H. B. 2478


(By Delegates Wills and Mahan)

[Introduced February 22, 2001; referred to the

Committee on the Judiciary then Finance.]





A BILL to amend and reenact sections eleven and twelve, article one, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact sections one, two, three, four and ten, article five of said chapter; and to amend and reenact section two, article seven of said chapter, all relating to mental hygiene generally; updating definitions; creating an outpatient commitment alternative; required findings for commitment; directing convalescent status for certain patients; training for new commissioner; and authorizing the hiring of municipal officers for transportation.

Be it enacted by the Legislature of West Virginia:

That sections eleven and twelve, article one, chapter
twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that sections one, two, three, four and ten, article five of said chapter be amended and reenacted; and that section two, article seven of said chapter be amended and reenacted, all to read as follows:
ARTICLE 1. WORDS AND PHRASES DEFINED.

§27-1-11. Addiction.

"Addiction" means the periodic, frequent or constant use of alcohol, narcotic or other intoxicating or stupefying substance to the point of being incapacitated.

(a) As used in this chapter, "addiction" means:

A maladaptive pattern of substance use leading to clinically significant impairment or distress, as manifested by one (or more) of the following occurring within thirty days prior to the filing of the petition.

(1) Recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home, including, but not limited, to repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household.

(2) Recurrent use in situations in which it is physically
hazardous, including, but not limited to, driving while intoxicated or operating a machine when impaired by substance use.
(3) Recurrent substance-related legal problems.

(4) Continued use despite knowledge of having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance.

(b) As used in this section "substance" shall mean alcohol, controlled substances as defined in sections two hundred four, two hundred five, two hundred six and two hundred seven, article two, chapter sixty-a of this code, or anything consumed for its psychoactive effect whether or not designed for human consumption.

§27-1-12. Likely to cause serious harm.

"Likely to cause serious harm" refers to a person who has:

(1) A substantial tendency to physically harm himself which is manifested by threats of or attempts at suicide or serious bodily harm or other conduct, either active or passive, which demonstrates that he is dangerous to himself; or

(2) A substantial tendency to physically harm other persons which is manifested by homicidal or other violent behavior which places others in reasonable fear of serious physical harm; or

(3) A complete inability to care for himself by reason of
mental retardation; or
(4) Become incapacitated as defined in section sixteen of this article.

(a) "Likely to cause serious harm" means that:

An individual is exhibiting behaviors consistent with a mental disorder or addiction that is found in the American psychiatric association's current diagnostic and statistical manual of mental disorders, excluding, however, disorders that are manifested only through antisocial or illegal behavior; and

(1) The individual has inflicted or attempted to inflict bodily harm on another;

(2) The individual, by threats or actions, has placed others in reasonable fear of physical harm to themselves;

(3) The individual, by actions or inactions, has presented a danger to others in his or her care;

(4) The individual has threatened or attempted suicide or serious bodily harm to himself or herself; or

(5) The individual has behaved in such a manner as to indicate that he or she is unable, without supervision and the assistance of others, to satisfy his or her need for nourishment, personal or medical care, shelter, or self-protection and safety, so that it is
probable that death, substantial physical bodily injury, serious mental decompensation or serious physical debilitation or disease will ensue unless adequate treatment is afforded.
(b) In making the "likely to cause serious harm" determination judicial, medical, psychological and other decision-makers should use all available psychosocial, medical and psychiatric history that is relevant to a current situation, in addition to the individual's current overt behavior, without regard to strict rules of evidence.

ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-1. Appointment of mental hygiene commissioner; duties of mental hygiene commissioner; duties of prosecuting attorney; duties of sheriff; duties of supreme court of appeals; use of certified municipal law-enforcement officers.

(a) Appointment of mental hygiene commissioners. -- The chief judge in each judicial circuit of this state shall appoint a competent attorney and may, if necessary, appoint additional attorneys to serve as mental hygiene commissioners to preside over involuntary hospitalization hearings. Mental hygiene commissioners shall be persons of good moral character and of standing in their profession and they shall, before assuming the duties of such the commissioner, take the oath required of other special commissioners as provided in article one, chapter six of this code.
All persons newly appointed to serve as mental hygiene commissioners shall attend and complete an orientation course, within one year of their appointment, consisting of at least three days of training provided annually by the supreme court of appeals. In addition, persons appointed to serve as existing mental hygiene commissioners and any magistrates designated by the chief judge of a judicial circuit to hold probable cause and emergency detention hearings involving involuntary hospitalization must shall attend and complete a course provided by the supreme court of appeals which course shall include, but not be limited to, instruction on the manifestations of mental illness mental retardation and addiction. Persons attending such the courses outside the county of their residence shall be reimbursed out of the budget of the supreme court -- general judicial for reasonable expenses incurred. The supreme court shall establish rules for such course courses, including rules providing for the reimbursement of reasonable expenses as authorized herein.
(b) Duties of mental hygiene commissioners. -- Mental hygiene commissioners may sign and issue summonses for the attendance, at any hearing held pursuant to section four, article five of this chapter, of the individual sought to be committed; may sign and issue subpoenas for witnesses, including subpoenas duces tecum; may place any witness under oath; and may make findings of fact on evidence and may make conclusions of law, but such the findings and conclusions shall not be binding on the circuit court. The circuit court, by order entered of record, shall allow the commissioner a reasonable fee for services rendered in connection with each case. Mental hygiene commissioners shall discharge their duties and hold their office at the pleasure of the chief judge of the judicial circuit in which he or she is appointed and may be removed at any time by such the chief judge. It shall be the duty of a mental hygiene commissioner to conduct orderly inquiries into the mental health of the individual sought to be committed concerning the advisability of committing the individual to a mental health facility. The mental hygiene commissioner shall safeguard, at all times, the rights and interests of the individual as well as the interests of the state. The mental hygiene commissioner shall make a written report of his or her findings to the circuit court. In any proceedings before any court of record as set forth in this article, the court of record shall appoint an interpreter for any individual who is deaf or cannot speak or who speaks a foreign language and who may be subject to involuntary commitment to a mental health facility.
(c) Duties of prosecuting attorney. -- It shall be the duty of the prosecuting attorney or one of his or her assistants to represent the applicants in all proceedings filed pursuant to the provisions of this article.
(d) Duties of sheriff. -- Upon written order of the circuit court or of a mental hygiene commissioner in the county where the individual formally accused of being mentally incompetent, mentally retarded ill or addicted or is a resident or is found, the sheriff of that county shall take said the individual into custody and transport him or her to and from the place of hearing and the mental health facility. The sheriff shall also maintain custody and control of the accused individual during the period of time in which the individual is waiting for the involuntary commitment hearing to be convened and while such the hearing is being conducted: Provided, That an individual transported into this state from another state for purposes of treatment shall upon a finding of probable cause be transferred to his or her state of residence for treatment pursuant to the provisions of subsection (p), section four of this article.
(e) Duties of sheriff upon presentment to mental health care facility. -- Where a person is brought to a mental health care facility for purposes of evaluation for commitment under the provisions of this article, if he or she is violent or combative, the sheriff or his or her designee, shall maintain custody of the person in the facility until the evaluation is completed or the county commission shall reimburse the mental health care facility at a reasonable rate for security services provided by the mental health care facility for the period of time the person is at the hospital prior to the determination of mental competence or incompetence.
(f) Duties of supreme court of appeals. -- The supreme court of appeals shall provide uniform petition, procedure and order forms which shall be used in all involuntary hospitalization proceedings brought in this state.
§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 the 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: 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 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 the 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 the 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 the 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 The 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 the hearing be held forthwith and shall provide for the appointment of counsel for the individual: Provided, That where a physician or psychologist has performed such the examination, the community mental health center may waive this requirement upon approving such the 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 the individual, as a result of mental illness, mental retardation or addiction, is likely to cause serious harm to himself or herself or to others or is addicted.
(6) If the magistrate, mental hygiene commissioner or circuit court judge finds that the individual, as a result of mental illness, is likely to cause serious harm to himself, herself, or others or is addicted the magistrate, mental hygiene commissioner or circuit court judge may consider evidence on the question of whether the individual's circumstances make him or her amenable to treatment in a nonresidential or nonhospital setting. If the magistrate, mental hygiene commissioner or circuit court judge determines that treatment is available in a nonresidential or nonhospital setting the individual may be committed but conditionally released to out-patient treatment upon such terms and conditions as will effectuate treatment. The failure of an individual committed but conditionally released to outpatient treatment to follow the treatment plan developed by the mental health provider shall constitute proof that the treatment is insufficient and, after a hearing before a magistrate, mental hygiene commissioner or circuit judge on the issue of whether or not the individual failed or refused to comply with the terms and conditions of conditional release, may cause the entry of an order requiring admission under involuntary hospitalization pursuant to the provisions of section three of this article. In the event a person conditionally released to outpatient treatment pursuant to this subdivision is unable to pay for the outpatient treatment and has no applicable insurance coverage, including, but not limited to, private insurance or medicaid, the secretary of health and human resources may transfer funds for the purpose of reimbursing community providers for services provided on an outpatient basis for individuals for whom payment for treatment is the responsibility of the department: Provided, That the department may not authorize payment of outpatient services for an individual in an amount in excess of the cost of involuntary hospitalization of the individual. Time limitations set forth in this article relating to periods of involuntary hospitalization do not apply to conditional release commitments: Provided, however, That no conditional release commitment may be in effect for more than six months, unless renewed following a hearing before a mental hygiene commissioner or circuit judge.
(7) If the certifying physician or psychologist determines that a person requires involuntary hospitalization for an addiction to a substance which due to the degree of addiction creates a reasonable likelihood that withdrawal or detoxification from the substance of addiction will cause significant medical complications the person certifying the individual shall recommend that the individual be closely monitored for possible medical complications. If the magistrate, mental hygiene commissioner or circuit court judge presiding orders involuntary hospitalization, he or she shall include a recommendation that the individual be closely monitored in the order of commitment.
§27-5-3. Admission under involuntary hospitalization for examination; hearing; release.

(a) Admission to a mental health facility for examination. -- Any individual may be admitted to a mental health facility for examination upon entry of an order finding probable cause as provided in section two of this article and upon certification by one physician or one psychologist that he or she has examined the individual and is of the opinion that the individual is mentally ill, mentally retarded or addicted and because of such mental illness, mental retardation or addiction is likely to cause serious harm to himself or herself or to others if not immediately restrained or is addicted. The chief medical officer of said the mental health facility may, with the approval of the secretary of health and human resources, transfer such the individual to a state hospital or to another similar type of mental health facility after determining that no less restrictive treatment alternative is suitable or available. The chief medical officer of the mental health facility admitting the individual shall forthwith make a report thereof to the secretary of the department of health and human resources.
(b) Three-day time limitation on examination. -- If said the examination does not take place within three days from the date the individual is taken into custody, the individual shall be released. If the examination reveals that the individual is not mentally ill, mentally retarded or addicted, the individual shall be released.
(c) Three-day time limitation on certification. -- The certification required in subsection (a) of this section shall be valid for three days. Any individual with respect to whom such the certification has been issued may not be admitted on the basis thereof at any time after the expiration of three days from the date of such the examination.
(d) Findings and conclusions required for certification. -- A certification under this section must include findings and conclusions of the mental examination, the date, time and place thereof and the facts upon which the conclusion of likelihood of causing serious harm that involuntary commitment is necessary is based.
(e) Notice requirements. -- When an individual is admitted to a mental health facility pursuant to the provisions of this section, the chief medical officer thereof shall immediately give notice of the individual's admission to the individual's spouse, if any, and one of the individual's parents or guardians, or if there be no such spouse, parents or guardians, to one of the individual's adult next of kin: Provided, That such the next of kin shall not be the applicant. Notice shall also be given to the community mental health facility, if any, having jurisdiction in the county of the individual's residence. Such Notices other than to the community mental health facility shall be in writing and shall be transmitted to such the person or persons at his, her or their last-known address by certified or registered mail, return receipt requested.
(f) Five-day time limitation for examination and certification at mental health facility. -- After the individual's admission to a mental health facility, he or she may not be detained more than five days excluding Sundays and holidays, unless, within such the period, the individual is examined by a staff physician and such the physician certifies that in his or her opinion, the patient is mentally ill, mentally retarded or addicted and is likely to injure himself or herself or others or will continue to abuse a substance to which he or she is addicted if allowed to be at liberty.
(g) Ten-day time limitation for institution of final commitment proceedings. -- If, in the opinion of the examining physician, the patient is mentally ill, mentally retarded or addicted and because of such mental illness, mental retardation or addiction is likely to injure himself or herself or others or will continue to abuse a substance to which he or she is addicted if allowed to be at liberty, the chief medical officer shall, within ten days from the date of admission, institute final commitment proceedings as provided in section four of this article. If such the proceedings are not instituted within such the ten-day period, the patient shall be immediately released. After the request for hearing is filed, the hearing shall not be canceled on the basis that the individual has become a voluntary patient unless the mental hygiene commissioner concurs in the motion for cancellation of the hearing.
(h) Thirty-day time limitation for conclusion of all proceedings. -- If all proceedings as provided in articles three and four of this chapter are not completed within thirty days from the date of institution of such the proceedings, the patient shall be immediately released.
§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 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 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 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 or is addicted 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 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 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 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 or is addicted 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 The 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 or being addicted.
(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 an 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 of these orders shall be directed to the sheriff of the county or other appropriate law-enforcement officer. After such an 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, or is addicted 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 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 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 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 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 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 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 or is addicted 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 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 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 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 the 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 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 court reporter fees as 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 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.
§27-5-10. Transportation for the mentally ill or substance abuser.

(a) Whenever transportation of an individual is required under the provisions of article four or five of this chapter, it shall be the duty of the sheriff to provide immediate transportation to or from the appropriate mental health facility or state hospital: Provided, That upon the written request of a person having a proper interest in the individual's hospitalization, the sheriff may permit such the person to arrange for the individual's transportation to the mental health facility or state hospital by such means as may be suitable for that person's mental condition.
(b) Upon written agreement between the county commission on behalf of the sheriff and the directors of the local community mental health center and emergency medical services, an alternative transportation program may be arranged. The agreement shall clearly define the responsibilities of each of the parties, the requirements for program participation and the persons bearing ultimate responsibility for the individual's safety and well-being.
(c) Use of certified municipal law-enforcement officers. -- Sheriffs and municipal governments are hereby authorized to enter into written agreements whereby certified municipal law-enforcement officers may perform the duties of the sheriff as described in this article. The agreement shall determine jurisdiction, responsibility of costs and all other necessary requirements, including training related to the performance of these duties, and shall be approved by the county commission and circuit court of the county in which the agreement is made. For purposes of this subsection, "certified municipal law-enforcement officer" means any duly authorized member of a municipal law-enforcement agency who is empowered to maintain public peace and order, make arrests and enforce the laws of this state or any political subdivision thereof, other than parking ordinances, and who is currently certified as a law-enforcement officer pursuant to article twenty-nine, chapter thirty of this code.
(d) Nothing in this section is intended to alter security responsibilities for the patient by the sheriff unless mutually agreed upon as provided in subsection (b) (c) above.
ARTICLE 7. RELEASE, DISCHARGE AND READMISSION OF PATIENTS; ESCAPEES.

§27-7-2. Release of patients on convalescent status.

(a) The chief medical officer of a mental health facility may release an involuntary patient on convalescent status (trial visit) when the chief medical officer believes such the release is in the best interest of the patient. Release on convalescent status shall include provisions for continuing responsibility to and by a mental health facility, not necessarily the facility in which the patient was previously hospitalized, including a plan of treatment on an outpatient basis to insure that the patient receives whatever care and treatment he or she might require. At the end of six months on convalescent status, the patient must be discharged from any involuntary commitment order that might have been entered against him or her and he or she cannot be involuntarily returned to any mental health facility unless a new commitment proceeding has been instituted against him or her. When a patient released on convalescent status is discharged from his involuntary commitment, it shall be the responsibility of the chief medical officer of the mental health facility of which the individual was a patient prior to being placed on convalescent status to immediately make a report of the discharge of the patient to the circuit court or mental hygiene commissioner of the county in which the involuntary hospitalization was ordered and to the circuit court or mental hygiene commissioner of the county wherein the individual is a resident.
(b) Notwithstanding any provision of this code to the contrary, anytime an individual is committed for treatment pursuant to the provisions of article five of this chapter due to a mental illness and it is determined by the medical director that the use of medication by the individual is necessary to avoid the reoccurrence of the behavior which caused the involuntary hospitalization, initial release from involuntary hospitalization shall be on convalescent status unless the medical director makes a written finding that release on convalescent status will serve no treatment purpose. A person's failure to comply with the terms and conditions of convalescent status shall constitute prima facie grounds to return the patient to inpatient treatment, if ordered by a magistrate, hygiene commissioner or circuit judge following a hearing in which the issue is solely whether or not the person complied with the terms and conditions of convalescent status.

 NOTE: This bill would require each newly appointed mental hygiene commissioners to take a three-day orientation course given by the West Virginia Supreme Court of Appeals within one year of his or her appointment, and would allow sheriffs and municipal law-enforcement agencies to enter written agreements permitting certified municipal law-enforcement officers to perform the duties required of the sheriff under this section.

The bill changes the definition of "addiction" to bring it into compliance with current medical practice, creates an outpatient alternative to hospitalization for persons found to be subject to commitment and requires persons released from involuntary commitment to be released on convalescent status if they require medication to avoid engaging in the behavior which caused commitment. The medical director is authorized to waive this requirement.

The bill also updates the definition of "likely to cause serious harm" to be in compliance with modern medical terminology and removes mental retardation alone as basis for commitment to comport with current law and practice.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.