H. B. 3055

(By Delegates Compton and Susman)
[Introduced March 29, 2001; referred to the
Committee on the Judiciary then Finance.]

A BILL to amend and reenact section two, article five, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to involuntary hospitalization of persons between the ages of twelve and sixteen with a serious mental or emotional condition or depression or are manic depressive.

Be it enacted by the Legislature of West Virginia:
That section two, 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.

§27-5-2. 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 that 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 that 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; or
(3) The individual is between the ages of twelve and sixteen years with a serious mental or emotional condition or is seriously depressed and, because of this serious mental or emotional condition or depression, the individual is likely to cause serious harm to himself or herself or to others

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(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 in the petition, 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 applies regarding payment by the county commission for examinations at hearings.
In the event If 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 has 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 has 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 serious mental or emotional condition, serious depression or

NOTE: The purpose of this bill is to provide procedure of

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