Right to counsel

NOTE: this is a very complex area of law, especially as it relates to stay-at-home orders issued by the states.  Please read our primer on quarantine/isolation law before reading this specific state law.

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The Wisconsin Department of Health Services "...may promulgate and enforce rules or issue orders for guarding against the introduction of any communicable disease into the state, for the control and suppression of communicable diseases, for the quarantine and disinfection of persons, localities and things infected or suspected of being infected by a communicable disease..."  Wis. Stat. § 252.02(4).  The rules or orders “…may be made applicable to the whole or any specified part of the state, or to any vessel or other conveyance.”  Id.  In general, the statute is silent as to a process whereby a person can challenge a quarantine order, except as discussed below for the confinement of persons with tuberculosis.  For the control of communicable disease, where a person is “known to have or is suspected of having a contagious medical condition which poses a threat to other,” a health official can issue a written directive for the person to comply with treatment, undergo examination and testing, cease and desist in conduct or employment, reside in an isolated setting, or be placed in a treatment facility.  Wis. Adm. Code DHS 145.06(4).  If the person refuses to comply with the directive, the official “may petition a court of record to order the person to comply.”  The official must ensure that the person has been “afforded the opportunity to seek counsel.”  Wis. Adm. Code DHS 145.06(5)(b).  This regulation, however, is silent as to appointment of counsel.

For a person with a sexually transmitted disease, “any court of record may commit a person infected with a sexually transmitted disease to any institution or may require the person to undergo a system of care for examination, treatment, or observation if the person ceases or refuses examination, treatment, or observation under the supervision of a physician, physician assistant, or advanced practice nurse prescriber.”  Wis. Stat. § 252.11(5).  The statute is silent as to a right to counsel in this context.

If a person has “…a confirmed diagnosis of infectious tuberculosis or suspect tuberculosis” a local health official “shall at once investigate and make and enforce the necessary orders.”  Wis. Stat. § 252.07(5).  If the person does not voluntarily comply with the orders, the health official can order, among other things, home isolation.  Wis. Stat. § 252.07(5). "Isolation" in this context means “…the separation from other persons of a person with infectious tuberculosis in a place and under conditions that prevent the transmission of the infection.” Wis. Stat. § 252.07(1g)(c). The statute is silent as to a process for the person to contest an order of home isolation.  However, where a health official seeks to confine a person who is refusing treatment or testing and poses a threat to themselves or the public, to a facility, they must notify a court of the confinement and the confinement cannot last longer than 72 hours without court order.  Wis. Stat. § 252.07(8)(a)&(c).  For confinement longer than 72 hours, the department or local health authority may petition the court for an order.  Wis. Stat. § 252.07(9)(a).  When the petition is filed, "...the court shall assure that the individual who is the subject of the petition is represented by adversary counsel.  If the individual claims or appears to be indigent, the court shall refer the individual to the authority for indigency determinations specified under s. 977.07 (1)."  Wis. Stat. Ann. § 252.07(9)(d).  Furthermore, "if the individual is a child, the court shall refer that child to the state public defender who shall appoint counsel for the child without a determination of indigency, as provided in s. 48.23 (4)."  Id.