Introduced Version
House Bill 2401 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2401
(By Delegates M. Smith, C. Miller, Morgan,
Stephens and Reynolds)
[Introduced February 13, 2013; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact §27-5-4 of the Code of West Virginia,
1931, as amended, relating to requiring the Department of
Health and Human Resources to reimburse the circuit clerk of
the county for expenses of filing, postage and copies of
involuntary commitment hearings.
Be it enacted by the Legislature of West Virginia:
That §27-5-4 of the Code of West Virginia, 1931, 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 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
hearing.
(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.
(3) The Department of Health and Human Resources shall
reimburse the circuit clerk of the county where the hearings are
held for expenses of filing, postage and copies.
NOTE: The purpose of this bill is to require the Department of
Health and Human Resources to reimburse the circuit clerk of the
county where involuntary commitment hearings are held for expenses
of filing, postage and copies.
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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