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Legal Protection from Abuse and Neglect by Mental Health Service Providers

How is abuse and neglect defined?

Newly created legislation (1993 Act 445) makes it a crime for mental health service providers to intentionally or recklessly abuse or neglect a client or to knowingly permit another to abuse or neglect a client. Wisconsin statutes define the following terms to clarify the legislation.

Intentional abuse includes: a) an intentional act, omission or course of conduct that is not reasonably necessary for treatment or maintenance of order and discipline in a pr ogram or treatment facility that either results in bodily harm or great bodily harm or intimidates, humiliates, threatens, frightens or otherwise harasses a client, or b) the forcible administration of medication to or performance of psychosurgery, electroconvulsive therapy or experimental research on a client with the knowledge that no lawful authority exists for the administration or performance.

Neglect means an act, omission or course of conduct that, because of the failure to provide adequate food, shelter, clothing, medical care or dental care, creates a significant danger to the physical or mental health of the client.

Reckless abuse means an act, omission or course of conduct, if done recklessly, that is not reasonably necessary for treatment or maintenance of order and discipline in a program or treatment facility that either results in bodily harm or great bodily harm or intimidates, humiliates, threatens, frightens or otherwise harasses a client. Recklessly means conduct which creates a situation of unreasonable risk of harm to and demonstrates conscious disregard for the safety of the client.

Who is protected by these laws relating to abuse and neglect?

You are granted protection from abuse or neglect from service providers if you are receiving treatment or services from any in-patient or out-patient mental health treatment facility, the state mental health institutes, nursing homes, an adult family home, a community based residential facility, a foster home, a group home, a child caring institution, a home health agency and any other community based treatment programs, including community support programs, day treatment programs and emergency services.

What are the penalties for abusing or neglecting a client?

Penalties for abusing and/or neglecting an individual participating in mental health programs vary depending on severity of the offense and degree of harm involved. Penalties range from Class B misdemeanors (fine up to $1,000, imprisonment up to 90 days or both) to Class D Felonies (fine up to $10,000, imprisonment up to 5 years or both) depending on whether the action was done intentionally or recklessly or if done under circumstances likely to cause bodily harm, great bodily harm, or no bobily har

What other laws relate to unlawful treament of consumers of mental health services?

Section 940.22 of the Wisconsin statutes addresses sexual contact by a therapist. In this situation, a therapist can include psychiatrists, psychologists, physicians, social workers, marriage and family counselors, chemical dependency counselors and clergy members who perform psychotherapy. Any sexual contact which occurs during any on-going therapist-client relationship is considered a class D felony. “Consent” is not considered an issue when an action is considered against a therapist. This section of the law also mandates that therapists who suspect sexual contact between a client and another therapist must ask the client if he or she would like the therapist to report the sexual contact. During the investigation process, client’s records must be kept confidential.

Section 940.225, makes sexual contact by employees of hospitals, nursing homes, mental health institutes, community based residential facilities, and adult family homes a Class C felony. This includes all employees of these facilities, ranging from psychiatrists to custodial staff.

Section 943.20 addresses theft of a clients’ possessions. This covers personal belongings, money and property. Depending on the value of the property or possessions, penalties range from a class A misdemeanor to a class D felony with occupanying punishments.

What should you do if you think you or someone you know has been abused or neglected?

All abuses should be reported immediately to local 911 or law enforcement officials. An investigation should follow all filed complaints. Abuse and neglect should also be reported to the administration of the program where it occurred so they can investigate and take appropriate action. If the clients care is funded by the county of residence or if he/she needs protective services, the county department of community programs or human services should be notified of the abuse or neglect.

If the agency is licensed or certified by the state Department of Health and Social Services, complaints can be filed there. The number to call depends on the type of program. Abuse and neglect by licensed professionals can alos be reported to the state Department of Regulation and Licensing.

It may be a good idea to secure an advocate to assist with personal support and follow-up monitoring. Advocacy assistance and referrals may be available through the Coalition for Advocacy. WCA can be reached at (608) 267-0214 in Madison or (414) 676-9333 in Milwaukee or (800)-928-8778, toll-free for consumers and family members.

The state law that protects clients from abuse and neglect is Sec. 940.295 of the Wisconsin statutes.