Chapter 51

51.35(3)(g) (g) A minor 14 years of age or older who is transferred to a treatment facility under par. (a) for the purpose of receiving services for developmental disability or psychiatric services and the minor’s parent or guardian may request in writing a return to the juvenile correctional facility or secured residential care center for children and youth, except that, if the minor refuses to make the request, the parent or guardian may make the request on behalf of the minor. In the case of a minor 14 years of age or older who is transferred to a treatment facility under par. (a) for the purpose of receiving services for alcoholism or drug dependency or a minor under 14 years of age who is transferred to a treatment facility under par. (a) for the purpose of receiving services for developmental disability, alcoholism, or drug dependency, or psychiatric services, the parent or guardian may make the request. Upon receipt of a request for return from a minor 14 years of age or older, the director shall immediately notify the minor’s parent or guardian, if available. A minor 14 years of age or older who requests and whose parent or guardian requests and a minor who was admitted under s. 51.13 (1) (c) who requests discharge in writing shall be returned to the juvenile correctional facility or secured residential care center for children and youth within 48 hours after submission of the request unless a statement is filed for emergency detention or a petition is filed for emergency commitment, involuntary commitment, or protective placement.

51.35(4) (4) Discharge.

51.35(4)(a) (a) The county department under s. 51.42 or 51.437 shall grant a discharge from an order of commitment when it determines that the patient no longer meets the standard for recommitment under s. 51.20 (13) (g). The county department shall grant a discharge to a patient who is voluntarily admitted to an inpatient facility if the treatment director determines that treatment is no longer necessary or if the individual requests such discharge. Discharge or retention of a patient who is voluntarily admitted is subject to the procedures prescribed in ss. 51.10 (5) and 51.13 (7).

51.35(4)(b) (b) The department shall grant a discharge from commitment or from voluntary admission for patients committed or voluntarily admitted to a facility under control of the department. The standards applied by the department in granting a discharge shall be the same as those provided in par. (a). The department may not discharge from a commitment an individual who has been committed to a county department under s. 51.42 or 51.437 without first obtaining approval of that county department. The department may discharge a voluntarily admitted patient if the appropriate county department is notified. Transfers of patients may be made by the department in accordance with sub. (1).

51.35(4)(c) (c) The director of an inpatient facility may grant a discharge or may terminate services to any patient who is voluntarily admitted under s. 51.10 or 51.13 when, on the advice of the treatment staff, such discharge or termination is in the best interests of the patient.

51.35(4)(d) (d) The director of an inpatient facility may, under the requirements of s. 51.10 (5) (c) or 51.13 (7), grant a discharge or may terminate services to any patient admitted under s. 51.10 or 51.13.

51.35(4)(e) (e) A discharge may be issued to a patient who participates in outpatient, aftercare, or follow-up treatment programs. The discharge may permit the patient to receive necessary medication, outpatient treatment, consultation and guidance from the issuing facility at the request of the patient. Such discharge is not subject to withdrawal by the issuing agency.

51.35(4)(f) (f) Notice of discharge shall be filed with the committing court, if any, by the department or the board which granted the discharge. After such discharge, if it becomes necessary for the individual who is discharged to have further care and treatment, and such individual cannot be voluntarily admitted, a new commitment must be obtained, following the procedure for the original commitment.

51.35(4m) (4m) Transfer or discharge of persons with serious and persistent mental illness. The department or county department under s. 51.42 or any person authorized to discharge or transfer patients under this section shall, prior to the discharge of a patient with serious and persistent mental illness from an inpatient facility, or prior to the transfer of a patient with serious and persistent mental illness from inpatient to outpatient status, with the patient’s permission if the patient is a voluntary patient, do all of the following:

51.35(4m)(a) (a) Refer the patient to the county department under s. 51.42 which is responsible for the patient’s care for referral to a community support program in the county to which the patient will be discharged or transferred for evaluation of the need for and feasibility of the provision of community-based services and of the need for and feasibility of the provision of aftercare services.

51.35(4m)(b) (b) Assist the patient in applying for any public assistance for which he or she may qualify.

51.35(5) (5) Residential living arrangements; transitionary services. The department and any person, director, or board authorized to discharge or transfer patients under this section shall ensure that a proper residential living arrangement and the necessary transitionary services are available and provided for the patient being discharged or transferred. Under this subsection, a proper residential living arrangement may not include a shelter facility, as defined under s. 16.308 (1) (d), unless the discharge or transfer to the shelter facility is made on an emergency basis for a period not to exceed 10 days.

51.35(6) (6) Veterans.

51.35(6)(a) (a) When the department has notice that any person other than a prisoner is entitled to receive care and treatment in a U.S. department of veterans affairs facility, the person may petition the department of health services for a transfer to such facility, and that department may procure admission to the facility.

51.35(6)(b) (b) If an individual who is committed under s. 51.37 is entitled to receive care and treatment in a U.S. department of veterans affairs facility, the person may petition the department of health services for a transfer to such facility. If the department declines to grant the request, it shall give the person a written reply, stating the reasons for its position. The decision of the department is subject to review by the court which passed sentence or ordered commitment of the person.

51.35(7) (7) Guardianship and protective services. Prior to discharge from any state treatment facility, the department shall review the possible need of a developmentally disabled individual, aged infirm individual, or individual with other like incapacities for protective services or protective placement under ch. 55 after discharge, including the necessity for appointment of a guardian. The department shall petition for guardianship, or for protective services or protective placement for the person if needed. When the department makes a petition for guardianship under this subsection, it shall not be appointed as guardian.

51.35(8) (8) Home visits and leaves authorized.

51.35(8)(a) (a) The department or the county department under s. 51.42 or 51.437 may grant to a patient or resident who is committed to it under this chapter, or who is admitted or transferred under this chapter to a facility under its supervision or operating under a contractual agreement with it, a home visit for up to 15 days, or a leave for employment or education purposes in which the patient or resident is not absent from the facility for more than 15 days.

51.35(8)(b) (b) If a patient or resident who is detained under s. 51.15, committed under s. 51.20 or transferred under sub. (3) does not return to the treatment facility by the time designated in the granting of the home visit or leave, the director of the treatment facility may request the sheriff of the county in which the individual is found to return the individual to the facility. The sheriff shall act in accordance with s. 51.39.

51.35(8)(c) (c) This subsection does not apply to persons transferred from a prison or jail under s. 51.37 (5).

51.35(8)(d) (d) A home visit or leave does not constitute a transfer under this chapter, and does not require a hearing under this section or s. 51.61.

51.35 History History: 1975 c. 430 ss. 18, 81; 1977 c. 26, 29, 428; 1979 c. 110 s. 60 (1); 1981 c. 74 s. 2; 1981 c. 314 s. 144; 1983 a. 27, 441, 474; 1985 a. 29, 176, 332; 1987 a. 366, 403; 1989 a. 31, 56, 107; 1991 a. 39; 1993 a. 451; 1995 a. 27 ss. 3258m, 3259m, 9126 (19); 1995 a. 77, 292; 1997 a. 35; 1999 a. 9; 2001 a. 16 ss. 1967f to 1967j, 4034zi; 2003 a. 33; 2005 a. 22, 264, 344, 387, 444; 2007 a. 20 ss. 1818 to 1819, 9121 (6) (a); 2007 a. 96; 2009 a. 28; 2011 a. 32; 2013 a. 161; 2017 a. 34, 185.

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.