A patient's rights guaranteed under sub. (1) (p)
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, licensed psychologist, or licensed mental health professional 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, for review of the denial of a right by a licensed mental health professional who is not affiliated with a county department or treatment facility, through the use of one of the grievance resolution procedure options required under s. 457.04 (8)
. Alternatively, or in addition to the use of the appropriate grievance procedure, a patient or his or her representative may bring an action under sub. (7)
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.
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.
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.
No committee may consist entirely of persons who are officers, employees or agents of or are otherwise associated with the facility, apart from their membership on the committee.
No committee may consist entirely of members of a single professional group.
A majority of the membership of the committee constitutes a quorum to do business.
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
. The procedures established by the department under this subsection apply to patients in private hospitals or public general hospitals.
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 service providers. The standards shall include all of the following components:
Written policies and procedures regarding the uses and operation of the grievance system.
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 be specified by each service provider.
A formal process for resolving grievances, in cases where the informal process fails to resolve grievances to the patient's satisfaction.
A process for notification of all patients of the grievance process.
Time limits for responses to emergency and nonemergency grievances, as well as time limits for deciding appeals.
A process which patients may use to appeal unfavorable decisions within the department or county department under s. 51.42
or through the service provider.
A process which may be used to appeal final decisions under subd. 7.
of the department, county department under s. 51.42
or service provider to the department of health services.
Protections against the application of sanctions against any complainant or any person, including an employee of the department, county department under s. 51.42
or service provider who assists a complainant in filing a grievance.
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.
No person may intentionally retaliate or discriminate against any patient or employee for contacting or providing information to any official or to an employee 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.
A licensed mental health professional who is not affiliated with a county department or treatment facility shall notify in writing each patient to whom the professional provides services of the procedure to follow to resolve a grievance. The notice shall provide an option that the professional makes available to the patient, as required under s. 457.04 (8)
. Paragraphs (a)
do not apply to this paragraph.
Subject to the rights of patients provided under this chapter, the department, county departments under s. 51.42
, 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 sub. (1) (g)
or the person is a minor 14 years of age or older who is receiving services for alcoholism or drug abuse or a minor under 14 years of age who is receiving services for mental illness, developmental disability, alcoholism, or drug abuse. In the case of such a minor, the written, informed consent of the parent or guardian is required, except as provided under an order issued under s. 51.13 (1) (c)
or 51.14 (3) (h)
or (4) (g)
, or as provided in s. 51.138
. Except as provided in s. 51.138
, if the minor is 14 years of age or older and is receiving services for mental illness or developmental disability, the written, informed consent of the minor and the minor's parent or guardian is required, except that a refusal of either such a minor 14 years of age or older or the minor's parent or guardian to provide written, informed consent for admission or transfer to an approved inpatient treatment facility is reviewable under s. 51.13 (1) (c)
, or (4)
, or 51.35 (3) (b)
, and 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
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.
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 willfully, 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.
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.
Use of the grievance procedure established under sub. (5)
is not a prerequisite to bringing an action under this subsection.
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:
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.
Any informed consent which is required under sub. (1) (a)
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.
Except for grievance resolution procedure options specified under s. 457.04 (8) (a)
, and (c)
, the department shall promulgate rules to implement this section.
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
, or who participates in an investigation of an allegation by the appropriate examining board, is liable for civil damages for the filing or participation.
History: 1975 c. 430
; 1977 c. 428
; 1981 c. 20
; 1981 c. 314
; 1983 a. 189
s. 329 (5)
; 1983 a. 293
; 1985 a. 176
; 1987 a. 366
; 1989 a. 31
; 1993 a. 184
; 1995 a. 27
s. 9126 (19)
; 1995 a. 92
; 1997 a. 292
; 2001 a. 16
; 2001 a. 104
; 2005 a. 387
; 2007 a. 20
s. 9121 (6) (a)
; 2007 a. 97
; 2009 a. 28
; 2011 a. 32
; 2013 a. 161
; 2017 a. 184
; 2021 a. 240
See also ch. DHS 94
, Wis. adm. code.
A patient in a state facility can recover fees under sub. (7) (c) from the county. J.S. v. State, 144 Wis. 2d 670
, 425 N.W.2d 15
(Ct. App. 1988).
The court may order an agency to do planning and the implementation work necessary to fulfill the obligation to order placement conforming to sub. (1) (e) and s. 55.06 (9) (a). Fond du Lac County v. J.G.S., 159 Wis. 2d 685
, 465 N.W.2d 227
(Ct. App. 1990).
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. Erbstoeszer v. American Casualty Co., 169 Wis. 2d 637
, 486 N.W.2d 549
(Ct. App. 1992).
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. Discussing factors to be considered in determining whether this competency standard is met. Virgil D. v. Rock County, 189 Wis. 2d 1
, 524 N.W.2d 894
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
Court commissioners have the authority to conduct hearings under sub. (1) (g). Carol J.R. v. County of Milwaukee, 196 Wis. 2d 882
, 540 N.W.2d 233
(Ct. App. 1995), 94-0688
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 of Janesville, Wisconsin, Inc., 206 Wis. 2d 449
, 557 N.W.2d 846
(Ct. App. 1996), 95-2289
Sub. (7) contemplates two separate and distinct causes of action. Sub. (7) (a) applies when the denial of a patient's rights have caused actual damages. Sub. (7) (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
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
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
Sub. (1) (i) grants broad discretionary power to the Department of Health and Family Services 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
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
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 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
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
Under sub. (1) (g) 4. b., the county petitioner may prove by clear and convincing evidence that the individual is substantially incapable of applying the understanding the individual has of the advantages and disadvantages of the medication, and the alternatives, to the individual's mental illness in order to make an informed choice as to whether to accept or refuse the medication. Medical experts must apply the standards set out in the competency statute. An expert's use of different language to explain the expert's conclusions should be linked back to the standards in the statute. Outagamie County v. Melanie L., 2013 WI 67
, 349 Wis. 2d 148
, 833 N.W.2d 607
Sub. (1) (g) 3. is facially unconstitutional for any inmate who is involuntarily committed under s. 51.20 (1) (ar), which does not require a determination of dangerousness, when the inmate is involuntarily medicated based merely on a determination of incompetence to refuse medication. Winnebago County v. C.S., 2020 WI 33
, 391 Wis. 2d 35
, 940 N.W.2d 875
Nonconsensual drug therapy did not violate due process. Stensvad v. Reivitz, 601 F. Supp. 128
Sub. (1) (e) and (i) does not restrict the discretion of institution administrators to restrain patients during transport. Thielman v. Leean, 140 F. Supp. 2d 982
Protection and advocacy system. 51.62(1)(1)
In this section:
“Developmental disability" means a severe, chronic disability of a person that is characterized by all of the following:
Is attributable to a mental or physical impairment or a combination of a mental and a physical impairment.
Is manifested before the person has attained the age of 22.
Results in substantial functional limitation in at least 3 of the following areas of major life activity:
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.
“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)
“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.
“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
The governor shall designate as the protection and advocacy agency a private, nonprofit corporation that is independent of all of the following:
The board for people with developmental disabilities and the council on mental health.
An agency that provides treatment, services or habilitation to persons with developmental disabilities or mental illness.
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:
Prior notice and an opportunity to comment on a proposed redesignation has been given to all of the following:
The board for people with developmental disabilities and the council on mental health.
Major organizations, in the state, of persons with developmental disabilities or mental illness and families and representatives of these persons.
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)