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Introduced Version Senate Bill 191 History

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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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