SB107: Bill Text

Joint Legislative Council prefatory note: This bill was prepared for the Joint Legislative Council Study Committee on Emergency Detention and Civil Commitment of Minors.

The bill revises requirements to obtain a minor’s consent for mental health services. Very briefly, the bill allows either a minor age 14 or older, or the minor’s parent or guardian, to consent to begin outpatient or inpatient mental health treatment for the minor. If a parent consented to treatment without the minor’s agreement, a petition must be filed for review of the appropriateness of the treatment.

Current Law

Under current law, if a minor is age 14 or older, both the minor’s and the parent’s mutual consent are required for outpatient or inpatient mental health treatment. Very generally, if a minor or parent refuses to provide consent for treatment, the other party may petition for review and approval to begin outpatient or inpatient treatment.

General Revision to Minor’s Consent for Mental Health Treatment

The bill revises the provisions that require both a minor age 14 or older and the minor’s parent or guardian to consent to outpatient or inpatient mental health treatment, to instead specify that either a minor age 14 or older, or a parent or guardian, may consent to outpatient or inpatient mental health treatment. The bill does not alter mental health treatment consent provisions that apply when a minor is under age 14.

Inpatient Procedures

The bill specifies that if a minor age 14 or older refused to join an application for admission to an inpatient treatment facility for treatment of mental illness or developmental disability, the treatment facility director must notify the local county corporation counsel that the minor has been admitted to the facility. The county corporation counsel is then required to file a petition for court review of the admission in the manner provided under current law. Likewise, the bill specifies that if a parent or guardian refused to join an application for admission to an inpatient treatment facility for treatment of mental illness or developmental disability, the parent or guardian may file a petition for review of the admission in the manner provided under current law.

Under current law, if the court finds that the therapy or treatment for mental illness or developmental disability in the inpatient facility to which the minor was admitted is not appropriate or is not the least restrictive therapy or treatment for the minor’s needs, the court may order that the minor be transferred to more appropriate therapy or treatment, if the transfer is first approved by both a minor age 14 or older and a parent or guardian. The bill allows the court to order a transfer to more appropriate therapy or treatment, if first approved by a minor age 14 or older, or the parent or guardian, rather than requiring approval of both the minor and the parent or guardian.

The bill makes similar revisions to allow either a minor’s or the parent’s or guardian’s consent in the procedures for short-term admissions, continued admission if admission occurred when the minor was under age 14, and discharge upon written request.

Outpatient Procedures

The bill specifies that if a minor age 14 or older provided consent for outpatient mental health treatment, despite a parent’s or guardian’s refusal to consent, the parent or guardian may petition for review of the appropriateness of the outpatient mental health treatment by the court mental health review officer in the manner provided under current law. Likewise, the bill specifies that if a parent or guardian provided consent for outpatient mental health treatment, despite the minor’s refusal to consent, the outpatient treatment facility director must notify the local county corporation counsel that the minor is receiving outpatient mental health treatment at the facility. The county corporation counsel is then required to file a petition for review of the appropriateness of the outpatient mental health treatment by the court mental health review officer in the manner provided under current law.

Additionally, under current law, outpatient mental health treatment may be provided to a minor in certain emergency situations without first obtaining a parent’s or guardian’s consent, if reasonable efforts have been made to obtain the parent’s or guardian’s consent before initiating treatment. The bill removes the requirement for a health care provider to make reasonable efforts to obtain a parent’s or guardian’s consent for outpatient mental health treatment for a minor age 14 or older in those emergency situations. Instead, under the bill, all outpatient mental health treatment, including emergency outpatient mental health treatment, is subject to the general outpatient procedures that apply when a minor is age 14 or older.

SB107,1 Section 1. 51.13 (1) (b) of the statutes is amended to read:

SB107,2,9 51.13 (1) (b) Minors 14 years of age or older; mental illness or developmental disability. The application for admission of a minor who is 14 years of age or older to an approved inpatient treatment facility for the primary purpose of treatment for mental illness or developmental disability shall be executed by the minor and, a parent who has legal custody of the minor, or the minor’s guardian, except as provided in par. (c). If the minor refuses to execute the application, a parent who has legal custody of the minor or the minor’s guardian may execute the application on the minor’s behalf, and the petition shall be filed as required under sub. (4).

SB107,2 Section 2. 51.13 (1) (c) of the statutes is amended to read:

SB107,3,2 51.13 (1) (c) Lack of parent or guardian consent to treatment. If a minor who is under 14 years of age wishes to be admitted to an approved inpatient treatment facility or a minor who is 14 years of age or older wishes to be admitted to an approved inpatient facility for the primary purpose of treatment for alcoholism or drug abuse but a parent with legal custody or the guardian cannot be found, there is no parent with legal custody or guardian, or the parent with legal custody or guardian of a the minor 14 years of age or older refuses to execute the application, the minor or a person acting on the minor’s behalf may petition the court under sub. (4). The court may, at the minor’s request, temporarily approve the admission pending hearing on the petition, if such a hearing is required under sub. (4).

SB107,3 Section 3. 51.13 (3) (am) of the statutes is amended to read:

SB107,3,17 51.13 (3) (am) Rights. Prior to admission if possible, or as soon thereafter as possible, the minor who is admitted under sub. (1) (a) or (b) and the minor’s parent or guardian, if available, shall be informed by the director of the facility or his or her designee, both orally and in writing, in easily understandable language, of the review procedure in sub. (4), including the standards to be applied by the court and the possible dispositions; the minor’s right to an independent evaluation, if ordered by the court; the minor’s right to be informed about how to contact the state protection and advocacy agency designated under s. 51.62 (2) (a); the right under sub. (4) (d) to a hearing upon request under sub. (4); the minor’s right to appointed counsel as provided in sub. (4) (d) if a hearing is held; for a minor other than a minor specified under par. (b), the right of the minor or parent or guardian to request the minor’s discharge as provided in or limited by sub. (7) (b); and the minor’s right to a hearing to determine continued appropriateness of the admission as provided in sub. (7) (c).

SB107,4 Section 4. 51.13 (4) (a) (intro.) of the statutes is amended to read:

SB107,4,23 51.13 (4) (a) When petition filed. (intro.) Within 3 days after the admission of a minor under sub. (1) (b) (bm) or (c), or within 3 days after an application is executed for admission of the a minor under sub. (1) (bm) or (c), whichever occurs first, the treatment director of the facility or the center for the developmentally disabled to which the minor is admitted, or his or her designee, shall file a verified petition for review of the admission in the court assigned to exercise jurisdiction under chs. 48 and 938 in the county in which the facility is located, if the minor is 14 years of age or older and refuses to join in the application; the minor wants treatment and the minor’s parent with legal custody or guardian refuses to join in the application; there is no parent with legal custody or guardian; or the parent with legal custody or guardian cannot be found. Within one day, exclusive of weekends and legal holidays, after an application is executed for admission of a minor under sub. (1) (b), if the minor refused to join in the application, the treatment director of the facility or the center for the developmentally disabled to which the minor is admitted, or their designee, shall notify the corporation counsel in the county in which the facility is located, and the corporation counsel shall, within 2 days, exclusive of weekends and legal holidays, after receiving the notice, file a verified petition for review of the admission in the court assigned to exercise jurisdiction under chs. 48 and 938 in the county in which the facility is located. Within 3 days after an application is executed for admission of a minor under sub. (1) (b), if the minor’s parent or guardian refused to join in the application, the minor’s parent or guardian may file a verified petition for review of the admission in the court assigned to exercise jurisdiction under chs. 48 and 938 in the county in which the facility or the center for the developmentally disabled to which the minor is admitted is located. If the parent or guardian is not the petitioner, a copy of the petition and a notice of hearing shall be served on the parent or guardian at his or her last known address. A copy of the application for admission and of any relevant professional evaluations shall be attached to the petition. The petition shall contain all of the following:

SB107,5 Section 5. 51.13 (4) (a) 3. of the statutes is amended to read:

SB107,5,4 51.13 (4) (a) 3. The facts substantiating the petitioner’s belief in the minor’s need for psychiatric services, or services for developmental disability, alcoholism or drug abuse or the petitioner’s belief that the minor does not need psychiatric services or services for developmental disability.

SB107,6 Section 6. 51.13 (4) (d) of the statutes is amended to read:

SB107,6,10 51.13 (4) (d) Criteria for approving admission. Within 5 days after the filing of the petition, the court assigned to exercise jurisdiction under chs. 48 and 938 shall determine, based on the allegations of the petition and accompanying documents, whether there is a prima facie showing that the minor is in need of psychiatric services, or services for developmental disability, alcoholism, or drug abuse, whether the treatment facility offers inpatient therapy or treatment that is appropriate to the minor’s needs; whether inpatient care in the treatment facility is the least restrictive therapy or treatment consistent with the needs of the minor; and, if the minor 14 years of age or older has been admitted to the treatment facility for the primary purpose of treatment for mental illness or developmental disability, whether the admission was made under an application executed by the minor and or the minor’s parent or guardian. If such a showing is made, the court shall permit admission. If the court is unable to make those determinations based on the petition and accompanying documents, the court may dismiss the petition as provided in par. (h); order additional information, including an independent evaluation, to be produced as necessary for the court to make those determinations within 7 days, exclusive of weekends and legal holidays, after admission or application for admission, whichever is sooner; or hold a hearing within 7 days, exclusive of weekends and legal holidays, after admission or application for admission, whichever is sooner. If the admission was made under an application executed by the minor’s parent or guardian despite the minor’s refusal, or if a hearing has been requested by the minor or by the minor’s counsel, parent, or guardian, the court shall order an independent evaluation of the minor and hold a hearing to review the admission, within 7 days, exclusive of weekends and legal holidays, after admission or application for admission, whichever is sooner, and shall appoint counsel to represent the minor if the minor is unrepresented. If the court considers it necessary, the court shall also appoint a guardian ad litem to represent the minor. The minor shall be informed about how to contact the state protection and advocacy agency designated under s. 51.62 (2) (a).

SB107,7 Section 7. 51.13 (4) (g) 1. b. of the statutes is amended to read:

SB107,6,15 51.13 (4) (g) 1. b. For a minor who is 14 years of age or older, the minor and, a parent who has legal custody of the minor, or the minor’s guardian, except that, if the minor refuses approval, a parent who has legal custody of the minor or the minor’s guardian may provide approval on the minor’s behalf.

SB107,8 Section 8. 51.13 (6) (a) 2. of the statutes is amended to read:

SB107,7,3 51.13 (6) (a) 2. If the minor is 14 years of age or older and is being admitted for the primary purpose of diagnosis, evaluation, or services for mental illness or developmental disability, the application shall be executed by the minor’s parent or guardian and or the minor, except that, if the minor refuses to execute the application, the parent or the guardian may execute the application. Admission under this subdivision of a minor who refuses to execute the application is reviewable under sub. (4) (d). If a review is requested or required, the treatment director of the facility to which the minor is admitted or his or her designee or, in the case of a center for the developmentally disabled, the director of the center or his or her designee shall file a verified petition for review of the admission on behalf of the minor.

SB107,9 Section 9. 51.13 (7) (a) of the statutes is amended to read:

SB107,7,18 51.13 (7) (a) Minor attains age 14 during admission. If a minor is admitted to an inpatient treatment facility while under 14 years of age, and if upon reaching age 14 is in need of further inpatient care and treatment primarily for mental illness or developmental disability, the director of the facility shall request the minor and or the minor’s parent or guardian to execute an application for admission. If the minor refuses, the minor’s parent or guardian may execute the application on the minor’s behalf. Such an application may be executed within 30 days prior to a minor’s 14th birthday. If the application is executed, a petition for review shall be filed in the manner prescribed in sub. (4), unless such a review has been held within the last 120 days. If the application is not executed by the time of the minor’s 14th birthday, the minor shall be discharged unless a petition or statement is filed for emergency detention, emergency commitment, involuntary commitment, or protective placement by the end of the next day in which the court transacts business.

SB107,10 Section 10. 51.13 (7) (b) 3. of the statutes is amended to read:

SB107,8,5 51.13 (7) (b) 3. For a minor 14 years of age or older who is admitted under sub. (1) (b) for the primary purpose of treatment for mental illness or developmental disability, the minor and or the minor’s parent or guardian may request discharge in writing. If the parent or guardian of the minor refuses to request discharge and if the director of the facility to which the minor is admitted or his or her designee avers, in writing, that the minor is in need of psychiatric services or services for developmental disability, that the facility’s therapy or treatment is appropriate to the minor’s needs, and that inpatient care in the treatment facility is the least restrictive therapy or treatment consistent with the needs of the minor, the minor may not be discharged under this paragraph.

SB107,11 Section 11. 51.13 (7) (b) 5. of the statutes is amended to read:

SB107,8,13 51.13 (7) (b) 5. A minor specified in subd. 1., a minor specified in subd. 2. whose parent or guardian requests discharge in writing, and a minor specified in subd. 3. who requests and or whose parent or guardian requests discharge in writing shall be discharged within 48 hours after submission of the request, exclusive of Saturdays, Sundays, and legal holidays, unless a petition or statement is filed for emergency detention, emergency commitment, involuntary commitment, or protective placement.

SB107,12 Section 12. 51.13 (7) (c) of the statutes is amended to read:

SB107,9,8 51.13 (7) (c) Request for hearing when not discharged. Any minor who is admitted under this section, other than a minor to which whom par. (b) 1. 2. applies, who is not discharged under par. (b), may submit a written request to the court for a hearing to determine the continued appropriateness of the admission. If the director or staff of the inpatient treatment facility to which a minor described in this paragraph is admitted observes conduct by the minor that demonstrates an unwillingness to remain at the facility, including a written expression of opinion or unauthorized absence, the director shall file a written request with the court to determine the continued appropriateness of the admission. A request that is made personally by a minor under this paragraph shall be signed by the minor but need not be written or composed by the minor. A request for a hearing under this paragraph that is received by staff or the director of the facility in which the minor is admitted shall be filed with the court by the director. The court shall order a hearing as provided in sub. (4) (d) upon request if no hearing concerning the minor’s admission has been held within 120 days before court receipt of the request. If a hearing is held, the court shall hold the hearing within 14 days after receipt of the request, unless the parties agree to a longer period. After the hearing, the court shall dispose of the matter in the manner provided in sub. (4) (h).

SB107,13 Section 13. 51.138 (1m) of the statutes is created to read:

SB107,9,11 51.138 (1m) Subsections (2) to (4) do not apply to a minor who is 14 years of age or older. Section 51.14 applies to a minor who is 14 years of age or older.

SB107,14 Section 14. 51.14 (3) (a) of the statutes is amended to read:

SB107,9,24 51.14 (3) (a) A parent or guardian of a minor 14 years of age or older or a person acting on behalf of the minor who provided the informed consent to outpatient mental health treatment required under s. 51.61 (6) despite the parent or guardian’s refusal to provide consent 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) the appropriateness of the outpatient mental health treatment for the minor. For a minor on whose behalf consent for outpatient treatment was provided under s. 51.61 (6) by the minor’s parent or guardian despite the minor’s refusal, the treatment director of the outpatient facility shall notify the corporation counsel in the county in which the facility is located and the corporation counsel 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 for review of the appropriateness of the outpatient mental health treatment for the minor.

SB107,15 Section 15. 51.14 (3) (f) of the statutes is amended to read:

SB107,10,11 51.14 (3) (f) If prior to a hearing under par. (g) the minor or the minor’s parent or guardian 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.

SB107,16 Section 16. 51.14 (3) (g) of the statutes is amended to read:

SB107,10,20 51.14 (3) (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 or the provision of informed consent by the minor despite the parent or guardian’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.

SB107,17 Section 17. 51.14 (3) (h) (intro.) of the statutes is amended to read:

SB107,11,6 51.14 (3) (h) (intro.) 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:

SB107,18 Section 18. 51.14 (3) (j) of the statutes is amended to read:

SB107,11,10 51.14 (3) (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).

SB107,19 Section 19. 51.14 (4) (a) of the statutes is amended to read:

SB107,11,20 51.14 (4) (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, or the minor’s parent or guardian 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 or the provision of informed consent by the minor despite the parent or guardian’s refusal.

SB107,20 Section 20. 51.14 (4) (g) (intro.) of the statutes is amended to read:

SB107,12,4 51.14 (4) (g) (intro.) 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:

SB107,21 Section 21. 51.61 (6) of the statutes is amended to read:

SB107,13,5 51.61 (6) Subject to the rights of patients provided under this chapter, the department, county departments under s. 51.42 or 51.437, 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 or 51.47. Except as provided in s. 51.138, if 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 or 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), (3), 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.

SB107,22 Section 22. Initial applicability.

SB107,13,10 (1) The treatment of s. 51.13 (1) (b) and (c), (3) (am), (4) (a) (intro.) and 3., (d), and (g) 1. b., (6) (a) 2., and (7) (a), (b) 3. and 5., and (c) first applies to an application for admission of a minor to an inpatient treatment facility under s. 51.13 that is executed on the effective date of this subsection.

SB107,13,12 (2) The treatment of s. 51.138 (1m) first applies to a 30-day treatment period under s. 51.138 (2) that begins on the effective date of this subsection.

SB107,13,15 (3) The treatment of s. 51.61 (6) first applies to treatment or services for mental illness or developmental delay provided to a minor on the effective date of this subsection.

SB107,13,18 (4) The treatment of s. 51.14 (3) (a), (f), (g), (h) (intro.), and (j) and (4) (a) and (g) (intro.) first applies to the provision of informed consent for outpatient mental health treatment of a minor on the effective date of this subsection.

SB107,23 Section 23. Effective date.

SB107,13,21 (1) This act takes effect on the first day of the 7th month beginning after publication.

SB107,13,22 (end)