SB226: Bill Text

LRB-1179/1

DAK:kjf:pg

2005 - 2006 LEGISLATURE

2005 Senate BILL 226

June 2, 2005 - Introduced by Senators Roessler, Leibham, Olsen, Stepp and Grothman, cosponsored by Representatives Gundrum, Strachota, Ainsworth, Hahn, Hines, Hundertmark, Kestell, Krawczyk, Musser, Ott, Owens, M. Williams and Lothian. Referred to Committee on Health, Children, Families, Aging and Long Term Care.

SB226,2,2 An Act to repeal 51.13 (1) (f) and 51.13 (2); to renumber and amend 51.13 (4) (g) 1., 51.13 (6) (a), 51.13 (7) (b) and 51.61 (6); to consolidate, renumber and amend 51.13 (3) (a) and (c); to amend 51.13 (1) (title), 51.13 (1) (a), 51.13 (1) (b), 51.13 (1) (c) 3., 51.13 (1) (d), 51.13 (1) (e), 51.13 (3) (b), 51.13 (4) (a) (intro.), 51.13 (4) (c), 51.13 (4) (d), 51.13 (4) (g) (intro.), 51.13 (4) (h) (intro.), 51.13 (6) (c), 51.13 (7) (title), 51.13 (7) (a), 51.13 (7) (c), 51.14 (title), 51.14 (1), 51.14 (3) (a), 51.14 (3) (b) 3., 51.14 (3) (f), 51.14 (3) (g), 51.14 (3) (h) (intro.), 51.14 (3) (h) 1., 51.14 (3) (j), 51.14 (4) (a), 51.14 (4) (g) (intro.), 51.22 (2), 51.30 (5) (b) 1., 51.30 (5) (b) 2., 51.35 (3) (a), 51.35 (3) (b), 51.35 (3) (g), 51.35 (4) (d), 51.45 (10) (am) and 51.45 (11) (a); and to create 51.01 (13r), 51.13 (4) (g) 1. a., 51.13 (4) (g) 1. b., 51.13 (4) (g) 1. c., 51.13 (4) (g) 4., 51.13 (7) (b) 3., 51.135, 51.14 (1m), 51.61 (6) (a) and 51.61 (6) (b) of the statutes; relating to: informed consent for minors for inpatient and outpatient treatment for mental illness and developmental disability, informed consent for the administration to minors of psychotropic medication, 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.

Execution of an application for inpatient treatment for mental illness and developmental disability

Currently, a minor 14 years of age or older may, together with his or her parent with legal custody or guardian, execute an application for inpatient treatment in a publicly funded treatment facility. For minors under 14 years of age, the parent or guardian may execute the application. The refusal of a minor 14 years of age or older to execute an application is reviewable by the court assigned to exercise jurisdiction under the Children's Code (juvenile court). If a minor wishes to be admitted to a publicly funded inpatient facility and his or her parent or guardian refuses to execute an application or is unable to be found, the minor may petition juvenile court for approval of the admission. A minor 14 years of age or older may apply and be admitted to an inpatient treatment facility for diagnosis and evaluation for dental, medical, or psychiatric services for a period not to exceed 12 days; for a minor under 14 years of age, the application must be executed by the minor's parent or guardian. If a minor attains 14 years of age while admitted to an inpatient treatment facility, the facility director must request the minor and his or her parent or guardian to execute an application for admission if the minor is in need of further inpatient care; if the application is not executed by the minor's 14th birthday, he or she must be discharged unless, under certain time limits, a statement is filed for emergency detention or a petition is filed for emergency commitment, involuntary commitment, or protective placement.

This bill continues to permit a minor aged 14 years or older, together with his or her parent or guardian, to execute an application for admission to an inpatient facility. However, if the minor refuses to execute the application, the parent or guardian may do so on the minor's behalf. An inpatient admission made despite refusal by the minor must be reviewed by juvenile court, and the minor is entitled to receive, among other things, an independent evaluation and assistance from the state protection and advocacy agency. For short-term admissions, a minor whose parent or guardian refuses to execute an admission application or cannot be found or for whom there is no parent with legal custody may apply and be admitted. The bill requires that the application for a minor 14 years of age or older be executed by the minor and his or her parent or guardian, except that the parent or guardian may execute the application if the minor refuses, and such an admission is reviewable by juvenile court. For a minor who attains age 14 while admitted to an inpatient treatment facility and who refuses to execute an application for admission, the bill permits the minor's parent or guardian to execute the application on the minor's behalf.

Admissions for privately funded inpatient treatment for mental illness and developmental disability

Under current law, a minor may be admitted to a private inpatient treatment facility without complying with certain of the requirements that apply to admissions to publicly funded treatment facilities.

This bill eliminates the distinctions in requirements between admissions for minors to publicly funded and privately funded inpatient treatment facilities for mental illness and developmental disability, except that publicly funded admissions continue to be through county departments of community programs or developmental disabilities services or through the Department of Health and Family Services (DHFS).

Discharge upon request

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 or any minor whose parent or guardian refuses to execute an admission application or cannot be found or for whom there is no parent with legal custody who has petitioned successfully for admission 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 if his or her parent or guardian also requests discharge or after a hearing before the juvenile court to determine the continued appropriateness of the admission.

This bill eliminates the right of a minor aged 14 years or older to be discharged from inpatient treatment for mental illness or developmental disability within 48 hours after solely requesting the discharge, except for a minor whose parent or guardian refused to consent to admission or was unable to be found or for whom there is no parent with legal custody and who was admitted to an inpatient facility after a hearing. Under the bill, a minor 14 years of age or older may request discharge together with a parent or guardian. If a minor 14 years of age of older wishes to be discharged and the parent or guardian refuses to request discharge and if the director of the treatment facility avers in writing that the minor is in need of psychiatric services or services for developmental disability, that the facility's therapy or treatment 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 minor's needs, the minor may not be discharged. A minor who wishes to be discharged but whose parent or guardian refuses may request a hearing before juvenile court, if no hearing concerning the admission has been held within the immediately preceding 120 days.

Transfer for treatment and returns from treatment

Under current law, a minor aged 14 years or older who is in need of services for developmental disability or psychiatric services and the minor's parent or guardian must consent for transfer of the minor from a secured juvenile facility to an inpatient treatment facility. Only the minor need consent if the minor has successfully petitioned for admission and has a parent or guardian who refuses to consent or cannot be found or has no parent with legal custody. The minor and his or her parent or guardian have the same rights as are accorded for other admissions to inpatient treatment facilities. DHFS must file a petition for review of the transfer with the juvenile court. If the court is unable to determine that the consent was voluntary on the part of the minor, the court may order additional information or a hearing. 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 the minor's counsel, guardian ad litem, parent, or guardian, the court must hold a hearing to review the transfer. The parent or guardian of a minor under 14 years of age who is transferred to a treatment facility to receive services for developmental disability or psychiatric services may request transfer back to the secured correctional facility, secured child caring institution, or secured group home for the minor. For a minor 14 years of age or older, however, the minor may request return and be returned within 48 hours after submission of the request unless a statement is filed for emergency detention or a petition is filed for emergency commitment, involuntary commitment, or protective placement.

This bill continues to permit a minor aged 14 years or older, and the minor's parent or guardian, to consent for transfer of the minor from a secured juvenile facility to an inpatient treatment facility. However, if the minor refuses to consent, the parent or guardian may do so on the minor's behalf. A juvenile court must review a transfer made under the consent of the minor's parent or guardian despite the minor's refusal, and the minor is granted the rights to an independent evaluation and to assistance from the state protection and advocacy agency as under other discharges from an inpatient treatment facility. The bill eliminates the right of a minor 14 years of age or older to request return to a secured juvenile facility from an inpatient treatment facility and to be returned within 48 hours. Instead, the bill requires that the minor and his or her parent or guardian request the return and provides that the return be made within 48 hours unless a statement is filed for emergency detention or a petition is filed for emergency commitment, involuntary commitment, or protective placement.

Consent for outpatient treatment for mental illness

Currently, a minor aged 14 years or older may, together with his or her parent or guardian, consent to outpatient treatment for mental illness. "Outpatient mental health treatment" is defined as treatment and social services for mental illness, except psychotropic medications and 24-hour care and custody provided by a treatment facility. For minors under 14 years of age, the parent or guardian may consent. Either a minor 14 years of age or older or his or her parent or guardian may petition the mental health review officer in the county in which the parent or guardian has residence for a review of a refusal of either the minor or the parent or guardian to provide the consent. In addition, review by juvenile court may be made directly or the juvenile court may review a decision by the mental health review officer.

This bill continues to permit a minor aged 14 years or older, together with his or her parent or guardian, to consent to outpatient treatment. However, if the minor refuses to execute the application, the parent or guardian may do so on the minor's behalf. A petition for review by the mental health officer must be filed by or on behalf of a minor whose parent or guardian has provided consent to outpatient treatment for the minor, despite the minor's refusal, and the minor has a right to review by juvenile court. The definition of "outpatient mental health treatment" is changed to eliminate the exclusion for the administration of psychotropic medications.

Psychotropic medication as treatment for mental illness

This bill requires a parent or guardian of a minor under 14 years of age to provide written, informed consent for the administration of psychotropic medication, as defined in the bill, to the minor as inpatient or outpatient treatment. For a minor 14 years of age or older, the minor and his or her parent or guardian must consent for the administration of psychotropic medication as inpatient or outpatient treatment, but if the minor refuses to consent, the parent or guardian may consent on the minor's behalf; administration of psychotropic medication to the minor despite his or her refusal is reviewable by juvenile court. A minor whose parent or guardian refuses to consent or cannot be found or who has no parent with legal custody may petition the juvenile court for approval of the administration of the psychotropic medication.

Records

Currently, the parent, guardian, or person in the place of a parent of a minor with developmental disability has access to the minor's court and treatment records at all times unless the minor, if aged 14 or older, files a written objection with the record custodian. Parents, guardians, and persons in the place of parents of other minors have full rights of access. Minors aged 14 or older have access to their own records; minors under age 14 have access to court and treatment records only in the presence of certain other persons.

The bill eliminates the right of a minor with developmental disability aged 14 or older to object to access to his or her court or treatment records by his or her parent, guardian, or person in the 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:

SB226, s. 1 Section 1. 51.01 (13r) of the statutes is created to read:

SB226,6,2 51.01 (13r) "Psychotropic medication" has the meaning given in s. 50.035 (5) (a) 2.

SB226, s. 2 Section 2. 51.13 (1) (title) of the statutes is amended to read:

SB226,6,4 51.13 (1) (title) Admission through board or department.

SB226, s. 3 Section 3. 51.13 (1) (a) of the statutes is amended to read:

SB226,6,16 51.13 (1) (a) Except as provided in par. (c) and s. ss. 51.45 (2m) and 51.47, 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 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).

SB226, s. 4 Section 4. 51.13 (1) (b) of the statutes is amended to read:

SB226,6,24 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., except that, if the minor refuses to execute the application, a parent who has legal custody of the minor or the minor's guardian may execute the application on the minor's behalf.

SB226, s. 5 Section 5. 51.13 (1) (c) 3. of the statutes is amended to read:

SB226,7,3 51.13 (1) (c) 3. The court may, at the minor's request, temporarily approve the admission under subd. 1. or 2. pending hearing on the petition. If a hearing is held under subd. 1. or 2., no review or hearing under sub. (4) is required.

SB226, s. 6 Section 6. 51.13 (1) (d) of the statutes is amended to read:

SB226,7,10 51.13 (1) (d) A minor against whom a petition or statement has been filed under s. 51.15, 51.20, or 51.45 (12) or (13) may be admitted under this section. The court may permit the minor to become a voluntary patient under this section upon approval by the court of an application executed under par. (a), (b), or (c). The court shall then dismiss the proceedings under s. 51.15, 51.20, or 51.45 (12) or (13). If a hearing is held under this subsection, no hearing under sub. (4) is required.

SB226, s. 7 Section 7. 51.13 (1) (e) of the statutes is amended to read:

SB226,7,24 51.13 (1) (e) A minor may be admitted immediately upon the approval of the application executed under par. (a) or (b) by the treatment director of the facility or his or her designee or, in the case of a center for the developmentally disabled, the director of the center or his or her designee, and, if the county department is to be responsible for the cost of the minor's therapy and treatment, the director of the appropriate county department under s. 51.42 or 51.437 if the county department is to be responsible for the cost of the minor's therapy and treatment. Admission under par. (c) or (d) shall also be approved, within 14 days of the minor's admission, by the treatment director of the facility or his or her designee, or in the case of a center for the developmentally disabled, the director of the center or his or her designee and, if the county department is to be responsible for the cost of the minor's therapy and treatment, the director of the appropriate county department under s. 51.42 or 51.437.

SB226,8,9 (em) Approval under par. (e) shall be based upon an informed professional opinion 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 for the minor's needs, and that inpatient care in the facility is the least restrictive therapy or treatment consistent with the minor's needs. In the case of a minor who is being admitted for the primary purpose of treatment for alcoholism or drug abuse, approval shall also be based on the results of an alcohol or other drug abuse assessment that conforms to the criteria specified in s. 938.547 (4).

SB226, s. 8 Section 8. 51.13 (1) (f) of the statutes is repealed.

SB226, s. 9 Section 9. 51.13 (2) of the statutes is repealed.

SB226, s. 10 Section 10. 51.13 (3) (a) and (c) of the statutes are consolidated, renumbered 51.13 (3) (am) and amended to read: