Chapter 51

51.13 History History: 1977 c. 428; 1979 c. 32 s. 91; 1979 c. 300, 331; 1981 c. 74; 1985 a. 29, 176; 1987 a. 366; 1995 a. 77, 225; 1997 a. 27, 35, 292; 2001 a. 16, 104; 2003 a. 326; 2005 a. 444; 2007 a. 140; 2013 a. 161; 2015 a. 195.

51.13 Annotation Discussing due process rights of a minor child whose parents or guardians seek admission of the child. Parham v. J.R., 442 U.S. 584, 99 S. Ct. 2493, 61 L. Ed. 2d 101 (1979). See also Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 99 S. Ct. 2523, 61 L. Ed. 2d 142 (1979).

51.138 51.138 Emergency outpatient treatment for minors.

51.138(1) (1) In this section, “outpatient mental health treatment” has the meaning given in s. 51.14 (1).

51.138(2) (2) Subject to sub. (4), a treatment director of an outpatient mental health treatment provider may provide outpatient mental health treatment to a minor for 30 days without first obtaining informed consent if all of the following criteria are satisfied:

51.138(2)(a) (a) An emergency situation exists, as determined by the treatment director of an outpatient mental health treatment provider, or time and distance requirements preclude obtaining written consent before beginning outpatient mental health treatment, and potential harm will come to the minor or others if treatment is not initiated before written consent is obtained.

51.138(2)(b) (b) A reasonable effort has been made to obtain consent from a parent or guardian of the minor before initiating treatment.

51.138(3) (3) During the 30-day treatment period under sub. (2), the treatment director of the outpatient mental health treatment provider shall either obtain informed, written consent of a parent or guardian of the minor or, if consent is not obtained, file a petition to initiate a review of outpatient mental health treatment of a minor under s. 51.14.

51.138(4) (4) No person may, under the treatment period under sub. (2), without the consent of a parent or guardian of the minor, prescribe medications to the minor who is seeking treatment for a mental health condition or admit a minor to an inpatient facility or an inpatient treatment facility without the consent of a parent or guardian.

51.138(5) (5) For services provided under this section when consent of a parent or guardian has not been obtained, the treatment director of an outpatient mental health treatment provider shall obtain the minor’s consent before billing a 3rd party for the services. If the minor does not consent to billing a 3rd party, the minor shall be responsible for paying for the services, which the department shall bill to the minor under s. 46.03 (18) (b).

51.138 History History: 2017 a. 204; 2021 a. 238 s. 45.

51.14 51.14 Review of outpatient mental health treatment of minors aged 14 or older.

51.14(1) (1) Definitions. In this section, “outpatient mental health treatment” means treatment and social services for mental illness, except 24-hour care, treatment, and custody that is provided by a treatment facility.

51.14(2) (2) Mental health review officer. Each court assigned to exercise jurisdiction under chs. 48 and 938 shall designate a mental health review officer to review petitions filed under sub. (3).

51.14(3) (3) Review by mental health review officer.

51.14(3)(a) (a) A minor 14 years of age or older or a person acting on behalf of the minor may petition the mental health review officer in the county in which the minor’s parent or guardian has residence for a review of a refusal or inability of the minor’s parent or guardian to provide the informed consent for outpatient mental health treatment required under s. 51.61 (6). For a minor on whose behalf consent for outpatient treatment was provided by the minor’s parent or guardian despite the minor’s refusal, the treatment director of the outpatient facility shall file a petition for review of the informed consent on behalf of the minor. If consent of a parent or guardian of the minor is not obtained during the 30-day treatment period as described in s. 51.138 (3), the treatment director of the outpatient mental health treatment provider shall file a petition to initiate review of outpatient mental health treatment of a minor receiving treatment under s. 51.138.

51.14(3)(b) (b) A petition filed under this subsection shall contain all of the following:

51.14(3)(b)1. 1. The name, address and birth date of the minor.

51.14(3)(b)2. 2. The name and address of the parent or guardian of the minor.

51.14(3)(b)3. 3. The facts substantiating the petitioner’s belief that the minor needs, or does not need, outpatient mental health treatment.

51.14(3)(b)4. 4. Any available information which substantiates the appropriateness of the particular treatment sought for the minor and that the particular treatment sought is the least restrictive treatment consistent with the needs of the minor.

51.14(3)(c) (c) Any professional evaluations relevant under par. (b) 3. or 4. shall be attached to the petition filed under this subsection.

51.14(3)(d) (d) The court which appointed the mental health review officer shall ensure that necessary assistance is provided to the petitioner in the preparation of the petition under this subsection.

51.14(3)(e) (e) The mental health review officer shall notify the county department under s. 51.42 or 51.437 of the contents of any petition received by the mental health review officer under this subsection. The county department under s. 51.42 or 51.437 may, following review of the petition contents, make recommendations to the mental health review officer as to the need for and appropriateness and availability of treatment.

51.14(3)(f) (f) If prior to a hearing under par. (g) the minor requests and the mental health review officer determines that the best interests of the minor would be served, a petition may be filed for court review under sub. (4) without further review under this subsection.

51.14(3)(g) (g) Within 21 days after the filing of a petition under this subsection, the mental health review officer shall hold a hearing on the refusal or inability of the minor’s parent or guardian to provide informed consent for outpatient treatment or on the provision of informed consent by the parent or guardian despite the minor’s refusal. The mental health review officer shall provide notice of the date, time and place of the hearing to the minor and, if available, the minor’s parent or guardian at least 96 hours prior to the hearing.

51.14(3)(h) (h) If following the hearing under par. (g) and after taking into consideration the recommendations, if any, of the county department under s. 51.42 or 51.437 made under par. (e), the mental health review officer finds all of the following, he or she shall issue a written order that, notwithstanding the written, informed consent requirement of s. 51.61 (6), the written, informed consent of the minor’s parent or guardian, if the parent or guardian is refusing or unable to provide consent, is not required for outpatient mental health treatment for the minor or, if the parent or guardian provided informed consent despite the minor’s refusal, the outpatient mental health treatment for the minor is appropriate:

51.14(3)(h)1. 1. The informed consent of the parent or guardian is unreasonably withheld or the refusal of the minor to provide informed consent is unreasonable.

51.14(3)(h)2. 2. The minor is in need of treatment.

51.14(3)(h)3. 3. The particular treatment sought is appropriate for the minor and is the least restrictive treatment available.

51.14(3)(h)4. 4. The proposed treatment is in the best interests of the minor.

51.14(3)(i) (i) The findings under par. (h) and the reasons supporting each finding shall be in writing.

51.14(3)(j) (j) The mental health review officer shall notify the minor and the minor’s parent or guardian, if available, of the right to judicial review under sub. (4).

51.14(3)(k) (k) No person may be a mental health review officer in a proceeding under this section if he or she has provided treatment or services to the minor who is the subject of the proceeding.

51.14(4) (4) Judicial review.

51.14(4)(a) (a) Within 21 days after the issuance of the order by the mental health review officer under sub. (3) or if sub. (3) (f) applies, the minor or a person acting on behalf of the minor may petition a court assigned to exercise jurisdiction under chs. 48 and 938 in the county of residence of the minor’s parent or guardian for a review of the refusal or inability of the minor’s parent or guardian to provide the informed consent for outpatient mental health treatment required under s. 51.61 (6) or for a review of the provision of informed consent by the parent or guardian despite the minor’s refusal.

51.14(4)(b) (b) The petition in par. (a) shall conform to the requirements set forth in sub. (3) (b). If the minor has refused to provide informed consent, a notation of this fact shall be made on the face of the petition.

51.14(4)(c) (c) If a notation of a minor’s refusal to provide informed consent to outpatient mental health treatment appears on the petition, the court shall, at least 7 days prior to the time scheduled for the hearing, appoint counsel to represent the minor if the minor is unrepresented. If the minor’s parent or guardian has refused to provide informed consent and the minor is unrepresented, the court shall appoint counsel to represent the minor, if requested by the minor or determined by the court to be in the best interests of the minor.

51.14(4)(d) (d) The court shall hold a hearing on the petition within 21 days after filing of the petition.

51.14(4)(e) (e) Notice of the hearing under this subsection shall be provided by the court by certified mail, at least 96 hours prior to the hearing, to the minor, the minor’s parent or guardian, the minor’s counsel and guardian ad litem, if any, and any other interested party known to the court.

51.14(4)(f) (f) The rules of evidence in civil actions shall apply to any hearing under this section. A record, including written findings of fact and conclusions of law, shall be maintained of the entire proceedings. Findings shall be based on evidence that is clear, satisfactory and convincing.

51.14(4)(g) (g) After the hearing under this subsection, the court shall issue a written order stating that, notwithstanding the written, informed consent requirement of s. 51.61 (6), the written, informed consent of the parent or guardian, if the parent or guardian refuses or is unable to provide consent, is not required for outpatient mental health treatment for the minor or that, if the parent or guardian provided informed consent despite the minor’s refusal, the outpatient mental health treatment for the minor is appropriate, if the court finds all of the following:

51.14(4)(g)1. 1. The informed consent is unreasonably withheld.

51.14(4)(g)2. 2. The minor is in need of treatment.

51.14(4)(g)3. 3. The particular treatment sought is appropriate for the minor and is the least restrictive treatment available.

51.14(4)(g)4. 4. The treatment is in the best interests of the minor.

51.14(5) (5) Appeal. Any person who is aggrieved by a determination or order under sub. (4) and who is directly affected by the determination or order may appeal to the court of appeals under s. 809.30.

51.14(6) (6) Finding or order not a finding of mental illness. A finding or order under this section does not constitute a finding of mental illness.

51.14(7) (7) Listing of mental health review officers. The department shall compile a list that specifies the mental health review officers in each county, post the list on the department’s website, and update the list as necessary.

51.14 History History: 1987 a. 367; 1995 a. 77; 1997 a. 27; 2003 a. 326; 2005 a. 444; 2009 a. 276; 2017 a. 204; 2017 a. 365 s. 112.

51.14 Note NOTE: 1987 Wis. Act 367, which created this section, contains a prefatory note and an explanatory note following the section.

51.15 51.15 Emergency detention.

51.15(1) (1) Basis for detention; purpose.

51.15(1)(ag) (ag) The purpose of this section is to provide, on an emergency basis, treatment by the least restrictive means appropriate to the individual’s needs, to individuals who meet all of the following criteria:

51.15(1)(ag)1. 1. Are mentally ill, drug dependent, or developmentally disabled.

51.15(1)(ag)2. 2. Evidence one of the standards set forth in par. (ar) 1. to 4.

51.15(1)(ag)3. 3. Are reasonably believed to be unable or unwilling to cooperate with voluntary treatment.

51.15(1)(ar) (ar) A law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 may take an individual into custody if the officer or person has cause to believe that the individual is mentally ill, is drug dependent, or is developmentally disabled, that taking the person into custody is the least restrictive alternative appropriate to the person’s needs, and that the individual evidences any of the following:

51.15(1)(ar)1. 1. A substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.

51.15(1)(ar)2. 2. A substantial probability of physical harm to other persons as manifested by evidence of recent homicidal or other violent behavior on his or her part, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm on his or her part.

51.15(1)(ar)3. 3. A substantial probability of physical impairment or injury to himself or herself or other individuals due to impaired judgment, as manifested by evidence of a recent act or omission. The probability of physical impairment or injury is not substantial under this subdivision if reasonable provision for the individual’s protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services or, in the case of a minor, if the individual is appropriate for services or placement under s. 48.13 (4) or (11) or 938.13 (4). Food, shelter or other care provided to an individual who is substantially incapable of obtaining the care for himself or herself, by any person other than a treatment facility, does not constitute reasonable provision for the individual’s protection available in the community under this subdivision.

51.15(1)(ar)4. 4. Behavior manifested by a recent act or omission that, due to mental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter, or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness. No substantial probability of harm under this subdivision exists if reasonable provision for the individual’s treatment and protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services, if the individual may be provided protective placement or protective services under ch. 55, or, in the case of a minor, if the individual is appropriate for services or placement under s. 48.13 (4) or (11) or 938.13 (4). The individual’s status as a minor does not automatically establish a substantial probability of death, serious physical injury, serious physical debilitation or serious disease under this subdivision. Food, shelter or other care provided to an individual who is substantially incapable of providing the care for himself or herself, by any person other than a treatment facility, does not constitute reasonable provision for the individual’s treatment or protection available in the community under this subdivision.

51.15(1)(b) (b) The officer’s or other person’s belief shall be based on any of the following:

51.15(1)(b)1. 1. A specific recent overt act or attempt or threat to act or omission by the individual which is observed by the officer or person.

51.15(1)(b)2. 2. A specific recent overt act or attempt or threat to act or omission by the individual which is reliably reported to the officer or person by any other person, including any probation, extended supervision and parole agent authorized by the department of corrections to exercise control and supervision over a probationer, parolee or person on extended supervision.

51.15(2) (2) Facilities for detention; transport; approval.

51.15(2)(a) (a) Subject to par. (b), the law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 shall transport the individual, or cause him or her to be transported, for detention, if the county department of community programs in the county in which the individual was taken into custody approves the need for detention, and for evaluation, diagnosis, and treatment if permitted under sub. (8). A law enforcement agency may also contract with another law enforcement agency, an ambulance service provider, or a 3rd-party vendor to transport an individual for detention as set forth in this paragraph if the agency, provider, or vendor agrees to provide the transport.

51.15(2)(b) (b) If an individual is in a hospital’s emergency department, the law enforcement officer or other person as described under par. (a) may not transport the individual for detention until a hospital employee or medical staff member who is treating the individual determines that the transfer of the individual to the detention facility is medically appropriate and communicates that determination to the law enforcement officer or other person.

51.15(2)(c) (c) The county department may approve the detention only if a physician who has completed a residency in psychiatry, a psychologist, or a mental health professional, as determined by the department, has performed a crisis assessment on the individual and agrees with the need for detention and the county department reasonably believes the individual will not voluntarily consent to evaluation, diagnosis, and treatment necessary to stabilize the individual and remove the substantial probability of physical harm, impairment, or injury to himself, herself, or others. For purposes of this paragraph, a crisis assessment may be conducted in person, by telephone, or by telemedicine or video conferencing technology.

51.15(2)(d) (d) Detention under this section may only be in a treatment facility approved by the department or the county department, if the facility agrees to detain the individual, or a state treatment facility. The department shall approve for purposes of this subsection any facility certified under s. 51.036.

51.15(2)(e) (e) Subject to s. 49.45 (29x), a county may obtain reimbursement through the Medical Assistance program under subch. IV of ch. 49 for transport of an individual for purposes of emergency detention if all of the following are true:

51.15(2)(e)1. 1. The individual transported is a medical assistance recipient.

51.15(2)(e)2. 2. The transport is provided by a law enforcement agency or an entity that contracts with a law enforcement agency under par. (a).

51.15(2)(e)3. 3. If the transport is provided by a 3rd-party vendor that is not a law enforcement agency or an ambulance service provider, the 3rd-party vendor meets criteria established for reimbursement by the department.

51.15(3) (3) Custody. An individual is in custody when the individual is under the physical control of the law enforcement officer, or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938, for the purposes of emergency detention. The individual remains in the custody of the law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 for transport for the purposes of emergency detention, except that if a law enforcement agency contracts with another law enforcement agency to transport an individual as described under sub. (2) (a) for the purposes of emergency detention, custody is transferred to the transporting law enforcement agency. Upon arrival at the facility under sub. (2), custody of the individual is transferred to the facility.

51.15(4) (4) Detention procedure; Milwaukee County.

51.15(4)(a) (a) In counties having a population of 750,000 or more, the law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 shall sign a statement of emergency detention which shall provide detailed specific information concerning the recent overt act, attempt, or threat to act or omission on which the belief under sub. (1) is based and the names of the persons observing or reporting the recent overt act, attempt, or threat to act or omission. The law enforcement officer or other person is not required to designate in the statement whether the subject individual is mentally ill, developmentally disabled, or drug dependent, but shall allege that he or she has cause to believe that the individual evidences one or more of these conditions. The law enforcement officer or other person shall deliver, or cause to be delivered, the statement to the detention facility upon the delivery of the individual to it.

51.15(4)(b) (b) Upon delivery of the individual, the treatment director of the facility, or his or her designee, shall determine within 24 hours, except as provided in par. (c), whether the individual shall be detained, or shall be detained, evaluated, diagnosed and treated, if evaluation, diagnosis and treatment are permitted under sub. (8), and shall either release the individual or detain him or her for a period not to exceed 72 hours after the individual is taken into custody for the purposes of emergency detention, exclusive of Saturdays, Sundays and legal holidays. If the treatment director, or his or her designee, determines that the individual is not eligible for commitment under s. 51.20 (1) (a), the treatment director shall release the individual immediately, unless otherwise authorized by law. If the individual is detained, the treatment director or his or her designee may supplement in writing the statement filed by the law enforcement officer or other person, and shall designate whether the subject individual is believed to be mentally ill, developmentally disabled or drug dependent, if no designation was made by the law enforcement officer or other person. The director or designee may also include other specific information concerning his or her belief that the individual meets the standard for commitment. The treatment director or designee shall then promptly file the original statement together with any supplemental statement and notification of detention with the court having probate jurisdiction in the county in which the individual was taken into custody. The filing of the statement and notification has the same effect as a petition for commitment under s. 51.20.

51.15(4)(c) (c) When calculating the 24 hours under par. (b) in which a treatment director determines whether an individual should be detained, any period delaying that determination that is directly attributable to evaluation or stabilizing treatment of non-psychiatric medical conditions of the individual is excluded from the calculation.

51.15(4m) (4m) Detention pilot program; Milwaukee County.

51.15(4m)(a) (a) Definitions. In this subsection:

51.15(4m)(a)1. 1. “Treatment director” includes a fully licensed physician or licensed psychologist who is a full-time or part-time employee of, or on contract with, the Milwaukee County Behavioral Health Division and who actively assumes clinical responsibility for the provision of emergency service care.

51.15(4m)(a)2. 2. “Treatment director designee” means an individual who is any of the following licensed mental health professionals, who is a full-time or part-time employee of, or on contract with, the Milwaukee County Behavioral Health Division, and who may provide care to individuals in accordance with, and as permitted by, state licensure laws, in collaboration with a treatment director who is assigned to the same service or program:

51.15(4m)(a)2.a. a. Licensed clinical social worker as described in s. 457.01 (1r).

51.15(4m)(a)2.b. b. Advanced practice social worker as defined in s. 457.01 (1c).

51.15(4m)(a)2.c. c. Licensed professional counselor as described in s. 457.01 (7).

51.15(4m)(a)2.d. d. Licensed marriage and family therapist as described in s. 457.01 (3).

51.15(4m)(a)2.e. e. Psychiatric nurse.

51.15(4m)(b) (b) Basis for detention. In Milwaukee County, a treatment director or treatment director designee may take an individual into custody if the treatment director or treatment director designee has cause to believe that the individual is mentally ill, is drug dependent, or is developmentally disabled, and that the individual evidences any of the criteria under sub. (1) (ar) 1. to 4. The treatment director’s belief or the treatment director designee’s belief shall be based on any of the criteria under sub. (1) (b).