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)13.
13. To the parents, children or spouse of an individual who is or was a patient at an inpatient facility, to a law enforcement officer who is seeking to determine whether an individual is on unauthorized absence from the facility, and to mental health professionals who are providing treatment to the individual at the time that the information is released to others. Information released under this subdivision is limited to notice as to whether or not an individual is a patient at the inpatient facility.
51.30(4)(b)14.
14. To the counsel for the interests of the public 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 or
975.Records released under this subdivision are limited to information concerning the admission, detention or commitment of an individual who is presently admitted, detained or committed.
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 county agency designated under
s. 46.90 (2) or other investigating agency under
s. 46.90 for the purposes of
s. 46.90 (4) (a) and
(5) or to the county protective services agency designated under
s. 55.02 for purposes of
s. 55.043. The treatment record holder may release treatment record information by initiating contact with the county protective services agency without first receiving a request for release of the treatment record from the county protective services agency.
51.30(4)(b)18.a.a. In this subdivision, "abuse" has the meaning given in
s. 51.62 (1) (ag); "neglect" has the meaning given in
s. 51.62 (1) (br); and "parent" has the meaning given in
s. 48.02 (13), except that "parent" does not include the parent of a minor whose custody is transferred to a legal custodian, as defined in
s. 48.02 (11), or for whom a guardian is appointed under
s. 880.33.
51.30(4)(b)18.b.
b. Except as provided in
subd. 18. c. and
d., to staff members of the protection and advocacy agency designated under
s. 51.62 (2) or to staff members of the private, nonprofit corporation with which the agency has contracted under
s. 51.62 (3) (a) 3., if any, for the purpose of protecting and advocating the rights of persons with developmental disabilities, as defined under
s. 51.62 (1) (am), or mental illness, as defined under
s. 51.62 (1) (bm).
51.30(4)(b)18.c.
c. If the patient, regardless of age, has a guardian appointed under
s. 880.33, or if the patient is a minor with developmental disability who has a parent or has a guardian appointed under
s. 48.831 and does not have a guardian appointed under
s. 880.33, information concerning the patient that is obtainable by staff members of the agency or nonprofit corporation with which the agency has contracted is limited, except as provided in
subd. 18. e., to the nature of an alleged rights violation, if any; the name, birth date and county of residence of the patient; information regarding whether the patient was voluntarily admitted, involuntarily committed or protectively placed and the date and place of admission, placement or commitment; and the name, address and telephone number of the guardian of the patient and the date and place of the guardian's appointment or, if the patient is a minor with developmental disability who has a parent or has a guardian appointed under
s. 48.831 and does not have a guardian appointed under
s. 880.33, the name, address and telephone number of the parent or guardian appointed under
s. 48.831 of the patient.
51.30(4)(b)18.d.
d. Except as provided in
subd. 18. e., any staff member who wishes to obtain additional information about a patient described in
subd. 18. c. shall notify the patient's guardian or, if applicable, parent in writing of the request and of the guardian's or parent's right to object. The staff member shall send the notice by mail to the guardian's or, if applicable, parent's address. If the guardian or parent does not object in writing within 15 days after the notice is mailed, the staff member may obtain the additional information. If the guardian or parent objects in writing within 15 days after the notice is mailed, the staff member may not obtain the additional information.
51.30(4)(b)18.e.
e. The restrictions on information that is obtainable by staff members of the protection and advocacy agency or private, nonprofit corporation that are specified in
subd. 18. c. and
d. do not apply if the custodian of the record fails to promptly provide the name and address of the parent or guardian; if a complaint is received by the agency or nonprofit corporation about a patient, or if the agency or nonprofit corporation determines that there is probable cause to believe that the health or safety of the patient is in serious and immediate jeopardy, the agency or nonprofit corporation has made a good-faith effort to contact the parent or guardian upon receiving the name and address of the parent or guardian, the agency or nonprofit corporation has either been unable to contact the parent or guardian or has offered assistance to the parent or guardian to resolve the situation and the parent or guardian has failed or refused to act on behalf of the patient; if a complaint is received by the agency or nonprofit corporation about a patient or there is otherwise probable cause to believe that the patient has been subject to abuse or neglect by a parent or guardian; or if the patient is a minor whose custody has been transferred to a legal custodian, as defined in
s. 48.02 (11) or for whom a guardian that is an agency of the state or a county has been appointed.
51.30(4)(b)19.
19. To state and local law enforcement agencies for the purpose of reporting an apparent crime committed on the premises of an inpatient treatment facility or nursing home, if the facility or home has treatment records subject to this section, or observed by staff or agents of any such facility or nursing home. Information released under this subdivision is limited to identifying information that may be released under
subd. 16. and information related to the apparent crime.
51.30(4)(b)20.
20. Except with respect to the treatment records of a subject individual who is receiving or has received services for alcoholism or drug dependence, to the spouse, parent, adult child or sibling of a subject individual, if the spouse, parent, adult child or sibling is directly involved in providing care to or monitoring the treatment of the subject individual and if the involvement is verified by the subject individual's physician, psychologist or by a person other than the spouse, parent, adult child or sibling who is responsible for providing treatment to the subject individual, in order to assist in the provision of care or monitoring of treatment. Except in an emergency as determined by the person verifying the involvement of the spouse, parent, adult child or sibling, the request for treatment records under this subdivision shall be in writing, by the requester. Unless the subject individual has been adjudged incompetent under
ch. 880, the person verifying the involvement of the spouse, parent, adult child or sibling shall notify the subject individual about the release of his or her treatment records under this subdivision. Treatment records released under this subdivision are limited to the following:
51.30(4)(b)20.a.
a. A summary of the subject individual's diagnosis and prognosis.
51.30(4)(b)20.b.
b. A listing of the medication which the subject individual has received and is receiving.
51.30(4)(b)23.
23. To the department under
s. 51.03 (2) or to a sheriff, police department or district attorney for purposes of investigation of a death reported under
s. 51.64 (2) (a).
51.30(4)(b)24.
24. To the department of corrections for the purpose of obtaining information concerning a person required to register under
s. 301.45. The department of corrections may disclose information that it receives under this subdivision as provided under
s. 301.46.
51.30(4)(c)
(c)
Limitation on release of alcohol and drug treatment records. Notwithstanding
par. (b), whenever federal law or applicable federal regulations restrict, or as a condition to receipt of federal aids require that this state restrict the release of information contained in the treatment records of any patient who receives treatment for alcoholism or drug dependency in a program or facility to a greater extent than permitted under this section, the department may by rule restrict the release of such information as may be necessary to comply with federal law and regulations. Rules promulgated under this paragraph shall supersede this section with respect to alcoholism and drug dependency treatment records in those situations in which they apply.
51.30(4)(d)1.1. Access to treatment records by a subject individual during his or her treatment may be restricted by the director of the treatment facility. However, access may not be denied at any time to records of all medications and somatic treatments received by the individual.
51.30(4)(d)2.
2. The subject individual shall have a right, following discharge under
s. 51.35 (4), to a complete record of all medications and somatic treatments prescribed during admission or commitment and to a copy of the discharge summary which was prepared at the time of his or her discharge. A reasonable and uniform charge for reproduction may be assessed.
51.30(4)(d)3.
3. In addition to the information provided under
subd. 2., the subject individual shall, following discharge, if the individual so requests, have access to and have the right to receive from the facility a photostatic copy of any or all of his or her treatment records. A reasonable and uniform charge for reproduction may be assessed. The director of the treatment facility or such person's designee and the treating physician have a right to be present during inspection of any treatment records. Notice of inspection of treatment records shall be provided to the director of the treatment facility and the treating physician at least one full day, excluding Saturdays, Sundays and legal holidays, before inspection of the records is made. Treatment records may be modified prior to inspection to protect the confidentiality of other patients or the names of any other persons referred to in the record who gave information subject to the condition that his or her identity remain confidential. Entire documents may not be withheld in order to protect such confidentiality.
51.30(4)(d)4.
4. At the time of discharge all individuals shall be informed by the director of the treatment facility or such person's designee of their rights as provided in this subsection.
51.30(4)(dm)
(dm)
Destruction, damage, falsification or concealment of treatment records. No person may do any of the following:
51.30(4)(dm)2.
2. Conceal or withhold a treatment record with intent to prevent its release to the subject individual under
par. (d), to his or her guardian appointed under
ch. 880 or to persons with the informed written consent of the subject individual or with intent to prevent or obstruct an investigation or prosecution.
51.30(4)(dm)3.
3. Intentionally destroy or damage records in order to prevent or obstruct an investigation or prosecution.
51.30(4)(e)
(e)
Notation of release of information. Each time written information is released from a treatment record, a notation shall be made in the record by the custodian thereof that includes the following: the name of the person to whom the information was released; the identification of the information released; the purpose of the release; and the date of the release. The subject individual shall have access to such release data as provided in
par. (d).
51.30(4)(f)
(f)
Correction of information. A subject individual, or the parent, guardian or person in the place of a parent of a minor, or the guardian of an incompetent may, after having gained access to treatment records, challenge the accuracy, completeness, timeliness, or relevance of factual information in his or her treatment records and request in writing that the facility maintaining the record correct the challenged information. Such request shall be granted or denied within 30 days by the director of the treatment facility, the director of the county department under
s. 51.42 or
51.437, or the secretary depending upon which person has custody of the record. Reasons for denial of the requested changes shall be given by the responsible officer and the individual shall be informed of any applicable grievance procedure or court review procedure. If the request is denied, the individual, parent, guardian or person in the place of a parent shall be allowed to insert into the record a statement correcting or amending the information at issue. The statement shall become a part of the record and shall be released whenever the information at issue is released.
51.30(5)(a)(a)
Consent for release of information. The parent, guardian, or person in the place of a parent of a minor or the guardian of an adult adjudged incompetent under
ch. 880 may consent to the release of confidential information in court or treatment records. A minor who is aged 14 or more may consent to the release of confidential information in court or treatment records without the consent of the minor's parent, guardian or person in the place of a parent. Consent under this paragraph must conform to the requirements of
sub. (2).
51.30(5)(b)1.1. The guardian of an individual who is adjudged incompetent under
ch. 880 shall have access to the individual's court and treatment records at all times. The parent, guardian or person in the place of a parent of a developmentally disabled minor shall have access to the minor's court and treatment records at all times except in the case of a minor aged 14 or older who files a written objection to such access with the custodian of the records. The parent, guardian or person in the place of a parent of other minors shall have the same rights of access as provided to subject individuals under this section.
51.30(5)(b)2.
2. A minor upon reaching the age of 14 shall have access to his or her own court and treatment records, as provided in this section. A minor under the age of 14 shall have access to court records but only in the presence of parent, guardian, counsel, guardian ad litem or judge and shall have access to treatment records as provided in this section but only in the presence of parent, guardian, counsel, guardian ad litem or staff member of the treatment facility.
51.30(5)(bm)
(bm)
Parents denied physical placement. A parent who has been denied periods of physical placement with a child under
s. 767.24 (4) (b) or
767.325 (4) may not have the rights of a parent or guardian under
pars. (a) and
(b) with respect to access to that child's court or treatment records.
51.30(5)(c)
(c)
Juvenile court records. The court records of juveniles admitted or committed under this chapter shall be kept separately from all other juvenile court records.
51.30(5)(d)
(d)
Other juvenile records. Section 48.78 does not apply to records covered by this section.
51.30(5)(e)
(e)
Temporary guardian for adult incompetent. If an adult is believed to be incompetent to consent to the release of records under this section, but no guardian has been appointed for such individual, consent for the release of records may be given by a temporary guardian who is appointed for the purpose of deciding upon the release of records.
51.30(6)
(6) Privileges. Sections 905.03 and
905.04 supersede this section with respect to communications between physicians and patients and between attorneys and clients.
51.30(7)
(7) Criminal commitments. Except as otherwise specifically provided, this section applies to the treatment records of persons who are committed under
chs. 971 and
975.
51.30(8)
(8) Grievances. Failure to comply with any provisions of this section may be processed as a grievance under
s. 51.61 (5). However, use of the grievance procedure is not required before bringing any civil action or filing a criminal complaint under this section.
51.30(9)(a)(a) Any person, including the state or any political subdivision of the state, violating this section shall be liable to any person damaged as a result of the violation for such damages as may be proved, together with exemplary damages of not less than $200 for each violation and such costs and reasonable actual attorney fees as may be incurred by the person damaged. A custodian of records incurs no liability under this paragraph for the release of records in accordance with this section while acting in good faith.
51.30(9)(b)
(b) In any action brought under
par. (a) in which the court determines that the violator acted in a manner that was knowing and wilful, the violator shall be liable for such damages as may be proved together with exemplary damages of not less than $1,000 for each violation, together with costs and reasonable actual attorney fees as may be incurred. It is not a prerequisite to an action under this subsection that the plaintiff suffer or be threatened with actual damages.
51.30(9)(c)
(c) An individual may bring an action to enjoin any violation of this section or to compel compliance with this section, and may in the same action seek damages as provided in this subsection. The individual may recover costs and reasonable actual attorney fees as may be incurred in the action, if he or she prevails.
51.30(10)
(10) Penalties. Whoever does any of the following may be fined not more than $1,000 or imprisoned for not more than 6 months or both:
51.30(10)(a)
(a) Requests or obtains confidential information under this section under false pretenses.
51.30(10)(b)
(b) Discloses confidential information under this section with knowledge that the disclosure is unlawful and is not reasonably necessary to protect another from harm.
51.30(11)
(11) Discipline of employes. Any employe of the department, a county department under
s. 51.42 or
51.437 or a public treatment facility who violates this section or any rule promulgated pursuant to this section may be subject to discharge or suspension without pay.
51.30(12)
(12) Rule making. The department shall promulgate rules to implement this section.
51.30 History
History: 1975 c. 430;
1977 c. 26 s.
75;
1977 c. 61,
428;
1979 c. 110 s.
60 (1);
1983 a. 27,
292,
398,
538;
1985 a. 29,
176;
1985 a. 292 s.
3;
1985 a. 332 ss.
97,
98,
251 (1);
1987 a. 352,
355,
362,
367,
399,
403;
1989 a. 31,
334,
336;
1991 a. 39,
189;
1993 a. 196,
445,
479;
1995 a. 169,
440; s. 13.93 (1) (b).
51.30 Annotation
See note to 905.04, citing State v. Taylor, 142 W (2d) 36, 417 NW (2d) 192 (Ct. App. 1987).
51.30 Annotation
Sec. 905.04 supersedes this section with respect to all relationships listed in 905.04 and is not strictly limited to physician—patient relationship. State v. S.H. 159 W (2d) 730, 465 NW (2d) 238 (Ct. App. 1990).
51.30 Annotation
The release of court records "pursuant to lawful order of the court" under sub. (3) (b) is allowable when access fits within or is comparable to one of the exceptions for treatment records under sub. (4) (b) or when a significant interrelationship exists between the records of the civil commitment proceeding at issue and a criminal proceeding involving a violent felony pending prior to the civil commitment. Mental condition of Billy Jo W. 182 W (2d) 616, 514 NW (2d) 707 (1994).
51.30 Annotation
Information which is in a treatment record but is obtained from another source is not subject to the treatment-records privilege under this section, except that all information which identifies a person as a patient is privileged. Daniel A. v. Walter H. 195 W (2d) 971, 537 NW (2d) 103 (Ct. App. 1995).
51.30 Annotation
See note to 48.981, citing 68 Atty. Gen. 342.
51.35
51.35
Transfers and discharges. 51.35(1)
(1)
Transfer of patients and residents. 51.35(1)(a)(a) The department or the county department under
s. 51.42 or
51.437 may transfer any patient or resident who is committed to it, or who is admitted to a facility under its supervision or operating under an agreement with it, between treatment facilities or from a facility into the community if such transfer is consistent with reasonable medical and clinical judgment and consistent with
s. 51.22 (5). The transfer shall be made in accordance with
par. (e). Terms and conditions which will benefit the patient or resident may be imposed as part of a transfer to a less restrictive treatment alternative. A patient or resident who is committed to the department or a county department under
s. 51.42 or
51.437 may be required to take medications and receive treatment, subject to the right of the patient or resident to refuse medication and treatment under
s. 51.61 (1) (g) and
(h), through a community support program as a term or condition of a transfer. The patient or resident shall be informed at the time of transfer of the consequences of violating such terms and conditions, including possible transfer back to a facility which imposes a greater restriction on personal freedom of the patient or resident.
51.35(1)(b)
(b) In addition to the requirements in
par. (a), a transfer of a patient in a mental health institute or center for the developmentally disabled by the department is subject to the approval of the appropriate county department under
ss. 51.42 and
51.437 to which the patient was committed or through which the patient was admitted to the facility, if any.
51.35(1)(bm)
(bm) Notwithstanding
par. (b), transfer of a patient under the age of 22 years to a center for the developmentally disabled may be made only to the central center for the developmentally disabled unless the department authorizes the transfer of the patient to the northern or southern center for the developmentally disabled.
51.35(1)(c)
(c) The department may, without approval of the county department under
s. 51.42 or
51.437 and notwithstanding
par. (d) 3., transfer any patient from a treatment facility to another treatment facility when the condition of the patient requires such transfer without delay. The department shall notify the appropriate county department under
s. 51.42 or
51.437 that the transfer has been made. Any patient so transferred may be returned to the treatment facility from which the transfer was made, upon orders from the department or the county department under
s. 51.42 or
51.437, when such return would be in the best interests of the patient.
51.35(1)(d)1.1. The department may, without approval of the appropriate county department under
s. 51.42 or
51.437, transfer any patient from a state treatment facility or other inpatient facility to an approved treatment facility which is less restrictive of the patient's personal freedom.
51.35(1)(d)2.
2. Transfer under this subsection may be made only if the transfer is consistent with the requirements of
par. (a), and the department finds that the appropriate county department under
s. 51.42 or
51.437 is unable to locate an approved treatment facility in the community, or that such county department has acted in an arbitrary or capricious manner to prevent the transfer of the patient out of the state treatment facility or other inpatient facility contrary to medical and clinical judgment.
51.35(1)(d)3.
3. A transfer of a patient, made under authority of this subsection, may be made only after the department has notified the county department under
s. 51.42 or
51.437 of its intent to transfer a patient in accordance with this subsection. The patient's guardian, if any, or if a minor his or her parent or person in the place of a parent shall be notified.
51.35(1)(e)1.1. Whenever any transfer between different treatment facilities results in a greater restriction of personal freedom for the patient and whenever the patient is transferred from outpatient to inpatient status, the department or the county department specified under
par. (a) shall inform the patient both orally and in writing of his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under
s. 967.06 and
ch. 977, if the patient is a child or is indigent, and the right to petition a court in the county in which the patient is located or the committing court for a review of the transfer.
51.35(1)(e)2.
2. In addition to the rights and requirements specified in
subd. 1., within 24 hours after any transfer which results in a greater restriction of personal freedom for the patient for a period of more than 5 days or any transfer from outpatient to inpatient status for a period of more than 5 days and if the transfer is due to an alleged violation of a condition of a transfer to less restrictive treatment, the department or the county department specified under
par. (a) shall ensure that the patient is provided a written statement of the reasons for the transfer and the facts supporting the transfer and oral and written notice of all of the following:
51.35(1)(e)2.c.
c. The patient's right to have counsel provided at public expense, as provided under
s. 967.06 and
ch. 977, if the patient is a child or is indigent.
51.35(1)(e)2.d.
d. The rights of the patient's counsel to investigate the facts specified in the written statement of reasons for the transfer, to consult with the patient prior to the patient's waiving a hearing under
subd. 3., to represent the patient at all proceedings on issues relating to the transfer, and to take any legal steps necessary to challenge the transfer.
51.35(1)(e)3.
3. Within 10 days after the transfer specified in
subd. 2., a hearing shall be held on whether the form of treatment resulting from the transfer is least restrictive of the patient's personal liberty, consistent with the treatment needs of the patient, and on whether the patient violated a condition of a transfer to less restrictive treatment that resulted in a transfer under
subd. 2. The hearing shall be held before a hearing officer designated by the director of the facility to which the patient has been transferred. The hearing officer may not be a person who has had direct responsibility for making treatment decisions for or providing treatment to the subject individual. The patient may appear at the hearing, either personally or by counsel, and may present and cross-examine witnesses and present documentary evidence. The hearing may be waived by the patient only after consultation with counsel. Any waiver made shall be in writing and witnessed by the patient's counsel.
51.35(1)(e)4.
4. The department or the county department seeking the transfer has the burden of proving, by a preponderance of the evidence, that the form of treatment resulting from the transfer is least restrictive of the patient's personal liberty, consistent with the treatment needs of the patient, and that the patient violated a condition of a transfer to less restrictive treatment that resulted in a transfer under
subd. 2. Hearsay evidence is admissible if the hearing officer makes a determination that the evidence is reliable. Hearsay evidence may not be the sole basis for the decision of the hearing officer.
51.35(1)(e)5.
5. The hearing officer shall, as soon as possible after the hearing, issue a written statement setting forth his or her decision, the reasons for the decision and the facts upon which the decision is based. Within 30 days after the date on which the statement is issued, the patient or the department or the county department seeking the transfer may appeal the decision to a court in the county in which the facility to which the patient has been transferred is located or to the committing court.
51.35(1)(e)6.
6. This paragraph does not apply to a return to a more restrictive facility if the return occurs within 7 days after a temporary transfer from that facility and the return was part of a previously established plan of which the patient was notified at the time of the temporary transfer. This paragraph does not apply to a return of an inmate to a state or county treatment facility under
s. 51.20 (13) (cm).
51.35(1)(f)
(f) The transfer of a patient or resident to a medical facility for nonpsychiatric medical services does not constitute a transfer within the meaning of this chapter and does not require the procedural protections for return to the original facility which are required by this section for other transfers.
51.35(2)
(2) Transfer of certain developmentally disabled patients. The department may authorize a transfer of a patient from a center for the developmentally disabled to a state treatment facility if the patient is mentally ill and exhibits conduct which constitutes a danger as described in
s. 51.20 (1) (a) 2. to himself or herself or to others in the treatment facility where he or she is present. The department shall file a statement of emergency detention with the committing court within 24 hours after receiving the person for emergency detention. The statement shall conform to the requirements specified in
s. 51.15 (4).
