Chapter 51

51.61(1)(k) (k) Have a right not to be subjected to treatment procedures such as psychosurgery, or other drastic treatment procedures without the express and informed consent of the patient after consultation with his or her counsel and legal guardian, if any. Express and informed consent of the patient after consultation with the patient’s counsel and legal guardian, if any, is required for the use of electroconvulsive treatment.

51.61(1)(L) (L) Have the right to religious worship within the facility if the patient desires such an opportunity and a member of the clergy of the patient’s religious denomination or society is available to the facility. The provisions for such worship shall be available to all patients on a nondiscriminatory basis. No individual may be coerced into engaging in any religious activities.

51.61(1)(m) (m) Have a right to a humane psychological and physical environment within the hospital facilities. These facilities shall be designed to afford patients with comfort and safety, to promote dignity and ensure privacy. Facilities shall also be designed to make a positive contribution to the effective attainment of the treatment goals of the hospital.

51.61(1)(n) (n) Have the right to confidentiality of all treatment records, have the right to inspect and copy such records, and have the right to challenge the accuracy, completeness, timeliness or relevance of information relating to the individual in such records, as provided in s. 51.30.

51.61(1)(o) (o) Except as otherwise provided, have a right not to be filmed or taped, unless the patient signs an informed and voluntary consent that specifically authorizes a named individual or group to film or tape the patient for a particular purpose or project during a specified time period. The patient may specify in the consent periods during which, or situations in which, the patient may not be filmed or taped. If a patient is adjudicated incompetent, the consent shall be granted on behalf of the patient by the patient’s guardian. A patient in Goodland Hall at the Mendota Mental Health Institute, a patient detained or committed under ch. 980, or a patient who is in the legal custody of or under the supervision of the department of corrections, may be subject to video surveillance or filmed or taped without the patient’s consent, except that such a patient may not be filmed in patient bedrooms or bathrooms without the patient’s consent unless the patient is engaged in dangerous or disruptive behavior. A treatment activity involving a patient committed or detained under ch. 980 may be filmed or taped if the purpose of the recording is to assess the quality of the treatment activity or to facilitate clinical supervision of the staff involved in the treatment activity.

51.61(1)(p) (p) Have reasonable access to a telephone to make and receive telephone calls within reasonable limits.

51.61(1)(q) (q) Be permitted to use and wear his or her own clothing and personal articles, or be furnished with an adequate allowance of clothes if none are available. Provision shall be made to launder the patient’s clothing.

51.61(1)(r) (r) Be provided access to a reasonable amount of individual secure storage space for his or her own private use.

51.61(1)(s) (s) Have reasonable protection of privacy in such matters as toileting and bathing.

51.61(1)(t) (t) Be permitted to see visitors each day.

51.61(1)(u) (u) Have the right to present grievances under the procedures established under sub. (5) on his or her own behalf or that of others to the staff or administrator of the treatment facility or community mental health program without justifiable fear of reprisal and to communicate, subject to par. (p), with public officials or with any other person without justifiable fear of reprisal.

51.61(1)(v) (v) Have the right to use his or her money as he or she chooses, except to the extent that authority over the money is held by another, including the parent of a minor, a court-appointed guardian of the patient’s estate or a representative payee. If a treatment facility or community mental health program so approves, a patient or his or her guardian may authorize in writing the deposit of money in the patient’s name with the facility or program. Any earnings attributable to the money accrue to the patient. The treatment facility or community mental health program shall maintain a separate accounting of the deposited money of each patient. The patient or his or her guardian shall receive, upon written request by the patient or guardian, a written monthly account of any financial transactions made by the treatment facility or community mental health program with respect to the patient’s money. If a patient is discharged from a treatment facility or community mental health program, all of the patient’s money, including any attributable accrued earnings, shall be returned to the patient. No treatment facility or community mental health program or employee of such a facility or program may act as representative payee for a patient for social security, pension, annuity or trust fund payments or other direct payments or monetary assistance unless the patient or his or her guardian has given informed written consent to do so or unless a representative payee who is acceptable to the patient or his or her guardian and the payer cannot be identified. A community mental health program or treatment facility shall give money of the patient to him or her upon request, subject to any limitations imposed by guardianship or representative payeeship, except that an inpatient facility may, as a part of its security procedures, limit the amount of currency that is held by a patient and may establish reasonable policies governing patient account transactions.

51.61(1)(w) (w)

51.61(1)(w)1. 1. Have the right to be informed in writing, before, upon or at a reasonable time after admission, of any liability that the patient or any of the patient’s relatives may have for the cost of the patient’s care and treatment and of the right to receive information about charges for care and treatment services.

51.61(1)(w)2. 2. If the patient is a minor, if the patient’s parents may be liable for the cost of the patient’s care and treatment and if the patient’s parents can be located with reasonable effort, the treatment facility or community mental health program shall notify the patient’s parents of any liability that the parents may have for the cost of the patient’s care and treatment and of their right to receive information under subd. 3., except that a minor patient’s parents may not be notified under this subdivision if the minor patient is receiving care under s. 51.47 without the consent of the minor patient’s parent or guardian.

51.61(1)(w)3. 3. A patient, a patient’s relative who may be liable for the cost of the patient’s care and treatment, or a patient’s guardian may request information about charges for care and treatment services at the treatment facility or community mental health program. If a treatment facility or community mental health program receives such a request, the treatment facility or community mental health program shall promptly provide to the individual making the request written information about the treatment facility’s or community mental health program’s charges for care and treatment services. Unless the request is made by the patient, the guardian of a patient adjudicated incompetent in this state, the parent or guardian of a minor who has access to the minor’s treatment records under s. 51.30 (5) (b) 1., or a person designated by the patient’s informed written consent under s. 51.30 (4) (a) as a person to whom information may be disclosed, information released under this subdivision is limited to general information about the treatment facility’s or community mental health program’s charges for care and treatment services and may not include information which may not be disclosed under s. 51.30.

51.61(1)(x) (x) Have the right to be treated with respect and recognition of the patient’s dignity and individuality by all employees of the treatment facility or community mental health program and by licensed, certified, registered or permitted providers of health care with whom the patient comes in contact.

51.61(1)(y) (y) Have the right, if provided services by a licensed mental health professional who is not affiliated with a county department or treatment facility, to be notified by the professional in writing of the grievance resolution procedure option that the professional makes available to the patient, as required under s. 457.04 (8).

51.61(1)(z) (z) In the case of a patient committed under ch. 980, have the right to have a county department submit a report under s. 980.08 (4) (dm) within the time frame specified under that paragraph.

51.61(2) (2) A patient’s rights guaranteed under sub. (1) (p) to (t) may be denied for cause after review by the director of the facility, and may be denied when medically or therapeutically contraindicated as documented by the patient’s physician, licensed psychologist, or licensed mental health professional in the patient’s treatment record. The individual shall be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right in an informal hearing before the director of the facility or his or her designee. There shall be documentation of the grounds for withdrawal of rights in the patient’s treatment record. After an informal hearing is held, a patient or his or her representative may petition for review of the denial of any right under this subsection through the use of the grievance procedure provided in sub. (5) or, for review of the denial of a right by a licensed mental health professional who is not affiliated with a county department or treatment facility, through the use of one of the grievance resolution procedure options required under s. 457.04 (8). Alternatively, or in addition to the use of the appropriate grievance procedure, a patient or his or her representative may bring an action under sub. (7).

51.61(3) (3) The rights accorded to patients under this section apply to patients receiving services in outpatient and day-service treatment facilities, as well as community mental health programs, insofar as applicable.

51.61(4) (4) 

51.61(4)(a) (a) Each facility which conducts research upon human subjects shall establish a research and human rights committee consisting of not less than 5 persons with varying backgrounds to assure complete and adequate review of research activities commonly conducted by the facility. The committee shall be sufficiently qualified through the maturity, experience and expertise of its members and diversity of its membership to ensure respect for its advice and counsel for safeguarding the rights and welfare of human subjects. In addition to possessing the professional competence necessary to review specific activities, the committee shall be able to ascertain the acceptability of proposals in terms of commitments of the facility and federal regulations, applicable law, standards of professional conduct and practice, and community attitudes.

51.61(4)(b) (b) No member of a committee may be directly involved in the research activity or involved in either the initial or continuing review of an activity in which he or she has a conflicting interest, except to provide information requested by the committee.

51.61(4)(c) (c) No committee may consist entirely of persons who are officers, employees or agents of or are otherwise associated with the facility, apart from their membership on the committee.

51.61(4)(d) (d) No committee may consist entirely of members of a single professional group.

51.61(4)(e) (e) A majority of the membership of the committee constitutes a quorum to do business.

51.61(5) (5) 

51.61(5)(a) (a) The department shall establish procedures to assure protection of patients’ rights guaranteed under this chapter, and shall, except for the grievance procedures of the Mendota and Winnebago mental health institutes and the state centers for the developmentally disabled, implement a grievance procedure which complies with par. (b) to assure that rights of patients under this chapter are protected and enforced by the department, by service providers and by county departments under ss. 51.42 and 51.437. The procedures established by the department under this subsection apply to patients in private hospitals or public general hospitals.

51.61(5)(b) (b) The department shall promulgate rules that establish standards for the grievance procedure used as specified in par. (a) by the department, county departments under ss. 51.42 and 51.437 and service providers. The standards shall include all of the following components:

51.61(5)(b)1. 1. Written policies and procedures regarding the uses and operation of the grievance system.

51.61(5)(b)2. 2. A requirement that a person, who is the contact for initiating and processing grievances, be identified within the department and in each county department under ss. 51.42 and 51.437 and be specified by each service provider.

51.61(5)(b)3. 3. An informal process for resolving grievances.

51.61(5)(b)4. 4. A formal process for resolving grievances, in cases where the informal process fails to resolve grievances to the patient’s satisfaction.

51.61(5)(b)5. 5. A process for notification of all patients of the grievance process.

51.61(5)(b)6. 6. Time limits for responses to emergency and nonemergency grievances, as well as time limits for deciding appeals.

51.61(5)(b)7. 7. A process which patients may use to appeal unfavorable decisions within the department or county department under s. 51.42 or 51.437 or through the service provider.

51.61(5)(b)8. 8. A process which may be used to appeal final decisions under subd. 7. of the department, county department under s. 51.42 or 51.437 or service provider to the department of health services.

51.61(5)(b)9. 9. Protections against the application of sanctions against any complainant or any person, including an employee of the department, county department under s. 51.42 or 51.437 or service provider who assists a complainant in filing a grievance.

51.61(5)(c) (c) Each county department of community programs shall attach a statement to an application for recertification of its community mental health programs or treatment facilities that are operated by or under contract with the county. The statement shall indicate if any complaints or allegations of violations of rights established under this section were made during the certification period immediately before the period of recertification that is requested and shall summarize any complaints or allegations made. The statement shall contain the date of the complaint or allegation, the disposition of the matter and the date of disposition. The department shall consider the statement in reviewing the application for recertification.

51.61(5)(d) (d) No person may intentionally retaliate or discriminate against any patient or employee for contacting or providing information to any official or to an employee of any state protection and advocacy agency, or for initiating, participating in, or testifying in a grievance procedure or in an action for any remedy authorized under this section. Whoever violates this paragraph may be fined not more than $1,000 or imprisoned for not more than 6 months or both.

51.61(5)(e) (e) A licensed mental health professional who is not affiliated with a county department or treatment facility shall notify in writing each patient to whom the professional provides services of the procedure to follow to resolve a grievance. The notice shall provide an option that the professional makes available to the patient, as required under s. 457.04 (8). Paragraphs (a) and (b) do not apply to this paragraph.

51.61(6) (6) Subject to the rights of patients provided under this chapter, the department, county departments under s. 51.42 or 51.437, and any agency providing services under an agreement with the department or those county departments have the right to use customary and usual treatment techniques and procedures in a reasonable and appropriate manner in the treatment of patients who are receiving services under the mental health system, for the purpose of ameliorating the conditions for which the patients were admitted to the system. The written, informed consent of any patient shall first be obtained, unless the person has been found not competent to refuse medication and treatment under sub. (1) (g) or the person is a minor 14 years of age or older who is receiving services for alcoholism or drug abuse or a minor under 14 years of age who is receiving services for mental illness, developmental disability, alcoholism, or drug abuse. In the case of such a minor, the written, informed consent of the parent or guardian is required, except as provided under an order issued under s. 51.13 (1) (c) or 51.14 (3) (h) or (4) (g), or as provided in s. 51.138 or 51.47. Except as provided in s. 51.138, if the minor is 14 years of age or older and is receiving services for mental illness or developmental disability, the written, informed consent of the minor and the minor’s parent or guardian is required, except that a refusal of either such a minor 14 years of age or older or the minor’s parent or guardian to provide written, informed consent for admission or transfer to an approved inpatient treatment facility is reviewable under s. 51.13 (1) (c), (3), or (4), or 51.35 (3) (b), and a refusal of either a minor 14 years of age or older or the minor’s parent or guardian to provide written, informed consent for outpatient mental health treatment is reviewable under s. 51.14.

51.61(7) (7) 

51.61(7)(a) (a) Any patient whose rights are protected under this section who suffers damage as the result of the unlawful denial or violation of any of these rights may bring an action against the person, including the state or any political subdivision thereof, which unlawfully denies or violates the right in question. The individual may recover any damages as may be proved, together with exemplary damages of not less than $100 for each violation and such costs and reasonable actual attorney fees as may be incurred.

51.61(7)(b) (b) Any patient whose rights are protected under this section may bring an action against any person, including the state or any political subdivision thereof, which willfully, knowingly and unlawfully denies or violates any of his or her rights protected under this section. The patient may recover such damages as may be proved together with exemplary damages of not less than $500 nor more than $1,000 for each violation, together with costs and reasonable actual attorney fees. It is not a prerequisite to an action under this paragraph that the plaintiff suffer or be threatened with actual damages.

51.61(7)(c) (c) Any patient whose rights are protected under this section may bring an action to enjoin the unlawful violation or denial of rights under this section and may in the same action seek damages as provided in this section. The individual may also recover costs and reasonable actual attorney fees if he or she prevails.

51.61(7)(d) (d) Use of the grievance procedure established under sub. (5) is not a prerequisite to bringing an action under this subsection.

51.61(7m) (7m) Whoever intentionally deprives a patient of the ability to seek redress for the alleged violation of his or her rights under this section by unreasonably precluding the patient from doing any of the following may be fined not more than $1,000 or imprisoned for not more than 6 months or both:

51.61(7m)(a) (a) Using the grievance procedure specified in sub. (5).

51.61(7m)(b) (b) Communicating, subject to sub. (1) (p), with a court, government official or staff member of the protection and advocacy agency that is designated under s. 51.62 or with legal counsel.

51.61(8) (8) Any informed consent which is required under sub. (1) (a) to (i) may be exercised by the patient’s legal guardian if the patient has been adjudicated incompetent and the guardian is so empowered, or by the parent of the patient if the patient is a minor.

51.61(9) (9) Except for grievance resolution procedure options specified under s. 457.04 (8) (a), (b), and (c), the department shall promulgate rules to implement this section.

51.61(10) (10) No person who, in good faith, files a report with the appropriate examining board concerning the violation of rights under this section by persons licensed, certified, registered or permitted under ch. 441, 446, 450, 455 or 456, or who participates in an investigation of an allegation by the appropriate examining board, is liable for civil damages for the filing or participation.

51.61 History History: 1975 c. 430; 1977 c. 428 ss. 96 to 109, 115; 1981 c. 20; 1981 c. 314 s. 144; 1983 a. 189 s. 329 (5); 1983 a. 293, 357, 538; 1985 a. 176; 1987 a. 366, 367, 403; 1989 a. 31; 1993 a. 184, 445, 479; 1995 a. 27 s. 9126 (19); 1995 a. 92, 268, 292; 1997 a. 292; 2001 a. 16 ss. 1993j to 1993w, 4034zk, 4034zl; 2001 a. 104; 2005 a. 387, 434, 444; 2007 a. 20 s. 9121 (6) (a); 2007 a. 97; 2009 a. 28; 2011 a. 32; 2013 a. 161, 203; 2017 a. 184, 204; 2021 a. 240 s. 30.

51.61 Cross-reference Cross-reference: See also ch. DHS 94, Wis. adm. code.

51.61 Annotation A patient in a state facility can recover fees under sub. (7) (c) from the county. J.S. v. State, 144 Wis. 2d 670, 425 N.W.2d 15 (Ct. App. 1988).

51.61 Annotation The court may order an agency to do planning and the implementation work necessary to fulfill the obligation to order placement conforming to sub. (1) (e) and s. 55.06 (9) (a). Fond du Lac County v. J.G.S., 159 Wis. 2d 685, 465 N.W.2d 227 (Ct. App. 1990).

51.61 Annotation A nurse’s decision to take a mental health patient on a recreational walk is not treatment under sub. (1) (f), and no cause of action was created under this section for injuries incurred when the patient fell. Erbstoeszer v. American Casualty Co., 169 Wis. 2d 637, 486 N.W.2d 549 (Ct. App. 1992).

51.61 Annotation Sub. (1) (g) 4. is not merely illustrative; it establishes the only standard by which a court may determine whether a patient is competent to refuse psychotropic medication. Discussing factors to be considered in determining whether this competency standard is met. Virgil D. v. Rock County, 189 Wis. 2d 1, 524 N.W.2d 894 (1994).

51.61 Annotation Sub. (1) (k) is unconstitutionally overbroad because it prevents all patients unable to give “express and informed” consent from receiving electroconvulsive treatment under any circumstances, even when the treatment may be life saving. Professional Guardianships, Inc. v. Ruth E.J., 196 Wis. 2d 794, 540 N.W.2d 213 (Ct. App. 1995), 95-2010.

51.61 Annotation Court commissioners have the authority to conduct hearings under sub. (1) (g). Carol J.R. v. County of Milwaukee, 196 Wis. 2d 882, 540 N.W.2d 233 (Ct. App. 1995), 94-0688.

51.61 Annotation In an action for negligence and malpractice, when a provider’s treatment techniques or deficiencies were part and parcel of the plaintiff’s claim, it was appropriate to award costs and attorney fees under sub. (7) (a). Wright v. Mercy Hospital of Janesville, Wisconsin, Inc., 206 Wis. 2d 449, 557 N.W.2d 846 (Ct. App. 1996), 95-2289.

51.61 Annotation Sub. (7) contemplates two separate and distinct causes of action. Sub. (7) (a) applies when the denial of a patient’s rights have caused actual damages. Sub. (7) (b) does not require damages, but allows recovery if the patient’s rights were violated willfully, knowingly, and unlawfully. Schaidler v. Mercy Medical Center of Oshkosh, Inc., 209 Wis. 2d 457, 563 N.W.2d 554 (Ct. App. 1997), 96-0645.

51.61 Annotation This section and ch. 980 provide the statutory basis for a court to issue an involuntary medication order for individuals who suffer from a chronic mental illness and are committed under ch. 980. State v. Anthony D.B., 2000 WI 94, 237 Wis. 2d 1, 614 N.W.2d 435, 98-0576.

51.61 Annotation Involuntarily committed persons are entitled to more considerate treatment and conditions of confinement than criminals, but their rights are not absolute. A restriction of rights must be reasonably related to legitimate therapeutic and institutional interests. West v. Macht, 2000 WI App 134, 237 Wis. 2d 265, 614 N.W.2d 34, 99-1710.

51.61 Annotation Sub. (1) (i) grants broad discretionary power to the Department of Health and Family Services sufficient to permit its treatment facilities to transport ch. 980 patients in restraints for security reasons. Nothing requires treatment facilities to exercise discretion for each individual patient rather than on the basis of its experience with ch. 980 patients as a group and the individualized prior finding of sexual dangerousness that each ch. 980 patient has had made. Thielman v. Leean, 2003 WI App 33, 260 Wis. 2d 253, 659 N.W.2d 73, 02-0888.

51.61 Annotation A “patient” under sub. (1) includes a person receiving services for developmental disabilities. Under s. 51.437, sheltered employment is one of those services. Sheltered employment did not constitute rehabilitation, and thus the patient’s place of sheltered employment was not a treatment facility and the sheltered employee could not bring a sub. (1) (x) claim. That assaults occurred in a restroom did not mean his right to privacy in the restroom under sub. (1) (s) was violated. Sheltered employment may include educational programs, and the patient’s complaint stated a claim that the assaults deprived him of his right to prompt and adequate educational services under sub. (1) (f). St. Paul Fire & Marine Insurance Co. v. Keltgen, 2003 WI App 53, 260 Wis. 2d 523, 659 N.W.2d 906, 02-1249.

51.61 Annotation The exclusive remedy provision of the worker’s compensation act, s. 102.03, does not bar a claim under this section when the injuries result from the same set of facts. An entity that acted as both sheltered employer and developmentally disabled service provider did not possess a dual persona, allowing both worker’s compensation recovery and tort recovery for the same act. St. Paul Fire & Marine Insurance Co. v. Keltgen, 2003 WI App 53, 260 Wis. 2d 523, 659 N.W.2d 906, 02-1249.

51.61 Annotation The injured patients and families compensation fund under ch. 655 is not a person “who violates the right in question,” as this section requires. The fund does not provide any treatment and could never violate any of the rights proscribed in this section. As a result, there is no basis to conclude that it is subject to costs and reasonable actual attorney fees. Hess v. Fernandez, 2005 WI 19, 278 Wis. 2d 283, 692 N.W.2d 655, 03-0327.

51.61 Annotation Patients civilly committed under ch. 980 are not employees under federal or Wisconsin minimum wage law. State ex rel. Tran v. Speech, 2010 WI App 58, 324 Wis. 2d 567; 782 N.W.2d 107, 09-0884.

51.61 Annotation Under sub. (1) (g) 4. b., the county petitioner may prove by clear and convincing evidence that the individual is substantially incapable of applying the understanding the individual has of the advantages and disadvantages of the medication, and the alternatives, to the individual’s mental illness in order to make an informed choice as to whether to accept or refuse the medication. Medical experts must apply the standards set out in the competency statute. An expert’s use of different language to explain the expert’s conclusions should be linked back to the standards in the statute. Outagamie County v. Melanie L., 2013 WI 67, 349 Wis. 2d 148, 833 N.W.2d 607, 12-0099.

51.61 Annotation Sub. (1) (g) 3. is facially unconstitutional for any inmate who is involuntarily committed under s. 51.20 (1) (ar), which does not require a determination of dangerousness, when the inmate is involuntarily medicated based merely on a determination of incompetence to refuse medication. Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875, 16-1982.

51.61 Annotation Sub. (1) (g) 4. requires that the advantages and disadvantages of and alternatives to accepting a particular medication or treatment must be explained to a patient who is subject to an involuntary medication order. In this case, the county met its burden to prove that the patient was not competent to refuse medication or treatment under sub. (1) (g) 4. when the patient, by the patient’s own express conduct, refused to engage with the examining psychiatrist to receive the full, required explanations. The patient could not later assert that the patient’s efforts to avoid the medication discussion should defeat the medication order. Outagamie County v. L.X.D.-O., 2023 WI App 17, 407 Wis. 2d 441, 991 N.W.2d 518, 20-1806.

51.61 Annotation Nonconsensual drug therapy did not violate due process. Stensvad v. Reivitz, 601 F. Supp. 128 (1985).

51.61 Annotation Sub. (1) (e) and (i) does not restrict the discretion of institution administrators to restrain patients during transport. Thielman v. Leean, 140 F. Supp. 2d 982 (2001).

51.61 Annotation Affirmed. 282 F.3d 478 (2002).

51.62 51.62 Protection and advocacy system.

51.62(1) (1) Definitions. In this section:

51.62(1)(ag) (ag) “Abuse” has the meaning given in s. 46.90 (1) (a).

51.62(1)(am) (am) “Developmental disability” means a severe, chronic disability of a person that is characterized by all of the following:

51.62(1)(am)1. 1. Is attributable to a mental or physical impairment or a combination of a mental and a physical impairment.

51.62(1)(am)2. 2. Is manifested before the person has attained the age of 22.

51.62(1)(am)3. 3. Is likely to continue indefinitely.

51.62(1)(am)4. 4. Results in substantial functional limitation in at least 3 of the following areas of major life activity:

51.62(1)(am)4.a. a. Self-care.

51.62(1)(am)4.b. b. Receptive and expressive language.

51.62(1)(am)4.c. c. Learning.

51.62(1)(am)4.d. d. Mobility.