Chapter 51

51.45 Annotation A one-person petition under sub. (12) is sufficient for commitment only until the preliminary hearing; a three-person petition under sub. (13) is required for commitment beyond that time period. State v. B.A.S., 134 Wis. 2d 291, 397 N.W.2d 114 (Ct. App. 1986).

51.45 Annotation Criminal charges of bail jumping based solely on the consumption of alcohol do not violate this section. Sub. (1) is intended only to prevent prosecutions for public drunkenness. State ex rel. Jacobus v. State, 208 Wis. 2d 39, 559 N.W.2d 900 (1997), 94-2995.

51.45 Annotation The requirement under sub. (13) (e) that a person sought to be committed have access to records and reports does not require the county to file the specified records with the trial court prior to a final hearing. County of Dodge v. Michael J.K., 209 Wis. 2d 499, 564 N.W.2d 350 (Ct. App. 1997), 96-2250.

51.45 Annotation Persons incapacitated by alcohol who engage in disorderly conduct in a treatment facility may be so charged, but not merely for the purpose of arranging for their confinement in jail for security during detoxification. 64 Atty. Gen. 161.

51.45 Annotation The Revision of Wisconsin’s Law of Alcoholism and Intoxication. Robb. 58 MLR 87 (1975).

51.46 51.46 Priority for pregnant women for private treatment for alcohol or other drug abuse. For inpatient or outpatient treatment for alcohol or other drug abuse, the first priority for services that are available in privately operated facilities, whether on a voluntary or involuntary basis, is for pregnant women who suffer from alcoholism, alcohol abuse or drug dependency.

51.46 History History: 1997 a. 292.

51.47 51.47 Alcohol and other drug abuse treatment for minors without parental consent.

51.47(1) (1) Except as provided in subs. (2) and (3), any physician or health care facility licensed, approved, or certified by the state for the provision of health services may render preventive, diagnostic, assessment, evaluation, or treatment services for the abuse of alcohol or other drugs to a minor 12 years of age or over without obtaining the consent of or notifying the minor’s parent or guardian and may render those services to a minor under 12 years of age without obtaining the consent of or notifying the minor’s parent or guardian, but only if a parent with legal custody or guardian of the minor under 12 years of age cannot be found or there is no parent with legal custody of the minor under 12 years of age. An assessment under this subsection shall conform to the criteria specified in s. 938.547 (4). Unless consent of the minor’s parent or guardian is required under sub. (2), the physician or health care facility shall obtain the minor’s consent prior to billing a 3rd party for services under this section. If the minor does not consent, the minor shall be solely responsible for paying for the services, which the department shall bill to the minor under s. 46.03 (18) (b).

51.47(2) (2) The physician or health care facility shall obtain the consent of the minor’s parent or guardian:

51.47(2)(a) (a) Before performing any surgical procedure on the minor, unless the procedure is essential to preserve the life or health of the minor and the consent of the minor’s parent or guardian is not readily obtainable.

51.47(2)(b) (b) Before administering any controlled substances to the minor, except to detoxify the minor under par. (c).

51.47(2)(c) (c) Before admitting the minor to an inpatient treatment facility, unless the admission is to detoxify the minor for ingestion of alcohol or other drugs.

51.47(2)(d) (d) If the period of detoxification of the minor under par. (c) extends beyond 72 hours after the minor’s admission as a patient.

51.47(3) (3) The physician or health care facility shall notify the minor’s parent or guardian of any services rendered under this section as soon as practicable.

51.47(4) (4) No physician or health care facility rendering services under sub. (1) is liable solely because of the lack of consent or notification of the minor’s parent or guardian.

51.47 History History: 1979 c. 331; 1985 a. 281; 2001 a. 16.

51.47 Annotation Except for those services for which parental consent is necessary under sub. (2), a physician or health care facility may release outpatient or detoxification services information only with the consent of a minor patient, provided the minor is 12 years of age or over. 77 Atty. Gen. 187.

51.48 51.48 Alcohol and other drug testing, assessment, and treatment of minor without minor’s consent. A minor’s parent or guardian may consent to have the minor tested for the presence of alcohol or other drugs in the minor’s body or to have the minor assessed by an approved treatment facility for the minor’s abuse of alcohol or other drugs according to the criteria specified in s. 938.547 (4). If, based on the assessment, the approved treatment facility determines that the minor is in need of treatment for the abuse of alcohol or other drugs, the approved treatment facility shall recommend a plan of treatment that is appropriate for the minor’s needs and that provides for the least restrictive form of treatment consistent with the minor’s needs. That treatment may consist of outpatient treatment, day treatment, or, if the minor is admitted in accordance with s. 51.13, inpatient treatment. The parent or guardian of the minor may consent to the treatment recommended under this section. Consent of the minor for testing, assessment, or treatment under this section is not required.

51.48 History History: 1999 a. 9; 2001 a. 16.

51.49 51.49 Pretrial intoxicated driver intervention grant program.

51.49(1) (1) In this section:

51.49(1)(a) (a) “Defendant” means a person accused of or charged with a 2nd or subsequent violation of operating while intoxicated.

51.49(1)(b) (b) “Eligible applicant” means a city, village, town, county or private nonprofit organization.

51.49(1)(bg) (bg) “Hazardous inhalant” means a substance that is ingested, inhaled, or otherwise introduced into the human body in a manner that does not comply with any cautionary labeling that is required for the substance under s. 100.37 or under federal law, or in a manner that is not intended by the manufacturer of the substance, and that is intended to induce intoxication or elation, to stupefy the central nervous system, or to change the human audio, visual, or mental processes.

51.49(1)(c) (c) “Intoxicant” means any alcohol beverage, hazardous inhalant, controlled substance, controlled substance analog or other drug, or any combination thereof.

51.49(1)(d) (d) “Operating while intoxicated” means a violation of s. 346.63 (1) or (2m) or a local ordinance in conformity therewith or of s. 346.63 (2) or (6), 940.09 (1) or 940.25.

51.49(2) (2) The department shall administer the pretrial intoxicated driver intervention grant program. The program shall award grants to eligible applicants to administer a local pretrial intoxicated driver intervention program that, prior to the sentencing of a defendant for operating while intoxicated, does all of the following:

51.49(2)(a) (a) Identifies the defendant and notifies him or her of the availability and cost of the program and that, if the defendant is convicted, a court will consider the defendant’s participation in the program when imposing a sentence.

51.49(2)(b) (b) Monitors the defendant’s use of intoxicants to reduce the incidence of abuse.

51.49(2)(c) (c) Treats the defendant’s abuse of intoxicants to reduce the incidence of abuse.

51.49(2)(d) (d) Reports to the court on the defendant’s participation in the program.

51.49(2)(e) (e) Requires program participants to pay a reasonable fee to participate in the program. Such a fee may not exceed 20 percent of the actual per capita cost of the program.

51.49(3) (3) The amount of a grant under this section may not exceed 80 percent of the amount expended by an eligible applicant for services related to the program.

51.49(4) (4) 

51.49(4)(a) (a) Not later than December 31 of each even-numbered year, the department shall submit a report to the legislature under s. 13.172 (2) that states the number of individuals arrested for a 2nd or subsequent offense of operating while intoxicated; the number of individuals who completed a local pretrial intoxicated driver intervention program; the percentage of successful completion of all individuals who commence such a program; the number of individuals who, after completing such a program, are arrested for a 3rd or subsequent offense of operating while intoxicated; and the number of individuals eligible to participate in a program who did not complete a program and who, after becoming eligible to participate in the program, are arrested for a 3rd or subsequent offense of operating while intoxicated.

51.49(4)(b) (b) An eligible applicant who receives a grant under sub. (2) shall, not later than December 31 of the year for which the grant was made, submit a report to the speaker of the assembly and to the president of the senate in the manner described in s. 13.172 (3) summarizing the results of the pretrial intoxicated driver intervention program administered by the eligible applicant and providing any additional information required by the department.

51.49(5) (5) Consent to participate in a local pretrial intoxicated driver intervention program funded under this section is not an admission of guilt and the consent may not be admitted in evidence in a trial for operating while intoxicated. No statement relating to operating while intoxicated, made by the defendant in connection with any discussions concerning the program or to any person involved in the program, is admissible in a trial for operating while intoxicated.

51.49 History History: 1997 a. 27; 1999 a. 9, 185; 2013 a. 83; 2015 a. 55 s. 2595; Stats. 2015 s. 51.49.

51.59 51.59 Incompetency not implied.

51.59(1) (1) No person is deemed incompetent to manage his or her affairs, to contract, to hold professional, occupational or motor vehicle operator’s licenses, to marry or to obtain a divorce, to vote, to make a will or to exercise any other civil right solely by reason of his or her admission to a facility in accordance with this chapter or detention or commitment under this chapter.

51.59(2) (2) This section does not authorize an individual who has been involuntarily committed or detained under this chapter to refuse treatment during such commitment or detention, except as provided under s. 51.61 (1) (g) and (h).

51.59 History History: 1977 c. 428; 1987 a. 366.

51.60 51.60 Appointment of counsel.

51.60(1) (1) Adults.

51.60(1)(a) (a) In any situation under this chapter in which an adult individual has a right to be represented by counsel, the individual shall be referred as soon as practicable to the state public defender, who shall appoint counsel for the individual under s. 977.08 without a determination of indigency.

51.60(1)(b) (b) Except as provided in s. 51.45 (13) (b) 2., par. (a) does not apply if the individual knowingly and voluntarily waives counsel.

51.60(2) (2) Minors. In any situation under this chapter in which a minor has a right to be represented by counsel, counsel for the minor shall be appointed as provided in s. 48.23 (4).

51.60(3) (3) Retained counsel. Notwithstanding subs. (1) and (2), an individual subject to proceedings under this chapter is entitled to retain counsel of his or her own choosing at his or her own expense.

51.60 History History: 2007 a. 20.

51.605 51.605 Reimbursement for counsel provided by the state.

51.605(1) (1) Inquiry. At or after the conclusion of a proceeding under this chapter in which the state public defender has provided counsel for an adult individual, the court may inquire as to the individual’s ability to reimburse the state for the costs of representation. If the court determines that the individual is able to make reimbursement for all or part of the costs of representation, the court may order the individual to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (4). Upon the court’s request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court.

51.605(2) (2) Payment. Reimbursement ordered under this section shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L).

51.605(3) (3) Report. By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under sub. (1) in the previous calendar year and the total amount of reimbursements paid to the clerk under sub. (2) in the previous year.

51.605 History History: 2007 a. 20.

51.61 51.61 Patients rights.

51.61(1) (1) In this section, “patient” means any individual who is receiving services for mental illness, developmental disabilities, alcoholism or drug dependency, including any individual who is admitted to a treatment facility in accordance with this chapter or ch. 48 or 55 or who is detained, committed or placed under this chapter or ch. 48, 55, 971, 975 or 980, or who is transferred to a treatment facility under s. 51.35 (3) or 51.37 or who is receiving care or treatment for those conditions through the department or a county department under s. 51.42 or 51.437 or in a private treatment facility. “Patient” does not include persons committed under ch. 975 who are transferred to or residing in any state prison listed under s. 302.01. In private hospitals and in public general hospitals, “patient” includes any individual who is admitted for the primary purpose of treatment of mental illness, developmental disability, alcoholism or drug abuse but does not include an individual who receives treatment in a hospital emergency room nor an individual who receives treatment on an outpatient basis at those hospitals, unless the individual is otherwise covered under this subsection. Except as provided in sub. (2), each patient shall:

51.61(1)(a) (a) Upon admission or commitment be informed orally and in writing of his or her rights under this section. Copies of this section shall be posted conspicuously in each patient area, and shall be available to the patient’s guardian and immediate family.

51.61(1)(b) (b)

51.61(1)(b)1. 1. Have the right to refuse to perform labor which is of financial benefit to the facility in which the patient is receiving treatment or service. Privileges or release from the facility may not be conditioned upon the performance of any labor which is regulated by this paragraph. Patients may voluntarily engage in therapeutic labor which is of financial benefit to the facility if such labor is compensated in accordance with a plan approved by the department and if:

51.61(1)(b)1.a. a. The specific labor is an integrated part of the patient’s treatment plan approved as a therapeutic activity by the professional staff member responsible for supervising the patient’s treatment;

51.61(1)(b)1.b. b. The labor is supervised by a staff member who is qualified to oversee the therapeutic aspects of the activity;

51.61(1)(b)1.c. c. The patient has given his or her written informed consent to engage in such labor and has been informed that such consent may be withdrawn at any time; and

51.61(1)(b)1.d. d. The labor involved is evaluated for its appropriateness by the staff of the facility at least once every 120 days.

51.61(1)(b)2. 2. Patients may also voluntarily engage in noncompensated therapeutic labor which is of financial benefit to the facility, if the conditions for engaging in compensated labor under this paragraph are met and if:

51.61(1)(b)2.a. a. The facility has attempted to provide compensated labor as a first alternative and all resources for providing compensated labor have been exhausted;

51.61(1)(b)2.b. b. Uncompensated therapeutic labor does not cause layoffs of staff hired by the facility to otherwise perform such labor; and

51.61(1)(b)2.c. c. The patient is not required in any way to perform such labor. Tasks of a personal housekeeping nature are not to be considered compensable labor.

51.61(1)(b)3. 3. Payment to a patient performing labor under this section shall not be applied to costs of treatment without the informed, written consent of such patient. This paragraph does not apply to individuals serving a criminal sentence who are transferred from a state correctional institution under s. 51.37 (5) to a treatment facility.

51.61(1)(cm) (cm) Have the rights specified under subd. 1. to send and receive sealed mail, subject to the limitations specified under subd. 2.

51.61(1)(cm)1. 1. Patients have an unrestricted right to send sealed mail and receive sealed mail to or from legal counsel, the courts, government officials, private physicians, and licensed psychologists, and have reasonable access to letter writing materials including postage stamps. A patient shall also have a right to send sealed mail and receive sealed mail to or from other persons, subject to physical examination in the patient’s presence if there is reason to believe that such communication contains contraband materials or objects that threaten the security of patients, prisoners, or staff. Such reasons shall be written in the individual’s treatment record. The officers and staff of a facility may not read any mail covered by this subdivision.

51.61(1)(cm)2. 2. The rights of a patient detained or committed under ch. 980 to send and receive sealed mail are subject to the following limitations:

51.61(1)(cm)2.a. a. An officer or staff member of the facility at which the patient is placed may delay delivery of the mail to the patient for a reasonable period of time to verify whether the person named as the sender actually sent the mail; may open the mail and inspect it for contraband; or may, if the officer or staff member cannot determine whether the mail contains contraband, return the mail to the sender along with notice of the facility mail policy.

51.61(1)(cm)2.b. b. The director of the facility or his or her designee may, in accordance with the standards and the procedure under sub. (2) for denying a right for cause, authorize a member of the facility treatment staff to read the mail, if the director or his or her designee has reason to believe that the mail could pose a threat to security at the facility or seriously interfere with the treatment, rights, or safety of others.

51.61(1)(d) (d) Except in the case of a person who is committed for alcoholism, have the right to petition the court for review of the commitment order or for withdrawal of the order or release from commitment as provided in s. 51.20 (16).

51.61(1)(e) (e) Except in the case of a patient who is admitted or transferred under s. 51.35 (3) or 51.37 or under ch. 971 or 975, have the right to the least restrictive conditions necessary to achieve the purposes of admission, commitment or protective placement, under programs, services and resources that the county board of supervisors or the Milwaukee County mental health board, as applicable, is reasonably able to provide within the limits of available state and federal funds and of county funds required to be appropriated to match state funds.

51.61(1)(f) (f) Have a right to receive prompt and adequate treatment, rehabilitation and educational services appropriate for his or her condition, under programs, services and resources that the county board of supervisors or the Milwaukee County mental health board, as applicable, is reasonably able to provide within the limits of available state and federal funds and of county funds required to be appropriated to match state funds.

51.61(1)(fm) (fm) Have the right to be informed of his or her treatment and care and to participate in the planning of his or her treatment and care.

51.61(1)(g) (g) Have the following rights, under the following procedures, to refuse medication and treatment:

51.61(1)(g)1. 1. Have the right to refuse all medication and treatment except as ordered by the court under subd. 2., or in a situation in which the medication or treatment is necessary to prevent serious physical harm to the patient or to others. Medication and treatment during this period may be refused on religious grounds only as provided in par. (h).

51.61(1)(g)2. 2. At or after the hearing to determine probable cause for commitment but prior to the final commitment order, other than for a subject individual who is alleged to meet the commitment standard under s. 51.20 (1) (a) 2. e., the court shall, upon the motion of any interested person, and may, upon its own motion, hold a hearing to determine whether there is probable cause to believe that the individual is not competent to refuse medication or treatment and whether the medication or treatment will have therapeutic value and will not unreasonably impair the ability of the individual to prepare for or participate in subsequent legal proceedings. If the court determines that there is probable cause to believe the allegations under this subdivision, the court shall issue an order permitting medication or treatment to be administered to the individual regardless of his or her consent. The order shall apply to the period between the date of the issuance of the order and the date of the final order under s. 51.20 (13), unless the court dismisses the petition for commitment or specifies a shorter period. The hearing under this subdivision shall meet the requirements of s. 51.20 (5), except for the right to a jury trial.

51.61(1)(g)3. 3. Following a final commitment order, other than for a subject individual who is determined to meet the commitment standard under s. 51.20 (1) (a) 2. e., have the right to exercise informed consent with regard to all medication and treatment unless the committing court or the court in the county in which the individual is located, within 10 days after the filing of the motion of any interested person and with notice of the motion to the individual’s counsel, if any, the individual and the applicable counsel under s. 51.20 (4), makes a determination, following a hearing, that the individual is not competent to refuse medication or treatment or unless a situation exists in which the medication or treatment is necessary to prevent serious physical harm to the individual or others. A report, if any, on which the motion is based shall accompany the motion and notice of motion and shall include a statement signed by a licensed physician that asserts that the subject individual needs medication or treatment and that the individual is not competent to refuse medication or treatment, based on an examination of the individual by a licensed physician. The hearing under this subdivision shall meet the requirements of s. 51.20 (5), except for the right to a jury trial. At the request of the subject individual, the individual’s counsel or applicable counsel under s. 51.20 (4), the hearing may be postponed, but in no case may the postponed hearing be held more than 20 days after a motion is filed.

51.61(1)(g)3m. 3m. Following a final commitment order for a subject individual who is determined to meet the commitment standard under s. 51.20 (1) (a) 2. e., the court shall issue an order permitting medication or treatment to be administered to the individual regardless of his or her consent.

51.61(1)(g)4. 4. For purposes of a determination under subd. 2. or 3., an individual is not competent to refuse medication or treatment if, because of mental illness, developmental disability, alcoholism or drug dependence, and after the advantages and disadvantages of and alternatives to accepting the particular medication or treatment have been explained to the individual, one of the following is true:

51.61(1)(g)4.a. a. The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.

51.61(1)(g)4.b. b. The individual is substantially incapable of applying an understanding of the advantages, disadvantages and alternatives to his or her mental illness, developmental disability, alcoholism or drug dependence in order to make an informed choice as to whether to accept or refuse medication or treatment.

51.61(1)(h) (h) Have a right to be free from unnecessary or excessive medication at any time. No medication may be administered to a patient except at the written order of a physician. The attending physician is responsible for all medication which is administered to a patient. A record of the medication which is administered to each patient shall be kept in his or her medical records. Medication may not be used as punishment, for the convenience of staff, as a substitute for a treatment program, or in quantities that interfere with a patient’s treatment program. Except when medication or medical treatment has been ordered by the court under par. (g) or is necessary to prevent serious physical harm to others as evidenced by a recent overt act, attempt or threat to do such harm, a patient may refuse medications and medical treatment if the patient is a member of a recognized religious organization and the religious tenets of such organization prohibit such medications and treatment. The individual shall be informed of this right prior to administration of medications or treatment whenever the patient’s condition so permits.

51.61(1)(i) (i)

51.61(1)(i)1. 1. Except as provided in subd. 2., have a right to be free from physical restraint and isolation except for emergency situations or when isolation or restraint is a part of a treatment program. Isolation or restraint may be used only when less restrictive measures are ineffective or not feasible and shall be used for the shortest time possible. When a patient is placed in isolation or restraint, his or her status shall be reviewed once every 30 minutes. Each facility shall have a written policy covering the use of restraint or isolation that ensures that the dignity of the individual is protected, that the safety of the individual is ensured, and that there is regular, frequent monitoring by trained staff to care for bodily needs as may be required. Isolation or restraint may be used for emergency situations only when it is likely that the patient may physically harm himself or herself or others. The treatment director shall specifically designate physicians who are authorized to order isolation or restraint, and shall specifically designate licensed psychologists who are authorized to order isolation. If the treatment director is not a physician, the medical director shall make the designation. In the case of a center for the developmentally disabled, use shall be authorized by the director of the center. The authorization for emergency use of isolation or restraint shall be in writing, except that isolation or restraint may be authorized in emergencies for not more than one hour, after which time an appropriate order in writing shall be obtained from the physician or licensed psychologist designated by the director, in the case of isolation, or the physician so designated in the case of restraint. Emergency isolation or restraint may not be continued for more than 24 hours without a new written order. Isolation may be used as part of a treatment program if it is part of a written treatment plan, and the rights specified in this subsection are provided to the patient. The use of isolation as a part of a treatment plan shall be explained to the patient and to his or her guardian, if any, by the person who provides the treatment. A treatment plan that incorporates isolation shall be evaluated at least once every 2 weeks. Patients who have a recent history of physical aggression may be restrained during transport to or from the facility. Persons who are committed or transferred under s. 51.35 (3) or 51.37 or under ch. 971 or 975, or who are detained or committed under ch. 980, and who, while under this status, are transferred to a hospital, as defined in s. 50.33 (2), for medical care may be isolated for security reasons within locked facilities in the hospital. Patients who are committed or transferred under s. 51.35 (3) or 51.37 or under ch. 971 or 975, or who are detained or committed under ch. 980, may be restrained for security reasons during transport to or from the facility.