COMMITTEE SUBSTITUTE

FOR

Senate Bill No. 204

(By Senators Oliverio, Sharpe, Ross, McKenzie and Hunter)

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[Originating in the Committee on the Judiciary;

reported February 5, 2003.]

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A BILL to amend and reenact sections two and three, article five, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to removing language which precludes incarcerated persons from being subjected to mental hygiene proceedings; and clarifying that licensed independent clinical social workers and advanced nurse practitioners with psychiatric certification may certify persons for purposes of mental health proceedings.

Be it enacted by the Legislature of West Virginia:
That sections two and three, article five, chapter twenty- seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all 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) Any adult person may make an application for involuntary hospitalization for examination of an individual who is not incarcerated at the time the application is filed when the person making the application has reason to believe that:
(1) The individual to be examined is addicted, as defined in section eleven, article one of this chapter; or
(2) The individual is mentally ill and, because of his or her mental illness, 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) The person making the application shall make the application under oath.
(c) 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. When no circuit court judge or mental hygiene commissioner is available for immediate presentation of the application, the application may be made to a magistrate designated by the chief judge of the judicial circuit to accept applications and hold probable cause hearings. A designated magistrate before whom an application or matter is pending may, upon the availability of a mental hygiene commissioner or circuit court judge for immediate presentation of an application or pending matter, transfer the pending matter or application to the mental hygiene commissioner or circuit court judge for further proceedings unless otherwise ordered by the chief judge of the judicial circuit.
(d) The person making the application shall give information and state facts in the application as may be required by the form provided for this purpose by the supreme court of appeals.
(e) The circuit court, mental hygiene commissioner or designated magistrate may enter an order for the individual named in the application to be detained and taken into custody for the purpose of holding a probable cause hearing as provided for in subsection (g) of this section for the purpose of an examination of the individual by a physician, psychologist, a licensed independent clinical social worker practicing in compliance with article thirty, chapter thirty of this code or advanced nurse practitioner with psychiatric certification practicing in compliance with article seven of said chapter: Provided, That a licensed independent clinical social worker or an advanced nurse practitioner with psychiatric certification may only perform the examination if he or she has previously been authorized by an order of the circuit court to do so, said order having found that the licensed independent clinical social worker or advanced nurse practitioner with psychiatric certification has particularized expertise in the areas of mental health and mental hygiene sufficient to make such determinations as are required by the provisions of this section. The examination is to 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 order is to specify that the hearing be held forthwith and is to provide for the appointment of counsel for the individual: Provided, however, That the order may allow the hearing to be held up to twenty-four hours after the person to be examined is taken into custody rather than forthwith if the circuit court of the county in which the person is found has previously entered a standing order which establishes within that jurisdiction a program for placement of persons awaiting a hearing which assures the safety and humane treatment of persons: Provided further, That the time requirements set forth in this subsection shall only apply to persons who are not in need of medical care for a physical condition or disease for which the need for treatment precludes the ability to comply with said time requirements. During periods of holding and detention authorized by this subsection, upon consent of the individual or in the event of a medical or psychiatric emergency, the individual may receive treatment. The medical provider shall exercise due diligence in determining the individual's existing medical needs and provide such treatment as the individual requires, including previously prescribed medications. As used in this section, "psychiatric emergency" means an incident during which an individual loses control and behaves in a manner that poses substantial likelihood of physical harm to himself, herself or others. Where a physician, psychologist, licensed independent clinical social worker or advanced nurse practitioner with psychiatric certification has within the preceding seventy-two hours performed the examination required by the provisions of this subdivision, the community mental health center may waive the duty to perform or arrange another examination upon approving the previously performed examination. Notwithstanding the provisions of this subsection, subsection (r), section four of this article applies regarding payment by the county commission for examinations at hearings. If the examination reveals that the individual is not mentally ill or addicted, or is determined to be mentally ill but not likely to cause harm to himself, herself or others, the individual shall be immediately released without the need for a probable cause hearing and absent a finding of professional negligence such examiner shall not be civilly liable for the rendering of such opinion absent a finding of professional negligence. The examiner shall immediately provide the mental hygiene commissioner, circuit court or designated magistrate before whom the matter is pending the results of the examination on the form provided for this purpose by the supreme court of appeals for entry of an order reflecting the lack of probable cause.
(f) A probable cause hearing is to 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 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. Expert testimony at the hearing may be taken telephonically or via videoconferencing. The individual has the right to remain silent and to be proceeded against in accordance with the rules of evidence of the supreme court of appeals, except as provided for in section twelve, article one of this chapter. 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 the individual, as a result of mental illness, is likely to cause serious harm to himself or herself or to others or is addicted.
(g) The magistrate, mental hygiene commissioner or circuit court judge at a probable cause hearing or at a final commitment hearing held pursuant to the provisions of section four of this article finds that the individual, as a result of mental illness, is likely to cause serious harm to himself, herself or others or is addicted and because of mental illness or addiction requires treatment, 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 outpatient treatment in a nonresidential or nonhospital setting pursuant to a voluntary treatment agreement. The agreement is to be in writing and approved by the individual, his or her counsel and the magistrate, mental hygiene commissioner or circuit judge. If the magistrate, mental hygiene commissioner or circuit court judge determines that appropriate outpatient treatment is available in a nonresidential or nonhospital setting, the individual may be released to outpatient treatment upon the terms and conditions of the voluntary treatment agreement. The failure of an individual released to outpatient treatment pursuant to a voluntary treatment agreement to comply with the terms of the voluntary treatment agreement constitutes evidence that outpatient 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 the voluntary treatment agreement and whether the individual as a result of mental illness remains likely to cause serious harm to himself, herself or others or remains addicted, the entry of an order requiring admission under involuntary hospitalization pursuant to the provisions of section three of this article may be entered. In the event a person released pursuant to a voluntary treatment agreement 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 subject to a voluntary treatment agreement in an amount in excess of the cost of involuntary hospitalization of the individual. The secretary shall establish and maintain fee schedules for outpatient treatment provided in lieu of involuntary hospitalization. Nothing in the provisions of this article regarding release pursuant to a voluntary treatment agreement or convalescent status may be construed as creating a right to receive outpatient mental health services or treatment or as obligating any person or agency to provide outpatient services or treatment. Time limitations set forth in this article relating to periods of involuntary commitment to a mental health facility for hospitalization do not apply to release pursuant to the terms of a voluntary treatment agreement: Provided, however, That release pursuant to a voluntary treatment agreement may not be for a period of more than six months if the individual has not been found to be involuntarily committed during the previous two years and for a period of no more than two years if the individual has been involuntarily committed during the preceding two years. If in any proceeding held pursuant to this article the individual objects to the issuance or conditions and terms of an order adopting a voluntary treatment agreement, then the circuit judge, magistrate or mental hygiene commissioner may not enter an order directing treatment pursuant to a voluntary treatment agreement. If involuntary commitment with release pursuant to a voluntary treatment agreement is ordered, the individual subject to the order may, upon request during the period the order is in effect, have a hearing before a mental hygiene commissioner or circuit judge where the individual may seek to have the order canceled or modified. Nothing in this section may affect the appellate and habeas corpus rights of any individual subject to any commitment order.
(h) 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.
(i) The supreme court of appeals and the secretary of the department of health and human resources shall collect data and report to the Legislature at its regular annual sessions in two thousand three and two thousand four of the effects of the changes made in the mental hygiene judicial process along with any recommendations which they may deem proper for further revision or implementation in order to improve the administration and functioning of the mental hygiene system utilized in this state, to serve the ends of due process and justice in accordance with the rights and privileges guaranteed to all citizens, to promote a more effective, humane and efficient system and to promote the development of good mental health. The supreme court of appeals and the secretary of the department of health and human resources shall specifically develop and propose a statewide system for evaluation and adjudication of mental hygiene petitions which shall include payment schedules and recommendations regarding funding sources. Additionally, the secretary of the department of health and human resources shall also immediately seek reciprocal agreements with officials in contiguous states to develop interstate/intergovernmental agreements to provide efficient and efficacious services to out-of-state residents found in West Virginia and who are in need of mental hygiene services.
§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 and treatment upon entry of an order finding probable cause as provided in section two of this article and upon certification by one a physician, or one psychologist, licensed independent clinical social worker practicing in compliance with the provisions of article thirty, chapter thirty of this code or an advanced nurse practitioner with psychiatric certification that he or she has examined the individual and is of the opinion that the individual is mentally ill and, because of such mental illness, is likely to cause serious harm to himself or herself or to others if not immediately restrained or is addicted.
(b) Three-day time limitation on examination. -- If said 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 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 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 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 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 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 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 period, the individual is examined by a staff physician and such physician certifies that in his or her opinion the patient is mentally ill and is likely to injure himself or herself or others or will remain addicted if allowed to be at liberty.
(g) Fifteen-day time limitation for institution of final commitment proceedings. -- If, in the opinion of the examining physician, the patient is mentally ill and because of such mental illness 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 fifteen days from the date of admission, institute final commitment proceedings as provided in section four of this article. If such proceedings are not instituted within such fifteen-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 proceedings, the patient shall be immediately released.
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 (NOTE: The purpose of this bill is to eliminate language found unconstitutional by the supreme court relating to mental hygiene jurisdiction over incarcerated persons and to make clear that licensed independent clinical social workers and advance nurse practitioners with psychiatric certification are authorized to certify individuals for mental hygiene purposes.


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