ENROLLED

COMMITTEE SUBSTITUTE

FOR

H. B. 2127

(By Delegate Staton)


[Passed April 12, 1997 in effect ninety days from passage.]


AN ACT to amend and reenact sections five and seven, article five- a, chapter twenty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to suspending general notice requirements in cases involving immediate involuntary commitments; enabling the commitment of alcoholics and drug users to detoxification centers prior to their commitment to a facility for the treatment of tuberculosis; and making technical changes.

Be it enacted by the Legislature of West Virginia:
That sections five and seven, article five-a, chapter twenty- six of the code of West Virginia, one thousand nine hundred thirty- one, as amended, be amended and reenacted to read as follows:
ARTICLE 5A. TUBERCULOSIS CONTROL.
§26-5A-5. Procedure when patient is health menace to others.
(a) If any practicing physician, public health officer, or chief medical officer having under observation or care any person who is suffering from tuberculosis in a communicable stage is of the opinion that the environmental conditions of that person are not suitable for proper isolation or control by any type of local quarantine as prescribed by the state bureau division of public health of the department of health and human resources or an authorized designee thereof, and that the person is unable or unwilling to conduct himself or herself and to live in such a manner as not to expose members of his or her family or household or other persons with whom he or she may be associated to danger of infection, he or she shall report the facts to the bureau division of public health or its designee which shall forthwith investigate or have investigated the circumstances alleged.
(b) If the bureau division of public health or its designee finds that any person's physical condition is a health menace to others, the bureau division of public health or its designee shall petition the circuit court of the county in which the person resides, or the judge thereof in vacation, alleging that the person is afflicted with communicable tuberculosis and that the person's physical condition is a health menace to others, and requesting an order of the court committing the person to one of the state institutions for the treatment of tuberculosis: Provided, That if the bureau division of public health or its designee determines thatn an emergency situation exists which warrants the immediate detention and commitment of a person suffering from tuberculosis, an application for immediate involuntary commitment may be filed pursuant to section seven of this article.
(c) Upon receiving the petition, the court shall fix a date for hearing thereof and notice of the petition and the time and place for hearing shall be served personally, at least seven days before the hearing, upon the person who is afflicted with tuberculosis and alleged to be dangerous to the health of others. (d) If, upon hearing, it appears that the complaint of the bureau division of public health or its designee is well founded, that the person is afflicted with communicable tuberculosis, and that the person is a source of danger to others, the court shall commit the individual to an institution maintained for the care and treatment of persons afflicted with tuberculosis. The person shall be deemed to be committed until discharged in the manner authorized in this section: Provided, That the hearing and notice provisions of this subsection shall not apply to immediate involuntary commitments as provided in section seven of this article.
(e) The chief medical officer of the institution to which any person afflicted with tuberculosis has been committed may discharge that person when, in his or her judgment, the person may be discharged without danger to the health or life of others. The chief medical officer shall report immediately to the bureau division of public health or its designee each discharge of a person afflicted with tuberculosis.
(f) Every person committed under the provisions of this section shall observe all the rules of the institution. Any patient so committed may, by direction of the chief medical officer of the institution, be placed apart from the others and restrained from leaving the institution so long as he or she continues to be afflicted with tuberculosis and remains a health menace.
(g) Nothing in this section may be construed to prohibit any person committed to any institution under the provisions of this section from applying to the supreme court of appeals for a review of the evidence on which the commitment was made. Nothing in this section may be construed or operate to empower or authorize the bureau division of public health, the department of health and human resources or an authorized designee thereof or the chief medical officer of the institution, or their representatives, to restrict in any manner the individual's right to select any method of tuberculosis treatment offered by the institution.
§26-5A-7. Procedures for immediate involuntary commitment.
(a) An application for immediate involuntary commitment of a person suffering from tuberculosis may be filed by the commissioner of the bureau of public health, or his or her designee, in the circuit court of the county in which the person resides. The application shall be filed under oath, and shall present information and facts which establish that the person suffering from tuberculosis in a communicable stage has been uncooperative or irresponsible with regard to quarantine or safety measures, presents a health menace to others, and is in need of immediate hospitalization until his or her communicable tuberculosis becomes noninfectious.
(b) Upon receipt of the application, the circuit court may thereupon enter an order for the individual named in the action to be detained and taken into custody for the purpose of holding a probable cause hearing. The order shall specify that the hearing be held forthwith and shall appoint counsel for the individual: Provided, That 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 is available for immediate presentation of the application, a magistrate may accept the application and, upon a finding that immediate detention is necessary pending presentation of the application to the circuit court, may order the individual to be temporarily committed until the earliest reasonable time that the application can be presented to the circuit court, which temporary period of detention time shall not exceed twenty-four hours, except as provided for in subsection (c) of this section.
(c) A probable cause hearing shall be held before a magistrate 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.
(d) The individual shall be present at the probable cause 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 the bureau of public health or its designees.
(e) At the conclusion of the hearing the magistrate or circuit court judge shall find and enter an order stating whether there is probable cause to believe that the individual is likely to cause serious harm to himself, herself or others as a result of his or her disease and actions. If probable cause is found, the individual shall be immediately committed to an institution maintained for the care and treatment of persons afflicted with tuberculosis. The person shall remain so committed until discharged in the manner authorized pursuant to section five of this article: Provided, That in the case of an alcoholic or drug user, the judge or magistrate shall first order the individual committed to a detoxification center for detoxification prior to commitment to an institution maintained for the care and treatment of persons afflicted with tuberculosis.
(f) The bureau of public health shall promulgate rules pursuant to the provisions of article three, chapter twenty-nine-a of this code necessary to implement the provisions of this article, including, but not limited to, rules relating to the transport and temporary involuntary commitment of patients.
That section five, article five-a, chapter twenty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 5A. TUBERCULOSIS CONTROL.
§26-5A-5. Procedure when patient is health menace to others.
(a) If any practicing physician, public health officer, or chief medical officer having under observation or care any person who is suffering from tuberculosis in a communicable stage is of the opinion that the environmental conditions of that person are not suitable for proper isolation or control by any type of local quarantine as prescribed by the state bureau division of public health of the department of health and human resources or an authorized designee thereof, and that the person is unable or unwilling to conduct himself or herself and to live in such a manner as not to expose members of his or her family or household or other persons with whom he or she may be associated to danger of infection, he or she shall report the facts to the bureau division of public health or its designee which shall forthwith investigate or have investigated the circumstances alleged.
(b) If the bureau division of public health or its designee finds that any person's physical condition is a health menace to others, the bureau division of public health or its designee shall petition the circuit court of the county in which the person resides, or the judge thereof in vacation, alleging that the person is afflicted with communicable tuberculosis and that the person's physical condition is a health menace to others, and requesting an order of the court committing the person to one of the state institutions for the treatment of tuberculosis: Provided, That if the bureau division of public health or its designee determines than an emergency situation exists which warrants the immediate detention and commitment of a person suffering from tuberculosis, an application for immediate involuntary commitment may be filed pursuant to section seven of this article.
(c) Upon receiving the petition, the court shall fix a date for hearing thereof and notice of the petition and the time and place for hearing shall be served personally, at least seven days before the hearing, upon the person who is afflicted with tuberculosis and alleged to be dangerous to the health of others. (d) If, upon hearing, it appears that the complaint of the bureau division of public health or its designee is well founded, that the person is afflicted with communicable tuberculosis, and that the person is a source of danger to others, the court shall commit the individual to an institution maintained for the care and treatment of persons afflicted with tuberculosis. The person shall be deemed to be committed until discharged in the manner authorized in this section: Provided, That the hearing and notice provisions of this subsection shall not apply to immediate involuntary commitments as provided in section seven of this article.
(e) The chief medical officer of the institution to which any person afflicted with tuberculosis has been committed may discharge that person when, in his or her judgment, the person may be discharged without danger to the health or life of others. The chief medical officer shall report immediately to the bureau division of public health or its designee each discharge of a person afflicted with tuberculosis.
(f) Every person committed under the provisions of this section shall observe all the rules of the institution. Any patient so committed may, by direction of the chief medical officer of the institution, be placed apart from the others and restrained from leaving the institution so long as he or she continues to be afflicted with tuberculosis and remains a health menace.
(g) Nothing in this section may be construed to prohibit any person committed to any institution under the provisions of this section from applying to the supreme court of appeals for a review of the evidence on which the commitment was made. Nothing in this section may be construed or operate to empower or authorize the bureau division of public health, the department of health and human resources or an authorized designee thereof or the chief medical officer of the institution, or their representatives, to restrict in any manner the individual's right to select any method of tuberculosis treatment offered by the institution.