HB 2587 Text

H. B. 2587

          (By Delegates Sobonya, Miller, Nelson, J., Westfall, Poore, Fleischauer, Shott, Ellem, McCuskey,
Espinosa and Manchin)

          [Introduced February 21, 2013; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact §27-5-9 of the Code of West Virginia, 1931, as amended, relating to mentally ill persons; involuntary hospitalization; rights of patients; and right to have records expunged when hospitalization is based upon a wrong diagnosis of condition.
Be it enacted by the Legislature of West Virginia:
     That §27-5-9 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-9. Rights of patients.
     (a) No person may be deprived of any civil right solely by reason of his or her receipt of services for mental illness, intellectual disability or addiction, nor does the receipt of the services modify or vary any civil right of the person, including, but not limited to, civil service status and appointment, the right to register for and to vote at elections, the right to acquire and to dispose of property, the right to execute instruments or rights relating to the granting, forfeiture or denial of a license, permit, privilege or benefit pursuant to any law, but a person who has been adjudged incompetent pursuant to article eleven of this chapter and who has not been restored to legal competency may be deprived of such rights. Involuntary commitment pursuant to this article does not of itself relieve the patient of legal capacity.
     (b) Each patient of a mental health facility receiving services from the facility shall receive care and treatment that is suited to his or her needs and administered in a skillful, safe and humane manner with full respect for his or her dignity and personal integrity.
     (c) Every patient has the following rights regardless of adjudication of incompetency:
     (1) Treatment by trained personnel;
     (2) Careful and periodic psychiatric reevaluation no less frequently than once every three months;
     (3) Periodic physical examination by a physician no less frequently than once every six months; and
     (4) Treatment based on appropriate examination and diagnosis by a staff member operating within the scope of his or her professional license.
     (d) The chief medical officer shall cause to be developed within the clinical record of each patient a written treatment plan based on initial medical and psychiatric examination not later than seven days after he or she is admitted for treatment. The treatment plan shall be updated periodically, consistent with reevaluation of the patient. Failure to accord the patient the requisite periodic examinations or treatment plan and reevaluations entitles the patient to release.
     (e) A clinical record shall be maintained at a mental health facility for each patient treated by the facility. The record shall contain information on all matters relating to the admission, legal status, care and treatment of the patient and shall include all pertinent documents relating to the patient. Specifically, the record shall contain results of periodic examinations, individualized treatment programs, evaluations and reevaluations, orders for treatment, orders for application for mechanical restraint and accident reports, all signed by the personnel involved.
     (f) Every patient, upon his or her admission to a hospital and at any other reasonable time, shall be given a copy of the rights afforded by this section.
     (g) The Secretary of the Department of Health and Human Resources shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to protect the personal rights of patients not inconsistent with this section and the provisions of subsection (h) of this section relating to the procedure to expunge records of involuntary hospitalization.
_____(h) Notwithstanding any provision of this chapter or any other provision of law to the contrary, if a person is hospitalized involuntarily as the result of an improper diagnosis of a medical, mental or physical condition resulting from the use of a legally prescribed medication, all records pertaining to the involuntary hospitalization shall be expunged. The Secretary of the Department of Health and Human Resources shall accept evidence from a qualified forensic psychiatrist, qualified forensic psychologist or qualified forensic evaluator, as those terms are defined in section one, article six-a of this chapter, concerning the proper diagnosis of the condition of the person hospitalized involuntarily, and that the underlying cause was identified and corrected. The secretary shall inform any person or other legal entity that has received information, under the exceptions listed in section one, article three of this chapter, concerning the involuntary hospitalization of the person that the hospitalization was the result of an improper diagnosis and that all records of involuntary hospitalization are expunged.

     NOTE: The purpose of this bill is to provide persons who have been hospitalized involuntarily the right to have records expunged when the hospitalization was based upon a wrong diagnosis of condition.
     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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