H. B. 2102
(By Delegate Stalnaker)
[Introduced February 14, 2001
; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section four, article five, chapter
twenty-seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to mental hygiene;
involuntary commitment; proceedings; hearing; examination;
order; report; mental hygiene fund; and requiring the county
commission of the county in which an indigent individual
resides to pay the expenses of a commitment hearing.
Be it enacted by the Legislature of West Virginia:
That section four, article five, chapter twenty-seven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-4. Institution of final commitment proceedings; hearing requirements; release.
(a)
Involuntary commitment. -- Except as provided in section
three of this article, no individual may be involuntarily committed
to a mental health facility except by order entered of record at
any time by the circuit court of the county wherein
such the person
resides or was found, or if the individual is hospitalized in a
mental health facility located in a county other than where he or
she resides or was found, in the county of the mental health
facility, and then only after a full hearing on issues relating to
the necessity of committing an individual to a mental health
facility:
Provided, That if
said the individual objects to the
hearing being held in the county where the mental health facility
is located, the hearing shall be conducted in the county of the
individual's residence.
(b)
How final commitment proceedings are commenced. -- Final
commitment proceedings for an individual may be commenced by the
filing of a written application under oath and the certificate or
affidavit is hereinafter provided with the clerk of the circuit
court or mental hygiene commissioner of the county of which the
individual is a resident, or where he or she
may be is found, or
the county of the mental health facility, if he or she is hospitalized in a mental health facility located in a county other
than where he or she resides or
may be is found by an adult person
having personal knowledge of the facts of the case.
(c)
Oath; contents of application; who may inspect
application; when application cannot be filed. --
(1) The person making
such the application shall do so under
oath.
(2) The application shall contain statements by the applicant
that he or she believes because of symptoms of mental illness,
mental retardation or addiction, the individual is likely to cause
serious harm to himself or herself or to others and the grounds for
such the belief, stating in detail the recent overt acts upon which
such the belief is based:
Provided, That no
such statement of
recent overt acts need be made when the applicant alleges the
individual is likely to cause serious harm as a result of having a
complete inability to care for himself or herself by reason of
mental retardation.
(3) The written application, certificate, affidavit and any
warrants issued pursuant thereto, including any papers and
documents related thereto filed with any circuit court or mental
hygiene commissioner for the involuntary hospitalization of any individual
shall not be are not open to inspection by any person
other than the individual, except upon authorization of the
individual or his or her legal representative or by order of the
circuit court, and
such the records may not be published except
upon the authorization of the individual or his or her legal
representative.
(4) Applications
shall may not be accepted for individuals who
only have epilepsy, a mental deficiency or senility.
(d)
Certificate filed with application; contents of
certificate; affidavit by applicant in place of certificate. --
(1) The applicant shall file with his or her application the
certificate of a physician or a psychologist stating that in his or
her opinion the individual is mentally ill, mentally retarded or
addicted and that because of
such the mental illness, mental
retardation or addiction, the individual is likely to cause serious
harm to himself or herself or to others if he or she is allowed to
remain at liberty and therefore he or she should be hospitalized,
stating in detail the recent overt acts upon which
such the
conclusion is based:
Provided, That no
such statement of recent
overt acts need be made when the applicant alleges the individual
is likely to cause serious harm as a result of having a complete inability to care for himself or herself by reason of mental
retardation.
(2) A certificate is not necessary only when an affidavit is
filed by the applicant showing facts and the individual has refused
to submit to examination by a physician or a psychologist.
(e)
Notice requirements; eight days' notice required. -- Upon
receipt of an application, the mental hygiene commissioner or
circuit court shall review the application and if it is determined
that the facts alleged, if any, are sufficient to warrant
involuntary hospitalization, forthwith fix a date for and have the
clerk of the circuit court give notice of the hearing: (1) To the
individual; (2) to the applicant or applicants; (3) to the
individual's spouse, one of the parents or guardians, or if the
individual does not have a spouse, parents or parent or guardian,
to one of the individual's adult next of kin:
Provided, That
such
the person is not the applicant; (4) to the mental health
authorities serving the area; (5) to the circuit court in the
county of the individual's residence if the hearing is to be held
in a county other than that of
such the individual's residence; and
(6) to the prosecuting attorney of the county in which the hearing
is to be held.
Such Notice shall be served on the individual by personal service of process not less than eight days prior to the
date of the hearing, and shall specify the nature of the charges
against the individual; the facts underlying and supporting the
application of involuntary commitment; the right to have counsel
appointed; the right to consult with and be represented by counsel
at every stage of the proceedings; and the time and place of the
hearing. The notice to the individual's spouse, parents or parent
or guardian, the individual's adult next of kin, or to the circuit
court in the county of the individual's residence may be by
personal service of process or by certified or registered mail,
return receipt requested, and shall state the time and place of the
hearing.
(f)
Examination of individual by court-appointed physician or
psychologist; custody for examination; dismissal of proceedings. --
(1) Except as provided in subdivision (3) of this subsection,
within a reasonable time after notice of the commencement of final
commitment proceedings is given, the circuit court or mental
hygiene commissioner shall appoint a physician or psychologist to
examine the individual and report to the circuit court or mental
hygiene commissioner his or her findings as to the mental condition
of the individual and the likelihood of him or her causing serious harm to himself or herself or to others.
(2) If the designated physician or psychologist reports to the
circuit court or mental hygiene commissioner that the individual
has refused to submit to an examination, the circuit court or
mental hygiene commissioner shall order him or her to submit to
such the examination. The circuit court or mental hygiene
commissioner may direct that the individual be detained or taken
into custody for the purpose of an immediate examination by the
designated physician or psychologist. All such orders shall be
directed to the sheriff of the county or other appropriate
law-enforcement officer. After
such the examination has been
completed, the individual shall be released from custody unless
proceedings are instituted pursuant to section three of this
article.
(3) If the reports of the appointed physician or psychologist
do not confirm that the individual is mentally ill, mentally
retarded or addicted and might be harmful to himself or herself or
to others, then the proceedings for involuntary hospitalization
shall be dismissed.
(g)
Rights of the individual at the final commitment hearing;
seven days' notice to counsel required. --
(1) The individual shall be present at the final commitment
hearing and he or she, the applicant and all persons entitled to
notice of
such the hearing shall be afforded an opportunity to
testify and to present and cross-examine witnesses.
(2) In the event that the individual has not retained counsel,
the court or mental hygiene commissioner at least six days prior to
hearing shall appoint a competent attorney, and shall inform the
individual of the name, address and telephone number of his or her
appointed counsel.
(3) The individual
shall have has the right to have an
examination by an independent expert of his or her choice and
testimony from
such the expert as a medical witness on his or her
behalf. The cost of
such the independent expert shall be borne by
the individual unless he or she is indigent.
(4) The individual
shall may not be compelled to be a witness
against himself or herself.
(h)
Duties of counsel representing individual; payment of
counsel representing indigent. --
(1) The counsel representing an individual shall conduct a
timely interview, make investigation and secure appropriate
witnesses and shall be present at the hearing and protect the interest of the individual.
(2) Any counsel representing an individual
shall be is
entitled to copies of all medical reports, psychiatric or
otherwise.
(3) The circuit court, by order of record, may allow the
attorney a reasonable fee not to exceed the amount allowed for
attorneys in defense of needy persons as provided in article
twenty-one, chapter twenty-nine of this code.
(i)
Conduct of hearing; receipt of evidence; no evidentiary
privilege; record of hearing. --
(1) The circuit court or mental hygiene commissioner shall
hear evidence from all interested parties in chamber, including
testimony from representatives of the community mental health
facility.
(2) The circuit court or mental hygiene commissioner shall
receive all relevant and material evidence which may be offered.
(3) The circuit court or mental hygiene commissioner
shall be
is bound by the rules of evidence promulgated by the supreme court
of appeals except that statements made to physicians or
psychologists by the individual may be admitted into evidence by
the physician's or psychologist's testimony notwithstanding failure to inform the individual that this statement may be used against
him or her. Any psychologist or physician testifying shall bring
all records pertaining to
said the individual to
said the hearing.
Such The medical evidence obtained pursuant to an examination
under this section, or section two or three of this article, is not
privileged information for purposes of a hearing pursuant to this
section.
(4) All final commitment proceedings shall be reported or
recorded, whether before the circuit court or mental hygiene
commissioner, and a transcript shall be made available to the
individual, his or her counsel or the prosecuting attorney within
thirty days, if
the same it is requested for the purpose of further
proceedings. In any case wherein an indigent person intends to
pursue further proceedings, the circuit court shall, by order
entered of record, authorize and direct the court reporter to
furnish a transcript of the hearings.
(j)
Requisite findings by the court. --
(1) Upon completion of the final commitment hearing, and the
evidence presented therein, the circuit court or mental hygiene
commissioner shall make findings as to whether or not the
individual is mentally ill, retarded or addicted and because of illness, retardation or addiction is likely to cause serious harm
to himself or herself or to others if allowed to remain at liberty
and is a resident of the county in which the hearing is held or
currently is a patient at a mental health facility in
such the
county.
(2) The circuit court or mental hygiene commissioner shall
also make a finding as to whether or not there is a less
restrictive alternative than commitment appropriate for the
individual. The burden of proof of the lack of a less restrictive
alternative than commitment
shall be is on the person or persons
seeking the commitment of the individual.
(3) The findings of fact shall be incorporated into the order
entered by the circuit court and
must shall be based upon clear,
cogent and convincing proof.
(k)
Orders issued pursuant to final commitment hearing; entry
of order; change in order of court; expiration of order. --
(1) Upon the requisite findings, the circuit court may order
the individual to a mental health facility for an indeterminate
period or for a temporary observatory period not exceeding six
months.
(2) The individual
shall may not be detained in a mental health facility for a period in excess of ten days after a final
commitment hearing pursuant to this section unless an order has
been entered and received by the facility.
(3) If the order pursuant to a final commitment hearing is for
a temporary observation period, the circuit court or mental hygiene
commissioner may, at any time prior to the expiration of
such that
period on the basis of a report by the chief medical officer of the
mental health facility in which the patient is confined, hold
another hearing pursuant to the terms of this section and in the
same manner as the hearing was held as if it were an original
petition for involuntary hospitalization, to determine whether the
original order for a temporary observation period should be
modified or changed to an order of indeterminate hospitalization of
the patient. At the conclusion of the hearing, the circuit court
shall order indeterminate hospitalization of the patient or
dismissal of the proceedings.
(4) An order for an indeterminate period shall expire of its
own terms at the expiration of two years from the date of the last
order of commitment unless prior to the expiration, the department
of health, upon findings based on an examination of the patient by
a physician or a psychologist, extends the order for indeterminate hospitalization:
Provided, That if the patient or his or her
counsel requests a hearing, then a hearing shall be held by the
mental hygiene commissioner; or by the circuit court of the county
as provided in subsection (a) of this section.
(l)
Dismissal of proceedings. -- If the circuit court or
mental hygiene commissioner finds that the individual is not
mentally ill, mentally retarded or addicted, the proceedings shall
be dismissed. If the circuit court or mental hygiene commissioner
finds that the individual is mentally ill, mentally retarded or
addicted but is not because of
such the illness, retardation or
addiction likely to cause serious harm to himself or herself or to
others if allowed to remain at liberty, the proceedings shall be
dismissed.
(m)
Immediate notification of order of hospitalization. -- The
clerk of the circuit court in which an order directing
hospitalization is entered, if not in the county of the
individual's residence, shall immediately upon entry thereof
forward a certified copy of
same the order to the clerk of the
circuit court of the county of which the individual is a resident.
(n)
Consideration of transcript by circuit court of county of
individual's residence; order of hospitalization; execution of order. --
(1) If the circuit court or mental hygiene commissioner is
satisfied that hospitalization should be ordered but finds that the
individual is not a resident of the county in which the hearing is
held, and the individual is not currently a resident of a mental
health facility, a transcript of the evidence adduced at the final
commitment hearing of
such the individual, certified by the clerk
of the circuit court, shall forthwith be forwarded to the clerk of
the circuit court of the county of which
such the individual is a
resident, who shall immediately present
such the transcript to the
circuit court or mental hygiene commissioner of
said the county.
(2) If the circuit court or mental hygiene commissioner of the
county of the residence of the individual is satisfied from the
evidence contained in
such the transcript that
such the individual
should be hospitalized as determined by the standard set forth
above, the circuit court shall order the appropriate
hospitalization as though the individual had been brought before
the circuit court or its mental hygiene commissioner in the first
instance.
(3) This order shall be transmitted forthwith to the clerk of
the circuit court of the county in which the hearing was held who
shall execute
said the order promptly.
(o)
Order of custody to responsible person. -- In lieu of
ordering the patient to a mental health facility, the circuit court
may order the individual delivered to some responsible person who
will agree to take care of the individual and the circuit court may
take from
such the responsible person a bond in an amount to be
determined by the circuit court with condition to restrain and take
proper care of
such the individual until further order of the
court.
(p)
Individual not a resident of this state. -- If the
individual found to be mentally ill, mentally retarded or addicted
by the circuit court or mental hygiene commissioner is a resident
of another state, this information shall be forthwith given to the
secretary of the department of health and human resources, or to
his or her designee, who shall make appropriate arrangements for
transfer of the individual to the state of his or her residence
conditioned on the agreement of the individual except as qualified
by the interstate compact on mental health.
(q)
Report to the secretary of the department of health and
human resources. --
(1) The chief medical officer of a mental health facility
admitting a patient pursuant to proceedings under this section shall forthwith make a report of
such the admission to the
secretary of the department of health and human resources or to his
or her designee.
(2) Whenever an individual is released from custody due to the
failure of an employee of a mental health facility to comply with
the time requirements of this article, the chief medical officer of
such the mental health facility shall forthwith after the release
of the individual make a report to the secretary of the department
of health and human resources or to his or her designee of the
failure to comply.
(r)
Payment of some expenses by the state; mental hygiene fund
established; expenses paid by the county commission. --
(1) The state shall pay the commissioner's fee and
such the
court reporter fees
as that are not paid and reimbursed under
article twenty-one, chapter twenty-nine of this code out of a
special fund to be established within the supreme court of appeals
to be known as the "mental hygiene fund."
(2) The county commission
of the county in which the
individual resides shall pay out of the county treasury all other
expenses incurred in the hearings conducted under the provisions of
this article whether or not hospitalization is ordered, including any fee allowed by the circuit court by order entered of record for
any physician, psychologist and witness called by the indigent
individual.
NOTE: The purpose of this bill is to require the county
commission of the county in which an indigent individual resides to
pay the expenses of a commitment hearing.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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