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SB191 SUB1 Senate Bill 191 History

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SB191 SUB1
COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 191

(By Senators Kessler, Hunter, Foster, Sharpe, Unger and Sprouse)

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[Originating in the Committee on the Judiciary;

reported February 24, 2005.]

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A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §27-5-11, relating to mental hygiene proceedings generally; authorizing implementation of a modified mental hygiene procedure in limited number of counties relating to persons who are medication-dependent and who have had at least one prior conviction within previous twenty-four months related to mental illness or two prior hospitalizations within previous twenty-four months; directing cooperation of Secretary of Department of Health and Human Resources and Supreme Court of Appeals in developing modified procedures; authorizing use of treatment compliance orders in certain judicial circuits; authorization for hospitalization and treatment for up to seventy-two hours prior to probable cause hearing for medication-dependent individuals who meet requirements; reporting requirements; expiration date; time limits; requirements of petitions; procedures; required findings; hearing; and forms required for procedures.

Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §27-5-11, to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-11. Modified procedures for temporary compliance orders for certain medication dependent persons with prior hospitalizations or convictions; to institute modified mental hygiene procedures; procedures; forms.

(a) The Supreme Court of Appeals shall, in consultation with the Secretary of the Department of Health and Human Resources and local mental health services consumers and providers implement in at least four and no more than six judicial circuits, beginning on the first day of July, two thousand six, modified mental hygiene procedures that are consistent with the requirements set forth in this section. The judicial circuits selected for implementing the modified procedures shall be circuits in which the Supreme Court of Appeals determines in consultation with the Secretary of the Department of Health and Human Resources and local mental health consumers and service providers that adequate resources will be available to implement the modified procedures. The Secretary of the Department of Health and Human Resources in consultation with the Supreme Court of Appeals and local mental health services consumers and service providers shall prescribe appropriate forms to implement the modified procedures, and shall annually prepare a report on the use of the modified procedures and transmit the report to the Legislature on or before the last day of each calendar year. The Supreme Court of Appeals may in consultation with the Secretary of the Department of Health and Human Resources and local mental health services consumers and providers during the pilot program period further modify any specific modified procedures that are implemented: Provided, That the modified procedures are consistent with the requirements of this chapter and this section. If the Secretary of the Department of Health and Human Resources determines that the use of any modified procedure in one or more judicial circuits is placing an unacceptable additional burden upon state mental health resources, the Supreme Court of Appeals shall in consultation with the Secretary modify the procedures used in such a fashion as will address the concerns of the Secretary, consistent with the requirements of this chapter.
The provisions of this section and the modified procedures thereby authorized shall cease to have any force and effect on the thirtieth day of June, two thousand ten unless extended by an act of the Legislature prior to that date.
(b) (1) The modified procedures shall authorize that a verified petition seeking a treatment compliance order may be filed by any person alleging:
(A) That on two or more occasions within a twenty-four-month period prior to the filing of the petition an individual, as a result of mental illness, has been hospitalized pursuant to the provisions of this chapter or has been convicted of one or more crimes of violence against the person in which the individual's mental illness played a significant part;
(B) That the individual?s previous hospitalizations as a result of mental illness, occurred as a result of the individual?s failure to take medication or other treatment as prescribed by a physician to treat the individual?s mental illness; and
(C) That the individual, in the absence of a court order requiring him or her to take medication or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or other treatment as prescribed is likely to lead to further instances in the reasonably near future in which the individual becomes likely to cause serious harm or commit a crime against the person.
(2) Upon the filing of a petition seeking a treatment compliance order and the petition?s review by a circuit judge or Mental Hygiene Commissioner, counsel shall be appointed for the individual if the individual does not already have counsel and a copy of the petition and all supporting evidence shall be furnished to the individual and their counsel. If the circuit judge or Mental Hygiene Commissioner determines on the basis of the petition that it is necessary to protect the individual or to secure their examination, a detention order may be entered for the individual ordering that the individual be taken into custody and examined by a psychiatrist or licensed clinical psychologist. A hearing on the allegations in the petition, which may be combined with a hearing on a probable cause petition or a final commitment hearing, shall be held before a circuit judge or Mental Hygiene Commissioner; if the individual is in custody as a result of a detention order, the hearing shall be held within seventy-two hours of the filing of the petition;
(3) If the allegations in the petition seeking a treatment compliance order are proved by the evidence adduced at the hearing, which must include expert testimony by a psychiatrist or licensed clinical psychologist, the circuit judge or Mental Hygiene Commissioner may enter a treatment compliance order for a period not to exceed six months upon making the following findings:
(A) That the individual is eighteen years of age or older;
(B) That on two or more occasions within a twenty-four month period prior to the filing of the petition an individual, as a result of mental illness, has been hospitalized pursuant to the provisions of this chapter or has been convicted of a crime of violence against the person in which the individual's mental illness played a significant role;
(C) That the individual's previous hospitalizations as a result of mental illness, occurred as a result of the individual's failure to take medication as prescribed by a physician to treat the individual's mental illness or that the conviction or convictions within such period were crimes of violence against the person in which the individual's mental illness played a significant role;
(D) That a psychiatrist or licensed psychologist has within the preceding twenty-four months, issued a written opinion that the individual is, without the aid of the medication or other prescribed treatment, likely to cause harm;
(E) That the individual, in the absence of a court order requiring him or her to take medication or other treatment as prescribed, is unlikely to do so and that his or her failure to take medication or other treatment as prescribed is likely to lead to further instances in the reasonably near future in which the individual becomes likely to cause serious harm or commit a crime against the person;
(F) That, where necessary, a responsible entity or individual is available to assist and monitor the individual's compliance with an order requiring the individual to take the medication or other treatment as prescribed;
(G) That the individual can obtain and take the prescribed medication or other treatment without undue financial or other hardship; and
(H) That, if necessary, a medical provider is available to assess the individual within forty-eight hours of the entry of the treatment compliance order.
(4) The order may require an individual to take medication and treatment as prescribed and if appropriate to attend scheduled medication and treatment-related appointments: Provided, That a treatment compliance order shall be subject to termination or modification by a circuit judge or Mental Hygiene Commissioner if a petition is filed seeking termination or modification of the order and it is shown in a hearing on the petition that there has been a material change in the circumstances that led to the entry of the original order that justifies the order?s modification or termination: Provided, however, That a treatment compliance order may be extended by a circuit judge or Mental Hygiene Commissioner for additional periods of time not to exceed six months upon the filing of a petition seeking an extension and after a hearing on the petition or upon the agreement of the individual.
(5) (A) If a verified petition is filed alleging that an individual has not complied with a medication and treatment compliance order and if a circuit judge or Mental Hygiene Commissioner determines from the petition and any supporting evidence that there is probable cause to believe that the allegations in the petition are true, counsel shall be appointed for the individual and a copy of the petition and all supporting evidence shall be furnished to the individual and his or her counsel. If the circuit judge or Mental Hygiene Commissioner considers it necessary to protect the individual or to secure their examination, a detention order may be entered for the individual that may order that the individual be examined by a psychiatrist or licensed psychologist. A hearing on the allegations in the petition, which may be combined with a hearing on a probable cause petition or a final commitment hearing, shall be held before a circuit judge or Mental Hygiene Commissioner; if the individual is in custody as a result of a detention order, the hearing shall be held within seventy-two hours of the filing of the petition.
(B) At a hearing on the petition, the circuit judge or Mental Hygiene Commissioner shall determine whether the individual has complied with the terms of the medication and treatment compliance order. If the individual has complied with the order, the petition shall be dismissed. If the order has not been complied with, the circuit judge or Mental Hygiene Commissioner, after inquiring into the reasons for non-compliance and whether any aspects of the order should be modified, may continue the individual upon the terms of the original order and direct the individual to comply with the order, or may modify the order in light of the evidence at the hearing. If the evidence shows that the individual at the time of the hearing is likely to cause serious harm as a result of the individual?s mental illness the circuit judge or Mental Hygiene Commissioner may convert the proceeding into a probable cause proceeding and enter a probable cause order directing the involuntary admission of the individual to a mental health facility for examination and treatment.
(c) (1) The modified procedures may authorize that upon an ex parte showing to a circuit judge, Mental Hygiene Commissioner, or designated magistrate that there is probable cause to believe that an individual who has been hospitalized two or more times in the previous twenty-four months because of mental illness or convicted of one or more crimes of violence against the person in which the individual's mental illness played a significant part is likely to cause serious harm as a result of the individual?s mental illness and that the best interests of the individual would be served by immediate hospitalization, the judge, commissioner, or magistrate may, if the judicial officer determines that a hearing is not necessary, enter a temporary probable cause order directing the involuntary hospitalization of the individual at a mental health facility for examination and treatment.
(2) The modified procedures may authorize that the chief judge of a judicial circuit, or circuit judge if there is no chief judge, may enter orders authorizing specific psychiatrists or licensed psychologists, whose qualifications and training have been reviewed and approved by the Supreme Court of Appeals, to issue certifications that authorize and direct the involuntary admission of an individual subject to the provisions of this section on a temporary probable cause basis to a mental health facility for examination and treatment: Provided, That the authorized psychiatrist or psychologist must conclude and certify based on personal observation prior to certification that the individual is imminently likely to cause serious harm as a result of mental illness and the best interests of the individual require immediate hospitalization. Immediately upon such certification, the psychiatrist or psychologist shall provide notice of the certification to a circuit judge, Mental Hygiene Commissioner or designated magistrate in the county where the individual resides.
(3) No involuntary hospitalization pursuant to a temporary probable cause determination issued pursuant to the provisions of this section shall continue in effect for more than seventy-two hours without the filing of a petition for involuntary hospitalization and the occurrence of a probable cause hearing before a circuit judge, Mental Hygiene Commissioner or designated magistrate. If at any time the chief medical officer of the mental health facility to which the individual is admitted determines that the individual is not likely to cause serious harm as a result of mental illness, the chief medical officer shall discharge the individual and immediately forward a copy of the individual?s discharge to the circuit judge, Mental Hygiene Commissioner or designated magistrate. Such probable cause hearing shall be held within ninety-six hours of the individual being taken into custody.
(d) The Supreme Court of Appeals in consultation with the Secretary of the Department of Health and Human Resources and local mental health consumers and service providers may approve and implement other modified procedures in connection with mental hygiene proceedings that are consistent with the provisions of this section: Provided, That any modified procedure implemented pursuant to the provisions of this section shall be in written form and available for public examination.
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(NOTE: The purpose of this bill is to authorize modified mental hygiene procedures to be initially implemented in four to six judicial circuits for a period of four years. The procedures are: (1) To allow less restrictive judicial measures to address the failure or refusal by individuals to take necessary prescribed medication and treatment which causes the individuals to be repeatedly hospitalized or commit crimes; (2) to reduce the mandatory use of an initial full adversarial hearing process to temporarily hospitalize and stabilize patients who are likely to cause serious harm as a result of their mental illness or addiction.

The bill also allows hospitalization for up to seventy-two hours prior to probable cause hearing

This section is new; therefore, strike-throughs and underscoring have been omitted.)


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