H. B. 3126


(By Delegates Stalnaker and Amores)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]




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 generally to the institution of proceedings for the involuntary commitment of individuals; and requiring the supreme court of appeals to prescribe alternative procedures for mental hygiene proceedings.

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) 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, 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, however, 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) Notwithstanding any other provision of this article, the supreme court of appeals, in consultation with the secretary of the department of health and human resources, shall prescribe alternative or modified procedures for detention, examination, certification, transportation, determination of probable cause, payment for services related to mental hygiene proceedings, and placement, to be used in connection with involuntary hospitalization proceedings on a trial period basis in at least two, but not to exceed four judicial circuits for four years beginning on the first day of January, two thousand four: Provided, That if the secretary of the department of health and human resources finds any pilot program is causing a substantial additional burden on state resources, the secretary of the department of health and human resources may request that the supreme court of appeals modify or suspend the pilot program, and the supreme court of appeals shall comply with modification or suspension of the pilot program: Provided, however, That in planning, developing and implementing any pilot programs, the supreme court of appeals shall consult with and involve representatives of mental health consumer and patient rights groups. The alternative or modified procedures may authorize a judicial officer approved by the supreme court of appeals upon an ex parte showing to the officer that there is probable cause to believe that an individual is, as a result of mental illness, likely to cause serious harm to himself or herself or to others, or is addicted, to make a probable cause finding and issue an order appointing counsel and requiring involuntary hospitalization and treatment:
Provided further, That no hospitalization or treatment may continue for more than ninety-six hours without a probable cause hearing before a judicial officer, and no person may be hospitalized or treated pursuant to any probable cause order without certification by an approved and qualified mental health professional or licensed medical or osteopathic physician: And provided further, That if the medical authorities at the mental health facility to which the person is committed determine that the hospitalization or treatment is unwarranted, the person may be released. The alternative or modified procedures: (1) May permit probable cause hearings to occur in the county where a person is hospitalized; (2) may permit judicial officers to employ videoconferencing and telephonic technology in probable cause determinations; (3) may permit persons hospitalized only until detoxification is accomplished; and (4) may specify other alternative or modified procedures that are consistent with the purposes and provisions of this article. The alternative or modified procedures shall fully and effectively guarantee to the person who is the subject of the involuntary commitment proceeding and other interested parties due process of law and access to the least restrictive available treatment needed to prevent serious harm to self or others. The supreme court of appeals may, subject to the foregoing requirements, further modify the procedures implemented during the four-year trial period established herein. The supreme court of appeals, additionally, shall report on the results of trial period alternative procedures to the Legislature on an annual basis.
(g) (h) 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 article five of this chapter 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) (i) 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) (j) 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 consider 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.



NOTE: The purpose of this bill is to establish a pilot project designed to improve the involuntary commitment process and place persons subject to involuntary commitment applications in less restrictive environments.

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