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
A patient in a state facility recovered fees under sub. (7) (c) from the county. Matter of Protective Placement of J. S.
144 Wis. 2d 670,
425 N.W.2d 15 (Ct. App. 1988).
51.61 Annotation
The court may order an agency to do planning and the implementation work necessary to fulfill the obligation to order placement conforming to ss. 55.06 (9) (a) and 51.61 (1) (e). In Matter of J.G.S.
159 Wis. 2d 685,
465 N.W.2d 227 (Ct. App. 1990).
51.61 Annotation
A nurse's decision to take a mental health patient on a 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 Wis. 2d 637,
486 N.W.2d 549 (Ct. App. 1992).
51.61 Annotation
Sub. (1) (g) 4. is not merely illustrative; it 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 Wis. 2d 1,
524 N.W.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 Wis. 2d 794,
540 N.W.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 Wis. 2d 882,
540 N.W.2d 233 (Ct. App. 1995).
51.61 Annotation
In an action for negligence and malpractice, when a provider's treatment techniques or deficiencies were part and parcel of the plaintiff's claim, it was appropriate to award costs and attorney fees under sub. (7) (a). Wright v. Mercy Hospital,
206 Wis. 2d 448,
557 N.W.2d 846 (Ct. App. 1996).
51.61 Annotation
Sub. (7) contemplates two separate and distinct causes of action. Par. (a) applies when the denial of a patient's rights have caused actual damages. Par. (b) does not require damages, but allows recovery if the patient's rights were violated wilfully, knowingly, and unlawfully. Schaidler v. Mercy Medical Center of Oshkosh, Inc.
209 Wis. 2d 457,
563 N.W.2d 554 (Ct. App. 1997).
51.61 AnnotationNonconsensual 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(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(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(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(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.
51.62(2)(b)2.b.
b. Major organizations, in the state, of persons with developmental disabilities or mental illness and families and representatives of these persons.
51.62(2)(c)
(c) If the governor has designated a protection and advocacy agency before July 20, 1985, that entity 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).
51.62(3)(a)1.
1. Pursue legal, administrative and other appropriate remedies to ensure the protection of the rights of persons with developmental disabilities or mental illness and to provide information on and referral to programs and services addressing the needs of persons with developmental disabilities or mental illness.
51.62(3)(a)2m.
2m. Have immediate access to any person with mental illness or developmental disability, regardless of age, who has requested services or on whose behalf services have been requested from the protection and advocacy agency or concerning whom the protection and advocacy agency has reasonable cause to believe that abuse, neglect or a violation of rights has occurred.
51.62(3)(a)3.
3. Contract with a private, nonprofit corporation to confer to that corporation the powers and duties specified for the protection and advocacy agency under this subsection, except that the corporation may have access to records as specified under
ss. 51.30 (4) (b) 18. and
146.82 (2) (a) 9. only if all of the following conditions are met:
51.62(3)(a)3.a.
a. The contract of the corporation with the protection and advocacy agency so provides.
51.62(3)(b)
(b) The protection and advocacy agency shall pay reasonable costs related to the reproducing or copying of patient health care or treatment records.
51.62(3m)
(3m) Funding. From the appropriation under
s. 20.435 (7) (md), the department may not distribute more than $75,000 in each fiscal year to the protection and advocacy agency for performance of community mental health protection and advocacy services.
51.62(4)
(4) Departmental duties. The department shall provide the protection and advocacy agency with copies of annual surveys and plans of correction for intermediate care facilities for the mentally retarded on or before the first day of the 2nd month commencing after completion of the survey or plan.
51.63
51.63
Private pay for patients. Any person may pay, in whole or in part, for the maintenance and clothing of any mentally ill, developmentally disabled, alcoholic or drug dependent person at any institution for the treatment of persons so afflicted, and his or her account shall be credited with the sums paid. The person may also be likewise provided with such special care in addition to those services usually provided by the institution as is agreed upon with the director, upon payment of the charges therefor.
51.63 History
History: 1975 c. 430.
51.64
51.64
Reports of death required; penalty; assessment. 51.64(1)(a)
(a) "Physical restraint" includes all of the following:
51.64(1)(a)2.
2. A device or garment that interferes with an individual's freedom of movement and that the individual is unable to remove easily.
51.64(1)(a)3.
3. Restraint by a treatment facility staff member of a person admitted or committed to the treatment facility, by use of physical force.
51.64(1)(b)
(b) "Psychotropic medication" means an antipsychotic, antidepressant, lithium carbonate or a tranquilizer.
51.64(2)(a)(a) No later than 24 hours after the death of a person admitted or committed to a treatment facility, the treatment facility shall report the death to the department if one of the following applies:
51.64(2)(a)1.
1. There is reasonable cause to believe that the death was related to the use of physical restraint or a psychotropic medication.
51.64(2)(a)3.
3. There is reasonable cause to believe that the death was a suicide.
51.64 History
History: 1989 a. 336.
51.65
51.65
Segregation of tuberculosis patients. The department shall make provision for the segregation of tuberculosis patients in the state-operated and community-operated facilities, and for that purpose may set apart facilities and equip facilities for the care and treatment of such patients.
51.65 History
History: 1975 c. 430.
51.67
51.67
Alternate procedure; protective services. If, after hearing under
s. 51.13 (4) or
51.20, the court finds that commitment under this chapter is not warranted and that the subject individual is a fit subject for guardianship and protective placement or services, the court may, without further notice, appoint a temporary guardian for the subject individual and order temporary protective placement or services under
ch. 55 for a period not to exceed 30 days. If the court orders temporary protective placement for an individual under the age of 22 years in a center for the developmentally disabled, this placement may be made only at the central center for the developmentally disabled unless the department authorizes the placement or transfer to the northern or southern center for the developmentally disabled. Any interested party may then file a petition for permanent guardianship or protective placement or services, including medication, under
ch. 55. If the individual is in a treatment facility, the individual may remain in the facility during the period of temporary protective placement if no other appropriate facility is available. The court may order psychotropic medication as a temporary protective service under this section if it finds that there is probable cause to believe the individual is not competent to refuse psychotropic medication and that the medication ordered will have therapeutic value and will not unreasonably impair the ability of the individual to prepare for and participate in subsequent legal proceedings. An individual is not competent to refuse psychotropic medication if, because of chronic mental illness, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to the individual, one of the following is true:
51.67(1)
(1) The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives.
51.67(2)
(2) The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her chronic mental illness in order to make an informed choice as to whether to accept or refuse psychotropic medication.
