Community Grievance Decision Digest

Consent, Must be Informed

The decision summaries regarding this law may be found in the document:
  Community Grievance Decision Digest: Decisions. (PDF, 512KB) 

THE LAW:

“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 s. 51.61 (1) (g) or the person is a minor 14 years 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 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). 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. 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 admission to an approved inpatient treatment facility is reviewable under s. 51.13 (1) (c) 1. 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."

ss. 51.61(6), Wis. Stats. [Emphasis added.]

“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.”

ss. 51.61(8), Wis. Stats. [Emphasis added.]

"‘Informed consent’ or ‘consent’ means written consent voluntarily signed by a patient who is competent and who understands the terms of the consent, or by the patient's legal guardian or the parent of a minor, as permitted under s. 51.61(6) and (8), Stats., without any form of coercion, or temporary oral consent obtained by telephone in accordance with s. DHS 94.03 (2m).”

 DHS 94.02(22), Wis. Admin. Code [Emphasis added.]

"INFORMED CONSENT.

(1) Any informed consent document required under this chapter shall declare that the patient or the person acting on the patient’s behalf has been provided with specific, complete and accurate information and time to study the information or to seek additional information concerning the proposed treatment or services made necessary by and directly related to the person’s mental illness, developmental disability, alcoholism or drug dependency, including:

1. The benefits of the proposed treatment and services;
2. The way the treatment is to be administered and the services are to be provided;
3. The expected treatment side effects or risks of side effects which are a reasonable possibility, including side effects or risk of side effects from medications;
4. Alternative treatment modes and services;
5. The probable consequences of not receiving the proposed treatment and services;
6. The time period for which the informed consent is effective, which shall be no longer than 15 months from the time the consent is given; and
7. The right to withdraw informed consent at any time, in writing.

(2) An informed consent document is not valid unless the subject patient who has signed it is competent, that is, is substantially able to understand all significant information which has been explained in easily understandable language, or the consent form has been signed by the legal guardian of an incompetent patient or the parent of a minor, except that the patient's informed consent is always required for the patient's participation in experimental research, subjection to drastic treatment procedures or receipt of electroconvulsive therapy."

(2m) In emergency situations or where time and distance requirements preclude obtaining written consent before beginning treatment and a determination is made that harm will come to the patient if treatment is not initiated before written consent is obtained, informed consent for treatment may be temporarily obtained by telephone from the parent of a minor patient or the guardian of a patient. Oral consent shall be documented in the patient’s record, along with details of the information verbally explained to the parent or guardian about the proposed treatment. Verbal consent shall be valid for a period of 10 days, during which time informed consent shall be obtained in writing.”

(3) The patient, or the person acting on the patient’s behalf, shall be given a copy of the completed informed consent form, upon request.”

(4) When informed consent is refused or withdrawn, no retaliation may be threatened or carried out.”

DHS 94.03, Wis. Admin. Code [Emphasis added.]

“Except in an emergency when it is necessary to prevent serious physical harm to self or others, no medication may be given to any patient or treatment performed on any patient without the prior informed consent of the patient, unless the patient has been found not competent to refuse medication and treatment under s. 51.61(1)(g), Stats., and the court orders medication or treatment. In the case of a patient found incompetent under ch. 880, Stats., the informed consent of the guardian is required. In the case of a minor, the informed consent of the parent or guardian is required. Except as provided under an order issued under s.51.14(3)(h) or (4)(g), Stats., if a minor is 14 years of age or older, the informed consent of the minor and the minor’s parent or guardian is required. Informed consent for treatment from a patient’s parent or guardian may be temporarily obtained by telephone in accordance with s. DHS 94.03(2m).

DHS 94.09(4), Wis. Admin. Code [Emphasis added.]

“The informed consent document [for filming or taping] shall specify that the subject patient may view the photograph or film or hear the recording prior to any release and that the patient may withdraw informed consent after viewing or hearing the material."

 DHS 94.18(3), Wis. Admin. Code [Emphasis added.]

 NOTE: For summaries of cases on consent, see: Guardianship; Research; Refusing Medications; Filming and Taping; and Drastic Treatment.

Last Updated: July 12, 2010