In a major win for all participants of the Wisconsin mental health emergency detention process, the Wisconsin Legislature recently passed 2017 Wisconsin Act 140 (“Act 140”), a bipartisan law that provides much-needed clarification of Wisconsin Statutes Chapter 51 for emergency detentions of individuals who are mentally ill, drug dependent, or developmentally disabled.

Prior to the passage of Act 140, the obligations and responsibilities of each of the stakeholders—law enforcement, county crisis agencies, and health care providers—in the mental health emergency detention process were murky at best. This bill addresses and clarifies a number of key points of conflict between Wisconsin’s emergency detention statute, Wis. Stat. § 51.15, and applicable federal laws (i.e., the Emergency Medical Treatment and Labor Act [EMTALA] and the Health Insurance Portability and Accountability Act of 1996 [HIPAA]). Specifically, this legislation makes significant inroads in addressing the concerns of health care providers regarding the transport of individuals for emergency detention, the ability to disclose health care information to warn of dangerousness, and provider liability for those actions.

Transport for Emergency Detention

Under Act 140, a newly created Wis. Stat. § 51.15(2)(b) provides that law enforcement (or a county) cannot transport an individual from a hospital emergency department for purposes of emergency detention until a hospital employee or medical staff member treating the individual agrees that the transfer is medically appropriate. The Legislature’s changes correct what had been a significant disconnect between Wisconsin’s emergency detention procedures, EMTALA’s requirements, and patient safety concerns expressed by providers.

Prior to Act 140, law enforcement was not required to wait for medical clearance prior to transporting an individual from a hospital emergency department to another facility for purposes of emergency detention. Besides the patient safety risks posed by transporting a medically unstable individual, this also exposed hospital emergency departments to potential EMTALA violations for inappropriate transfers despite the fact that the law enforcement officer was authorized to transfer under Wisconsin law without obtaining a determination that the transfer was medically appropriate. By requiring approval from a hospital emergency department—and thereby placing the decision about the appropriateness of a transport in the hands of the health care provider—Act 140 brings Wisconsin law into alignment with EMTALA and, perhaps more importantly, emphasizes patient safety.

Because Wisconsin law does not give providers the authority to initiate emergency detention, Act 140 also clarifies that the provider’s liability (to the patient or other person) is limited to the provider’s limited authority under Wisconsin law (i.e., to seek, not initiate, an emergency detention). The law now specifies that providers acting in accordance with Wis. Stat. § 51.15 (including making a determination that the transfer of an individual is medically appropriate pursuant to Wis. Stat. § 51.15[2][b]) are not liable for good faith actions. Providers are given a good faith presumption that the determination was medically appropriate in any civil action.

Permissible Disclosure of Health Care Information

Prior to the passage of Act 140, there had also been a disconnect between a health care provider’s ability to disclose information to prevent or lessen a serious and imminent threat to health or safety of the patient or others under HIPAA and the lack of the express ability to disclose information under such circumstances under Wisconsin law. In fact, a Wisconsin court has concluded that there may be a prohibition against disclosing information in Chapter 51 “treatment records” in order to warn about an individual’s dangerousness. See Milwaukee Deputy Sheriff’s Ass’n v. City of Wauwatosa, 327 Wis. 2d 206 (2010). The facts did not involve assessing a provider’s disclosure to warn of dangerousness, but the Court considered whether Wis. Stat. § 51.30(4), which governs access to registration and treatment records, included an exception allowing disclosure under the specific facts.

The Legislature addressed this disconnect by creating Wis. Stat. § 51.17, which codifies a health care provider’s and law enforcement officer’s ability (permissive, not mandatory) to disclose patient information to appropriate individuals in a good faith effort to “prevent or lessen a serious and imminent threat to the health or safety of a person or the public.” The creation of Wis. Stat. § 51.17 clarifies the circumstances in which a health care provider may fulfill a duty to warn, including contacting law enforcement or the county department reasonably believed responsible for approving emergency detention of the individual.

A provider that reports pursuant to Wis. Stat. § 51.17 fulfils its obligations related to those individuals who are not admitted to inpatient psychiatric units, and the provider has no further duty under Wisconsin law to seek involuntary treatment or emergency detention, physically restrain/isolate the individual, prevent the individual from leaving the hospital, or provide treatment or medication without the individual’s consent. Providers acting in good faith to warn of an individual’s dangerousness in accordance with Wis. Stat. § 51.17 are not criminally or civilly liable. Again, providers are given a presumption of good faith in civil actions.

Act 140 takes significant steps towards addressing many of the longstanding concerns that health care providers have voiced about Wisconsin’s emergency detention laws. As a result of these health care providers’ advocacy throughout the state, the law has been changed to align Wisconsin law with federal law and increase patient safety.

Despite improvements from Act 140, the emergency detention process remains complex. If you have any questions about the changes to Wisconsin’s emergency detention procedures or if you would like to review your organization’s policies and procedures to ensure their compliance with the law, we can assist.