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),
95-2010.
51.61 Annotation
Court commissioners have the authority to conduct hearings 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),
94-0688.
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 449,
557 N.W.2d 846 (Ct. App. 1996),
95-2289.
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 willfully, knowingly, and unlawfully. Schaidler v. Mercy Medical Center of Oshkosh, Inc.
209 Wis. 2d 457,
563 N.W.2d 554 (Ct. App. 1997),
96-0645.
51.61 Annotation
This section and ch. 980 provide the statutory basis for a court to issue an involuntary medication order for individuals who suffer from a chronic mental illness and are committed under ch. 980. State v. Anthony D.B.
2000 WI 94,
237 Wis. 2d 1,
614 N.W.2d 435,
98-0576.
51.61 Annotation
Involuntarily committed persons are entitled to more considerate treatment and conditions of confinement than criminals, but their rights are not absolute. A restriction of rights must be reasonably related to legitimate therapeutic and institutional interests. West v. Macht,
2000 WI App 134,
237 Wis. 2d 265,
614 N.W.2d 34,
99-1710.
51.61 Annotation
Sub. (1) (i) grants broad discretionary power to DHFS sufficient to permit its treatment facilities to transport ch. 980 patients in restraints for security reasons. Nothing requires treatment facilities to exercise discretion for each individual patient rather than on the basis of its experience with ch. 980 patients as a group and the individualized prior finding of sexual dangerousness that each ch. 980 patient has had made. Thielman v. Leean,
2003 WI App 33,
260 Wis. 2d 253,
659 N.W.2d 73,
02-0888.
51.61 Annotation
A "patient" under sub. (1) includes a person receiving services for developmental disabilities. Under s. 51.437 sheltered employment is one of those services. Sheltered employment did not constitute rehabilitation, and thus the patient's place of sheltered employment was not a treatment facility and the sheltered employee could not bring a sub. (1) (x) claim. That assaults occurred in a restroom did not mean his right to privacy in the restroom under sub. (1) (s) was violated. Sheltered employment may include educational programs, and the patient's complaint stated a claim that the assaults deprived him of his right to prompt and adequate educational services under sub. (1) (f). St. Paul Fire & Marine Insurance Co. v. Keltgen,
2003 WI App 53,
260 Wis. 2d 523,
659 N.W.2d 906,
02-1249.
51.61 Annotation
The exclusive remedy provision of the worker's compensation act, s. 102.03, does not bar a claim under this section when the injuries result from the same set of facts. An entity that acted both as both sheltered employer and developmentally disabled service provider did not possess a dual persona, allowing both worker's compensation recovery and tort recovery for the same act. St. Paul Fire & Marine Insurance Co. v. Keltgen,
2003 WI App 53,
260 Wis. 2d 523,
659 N.W.2d 906,
02-1249.
51.61 Annotation
The injured patients and families compensation fund under ch. 655 is not a person "who violates the right in question," as this section requires. The fund does not provide any treatment and could never violate any of the rights proscribed in this section. As a result, there is no basis to conclude that it is subject to costs and reasonable actual attorney fees. Hess v. Fernandez,
2005 WI 19,
278 Wis. 2d 283,
692 N.W.2d 655,
03-0327.
51.61 AnnotationNonconsensual drug therapy did not violate due process. Stensvad v. Reivitz,
601 F. Supp. 128 (1985).
51.61 Annotation
Sub. (1) (e) and (i) do not restrict the discretion of institution administrators to restrain patients during transport. Thielman v. Leean,
140 F. Supp. 2d 982 (2001). Affirmed.
282 F.3d 478 (2002).
51.62
51.62
Protection and advocacy system. 51.62(1)
(1)
Definitions. In this section:
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)(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 board for people with 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 board for people with 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 individual 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, financial exploitation, or a violation of rights of the individual 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 shall distribute $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 persons with an intellectual disability on or before the first day of the 2nd month commencing after completion of the survey or plan.
51.62 Annotation
The Wisconsin statutory scheme does not give an agency express authority to investigate incidents of abuse and neglect or to obtain patient records, but under federal law any state system established to protect the rights of persons with developmental disabilities has that authority. Wisconsin Coalition for Advocacy v. Czaplewski,
131 F. Supp. 2d 1039 (2001).
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 a 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. Temporary protective placement for an individual in a center for the developmentally disabled is subject to
s. 51.06 (3). 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 serious and persistent 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 serious and persistent mental illness in order to make an informed choice as to whether to accept or refuse psychotropic medication.
51.75
51.75
Interstate compact on mental health. The interstate compact on mental health is enacted into law and entered into by this state with all other states legally joining therein substantially in the following form:
THE INTERSTATE COMPACT ON
MENTAL HEALTH.
The contracting states solemnly agree that:
51.75(1)
(1) Article I. The party states find that the proper and expeditious treatment of the mentally ill and mentally deficient can be facilitated by cooperative action, to the benefit of the patients, their families and society as a whole. Further, the party states find that the necessity of and desirability for furnishing such care and treatment bears no primary relation to the residence or citizenship of the patient but that, on the contrary, the controlling factors of community safety and humanitarianism require that facilities and services be made available for all who are in need of them. Consequently, it is the purpose of this compact and of the party states to provide the necessary legal basis for the institutionalization or other appropriate care and treatment of the mentally ill and mentally deficient under a system that recognizes the paramount importance of patient welfare and to establish the responsibilities of the party states in terms of such welfare.
51.75(2)
(2) Article II. As used in this compact:
51.75(2)(a)
(a) "Aftercare" means care, treatment and services provided a patient, as defined herein, on convalescent status or conditional release.
51.75(2)(b)
(b) "Institution" means any hospital or other facility maintained by a party state or political subdivision thereof for the care and treatment of mental illness or mental deficiency.
51.75(2)(c)
(c) "Mental deficiency" means mental deficiency as defined by appropriate clinical authorities to such extent that a person so afflicted is incapable of managing himself or herself and his or her affairs, but shall not include mental illness as defined herein.
51.75(2)(d)
(d) "Mental illness" means mental disease to such extent that a person so afflicted requires care and treatment for the person's welfare, or the welfare of others, or of the community.
