 14 years of age or older may be admitted voluntarily to an inpatient facility for treatment for mental illness or developmental disability, both the minor and the minor's parent who has legal custody of the minor or the minor's guardian must execute an application for voluntary admission to the facility. This bill eliminates the requirement that a minor 14 years of age or older execute the application for voluntary admission to an inpatient facility, along with his or her parent or guardian, before the minor may be admitted to the facility for treatment of mental illness.

Under current law, if a minor 14 years of age or older wishes to be admitted to an inpatient facility, but the minor's parent who has legal custody of the minor or the minor's guardian refuses to execute the application for admission or cannot be found, the minor may petition the court assigned to exercise jurisdiction under the children's code (juvenile court) for approval of the admission. This bill permits a minor under 14 years of age to petition the juvenile court for approval of his or her admission to an inpatient facility if the minor's parent or guardian refuses to execute the application for admission or cannot be found.

Under current law, a minor 14 years of age or older who is voluntarily admitted to an inpatient facility for treatment for mental illness or developmental disability may request that he or she be discharged from the facility and, subject to certain exceptions, must be discharged within 48 hours after submission of the request. A minor under 14 years of age, however, may be discharged on his or her request only after a hearing before the juvenile court to determine the continued appropriateness of the admission. This bill eliminates the requirement that a minor 14 years of age or older, except for a minor whose parent or guardian refuses to execute the admission application or cannot be found, who has been voluntarily admitted to an inpatient facility for treatment of mental illness be discharged within 48 hours after his or her request and instead requires the juvenile court to hold a hearing on such a request to determine the continued appropriateness of the admission, as is the case for minors under 14 years of age under current law. The bill retains the requirement for discharge from an inpatient facility of a requesting minor 14 years of age or older who was voluntarily admitted for treatment of developmental disability.

Under current law, a minor 14 years of age or older who has been involuntarily committed for treatment for mental illness or developmental disability may, on his or her own petition or on the petition of a guardian, relative, friend, or person providing treatment under the commitment order, petition the juvenile court for an order that his or her mental condition be reexamined or for an order modifying or canceling his or her commitment. This bill eliminates the right of a minor 14 years of age or older, except for a minor whose parent or guardian refuses to execute the admission application or cannot be found, to file his or her own petition for such a reexamination, modification, or cancellation of the minor's treatment for mental illness.

Under current law, a minor may be transferred from a juvenile secured correctional facility to an inpatient facility for treatment for mental illness or developmental disability if the juvenile court finds that the transfer is appropriate and consistent with the needs of the minor and, if the minor is 14 years of age or older, that the transfer is voluntary on the part of the minor. This bill eliminates the requirement that a minor 14 years of age or older, except for a minor whose parent or guardian refuses to execute the application for admission or cannot be found, consent to being transferred from a juvenile correctional facility to an inpatient facility for treatment for mental illness. Under the bill, only the minor's parent or guardian need consent, as is the case for minors under 14 years of age under current law.

Under current law, a minor 14 years of age or older may have access to his or her court records and treatment records for treatment for mental illness or developmental disability on the same basis as an adult, but a minor under 14 years of age may have access to his or her court records only in the presence of his or her parent, guardian, counsel, or guardian ad litem or a judge and may have access to his or her treatment records only in the presence of his or her parent, guardian, counsel, or guardian ad litem or a staff member of the treatment facility. This bill limits access by a minor 14 years of age or older, except for a minor whose parent or guardian refuses to execute the application for admission or cannot be found and except for a voluntarily admitted developmentally disabled minor, to his or her court records or treatment records except in the presence of a person whose presence is required under current law for a minor under 14 years of age.

Under current law, subject to certain exceptions, confidential information in the court records or treatment records for treatment for mental illness or developmental disability of a minor 14 years of age or older may be released on the consent of the minor without the consent of the minor's parent or guardian or a person in place of a parent. This bill eliminates the right of a minor 14 years of age or older, except for a minor whose parent or guardian refuses to execute the application for admission or cannot be found, to consent to the release of confidential information in his or her court records or treatment records for treatment for mental illness without the consent of his or her parent or guardian or a person in place of a parent.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB387, s. 1 Section 1. 51.13 (1) (a) of the statutes is amended to read:

SB387,4,12 51.13 (1) (a) Except as provided in par. (c) and s. 51.45 (2m), the application for voluntary admission of a minor who is 14 years of age or older to an approved inpatient treatment facility for the primary purpose of treatment for mental illness, alcoholism, or drug abuse and the application for voluntary admission of a minor who is under 14 years of age to an approved inpatient treatment facility for the primary purpose of treatment for mental illness, developmental disability, alcoholism, or drug abuse shall be executed by a parent who has legal custody of the minor or the minor's guardian. Any statement or conduct by a minor who is the subject of an application for voluntary admission under this paragraph indicating that the minor does not agree to admission to the facility shall be noted on the face of the application and shall be noted in the petition required by sub. (4).

SB387, s. 2 Section 2. 51.13 (1) (b) of the statutes is amended to read:

SB387,4,18 51.13 (1) (b) The application for voluntary admission of a minor who is 14 years of age or older to an approved inpatient treatment facility for the primary purpose of treatment for mental illness or developmental disability shall be executed by the minor and a parent who has legal custody of the minor or the minor's guardian, except as provided in par. (c) 1.

SB387, s. 3 Section 3. 51.13 (1) (c) 1. of the statutes is amended to read:

SB387,5,10 51.13 (1) (c) 1. If a minor 14 years of age or older wishes to be admitted to an approved inpatient treatment facility but a parent with legal custody or the guardian refuses to execute the application for admission or cannot be found, or if there is no parent with legal custody, the minor or a person acting on the minor's behalf may petition the court assigned to exercise jurisdiction under chs. 48 and 938 in the county of residence of the parent or guardian for approval of the admission. A copy of the petition and a notice of hearing shall be served upon the parent or guardian at his or her last-known address. If, after a hearing, the court determines that the consent of the parent or guardian is being unreasonably withheld, that the parent or guardian cannot be found, or that there is no parent with legal custody, and that the admission is proper under the standards prescribed in sub. (4) (d), the court shall approve the minor's admission without the consent of the parent or guardian.

SB387, s. 4 Section 4. 51.13 (1) (c) 2. of the statutes is repealed.

SB387, s. 5 Section 5. 51.13 (1) (c) 3. of the statutes is amended to read:

SB387,5,15 51.13 (1) (c) 3. The court may, at the minor's request, temporarily approve the admission pending hearing on the petition. If a hearing is held under subd. 1. or 2., no review or hearing under sub. (4) is required.

SB387, s. 6 Section 6. 51.13 (2) (a) of the statutes is amended to read:

SB387,6,5 51.13 (2) (a) A minor may be admitted to an inpatient treatment facility without complying with the requirements of this section if the admission does 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. The application for voluntary admission of a minor who is 14 years of age or older to an inpatient treatment facility for the primary purpose of treatment for mental illness, alcoholism, or drug abuse and the application for voluntary admission of a minor who is under 14 years of age to an inpatient treatment facility for the primary purpose of treatment for mental illness, developmental disability, alcoholism, or drug abuse shall be executed by a parent who has legal custody of the minor or by the minor's guardian. The application for voluntary admission of a minor who is 14 years of age or older to an inpatient treatment facility for the primary purpose of treatment for mental illness or developmental disability shall be executed by the minor and a parent who has legal custody of the minor or the minor's guardian.

SB387, s. 7 Section 7. 51.13 (2) (b) of the statutes is amended to read:

SB387,6,16 51.13 (2) (b) Notwithstanding par. (a), any minor who is 14 years of age or older and who is admitted to an inpatient treatment facility for the primary purpose of treatment of mental illness or developmental disability has the right to be discharged within 48 hours after his or her request, as provided in sub. (7) (b). At the time of admission, any minor who is 14 years of age or older and who is admitted to an inpatient treatment facility for the primary purpose of treatment for mental illness or developmental disability, and the minor's parent or guardian, shall be informed of this right orally and in writing by the director of the hospital or such person's designee. This paragraph does not apply to individuals who receive services in hospital emergency rooms.

SB387, s. 8 Section 8. 51.13 (2) (d) of the statutes is amended to read:

SB387,6,22 51.13 (2) (d) Writing materials for use in requesting a discharge shall be made available at all times to all minors who are 14 years of age or older and who are admitted under this subsection for the primary purpose of treatment for mental illness or developmental disability. The staff of the facility shall assist such minors in preparing or submitting requests for discharge.

SB387, s. 9 Section 9. 51.13 (3) (b) of the statutes is amended to read:

SB387,7,7 51.13 (3) (b) A minor 14 years of age or older who has been admitted to an inpatient treatment facility for the primary purpose of treatment for mental illness or developmental disability, a minor who is voluntarily admitted under sub. (1) (c) 1. or 2., and the minor's parent or guardian shall also be informed by the director or his or her designee, both orally and in writing, in easily understandable language, of the minor's right to request discharge and to be discharged within 48 hours of the request if no petition or statement is filed for emergency detention, emergency commitment, involuntary commitment, or protective placement, and the minor's right to consent to or refuse treatment as provided in s. 51.61 (6).

SB387, s. 10 Section 10. 51.13 (3) (c) of the statutes is amended to read:

SB387,7,18 51.13 (3) (c) A minor 14 years of age or older, other than a minor specified under par. (b), who has been admitted to an inpatient facility for the primary purpose of treatment for mental illness, alcoholism, or drug abuse, a minor under 14 years of age who has been admitted to an inpatient treatment facility for the primary purpose of treatment for mental illness, developmental disability, alcoholism, or drug abuse, and the minor's parent or guardian shall also be informed by the director or his or her designee, both orally and in writing, in easily understandable language, of the right of the parent or guardian to request the minor's discharge as provided in sub. (7) (b) and of the minor's right to a hearing to determine continued appropriateness of the admission as provided in sub. (7) (c).

SB387, s. 11 Section 11. 51.13 (4) (d) of the statutes is amended to read:

SB387,8,17 51.13 (4) (d) Within 5 days after the filing of the petition, the court assigned to exercise jurisdiction under chs. 48 and 938 shall determine, based on the allegations of the petition and accompanying documents, whether there is a prima facie showing that the minor is in need of psychiatric services, or services for developmental disability, alcoholism, or drug abuse, that the treatment facility offers inpatient therapy or treatment that is appropriate to the minor's needs and that inpatient care in the treatment facility is the least restrictive therapy or treatment consistent with the needs of the minor, and, if the minor is 14 years of age or older and has been admitted to the treatment facility for the primary purpose of treatment for mental illness or developmental disability, whether the admission is voluntary on the part of the minor. If such a showing is made, the court shall permit voluntary admission. If the court is unable to make those determinations based on the petition and accompanying documents, the court may dismiss the petition as provided in par. (h); order additional information to be produced as necessary for the court to make those determinations within 14 days after admission or application for admission, whichever is sooner; or hold a hearing within 14 days after admission or application for admission, whichever is sooner. If a notation of the minor's unwillingness appears on the face of the petition, or if a hearing has been requested by the minor or by the minor's counsel, parent, or guardian, the court shall hold a hearing to review the admission within 14 days after admission or application for admission, whichever is sooner, and shall appoint counsel to represent the minor if the minor is unrepresented. If the court considers it necessary, the court shall also appoint a guardian ad litem to represent the minor.

SB387, s. 12 Section 12. 51.13 (4) (g) (intro.) of the statutes is amended to read:

SB387,9,9 51.13 (4) (g) (intro.) If the court finds that the minor is in need of psychiatric services or services for developmental disability, alcoholism, or drug abuse in an inpatient facility, that the inpatient facility to which the minor is admitted offers therapy or treatment that is appropriate for the minor's needs and that is the least restrictive therapy or treatment consistent with the minor's needs, and, in the case of a minor 14 years of age or older who is being admitted for the primary purpose of treatment for mental illness or developmental disability, that the application is voluntary on the part of the minor, the court shall permit voluntary admission. If the court finds that the therapy or treatment in the inpatient facility to which the minor is admitted is not appropriate or is not the least restrictive therapy or treatment consistent with the minor's needs, the court may order placement in or transfer to another more appropriate or less restrictive inpatient facility, except that the court may not permit or order placement in or transfer to the northern or southern centers for the developmentally disabled of a minor unless the department gives approval for the placement or transfer, and if the order of the court is approved by all of the following if applicable:

SB387, s. 13 Section 13. 51.13 (4) (g) 1. of the statutes is amended to read:

SB387,9,13 51.13 (4) (g) 1. The minor if he or she is 14 years of age or older and is being admitted for the primary purpose of treatment for mental illness or developmental disability.

SB387, s. 14 Section 14. 51.13 (6) (a) of the statutes is amended to read:

SB387,9,23 51.13 (6) (a) A minor may be admitted to an inpatient treatment facility without review of the application under sub. (4) for diagnosis and evaluation or for dental, medical, or psychiatric services for a period not to exceed 12 days. The application for short-term admission of a minor shall be executed by the minor's parent or guardian, and, if the minor is 14 years of age or older and is being admitted for the primary purpose of diagnosis, evaluation, or services for mental illness or developmental disability, by the minor. A minor may not be readmitted to an inpatient treatment facility for psychiatric services under this paragraph within 120 days of a previous admission under this paragraph.

SB387, s. 15 Section 15. 51.13 (7) (title) of the statutes is amended to read:

SB387,9,25 51.13 (7) (title) Discharge or continued appropriateness of admission.

SB387, s. 16 Section 16. 51.13 (7) (a) of the statutes is amended to read:

SB387,10,13 51.13 (7) (a) If a minor is admitted to an inpatient treatment facility while under 14 years of age, and if upon reaching age 14 is in need of further inpatient care and treatment primarily for mental illness or developmental disability, the director of the facility shall request the minor and the minor's parent or guardian to execute an application for voluntary admission. Such an application may be executed within 30 days prior to a minor's 14th birthday. If the application is executed, a petition for review shall be filed in the manner prescribed in sub. (4), unless such a review has been held within the last 120 days. If the application is not executed by the time of the minor's 14th birthday, the minor shall be discharged unless a petition or statement is filed for emergency detention, emergency commitment, involuntary commitment, or protective placement by the end of the next day in which the court transacts business.