H. B. 2478
(By Delegates Wills and Mahan)
[Introduced February 22, 2001; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend and reenact sections eleven and twelve, article
one, chapter twenty-seven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact sections one, two, three, four and ten, article five
of said chapter; and to amend and reenact section two, article
seven of said chapter, all relating to mental hygiene
generally; updating definitions; creating an outpatient
commitment alternative; required findings for commitment;
directing convalescent status for certain patients; training
for new commissioner; and authorizing the hiring of municipal
officers for transportation.
Be it enacted by the Legislature of West Virginia:
That sections eleven and twelve, article one, chapter twenty-seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; that
sections one, two, three, four and ten, article five of said
chapter be amended and reenacted; and that section two, article
seven of said chapter be amended and reenacted, all to read as
follows:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-11. Addiction.
"Addiction" means the periodic, frequent or constant use of
alcohol, narcotic or other intoxicating or stupefying substance to
the point of being incapacitated.
(a) As used in this chapter, "addiction" means:
A maladaptive pattern of substance use leading to clinically
significant impairment or distress, as manifested by one (or more)
of the following occurring within thirty days prior to the filing
of the petition.
(1) Recurrent substance use resulting in a failure to fulfill
major role obligations at work, school, or home, including, but not
limited, to repeated absences or poor work performance related to
substance use; substance-related absences, suspensions, or
expulsions from school; neglect of children or household.
(2) Recurrent use in situations in which it is physically hazardous, including, but not limited to, driving while intoxicated
or operating a machine when impaired by substance use.
(3) Recurrent substance-related legal problems.
(4) Continued use despite knowledge of having persistent or
recurrent social or interpersonal problems caused or exacerbated by
the effects of the substance.
(b) As used in this section "substance" shall mean alcohol,
controlled substances as defined in sections two hundred four, two
hundred five, two hundred six and two hundred seven, article two,
chapter sixty-a of this code, or anything consumed for its
psychoactive effect whether or not designed for human consumption.
§27-1-12. Likely to cause serious harm.
"Likely to cause serious harm" refers to a person who has:
(1) A substantial tendency to physically harm himself which is
manifested by threats of or attempts at suicide or serious bodily
harm or other conduct, either active or passive, which demonstrates
that he is dangerous to himself; or
(2) A substantial tendency to physically harm other persons
which is manifested by homicidal or other violent behavior which
places others in reasonable fear of serious physical harm; or
(3) A complete inability to care for himself by reason of mental retardation; or
(4) Become incapacitated as defined in section sixteen of this
article.
(a) "Likely to cause serious harm" means that:
An individual is exhibiting behaviors consistent with a mental
disorder or addiction that is found in the American psychiatric
association's current diagnostic and statistical manual of mental
disorders, excluding, however, disorders that are manifested only
through antisocial or illegal behavior; and
(1) The individual has inflicted or attempted to inflict
bodily harm on another;
(2) The individual, by threats or actions, has placed others
in reasonable fear of physical harm to themselves;
(3) The individual, by actions or inactions, has presented a
danger to others in his or her care;
(4) The individual has threatened or attempted suicide or
serious bodily harm to himself or herself; or
(5) The individual has behaved in such a manner as to indicate
that he or she is unable, without supervision and the assistance of
others, to satisfy his or her need for nourishment, personal or
medical care, shelter, or self-protection and safety, so that it is probable that death, substantial physical bodily injury, serious
mental decompensation or serious physical debilitation or disease
will ensue unless adequate treatment is afforded.
(b) In making the "likely to cause serious harm" determination
judicial, medical, psychological and other decision-makers should
use all available psychosocial, medical and psychiatric history
that is relevant to a current situation, in addition to the
individual's current overt behavior, without regard to strict rules
of evidence.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-1. Appointment of mental hygiene commissioner; duties of
mental hygiene commissioner; duties of prosecuting
attorney; duties of sheriff; duties of supreme court
of appeals; use of certified municipal law-enforcement
officers.
(a)
Appointment of mental hygiene commissioners. -- The chief
judge in each judicial circuit of this state shall appoint a
competent attorney and may, if necessary, appoint additional
attorneys to serve as mental hygiene commissioners to preside over
involuntary hospitalization hearings. Mental hygiene commissioners
shall be persons of good moral character and of standing in their
profession and they shall, before assuming the duties of
such the
commissioner, take the oath required of other special commissioners
as provided in article one, chapter six of this code.
All persons newly appointed to serve as mental hygiene
commissioners shall attend and complete an orientation course,
within one year of their appointment, consisting of at least three
days of training provided annually by the supreme court of appeals.
In addition, persons appointed to serve as existing mental hygiene
commissioners and any magistrates designated by the chief judge of
a judicial circuit to hold probable cause and emergency detention
hearings involving involuntary hospitalization must shall attend
and complete a course provided by the supreme court of appeals
which course shall include, but not be limited to, instruction on
the manifestations of mental illness mental retardation and
addiction. Persons attending
such the
courses outside the county
of their residence shall be reimbursed out of the budget of the
supreme court -- general judicial for reasonable expenses incurred.
The supreme court shall establish rules for such course courses,
including rules providing for the reimbursement of reasonable
expenses as authorized herein.
(b) Duties of mental hygiene commissioners. -- Mental hygiene
commissioners may sign and issue summonses for the attendance, at any hearing held pursuant to section four, article five of this
chapter, of the individual sought to be committed; may sign and
issue subpoenas for witnesses, including subpoenas duces tecum; may
place any witness under oath; and may make findings of fact on
evidence and may make conclusions of law, but
such the
findings and
conclusions shall not be binding on the circuit court. The circuit
court, by order entered of record, shall allow the commissioner a
reasonable fee for services rendered in connection with each case.
Mental hygiene commissioners shall discharge their duties and hold
their office at the pleasure of the chief judge of the judicial
circuit in which he or she is appointed and may be removed at any
time by
such the
chief judge. It shall be the duty of a mental
hygiene commissioner to conduct orderly inquiries into the mental
health of the individual sought to be committed concerning the
advisability of committing the individual to a mental health
facility. The mental hygiene commissioner shall safeguard, at all
times, the rights and interests of the individual as well as the
interests of the state. The mental hygiene commissioner shall make
a written report of his or her findings to the circuit court. In
any proceedings before any court of record as set forth in this
article, the court of record shall appoint an interpreter for any individual who is deaf or cannot speak or who speaks a foreign
language and who may be subject to involuntary commitment to a
mental health facility.
(c) Duties of prosecuting attorney. -- It shall be the duty of
the prosecuting attorney or one of his or her assistants to
represent the applicants in all proceedings filed pursuant to the
provisions of this article.
(d) Duties of sheriff. -- Upon written order of the circuit
court or of a mental hygiene commissioner in the county where the
individual formally accused of being mentally incompetent, mentally
retarded ill or addicted or is a resident or is found, the sheriff
of that county shall take said the individual into custody and
transport him or her to and from the place of hearing and the
mental health facility. The sheriff shall also maintain custody
and control of the accused individual during the period of time in
which the individual is waiting for the involuntary commitment
hearing to be convened and while
such the
hearing is being
conducted: Provided, That an individual transported into this
state from another state for purposes of treatment shall upon a
finding of probable cause be transferred to his or her state of
residence for treatment pursuant to the provisions of subsection (p), section four of this article.
(e) Duties of sheriff upon presentment to mental health care
facility. -- Where a person is brought to a mental health care
facility for purposes of evaluation for commitment under the
provisions of this article, if he or she is violent or combative,
the sheriff or his or her designee, shall maintain custody of the
person in the facility until the evaluation is completed or the
county commission shall reimburse the mental health care facility
at a reasonable rate for security services provided by the mental
health care facility for the period of time the person is at the
hospital prior to the determination of mental competence or
incompetence.
(f) Duties of supreme court of appeals. -- The supreme court
of appeals shall provide uniform petition, procedure and order
forms which shall be used in all involuntary hospitalization
proceedings brought in this state.
§27-5-2. Institution of proceedings for involuntary custody for
examination; custody; probable cause hearing;
examination of individual.
(a) When application for involuntary custody for examination
may be made. -- Any adult person may make application for involuntary hospitalization for examination of an individual when
said the person has reason to believe that:
(1) The individual is addicted, as defined in section eleven,
article one of this chapter; Provided, That for purposes of this
subdivision and the involuntary hospitalization procedures
specified in this article, the sole issue to be determined is
whether the individual is addicted, which by definition includes
the notion of being incapacitated, causing harm to others or being
unable to prevent harm to himself: Provided, however, That
whenever a provision of this article refers to or requires a
finding of likelihood to cause serious harm, a finding that an
individual is addicted shall be deemed to satisfy such reference or
requirement; or
(2) The individual is mentally ill mentally retarded and,
because of his or her mental illness, or mental retardation the
individual is likely to cause serious harm to himself or herself or
to others if allowed to remain at liberty while awaiting an
examination and certification by a physician or psychologist.
(b) Oath; to whom application for involuntary custody for
examination is made; contents of application; custody; probable
cause hearing; examination. --
(1) The person making
such the
application shall do so under
oath.
(2) Application for involuntary custody for examination may be
made to the circuit court or a mental hygiene commissioner of the
county in which the individual resides or of the county in which he
or she may be found.
(3) The person making
such the
application shall give such
information and state such facts therein as may be required, upon
the form provided for this purpose by the supreme court of appeals.
(4) The circuit court or the mental hygiene commissioner may
thereupon enter an order for the individual named in
such the
action to be detained and taken into custody, for the purpose of
holding a probable cause hearing as provided for in subdivision (5)
of this subsection and for the purpose of an examination of the
individual by a physician or a psychologist.
Such The
examination
shall be provided or arranged by a community mental health center
designated by the secretary of the department of health and human
resources to serve the county in which the action takes place. The
said order shall specify that
such the
hearing be held forthwith
and shall provide for the appointment of counsel for the
individual: Provided, That where a physician or psychologist has performed
such the
examination, the community mental health center
may waive this requirement upon approving
such the
examination.
Notwithstanding the provisions of this subsection, subsection (r),
section four of this article shall apply regarding payment by the
county commission for examinations at hearings.
In the event immediate detention is believed to be necessary
for the protection of the individual or others at a time when no
circuit court judge or mental hygiene commissioner is available for
immediate presentation of the application, a magistrate designated
by the chief judge of the judicial circuit may accept the
application and, upon a finding that such immediate detention is
necessary pending presentation of the application to the circuit
court or mental hygiene commissioner, may order the individual to
be temporarily detained in custody until the earliest reasonable
time that the application can be presented to the circuit court or
mental hygiene commissioner, which temporary period of detention
may not exceed twenty-four hours.
(5) A probable cause hearing shall be held before a magistrate
designated by the chief judge of the judicial circuit, the mental
hygiene commissioner or circuit judge of the county of which the
individual is a resident or where he or she was found. If requested by the individual or his or her counsel, the hearing may
be postponed for a period not to exceed forty-eight hours.
The individual must be present at the hearing and shall have
the right to present evidence, confront all witnesses and other
evidence against him or her and to examine testimony offered,
including testimony by representatives of the community mental
health center serving the area. The individual shall have the
right to remain silent and to be proceeded against in accordance
with the rules of evidence of the supreme court of appeals. At the
conclusion of the hearing, the magistrate, mental hygiene
commissioner or circuit court judge shall find and enter an order
stating whether or not there is probable cause to believe that
such
the
individual, as a result of mental illness, mental retardation
or addiction, is likely to cause serious harm to himself or herself
or to others or is addicted.
(6) If the magistrate, mental hygiene commissioner or circuit
court judge finds that the individual, as a result of mental
illness, is likely to cause serious harm to himself, herself, or
others or is addicted the magistrate, mental hygiene commissioner
or circuit court judge may consider evidence on the question of
whether the individual's circumstances make him or her amenable to treatment in a nonresidential or nonhospital setting. If the
magistrate, mental hygiene commissioner or circuit court judge
determines that treatment is available in a nonresidential or
nonhospital setting the individual may be committed but
conditionally released to out-patient treatment upon such terms and
conditions as will effectuate treatment. The failure of an
individual committed but conditionally released to outpatient
treatment to follow the treatment plan developed by the mental
health provider shall constitute proof that the
treatment is
insufficient and, after a hearing before a magistrate, mental
hygiene commissioner or circuit judge on the issue of whether or
not the individual failed or refused to comply with the terms and
conditions of conditional release, may cause the entry of an order
requiring admission under involuntary hospitalization pursuant to
the provisions of section three of this article. In the event a
person conditionally released to outpatient treatment pursuant to
this subdivision is unable to pay for the outpatient treatment and
has no applicable insurance coverage, including, but not limited
to, private insurance or medicaid, the secretary of health and
human resources may transfer funds for the purpose of reimbursing
community providers for services provided on an outpatient basis for individuals for whom payment for treatment is the
responsibility of the department: Provided, That the department
may not authorize payment of outpatient services for an individual
in an amount in excess of the cost of involuntary hospitalization
of the individual.
Time limitations set forth in this article
relating to periods of involuntary hospitalization do not apply to
conditional release commitments: Provided, however, That no
conditional release commitment may be in effect for more than six
months, unless renewed following a hearing before a mental hygiene
commissioner or circuit judge.
(7) If the certifying physician or psychologist determines
that a person requires involuntary hospitalization for an addiction
to a substance which due to the degree of addiction creates a
reasonable likelihood that withdrawal or detoxification from the
substance of addiction will cause significant medical complications
the person certifying the individual shall recommend that the
individual be closely monitored for possible medical complications.
If the magistrate, mental hygiene commissioner or circuit court
judge presiding orders involuntary hospitalization, he or she shall
include a recommendation that the individual be closely monitored
in the order of commitment.
§27-5-3. Admission under involuntary hospitalization for
examination; hearing; release.
(a) Admission to a mental health facility for examination. --
Any individual may be admitted to a mental health facility for
examination upon entry of an order finding probable cause as
provided in section two of this article and upon certification by
one physician or one psychologist that he or she has examined the
individual and is of the opinion that the individual is mentally
ill, mentally retarded or addicted and because of such mental
illness, mental retardation or addiction is likely to cause serious
harm to himself or herself or to others if not immediately
restrained or is addicted. The chief medical officer of said the
mental health facility may, with the approval of the secretary of
health and human resources, transfer
such the
individual to a state
hospital or to another similar type of mental health facility after
determining that no less restrictive treatment alternative is
suitable or available. The chief medical officer of the mental
health facility admitting the individual shall forthwith make a
report thereof to the secretary of the department of health and
human resources.
(b) Three-day time limitation on examination. -- If said the examination does not take place within three days from the date the
individual is taken into custody, the individual shall be released.
If the examination reveals that the individual is not mentally ill,
mentally retarded or addicted, the individual shall be released.
(c) Three-day time limitation on certification. -- The
certification required in subsection (a) of this section shall be
valid for three days. Any individual with respect to whom
such the
certification has been issued may not be admitted on the basis
thereof at any time after the expiration of three days from the
date of
such the
examination.
(d) Findings and conclusions required for certification. -- A
certification under this section must include findings and
conclusions of the mental examination, the date, time and place
thereof and the facts upon which the conclusion of likelihood of
causing serious harm that involuntary commitment is necessary is
based.
(e) Notice requirements. -- When an individual is admitted to
a mental health facility pursuant to the provisions of this
section, the chief medical officer thereof shall immediately give
notice of the individual's admission to the individual's spouse, if
any, and one of the individual's parents or guardians, or if there be no such spouse, parents or guardians, to one of the individual's
adult next of kin: Provided, That
such the
next of kin shall not
be the applicant. Notice shall also be given to the community
mental health facility, if any, having jurisdiction in the county
of the individual's residence. Such Notices other than to the
community mental health facility shall be in writing and shall be
transmitted to
such the
person or persons at his, her or their
last-known address by certified or registered mail, return receipt
requested.
(f) Five-day time limitation for examination and certification
at mental health facility. -- After the individual's admission to
a mental health facility, he or she may not be detained more than
five days excluding Sundays and holidays, unless, within
such the
period, the individual is examined by a staff physician and
such
the
physician certifies that in his or her opinion, the patient is
mentally ill, mentally retarded or addicted and is likely to injure
himself or herself or others or will continue to abuse a substance
to which he or she is addicted if allowed to be at liberty.
(g) Ten-day time limitation for institution of final
commitment proceedings. -- If, in the opinion of the examining
physician, the patient is mentally ill, mentally retarded or addicted and because of such mental illness, mental retardation or
addiction is likely to injure himself or herself or others or will
continue to abuse a substance to which he or she is addicted if
allowed to be at liberty, the chief medical officer shall, within
ten days from the date of admission, institute final commitment
proceedings as provided in section four of this article. If
such
the
proceedings are not instituted within
such the
ten-day period,
the patient shall be immediately released. After the request for
hearing is filed, the hearing shall not be canceled on the basis
that the individual has become a voluntary patient unless the
mental hygiene commissioner concurs in the motion for cancellation
of the hearing.
(h) Thirty-day time limitation for conclusion of all
proceedings. -- If all proceedings as provided in articles three
and four of this chapter are not completed within thirty days from
the date of institution of
such the
proceedings, the patient shall
be immediately released.
§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 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 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 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 or is addicted 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 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 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 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 or is addicted 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 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 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 or being addicted.
(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 an 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 of these orders
shall be directed to the sheriff of the county or other appropriate
law-enforcement officer. After such an 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, or is addicted 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 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 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 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
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
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 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
or is addicted 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 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 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 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 the
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 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 court
reporter fees as 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.
§27-5-10. Transportation for the mentally ill or substance abuser.
(a) Whenever transportation of an individual is required under
the provisions of article four or five of this chapter, it shall be
the duty of the sheriff to provide immediate transportation to or from the appropriate mental health facility or state hospital:
Provided, That upon the written request of a person having a proper
interest in the individual's hospitalization, the sheriff may
permit
such the
person to arrange for the individual's
transportation to the mental health facility or state hospital by
such means as may be suitable for that person's mental condition.
(b) Upon written agreement between the county commission on
behalf of the sheriff and the directors of the local community
mental health center and emergency medical services, an alternative
transportation program may be arranged. The agreement shall
clearly define the responsibilities of each of the parties, the
requirements for program participation and the persons bearing
ultimate responsibility for the individual's safety and well-being.
(c) Use of certified municipal law-enforcement officers. --
Sheriffs and municipal governments are hereby authorized to enter
into written agreements whereby certified municipal law-enforcement
officers may perform the duties of the sheriff as described in
this article. The agreement shall determine jurisdiction,
responsibility of costs and all other necessary requirements,
including training related to the performance of these duties, and
shall be approved by the county commission and circuit court of the county in which the agreement is made. For purposes of this
subsection, "certified municipal law-enforcement officer" means any
duly authorized member of a municipal law-enforcement agency who is
empowered to maintain public peace and order, make arrests and
enforce the laws of this state or any political subdivision
thereof, other than parking ordinances, and who is currently
certified as a law-enforcement officer pursuant to article
twenty-nine, chapter thirty of this code.
(d) Nothing in this section is intended to alter security
responsibilities for the patient by the sheriff unless mutually
agreed upon as provided in subsection (b) (c) above.
ARTICLE 7. RELEASE, DISCHARGE AND READMISSION OF PATIENTS;
ESCAPEES.
§27-7-2. Release of patients on convalescent status.
(a) The chief medical officer of a mental health facility may
release an involuntary patient on convalescent status (trial visit)
when the chief medical officer believes
such the
release is in the
best interest of the patient. Release on convalescent status shall
include provisions for continuing responsibility to and by a mental
health facility, not necessarily the facility in which the patient
was previously hospitalized, including a plan of treatment on an
outpatient basis to insure that the patient receives whatever care and treatment he or she might require. At the end of six months on
convalescent status, the patient must be discharged from any
involuntary commitment order that might have been entered against
him or her and he or she
cannot be involuntarily returned to any
mental health facility unless a new commitment proceeding has been
instituted against him or her.
When a patient released on
convalescent status is discharged from his involuntary commitment,
it shall be the responsibility of the chief medical officer of the
mental health facility of which the individual was a patient prior
to being placed on convalescent status to immediately make a report
of the discharge of the patient to the circuit court or mental
hygiene commissioner of the county in which the involuntary
hospitalization was ordered and to the circuit court or mental
hygiene commissioner of the county wherein the individual is a
resident.
(b) Notwithstanding any provision of this code to the
contrary, anytime an individual is committed for treatment pursuant
to the provisions of article five of this chapter due to a mental
illness and it is determined by the medical director that the use
of medication by the individual is necessary to avoid the
reoccurrence of the behavior which caused the involuntary hospitalization, initial release from involuntary hospitalization
shall be on convalescent status unless the medical director makes
a written finding that release on convalescent status will serve no
treatment purpose. A person's failure to comply with the terms and
conditions of convalescent status shall constitute prima facie
grounds to return the patient to inpatient treatment, if ordered by
a magistrate, hygiene commissioner or circuit judge following a
hearing in which the issue is solely whether or not the person
complied with the terms and conditions of convalescent status.
NOTE: This bill would require each newly appointed mental
hygiene commissioners to take a three-day orientation course given
by the West Virginia Supreme Court of Appeals within one year of
his or her appointment, and would allow sheriffs and municipal
law-enforcement agencies to enter written agreements permitting
certified municipal law-enforcement officers to perform the duties
required of the sheriff under this section.
The bill changes the definition of "addiction" to bring it
into compliance with current medical practice, creates an
outpatient alternative to hospitalization for persons found to be
subject to commitment and requires persons released from
involuntary commitment to be released on convalescent status if
they require medication to avoid engaging in the behavior which
caused commitment. The medical director is authorized to waive
this requirement.
The bill also updates the definition of "likely to cause
serious harm" to be in compliance with modern medical terminology
and removes mental retardation alone as basis for commitment to
comport with current law and practice.
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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