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:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§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
(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
(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
A patient's clinical record shall be confidential and
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
(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.