ENGROSSED

Senate Bill No. 770

(By Senators Wooton, Ball, Dittmar, Kessler, Oliverio, Ross, Snyder, White and Scott)

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[Originating in the Committee on the Judiciary;

reported March 4, l998.]

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A BILL to repeal section sixteen, article one, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections two, three, four, eleven and twelve, article one of said chapter; and to amend and reenact section two, article five of said chapter, all relating to mental illness; institution of proceedings; hearings; procedures; and changing certain definitions and the time in which a final commitment hearing may be held if good cause is shown.

Be it enacted by the Legislature of West Virginia:
That section sixteen, article one, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that sections two, three, four, eleven and twelve, article one of said chapter be amended and reenacted; and that section two, article five of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-2. Mental illness.
"Mental illness" is a substantial disorder of thought, mood, perception, orientation or memory, any of which grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life, but not including mental retardation. Mental retardation, epilepsy or other disturbances of central nervous system functioning do not, in themselves, constitute a severe mental disorder.
§27-1-3. Mental retardation.
"Mental retardation" means significantly subaverage general intellectual functioning and concurrent serious deficits or impairments in adaptive functioning, which had onset before the age of eighteen.
§27-1-4. Inebriation.
"Inebriation" is a time-limited, substance-specific syndrome resulting from recent ingestion of a psychoactive substance, evidenced by maladaptive effect and behavior during the waking state attributable to the effect of the substance on the central nervous system.
§27-1-11. Addiction.
"Addiction" means a pattern of pathological use of a psychoactive substance, including alcohol, or impairment in social or occupational functioning resulting from use of a psychoactive substance, with evidence of tolerance for the substance and/or physical withdrawal when the substance is discontinued.
§27-1-12. Likely to cause serious harm.
"Likely to cause serious harm" means that, as a result of mental illness, mental retardation or addiction and as evidenced by recent behavior, the person:
(1) Is likely in the near future to inflict substantial physical injury upon himself;
(2) Is likely in the near future to cause physical injury or physical abuse to another person, as evidenced by recent behavior causing, attempting or threatening such harm; or
(3) Will, if not treated, continue to suffer severe emotional or physical distress associated with significant impairment of judgment, reason or behavior causing a substantial deterioration of previous abilities for independent functioning or which in the foreseeable future will result in the person becoming likely to cause himself or herself substantial physical injury or to cause or attempt to cause physical abuse or injury to another.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-2. Institution of proceedings for involuntary custody for examination; custody; probable cause hearing; examination of individual.

(a) When application for involuntary custody for examination may be made. -- Any adult person may make application for involuntary hospitalization for examination of an individual when said person has reason to believe that:
(1) The individual is addicted, as defined in section eleven, article one of this chapter: Provided, That for purposes of this subdivision and the involuntary hospitalization procedures specified in this article, the sole issue to be determined is whether the individual is addicted, which by definition includes the notion of being incapacitated, causing harm to others or being unable to prevent harm to himself or herself: Provided, however, That whenever a provision of this article refers to or requires a finding of likelihood to cause serious harm, a finding that an individual is addicted shall be deemed to satisfy such reference or requirement; or
(2) The individual is mentally ill or mentally retarded and, because of his or her mental illness or mental retardation, the individual is likely to cause serious harm to himself or herself or to others if allowed to remain at liberty while awaiting an examination and certification by a physician or psychologist.
(b) Oath; to whom application for involuntary custody for examination is made; contents of application; custody; probable cause hearing; examination. --
(1) The person making such application shall do so under oath.
(2) Application for involuntary custody for examination may be made to the circuit court or a mental hygiene commissioner of the county in which the individual resides or of the county in which he or she may be found;
(3) The person making such application shall give such information and state such facts therein as may be required, upon the form provided for this purpose by the supreme court of appeals;
(4) The circuit court or the mental hygiene commissioner may thereupon enter an order for the individual named in such action to be detained and taken into custody, for the purpose of holding a probable cause hearing as provided for in subdivision (5) of this subsection and for the purpose of an examination of the individual by a physician or a psychologist. Such examination shall be provided or arranged by a community mental health center designated by the secretary of the department of health and human resources to serve the county in which the action takes place. The said order shall specify that such hearing be held forthwith the date and time for said hearing which shall be held within twenty-four hours and shall provide for the appointment of counsel for the individual: Provided, That where a physician or psychologist has performed such examination, the community mental health center may waive this requirement upon approving such examination. Notwithstanding the provisions of this subsection, subsection (r), section four of this article shall apply regarding payment by the county commission for examinations at hearings.
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 or mental hygiene commissioner is available for immediate presentation of the application, a magistrate designated by the chief judge of the judicial circuit may accept the application and, upon a finding that such immediate detention is necessary pending presentation of the application to the circuit court or mental hygiene commissioner, may order the individual to be temporarily detained in custody until the earliest reasonable time that the application can be presented to the circuit court or mental hygiene commissioner, which temporary period of detention may not exceed twenty-four hours.
(5) A probable cause hearing shall be held before a magistrate designated by the chief judge of the judicial circuit, the mental hygiene commissioner 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.
The individual must be present at the 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 representatives of the community mental health center serving the area. The individual shall have the right to remain silent and to be proceeded against in accordance with the rules of evidence of the supreme court of appeals. At the conclusion of the hearing, the magistrate, mental hygiene commissioner or circuit court judge shall find and enter an order stating whether or not there is probable cause to believe that such individual, as a result of mental illness, mental retardation or addiction, is likely to cause serious harm to himself or herself or to others.