COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 315
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(By Senators Hunter, Snyder, Fanning, Kessler,
Ross, Sharpe, Rowe and Tomblin, Mr. President)
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[Originating in the Committee on the Judiciary;
reported March 1, 2004.]
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A BILL to amend the code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §27-5-11, relating to
creating a mental hygiene pilot program in three counties or
circuits dealing with multiple involuntarily committed
persons; reporting requirement; and sunset provision.
Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §27-5-11, to read as
follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Supreme court of appeals, in collaboration with others,
to institute mental hygiene pilot program.
(a) In connection with mental hygiene proceedings under this
chapter, the supreme court of appeals shall, in consultation with
the secretary of the department of health and human resources and
local mental health care consumers and providers, prescribe by
administrative order, prepare appropriate forms relating to, and
implement in no more then three judicial circuits for a period of
up to three years beginning on first day of January, two thousand
five, a pilot mental hygiene program using modified procedures that
are consistent with the requirements set forth in this section.
The supreme court of appeals shall annually prepare a report on and
evaluation of the pilot program and procedures that are implemented
pursuant to this section, in consultation with the judicial
circuits, designated magistrates, mental hygiene commissioners and
local mental health consumers and providers involved in the pilot
project(s), and shall transmit the report and evaluation annually
to the Legislature on or before the last day of each calender year.
The court may, during the pilot program period, subject to and
consistent with the requirements of this section, modify the
procedures that are implemented during the trial period. In all
proceedings conducted under the provisions of this section,
individuals who are the subject of petitions for involuntary
hospitalization have the right to appointed counsel and the right
to call witnesses. All orders issued under the provisions of this
section may be immediately appealed and are subject to the right of
habeas corpus. The judicial circuits selected for the modified
procedures shall be circuits in which the supreme court of appeals determines in consultation with the secretary of the department of
health and human resources and local mental health consumers and
providers that adequate resources are available to carry out the
procedures, consistent with the purpose of this chapter that
persons who are, because of mental illness or addiction, likely to
cause serious harm, as defined in section twelve, article one of
this chapter, shall be afforded the least restrictive treatment
available.
(1) (A) In circuits where the procedures are implemented, the
circuit judges, the mental hygiene commissioners, and magistrates
who are designated by the chief judge of the judicial circuit or
circuit judge, if there is no chief judge, shall have authority to
enter temporary probable cause orders directing the involuntary
hospitalization of individuals who have been previously
hospitalized involuntarily on at least three occasions in the
previous twenty-four months upon an ex parte showing that there is
substantial evidence establishing probable cause to believe that an
individual is, because of mental illness or addiction, likely to
cause serious harm; and
(B) No hospitalization pursuant to the provisions of this
section may continue in effect for more than seventy-two hours
without the occurrence of a probable cause hearing before a circuit
judge, mental hygiene commissioner or designated magistrate, and no
person may be hospitalized or treated pursuant to any temporary
probable cause order if the medical authorities at the mental
health facility to which the person is committed determine that the hospitalization or treatment is unwarranted; and
(C) In those judicial circuits where the procedures are
implemented where the supreme court of appeals determines in
consultation with the secretary of the department of health and
human resources and local mental health care consumers and
providers that local mental health facilities are available and
appropriate to house and treat individuals who, because of mental
illness or addiction, are likely to cause serious harm, the chief
judge of the judicial circuit or circuit judge, if there is no
chief judge, may enter orders authorizing specific psychiatrists or
licensed clinical psychologists whose qualifications have been
reviewed and approved by the court to commit an individual who has
been involuntarily hospitalized in the previous twenty-four months
to a mental health facility if the authorized physician or
psychologist concludes based on personal observation of the
individual that an individual is, because of mental illness or
addiction, likely to cause serious harm:
Provided, That the
authorized psychiatrist or psychologist must, as soon as possible
after a commitment, contact a circuit judge, mental hygiene
commissioner or designated magistrate who is authorized to enter ex
parte temporary probable cause orders and obtain approval of the
commitment in a temporary probable cause order. If the approval is
not given, the individual shall be released from the facility.
(2) In circuits where the procedures are implemented, a
verified petition or verified modified petition for a probable
cause order may be filed alleging:
(A) That an individual has been involuntarily hospitalized
three or more times within a 24-month period due to mental illness
or addiction;
(B) That these multiple involuntary hospitalizations are a
result of the individual's unreasonable failure to take prescribed
medication that would if taken avert symptoms of the individual's
mental illness or addiction that make the individual likely to
cause serious harm;
(C) That the individual has, because of his or her mental
illness or addiction, a substantially diminished understanding and
appreciation of the need to take medically prescribed medication to
avert the symptoms of the individual's mental illness or addiction
that have made the individual likely to cause serious harm;
(D) That a court order requiring the individual to take such
prescribed medication would be, if successful in securing the
individual's compliance in taking prescribed medication, a less
restrictive alternative than future involuntary hospitalizations
which are likely to occur in the absence of such an order and that
the entry of such an order is reasonably necessary to avoid
otherwise likely episodes in which the individual is likely to
cause serious harm; and
(E) That a community mental health center, health-care
provider, law-enforcement agency, social work agency or responsible
individual is willing and able to monitor the individual's
compliance with a court order requiring the individual to take
prescribed medication and can provide reasonable assurance that the individual can obtain the prescribed medication without undue
financial or other hardship.
(3) (A) Upon the filing of a petition or modification under
subdivision (2), subsection (a) of this section and the petition's
review by a circuit judge or mental hygiene commissioner, counsel
shall be appointed for the individual if the individual does not
already have counsel and a copy of the petition or modification and
all supporting evidence shall be furnished to the individual and
their counsel. If the circuit judge or mental hygiene commissioner
considers it necessary, a detention order may be entered for the
individual that may order that the individual be examined by a
psychiatrist or licensed clinical psychologist. A hearing on the
allegations in the petition or modification shall be promptly held
before a circuit judge or mental hygiene commissioner.
(B) If the allegations in the petition or modification filed
pursuant to subdivision (2), subsection (a) of this section are
proved by clear and convincing evidence, which must include expert
testimony by a psychiatrist or licensed clinical psychologist, the
judicial officer may enter an order for a period of time
established by the medical evidence in the hearing, but not to
exceed one year, requiring an individual to take prescribed
medication and, if necessary, to attend scheduled
medication-related appointments:
Provided, That an order shall be
subject to termination or modification by a circuit judge or mental
hygiene commissioner at any time if a petition is filed seeking
termination or modification of the order and it is shown in a hearing on the petition that there has been a material change in
the circumstances that led to the entry of the original order that
removes the necessity for the order to avert the individual's
likelihood of causing serious harm.
(4) (A) If a verified petition is filed alleging that an
individual is not in compliance with an order entered pursuant to
paragraph (B), subdivision (3), subsection (a) of this section, the
petition shall be reviewed by a circuit judge or mental hygiene
commissioner and if the circuit judge or mental hygiene
commissioner determines from the petition and any supporting
evidence that there is probable cause to believe that the
allegations in the petition are true, counsel shall be appointed
for the individual if the individual does not already have counsel
and a copy of the petition and all supporting evidence shall be
furnished to the individual and his or her counsel. A detention
order may thereafter be entered for the individual that may order
that the individual be examined by a psychiatrist or licensed
clinical psychologist and a hearing on the allegations in the
petition shall be held before a circuit judge or mental hygiene
commissioner.
(B) At a hearing on the petition, the circuit judge or mental
hygiene commissioner shall inquire into the circumstances that have
led to the filing of the petition while affording the individual
and his or her counsel the opportunity to explain the reasons for
any failure to comply with an order requiring the person to take
prescribed medication. The court shall also inquire as to whether any aspects of the original order should be modified.
(C) If the allegations in the petition regarding non-
compliance with the court's previous order are proven, the circuit
judge or mental hygiene commissioner may modify the previous order,
order involuntary hospitalization if the individual meets the
standard of likelihood of causing serious harm, or continue the
individual upon the terms of the original order.
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(NOTE: The purpose of this bill is to create a mental hygiene
pilot program, to be implemented in up to three judicial circuits
for a period of up to three years. The primary focus of the pilot
project is to reduce the cost of the hearing process involved in
involuntary hospitalizations of persons who have been previously
adjudicated on at least three occasions, while implementing
judicial measures intended to more successfully address problems
associated with addiction as well as the failure or refusal by
individuals to take prescribed medication, which causes these
individuals to become repeatedly involved in the current mental
hygiene framework.
This section is new; therefore, strike-throughs and
underscoring have been omitted.)