H. B. 2175
(By Delegate Stalnaker)
[Introduced January 13, 1999; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section four, article five, chapter
twenty-seven of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to mental hygiene;
involuntary commitment; proceedings; hearing; examination;
order; report; mental hygiene fund; and requiring the county
commission of the county in which an indigent individual
resides to pay the expenses of a commitment hearing.
Be it enacted by the Legislature of West Virginia:
That section four, 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.
§27-5-4. Institution of final commitment proceedings; hearing
requirements; release.
(a) Involuntary commitment. -- Except as provided in section
three of this article, no individual may be involuntarily
committed to a mental health facility except by order entered of
record at any time by the circuit court of the county wherein
such the person resides or was found, or if the individual is
hospitalized in a mental health facility located in a county
other than where he or she resides or was found, in the county of
the mental health facility, and then only after a full hearing on
issues relating to the necessity of committing an individual to
a mental health facility: Provided, That if said the individual
objects to the hearing being held in the county where the mental
health facility is located, the hearing shall be conducted in the
county of the individual's residence.
(b) How final commitment proceedings are commenced. -- Final
commitment proceedings for an individual may be commenced by the
filing of a written application under oath and the certificate or
affidavit is hereinafter provided with the clerk of the circuit
court or mental hygiene commissioner of the county of which the
individual is a resident, or where he or she may be is found, or
the county of the mental health facility, if he or she is
hospitalized in a mental health facility located in a county
other than where he or she resides or may be is found by an adult
person having personal knowledge of the facts of the case.
(c) Oath; contents of application; who may inspect
application; when application cannot be filed. --
(1) The person making such the application shall do so under
oath.
(2) The application shall contain statements by the
applicant that he or she believes because of symptoms of mental
illness, mental retardation or addiction, the individual is
likely to cause serious harm to himself or herself or to others
and the grounds for such the belief, stating in detail the recent
overt acts upon which such the belief is based: Provided, That
no such statement of recent overt acts need be made when the
applicant alleges the individual is likely to cause serious harm
as a result of having a complete inability to care for himself or
herself by reason of mental retardation.
(3) The written application, certificate, affidavit and any
warrants issued pursuant thereto, including any papers and
documents related thereto filed with any circuit court or mental
hygiene commissioner for the involuntary hospitalization of any
individual shall not be are not open to inspection by any person
other than the individual, except upon authorization of the
individual or his or her legal representative or by order of the
circuit court, and such the records may not be published except
upon the authorization of the individual or his or her legal representative.
(4) Applications shall may not be accepted for individuals
who only have epilepsy, a mental deficiency or senility.
(d) Certificate filed with application; contents of
certificate; affidavit by applicant in place of certificate. --
(1) The applicant shall file with his or her application the
certificate of a physician or a psychologist stating that in his
or her opinion the individual is mentally ill, mentally retarded
or addicted and that because of such the mental illness, mental
retardation or addiction, the individual is likely to cause
serious harm to himself or herself or to others if he or she is
allowed to remain at liberty and therefore he or she should be
hospitalized, stating in detail the recent overt acts upon which
such the conclusion is based: Provided, That no such statement
of recent overt acts need be made when the applicant alleges the
individual is likely to cause serious harm as a result of having
a complete inability to care for himself or herself by reason of
mental retardation.
(2) A certificate is not necessary only when an affidavit is
filed by the applicant showing facts and the individual has
refused to submit to examination by a physician or a
psychologist.
(e) Notice requirements; eight days' notice required. -- Upon receipt of an application, the mental hygiene commissioner
or circuit court shall review the application and if it is
determined that the facts alleged, if any, are sufficient to
warrant involuntary hospitalization, forthwith fix a date for and
have the clerk of the circuit court give notice of the hearing:
(1) To the individual; (2) to the applicant or applicants; (3) to
the individual's spouse, one of the parents or guardians, or if
the individual does not have a spouse, parents or parent or
guardian, to one of the individual's adult next of kin:
Provided, That such the person is not the applicant; (4) to the
mental health authorities serving the area; (5) to the circuit
court in the county of the individual's residence if the hearing
is to be held in a county other than that of such the
individual's residence; and (6) to the prosecuting attorney of
the county in which the hearing is to be held. Such Notice
shall be served on the individual by personal service of process
not less than eight days prior to the date of the hearing, and
shall specify the nature of the charges against the individual;
the facts underlying and supporting the application of
involuntary commitment; the right to have counsel appointed; the
right to consult with and be represented by counsel at every
stage of the proceedings; and the time and place of the hearing.
The notice to the individual's spouse, parents or parent or guardian, the individual's adult next of kin, or to the circuit
court in the county of the individual's residence may be by
personal service of process or by certified or registered mail,
return receipt requested, and shall state the time and place of
the hearing.
(f) Examination of individual by court-appointed physician
or psychologist; custody for examination; dismissal of
proceedings. --
(1) Except as provided in subdivision (3) of this
subsection, within a reasonable time after notice of the
commencement of final commitment proceedings is given, the
circuit court or mental hygiene commissioner shall appoint a
physician or psychologist to examine the individual and report to
the circuit court or mental hygiene commissioner his or her
findings as to the mental condition of the individual and the
likelihood of him or her causing serious harm to himself or
herself or to others.
(2) If the designated physician or psychologist reports to
the circuit court or mental hygiene commissioner that the
individual has refused to submit to an examination, the circuit
court or mental hygiene commissioner shall order him or her to
submit to such the examination. The circuit court or mental
hygiene commissioner may direct that the individual be detained or taken into custody for the purpose of an immediate examination
by the designated physician or psychologist. All such orders
shall be directed to the sheriff of the county or other
appropriate law-enforcement officer. After such the examination
has been completed, the individual shall be released from custody
unless proceedings are instituted pursuant to section three of
this article.
(3) If the reports of the appointed physician or
psychologist do not confirm that the individual is mentally ill,
mentally retarded or addicted and might be harmful to himself or
herself or to others, then the proceedings for involuntary
hospitalization shall be dismissed.
(g) Rights of the individual at the final commitment
hearing; seven days' notice to counsel required. --
(1) The individual shall be present at the final commitment
hearing and he or she, the applicant and all persons entitled to
notice of such the hearing shall be afforded an opportunity to
testify and to present and cross-examine witnesses.
(2) In the event that the individual has not retained
counsel, the court or mental hygiene commissioner at least six
days prior to hearing shall appoint a competent attorney, and
shall inform the individual of the name, address and telephone
number of his or her appointed counsel.
(3) The individual shall have has the right to have an
examination by an independent expert of his or her choice and
testimony from such the expert as a medical witness on his or her
behalf. The cost of such the independent expert shall be borne
by the individual unless he or she is indigent.
(4) The individual shall may not be compelled to be a
witness against himself or herself.
(h) Duties of counsel representing individual; payment of
counsel representing indigent. --
(1) The counsel representing an individual shall conduct a
timely interview, make investigation and secure appropriate
witnesses and shall be present at the hearing and protect the
interest of the individual.
(2) Any counsel representing an individual shall be is
entitled to copies of all medical reports, psychiatric or
otherwise.
(3) The circuit court, by order of record, may allow the
attorney a reasonable fee not to exceed the amount allowed for
attorneys in defense of needy persons as provided in article
twenty-one, chapter twenty-nine of this code.
(i) Conduct of hearing; receipt of evidence; no evidentiary
privilege; record of hearing. --
(1) The circuit court or mental hygiene commissioner shall hear evidence from all interested parties in chamber, including
testimony from representatives of the community mental health
facility.
(2) The circuit court or mental hygiene commissioner shall
receive all relevant and material evidence which may be offered.
(3) The circuit court or mental hygiene commissioner shall
be is bound by the rules of evidence promulgated by the supreme
court of appeals except that statements made to physicians or
psychologists by the individual may be admitted into evidence by
the physician's or psychologist's testimony notwithstanding
failure to inform the individual that this statement may be used
against him or her. Any psychologist or physician testifying
shall bring all records pertaining to said the individual to said
the hearing. Such The medical evidence obtained pursuant to an
examination under this section, or section two or three of this
article, is not privileged information for purposes of a hearing
pursuant to this section.
(4) All final commitment proceedings shall be reported or
recorded, whether before the circuit court or mental hygiene
commissioner, and a transcript shall be made available to the
individual, his or her counsel or the prosecuting attorney within
thirty days, if the same it is requested for the purpose of
further proceedings. In any case wherein an indigent person intends to pursue further proceedings, the circuit court shall,
by order entered of record, authorize and direct the court
reporter to furnish a transcript of the hearings.
(j) Requisite findings by the court. --
(1) Upon completion of the final commitment hearing, and the
evidence presented therein, the circuit court or mental hygiene
commissioner shall make findings as to whether or not the
individual is mentally ill, retarded or addicted and because of
illness, retardation or addiction is likely to cause serious harm
to himself or herself or to others if allowed to remain at
liberty and is a resident of the county in which the hearing is
held or currently is a patient at a mental health facility in
such the county.
(2) The circuit court or mental hygiene commissioner shall
also make a finding as to whether or not there is a less
restrictive alternative than commitment appropriate for the
individual. The burden of proof of the lack of a less
restrictive alternative than commitment shall be is on the person
or persons seeking the commitment of the individual.
(3) The findings of fact shall be incorporated into the
order entered by the circuit court and must shall be based upon
clear, cogent and convincing proof.
(k) Orders issued pursuant to final commitment hearing; entry of order; change in order of court; expiration of order. --
(1) Upon the requisite findings, the circuit court may order
the individual to a mental health facility for an indeterminate
period or for a temporary observatory period not exceeding six
months.
(2) The individual shall may not be detained in a mental
health facility for a period in excess of ten days after a final
commitment hearing pursuant to this section unless an order has
been entered and received by the facility.
(3) If the order pursuant to a final commitment hearing is
for a temporary observation period, the circuit court or mental
hygiene commissioner may, at any time prior to the expiration of
such that period on the basis of a report by the chief medical
officer of the mental health facility in which the patient is
confined, hold another hearing pursuant to the terms of this
section and in the same manner as the hearing was held as if it
were an original petition for involuntary hospitalization, to
determine whether the original order for a temporary observation
period should be modified or changed to an order of indeterminate
hospitalization of the patient. At the conclusion of the
hearing, the circuit court shall order indeterminate
hospitalization of the patient or dismissal of the proceedings.
(4) An order for an indeterminate period shall expire of its own terms at the expiration of two years from the date of the
last order of commitment unless prior to the expiration, the
department of health, upon findings based on an examination of
the patient by a physician or a psychologist, extends the order
for indeterminate hospitalization: Provided, That if the patient
or his or her counsel requests a hearing, then a hearing shall be
held by the mental hygiene commissioner; or by the circuit court
of the county as provided in subsection (a) of this section.
(l) Dismissal of proceedings. -- If the circuit court or
mental hygiene commissioner finds that the individual is not
mentally ill, mentally retarded or addicted, the proceedings
shall be dismissed. If the circuit court or mental hygiene
commissioner finds that the individual is mentally ill, mentally
retarded or addicted but is not because of such the illness,
retardation or addiction likely to cause serious harm to himself
or herself or to others if allowed to remain at liberty, the
proceedings shall be dismissed.
(m) Immediate notification of order of hospitalization. --
The clerk of the circuit court in which an order directing
hospitalization is entered, if not in the county of the
individual's residence, shall immediately upon entry thereof
forward a certified copy of same the order to the clerk of the
circuit court of the county of which the individual is a resident.
(n) Consideration of transcript by circuit court of county
of individual's residence; order of hospitalization; execution of
order. --
(1) If the circuit court or mental hygiene commissioner is
satisfied that hospitalization should be ordered but finds that
the individual is not a resident of the county in which the
hearing is held, and the individual is not currently a resident
of a mental health facility, a transcript of the evidence adduced
at the final commitment hearing of such the individual, certified
by the clerk of the circuit court, shall forthwith be forwarded
to the clerk of the circuit court of the county of which such the
individual is a resident, who shall immediately present such the
transcript to the circuit court or mental hygiene commissioner of
said the county.
(2) If the circuit court or mental hygiene commissioner of
the county of the residence of the individual is satisfied from
the evidence contained in such the transcript that such the
individual should be hospitalized as determined by the standard
set forth above, the circuit court shall order the appropriate
hospitalization as though the individual had been brought before
the circuit court or its mental hygiene commissioner in the first
instance.
(3) This order shall be transmitted forthwith to the clerk
of the circuit court of the county in which the hearing was held
who shall execute said the order promptly.
(o) Order of custody to responsible person. -- In lieu of
ordering the patient to a mental health facility, the circuit
court may order the individual delivered to some responsible
person who will agree to take care of the individual and the
circuit court may take from such the responsible person a bond in
an amount to be determined by the circuit court with condition to
restrain and take proper care of such the individual until
further order of the court.
(p) Individual not a resident of this state. -- If the
individual found to be mentally ill, mentally retarded or
addicted by the circuit court or mental hygiene commissioner is
a resident of another state, this information shall be forthwith
given to the secretary of the department of health and human
resources, or to his or her designee, who shall make appropriate
arrangements for transfer of the individual to the state of his
or her residence conditioned on the agreement of the individual
except as qualified by the interstate compact on mental health.
(q) Report to the secretary of the department of health and
human resources. --
(1) The chief medical officer of a mental health facility admitting a patient pursuant to proceedings under this section
shall forthwith make a report of such the admission to the
secretary of the department of health and human resources or to
his or her designee.
(2) Whenever an individual is released from custody due to
the failure of an employee of a mental health facility to comply
with the time requirements of this article, the chief medical
officer of such the mental health facility shall forthwith after
the release of the individual make a report to the secretary of
the department of health and human resources or to his or her
designee of the failure to comply.
(r) Payment of some expenses by the state; mental hygiene
fund established; expenses paid by the county commission. --
(1) The state shall pay the commissioner's fee and such the
court reporter fees as that are not paid and reimbursed under
article twenty-one, chapter twenty-nine of this code out of a
special fund to be established within the supreme court of
appeals to be known as the "mental hygiene fund".
(2) The county commission of the county in which the
individual resides shall pay out of the county treasury all other
expenses incurred in the hearings conducted under the provisions
of this article whether or not hospitalization is ordered,
including any fee allowed by the circuit court by order entered of record for any physician, psychologist and witness called by
the indigent individual.
NOTE: The purpose of this bill is to require the county
commission of the county in which an indigent individual resides
to pay the expenses of a commitment hearing.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.