Creating a mechanism for an interested person to request an emergency stabilization and providing a penalty. (FE)

Under current law, in counties other than Milwaukee, the law enforcement officer or other person must sign the same statement of emergency detention containing the same information, except that the statement is filed with the detention facility and immediately thereafter with the court. The filing of the statement with the court has the same effect as a petition for involuntary commitment. When the treatment director at the detention facility to which the individual was taken determines that grounds for detention no longer exist, the treatment director must discharge the individual. The individual may not be detained for more than a total of 72 hours, excluding Saturday, Sundays, and legal holidays, unless a probable cause hearing or protective placement hearing is held.

While an individual is under emergency detention in any county, the treatment facility may evaluate, diagnose, and treat the individual with the individual's consent under current law. Upon the detention of the individual, the director of the detention facility must inform, both orally and in writing, the individual 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, and the right to remain silent and that the individual's statements may be used as a basis for involuntary commitment.

Current law requires that the individual be provided a copy of the statement of emergency detention.

Under current law, any individual who acts in accordance with the emergency detention statutes, including making a determination that an individual does not meet the standards for emergency detention, is not liable for actions taken in good faith. Any person, however, who signs a statement of emergency detention knowing that information in that statement is false is guilty of a felony and subject to a fine not to exceed $10,000 or imprisonment not to exceed six years, or both.

Under current law, within 72 hours of the individual's detention at the facility, with some exceptions, the court must hold a hearing to determine whether there is probable cause to believe the allegations that the individual meets the standards for involuntary commitment are true. If an individual is not under detention, three persons may sign a petition for examination to have that individual detained for involuntary commitment directly, without going through the emergency detention procedure. An individual detained directly for involuntary commitment must also have a probable cause hearing within 72 hours of detention under current law. The procedure for the probable cause hearing and subsequent hearings are the same for individuals who have been detained for emergency detention and for individuals who have been detained for involuntary commitment.

Current law requires corporation counsel to represent the interest of the public in the probable cause hearing and most mental health proceedings. At the time of filing a petition for involuntary commitment, the court must assure that the individual is represented by an attorney by referring that individual to the state public defender, who appoints counsel for the individual without a determination of indigency. The probable cause hearing, the final involuntary commitment hearing, and other mental health related hearings must conform to due process and fair treatment including the right to open hearing, the right to request a closed hearing, the right to counsel, the right to present and cross-examine witnesses, the right to remain silent, and the right to a jury trial if requested. If following the probable cause hearing, the court finds there is probable cause to believe the allegations that the individual meets the standards for involuntary commitment, the court must schedule a full hearing within a certain time limit to determine whether the individual will be involuntarily committed.

This bill substitutes the term "emergency stabilization" for the term "emergency detention" in the statutes. The bill also creates a new procedure for initiating an emergency stabilization, but does not replace the procedures under current law. The bill allows any person to contact the county department that is responsible for approving the need for emergency stabilization and request that the department work with law enforcement to initiate and approve an emergency stabilization for an individual. Upon receiving the request, the bill requires the county department to notify the requesting person that he or she may make a formal request.

Under the bill, a formal request for the county department and law enforcement to initiate and approve an emergency stabilization must be made on a form created by the Department of Health Services (DHS) and approved by the Department of Justice (DOJ). The form must include: 1) the requester's name, address, and contact information; 2) the name and address of the individual whom the requester is recommending for emergency stabilization; 3) the requester's relationship to the individual being recommended for emergency stabilization; 4) a statement that the requester has cause to believe that the individual being recommended for emergency stabilization is mentally ill, drug dependent, or developmentally disabled; 5) a statement that the requester has cause to believe that the individual being recommended for emergency stabilization evidences behavior which manifests a substantial probability of physical harm to himself, herself, or others or which otherwise meets the standards for emergency stabilization, which are the same as the standards for emergency detention under current law and terminology; 6) a statement describing specific recent dangerous behavior or behavior indicating a failure to satisfy basic needs, including when and where the behavior occurred and an identification of persons who witnessed the behavior, if known; and 7) a statement describing current or past action that leads the requester to believe that the individual will not consent to or will withdraw consent to treatment. The bill requires the county department to respond to a formal request for emergency stabilization within 24 hours after it receives the request, except that if the request relates to an individual in a hospital, the county department must respond within six hours. Under the bill, if a county department does not agree to approve, or if law enforcement does not agree to initiate, an emergency stabilization based on a formal request the county department must respond in writing to the requester on a certain form containing all of the following information: a statement of the county department's decision or the law enforcement agency's decision not to initiate the requested emergency stabilization; a statement of the reason for the decision not to initiate the requested emergency stabilization; and information about how the requester may initiate a judicially ordered emergency stabilization.

Any person may petition a court with appropriate jurisdiction to order that an individual be taken into custody for an emergency stabilization. A person submitting such a petition must include all of the following in the petition: 1) the name and address of the individual whom the petitioner is recommending for emergency stabilization and the petitioner's relationship to that individual; 2) a statement that the petitioner has cause to believe that the individual is mentally ill, is drug dependent, or is developmentally disabled; 3) a statement that the petitioner has cause to believe that the individual is dangerous or unable to satisfy basic needs because the individual meets any of the standards for emergency stabilization; 4) detailed, specific information describing the recent dangerous behavior or behavior indicating a failure to satisfy basic needs, supporting the beliefs that the individual satisfies the standards for emergency stabilization, and including the names of persons observing or reporting the recent overt act, attempt or threat to act, or omission; 5) a statement describing current or past action that leads the petitioner to believe that the individual will not consent to or will withdraw consent to treatment; and 6) a copy of the formal request for emergency stabilization and the county department's response, if the petitioner submitted a formal request.

The bill requires that, within 24 hours of filing the petition for emergency stabilization, the court shall either deny the petition or order an emergency stabilization. The court must order an emergency stabilization only if the court finds cause to believe that the statements made in the petition are reliable; that the individual is mentally ill, drug dependent, or developmentally disabled; and that the individual is eligible for emergency stabilization under the standards for emergency stabilization. The bill requires the court to specify these findings in its order. That order is a statement of emergency stabilization and has the same effect as a petition for involuntary commitment. If the court orders an emergency stabilization under the bill, the court must schedule the probable cause hearing for involuntary commitment to take place no later than 72 hours following the court's order for emergency stabilization, excluding Saturdays, Sundays, and legal holidays, with certain exceptions including if the court determines that the timing is unreasonable.

At the time of scheduling the probable cause hearing, the court shall assure that the individual under emergency stabilization is represented by an attorney by referring the individual to the state public defender, who must appoint an attorney for the individual without a determination of indigency.

Contrary to current law, corporation counsel is not required to participate in the petition for judicially ordered emergency stabilization or the probable cause hearing following the judicially ordered emergency stabilization. The corporation counsel, however, is allowed to represent the interests of the public in those proceedings. The petitioner is allowed to participate in the probable cause hearing, with or without corporation counsel. Under the bill, if the court determines there is probable cause to believe an individual meets the criteria for involuntary commitment and the corporation counsel did not actively advocate for a finding of probable cause, then the court shall order the corporation counsel's county to pay for all court costs and petitioner's attorney fees related to the determination of probable cause. The court then must appoint special counsel to serve in the role that would otherwise be served by corporation counsel for the remainder of the proceedings pertaining to that individual. The bill requires that all costs incurred by special counsel be reimbursed by the replaced corporation counsel's county. The bill also requires, if a statement of emergency stabilization is filed following a voluntary commitment, the corporation counsel to draft and file all papers and petitions necessary to support a finding of probable cause that the detained individual meets the standards for involuntary commitment.

An individual who is detained for an emergency stabilization after a court order under the bill has the same rights and is given the same opportunity for evaluation, diagnosis, and treatment as an individual detained under a procedure existing under current law.

Under the bill, if the court denies a petition that an individual be taken into custody for emergency stabilization, the petitioner is responsible for all court costs.

If the court orders an emergency stabilization based on a petition that was filed following a response to a formal request from the county department that either the county department or the law enforcement agency refused to initiate or approve an emergency stabilization, then whichever entity, the county department or law enforcement agency, refused to act must pay for any court costs and the petitioner's attorney fees incurred in filing and pursuing the petition for emergency stabilization.

Under the bill, no person has an obligation to make a request to initiate any emergency stabilization or to petition the court for an emergency stabilization. A person who does not make a request or file a petition is not liable for damages in a civil action. Under the bill, however, whoever submits a formal request for emergency stabilization or files a petition for judicially ordered emergency stabilization knowing that information contained in the request or petition is false is guilty of a felony and subject to a fine not to exceed $10,000 or imprisonment not to exceed 6 years, or both.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.