Executive Summary

On March 27, 2014, Wisconsin Governor Scott Walker signed two mental health laws.  2013 Wisconsin Act 158 ("Act 158") makes various changes to Wisconsin's statutes governing involuntary commitment and emergency detention for individuals that are a danger to themselves or others due to mental illness, drug dependency or developmental disability. The second bill, 2013 Wisconsin Act 161 ("Act 161"), makes various changes to Wisconsin's statutes governing the inpatient mental health treatment of minors.  These laws went into effect on March 29.

Changes in the Law

Emergency Detention. Act 158 amends the standards under which an individual may be placed under emergency detention.  Under Section 51.15(1), a law enforcement officer may place an individual under emergency detention if the officer has reason to believe the individual exhibits any of the four so-called "standards of dangerousness" and is (1) mentally ill, (2) drug dependent or (3) developmentally disabled.  Pursuant to Act 158, the law now requires that placing an individual in custody be the "least restrictive alternative appropriate to the person's needs."  Act 158 also amends the third dangerousness factor to allow emergency detention and involuntary commitment when there is a "substantial probability of physical impairment or injury to himself or herself or other individuals."

Furthermore, Act 158 clarifies the start time of the emergency detention "72-hour rule," which requires a probable cause hearing on the individual who is the subject of an emergency detention petition within 72 hours.  While the previous version of the law stated that the treatment facility obtained custody of the patient when the individual arrives at the facility, the law did not state when custody begins prior to the individual's arrival.  Act 158 clarifies that an individual is "in custody" for purposes of the 72-hour rule when the individual is under the physical control of law enforcement.

Additionally, Act 158 raised the residency requirements for the special "24-hour rule" under Section 51.15(4)(b), from counties with more than 500,000 residents to counties with more than 750,000 residents.  As a result, the procedures of the 24-hour rule will continue to apply only in Milwaukee County.  The 24-hour rule requires that the treatment director of the facility in which the person is detained, or his or her designee, determine within 24 hours whether the person will be detained.  (Wis. Stat. § 51.15(4)(b).)  Act 158 also clarifies that when calculating the 24 hours, any period of delay that is "directly attributable to evaluation or stabilizing treatment of non-psychiatric medical conditions of the individual" is not included.  (Wis. Stat. § 51.15(4)(c).)

The final change clarifies that a "county crisis service" may approve an emergency detention only if the county department reasonably believes the individual at issue will not voluntarily consent to evaluation, diagnosis and treatment necessary to stabilize the individual and remove a substantial probability of physical harm, impairment or injury to himself, herself or others.Inpatient Treatment of Minors. For minors under the age of 14, Act 161 removes the requirement of filing a petition for review of a minor's admission for treatment of alcoholism or drug abuse, mental illness or developmental disability except when:  (1) the minor seeks treatment but the legal parent or guardian refuses to consent; (2) the legal parent or guardian cannot be located; or (3) there is no legal parent or guardian.  Act 161 makes the same change with regard to minors between the ages of 14 to 17 who are voluntarily participating in inpatient treatment for, specifically, mental illness.

Finally, Act 161 clarifies that if a minor 14 years of age or older who refused to execute an application for short-term admission under Wis. Stat. § 51.15(6) is admitted after court review, that minor may not be readmitted to an inpatient treatment facility for psychiatric services within 120 days of a previous admission.

Conclusion/Practical Takeaways

The standards and review procedures for emergency detention and inpatient treatment of minors are a key area of focus for hospital administrators, providers and in-house counsel.  As a result, the changes instituted by Act 158 and Act 161 are of primary concern.  A full understanding of the changes will better assist hospitals and in-house counsel in effectively treating and managing patients subject to Chapter 51.