Chapter 51

51.35 Note NOTE: 1987 Wis. Act 366, which amended this section, contains notes by the Legislative Council following many of the statutes affected.

51.35 Annotation Sub. (1) (e) does not require a hearing to be conducted within ten days of a transfer when the transfer is based on reasonable medical and clinical judgment under sub. (1) (e) 1. A hearing must be conducted within ten days of a transfer when: 1) the transfer “results in a greater restriction of personal freedom for the patient for a period of more than 5 days” or is “from outpatient to inpatient status for a period of more than 5 days;” and 2) the transfer is based on “an alleged violation of a condition of a transfer to less restrictive treatment” under sub. (1) (e) 2. or 3. Manitowoc County v. Samuel J.H., 2013 WI 68, 349 Wis. 2d 202, 833 N.W.2d 109, 12-0665.

51.37 51.37 Criminal commitments; mental health institutes.

51.37(1) (1) All commitments under s. 975.01, 1977 stats., and s. 975.02, 1977 stats., and under ss. 971.14 (5), 971.17 and 975.06 shall be to the department.

51.37(3) (3) The Mendota and Winnebago mental health institutes may be used for the custody, care and treatment of persons committed or transferred thereto pursuant to this section and chs. 971 and 975.

51.37(4) (4) The department may, with the approval of the committing court and the county department under s. 51.42 or 51.437, and subject to s. 51.35, transfer to the care and custody of a county department under s. 51.42 or 51.437 any person in an institution of the department committed under s. 971.14 or 971.17, if in its opinion, the mental condition of the person is such that further care is required and can be properly provided under the direction of the county department under s. 51.42 or 51.437.

51.37(5) (5) 

51.37(5)(a) (a) When a health care professional of a state prison, of a county jail, or of the department of corrections reports in writing to the officer in charge of a jail or institution that any prisoner is, in his or her opinion, mentally ill, drug dependent, or developmentally disabled and is appropriate for treatment as described in s. 51.20 (1), or is dangerous and is an alcoholic or a person who is drug dependent as described in s. 51.45 (13) (a) 1. and 2.; or that the prisoner is mentally ill, drug dependent, developmentally disabled or is an alcoholic and is in need of psychiatric or psychological treatment, and that the prisoner voluntarily consents to a transfer for treatment, the officer shall make a written report to the department of corrections which may transfer the prisoner if a voluntary application is made and the department of health services consents. If voluntary application is not made, the department of corrections may file a petition for involuntary commitment under s. 51.20 (1) or 51.45 (13). Any time spent by a prisoner in an institution designated under sub. (3) or s. 51.37 (2), 1983 stats., shall be included as part of the individual’s sentence.

51.37(5)(b) (b) The department of corrections may authorize an emergency transfer of an individual from a prison, jail, or other criminal detention facility to a state treatment facility if there is cause to believe that the individual is mentally ill, drug dependent, or developmentally disabled and exhibits conduct which constitutes a danger as described in s. 51.20 (1) (a) 2. a., b., c., or d. of physical harm to himself or herself or to others, or is mentally ill and satisfies the standard under s. 51.20 (1) (a) 2. e. or is dangerous and is an alcoholic or a person who is drug dependent as provided in s. 51.45 (13) (a) 1. and 2. If there is cause to believe that an individual is in active psychosis and exhibits conduct which constitutes a danger as described in s. 51.20 (1) (a) 2. a., b., c., or d. of physical harm to himself or herself or to others and the individual remains in active psychosis for more than 72 hours and has not been stabilized, the department of corrections shall authorize the emergency transfer of the individual from a prison, and the sheriff or other keeper of a jail or other criminal detention facility shall authorize the emergency transfer of the individual from a jail or other criminal detention facility to a state treatment facility or, if the individual has been sentenced to prison, to the Wisconsin Resource Center established under s. 46.056. The correctional custodian of the sending institution and the attending health care professional of the sending institution shall jointly execute a statement of emergency detention or petition for emergency commitment for the individual and deliver it to the receiving state treatment facility or the Wisconsin Resource Center established under s. 46.056. The department of health services shall file the statement or petition with the court within 24 hours after receiving the subject individual for detention. The statement or petition shall conform to s. 51.15 (4) or (5) or 51.45 (12) (b). After an emergency transfer is made, the director of the receiving facility or center may file a petition for continued commitment under s. 51.20 (1) or 51.45 (13) or may return the individual to the institution from which the transfer was made. As an alternative to this procedure, the emergency detention procedure in s. 51.15 or 51.45 (12) may be used, except that no prisoner may be released without the approval of the court which directed confinement in the institution. Any transportation expenses related to a transfer under this paragraph shall be paid for by the department of corrections.

51.37(5)(bm) (bm) If an individual in active psychosis has not been transferred to a state treatment facility or the Wisconsin Resource Center established under s. 46.056 within 48 hours after the department of corrections authorized an emergency transfer under par. (b), the attending health care professional of the sending institution shall evaluate the individual every 24 hours until the individual is transferred.

51.37(5)(c) (c) No state treatment facility may accept for admission an individual who is being transferred from a county jail under par. (a) or (b) without the approval of the county department under s. 51.42 or 51.437 of the county in which the jail is located. No state treatment facility may retain such an individual beyond 72 hours without the approval of the county department under s. 51.42 or 51.437 of the county where the transferred individual has legal residence.

51.37(6) (6) After an emergency transfer is made, the director of the receiving facility may file a petition for continued commitment under s. 51.20 (1).

51.37(7) (7) Section 51.20 (18) applies to witness fees, attorney fees and other court fees incurred under this section.

51.37(8) (8) 

51.37(8)(a) (a) Rights to reexamination under s. 51.20 (16) apply to a prisoner or inmate who is found to be mentally ill or drug dependent except that the petition shall be made to the court that made the finding or, if the prisoner or inmate is detained by transfer, to the circuit court of the county in which he or she is detained. If upon rehearing it is found that the standards for recommitment under s. 51.20 (13) (g) no longer apply to the prisoner or inmate or that he or she is not in need of psychiatric or psychological treatment, the prisoner or inmate shall be returned to the prison or county jail or house of correction unless it is past his or her release date as determined under s. 302.11 or 302.113, whichever is applicable, in which case he or she shall be discharged.

51.37(8)(b) (b) If the condition of any prisoner or inmate committed or transferred under this section requires psychiatric or psychological treatment after his or her date of release as determined under s. 302.11 or 302.113, whichever is applicable, the director of the state treatment facility shall, within a reasonable time before the release date of the prisoner or inmate, make a written application to the court that committed the prisoner or inmate under sub. (5) (a). Thereupon, the proceeding shall be upon application made under s. 51.20, but no physician or psychologist who is connected with a state prison, Winnebago Mental Health Institute, Mendota Mental Health Institute, or any county jail or house of correction may be appointed as an examiner. If the court does not commit the prisoner or inmate, it may dismiss the application and order the prisoner or inmate returned to the institution from which he or she was transferred until the release date of the prisoner or inmate. If the court commits the prisoner or inmate for the period commencing upon his or her release date, the commitment shall be to the care and custody of the county department under s. 51.42 or 51.437.

51.37(9) (9) If in the judgment of the director of Mendota Mental Health Institute, Winnebago Mental Health Institute or the Milwaukee County Mental Health Complex, any person who is committed under s. 971.14 or 971.17 is not in such condition as warrants his or her return to the court but is in a condition to receive a conditional transfer or discharge under supervision, the director shall report to the department of health services, the committing court and the district attorney of the county in which the court is located his or her reasons for the judgment. If the court does not file objection to the conditional transfer or discharge within 60 days of the date of the report, the director may, with the approval of the department of health services, conditionally transfer any person to a legal guardian or other person, subject to the rules of the department of health services. Before a person is conditionally transferred or discharged under supervision under this subsection, the department of health services shall so notify the municipal police department and county sheriff for the area where the person will be residing. The notification requirement does not apply if a municipal department or county sheriff submits to the department of health services a written statement waiving the right to be notified. The department of health services may contract with the department of corrections for the supervision of persons who are transferred or discharged under this subsection.

51.37(10) (10) 

51.37(10)(a) (a) In this subsection:

51.37(10)(a)1. 1. “Crime” has the meaning designated in s. 949.01 (1).

51.37(10)(a)2. 2. “Extended home visit or leave” means a home visit or leave lasting 24 hours or longer.

51.37(10)(a)3. 3. “Member of the family” means spouse, child, sibling, parent or legal guardian.

51.37(10)(a)4. 4. “Victim” means a person against whom a crime has been committed.

51.37(10)(am) (am) The director of a state treatment facility may grant to any patient admitted to the facility as a result of a commitment under ch. 971 or 975, a home visit for up to 15 days, or a leave for employment or education purposes in which the patient is not absent from the facility for more than 15 days.

51.37(10)(b) (b) Such a home visit or leave may be granted by the department at its discretion when it is believed to be in the best therapeutic interests of the patient and it is reasonably believed not to present a substantial risk of harm to the community.

51.37(10)(c) (c) Any patient who is granted a home visit or leave under this subsection shall be restricted to the confines of this state unless otherwise specifically permitted. The patient may, in addition, be restricted to a particular geographic area. Other conditions appropriate to the person’s treatment may also be imposed upon the home visit or leave.

51.37(10)(d) (d) If such a patient does not return to the treatment facility by the time designated in the granting of the home visit or leave, or if the patient is believed to have violated other conditions of the home visit or leave, the director of the treatment facility may request the sheriff of the county in which the patient is found to return the patient to the facility. The sheriff shall act in accordance with s. 51.39.

51.37(10)(dg) (dg) If the department grants a patient an extended home visit or leave under this subsection, the department shall do all of the following in accordance with par. (dm):

51.37(10)(dg)1. 1. Notify the office of the judge who committed the patient.

51.37(10)(dg)2. 2. Notify the office of the district attorney who participated in the commitment proceedings.

51.37(10)(dg)3. 3. Make a reasonable attempt to notify the victim of the crime committed by the patient or, if the victim died as a result of the crime, an adult member of the victim’s family or, if the victim is younger than 18 years old, the victim’s parent or legal guardian, after the submission of a card under par. (dx) requesting notification.

51.37(10)(dm) (dm)

51.37(10)(dm)1. 1. The notice under par. (dg) shall inform the offices and person under par. (dg) 1. to 3. of the patient’s name and of the date the patient will begin the home visit or leave. The department shall provide notice under this paragraph for a patient’s first extended home visit or leave and, upon request, for subsequent extended home visits or leaves.

51.37(10)(dm)2. 2. The department shall send the notice, postmarked at least 7 days before the patient begins the extended home visit or leave, to the last-known address of the offices and person under par. (dg) 1. to 3.

51.37(10)(dm)3. 3. If the notice is for a first extended home visit or leave, the notice shall inform the offices and person under par. (dg) 1. to 3. that notification of subsequent extended home visits or leaves will be provided only upon request.

51.37(10)(dx) (dx) The department shall design and prepare cards for persons specified in par. (dg) 3. to send to the department. The cards shall have space for these persons to provide their names and addresses, the name of the applicable patient and any other information the department determines is necessary. The department shall provide the cards, without charge, to district attorneys. District attorneys shall provide the cards, without charge, to persons specified in par. (dg) 3. These persons may send completed cards to the department. All departmental records or portions of records that relate to mailing addresses of these persons are not subject to inspection or copying under s. 19.35 (1).

51.37(10)(e) (e) The director of the facility in which the patient under par. (am) is detained or committed shall notify the appropriate correctional officers of the department of corrections of the intention to grant a home visit or leave under this subsection at least 20 days prior to the departure of the patient from the facility.

51.37(10)(f) (f) This section does not apply to persons transferred from a prison or jail under sub. (5).

51.37(10)(g) (g) A home visit or leave does not constitute a transfer under this chapter and return to the facility does not necessitate a hearing under s. 51.35 or 51.61.

51.37(11) (11) When an individual who is in the custody of or under the supervision of a correctional officer of the department of corrections is transferred, discharged or is on unauthorized absence from a treatment facility, the probation, extended supervision and parole agent or other individual within the department of corrections who is responsible for that individual’s supervision shall be notified as soon as possible by the director of the treatment facility.

51.37 History History: 1975 c. 430; 1977 c. 418 ss. 360 to 362, 929 (55); 1977 c. 428 ss. 80, 81, 115; 1977 c. 447; 1977 c. 449 s. 497; 1979 c. 32, 117, 175, 221; 1983 a. 27, 359, 474; 1985 a. 29 ss. 1075 to 1077, 3200 (56), 3202 (23); 1985 a. 176; 1987 a. 307, 394; 1989 a. 31, 359; 1991 a. 39, 269; 1995 a. 27 s. 9126 (19); 1995 a. 292; 1997 a. 181, 283; 2001 a. 16 s. 4034zj; 2001 a. 103; 2007 a. 20 s. 9121 (6) (a); 2017 a. 34; 2023 a. 229.

51.37 Cross-reference Cross-reference: See also ch. DHS 98, Wis. adm. code.

51.37 Annotation Persons confined in a state hospital under this section and ss. 51.20, 971.14, 971.17, and 975.06 are being subjected to punishment within the meaning of the cruel and unusual punishment clause. Flakes v. Percy, 511 F. Supp. 1325 (1981).

51.375 51.375 Honesty testing of sex offenders.

51.375(1) (1) In this section:

51.375(1)(a) (a) “Community placement” means conditional transfer into the community under s. 51.35 (1), conditional release under s. 971.17, parole from a commitment for specialized treatment under ch. 975, or supervised release under ch. 980.

51.375(1)(b) (b) “Lie detector” has the meaning given in s. 111.37 (1) (b).

51.375(1)(c) (c) “Polygraph” has the meaning given in s. 111.37 (1) (c).

51.375(1)(d) (d) “Sex offender” means a person committed to the department who meets any of the criteria specified in s. 301.45 (1g).

51.375(2) (2) 

51.375(2)(a) (a) The department may require, as a condition of a community placement, that a sex offender submit to a lie detector test when directed to do so by the department.

51.375(2)(b) (b) The department may administer a lie detector test to a sex offender as part of the sex offender’s programming, care, or treatment. A patient may refuse to submit to a lie detector test under this paragraph. This refusal does not constitute a general refusal to participate in treatment. The results of a lie detector test under this paragraph may be used only in the care, treatment, or assessment of the subject or in programming for the subject. The results of a test may be disclosed only to persons employed at the facility at which the subject is placed who need to know the results for purposes related to care, treatment, or assessment of the patient, the committing court, the patient’s attorney, or the attorney representing the state in a proceeding under ch. 980. The committing court to which the results of a test have been disclosed may admit the results in evidence in a proceeding under ch. 980.

51.375(3) (3) The department shall promulgate rules establishing a lie detector test program for sex offenders who are in a community placement. The rules shall provide for assessment of fees upon persons committed to the department to partially offset the costs of the program.

51.375 History History: 1995 a. 440; 1999 a. 89; 2001 a. 16; 2005 a. 434.

51.375 Cross-reference Cross-reference: See also ch. DHS 98, Wis. adm. code.

51.38 51.38 Nonresident patients on unauthorized absence. The circuit court may order the detention of any nonresident individual who is on unauthorized absence from any institution of another state for the treatment of mental illness, developmental disabilities, alcoholism or drug abuse. Detention shall be for the period necessary to complete the deportation of that individual.

51.38 History History: 1975 c. 430; 1977 c. 428; 1977 c. 449 s. 497.

51.39 51.39 Resident patients on unauthorized absence. If any patient who is admitted, transferred, or placed under s. 55.06, 2003 stats., or s. 51.13, 51.15, 51.20, 51.35 (3), 51.37, or 51.45 (11) (b), (12) or (13) or ch. 55, 971, 975, or 980 is on unauthorized absence from a treatment facility, the sheriff or any other law enforcement agency in the county in which the patient is found or in which it is believed the patient may be present, upon the request of the director, shall take charge of and return the patient to the facility. The costs incident to the return shall be paid out of the facility’s operating funds and be charged back to the patient’s county of residence.

51.39 History History: 1975 c. 430; 1977 c. 428; 1979 c. 336; 1993 a. 479; 2005 a. 264.

51.40 51.40 Determination of residence for certain adults; county of responsibility.

51.40(1) (1) Definitions. In this section:

51.40(1)(a) (a) “Agency of a county department” means a public or private organization with which a county department contracts for provision of services under ch. 46, 51 or 55.

51.40(1)(b) (b) “Arrange or make placement” means perform any action beyond providing basic information concerning the availability of services, facilities or programs in a county to an individual or the individual’s family.

51.40(1)(c) (c) “Capable of indicating intent” means able to express by words or other means an informed choice of a place to live.

51.40(1)(cm) (cm) “Care management organization” means a managed care organization that is under contract with the department to provide the Family Care benefit under s. 46.286, the Family Care Partnership benefit described under s. 49.496 (1) (bk) 3., or the benefit under the program of all-inclusive care for the elderly under 42 USC 1395eee or 1396u-4.

51.40(1)(d) (d) “County department” means a county department under s. 46.23, 51.42 or 51.437.

51.40(1)(e) (e) “County of responsibility” means the county responsible for funding the provision of care, treatment, or services under this chapter or ch. 46 or 55 to an individual.

51.40(1)(em) (em) “Facility” means a place, other than a hospital, that is licensed, registered, certified, or approved by the department or a county under ch. 50 or 51.

51.40(1)(f) (f) “Guardian” means a guardian of the person appointed by a court under ch. 54 or ch. 880, 2003 stats.

51.40(1)(g) (g) “Incapable of indicating intent” means one of the following:

51.40(1)(g)1. 1. The status of an individual who has a guardian.

51.40(1)(g)2. 2. The status of an individual for whom there is substantial evidence, based on documentation from a licensed physician or psychologist who has personally examined the individual and who has expertise concerning the type of mental disability evidenced by the individual, that the individual is incapable of indicating intent.

51.40(1)(hm) (hm) “Other like incapacities” has the meaning given in s. 55.01 (5).

51.40(1)(i) (i) “Parent” has the meaning specified under s. 48.02 (13).

51.40(1)(j) (j) “State facility” means a state mental health institute, center for the developmentally disabled, prison as specified in s. 302.01 or a facility that is operated directly by the department of health services or the department of corrections.

51.40(1)(m) (m) “Voluntary” has the meaning given in s. 49.001 (8).

51.40(2) (2) Determination of county of residence. The county of residence of an individual aged 18 or older with developmental disability or serious and persistent mental illness, degenerative brain disorder, or other like incapacity who is residing in a facility is the county of responsibility for the individual. The county of residence shall be determined as follows:

51.40(2)(a) (a) Directed placement.

51.40(2)(a)1. 1. ‘Commitment or protective placement or protective services.’ If an individual is under a court order of commitment under this chapter or protective placement or protective services under s. 55.06, 2003 stats., or s. 55.12, the individual remains a resident of the county in which he or she has residence at the time the initial commitment or initial order for protective placement or protective services is made. If the court makes no specific finding of a county of residence, the individual is a resident of the county in which the court is located. After notice, including notice to the corporation counsel of each affected county by certified mail, after opportunity to be heard has been provided to all affected counties and parties, and if there is no objection, the court may make a specific finding of a county of residence. If any affected county or party objects to the court’s proposed finding, the county or party may request the department to make a determination under par. (g). Any transfer of venue may be suspended until the department’s determination is final.

51.40(2)(a)2. 2. ‘Placement by a county or care management organization.’ Except for the provision of emergency services under s. 51.15, 51.42 (1) (b), 51.437 (4) (c), or 51.45 (11) and (12), emergency protective services under s. 55.13, or emergency protective placement under s. 55.135, if a county department, an agency of a county department, or a care management organization places or makes arrangements for placement of the individual into a facility, the individual remains a resident of the county in which the individual resided immediately before the individual’s initial placement. Any agency of the county department is deemed to be acting on behalf of the county department in placing or making arrangements for placement. Placement of an individual by a county department, an agency of a county department, or a care management organization in a facility outside the jurisdiction of the county department, agency, or care management organization does not transfer the individual’s legal residence to the county in which the facility is located. If a resident of a county is physically present in another county and is in need of immediate care, the county in which the individual is present may provide for his or her immediate needs under s. 51.15, 51.20, 51.42 (1) (b), 51.437 (4) (c), or 51.45 (11) or (12), or ch. 54 or 55, without becoming the individual’s county of residence.

51.40(2)(b) (b) Other admissions. If par. (a) does not apply, the county of residence shall be determined as follows:

51.40(2)(b)1. 1. ‘Individuals in state facilities.’ An individual who is in a state facility is a resident of the county in which he or she was a resident at the time the admission to the state facility was made. This subdivision may not be applied to change residence from a county, other than the county in which the facility is located, that has accepted responsibility for or provided services to the individual before December 1, 2006.

51.40(2)(b)2. 2. ‘Individuals in nursing homes.’ The following are presumptions regarding the county of residence of an individual in a nursing home that may be overcome by substantial evidence that clearly establishes other county residence:

51.40(2)(b)2.ag. ag. An individual in a nursing home who was admitted under s. 50.04 (2r) to the nursing home after December 1, 2006, is a resident of the county that approved the admission under s. 50.04 (2r).

51.40(2)(b)2.bg. bg. An individual residing in a nursing home on December 1, 2006, is a resident of the county in which the individual is physically present unless another county accepts the individual as a resident.

51.40(2)(b)2.cg. cg. If the individual had an established residence in another county prior to entering the nursing home; the individual or the individual’s guardian, if any, indicates an intent that the individual will return to that county when the purpose of entering the nursing home has been accomplished or when needed care and services can be obtained in that county; and the individual, when capable of indicating intent, or a guardian for the individual, has made no clearly documented expression to a court or county department of an intent to establish residence elsewhere since leaving that county, the individual is a resident of that county.

51.40(2)(b)2.dg. dg. If the individual is incapable of indicating intent as determined by the county department, has no guardian, ordinarily resides in another county, and is expected to return to that county within one year, the individual is a resident of that county.

51.40(2)(b)2.eg. eg. If another county has accepted responsibility for or provided services to the individual prior to December 1, 2006, the individual is a resident of that county.

51.40(2)(b)2.fg. fg. If the individual is incapable of indicating intent; the individual was living in another county outside of a nursing home or state facility on December 1, 2006, or under circumstances that established residence in that county after December 1, 2006; and that county was the last county in which the individual had residence while living outside of a nursing home or state facility, the individual is a resident of that county.