Statutory
Basis for Emergency Detention
ATTACHMENT 1
51.15 Emergency detention. (1) BASIS
FOR DETENTION. (a) 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 such individual is mentally ill, drug dependent
or developmentally disabled, 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 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 ifreasonable 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 or drug dependency, 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 or drug dependency. 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 can receive
protective placement under s. 55.06 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.
5. For an individual, other than an individual who is believed to be
drug dependent or developmentally disabled, all of the following:
a. After the advantages and disadvantages of and alternatives to
accepting a particular medication or treatment have been explained to him
or her and because of mental illness, either incapability of expressing an
understanding of the advantages and disadvantages of accepting medication
or treatment and the alternatives, or substantial incapability of applying
an understanding of the advantages, disadvantages and alternatives to his
or her mental illness in order to make an informed choice as to whether to
accept or refuse medication or treatment.
b. A substantial probability, as demonstrated by both the individual’s
treatment history and his or her recent acts or omissions, that the
individual needs care or treatment to prevent further disability or
deterioration and a substantial probability that he or she will, if left
untreated, lack services necessary for his or her health or safety and
suffer severe mental, emotional or physical harm that will result in the
loss of the individual’s ability to function independently in the
community or the loss of cognitive or volitional control over his or her
thoughts or actions. The probability of suffering severe mental, emotional
or physical harm is not substantial under this subd. 5. b. if reasonable
provision for the individual’s care or treatment is available in the
community and there is a reasonable probability that the individual will
avail himself or herself of these services or if the individual is
appropriate for protective placement under s. 55.06. Food, shelter or
other care that is provided to an individual who is substantially
incapable of obtaining food, shelter or other care for himself or herself
by any person other than a treatment facility does not constitute
provision for the individual’s care or treatment in the community
reasonable under this subd. 5. b. The individual’s status as a minor
does not automatically establish a substantial probability of suffering
severe mental, emotional or physical harm under
this subd. 5. b.
(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.
(c) 1. If proposed detention or detention of an individual under
paragraph (a) is based on paragraph (a) 5., the proposed detention or
detention shall be reviewed and approved or disapproved by the attorney
general or by his or her designee prior to or within 12 hours after the
detention.
2. If the attorney general or his or her designee disapproves or fails
to act with respect to a proposed detention under subd. 1., the individual
may not be detained based on par. (a) 5. If the attorney general or his or
her designee disapproves or fails to act with respect to a detention under
subd. 1., the individual shall be released.
3. Subdivisions 1. and 2. do not apply if the attorney general makes a
finding that a court of competent jurisdiction in this state, in a case in
which the constitutionality of par. (a) 5. or of s. 51.20 (1) (a) 2. e.
has been challenged, has upheld the constitutionality of par. (a) 5. or s.
51.20 (1) (a) 2. e.
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NMemo02-19
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