51.61(1)(s)
(s) Have reasonable protection of privacy in such matters as toileting and bathing.
51.61(1)(u)
(u) Have the right to present grievances under the procedures established under
sub. (5) on his or her own behalf or that of others to the staff or administrator of the treatment facility or community mental health program without justifiable fear of reprisal and to communicate, subject to
par. (p), with public officials or with any other person without justifiable fear of reprisal.
51.61(1)(v)
(v) Have the right to use his or her money as he or she chooses, except to the extent that authority over the money is held by another, including the parent of a minor, a court-appointed guardian of the patient's estate or a representative payee. If a treatment facility or community mental health program so approves, a patient or his or her guardian may authorize in writing the deposit of money in the patient's name with the facility or program. Any earnings attributable to the money accrue to the patient. The treatment facility or community mental health program shall maintain a separate accounting of the deposited money of each patient. The patient or his or her guardian shall receive, upon written request by the patient or guardian, a written monthly account of any financial transactions made by the treatment facility or community mental health program with respect to the patient's money. If a patient is discharged from a treatment facility or community mental health program, all of the patient's money, including any attributable accrued earnings, shall be returned to the patient. No treatment facility or community mental health program or employe of such a facility or program may act as representative payee for a patient for social security, pension, annuity or trust fund payments or other direct payments or monetary assistance unless the patient or his or her guardian has given informed written consent to do so or unless a representative payee who is acceptable to the patient or his or her guardian and the payer cannot be identified. A community mental health program or treatment facility shall give money of the patient to him or her upon request, subject to any limitations imposed by guardianship or representative payeeship, except that an inpatient facility may, as a part of its security procedures, limit the amount of currency that is held by a patient and may establish reasonable policies governing patient account transactions.
51.61(1)(w)1.1. Have the right to be informed in writing, before, upon or at a reasonable time after admission, of any liability that the patient or any of the patient's relatives may have for the cost of the patient's care and treatment and of the right to receive information about charges for care and treatment services.
51.61(1)(w)2.
2. If the patient is a minor, if the patient's parents may be liable for the cost of the patient's care and treatment and if the patient's parents can be located with reasonable effort, the treatment facility or community mental health program shall notify the patient's parents of any liability that the parents may have for the cost of the patient's care and treatment and of their right to receive information under
subd. 3., except that a minor patient's parents may not be notified under this subdivision if the minor patient is receiving care under
s. 51.47 without the consent of the minor patient's parent or guardian.
51.61(1)(w)3.
3. A patient, a patient's relative who may be liable for the cost of the patient's care and treatment or a patient's guardian may request information about charges for care and treatment services at the treatment facility or community mental health program. If a treatment facility or community mental health program receives such a request, the treatment facility or community mental health program shall promptly provide to the individual making the request written information about the treatment facility's or community mental health program's charges for care and treatment services. Unless the request is made by the patient, the guardian of a patient adjudged incompetent under
ch. 880, the parent or guardian of a minor who has access to the minor's treatment records under
s. 51.30 (5) (b) 1. or a person designated by the patient's informed written consent under
s. 51.30 (4) (a) as a person to whom information may be disclosed, information released under this subdivision is limited to general information about the treatment facility's or community mental health program's charges for care and treatment services and may not include information which may not be disclosed under
s. 51.30.
51.61(1)(x)
(x) Have the right to be treated with respect and recognition of the patient's dignity and individuality by all employes of the treatment facility or community mental health program and by licensed, certified, registered or permitted providers of health care with whom the patient comes in contact.
51.61(2)
(2) A patient's rights guaranteed under
sub. (1) (p) to
(t) may be denied for cause after review by the director of the facility, and may be denied when medically or therapeutically contraindicated as documented by the patient's physician or licensed psychologist in the patient's treatment record. The individual shall be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right in an informal hearing before the director of the facility or his or her designee. There shall be documentation of the grounds for withdrawal of rights in the patient's treatment record. After an informal hearing is held, a patient or his or her representative may petition for review of the denial of any right under this subsection through the use of the grievance procedure provided in
sub. (5) or, alternatively or in addition to the use of such procedure, may bring an action under
sub. (7).
51.61(3)
(3) The rights accorded to patients under this section apply to patients receiving services in outpatient and day-service treatment facilities, as well as community mental health programs, insofar as applicable.
51.61(4)(a)(a) Each facility which conducts research upon human subjects shall establish a research and human rights committee consisting of not less than 5 persons with varying backgrounds to assure complete and adequate review of research activities commonly conducted by the facility. The committee shall be sufficiently qualified through the maturity, experience and expertise of its members and diversity of its membership to ensure respect for its advice and counsel for safeguarding the rights and welfare of human subjects. In addition to possessing the professional competence necessary to review specific activities, the committee shall be able to ascertain the acceptability of proposals in terms of commitments of the facility and federal regulations, applicable law, standards of professional conduct and practice, and community attitudes.
51.61(4)(b)
(b) No member of a committee may be directly involved in the research activity or involved in either the initial or continuing review of an activity in which he or she has a conflicting interest, except to provide information requested by the committee.
51.61(4)(c)
(c) No committee may consist entirely of persons who are officers, employes or agents of or are otherwise associated with the facility, apart from their membership on the committee.
51.61(4)(d)
(d) No committee may consist entirely of members of a single professional group.
51.61(4)(e)
(e) A majority of the membership of the committee constitutes a quorum to do business.
51.61(5)(a)(a) The department shall establish procedures to assure protection of patients' rights guaranteed under this chapter, and shall, except for the grievance procedures of the Mendota and Winnebago mental health institutes and the state centers for the developmentally disabled, implement a grievance procedure which complies with
par. (b) to assure that rights of patients under this chapter are protected and enforced by the department, by service providers and by county departments under
ss. 51.42 and
51.437. The procedures established by the department under this subsection apply to patients in private hospitals or public general hospitals.
51.61(5)(b)
(b) The department shall promulgate rules that establish standards for the grievance procedure used as specified in
par. (a) by the department, county departments under
ss. 51.42 and
51.437 and service providers. The standards shall include all of the following components:
51.61(5)(b)1.
1. Written policies and procedures regarding the uses and operation of the grievance system.
51.61(5)(b)2.
2. A requirement that a person, who is the contact for initiating and processing grievances, be identified within the department and in each county department under
ss. 51.42 and
51.437 and be specified by each service provider.
51.61(5)(b)4.
4. A formal process for resolving grievances, in cases where the informal process fails to resolve grievances to the patient's satisfaction.
51.61(5)(b)5.
5. A process for notification of all patients of the grievance process.
51.61(5)(b)6.
6. Time limits for responses to emergency and nonemergency grievances, as well as time limits for deciding appeals.
51.61(5)(b)7.
7. A process which patients may use to appeal unfavorable decisions within the department or county department under
s. 51.42 or
51.437 or through the service provider.
51.61(5)(b)8.
8. A process which may be used to appeal final decisions under
subd. 7. of the department, county department under
s. 51.42 or
51.437 or service provider to the department of health and family services.
51.61(5)(b)9.
9. Protections against the application of sanctions against any complainant or any person, including an employe of the department, county department under
s. 51.42 or
51.437 or service provider who assists a complainant in filing a grievance.
51.61(5)(c)
(c) Each county department of community programs shall attach a statement to an application for recertification of its community mental health programs or treatment facilities that are operated by or under contract with the county. The statement shall indicate if any complaints or allegations of violations of rights established under this section were made during the certification period immediately before the period of recertification that is requested and shall summarize any complaints or allegations made. The statement shall contain the date of the complaint or allegation, the disposition of the matter and the date of disposition. The department shall consider the statement in reviewing the application for recertification.
51.61(5)(d)
(d) No person may intentionally retaliate or discriminate against any patient or employe for contacting or providing information to any official or to an employe of any state protection and advocacy agency, or for initiating, participating in, or testifying in a grievance procedure or in an action for any remedy authorized under this section. Whoever violates this paragraph may be fined not more than $1,000 or imprisoned for not more than 6 months or both.
51.61(6)
(6) Subject to the rights of patients provided under this chapter, the department, county departments under
s. 51.42 or
51.437 and any agency providing services under an agreement with the department or those county departments have the right to use customary and usual treatment techniques and procedures in a reasonable and appropriate manner in the treatment of patients who are receiving services under the mental health system, for the purpose of ameliorating the conditions for which the patients were admitted to the system. The written, informed consent of any patient shall first be obtained, unless the person has been found not competent to refuse medication and treatment under
s. 51.61 (1) (g). In the case of a minor, the written, informed consent of the parent or guardian is required. Except as provided under an order issued under
s. 51.14 (3) (h) or
(4) (g), if the minor is 14 years of age or older, the written, informed consent of the minor and the minor's parent or guardian is required. A refusal of either a minor 14 years of age or older or the minor's parent or guardian to provide written, informed consent for outpatient mental health treatment is reviewable under
s. 51.14.
51.61(7)(a)(a) Any patient whose rights are protected under this section who suffers damage as the result of the unlawful denial or violation of any of these rights may bring an action against the person, including the state or any political subdivision thereof, which unlawfully denies or violates the right in question. The individual may recover any damages as may be proved, together with exemplary damages of not less than $100 for each violation and such costs and reasonable actual attorney fees as may be incurred.
51.61(7)(b)
(b) Any patient whose rights are protected under this section may bring an action against any person, including the state or any political subdivision thereof, which wilfully, knowingly and unlawfully denies or violates any of his or her rights protected under this section. The patient may recover such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees. It is not a prerequisite to an action under this paragraph that the plaintiff suffer or be threatened with actual damages.
51.61(7)(c)
(c) Any patient whose rights are protected under this section may bring an action to enjoin the unlawful violation or denial of rights under this section and may in the same action seek damages as provided in this section. The individual may also recover costs and reasonable actual attorney fees if he or she prevails.
51.61(7)(d)
(d) Use of the grievance procedure established under
sub. (5) is not a prerequisite to bringing an action under this subsection.
51.61(7m)
(7m) Whoever intentionally deprives a patient of the ability to seek redress for the alleged violation of his or her rights under this section by unreasonably precluding the patient from doing any of the following may be fined not more than $1,000 or imprisoned for not more than 6 months or both:
51.61(7m)(b)
(b) Communicating, subject to
sub. (1) (p), with a court, government official or staff member of the protection and advocacy agency that is designated under
s. 51.62 or with legal counsel.
51.61(8)
(8) Any informed consent which is required under
sub. (1) (a) to
(i) may be exercised by the patient's legal guardian if the patient has been adjudicated incompetent and the guardian is so empowered, or by the parent of the patient if the patient is a minor.
51.61(9)
(9) The department shall promulgate rules to implement this section.
51.61(10)
(10) No person who, in good faith, files a report with the appropriate examining board concerning the violation of rights under this section by persons licensed, certified, registered or permitted under
ch. 441,
446,
450,
455 or
456, or who participates in an investigation of an allegation by the appropriate examining board, is liable for civil damages for the filing or participation.
51.61 Annotation
Patient in state facility recovered fees under (7) (c) from county. Matter of Protective Placement of J. S. 144 W (2d) 670, 425 NW (2d) 15 (Ct. App. 1988).
51.61 Annotation
See note to 55.06, citing in Matter of J.G.S. 159 W (2d) 685, 465 NW (2d) 227 (Ct. App. 1990).
51.61 Annotation
Nurse's decision to take mental health patient on recreational walk is not treatment under sub. (1) (f), and no cause of action was created under this section for injuries incurred when the patient fell. Erbstoeaer v. American Casualty Co. 169 W (2d) 637, 486 NW (2d) 549 (Ct. App. 1992).
51.61 Annotation
Sub. (1) (g) 4. is not merely illustrative, but establishes the only standard by which a court may determine whether a patient is competent to refuse psychotropic medication. Factors to be considered in determining whether this competency standard is met are discussed. Mental Condition of Virgil D. 189 W (2d) 1, 524 NW (2d) 894 (1994).
51.61 Annotation
Sub. (1) (k) is unconstitutionally overbroad because it prevents all patients unable to give "express and informed" consent from receiving electroconvulsive treatment under any circumstances, even when the treatment may be life saving. Professional Guardianships, Inc. v. Ruth E.J. 196 W (2d) 794, 540 NW (2d) 213 (Ct. App. 1995).
51.61 Annotation
Court commissioners, including probate court commissioners, have the authority to conduct a hearing under s. 51.61 (1) (g). Carol J. R. v. County of Milwaukee, 196 W (2d) 882, 540 NW (2d) 233 (Ct. App. 1995).
51.61 Annotation
Nonconsensual drug therapy did not violate due process. Stensvad v. Reivitz, 601 F Supp. 128 (1985).
51.62
51.62
Protection and advocacy system. 51.62(1)
(1)
Definitions. In this section:
51.62(1)(ag)1.
1. An act, omission or course of conduct by another that is inflicted intentionally or recklessly on an individual with developmental disability or mental illness and that does at least one of the following:
51.62(1)(ag)1.a.
a. Results in bodily harm or great bodily harm to the individual.
51.62(1)(ag)1.b.
b. Intimidates, humiliates, threatens, frightens or otherwise harasses the individual.
51.62 Note
NOTE: Subd. 1. is shown as renumbered from sub. (1) (ag) (a) by the revisor under s. 13.93 (1) (b).
51.62(1)(ag)2.
2. The forcible administration of medication to an individual with developmental disability or mental illness, with the knowledge that no lawful authority exists for the forcible administration.
51.62 Note
NOTE: Subd. 2. is shown as renumbered from sub. (1) (ag) (b) by the revisor under s. 13.93 (1) (b).
51.62(1)(ag)3.
3. An act to an individual with developmental disability or mental illness that constitutes first degree, 2nd degree, 3rd degree or 4th degree sexual assault as specified under
s. 940.225.
51.62 Note
NOTE: Subd. 3. is shown as renumbered from sub. (1) (ag) (c) by the revisor under s. 13.93 (1) (b).
51.62(1)(am)
(am) "Developmental disability" means a severe, chronic disability of a person that is characterized by all of the following:
51.62(1)(am)1.
1. Is attributable to a mental or physical impairment or a combination of a mental and a physical impairment.
51.62(1)(am)2.
2. Is manifested before the person has attained the age of 22.
51.62(1)(am)4.
4. Results in substantial functional limitation in at least 3 of the following areas of major life activity:
51.62(1)(am)5.
5. Requires a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of lifelong or extended duration and are individually planned and coordinated.
51.62 Note
NOTE: Par. (am) was renumbered from s. 51.30 (1) (am) by the revisor under s. 13.93 (1) (b).
51.62(1)(b)
(b) "Inpatient health care facility" has the meaning provided under
s. 50.135 (1), except that it does include community-based residential facilities as defined under
s. 50.01 (1g).
51.62(1)(bm)
(bm) "Mental illness" means mental disease to such extent that a person so afflicted requires care and treatment for his or her welfare, or the welfare of others, or of the community and is an inpatient or resident in a facility rendering care or treatment or has been discharged from the facility for not more than 90 days.
51.62(1)(br)
(br) "Neglect" means an act, omission or course of conduct that, because of the failure to provide adequate food, shelter, clothing, medical care or dental care, creates a significant danger to the physical or mental health of an individual with developmental disability or mental illness.
51.62(1)(c)
(c) "Protection and advocacy agency" means an entity designated by the governor to implement a system to protect and advocate the rights of persons with developmental disabilities, as authorized under
42 USC 6012 or mental illness, as authorized under
42 USC 10801 to
10851.
51.62(2)(a)(a) The governor shall designate as the protection and advocacy agency a private, nonprofit corporation that is independent of all of the following:
51.62(2)(a)2.
2. The council on developmental disabilities and the council on mental health.
51.62(2)(a)3.
3. An agency that provides treatment, services or habilitation to persons with developmental disabilities or mental illness.
51.62(2)(b)
(b) After the governor has designated a protection and advocacy agency under
par. (a), the protection and advocacy agency so designated shall continue in that capacity unless and until the governor redesignates the protection and advocacy agency to another private, nonprofit corporation that meets the requirements of
par. (a). The governor may redesignate this private, nonprofit corporation the protection and advocacy agency only if all of the following conditions are met:
51.62(2)(b)2.
2. Prior notice and an opportunity to comment on a proposed redesignation has been given to all of the following:
51.62(2)(b)2.a.
a. The council on developmental disabilities and the council on mental health.
