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1 - WORDS AND PHRASES DEFINED

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1A - DEPARTMENT OF HEALTH

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2 - MENTAL HEALTH FACILITIES

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2A - MENTAL HEALTH-MENTAL RETARDATI

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3 - CONFIDENTIALITY

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4 - VOLUNTARY HOSPITALIZATION

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5 - INVOLUNTARY HOSPITALIZATION

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6 - COMMITMENT OF INEBRIATES AND CR

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6A - COMPETENCY AND CRIMINAL RESPON

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7 - RELEASE, DISCHARGE AND READMISS

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8 - MAINTENANCE OF MENTALLY ILL OR

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9 - LICENSING OF HOSPITALS

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10 - WEST VIRGINIA TRAINING SCHOOL

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11 - COMMITTEE; DISPOSITION OF PRO

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12 - OFFENSES

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13 - LAWS REPEALED; SEVERABILITY

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14 - INTERSTATE COMPACT ON MENTAL

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15 - INTERSTATE COMPACT ON THE MEN

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17 - GROUP RESIDENTIAL FACILITIES

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CHAPTER 27. MENTALLY ILL PERSONS.
ARTICLE 16. STERILIZATION OF MENTAL DEFECTIVES.

§27-16-1. Persons subject to sterilization; procedure.
Whenever any parent, guardian, committee or authority responsible for a person who has been declared mentally incompetent shall be of the opinion that it is in said person's best interest and the best interest of society that the said person be sterilized, such parent, guardian, committee or authority shall apply to the circuit court of the county of which such incompetent person is a resident or where he may be found, by petition setting forth, under oath, all of the facts of the case and the grounds of his opinion, and praying that an order may be entered by said court authorizing and requiring him to have performed, by a duly licensed physician to be designated in the petition and order, upon such incompetent person named in such petition, sterilization procedures as medically indicated.

The court in which such petition is filed, or the judge thereof in vacation or a referee appointed by the court for this purpose shall review the circumstances under which the individual was declared incompetent and shall take evidence to determine that the circumstances warrant continuation of the incompetent status of the individual.

If, as a result of such review it is determined that the incompetent status should be continued, a further hearing shall be scheduled.

A copy of such petition shall be served upon such incompetent person, together with a notice, in writing, designating the date and time when the court, or the judge thereof in vacation, will hear the matters arising upon such petition. Such notice shall be served not less than fifteen days prior to the date of such hearing.

After the notice required by this article to be served shall have been given, as herein provided, the court, or the judge thereof in vacation or referee appointed for this purpose shall proceed to hear and consider the petition and the evidence offered in support of and against the same. For every such incompetent person who is not represented by counsel the court shall appoint competent legal counsel who shall represent the rights and interests of such incompetent person who shall have the right, but shall not be required to be present at such hearings in person, and shall have the opportunity to present evidence in his own behalf and cross-examine witnesses. A transcript of all testimony at such hearing shall be made a part of the record filed with the clerk and shall be made available to the incompetent person or his counsel.

However, prior to such hearing the court shall order a complete medical-social evaluation by one licensed physician and one licensed psychologist or by two licensed physicians, at least one of whom shall be qualified in the field of psychiatry, neurology or genetics. Such examiners shall be present at the hearing and may be examined and cross-examined.

Upon consideration of the full record, the court, the judge thereof in vacation or the referee may find:

(1) That sterilization is unwarranted and the proceedings shall be dismissed;

(2) That the individual is mentally impaired and that such defect is of a genetic nature that is likely to be passed on to any children; or

(3) That the individual is mentally impaired to such a degree as to be unable to care for a child and that the individual is unlikely to recover from such mental impairment.

If the finding is made as enumerated in (2) or (3) above, and it is further determined that no alternative method of birth control is feasible, the court or the judge thereof in vacation may order that medically appropriate sterilization procedures shall be performed, and for a female, that such procedures be performed in a medical facility licensed by the state board of health. In no case shall such procedures be carried out until sixty days have elapsed from the date of such order.

§27-16-2. Appeal from court order.
From any such order so entered by the court, or the judge thereof in vacation, any party thereto shall have, within sixty days after the entry of such order, the right to apply for an appeal to the supreme court of appeals, which may grant or refuse such appeal and shall have jurisdiction to hear and to determine the same upon the record of the hearing in the circuit court and to enter such order as it may deem appropriate. The filing of such an appeal in the supreme court of appeals shall operate as a stay of proceedings under any such order of the circuit court until such appeal shall be determined by the supreme court of appeals.

§27-16-3. Immunity of physician performing surgical procedure.
Except as to the laws governing negligence, no such physician shall be liable either civilly or criminally by reason of having performed any procedure authorized by the provisions of this article upon any person in this state.

§27-16-4. Limitations of article.
Nothing in this article shall be construed to authorize the operation of castration nor the removal of sound organs from the body; but this provision shall not be construed so as to prevent the medical or surgical treatment for sound therapeutic reasons of any person in this state, by a physician licensed by this state, in such a way as may incidentally involve the nullification or destruction of the reproductive functions.

§27-16-5. Legal counsel; compensation; costs.
When, in any case, the court, or judge thereof in vacation, is satisfied that the counsel appointed by the court has rendered substantial service to the mental incompetent, it may allow him reasonable compensation therefor, and his actual expenses, if any, to be paid by the petitioners.

The costs of any proceeding pursuant to this article shall be paid by the petitioner.