Guardian Consent for Psychotropic Medications for Developmentally Disabled Clients

A guardian's authority to consent to the administration of psychotropic medications for the ward is found in ss. 54.25(2)(d)2, Wis. Statutes (leaving DHS, PDF, scroll to page 10). This authority applies for clients who are placed under Ch. 54 and Ch. 55 only -- not for clients placed under Ch. 51, Wis. Stats.

VOLUNTARY ADMINISTRATION

A guardian can, without a specific court order, give informed consent for voluntary psychotropic medications or treatments for a developmentally disabled ward, if the meds or treatments are in the best interests of the ward.

In deciding whether or not it is in the ward's best interests, the guardian must consider:

• The invasiveness of the medication or treatment.
• The likely benefits of the medication or treatment.
• The side effects of the medication or treatment

For psychotropic medications:

• The guardian must have first made a good faith attempt to discuss with the ward the ward's voluntary receipt of the meds.
• The ward must not "protest" 
  • "Protest" means for the ward to make more than one discernible negative response, other than mere silence, to the offer of, recommendation for, or other proffering of voluntary receipt of meds.
  • "Protest" does not mean a discernible negative response to a proposed method of administration of the meds.

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If the ward does protest (as defined above), the guardian may consent to involuntary administration of psychotropic medications only under a court order under ss. 55.14, Wis. Statutes.

INVOLUNTARY ADMINISTRATION (ss. 55.14, Wis. Stats., PDF, scroll to page 12)

"Involuntary administration of psychotropic medication" means any of the following:

• Placing the meds in the individual's food or drink with the knowledge that the individual "protests" [see above] receipt of the meds.
• Forcibly restraining an individual to enable administration of the meds.
• Requiring the individual to take the meds as a condition of receiving privileges or benefits.

Involuntary administration of psychotropic meds may be court-ordered as a protective service only under this section of the law.

To obtain a court order, it must be shown that a physician prescribed it, that the individual is incompetent to refuse it, and one of the following is true:

1. The individual has refused to take the meds voluntarily. A petition to the court for an order to medicate involuntarily must: 
   • Identify the reasons the individual refuses the meds voluntarily, if known;
   • Provide evidence showing that a reasonable number of documented attempts to administer the meds voluntarily, using appropriate interventions that could reasonably be expected to increase the individual's willingness to take the meds voluntarily have been made and have been unsuccessful. OR
2. Attempting to administer the meds voluntarily is not feasible or is not in the best interests of the individual. A petition under this allegation must identify specific reasons supporting the allegation.

The petition must also show that the individual's condition for which the meds are prescribed is likely to be improved by the meds and the individual is likely to respond positively to the meds.

The petition must also show that, unless the meds are administered, the individual is likely to incur a substantial probability of physical harm, impairment, injury, or debilitation, or will present a substantial probability of physical harm to others, as evidenced by one of the following:

1. The individual's history of at least two episodes, one in the last 24 months, that indicate a pattern of overt activity, attempts, threats to act or omissions that resulted from the individual's failure to participate in treatment, including psychotropic meds, that resulted in a finding of probable cause for commitment, a settlement agreement, or a commitment ordered under Ch. 51; OR
2. Evidence that the individual meets the dangerousness criteria [if not taking meds] in ss. 51.20(1)(a)2.a. to e.

The petition must also include a written statement signed by a physician with personal knowledge of the individual that provides general clinical information about the appropriate use of psychotropic meds for the individual's condition and specific data that indicates that the individual's current condition necessitates the use of the meds.

[Note: There are more requirements for the petition to involuntarily administer meds. The summary provided here is to give the service providers a general sense of what they will need to review and document in order to prepare the basis for obtaining such a court order.]

Last Updated: February 27, 2013