2023 Wisconsin Statutes & Annotations › Chapter 51 - State alcohol, drug abuse, developmental disabilities and mental health act. › 51.61 - Patients rights.

51.61
Patients rights.
(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:
(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.
(b)
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:
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;
b.
The labor is supervised by a staff member who is qualified to oversee the therapeutic aspects of the activity;
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
d.
The labor involved is evaluated for its appropriateness by the staff of the facility at least once every 120 days.
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:
a.
The facility has attempted to provide compensated labor as a first alternative and all resources for providing compensated labor have been exhausted;
b.
Uncompensated therapeutic labor does not cause layoffs of staff hired by the facility to otherwise perform such labor; and
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.
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.
(cm)
Have the rights specified under subd. 1. to send and receive sealed mail, subject to the limitations specified under subd. 2.
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.
2.
The rights of a patient detained or committed under ch. 980 to send and receive sealed mail are subject to the following limitations:
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.
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.
(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).
(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.
(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.
(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.
(g)
Have the following rights, under the following procedures, to refuse medication and treatment:
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).
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.
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.
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.
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:
a.
The individual is incapable of expressing an understanding of the advantages and disadvantages of accepting medication or treatment and the alternatives.
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.
(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.
(i)
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.
2.
Patients in the maximum security facility at the Mendota Mental Health Institute may be locked in their rooms during the night shift and for a period of no longer than one hour and 30 minutes during each change of shift by staff to permit staff review of patient needs. Patients detained or committed under ch. 980 and placed in a facility specified under s. 980.065 may be locked in their rooms during the night shift, if they reside in a maximum or medium security unit in which each room is equipped with a toilet and sink, or if they reside in a unit in which each room is not equipped with a toilet and sink and the number of patients outside their rooms equals or exceeds the number of toilets in the unit, except that patients who do not have toilets in their rooms must be given an opportunity to use a toilet at least once every hour, or more frequently if medically indicated. Patients in the maximum security facility at the Mendota Mental Health Institute, or patients detained or committed under ch. 980 and placed in a facility specified under s. 980.065, may also be locked in their rooms on a unit-wide or facility-wide basis as an emergency measure as needed for security purposes to deal with an escape or attempted escape, the discovery of a dangerous weapon in the unit or facility or the receipt of reliable information that a dangerous weapon is in the unit or facility, or to prevent or control a riot or the taking of a hostage. A unit-wide or facility-wide emergency isolation order may only be authorized by the director of the unit or facility where the order is applicable or his or her designee. A unit-wide or facility-wide emergency isolation order affecting the Mendota Mental Health Institute must be approved within one hour after it is authorized by the director of the Mendota Mental Health Institute or the director's designee. An emergency order for unit-wide or facility-wide isolation may only be in effect for the period of time needed to preserve order while dealing with the situation and may not be used as a substitute for adequate staffing. During a period of unit-wide or facility-wide isolation, the status of each patient shall be reviewed every 30 minutes to ensure the safety and comfort of the patient, and each patient who is locked in a room without a toilet shall be given an opportunity to use a toilet at least once every hour, or more frequently if medically indicated. Each unit in the maximum security facility at the Mendota Mental Health Institute and each unit in a facility specified under s. 980.065 shall have a written policy covering the use of isolation that ensures that the dignity of the individual is protected, that the safety of the individual is secured, and that there is regular, frequent monitoring by trained staff to care for bodily needs as may be required. The isolation policies shall be reviewed and approved by the director of the Mendota Mental Health Institute or the director's designee, or by the director of the facility specified under s. 980.065 or his or her designee, whichever is applicable.
(j)
Have a right not to be subjected to experimental research without the express and informed consent of the patient and of the patient's guardian after consultation with independent specialists and the patient's legal counsel. Such proposed research shall first be reviewed and approved by the institution's research and human rights committee created under sub. (4) and by the department before such consent may be sought. Prior to such approval, the committee and the department shall determine that research complies with the principles of the statement on the use of human subjects for research adopted by the American Association on Mental Deficiency, and with the regulations for research involving human subjects required by the U.S. department of health and human services for projects supported by that agency.
(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.
(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.
(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.
(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.
(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.
(p)
Have reasonable access to a telephone to make and receive telephone calls within reasonable limits.
(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.
(r)
Be provided access to a reasonable amount of individual secure storage space for his or her own private use.
(s)
Have reasonable protection of privacy in such matters as toileting and bathing.
(t)
Be permitted to see visitors each day.
(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.
(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.
(w)
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.
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.
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.
(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.
(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).
(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.
(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).
(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.
(4)
(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.
(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.
(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.
(d)
No committee may consist entirely of members of a single professional group.
(e)
A majority of the membership of the committee constitutes a quorum to do business.
(5)
(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.
(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:
1.
Written policies and procedures regarding the uses and operation of the grievance system.
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.
3.
An informal process for resolving grievances.
4.
A formal process for resolving grievances, in cases where the informal process fails to resolve grievances to the patient's satisfaction.
5.
A process for notification of all patients of the grievance process.
6.
Time limits for responses to emergency and nonemergency grievances, as well as time limits for deciding appeals.
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.
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.
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.
(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.
(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.
(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.
(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.
(7)
(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.
(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.
(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.
(d)
Use of the grievance procedure established under sub. (5) is not a prerequisite to bringing an action under this subsection.
(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:
(a)
Using the grievance procedure specified in sub. (5).
(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.
(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.
(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.
(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.
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.
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).
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).
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).
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Nonconsensual drug therapy did not violate due process. Stensvad v. Reivitz, 601 F. Supp. 128 (1985).
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).
Affirmed. 282 F.3d 478 (2002).