H. B. 2329


(By Delegate Stalnaker)

[Introduced January 16, 2003; 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 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.
(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 these 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 and that because of such the mental illness 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.
(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 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 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 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 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 and because of illness 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 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 and human resources, 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 or addicted, the proceedings shall be dismissed. If the circuit court or mental hygiene commissioner finds that the individual is mentally ill but is not because of such the illness 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 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.