Chapter 51

51.15 Annotation The community caretaker exception that allows police officers to make a warrantless entry into a home when engaging in an activity that is unrelated to criminal activity and is for the public good applies to police activity undertaken pursuant to this section. State v. Horngren, 2000 WI App 177, 238 Wis. 2d 347, 617 N.W.2d 508, 99-2065.

51.15 Annotation Sub. (10) is not ambiguous and cannot reasonably be construed to authorize the continued detention of an involuntarily admitted individual based on a treatment director’s statement of emergency detention when the individual had not been given the required probable cause hearing. Although sub. (10) refers to “voluntary patients” in its title, “otherwise admitted” in sub. (10) is not restricted to the admission of voluntary patients and encompasses involuntary admissions. Although “otherwise admitted” applies to involuntary patients, it does not necessarily follow that the term includes involuntary patients who have been detained beyond 72 hours without a probable cause hearing under s. 51.20 (7) (a). Dane County v. Stevenson L.J., 2009 WI App 84, 320 Wis. 2d 194, 768 N.W.2d 223, 08-1281.

51.15 Annotation By granting immunity to any individual acting in accordance with this section, the legislature plainly intended to expand immunity beyond those authorized to take individuals into physical custody. Sub. (11) presumes that a person participating in emergency detention decisions has acted in good faith. This presumption can be defeated only by clear, satisfactory, and convincing evidence to the contrary. Estate of Hammersley v. Wisconsin County Mutual Insurance Corp., 2012 WI App 44, 340 Wis. 2d 557, 811 N.W.2d 878, 11-0359.

51.15 Annotation Sub. (2) authorizes the Department of Health Services (DHS) to designate one state treatment facility that will accept custody of individuals transported for emergency detention and treatment. It is unreasonable to assume that the legislature intended to force DHS to organize itself and expend resources so that emergency detention and treatment is performed at all six state treatment facilities when other statutes authorize DHS to use discretion to organize those facilities in a manner consistent with the facilities’ statutory functions, consistent with the overriding statutory purpose of providing a unified system of treatment as resources allow. City of Madison v. Department of Health Services, 2017 WI App 25, 375 Wis. 2d 203, 895 N.W.2d 844, 16-0727.

51.15 Annotation It is inadvisable to treat individuals transported across state lines for emergency medical care differently than other individuals when determining whether emergency detention proceedings should be initiated pursuant to this section. 78 Atty. Gen. 59.

51.15 Annotation While sub. (7) does not authorize contractual agreements with counties outside of Wisconsin, ss. 51.75 (11), 51.87 (3), and 66.30 (5) [now s. 66.0303] each contain legal mechanisms through which financial or other responsibility for care and treatment of individuals from such counties may be shared under certain specified circumstances. 78 Atty. Gen. 59.

51.15 Annotation Former s. 51.15, 2011 stats., permits transfer of custody from a law enforcement officer only to one of the four categories of facilities enumerated in former sub. (2), 2011 stats. The law enforcement officer’s statutory obligation under former s. 51.15, 2011 stats., is not discharged until a transfer of custody to one of those four categories of facilities occurs. 81 Atty. Gen. 110.

51.17 51.17 Warning of dangerousness.

51.17(1) (1) Definition. In this section, “health care provider” has the meaning given in s. 146.81 (1).

51.17(2) (2) Authorization. Any health care provider, as permitted by s. 146.816 (2) (b) 4. or 5., and any law enforcement officer may make a disclosure of information evidencing that an individual poses a substantial probability of serious bodily harm to any other person in a good faith effort to prevent or lessen a serious and imminent threat to the health or safety of a person or the public.

51.17(3) (3) Duty; health care providers.

51.17(3)(a) (a) Any health care provider that reasonably believes an individual has a substantial probability of harm to himself or herself or to another person under s. 51.15 (1) (ar) 1., 2., 3., or 4. fulfills any duty to warn a 3rd party by doing any of the following:

51.17(3)(a)1. 1. Contacting a law enforcement officer regarding the individual and disclosing knowledge of potential evidence of a substantial probability of harm under s. 51.15 (1) (ar) 1., 2., 3., or 4.

51.17(3)(a)2. 2. Contacting the county department that the health care provider reasonably believes is responsible for approving the need for emergency detention of the individual under s. 51.15 (2) and disclosing knowledge of potential evidence of a substantial probability of harm under s. 51.15 (1) (ar) 1., 2., 3., or 4.

51.17(3)(a)3. 3. If the health care provider is an agent of the county department that is responsible for approving the need for emergency detention under s. 51.15 (2) and is authorized by that county department to approve or disapprove the need for emergency detention under s. 51.15 (2), approving the emergency detention of the individual.

51.17(3)(a)4. 4. Taking any other action that a reasonable health care provider would consider as fulfilling the duty to warn a 3rd party of substantial probability of harm.

51.17(3)(b) (b) If an individual is not in custody of a facility under s. 51.15 (3) and is not voluntarily admitted to a inpatient psychiatric unit, a health care provider that takes any of the actions under par. (a) has no further duty to any person to seek involuntary treatment, emergency detention, emergency stabilization, or commitment of the individual; to physically restrain or isolate the individual; to prevent the individual from leaving the hospital; or to provide treatment or medication without the individual’s consent.

51.17(4) (4) Liability. Any person or health care provider that acts in accordance with this section is not civilly or criminally liable for actions taken in good faith. The good faith of the actor shall be presumed in a civil action. Whoever asserts that the individual who acts in accordance has not acted in good faith has the burden of proving that assertion by evidence that is clear, satisfactory, and convincing.

51.17 History History: 2017 a. 140, 143.

51.20 51.20 Involuntary commitment for treatment.

51.20(1) (1) Petition for examination.

51.20(1)(a) (a) Except as provided in pars. (ab), (am), and (ar), every written petition for examination shall allege that all of the following apply to the subject individual to be examined:

51.20(1)(a)1. 1. The individual is mentally ill or, except as provided under subd. 2. e., drug dependent or developmentally disabled and is a proper subject for treatment.

51.20(1)(a)2. 2. The individual is dangerous because he or she does any of the following:

51.20(1)(a)2.a. a. 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.

51.20(1)(a)2.b. b. 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 to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm. In this subd. 2. b., if the petition is filed under a court order under s. 938.30 (5) (c) 1. or (d) 1., a finding by the court exercising jurisdiction under chs. 48 and 938 that the juvenile committed the act or acts alleged in the petition under s. 938.12 or 938.13 (12) may be used to prove that the juvenile exhibited recent homicidal or other violent behavior or committed a recent overt act, attempt or threat to do serious physical harm.

51.20(1)(a)2.c. c. 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 or other individuals. 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, if the individual may be provided protective placement or protective services under ch. 55, or, in the case of a minor, if the individual is appropriate for services or placement under s. 48.13 (4) or (11) or 938.13 (4). The subject individual’s status as a minor does not automatically establish a substantial probability of physical impairment or injury under this subd. 2. c. 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.

51.20(1)(a)2.d. d. 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 this mental illness. No substantial probability of harm under this subd. 2. d. exists if reasonable provision for the individual’s treatment and protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services, if the individual may be provided protective placement or protective services under ch. 55, or, in the case of a minor, if the individual is appropriate for services or placement under s. 48.13 (4) or (11) or 938.13 (4). The individual’s status as a minor does not automatically establish a substantial probability of death, serious physical injury, serious physical debilitation or serious disease under this subd. 2. d. Food, shelter or other care provided to an individual who is substantially incapable of obtaining the care for himself or herself, by any person other than a treatment facility, does not constitute reasonable provision for the individual’s treatment or protection available in the community under this subd. 2. d.

51.20(1)(a)2.e. e. 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 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 may be provided protective placement or protective services under ch. 55. Food, shelter, or other care that is provided to an individual who is substantially incapable of obtaining food, shelter, or other care for himself or herself by any person other than a treatment facility does not constitute reasonable provision for the individual’s care or treatment in the community under this subd. 2. e. The individual’s status as a minor does not automatically establish a substantial probability of suffering severe mental, emotional, or physical harm under this subd. 2. e.

51.20(1)(ab) (ab) If the individual is an inmate of a prison, jail or other criminal detention facility, the fact that the individual receives food, shelter and other care in that facility may not limit the applicability of par. (a) to the individual. The food, shelter and other care does not constitute reasonable provision for the individual’s protection available in the community.

51.20(1)(ad) (ad)

51.20(1)(ad)1. 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 or by his or her designee prior to 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.

51.20(1)(ad)2. 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 in which the constitutionality of par. (a) 2. e. has been challenged, has upheld the constitutionality of par. (a) 2. e.

51.20(1)(am) (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 as a result of a voluntary admission, a commitment or protective placement ordered by a court under this section or s. 55.06, 2003 stats., s. 971.17, or ch. 975, or a protective placement or protective services ordered under s. 55.12, 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 as a result of a commitment ordered by a court under this section, s. 971.17, or ch. 975, the requirements of a recent overt act, attempt or threat to act under par. (a) 2. a. or b., 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 pattern of acts or omissions which took place immediately previous to the voluntary admission. If the individual is committed under s. 971.14 (2) or (5) at the time proceedings are commenced, or has been discharged from the commitment immediately prior to the commencement of proceedings, acts, attempts, threats, omissions, or behavior of the subject individual during or subsequent to the time of the offense shall be deemed recent for purposes of par. (a) 2.

51.20(1)(ar) (ar) If the individual is an inmate of a state prison, the petition may allege that the inmate is mentally ill, is a proper subject for treatment and is in need of treatment. The petition shall allege that appropriate less restrictive forms of treatment have been attempted with the individual and have been unsuccessful and it shall include a description of the less restrictive forms of treatment that were attempted. The petition shall also allege that the individual has been fully informed about his or her treatment needs, the mental health services available to him or her and his or her rights under this chapter and that the individual has had an opportunity to discuss his or her needs, the services available to him or her and his or her rights with a licensed physician or a licensed psychologist. The petition shall include the inmate’s sentence and his or her expected date of release as determined under s. 302.11 or 302.113, whichever is applicable. The petition shall have attached to it a signed statement by a licensed physician or a licensed psychologist of a state prison and a signed statement by a licensed physician or a licensed psychologist of a state treatment facility attesting either of the following:

51.20(1)(ar)1. 1. That the inmate needs inpatient treatment at a state treatment facility because appropriate treatment is not available in the prison.

51.20(1)(ar)2. 2. That the inmate’s treatment needs can be met on an outpatient basis in the prison.

51.20(1)(b) (b) Each 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, except that this requirement does not apply if the petition is filed pursuant to a court order under s. 938.30 (5) (c) 1. or (d) 1.

51.20(1)(c) (c) The petition shall contain the names and mailing addresses of the petitioners and their relation to the subject individual, and shall also contain the names and mailing addresses of the individual’s spouse, adult children, parents or guardian, custodian, brothers, sisters, person in the place of a parent and person with whom the individual resides or lives. If this information is unknown to the petitioners or inapplicable, the petition shall so state. The petition may be filed in the court assigned to exercise probate jurisdiction for the county where the subject individual is present or the county of the individual’s legal residence. If the judge of the court or a circuit court commissioner who handles probate matters is not available, the petition may be filed and the hearing under sub. (7) may be held before a judge or circuit court commissioner of any circuit court for the county. For the purposes of this chapter, duties to be performed by a court shall be carried out by the judge of the court or a circuit court commissioner of the court who is designated by the chief judge to so act, in all matters prior to a final hearing under this section. The petition shall contain a clear and concise statement of the facts which constitute probable cause to believe the allegations of the petition. The petition shall be sworn to be true. If a petitioner is not a petitioner having personal knowledge as provided in par. (b), the petition shall contain a statement providing the basis for his or her belief.

51.20(1m) (1m) Alternate grounds for commitment. For purposes of subs. (2) to (9), the requirement of finding probable cause to believe the allegations in sub. (1) (a) or (am) may be satisfied by finding probable cause to believe that the individual satisfies sub. (1) (a) 1. and evidences such impaired judgment, manifested by evidence of a recent act or omission, that there is a substantial probability of physical impairment or injury to himself or herself. The probability of physical impairment or injury may not be deemed substantial under this subsection if reasonable provision for the individual’s protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of the services or if the individual may be provided protective placement or protective services under ch. 55. The individual’s status as a minor does not automatically establish a substantial probability of physical impairment or injury under this subsection. Food, shelter or other care provided to an individual who is substantially incapable of obtaining the care for himself or herself, by any person other than a treatment facility, does not constitute reasonable provision for the individual’s protection available in the community under this subsection.

51.20(2) (2) Notice of hearing and detention.

51.20(2)(a) (a) Upon the filing of a petition for examination, the court shall review the petition within 24 hours after the petition is filed, excluding Saturdays, Sundays, and legal holidays, to determine whether an order of detention should be issued. The subject individual shall be detained only if there is cause to believe that the individual is mentally ill, drug dependent or developmentally disabled and the individual is eligible for commitment under sub. (1) (a) or (am) based upon specific recent overt acts, attempts or threats to act or on a pattern of recent acts or omissions made by the individual.

51.20(2)(b) (b) If the subject individual is to be detained, a law enforcement officer shall present the subject individual with a notice of hearing, a copy of the petition and detention order and a written statement of the individual’s right to an attorney, a jury trial if requested more than 48 hours prior to the final hearing, the standard upon which he or she may be committed under this section and the right to a hearing to determine probable cause for commitment within 72 hours after the individual is taken into custody under s. 51.15, excluding Saturdays, Sundays and legal holidays. The officer shall orally inform the individual that he or she is being detained as the result of a petition and detention order issued under this chapter. If the individual is not to be detained, the law enforcement officer shall serve these documents on the subject individual and shall also orally inform the individual of these rights. The individual who is the subject of the petition, his or her counsel and, if the individual is a minor, his or her parent or guardian, if known, shall receive notice of all proceedings under this section. The court may also designate other persons to receive notices of hearings and rights under this chapter. Any such notice may be given by telephone. The person giving telephone notice shall place in the case file a signed statement of the time notice was given and the person to whom he or she spoke. The notice of time and place of a hearing shall be served personally on the subject of the petition, and his or her attorney, within a reasonable time prior to the hearing to determine probable cause for commitment.

51.20(2)(c) (c) If the law enforcement officer has a detention order issued by a court, or if the law enforcement officer has cause to believe that the subject individual is mentally ill, drug dependent or developmentally disabled and is eligible for commitment under sub. (1) (a) or (am), based upon specific recent overt acts, attempts or threats to act or on a pattern of omissions made by the individual, the law enforcement officer shall take the subject individual into custody. If the individual is detained by a law enforcement officer, the individual shall be orally informed of his or her rights under this section on arrival at the detention facility by the facility staff, who shall also serve all documents required by this section on the individual.

51.20(2)(d) (d) Placement shall only be made in a treatment facility approved by the department or the county department, if the facility agrees to detain the subject individual, or in a state treatment facility. Upon arrival at the facility, the individual is considered to be in the custody of the facility.

51.20(3) (3) Legal counsel. At the time of the filing of the petition the court shall assure that the subject individual is represented by adversary counsel by referring the individual to the state public defender, who shall appoint counsel for the individual without a determination of indigency, as provided in s. 51.60.

51.20(4) (4) Public representation; limited appearance.

51.20(4)(a) (a) Except as provided in ss. 51.42 (3) (ar) 1. and 51.437 (4m) (f) and subject to par. (b), the corporation counsel shall represent the interests of the public in the conduct of all proceedings under this chapter, including the drafting of all necessary papers related to the action.

51.20(4)(b) (b) If corporation counsel does not believe that involuntary commitment under this section is appropriate for the subject individual, corporation counsel shall inform the person seeking the petition under sub. (1) that the person may discontinue pursuing the involuntary commitment or may request that corporation counsel file the petition under sub. (1) under a limited appearance. If the person seeking the petition requests a limited appearance by corporation counsel for the purpose of filing a petition under sub. (1), corporation counsel shall do all of the following:

51.20(4)(b)1. 1. Notify the person seeking the petition of the scope of what corporation counsel will do under the limited appearance.

51.20(4)(b)2. 2. File, in a timely manner, the petition as described in sub. (1), except that the corporation counsel does not need to affirm that the facts in the petition constitute probable cause but may state that the person seeking the petition believes those facts constitute probable cause.

51.20(4)(b)3. 3. Include with the petition, at the time of filing, a certification to the court that corporation counsel is not supporting the petition but is making a limited appearance and that he or she has notified the person seeking the petition of the scope of this limited appearance.

51.20(4)(c) (c) Paragraph (b) does not apply to a petition originating under s. 51.15 (4), (5), or (10).

51.20(5) (5) Hearing requirements.

51.20(5)(a) (a) The hearings which are required to be held under this chapter shall conform to the essentials of due process and fair treatment including the right to an open hearing, the right to request a closed hearing, the right to counsel, the right to present and cross-examine witnesses, the right to remain silent and the right to a jury trial if requested under sub. (11). The parent or guardian of a minor who is the subject of a hearing shall have the right to participate in the hearing and to be represented by counsel. All proceedings under this chapter shall be reported as provided in SCR 71.01.

51.20(5)(b) (b) The court may determine to hold a hearing under this section at the institution at which the individual is detained, whether or not located in the same county as the court with which the petition was filed, unless the individual or his or her attorney objects.

51.20(5)(c) (c)

51.20(5)(c)1. 1. In a county in which the courthouse is 100 miles or more away from the facility at which the subject of the hearing is detained and has videoconferencing capabilities that meet the technical and operational standards under s. 885.54, the court may conduct the hearing under this section by videoconference unless both the corporation counsel and counsel representing the subject of the hearing object.

51.20(5)(c)2. 2. Subdivision 1. does not preclude a court from conducting a hearing by videoconference in circumstances other than described under subd. 1.

51.20(6) (6) Juveniles. For minors, the hearings held under this section shall be before the court assigned to exercise jurisdiction under chs. 48 and 938.

51.20(7) (7) Probable-cause hearing.

51.20(7)(a) (a) After the filing of the petition under sub. (1), if the subject individual is detained under s. 51.15 or this section the court shall schedule and hold a hearing to determine whether there is probable cause to believe the allegations made under sub. (1) (a) within 72 hours after the individual is taken into custody under s. 51.15 or this section, excluding Saturdays, Sundays and legal holidays. At the request of the subject individual or his or her counsel the hearing may be postponed, but in no case may the postponement exceed 7 days from the date of detention.

51.20(7)(am) (am) A subject individual may not be examined, evaluated or treated for a nervous or mental disorder pursuant to a court order under this subsection unless the court first attempts to determine whether the person is an enrollee of a health maintenance organization, limited service health organization or preferred provider plan, as defined in s. 609.01, and, if so, notifies the organization or plan that the subject individual is in need of examination, evaluation or treatment for a nervous or mental disorder.

51.20(7)(b) (b) If the subject individual is not detained or is an inmate of a state prison, county jail or house of correction, the court shall hold a hearing within a reasonable time of the filing of the petition, to determine whether there is probable cause to believe the allegations made under sub. (1).

51.20(7)(c) (c) If the court determines that there is probable cause to believe the allegations made under sub. (1), it shall schedule the matter for a hearing within 14 days from the time of detention of the subject individual, except as provided in sub. (8) (bg) or (bm) or (11) (a). If a postponement has been granted under par. (a), the matter shall be scheduled for hearing within 21 days from the time of detention of the subject individual. If the subject individual is not detained under s. 51.15 or this section or is an inmate of a state prison, county jail or house of correction, the hearing shall be scheduled within 30 days of the hearing to determine probable cause for commitment. In the event that the subject individual fails to appear for the hearing to determine probable cause for commitment, the court may issue an order for the subject individual’s detention and shall hold the hearing to determine probable cause for commitment within 48 hours, exclusive of Saturdays, Sundays and legal holidays, from the time that the individual is detained.

51.20(7)(d) (d)

51.20(7)(d)1. 1. If the court determines after hearing that there is probable cause to believe that the subject individual is a fit subject for guardianship and protective placement or services, the court may, without further notice, appoint a temporary guardian for the subject individual and order temporary protective placement or services under ch. 55 for a period not to exceed 30 days, and shall proceed as if petition had been made for guardianship and protective placement or services. If the court orders only temporary protective services for a subject individual under this paragraph, the individual shall be provided care only on an outpatient basis. The court may order the involuntary administration of psychotropic medication as a temporary protective service under this paragraph if it finds that there is probable cause to believe that the allegations under s. 55.14 (3) (e) 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 serious and persistent mental illness, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to the individual, one of the following is true:

51.20(7)(d)1.a. a. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting treatment and the alternatives.

51.20(7)(d)1.b. b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her serious and persistent mental illness in order to make an informed choice as to whether to accept or refuse psychotropic medication.

51.20(7)(d)2. 2. A finding by the court that there is probable cause to believe that the subject individual 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.

51.20(7)(dm) (dm) The court shall proceed as if a petition were filed under s. 51.45 (13) if all of the following conditions are met:

51.20(7)(dm)1. 1. The petitioner’s counsel notifies all other parties and the court, within a reasonable time prior to the hearing, of his or her intent to request that the court proceed as if a petition were filed under s. 51.45 (13).

51.20(7)(dm)2. 2. The court determines at the hearing that there is probable cause to believe that the subject individual is a fit subject for treatment under s. 51.45 (13).

51.20(7)(e) (e) If the court determines that probable cause does not exist to believe the allegations, or to proceed under par. (d), the court shall dismiss the proceeding.

51.20(8) (8) Disposition pending hearing.

51.20(8)(a) (a) If it is shown that there is probable cause to believe the allegations under sub. (1), the court may release the subject individual pending the full hearing and the individual has the right to receive treatment services, on a voluntary basis, from the county department under s. 51.42 or 51.437, or from the department. The court may issue an order stating the conditions under which the subject individual may be released from detention pending the final hearing. If acceptance of treatment is made a condition of the release, the subject individual may elect to accept the conditions or choose detention pending the hearing. The court order may state the action to be taken upon information of breach of the conditions. A final hearing must be held within 30 days of the order, if the subject individual is released. Any detention under this paragraph invokes time limitations specified in sub. (7) (c), beginning with the time of the detention. The right to receive treatment voluntarily or accept treatment as a condition of release under this paragraph does not apply to an individual for whom a probable cause finding has been made, under s. 51.61 (1) (g), that he or she is not competent to refuse medication, to the extent that the treatment includes medication.

51.20(8)(b) (b) If the court finds the services provided under par. (a) are not available, suitable, or desirable based on the condition of the individual, it may issue a detention order and the subject individual may be detained pending the hearing as provided in sub. (7) (c). Detention may only be in a treatment facility approved by the department or the county department if the facility agrees to detain the subject individual, or in a state treatment facility.

51.20(8)(bg) (bg) The subject individual, or the individual’s legal counsel with the individual’s consent, may waive the time periods under s. 51.10 or this section for the probable cause hearing or the final hearing, or both, for a period not to exceed 90 days from the date of the waiver, if the individual and the counsel designated under sub. (4) agree at any time after the commencement of the proceedings that the individual shall obtain treatment under a settlement agreement. The settlement agreement shall be in writing, shall be approved by the court and shall include a treatment plan that provides for treatment in the least restrictive manner consistent with the needs of the subject individual. Either party may request the court to modify the treatment plan at any time during the 90-day period. The court shall designate the appropriate county department under s. 51.42 or 51.437 to monitor the individual’s treatment under, and compliance with, the settlement agreement. If the individual fails to comply with the treatment according to the agreement, the designated county department shall notify the counsel designated under sub. (4) and the subject’s counsel of the individual’s noncompliance.

51.20(8)(bm) (bm) If, within 90 days from the date of the waiver under par. (bg), the subject individual fails to comply with the settlement agreement approved by the court under par. (bg), the counsel designated under sub. (4) may file with the court a statement of the facts which constitute the basis for the belief that the subject individual is not in compliance. The statement shall be sworn to be true and may be based on the information and belief of the person filing the statement. Upon receipt of the statement of noncompliance, the court may issue an order to detain the subject individual pending the final disposition. If the subject individual is detained under this paragraph, the court shall hold a probable cause hearing within 72 hours from the time that the person is taken into custody under s. 51.15 for this paragraph, excluding Saturdays, Sundays and legal holidays or, if the probable cause hearing was held prior to the approval of the settlement agreement under par. (bg), the court shall hold a final hearing within 14 days from the time of detention. If a jury trial is requested later than 5 days after the time of detention under this paragraph, but not less than 48 hours before the time of the final hearing, the final hearing shall be held within 21 days from the time of detention. The facts alleged as the basis for commitment prior to the waiver of the time periods for hearings under par. (bg) may be the basis for a finding of probable cause or a final disposition at a hearing under this paragraph.

51.20(8)(br) (br) Upon the motion of the subject individual, the court shall hold a hearing on the issue of noncompliance with the settlement agreement within 72 hours from the time the motion for a hearing under this paragraph is filed with the court, excluding Saturdays, Sundays and legal holidays. The hearing under this paragraph may be held as part of the probable cause or final hearing if the probable cause or final hearing is held within 72 hours from the time the motion is filed with the court, excluding Saturdays, Sundays and legal holidays. At a hearing on the issue of noncompliance with the agreement, the written statement of noncompliance submitted under par. (bm) shall be prima facie evidence that a violation of the conditions of the agreement has occurred. If the subject individual denies any of the facts as stated in the statement, he or she has the burden of proving that the facts are false by a preponderance of the evidence.

51.20(8)(c) (c) During detention a physician may order the administration of such medication or treatment as is permitted under s. 51.61 (1) (g) and (h). The subject individual may consent to treatment but only after he or she has been informed of his or her right to refuse treatment and has signed a written consent to such treatment, except that an individual for whom, under s. 51.61 (1) (g), a probable cause finding has been made that he or she is not competent to refuse medication may not consent to medication under this paragraph. A report of all treatment which is provided, along with any written consent, shall be filed with the court by the director of the treatment facility in which the subject individual is detained, or his or her designee.

51.20(9) (9) Examination.

51.20(9)(a) (a)

51.20(9)(a)1. 1. If the court finds after the hearing that there is probable cause to believe the allegations under sub. (1), it shall appoint 2 licensed physicians specializing in psychiatry, or one licensed physician and one licensed psychologist, or 2 licensed physicians one of whom shall have specialized training in psychiatry, if available, or 2 physicians, to personally examine the subject individual. The examiners shall have the specialized knowledge determined by the court to be appropriate to the needs of the subject individual. The examiners may not be related to the subject individual by blood, marriage, or adoption and may not have any interest in his or her property.

51.20(9)(a)2. 2. One of the examiners appointed under subd. 1. may be selected by the subject individual if the subject individual makes his or her selection known to the court within 24 hours after completion of the hearing to determine probable cause for commitment. The court may deny the subject individual’s selection if the examiner does not meet the requirements of subd. 1. or the subject individual’s selection is not available.

51.20(9)(a)3. 3. If requested by the subject individual, the individual’s attorney, or any other interested party with court permission, the individual has a right at his or her own expense or, if indigent and with approval of the court hearing the petition, at the reasonable expense of the individual’s county of legal residence, to secure an additional medical or psychological examination and to offer the evaluator’s personal testimony as evidence at the hearing.

51.20(9)(a)4. 4. Prior to the examination, the subject individual shall be informed that his or her statements can be used as a basis for commitment, that he or she has the right to remain silent and that the examiner is required to make a report to the court even if the subject individual remains silent. The issuance of such a warning to the subject individual prior to each examination establishes a presumption that the individual understands that he or she need not speak to the examiner.

51.20(9)(a)5. 5. The examiners shall personally observe and examine the subject individual at any suitable place and satisfy themselves, if reasonably possible, as to the individual’s mental condition, and shall make independent reports to the court. The subject individual’s treatment records shall be available to the examiners. If the subject individual is not detained pending the hearing, the court shall designate the time and place where the examination is to be held and shall require the individual’s appearance. A written report shall be made of all such examinations and filed with the court. The report and testimony, if any, by the examiners shall be based on beliefs to a reasonable degree of medical certainty, or professional certainty if an examiner is a psychologist, in regard to the existence of the conditions described in sub. (1), and the appropriateness of various treatment modalities or facilities. If the examiners are unable to make conclusions to a reasonable degree of medical or professional certainty, the examiners shall so state in their report and testimony, if any.

51.20(9)(b) (b) If the examiner determines that the subject individual is a proper subject for treatment, the examiner shall make a recommendation concerning the appropriate level of treatment. Such recommendation shall include the level of inpatient facility which provides the least restrictive environment consistent with the needs of the individual, if any, and the name of the facility where the subject individual should be received into the mental health system. The court may, prior to disposition, order additional information concerning such recommended level of treatment to be provided by the staff of the appropriate county department under s. 51.42 or 51.437, or by the staff of a public treatment facility if the subject individual is detained there pending the final hearing.