Rights to reexamination under s. 51.20 (16)
apply to a prisoner or inmate who is found to be mentally ill or drug dependent except that the petition shall be made to the court that made the finding or, if the prisoner or inmate is detained by transfer, to the circuit court of the county in which he or she is detained. If upon rehearing it is found that the standards for recommitment under s. 51.20 (13) (g)
no longer apply to the prisoner or inmate or that he or she is not in need of psychiatric or psychological treatment, the prisoner or inmate shall be returned to the prison or county jail or house of correction unless it is past his or her release date as determined under s. 302.11
, whichever is applicable, in which case he or she shall be discharged.
If the condition of any prisoner or inmate committed or transferred under this section requires psychiatric or psychological treatment after his or her date of release as determined under s. 302.11
, whichever is applicable, the director of the state treatment facility shall, within a reasonable time before the release date of the prisoner or inmate, make a written application to the court that committed the prisoner or inmate under sub. (5) (a)
. Thereupon, the proceeding shall be upon application made under s. 51.20
, but no physician or psychologist who is connected with a state prison, Winnebago Mental Health Institute, Mendota Mental Health Institute, or any county jail or house of correction may be appointed as an examiner. If the court does not commit the prisoner or inmate, it may dismiss the application and order the prisoner or inmate returned to the institution from which he or she was transferred until the release date of the prisoner or inmate. If the court commits the prisoner or inmate for the period commencing upon his or her release date, the commitment shall be to the care and custody of the county department under s. 51.42
If in the judgment of the director of Mendota Mental Health Institute, Winnebago Mental Health Institute or the Milwaukee County Mental Health Complex, any person who is committed under s. 971.14
is not in such condition as warrants his or her return to the court but is in a condition to receive a conditional transfer or discharge under supervision, the director shall report to the department of health services, the committing court and the district attorney of the county in which the court is located his or her reasons for the judgment. If the court does not file objection to the conditional transfer or discharge within 60 days of the date of the report, the director may, with the approval of the department of health services, conditionally transfer any person to a legal guardian or other person, subject to the rules of the department of health services. Before a person is conditionally transferred or discharged under supervision under this subsection, the department of health services shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department of health services a written statement waiving the right to be notified. The department of health services may contract with the department of corrections for the supervision of persons who are transferred or discharged under this subsection.
“Extended home visit or leave" means a home visit or leave lasting 24 hours or longer.
“Member of the family" means spouse, child, sibling, parent or legal guardian.
“Victim" means a person against whom a crime has been committed.
The director of a state treatment facility may grant to any patient admitted to the facility as a result of a commitment under ch. 971
, a home visit for up to 15 days, or a leave for employment or education purposes in which the patient is not absent from the facility for more than 15 days.
Such a home visit or leave may be granted by the department at its discretion when it is believed to be in the best therapeutic interests of the patient and it is reasonably believed not to present a substantial risk of harm to the community.
Any patient who is granted a home visit or leave under this subsection shall be restricted to the confines of this state unless otherwise specifically permitted. The patient may, in addition, be restricted to a particular geographic area. Other conditions appropriate to the person's treatment may also be imposed upon the home visit or leave.
If such a patient does not return to the treatment facility by the time designated in the granting of the home visit or leave, or if the patient is believed to have violated other conditions of the home visit or leave, the director of the treatment facility may request the sheriff of the county in which the patient is found to return the patient to the facility. The sheriff shall act in accordance with s. 51.39
If the department grants a patient an extended home visit or leave under this subsection, the department shall do all of the following in accordance with par. (dm)
Notify the office of the judge who committed the patient.
Notify the office of the district attorney who participated in the commitment proceedings.
Make a reasonable attempt to notify the victim of the crime committed by the patient or, if the victim died as a result of the crime, an adult member of the victim's family or, if the victim is younger than 18 years old, the victim's parent or legal guardian, after the submission of a card under par. (dx)
The notice under par. (dg)
shall inform the offices and person under par. (dg) 1.
of the patient's name and of the date the patient will begin the home visit or leave. The department shall provide notice under this paragraph for a patient's first extended home visit or leave and, upon request, for subsequent extended home visits or leaves.
The department shall send the notice, postmarked at least 7 days before the patient begins the extended home visit or leave, to the last-known address of the offices and person under par. (dg) 1.
If the notice is for a first extended home visit or leave, the notice shall inform the offices and person under par. (dg) 1.
that notification of subsequent extended home visits or leaves will be provided only upon request.
The department shall design and prepare cards for persons specified in par. (dg) 3.
to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the applicable patient and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in par. (dg) 3.
These persons may send completed cards to the department. All departmental records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1)
The director of the facility in which the patient under par. (am)
is detained or committed shall notify the appropriate correctional officers of the department of corrections of the intention to grant a home visit or leave under this subsection at least 20 days prior to the departure of the patient from the facility.
This section does not apply to persons transferred from a prison or jail under sub. (5)
A home visit or leave does not constitute a transfer under this chapter and return to the facility does not necessitate a hearing under s. 51.35
When an individual who is in the custody of or under the supervision of a correctional officer of the department of corrections is transferred, discharged or is on unauthorized absence from a treatment facility, the probation, extended supervision and parole agent or other individual within the department of corrections who is responsible for that individual's supervision shall be notified as soon as possible by the director of the treatment facility.
History: 1975 c. 430
; 1977 c. 418
, 929 (55)
; 1977 c. 428
; 1977 c. 447
; 1977 c. 449
; 1979 c. 32
; 1983 a. 27
; 1985 a. 29
, 3200 (56)
, 3202 (23)
; 1985 a. 176
; 1987 a. 307
; 1989 a. 31
; 1991 a. 39
; 1995 a. 27
s. 9126 (19)
; 1995 a. 292
; 1997 a. 181
; 2001 a. 16
; 2001 a. 103
; 2007 a. 20
s. 9121 (6) (a)
; 2017 a. 34
See also ch. DHS 98
, Wis. adm. code.
Persons confined in a state hospital under ss. 51.20, 51.37, 971.14, 971.17 and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325
Honesty testing of sex offenders. 51.375(1)(a)
“Community placement" means conditional transfer into the community under s. 51.35 (1)
, conditional release under s. 971.17
, parole from a commitment for specialized treatment under ch. 975
, or supervised release under ch. 980
“Sex offender" means a person committed to the department who meets any of the criteria specified in s. 301.45 (1g)
The department may require, as a condition of a community placement, that a sex offender submit to a lie detector test when directed to do so by the department.
The department may administer a lie detector test to a sex offender as part of the sex offender's programming, care, or treatment. A patient may refuse to submit to a lie detector test under this paragraph. This refusal does not constitute a general refusal to participate in treatment. The results of a lie detector test under this paragraph may be used only in the care, treatment, or assessment of the subject or in programming for the subject. The results of a test may be disclosed only to persons employed at the facility at which the subject is placed who need to know the results for purposes related to care, treatment, or assessment of the patient, the committing court, the patient's attorney, or the attorney representing the state in a proceeding under ch. 980
. The committing court to which the results of a test have been disclosed may admit the results in evidence in a proceeding under ch. 980
The department shall promulgate rules establishing a lie detector test program for sex offenders who are in a community placement. The rules shall provide for assessment of fees upon persons committed to the department to partially offset the costs of the program.
See also ch. DHS 98
, Wis. adm. code.
Nonresident patients on unauthorized absence.
The circuit court may order the detention of any nonresident individual who is on unauthorized absence from any institution of another state for the treatment of mental illness, developmental disabilities, alcoholism or drug abuse. Detention shall be for the period necessary to complete the deportation of that individual.
Resident patients on unauthorized absence.
If any patient who is admitted, transferred, or placed under s. 55.06
, 2003 stats., or s. 51.13
, 51.35 (3)
, or 51.45 (11) (b)
or ch. 55
, or 980
is on unauthorized absence from a treatment facility, the sheriff or any other law enforcement agency in the county in which the patient is found or in which it is believed the patient may be present, upon the request of the director, shall take charge of and return the patient to the facility. The costs incident to the return shall be paid out of the facility's operating funds and be charged back to the patient's county of residence.
Determination of residence for certain adults; county of responsibility. 51.40(1)(1)
In this section:
“Agency of a county department" means a public or private organization with which a county department contracts for provision of services under ch. 46
“Arrange or make placement" means perform any action beyond providing basic information concerning the availability of services, facilities or programs in a county to an individual or the individual's family.
“Capable of indicating intent" means able to express by words or other means an informed choice of a place to live.
“County of responsibility" means the county responsible for funding the provision of care, treatment, or services under this chapter or ch. 46
to an individual.
“Facility" means a place, other than a hospital, that is licensed, registered, certified, or approved by the department or a county under ch. 50
“Guardian" means a guardian of the person appointed by a court under ch. 54
or ch. 880
, 2003 stats.
“Incapable of indicating intent" means one of the following:
The status of an individual for whom there is substantial evidence, based on documentation from a licensed physician or psychologist who has personally examined the individual and who has expertise concerning the type of mental disability evidenced by the individual, that the individual is incapable of indicating intent.
“State facility" means a state mental health institute, center for the developmentally disabled, prison as specified in s. 302.01
or a facility that is operated directly by the department of health services or the department of corrections.
(2) Determination of county of residence.
The county of residence of an individual aged 18 or older with developmental disability or serious and persistent mental illness, degenerative brain disorder, or other like incapacity who is residing in a facility is the county of responsibility for the individual. The county of residence shall be determined as follows:
51.40(2)(a)1.1. `Commitment or protective placement or protective services.'
If an individual is under a court order of commitment under this chapter or protective placement or protective services under s. 55.06
, 2003 stats., or s. 55.12
, the individual remains a resident of the county in which he or she has residence at the time the initial commitment or initial order for protective placement or protective services is made. If the court makes no specific finding of a county of residence, the individual is a resident of the county in which the court is located. After notice, including notice to the corporation counsel of each affected county by certified mail, after opportunity to be heard has been provided to all affected counties and parties, and if there is no objection, the court may make a specific finding of a county of residence. If any affected county or party objects to the court's proposed finding, the county or party may request the department to make a determination under par. (g)
. Any transfer of venue may be suspended until the department's determination is final.
2. `Placement by a county.'
Except for the provision of emergency services under s. 51.15
, 51.42 (1) (b)
, 51.437 (4) (c)
, or 51.45 (11)
, emergency protective services under s. 55.13
, or emergency protective placement under s. 55.135
, if a county department or an agency of a county department places or makes arrangements for placement of the individual into a facility, the individual is a resident of the county of that county department. Any agency of the county department is deemed to be acting on behalf of the county department in placing or making arrangements for placement. Placement of an individual by a county department or an agency of a county department in a facility outside the jurisdiction of the county department or agency does not transfer the individual's legal residence to the county in which the facility is located. If a resident of a county is physically present in another county and is in need of immediate care, the county in which the individual is present may provide for his or her immediate needs under s. 51.15
, 51.42 (1) (b)
, 51.437 (4) (c)
, or 51.45 (11)
, or ch. 54
, without becoming the individual's county of residence.
If par. (a)
does not apply, the county of residence shall be determined as follows:
1. `Individuals in state facilities.'
An individual who is in a state facility is a resident of the county in which he or she was a resident at the time the admission to the state facility was made. This subdivision may not be applied to change residence from a county, other than the county in which the facility is located, that has accepted responsibility for or provided services to the individual before December 1, 2006.
2. `Individuals in nursing homes.'
The following are presumptions regarding the county of residence of an individual in a nursing home that may be overcome by substantial evidence that clearly establishes other county residence:
An individual in a nursing home who was admitted under s. 50.04 (2r)
to the nursing home after December 1, 2006, is a resident of the county that approved the admission under s. 50.04 (2r)
An individual residing in a nursing home on December 1, 2006, is a resident of the county in which the individual is physically present unless another county accepts the individual as a resident.
If the individual had an established residence in another county prior to entering the nursing home; the individual or the individual's guardian, if any, indicates an intent that the individual will return to that county when the purpose of entering the nursing home has been accomplished or when needed care and services can be obtained in that county; and the individual, when capable of indicating intent, or a guardian for the individual, has made no clearly documented expression to a court or county department of an intent to establish residence elsewhere since leaving that county, the individual is a resident of that county.
If the individual is incapable of indicating intent as determined by the county department, has no guardian, ordinarily resides in another county, and is expected to return to that county within one year, the individual is a resident of that county.
If another county has accepted responsibility for or provided services to the individual prior to December 1, 2006, the individual is a resident of that county.
If the individual is incapable of indicating intent; the individual was living in another county outside of a nursing home or state facility on December 1, 2006, or under circumstances that established residence in that county after December 1, 2006; and that county was the last county in which the individual had residence while living outside of a nursing home or state facility, the individual is a resident of that county.
If subd. 2. ag.
does not apply, an individual who is incapable of indicating intent and is residing in a facility is a resident of the county in which the individual resided before admittance to the facility.
Guardian's authority to declare county of residence.
A guardian may declare any of the following, under any of the following conditions:
The ward is a resident of the guardian's county of residence, if pars. (a)
do not apply, if the guardian's ward is in a facility and is incapable of indicating intent, and if the guardian is a resident of the county in which the facility is located or states in writing that the ward is expected to return to the guardian's county of residence when the purpose of entering the facility has been accomplished or when needed care and services can be obtained in the guardian's county of residence.
The ward is a resident of the county in which the ward is physically present, if pars. (a)
do not apply and if all of the following apply:
There is no current order under ch. 55
in effect with respect to the ward, and the ward is not under an involuntary commitment order to the department of corrections or to a county other than the county in which the ward is physically present.
The guardian states in writing that it is the ward's intent to remain in the county for the foreseeable future.
The ward is a resident of the county specified by the guardian, regardless if a previous determination of county of residence has been made, notwithstanding pars. (a)
for good cause shown, if, in the ward's best interest, the guardian files with the probate court having jurisdiction of the guardianship and protective placement a written statement declaring the ward's domiciliary intent, subject to court approval, and if notice and opportunity to be heard are provided to all affected counties and parties. Notice under this subdivision shall be sent to the corporation counsel of each affected county by certified mail.
Determination of county of responsibility. 51.40(2)(g)1.
An individual, an interested person on behalf of the individual, or any county may request that the department make a determination of the county of responsibility of the individual. Any motion for change of venue pending before the court of jurisdiction may be stayed until the determination under this paragraph is final. Within 10 days after receiving the request, the department shall provide written notice to the individual; to the individual's guardian, guardian ad litem, and counsel, if any; to the individual's immediate family, if they can be located; and to all potentially responsible counties that a determination of county of responsibility shall be made and that written information and comments may be submitted within 30 days after the date on which the notice is sent.
The department shall review information submitted under subd. 1.
and make such investigation as it deems proper. Within 30 days after the end of the period for submitting information, the department shall make a decision as to residence, and send a copy of the decision to the individual and to all involved counties. The decision may be appealed under s. 227.44
by the individual or the county determined to be responsible.
Pending a determination under subd. 2.
, a county department which has been providing services to the individual shall continue to provide services if necessary to meet the individual's needs. If no county department is currently providing services, the county in which the client is physically present shall provide necessary services pending the determination.
A determination under subd. 2.
may provide for a period of transitional services to assure continuity of services by specifying a date until which the county department which has been providing services shall continue to do so.
The decision of the department under subd. 2.
is binding on the individual and on any county which received notice of the proceeding. Except as provided in the determination, the county determined to be the county of responsibility shall act as the county of responsibility immediately after receiving notice of the determination, and during the pendency of any appeal of the determination that is brought under ch. 227