There must be approval by the treatment director or his or her designee. There must also be an evaluation that the individual is mentally ill and has the potential to benefit from inpatient care, treatment or therapy.
Sec. 51.10
Conditions necessary for emergency treatment/observation.A law enforcement officer may detain an individual if the officer has cause to believe that the individual is mentally ill and the individual evidences any of the following:
- A substantial probability of physical harm to himself or herself,
- A substantial probability of physical harm to other persons,
- A substantial probability of physical impairment or injury to himself or herself due to impaired judgment,
- Behavior manifesting that 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 injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness,
- All of the following for an individual:
- An inability to make an informed choice as to whether to accept or refuse medication or treatment,
- A substantial probability the individual needs care or treatment to prevent further disability or deterioration, and that, he or she will, if left untreated, lack services necessary for his or her health or safety and suffer severe mental, emotional or physical harm that will result in the loss of the individual’s ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions. Sec. 51.15
A Court order for detention may also be obtained by a written petition that alleges sufficient facts to establish cause to believe the individual is mentally ill and eligible for commitment under criteria set forth in # 12 hereafter. Sec. 51.20
Yes. "Mental illness" means mental disease to such extent that a person so afflicted requires care and treatment for his or her own welfare, or the welfare of others, or of the community. For purposes of involuntary commitment, "mental illness" means a substantial disorder of thought, mood, perception, orientation, or memory which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life,, but does not include alcoholism. Sec. 51.01
Maximum duration of emergency treatment/observation before a judicial hearing must be held.72 hours excluding Saturdays, Sundays, and Holidays, unless the subject of the proceedings or his or her counsel request a postponement. Then the probable-cause hearing must be held within 7 days of the subject’s arrival at the treatment facility. Sec. 51.20(7)
Can a potential committee avoid a hearing determination by opting to voluntarily undergo treatment and, if so, what is the minimum time he or she must then spend in treatment?No, the hearing cannot be avoided with certainty, but it can be postponed for up to 90 days by a settlement agreement. The settlement agreement must provide for a treatment plan and must be approved by the Court as well as the subject of the petition and counsel. As a practical matter, 90 days of effective treatment may moot the issue addressed by the petition, and the proceedings may be discontinued without a hearing. Sec. 51.20(8)(bg)
An individual subject to an involuntary commitment petition may agree to be admitted to an inpatient treatment facility. If this is approved by the Court and the treatment director, the involuntary commitment petition shall be dismissed 30 days after admission to inpatient care, or when the individual is discharged from care if that occurs sooner than 30 days. Sec. 51.10(6)
Are there any requirements that a potential committee be capable of deciding to voluntarily undergo treatment?This is not explicitly required. A voluntary admission can occur if:
- The person applies for admission in writing, or
- A physician of the facility submits a signed request and certifies in writing that the physician has advised the patient both orally and in writing of the person’s rights under the law to request discharge after a voluntary admission, and of the benefits and risks of treatment, the patient’s right to the least restrictive form of treatment, and the responsibility of the facility to provide treatment. If the individual fails to indicate a desire to leave the facility, but also refuses or is unable to sign an application, the individual is presumed to consent to admission and may be held for up to 7 days as a voluntary patient. A proceeding is promptly commenced in the probate Court for the appointment of a guardian ad litem for an individual admitted by this process. If the individual has not signed an application for voluntary admission within 7 days, there is an appearance by the individual, the guardian ad litem, and the physician with the Court to determine if the individual desires to leave the facility. Sec. 51.10(4m)
A petition for examination shall be signed by 3 adult persons, at least one of whom has personal knowledge of the conduct of the subject individual. Sec. 51.20(1)(b)
Required elements of a petition.The petition shall contain:
- names and addresses of petitioners and their relation to the subject
- names and addresses of the subject’s spouse, adult children, parents or guardian, custodian, brothers, sisters, person in the place of a parent, and person with whom the subject lives [the petition should state if this information is unknown]
- clear and concise statement of the facts which constitute probable cause to believe the allegations of the petition
- averments must be sworn to be true
- statement of basis of knowledge or belief
Sec. 51.20(1)(c)
Yes. Knowing false statements in a statement of emergency detention constitute a crime punishable by a fine of not more than $5,000 and/or imprisonment of not more than 5 years [increasing to 7 ½ years in 2000] Sec. 51.15(12)
Participation of other individuals in assisted treatment hearing (i.e. notice, a right to be heard or standing for family members, legal guardians, doctors, etc.).Preliminary [Probable Cause] Hearing:
Counsel, parent(s) or guardian for a minor, and such other person as shall be designated
by the Court shall be provided notice of the hearing.
The parent or guardian of a minor shall have a right to participate in the hearing and to be represented by counsel. Sec. 51.20(2) & (5)
Commitment Hearing or Jury Trial:
The Court can designate persons other than the subject and counsel that shall receive
notice of the hearing or trial. There is no right for participation by anyone other than
the subject and counsel. Sec. 51.20(10)
6 months, with 1 year renewals, unless the basis for the commitment was as stated in #4 in question 2 of this analysis. Then the commitment cannot continue for more than 45 days in a 365 day period. Sec. 51.20(13)(g)
Conditions necessary for judicially ordered inpatient treatment (exact wording of key portions of applicable statute desired).All of the following apply to the subject individual:
- The individual is mentally ill [or drug dependent or developmentally disabled] and is a proper subject for treatment.
- The individual is dangerous because he or she does any of the
following:
- Evidences 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.
- Evidences a substantial probability of physical harm to other individuals as manifested by evidence of recent homicidal or other violent behavior, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm.
- Evidences such impaired judgment, manifested by evidence of a pattern of recent acts or omissions, that, there is a substantial probability of physical impairment or injury to himself or herself. The probability of physical impairment or injury is not substantial under this subd. 2.c. if reasonable provision for the subject 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… . … Food, shelter, or other care provided to an individual who is substantially incapable of obtaining the care for himself or herself, by a person other than a treatment facility, does not constitute reasonable provision for the subject individual’s protection available in the community under this subd.2.c.
- Evidences behavior manifested by recent acts or omissions 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 his mental illness. … Food, shelter, or other care provided to an individual who is substantially incapable of obtaining the care for himself or herself, by a person other than a treatment facility, does not constitute reasonable provision for the subject individual’s treatment or protection available in the community under this subd.2.d.
- For an individual, other than an individual who is alleged to be drug dependent or developmentally disabled, after the advantages and disadvantages of and alternatives to accepting a particular medication or treatment have been explained to him or her and because of mental illness, evidences either incapability of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives, or substantial incapability of applying of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness in order to make an informed choice as to whether to accept or refuse medication or treatment; and evidences a substantial probability, as demonstrated by both the individual’s treatment history and his or her recent acts or omissions, that the individual needs care or treatment to prevent further disability or deterioration and a substantial probability that he or she will, if left untreated, lack services necessary for his or her health or safety and suffer severe mental, emotional or physical harm that will result in the loss of the individual’s ability to function independently in the community or the loss of cognitive or volitional control over his or her thoughts or actions. The probability of suffering severe mental, emotional or physical harm is not substantial under this subd.2.e. if reasonable provision for the individual’s care or treatment is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services or if the individual is appropriate for protective placement under s.55.06 [for developmentally disabled individuals]. Food, shelter, or other care provided to an individual who is substantially incapable of obtaining the care for himself or herself, by a person other than a treatment facility, does not constitute reasonable provision for the subject individual’s treatment or protection available in the community under this subd.2.e. …[this subd.2.e. does not apply after November 30, 2001]
(ab) [applies to inmates in prisons and jails]
(ad) 1. If a petition under par.(a) is based on par. (a)2.e., the petition shall be reviewed and approved by the attorney general ar by his or her designee prior to or within 12 hours after the time that it is filed. If the attorney general or his or her designee disapproves or fails to act with respect to the petition, the petition may not be filed. If the attorney general or his or her designee disapproves or fails to act with respect to a petition under this subdivision within 12 hours after the time that it is filed, the individual, if detained under the petition, shall be released and the petition is void.
2.Subdivision 1. does not apply if the attorney general makes a finding that a court of competent jurisdiction in this state, in a case iin which the constitutionality of par.(a)2.e. has been challenged, has upheld the constitutionality of par.(a)2.e.
1) This paragraph does not apply after November 30, 2001.
Evidentiary standard under which eligibility for assisted inpatient treatment is judged (two most common are "beyond a reasonable doubt" and "clear and convincing evidence").(am) If the individual has been the subject of inpatient treatment for mental illness, developmental disability or drug dependency immediately prior to commencement of the proceedings … or if the individual has been the subject of outpatient treatment for mental illness, developmental disability or drug dependency immediately prior to commencement of the proceedings … the requirements of an overt act, attempt, or threat to act under par. (a)2a. or b., a pattern of recent acts or omissions under par.(a)2.c. or e. or recent behavior under par.(a)2.d. may be satisfied by a showing that there is a substantial likelihood, based on the subject individual’s treatment record, that the individual would be a proper subject for commitment if treatment were withdrawn. If the individual has been admitted voluntarily to an inpatient treatment facility for not more than 30 days prior to the commencement of the proceedings and remains under voluntary admission at the time of commencement, the requirements of a specific recent overt act, attempt, or threat to act or pattern of recent acts or omissions may be satisfied by a showing of an act, attempt or threat to act or a pattern of acts or omissions which took place immediately previous to the voluntary admission. …
(ar) [applies to individuals in state prison]
Sec. 51.20(1)(a); 51.20(10); 51.20(11)
Clear and convincing evidence. Sec. 51.20(13)(e)
Is there a least restrictive treatment requirement?Yes. The County Department receiving the committed individual "shall place the subject individual in the treatment program and treatment facility which is least restrictive of the individual’s personal liberty, consistent with the treatment requirements of the individual". Sec. 51.20(13)(f)
Is there a confidentiality exception for family members of committees and/or individuals undergoing emergency evaluations?No.
Are advance directives or durable powers of attorney addressed and, if so, in what way?They are not referenced in the law. Wisconsin does have a statute recognizing powers of attorney for health care, but it is not designed for use for treatment for mental illnesses. In fact, the statute deprives a health care agent of the power to consent to the admission of the principal on an inpatient basis to an institution for mental diseases. Sec.155.20
Is there a separate proceeding necessary to abrogate a committee’s right to refuse treatment?There is a separate finding required at the probable-cause hearing, but there is no need for a separate proceeding. The Court may order psychotropic medication as a temporary protective service if it finds that there is probable cause to believe that the allegations under s. 880.07(1m)(c) and (cm) [Guardianship proceedings] apply, that 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, the individual is incapable of expressing an understanding of the advantages and disadvantages and alternatives to accepting the particular treatment offered, after the advantages, disadvantages and alternatives have been explained to the individual. A finding by the Court that there is probable cause to believe that the subject meets the commitment standard under sub.(1)(a)2.e. constitutes a finding that the individual is not competent to refuse medication or treatment under this paragraph. Sec. 51.20(7)(d)
Does the treating hospital and/or physician have discretion to release individuals before the end of their assisted inpatient treatment periods?Yes. See Sec. 51.20(13)(g)3.
Individual(s) who may decide to initiate new periods of assisted treatment.This is the same as the original petition. See #7 above.
Type of forum that decides on need for extended assisted treatment (normally either judicial or administrative).This is the same forum as available to decide the original commitment decision. This is a Court hearing with a judge, or, if sufficient notice is given by the subject of the proceedings, by a jury.
Participation of other individuals in the extension hearing (i.e. notice, a right to be heard and/or right to counsel for family members, legal guardians, doctors, etc.).Same as the original commitment hearing.
Maximum length of subsequent assisted inpatient treatment (and of any possible subsequent periods).1 year with renewals of one year each. Sec. 51.20(13)(g)1.
Commitments under (1)(a)2.d [Inability to satisfy basic needs. See 2.d in answer to #12 above] may not continue for more than 45 days in any 365 day period. Sec. 51.20(13)(g)2.
Inpatient care shall not exceed 30 days for an individual committed under (1)(a)2.e [inability to make treatment decision and likely deterioration without treatment. See 2.e in answers to #12 above] New 30 periods of inpatient care can be ordered each time there is violation of a condition of treatment. Sec. 51.20(13)(g)2d.(a)&(b).
Alternative(s) to assisted inpatient treatment (i.e. conditional release, trial release, assisted outpatient treatment, etc.) and conditions necessary for a court to order placement in alternative(s) (if more than one form, specify for each).Outpatient commitment is a possible disposition at the commitment hearing. Sec. 51.20(13)(a)3.. If the Court finds that the dangerousness of the subject is likely to be controlled with appropriate medication administered on an outpatient basis, the Court may direct in its order of commitment that the county department may use conditional release as part of the treatment plan. Sec. 51.20(13)(dm).
Maximum duration of alternative(s) to assisted inpatient treatment.Same as duration of commitment referenced in #’s 11 and 22 above.
Procedure necessary to transfer patient from outpatient to inpatient treatment.The department responsible for treatment may make such a transfer if it is required by the condition of the patient. The patient is entitled to a hearing within 10 days of the transfer. At issue at the hearing is whether the form of treatment resulting from the transfer is least restrictive of the patient’s personal liberty consistent with the treatment needs of the patient and whether the patient violated a condition of a transfer to less restrictive treatment that resulted in a transfer. Sec. 51.35
Procedure necessary to institute and maximum duration of subsequent periods of alternative(s) to inpatient assisted treatment.A petition to extend commitment would be necessary. See answers to questions #19 and 20. The duration for subsequent commitments is as stated above in answer to #22.
Describe any procedures for conservatorship, guardianship, etc., which are applicable to the mentally ill.At the probable cause hearing [held within 7 days after the arrival of the patient at the treatment facility] the Court may determine if the subject needs protective services and/or a guardian. If there is probable cause for such findings, the Court may appoint a temporary guardian, and/ or the Court may order protective services such as psychotropic medication. Sec. 51.20(7)(d)
Other (may include insights into state’s mental health system, judicial interpretation of mental health code, known movements for statutory reform, or general comments).The Wisconsin law also applies to individuals with developmental disabilities and individuals who are drug dependent. The provisions of the law applicable to developmental disabilities and drug dependency have not been included herein. Similarly, the particular provisions that apply to prisoners in jails and prison, and the provisions that are specifically applicable to minors have not been included.
The commitment standard at 51.20(1)(a)2.(e) is a need-for-treatment test with the additional requirement that the subject be incapable of making a rational treatment decision. The drafters of this act expected this standard to be challenged, and only permitted it to be used in a particular case if approved by the attorney general or his designee. This limitation does not operate if the attorney general has made a finding that a court of competent jurisdiction in Wisconsin has sustained this standard against a constitutional attack. This limitation empowers the attorney general to police the use of the standard so that a case with bad facts for the attorney general did not become the case for the legal challenge.
An individual needing treatment and satisfying the standard at 51.20(1)(a)2.(e) would soon be exposed to the power of the state to treat. If detained, a probable cause hearing could occur as quickly as 72 hours, and should occur within 7 days. At the probable cause hearing the Court could determine that the subject needed temporary protective services, and this could be in the form of medication. If the Court finds probable cause for this standard, the Court by implication does find that the subject is not competent to refuse medication. If the subject is not detained, medication can be made a condition of the subject’s release pending a hearing.
Though commitments under 51.20(1)(a)2.(e) cannot exceed 30 days inpatient treatment, there is power to renew a 30 day inpatient treatment if a condition is violated.
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