H. B. 2895

(By Delegates Leach, Beane, Seacrist, Kelley and Proudfoot)

(Originating in the Committee on Finance)

[January 14, 1998]

A BILL to amend and reenact section nine, article five, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the treatment of mentally ill convicted persons in correctional facilities.

Be it enacted by the Legislature of West Virginia:
That section nine, article five, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

§27-5-9. Rights of patients.

(a) No person shall may be deprived of any civil right solely by reason of his receipt of services for mental illness, mental retardation or addiction, nor shall does the receipt of such services modify or vary any civil right of such 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 shall not of itself relieve the patient of legal capacity.
(b) Each patient of a mental health facility receiving services therefrom shall receive care and treatment that is suited to his needs and administered in a skillful, safe and humane manner with full respect for his dignity and personal integrity:
(c) Every patient shall have 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 professional license.
(d) The chief medical officer shall cause to be developed develop 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 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 shall entitle 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.
A patient's clinical record shall be confidential and shall may not be released by the department of health or its facilities or employees to any person or agency outside of the department except as follows:
(1) Pursuant to an order of a court of record.
(2) To the attorney of the patient, whether or not in connection with pending judicial proceedings.
(3) With the written consent of the patient or of someone authorized to act on the patient's behalf and of the director to:
(I) Physicians and providers of health, social or welfare services involved in caring for or rehabilitating the patient, such information to be kept confidential and used solely for the benefit of the patient.
(ii) Agencies requiring information necessary to make payments to or on behalf of the patient pursuant to contract or in accordance with law. Only such information shall be released to third-party payers as is required to certify that covered services have been provided.
(iii) Other persons who have obtained such consent. No patient record, or part thereof, obtained by any agency or individual shall be released in whole or in part to any other individual or agency, unless authorized by the written consent of the patient or his legal representative.
(f) Every patient, upon his admission to a hospital and at any other reasonable time, shall be given a copy of the rights afforded by this section.
(g) The board of health shall promulgate rules and regulations to protect the personal rights of patients not inconsistent with this section: Provided, That the division of corrections shall establish the policies regarding the treatment of mentally ill inmates at correctional facilities and that the rules promulgated by the board of health pursuant to this section shall not apply to mental health facilities in correctional facilities.
(h) Notwithstanding the provisions of subsections (a) through (f) of this section, the commissioner of corrections has the authority to establish the policies for protecting the rights of inmates residing in mental health units at correctional facilities, giving due consideration to the safety and security considerations peculiar to correctional facilities.

NOTE: The purpose of this bill is to authorize the commissioner of corrections to establish policies for the operation of mental health units at correctional facilities.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.