Chapter 51

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.

51.62(1)(am)4.e. e. Self-direction.

51.62(1)(am)4.f. f. Capacity for independent living.

51.62(1)(am)4.g. g. Economic self-sufficiency.

51.62(1)(am)5. 5. Requires a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of lifelong or extended duration and are individually planned and coordinated.

51.62(1)(ar) (ar) “Financial exploitation” has the meaning given in s. 46.90 (1) (ed).

51.62(1)(b) (b) “Inpatient health care facility” has the meaning provided under s. 50.135 (1), except that it does include community-based residential facilities as defined under s. 50.01 (1g).

51.62(1)(bm) (bm) “Mental illness” means mental disease to such extent that a person so afflicted requires care and treatment for his or her welfare, or the welfare of others, or of the community and is an inpatient or resident in a facility rendering care or treatment or has been discharged from the facility for not more than 90 days.

51.62(1)(br) (br) “Neglect” has the meaning given in s. 46.90 (1) (f).

51.62(1)(c) (c) “Protection and advocacy agency” means an entity designated by the governor to implement a system to protect and advocate the rights of persons with developmental disabilities, as authorized under 42 USC 6012 or mental illness, as authorized under 42 USC 10801 to 10851.

51.62(2) (2) Designation.

51.62(2)(a) (a) The governor shall designate as the protection and advocacy agency a private, nonprofit corporation that is independent of all of the following:

51.62(2)(a)1. 1. A state agency.

51.62(2)(a)2. 2. The board for people with developmental disabilities and the council on mental health.

51.62(2)(a)3. 3. An agency that provides treatment, services or habilitation to persons with developmental disabilities or mental illness.

51.62(2)(b) (b) After the governor has designated a protection and advocacy agency under par. (a), the protection and advocacy agency so designated shall continue in that capacity unless and until the governor redesignates the protection and advocacy agency to another private, nonprofit corporation that meets the requirements of par. (a). The governor may redesignate this private, nonprofit corporation the protection and advocacy agency only if all of the following conditions are met:

51.62(2)(b)1. 1. Good cause exists for the redesignation.

51.62(2)(b)2. 2. Prior notice and an opportunity to comment on a proposed redesignation has been given to all of the following:

51.62(2)(b)2.a. a. The board for people with developmental disabilities and the council on mental health.

51.62(2)(b)2.b. b. Major organizations, in the state, of persons with developmental disabilities or mental illness and families and representatives of these persons.

51.62(2)(c) (c) If the governor has designated a protection and advocacy agency before July 20, 1985, that entity shall continue in that capacity unless and until the governor redesignates the protection and advocacy agency to another private, nonprofit corporation that meets the requirements of par. (a).

51.62(3) (3) Agency powers and duties.

51.62(3)(a) (a) The protection and advocacy agency may:

51.62(3)(a)1. 1. Pursue legal, administrative and other appropriate remedies to ensure the protection of the rights of persons with developmental disabilities or mental illness and to provide information on and referral to programs and services addressing the needs of persons with developmental disabilities or mental illness.

51.62(3)(a)2. 2. Have access to records as specified under ss. 51.30 (4) (b) 18. and 146.82 (2) (a) 9.

51.62(3)(a)2m. 2m. Have immediate access to any individual with mental illness or developmental disability, regardless of age, who has requested services or on whose behalf services have been requested from the protection and advocacy agency or concerning whom the protection and advocacy agency has reasonable cause to believe that abuse, neglect, financial exploitation, or a violation of rights of the individual has occurred.

51.62(3)(a)3. 3. Contract with a private, nonprofit corporation to confer to that corporation the powers and duties specified for the protection and advocacy agency under this subsection, except that the corporation may have access to records as specified under ss. 51.30 (4) (b) 18. and 146.82 (2) (a) 9. only if all of the following conditions are met:

51.62(3)(a)3.a. a. The contract of the corporation with the protection and advocacy agency so provides.

51.62(3)(a)3.b. b. The department has approved the access.

51.62(3)(b) (b) The protection and advocacy agency shall pay reasonable costs related to the reproducing or copying of patient health care or treatment records.

51.62(3m) (3m) Funding. From the appropriation under s. 20.435 (7) (md), the department shall distribute $75,000 in each fiscal year to the protection and advocacy agency for performance of community mental health protection and advocacy services.

51.62(4) (4) Departmental duties. The department shall provide the protection and advocacy agency with copies of annual surveys and plans of correction for intermediate care facilities for persons with an intellectual disability on or before the first day of the 2nd month commencing after completion of the survey or plan.

51.62 History History: 1985 a. 29; 1987 a. 161 s. 13m; 1987 a. 399; 1989 a. 31; 1993 a. 27; 1995 a. 27, 169; 1997 a. 27, 35; 2005 a. 388; 2007 a. 20, 153; 2009 a. 180; 2011 a. 126.

51.62 Annotation The Wisconsin statutory scheme does not give an agency express authority to investigate incidents of abuse and neglect or to obtain patient records, but under federal law any state system established to protect the rights of persons with developmental disabilities has that authority. Wisconsin Coalition for Advocacy, Inc. v. Czaplewski, 131 F. Supp. 2d 1039 (2001).

51.63 51.63 Private pay for patients. Any person may pay, in whole or in part, for the maintenance and clothing of any mentally ill, developmentally disabled, alcoholic or drug dependent person at any institution for the treatment of persons so afflicted, and his or her account shall be credited with the sums paid. The person may also be likewise provided with such special care in addition to those services usually provided by the institution as is agreed upon with the director, upon payment of the charges therefor.

51.63 History History: 1975 c. 430.

51.64 51.64 Reports of death required; penalty; assessment.

51.64(1) (1) In this section:

51.64(1)(a) (a) “Physical restraint” includes all of the following:

51.64(1)(a)1. 1. A locked room.

51.64(1)(a)2. 2. A device or garment that interferes with an individual’s freedom of movement and that the individual is unable to remove easily.

51.64(1)(a)3. 3. Restraint by a treatment facility staff member of a person admitted or committed to the treatment facility, by use of physical force.

51.64(1)(b) (b) “Psychotropic medication” means an antipsychotic, antidepressant, lithium carbonate or a tranquilizer.

51.64(2) (2) 

51.64(2)(a) (a) No later than 24 hours after the death of a person admitted or committed to a treatment facility, the treatment facility shall report the death to the department if one of the following applies:

51.64(2)(a)1. 1. There is reasonable cause to believe that the death was related to the use of physical restraint or a psychotropic medication.

51.64(2)(a)3. 3. There is reasonable cause to believe that the death was a suicide.

51.64 History History: 1989 a. 336.

51.65 51.65 Segregation of tuberculosis patients. The department shall make provision for the segregation of tuberculosis patients in the state-operated and community-operated facilities, and for that purpose may set apart facilities and equip facilities for the care and treatment of such patients.

51.65 History History: 1975 c. 430.

51.67 51.67 Alternate procedure; protective services. If, after a hearing under s. 51.13 (4) or 51.20, the court finds that commitment under this chapter is not warranted and that the subject individual is a fit subject for guardianship and protective placement or services, the court may, without further notice, appoint a temporary guardian for the subject individual and order temporary protective placement or services under ch. 55 for a period not to exceed 30 days. Temporary protective placement for an individual in a center for the developmentally disabled is subject to s. 51.06 (3). Any interested party may then file a petition for permanent guardianship or protective placement or services, including medication, under ch. 55. If the individual is in a treatment facility, the individual may remain in the facility during the period of temporary protective placement if no other appropriate facility is available. The court may order psychotropic medication as a temporary protective service under this section if it finds that there is probable cause to believe the individual is not competent to refuse psychotropic medication and that the medication ordered will have therapeutic value and will not unreasonably impair the ability of the individual to prepare for and participate in subsequent legal proceedings. An individual is not competent to refuse psychotropic medication if, because of serious and persistent mental illness, and after the advantages and disadvantages of and alternatives to accepting the particular psychotropic medication have been explained to the individual, one of the following is true: