51.15 Emergency detention.

(1) Basis for detention; purpose.

(ag) The purpose of this section is to provide, on an emergency basis, treatment by the least restrictive means appropriate to the individual's needs, to individuals who meet all of the following criteria:

1. Are mentally ill, drug dependent, or developmentally disabled.

2. Evidence one of the standards set forth in par. (ar) 1. to 4.

3. Are reasonably believed to be unable or unwilling to cooperate with voluntary treatment.

(ar) A law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 may take an individual into custody if the officer or person has cause to believe that the individual is mentally ill, is drug dependent, or is developmentally disabled, that taking the person into custody is the least restrictive alternative appropriate to the person's needs, and that the individual evidences any of the following:

1. A substantial probability of physical harm to himself or herself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm.

2. A substantial probability of physical harm to other persons as manifested by evidence of recent homicidal or other violent behavior on his or her part, or by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm on his or her part.

3. A substantial probability of physical impairment or injury to himself or herself or other individuals due to impaired judgment, as manifested by evidence of a recent act or omission. The probability of physical impairment or injury is not substantial under this subdivision if reasonable provision for the individual's protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services or, in the case of a minor, if the individual is appropriate for services or placement under s. 48.13 (4) or (11) or 938.13 (4). Food, shelter or other care provided to an individual who is substantially incapable of obtaining the care for himself or herself, by any person other than a treatment facility, does not constitute reasonable provision for the individual's protection available in the community under this subdivision.

4. Behavior manifested by a recent act or omission that, due to mental illness, he or she is unable to satisfy basic needs for nourishment, medical care, shelter, or safety without prompt and adequate treatment so that a substantial probability exists that death, serious physical injury, serious physical debilitation, or serious physical disease will imminently ensue unless the individual receives prompt and adequate treatment for this mental illness. No substantial probability of harm under this subdivision exists if reasonable provision for the individual's treatment and protection is available in the community and there is a reasonable probability that the individual will avail himself or herself of these services, if the individual may be provided protective placement or protective services under ch. 55, or, in the case of a minor, if the individual is appropriate for services or placement under s. 48.13 (4) or (11) or 938.13 (4). The individual's status as a minor does not automatically establish a substantial probability of death, serious physical injury, serious physical debilitation or serious disease under this subdivision. Food, shelter or other care provided to an individual who is substantially incapable of providing the care for himself or herself, by any person other than a treatment facility, does not constitute reasonable provision for the individual's treatment or protection available in the community under this subdivision.

(b) The officer's or other person's belief shall be based on any of the following:

1. A specific recent overt act or attempt or threat to act or omission by the individual which is observed by the officer or person.

2. A specific recent overt act or attempt or threat to act or omission by the individual which is reliably reported to the officer or person by any other person, including any probation, extended supervision and parole agent authorized by the department of corrections to exercise control and supervision over a probationer, parolee or person on extended supervision.

(2) Facilities for detention; transport; approval.

(a) Subject to par. (b), the law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 shall transport the individual, or cause him or her to be transported, for detention, if the county department of community programs in the county in which the individual was taken into custody approves the need for detention, and for evaluation, diagnosis, and treatment if permitted under sub. (8).

(b) If an individual is in a hospital's emergency department, the law enforcement officer or other person as described under par. (a) may not transport the individual for detention until a hospital employee or medical staff member who is treating the individual determines that the transfer of the individual to the detention facility is medically appropriate and communicates that determination to the law enforcement officer or other person.

(c) The county department may approve the detention only if a physician who has completed a residency in psychiatry, a psychologist licensed under ch. 455, or a mental health professional, as determined by the department, has performed a crisis assessment on the individual and agrees with the need for detention and the county department reasonably believes the individual will not voluntarily consent to evaluation, diagnosis, and treatment necessary to stabilize the individual and remove the substantial probability of physical harm, impairment, or injury to himself, herself, or others. For purposes of this paragraph, a crisis assessment may be conducted in person, by telephone, or by telemedicine or video conferencing technology.

(d) Detention under this section may only be in a treatment facility approved by the department or the county department, if the facility agrees to detain the individual, or a state treatment facility.

(3) Custody. An individual is in custody when the individual is under the physical control of the law enforcement officer, or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938, for the purposes of emergency detention. Upon arrival at the facility under sub. (2), custody of the individual is transferred to the facility.

(4) Detention procedure; Milwaukee County.

(a) In counties having a population of 750,000 or more, the law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 shall sign a statement of emergency detention which shall provide detailed specific information concerning the recent overt act, attempt, or threat to act or omission on which the belief under sub. (1) is based and the names of the persons observing or reporting the recent overt act, attempt, or threat to act or omission. The law enforcement officer or other person is not required to designate in the statement whether the subject individual is mentally ill, developmentally disabled, or drug dependent, but shall allege that he or she has cause to believe that the individual evidences one or more of these conditions. The law enforcement officer or other person shall deliver, or cause to be delivered, the statement to the detention facility upon the delivery of the individual to it.

(b) Upon delivery of the individual, the treatment director of the facility, or his or her designee, shall determine within 24 hours, except as provided in par. (c), whether the individual shall be detained, or shall be detained, evaluated, diagnosed and treated, if evaluation, diagnosis and treatment are permitted under sub. (8), and shall either release the individual or detain him or her for a period not to exceed 72 hours after the individual is taken into custody for the purposes of emergency detention, exclusive of Saturdays, Sundays and legal holidays. If the treatment director, or his or her designee, determines that the individual is not eligible for commitment under s. 51.20 (1) (a), the treatment director shall release the individual immediately, unless otherwise authorized by law. If the individual is detained, the treatment director or his or her designee may supplement in writing the statement filed by the law enforcement officer or other person, and shall designate whether the subject individual is believed to be mentally ill, developmentally disabled or drug dependent, if no designation was made by the law enforcement officer or other person. The director or designee may also include other specific information concerning his or her belief that the individual meets the standard for commitment. The treatment director or designee shall then promptly file the original statement together with any supplemental statement and notification of detention with the court having probate jurisdiction in the county in which the individual was taken into custody. The filing of the statement and notification has the same effect as a petition for commitment under s. 51.20.

(c) When calculating the 24 hours under par. (b) in which a treatment director determines whether an individual should be detained, any period delaying that determination that is directly attributable to evaluation or stabilizing treatment of non-psychiatric medical conditions of the individual is excluded from the calculation.

(4m) Detention pilot program; Milwaukee County.

(a) Definitions. In this subsection:

1. “Treatment director" includes a fully licensed physician or licensed psychologist who is a full-time or part-time employee of, or on contract with, the Milwaukee County Behavioral Health Division and who actively assumes clinical responsibility for the provision of emergency service care.

2. “Treatment director designee" means an individual who is any of the following licensed mental health professionals, who is a full-time or part-time employee of, or on contract with, the Milwaukee County Behavioral Health Division, and who may provide care to individuals in accordance with, and as permitted by, state licensure laws, in collaboration with a treatment director who is assigned to the same service or program:

a. Licensed clinical social worker as described in s. 457.01 (1r).

b. Advanced practice social worker as defined in s. 457.01 (1c).

c. Licensed professional counselor as described in s. 457.01 (7).

d. Licensed marriage and family therapist as described in s. 457.01 (3).

e. Psychiatric nurse.

(b) Basis for detention. In Milwaukee County, a treatment director or treatment director designee may take an individual into custody if the treatment director or treatment director designee has cause to believe that the individual is mentally ill, is drug dependent, or is developmentally disabled, and that the individual evidences any of the criteria under sub. (1) (ar) 1. to 4. The treatment director's belief or the treatment director designee's belief shall be based on any of the criteria under sub. (1) (b).

(c) Facilities for detention. The treatment director or treatment director designee shall transport the individual, or cause him or her to be transported, for detention to any of the facilities described in sub. (2) (d) and shall approve evaluation, diagnosis, and treatment if permitted under sub. (8).

(d) Procedure.

1. In Milwaukee County, a treatment director or treatment director designee who takes an individual, or causes an individual to be taken, into custody under par. (b) shall sign a statement of emergency detention which shall provide detailed specific information concerning the recent overt act, attempt, or threat to act or omission on which the belief under par. (b) is based and the names of the persons observing or reporting the recent overt act, attempt, or threat to act or omission. The treatment director or treatment director designee shall designate in the statement whether the subject individual is mentally ill, developmentally disabled, or drug dependent and provide any information concerning his or her belief that the individual meets the standard for commitment.

2. If evaluation, diagnosis, and treatment are permitted under sub. (8), the treatment director or treatment director designee shall detain the individual for a period not to exceed 72 hours after delivery of the individual to the detention facility, exclusive of Saturdays, Sundays, and legal holidays. The treatment director or treatment director designee shall promptly file the original statement of emergency detention together with any supplemental statement and notification of detention with the court having probate jurisdiction in the county in which the individual was taken into custody. The filing of the statement and notification has the same effect as a petition for commitment under s. 51.20.

(e) Termination of pilot program. Paragraphs (a) to (d) do not apply after July 1, 2017.

(5) Detention procedure; other counties. In counties having a population of less than 750,000, the law enforcement officer or other person authorized to take a child into custody under ch. 48 or to take a juvenile into custody under ch. 938 shall sign a statement of emergency detention that shall provide detailed specific information concerning the recent overt act, attempt, or threat to act or omission on which the belief under sub. (1) is based and the names of persons observing or reporting the recent overt act, attempt, or threat to act or omission. The law enforcement officer or other person is not required to designate in the statement whether the subject individual is mentally ill, developmentally disabled, or drug dependent, but shall allege that he or she has cause to believe that the individual evidences one or more of these conditions. The statement of emergency detention shall be filed by the officer or other person with the detention facility at the time of admission, and with the court immediately thereafter. The filing of the statement has the same effect as a petition for commitment under s. 51.20. When, upon the advice of the treatment staff, the director of a facility specified in sub. (2) (d) determines that the grounds for detention no longer exist, he or she shall discharge the individual detained under this section. Unless a hearing is held under s. 51.20 (7) or 55.135, the subject individual may not be detained by the law enforcement officer or other person and the facility for more than a total of 72 hours after the individual is taken into custody for the purposes of emergency detention, exclusive of Saturdays, Sundays, and legal holidays.

(6) Release. If the individual is released, the treatment director or his or her designee, upon the individual's request, shall arrange for the individual's transportation to the locality where he or she was taken into custody.

(7) Intercounty agreements. Counties may enter into contracts whereby one county agrees to conduct commitment hearings for individuals who are detained in that county but who are taken into custody under this section in another county. Such contracts shall include provisions for reimbursement to the county of detention for all reasonable direct and auxiliary costs of commitment proceedings conducted under this section and s. 51.20 by the county of detention concerning individuals taken into custody in the other county and shall include provisions to cover the cost of any voluntary or involuntary services provided under this chapter to the subject individual as a result of proceedings or conditional suspension of proceedings resulting from the notification of detention. Where there is such a contract binding the county where the individual is taken into custody and the county where the individual is detained, the statements of detention specified in subs. (4) and (5) and the notification specified in sub. (4) shall be filed with the court having probate jurisdiction in the county of detention, unless the subject individual requests that the proceedings be held in the county in which the individual is taken into custody.

(8) Evaluation, diagnosis and treatment. When an individual is detained under this section, the director and staff of the treatment facility may evaluate, diagnose and treat the individual during detention, if the individual consents. The individual has a right to refuse medication and treatment as provided in s. 51.61 (1) (g) and (h). The individual shall be advised of that right by the director of the facility or his or her designee, and a report of any evaluation and diagnosis and of all treatment provided shall be filed by that person with the court.

(9) Notice of rights. At the time of arrival at the facility, under sub. (2), the individual shall be informed by the director of the facility or such person's designee, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family, the right to have an attorney provided at public expense, as provided under s. 51.60, and the right to remain silent and that the individual's statements may be used as a basis for commitment. The individual shall also be provided with a copy of the statement of emergency detention.

(10) Voluntary patients. If an individual has been admitted to an approved treatment facility under s. 51.10 or 51.13, or has been otherwise admitted to such facility, the treatment director or his or her designee, if conditions exist for taking the individual into custody under sub. (1), may sign a statement of emergency detention and may detain, or detain, evaluate, diagnose and treat the individual as provided in this section. In such case, the treatment director shall undertake all responsibilities that are required of a law enforcement officer under this section. The treatment director shall promptly file the statement with the court having probate jurisdiction in the county of detention as provided in this section.

(11) Liability. Any individual who acts in accordance with this section, including making a determination that an individual has or does not have mental illness or evidences or does not evidence a substantial probability of harm under sub. (1) (ar) 1., 2., 3., or 4. or a determination under sub. (2) (b) that the transfer of an individual is medically appropriate, is not liable for any actions taken in good faith. The good faith of the actor shall be presumed in any civil action. Whoever asserts that the individual who acts in accordance with this section has not acted in good faith has the burden of proving that assertion by evidence that is clear, satisfactory and convincing.

(11g) Other liability. Subsection (11) applies to a director of a facility, as specified in sub. (2) (d), or his or her designee, who under a court order evaluates, diagnoses or treats an individual who is confined in a jail, if the individual consents to the evaluation, diagnosis or treatment.

(11m) Training. Law enforcement agencies shall designate at least one officer authorized to take an individual into custody under this section who shall attend the in-service training on emergency detention and emergency protective placement procedures offered by a county department of community programs under s. 51.42 (3) (ar) 4. d., if the county department of community programs serving the law enforcement agency's jurisdiction offers an in-service training program.

(12) Penalty. Whoever signs a statement under sub. (4), (5) or (10) knowing the information contained therein to be false is guilty of a Class H felony.

History: 1975 c. 430; 1977 c. 29, 428; 1979 c. 175, 300, 336, 355; 1985 a. 176; 1987 a. 366, 394; 1989 a. 56 s. 259; 1993 a. 451; 1995 a. 77, 175, 292; 1997 a. 35, 283; 2001 a. 16 ss. 1966d to 1966h, 4034zb to 4034zd, 4041d to 4041g; 2001 a. 109; 2005 a. 264; 2007 a. 20; 2009 a. 28; 2013 a. 158, 235; 2015 a. 55; 2015 a. 195 ss. 11 to 13, 83; 2017 a. 140.

A mental health worker did not have immunity under sub. (11) for actions regarding a person already in custody and not taken into custody under an emergency detention. Kell v. Raemisch, 190 Wis. 2d 754, 528 N.W.2d 13 (Ct. App. 1994).

The time limits established by this section are triggered when a person taken into custody under this section is transported to any of the facilities designated by sub. (2), irrespective of whether the facility is one specifically chosen by the county for the receipt of persons taken into custody under this section. Milwaukee County v. Delores M. 217 Wis. 2d 69, 577 N.W.2d 371 (Ct. App. 1998), 96-2508.

The community caretaker exception that allows police officers to make a warrantless entry into a home when engaging in an activity that is unrelated to criminal activity and is for the public good applies to police activity undertaken pursuant to this section. State v. Horngren, 2000 WI App 177, 238 Wis. 2d 347, 617 N.W.2d 508, 99-2065.

Sub. (10) is not ambiguous and cannot reasonably be construed to authorize the continued detention of an involuntarily admitted individual based on a treatment director's statement of emergency detention when the individual had not been given the required probable cause hearing. Although sub. (10) refers to “voluntary patients" in its title, “otherwise admitted" in sub. (10) is not restricted to the admission of voluntary patients and encompasses involuntary admissions. Although “ otherwise admitted" applies to involuntary patients, it does not necessarily follow that the term includes involuntary patients who have been detained beyond 72 hours without a probable cause hearing under s. 51.20 (7) (a). Dane County v. Stevenson L. J. 2009 WI App 84, 320 Wis. 2d 194, 768 N.W.2d 223, 08-1281.

By granting immunity to any individual acting in accordance with this section, the legislature plainly intended to expand immunity beyond those authorized to take individuals into physical custody. Subsection (11) presumes that a person participating in emergency detention decisions has acted in good faith. This presumption can be defeated only by clear, satisfactory, and convincing evidence to the contrary. Estate of Hammersley v. Wisconsin County Mutual Insurance Corporation, 2012 WI App 44, 340 Wis. 2d 557, 811 N.W.2d 878, 11-0359.

Sub. (2) authorizes the department to designate one state treatment facility that will accept custody of individuals transported for emergency detention and treatment. It is unreasonable to assume that the legislature intended to force the department to organize itself and expend resources so that emergency detention and treatment is performed at all 6 state treatment facilities when other statutes authorize the department to use discretion to organize those facilities in a manner consistent with the facilities' statutory functions, consistent with the overriding statutory purpose of providing a unified system of treatment as resources allow. City of Madison v. Department of Health Services, 2017 WI App 25, 375 Wis. 2d 203, 895 N.W.2d 844, 16-0727.

It is inadvisable to treat individuals transported across state lines for emergency medical care differently than other individuals when determining whether emergency detention proceedings should be initiated pursuant to this section. 78 Atty. Gen. 59.

While sub. (7) does not authorize contractual agreements with counties outside of Wisconsin, ss. 51.75 (11), 51.87 (3), and 66.30 (5) [now s. 66.0303] each contain legal mechanisms through which financial or other responsibility for care and treatment of individuals from such counties may be shared under certain specified circumstances. 78 Atty. Gen. 59.

A law enforcement officer who places an individual under emergency detention is obligated to transport the individual to one of the four categories of facilities listed under sub. (2) until custody of the individual is transferred to the facility. 81 Atty. Gen. 110.