Senate Bill No. 191
(By Senators Kessler, Hunter, Foster, Sharpe, Unger and Sprouse)
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[Introduced February 15, 2005; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §27-5-11, relating to
authorizing implementation of modified mental hygiene
procedures, including medication and treatment compliance and
temporary probable cause orders in certain judicial circuits;
and reporting requirement.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §27-5-11, to read as
follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Supreme Court of Appeals, in collaboration with others,
to institute modified mental hygiene procedures; authorizing the use of videoconferencing and
telephonic hearings.
(a) The Supreme Court of Appeals shall, in consultation with
the Secretary of the Department of Health and Human Resources and
local mental health services consumers and providers implement in
at least four and no more than six judicial circuits, beginning on
the first day of July, two thousand six, modified mental hygiene
procedures that are consistent with the requirements set forth in
this section. The judicial circuits selected for implementing the
modified procedures shall be circuits in which the Supreme Court of
Appeals determines in consultation with the Secretary of the
Department of Health and Human Resources and local mental health
consumers and service providers that adequate resources will be
available to implement the modified procedures. The Supreme Court
of Appeals in consultation with the Secretary of the Department of
Health and Human Resources and local mental health services
consumers and service providers shall prescribe appropriate forms
to implement the modified procedures, and shall annually prepare a
report on the use of the modified procedures and transmit the
report to the Legislature on or before the last day of each
calendar year. The Supreme Court of Appeals may in consultation
with the Secretary of the Department of Health and Human Resources
and local mental health services consumers and providers during the
pilot program period further modify any specific modified procedures that are implemented: Provided, That the modified
procedures are consistent with the requirements of this chapter and
this section. If the Secretary of the Department of Health and
Human Resources determines that the use of any modified procedure
in one or more judicial circuits is placing an unacceptable
additional burden upon state mental health resources, the Supreme
Court of Appeals shall in consultation with the Secretary modify
the procedures used in such a fashion as will address the concerns
of the Secretary, consistent with the requirements of this chapter.
If the Supreme Court of Appeals in consultation with the Secretary
of the Department of Health and Human Resources and local mental
health services consumers and providers after having implemented
and evaluated the use and implementation of modified mental hygiene
procedures for a period of three years determines that the modified
procedures are suitable for continuation, and application in
additional judicial circuits, the court shall continue or implement
the procedures in such judicial circuits as the court in
consultation with the Secretary determines to be appropriate; if
the court in consultation with the Secretary concludes that
further legislation is desirable, it shall so inform the
Legislature.
(b)(1) The modified procedures shall authorize that a verified
petition seeking a medication and treatment compliance order may be
filed by any person alleging:
(A) That on two or more occasions within a twenty-four-month
period prior to the filing of the petition an individual, as a
result of mental illness, has been hospitalized because the
individual was likely to cause serious harm or has committed a
criminal offense;
(B) That the individual?s hospitalization or commission of a
criminal offense, as a result of mental illness, occurred as a
result of the individual?s failure to take medication or other
treatment as prescribed by a physician or licensed clinical
psychologist to treat the individual?s mental illness;
(C) That the individual, in the absence of a court order
requiring the individual to take medication or other treatment as
prescribed, is unlikely to do so and that the individual?s failure
to take medication or other treatment as prescribed is likely to
lead to further instances in the reasonably near future in which
the individual becomes likely to cause serious harm or commit a
criminal offense;
(D) That a responsible entity or individual is available if
necessary to assist and monitor the individual?s compliance with an
order requiring the individual to take medication or other
treatment as prescribed; and
(E) That the individual can obtain and take the prescribed
medication or other treatment without undue financial or other
hardship.
(2) Upon the filing of a petition seeking a medication and
treatment compliance order and the petition?s review by a circuit
judge or mental hygiene commissioner, counsel shall be appointed
for the individual if the individual does not already have counsel
and a copy of the petition and all supporting evidence shall be
furnished to the individual and their counsel. If the circuit judge
or mental hygiene commissioner determines on the basis of the
petition that it is necessary to protect the individual or to
secure their examination, a detention order may be entered for the
individual ordering that the individual be taken into custody and
examined by a physician or licensed clinical psychologist. A
hearing on the allegations in the petition, which may be combined
with a hearing on a probable cause petition or a final commitment
hearing, shall be held before a circuit judge or Mental Hygiene
Commissioner; if the individual is in custody as a result of a
detention order, the hearing shall be held within ninety-six hours
of the filing of the petition.
(3) If the allegations in the petition seeking a medication
and treatment compliance order are proved by the evidence adduced
at the hearing, which must include expert testimony by a physician,
the circuit judge or Mental Hygiene Commissioner may enter a
medication and treatment compliance order for a period of time not
to exceed one year requiring an individual to take medication and
treatment as prescribed and if appropriate to attend scheduled medication- and treatment-related appointments: Provided, That a
medication and treatment compliance order shall be subject to
termination or modification by a circuit judge or Mental Hygiene
Commissioner if a petition is filed seeking termination or
modification of the order and it is shown in a hearing on the
petition that there has been a material change in the circumstances
that led to the entry of the original order that justifies the
order?s modification or termination; and provided further that a
medication and treatment compliance order may be extended by a
circuit judge or mental hygiene commissioner for additional periods
of time not to exceed one year upon the filing of a petition
seeking an extension and after a hearing on the petition or upon
the agreement of the individual.
(4) (A) If a verified petition is filed alleging that an
individual has not complied with a medication and treatment
compliance order and if a circuit judge or Mental Hygiene
Commissioner determines from the petition and any supporting
evidence that there is probable cause to believe that the
allegations in the petition are true, counsel shall be appointed
for the individual if the individual does not already have counsel
and a copy of the petition and all supporting evidence shall be
furnished to the individual and his or her counsel. If the circuit
judge or Mental Hygiene Commissioner considers it necessary to
protect the individual or to secure their examination, a detention order may be entered for the individual that may order that the
individual be examined by a physician or licensed clinical
psychologist. A hearing on the allegations in the petition, which
may be combined with a hearing on a probable cause petition or a
final commitment hearing, shall be held before a circuit judge or
Mental Hygiene Commissioner; if the individual is in custody as a
result of a detention order, the hearing shall be held within
ninety-six hours of the filing of the petition.
(B) At a hearing on the petition, the circuit judge or Mental
Hygiene Commissioner shall determine whether the individual has
complied with the terms of the medication and treatment compliance
order. If the individual has complied with the order, the petition
shall be dismissed. If the order has not been complied with, the
circuit judge or Mental Hygiene Commissioner, after inquiring into
the reasons for non-compliance and whether any aspects of the order
should be modified, may continue the individual upon the terms of
the original order and direct the individual to comply with the
order, or may modify the order in light of the evidence at the
hearing. If the evidence shows that the individual at the time of
the hearing is likely to cause serious harm as a result of the
individual?s mental illness the circuit judge or Mental Hygiene
Commissioner may convert the proceeding into a probable cause
proceeding and enter a probable cause order directing the
involuntary admission of the individual to a mental health facility for examination and treatment.
(c) (1) The modified procedures shall authorize that upon an
ex parte showing to a circuit judge, Mental Hygiene Commissioner,
or designated magistrate that there is probable cause to believe
that an individual who has been hospitalized two or more times in
the previous twenty-four months because of mental illness or
addiction is likely to cause serious harm as a result of the
individual?s mental illness or addiction and that the best
interests of the individual would be served by immediate
hospitalization, the judge, commissioner, or magistrate may, if the
judicial officer determines that a hearing is not necessary, enter
a temporary probable cause order directing the involuntary
hospitalization of the individual at a mental health facility for
examination and treatment.
(2) The modified procedures shall authorize that the chief
judge of the judicial circuit, or circuit judge if there is no
chief judge, may enter orders authorizing specific physicians or
licensed clinical psychologists, whose qualifications and training
have been reviewed and approved by the court, to issue
certifications that authorize and direct the involuntary admission
of an individual on a temporary probable cause basis to a mental
health facility for examination and treatment: Provided, That the
authorized physician or psychologist must conclude and certify
based on personal observation prior to certification that the individual is likely to cause serious harm as a result of mental
illness or addiction and the best interests of the individual
require immediate hospitalization. Immediately upon such
certification, the physician or psychologist shall provide notice
of the certification to a circuit judge, Mental Hygiene
Commissioner, or designated magistrate.
(3) No involuntary hospitalization pursuant to a temporary
probable cause determination shall continue in effect for more than
ninety-six hours without the filing of a petition for involuntary
hospitalization and the occurrence of a probable cause hearing
before a circuit judge, Mental Hygiene Commissioner or designated
magistrate. If at any time the chief medical officer of the mental
health facility to which the individual is admitted determines that
the individual is not likely to cause serious harm as a result of
mental illness or addiction, the chief medical officer shall
discharge the individual and immediately forward a copy of the
individual?s discharge to the circuit judge, Mental Hygiene
Commissioner or designated magistrate.
(4) The Supreme Court of Appeals in consultation with the
Secretary of the Department of Health and Human Resources and local
mental health consumers and service providers may implement other
modified procedures in connection with mental hygiene proceedings
that are consistent with the requirements of this chapter.
(d) Notwithstanding any other provisions of law, in all proceedings under this article, probable pause hearings may be held
in the county where a person is hospitalized; and judicial officers
may employ videoconferencing and telephonic technology in making
probable cause and final commitment determinations.
NOTE: The purpose of this bill is to authorize modified
mental hygiene procedures to be initially implemented in four to
six judicial circuits for a period of three years and then expanded
if successful. The procedures are: (1) To allow less restrictive
judicial measures to address the failure or refusal by individuals
to take prescribed medication and treatment which causes the
individuals to be repeatedly hospitalized or commit crimes; (2) to
reduce the mandatory use of an initial full adversarial hearing
process to temporarily hospitalize and stabilize patients who are
likely to cause serious harm as a result of their mental illness or
addiction.
This section is new; therefore, strike-throughs and
underscoring have been omitted.
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