The information provided below relates to individuals under the age of 18 who are receiving services for developmental disability, mental health, and/or substance use. The rules are complex. The information provided below does not constitute legal advice. It is intended to be used as general guidance on these issues. For more information, review the following publication: Rights of Minors Receiving Services for Development Disability, Mental Health, and Substance Use, P-01844 (PDF) .
May a minor consent to outpatient treatment without the parent/guardian’s authorization?
- Any minor can consent to outpatient alcohol treatment at a public treatment facility as long as it is for prevention, intervention, or follow-up. Wis. Stat. § 51.45(10)(am).
- A treatment director may provide outpatient mental health treatment to a minor for 30 days without informed consent if an emergency exists and a reasonable effort was made to get consent from a parent or guardian. Wis. Stat. § 51.138(2).
- During the 30 days, the treatment director must get informed written consent or file a petition for review of the minor’s admission with the court. Wis. Stat. § 51.138(3) and Wis. Stat. § 51.14(3)(a).
- No inpatient treatment or medications may be provided. Wis. Stat. § 51.138(4).
A minor aged 14 or older (or a person acting on the minor’s behalf) may petition the mental health review officer in the county the minor’s parent/guardian resides for review of a refusal or inability of the minor’s parent/guardian to consent. Wis. Stat. § 51.13(4), Wis. Stat. § 51.14(3), Wis. Stat. § 51.14(4).
If the minor refuses alcohol and other drug abuse outpatient treatment, consent of the minor for testing, assessment, or treatment is not required. A minor’s parent/guardian may consent to have the minor tested for the presence of alcohol or other drugs or to have the minor assessed for substance use. Treatment may consist of outpatient treatment, day treatment, or inpatient treatment if admitted. Wis. Stat. § 51.48.
What is a review by a mental health review officer (MHRO) and when should one happen?
A review by an MHRO is an investigation of the informed consent for admission to outpatient treatment provided in some cases involving minors after a petition for a MHRO review is filed by the minor, the treatment director, or someone acting on the minor's behalf. Wis. Stat. § 51.14(3).
An MHRO review may occur when either:
- A minor’s (aged 14 years or older) parent/guardian refused or was unable to provide informed consent for outpatient mental health treatment; or
- Consent for outpatient treatment was provided by the minor's parent/guardian despite the minor's refusal.
What does a petition for an MHRO review have to contain?
- The name, address, and birth date of the minor.
- The name and address of the parent/guardian of the minor.
- The facts substantiating the petitioner's belief that the minor needs, or does not need, outpatient mental health treatment.
- Any available information that shows the appropriateness of the particular treatment sought for the minor and that the particular treatment sought is the least restrictive treatment consistent with the needs of the minor.
What happens at an MHRO review?
- Within 21 days after the filing of a petition, the MHRO should hold a hearing on the refusal or inability of the minor's parent/guardian to provide informed consent for outpatient treatment or on the provision of informed consent by the parent/guardian despite the minor's refusal.
- The MHRO may make a decision that informed consent is not required for outpatient mental health treatment for the minor, despite the informed consent requirements of Wis. Stat. § 51.61(6) and despite the refusal or inability of either of the parties to consent. Wis. Stat. § 51.14(3).
- The MHRO must notify the minor and the minor's parent/guardian, if available, of the right to judicial review.
What is judicial review?
- Within 21 days after the issuance of the order by an MHRO, the minor or a person acting on behalf of the minor may petition a court assigned to exercise jurisdiction in the county of residence of the minor's parent/guardian for a review of the refusal or inability of the minor's parent/guardian to provide the informed consent for outpatient mental health treatment required. Wis. Stat. § 51.14(4).
- Petition for judicial review must contain the same things required for the MHRO and, if the minor refused to provide informed consent, a notation of this fact must be made on the front page of the petition and the minor may be entitled to legal representation. Wis. Stat. § 51.14(4).
- The court should hold a hearing on the petition within 21 days after filing of the petition. Wis. Stat. § 51.14(4).
- Notice of the hearing under this subsection must be provided by the court by certified mail, at least 96 hours prior to the hearing, to the minor, the minor's parent/guardian, the minor's counsel and guardian ad litem, if any, and any other interested party known to the court. Wis. Stat. § 51.14(4).
- Findings must be based on evidence that is clear, satisfactory, and convincing. Wis. Stat. § 51.14(4).
- After the hearing, the court may issue a written order stating that the written, informed consent of the parent/guardian is not required for outpatient mental health treatment for the minor or that, if the parent/guardian provided informed consent despite the minor's refusal, the outpatient mental health treatment for the minor is appropriate. Wis. Stat. § 51.14(4).
- A finding or order under this section does not constitute a finding of mental illness.
Can a judicial review decision be appealed? Yes, any person who is aggrieved by a judicial review decision and who is directly affected by the decision or order may appeal to the Court of Appeals.