Senate Bill No. 507
(Senators Palumbo, Wills, Tucker, Edgell, Kessler (Mr. President) and Klempa, original sponsors)
[Passed March 10, 2012; in effect ninety days from passage.]
AN ACT to amend and reenact §27-4-1 and §27-4-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §27-5-4 of said code; and to amend and reenact §61-7A-5 of said code, all relating generally to mental health; relating to the voluntary hospitalization at mental health facilities; relating to the voluntary admission of minors into a mental health facility for mental illness, intellectual disability or addiction; removing the requirement that the minor’s consent be secured before they are voluntarily admitted to a mental health facility if the minor is twelve years of age or older; requiring the consent of an emancipated minor before he or she is voluntarily committed; standards and procedures for releasing a minor who is fourteen years of age or older from voluntary hospitalization, when the minor objects to the admission or treatment; standards and procedures for the releasing a minor from voluntary hospitalization when the adult who sponsored the admission withdraws his or her consent; clarifying that the state is not obligated to pay for voluntary hospitalization; relating to the involuntary hospitalization into state mental health facilities; allocation and recapturing of copying and mailing costs associated with notice and orders for final commitment hearing and final order from counties; standards and requirements for the maintenance of mental health registry; prohibitions against persons adjudicated or committed as dangerous from possessing or carrying firearms; petitions for relief from prohibition to carry firearms; application to a court; limiting court’s consideration of petitions to cases where mental health adjudications or commitments occurred in this state; specifying minimum information which must be contained in such petitions; standards of review; applicable factors to be considered by court; required findings which must be made before petition for relief may be granted; right of appeal; reporting requirements; and requiring confidential treatment for certain submitted information.
Be it enacted by the Legislature of West Virginia:
That §27-4-1 and §27-4-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §27-5-4 of said code be amended and reenacted; and that §61-7A-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 4. VOLUNTARY HOSPITALIZATION.
§27-4-1. Authority to receive voluntary patients.
The chief medical officer of a mental health facility, subject to the availability of suitable accommodations and to the rules promulgated by the board of health, shall admit for diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill, intellectually disabled or addicted or who has manifested symptoms of mental illness, intellectual disability or addiction and who makes application for hospitalization; or
(b) Under eighteen years of age who is mentally ill, intellectually disabled or addicted or who has manifested symptoms of mental illness, intellectual disability or addiction and there is application for hospitalization therefor in his or her behalf:
(1) By the parents of such person;
(2) If only one parent is living, then by such parent;
(3) If the parents are living separate and apart, by the parent who has the custody of such person; or
(4) If there is a guardian who has legal custody of such person, then by such guardian.
(5) If the subject person under eighteen years of age is an emancipated minor, the admission of that person as a voluntary patient shall be conditioned upon the consent of the patient.
(c) No person under eighteen years of age may be admitted under this section to any state hospital unless person has first been reviewed and evaluated by a local mental health facility and recommended for admission.
(d) If the candidate for voluntary admission is a minor who is fourteen years of age or older, the admitting health care facility shall determine if the minor consents to or objects to his or her admission to the facility. If the parent or guardian who requested the minor’s admission under this section revokes his or her consent at any time, or if the minor fourteen years of age or older objects at any time to his or her further treatment, the minor shall be discharged within ninety-six hours to the custody of the consenting parent or guardian, unless the chief medical officer of the mental health facility files a petition for involuntary hospitalization, pursuant to the provisions of section three of this article, or the minor’s continued hospitalization is authorized as an involuntary hospitalization pursuant to the provisions of article five of this chapter: Provided, That, if the ninety-six hour time period would result in the minor being discharged and released on a Saturday, a Sunday or a holiday on which the court is closed, the period of time in which the patient shall be released by the facility shall be extended until the next day which is not a Saturday, Sunday or legal holiday on which the court is lawfully closed.
(e) Nothing in this section may be construed to obligate the State of West Virginia for costs of voluntary hospitalizations permitted by the provisions of this section.
§27-4-3. Right to release on application.
A voluntary patient who requests his or her release or whose release is requested in writing by his or her parents, parent, guardian, spouse or adult next of kin shall be released immediately except that:
(a) If the patient was admitted on his or her own application, and request for release is made by a person other than the patient, release shall be conditioned upon the agreement of the patient thereto;
(b) If the patient is under eighteen years of age, his or her release prior to becoming eighteen years of age may be conditioned upon the consent of the person or persons who applied for his or her admission; or
(c) If, within ninety-six hours of the receipt of the request, the chief medical officer of the mental health facility in which the patient is hospitalized files with the clerk of the circuit court or mental hygiene commissioner of the county where the facility is situated an application for involuntary hospitalization as provided in section four, article five of this chapter, release may be postponed for twenty days pending a finding in accordance with the legal proceedings prescribed therein.
Legal proceedings for involuntary hospitalization shall not be commenced with respect to a voluntary patient unless release of the patient has been requested by him or her or the individual or individuals who applied for his or her admission.
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 in which 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. If 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 by an adult person having personal knowledge of the facts of the case. The certificate or affidavit is filed with the clerk of the circuit court or mental hygiene commissioner of the county where the individual is a resident or where he or she may be found or the county of a 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 found.
(c) Oath; contents of application; who may inspect
application; when application cannot be filed. --
(1) The person making the application shall do so under oath.
(2) The application shall contain statements by the applicant that the individual is likely to cause serious harm to self or others due to what the applicant believes are symptoms of mental illness or addiction. The applicant shall state in detail the recent overt acts upon which the belief is based. (3) The written application, certificate, affidavit and any warrants issued pursuant thereto, including any related documents, filed with a circuit court, mental hygiene commissioner or designated magistrate for the involuntary hospitalization of an individual are not open to inspection by any person other than the individual, unless authorized by the individual or his or her legal representative or by order of the circuit court. The records may not be published unless authorized by the individual or his or her legal representative. Disclosure of these records may, however, be made by the clerk, circuit court, mental hygiene commissioner or designated magistrate to provide notice to the Federal National Instant Criminal Background Check System established pursuant to Section 103(d) of the Brady Handgun Violence Prevention Act, 18 U.S.C. §922, and the central state mental health registry, in accordance with article seven-a, chapter sixty-one of this code. Disclosure may also be made to the prosecuting attorney and reviewing court in an action brought by the individual pursuant to section five, article seven-a, chapter sixty-one of this code to regain firearm and ammunition rights.
(4) Applications 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 or addicted and that because of the mental illness or addiction, the individual is likely to cause serious harm to self or others if allowed to remain at liberty and, therefore, should be hospitalized. The certificate shall state in detail the recent overt acts on which the conclusion is based.
(2) A certificate is not necessary 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 if the next of kin 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 the individual's residence; and
(6) To the prosecuting attorney of the county in which the hearing is to be held.
(f) The 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:
(1) The nature of the charges against the individual;
(2) The facts underlying and supporting the application of involuntary commitment;
(3) The right to have counsel appointed;
(4) The right to consult with and be represented by counsel at every stage of the proceedings; and
(5) 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
(g) 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 or addiction of the individual and the likelihood of causing serious harm to self or 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 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 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 or addicted and might be harmful to self or others, then the proceedings for involuntary hospitalization shall be dismissed.
(h) 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 the hearing shall be afforded an opportunity to testify and to present and cross-examine witnesses.
(2) In the event 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 has the right to have an examination by an independent expert of his or her choice and to present testimony from the expert as a medical witness on his or her behalf. The cost of the independent expert is paid by the individual unless he or she is indigent.
(4) The individual may not be compelled to be a witness against himself or herself.
(i) Duties of counsel representing individual; payment of counsel representing indigent. -
(1) Counsel representing an individual shall conduct a timely interview, make investigation and secure appropriate witnesses, be present at the hearing and protect the interests of the individual.
(2) Counsel representing an individual 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.
(j) 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 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. A
psychologist or physician testifying shall bring all records
pertaining to the individual to the hearing. 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 made available to the individual, his or her counsel or the prosecuting attorney within thirty days if requested for the purpose of further proceedings. In any case where 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.
(k) Requisite findings by the court. --
(1) Upon completion of the final commitment hearing and the evidence presented in the hearing, the circuit court or mental hygiene commissioner shall make findings as to the following:
(A) Whether the individual is mentally ill or addicted;
(B) Whether, because of illness or addiction, the individual is likely to cause serious harm to self or others if allowed to remain at liberty;
(C) Whether the individual is a resident of the county in
which the hearing is held or currently is a patient at a mental
health facility in the county; and
(D) Whether 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 is on the person or persons seeking the commitment of the individual.
(2) The findings of fact shall be incorporated into the order entered by the circuit court and must be based upon clear, cogent and convincing proof.
(l) 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 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 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 expires 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 and Human Resources, upon findings based on an examination of the patient by a physician or a psychologist, extends the order for indeterminate hospitalization. If the patient or his or her counsel requests a hearing, 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.
(m) Dismissal of proceedings. -- If the circuit court or mental hygiene commissioner finds that the individual is not mentally ill or addicted, the proceedings shall be dismissed. If the circuit court or mental hygiene commissioner finds that the individual is mentally ill or addicted but is not, because of the illness or addiction, likely to cause serious harm to self or others if allowed to remain at liberty, the proceedings shall be dismissed.
(n) 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 of the order forward a certified copy of the order to the clerk of the circuit court of the county of which the individual is a resident.
(o) 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 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 the individual is a resident. The clerk shall immediately present the transcript to the circuit court or mental hygiene commissioner of 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 the transcript that 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 the order promptly.
(p) 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 the responsible person a bond in an amount to be determined by the circuit court with condition to restrain and take proper care of the individual until further order of the court.
(q) Individual not a resident of this state. -- If the individual found to be mentally ill 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.
(r) 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 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 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.
(s) 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 the court reporter fees 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 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. The copying and mailing costs associated with providing notice of the final commitment hearing and issuance of the final order shall be paid by the county where the involuntary commitment petition was initially filed.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS PROCEDURES.
§61-7A-5. Petition to regain right to possess firearms.
(a) Any person who is prohibited from possessing a firearm pursuant to the provisions of section seven, article seven of this chapter or by provisions of federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm.
(b) Petitioners prohibited from possession of firearms due to a mental health disability, must include in the petition for relief from disability:
(1) A listing of facilities and location addresses of all prior mental health treatment received by petitioner;
(2) An authorization, signed by the petitioner, for release of mental health records to the prosecuting attorney of the county; and
(3) A verified certificate of mental health examination by a licensed psychologist or psychiatrist occurring within thirty days prior to filing of the petition which supports that the petitioner is competent and not likely to act in a manner dangerous to public safety.
(c) The court may only consider petitions for relief due to mental health adjudications or commitments that occurred in this state, and only give the relief specifically requested in the petition.
(d) In determining whether to grant the petition, the court shall receive and consider at a minimum evidence:
(1) Concerning the circumstances regarding the firearms disabilities imposed by 18 U.S.C. §922(g)(4);
(2) The petitioner’s record which must include the petitioner’s mental health and criminal history records; and
(3) The petitioner’s reputation developed through character witness statements, testimony, or other character evidence.
(e) If the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm, will not be likely to act in a manner dangerous to public safety, and that granting the relief will not be contrary to public interest, the court may enter an order allowing the petitioner to possess a firearm. If the order denies petitioner’s ability to possess a firearm, the petitioner may appeal the denial, which appeal is to include the record of the circuit court rendering the decision.
(f) All proceedings for relief to regain firearm or ammunition rights shall be reported or recorded and maintained for review.
(g) The prosecuting attorney or one of his or her assistants shall represent the state in all proceedings for relief to regain firearm rights and provide the court the petitioner’s criminal history records.
(h) The written petition, certificate, mental health or substance abuse treatment records and any papers or documents containing substance abuse or mental health information of the petitioner, filed with the circuit court, are confidential. These documents may not be open to inspection by any person other than the prosecuting attorney or one of his or her assistants only for purposes of representing the state in and during these proceedings and by the petitioner and his or her counsel. No other person may inspect these documents, except upon authorization of the petitioner or his or her legal representative or by order of the court, and these records may not be published except upon the authorization of the petitioner or his or her legal representative.(i) The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police, or his or her designee, and the Administrator of the West Virginia Supreme Court of Appeals, or his or her designee, with a certified copy of any order entered pursuant to the provisions of this section which removes a petitioner’s prohibition to possess firearms. If the order restores the petitioner's ability to possess a firearm, petitioner's name shall be promptly removed from the central state mental health registry and the superintendent or administrator shall forthwith inform the Federal Bureau of Investigation, the United States Attorney General, or other federal entity operating the National Instant Criminal Background Check System of the court action.