Introduced Version
Senate Bill 25 History
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Senate Bill No. 25
(By Senators Stollings and Jenkins)
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[Introduced February 13, 2013; referred to the Committee on the
Judiciary.]
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A BILL to amend and reenact §27-5-11 of the Code of West Virginia,
1931, as amended, relating to modified mental hygiene
procedures; deleting the termination date of the modified
mental hygiene procedures pilot project; authorizing
additional programs throughout the state; and continuing the
pilot project as a permanent program.
Be it enacted by the Legislature of West Virginia:
That §27-5-11 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Modified procedures for temporary compliance orders for
certain medication dependent persons with prior
hospitalizations or convictions; instituting modified mental hygiene procedures; establishing procedures;
providing for forms and reports.
(a) The Supreme Court of Appeals shall, in consultation with
the Secretary of the Department of Health and Human Resources and
local mental health services consumers and providers, implement in
at least four and no more than six judicial circuits, beginning on
July 1, 2006, throughout the state modified mental hygiene
procedures that are consistent with the requirements set forth in
this section. The judicial circuits selected for implementing the
modified procedures shall be circuits in which the Supreme Court of
Appeals determines, after consultation with the Secretary of the
Department of Health and Human Resources and local mental health
consumers and service providers, that adequate resources will be
available to implement the modified procedures. After July 1,
2013, the Supreme Court of Appeals and the Secretary of the
Department of Health and Human Resources may add programs for
modified mental hygiene procedures in any judicial circuit that
establishes a need for the same.
(b) The Secretary of the Department of Health and Human
Resources, after consultation with the Supreme Court of Appeals and
local mental health services consumers and service providers, shall
prescribe appropriate forms to implement the modified procedures
and shall annually prepare a report on the use of the modified procedures and transmit the report to the Legislature on or before
the last day of each calendar year.
(c) The Supreme Court of Appeals may, after consultation with
the Secretary of the Department of Health and Human Resources and
local mental health services consumers and providers during the
pilot program period, further modify any specific modified
procedures that are implemented Provided, That pursuant to this
section. The modified procedures must be consistent with the
requirements of this chapter and this section. If the Secretary of
the Department of Health and Human Resources determines that the
use of any modified procedure in one or more judicial circuits is
placing an unacceptable additional burden upon state mental health
resources, the Supreme Court of Appeals shall, in consultation with
the secretary, modify the procedures used in such a fashion as will
address the concerns of the secretary, consistent with the
requirements of this chapter. The provisions of this section and
the modified procedures thereby authorized shall cease to have any
force and effect on June 30, 2012, unless extended by an act of the
Legislature prior to that date.
(b) (1) The modified procedures shall authorize that a
verified petition seeking a treatment compliance order may be filed
by any person alleging:
(A) That an individual, on two or more occasions within a twenty-four month period prior to the filing of the petition, as a
result of mental illness, has been hospitalized pursuant to the
provisions of this chapter; or that the individual has been
convicted of one or more crimes of violence against the person
within a twenty-four month period prior to the filing of the
petition and the individual's failure to take prescribed medication
or follow another prescribed regimen to treat a mental illness was
a significant aggravating or contributing factor in the
circumstances surrounding the crime;
(B) That the individual?s previous hospitalizations due to
mental illness or the individual's crime of violence occurred after
or as a result of the individual?s failure to take medication or
other treatment as prescribed by a physician to treat the
individual?s mental illness; and
(C) That the individual, in the absence of a court order
requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or follow other regimen or treatment as prescribed
is likely to lead to further instances in the reasonably near
future in which the individual becomes likely to cause serious harm
or commit a crime of violence against the person.
(2) Upon the filing of a petition seeking a treatment
compliance order 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 and all supporting evidence shall be furnished
to the individual and their counsel. If the circuit judge or
Mental Hygiene Commissioner determines on the basis of the petition
that it is necessary to protect the individual or to secure their
examination, a detention order may be entered ordering that the
individual be taken into custody and examined by a psychiatrist or
licensed psychologist. A hearing on the allegations in the
petition, which may be combined with a hearing on a probable cause
petition conducted pursuant to the provisions of section two of
this article or a final commitment hearing conducted pursuant to
the provisions of section four of this article, shall be held
before a circuit judge or Mental Hygiene Commissioner. If the
individual is taken into custody and remains in custody as a result
of a detention order, the hearing shall be held within forty-eight
hours of the time that the individual is taken into custody.
(3) If the allegations in the petition seeking a treatment
compliance order are proved by the evidence adduced at the hearing,
which must include expert testimony by a psychiatrist or licensed
psychologist, the circuit judge or Mental Hygiene Commissioner may
enter a treatment compliance order for a period not to exceed six
months upon making the following findings:
(A) That the individual is eighteen years of age or older;
(B) That on two or more occasions within a twenty-four month
period prior to the filing of the petition, an individual, as a
result of mental illness, has been hospitalized pursuant to the
provisions of this chapter; or that on at least one occasion within
a twenty-four month period prior to the filing of the petition has
been convicted of a crime of violence against any person;
(C) That the individual's previous hospitalizations due to
mental illness occurred as a result of the individual's failure to
take prescribed medication or follow a regimen or course of
treatment as prescribed by a physician or psychiatrist to treat the
individual's mental illness; or that the individual has been
convicted for crimes of violence against any person and the
individual's failure to take medication or follow a prescribed
regimen or course of treatment of the individual's mental illness
was a significant aggravating or contributing factor in the
commission of the crime;
(D) That a psychiatrist or licensed psychologist who has
personally examined the individual within the preceding twenty-four
months has issued a written opinion that the individual, without
the aid of the medication or other prescribed treatment, is likely
to cause serious harm to himself or herself or to others;
(E) That the individual, in the absence of a court order requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or other treatment as prescribed is likely to lead
to further instances in the reasonably near future in which the
individual becomes likely to cause serious harm or commit a crime
of violence against any person;
(F) That, where necessary, a responsible entity or individual
is available to assist and monitor the individual's compliance with
an order requiring the individual to take the medication or follow
other prescribed regimen or course of treatment;
(G) That the individual can obtain and take the prescribed
medication or follow other prescribed regimen or course of
treatment without undue financial or other hardship; and
(H) That, if necessary, a medical provider is available to
assess the individual within forty-eight hours of the entry of the
treatment compliance order.
(4) The order may require an individual to take medication and
treatment as prescribed and if appropriate to attend scheduled
medication and treatment-related appointments: Provided, That a
treatment compliance order shall be subject to termination or
modification by a circuit judge or Mental Hygiene Commissioner 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 justifies the order?s modification or
termination: Provided, however, That a treatment compliance order
may be extended by a circuit judge or Mental Hygiene Commissioner
for additional periods of time not to exceed six months, upon the
filing of a petition seeking an extension and after a hearing on
the petition or upon the agreement of the individual.
(5) (A) After the entry of a treatment compliance order in
accordance with the provisions of subdivisions (3) and (4) of this
subsection (b) of this section, if a verified petition is filed
alleging that an individual has not complied with the terms of a
medication and treatment compliance order and if a 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 and a copy of the petition and all
supporting evidence shall be furnished to the individual and his or
her counsel. If the circuit judge or Mental Hygiene Commissioner
considers it necessary to protect the individual or to secure his
or her examination, a detention order may be entered to require
that the individual be examined by a psychiatrist or psychologist.
(A) A hearing on the allegations in the petition, which may be
combined with a hearing on a probable cause petition conducted pursuant to section two of this article or a final commitment
hearing conducted pursuant to section four of this article, shall
be held before a circuit judge or Mental Hygiene Commissioner. If
the individual is taken and remains in custody as a result of a
detention order, the hearing shall be held within forty-eight hours
of the time that the individual is taken into custody.
(B) At a hearing on any petition filed pursuant to the
provisions of paragraph (A) of this subdivision, (5), subsection
(b) of this section, the circuit judge or Mental Hygiene
Commissioner shall determine whether the individual has complied
with the terms of the medication and treatment compliance order.
If the individual has complied with the order, the petition shall
be dismissed. Provided, That If the evidence presented to the
circuit judge or Mental Hygiene Commissioner shows that the
individual has complied with the terms of the existing order, but
the individual's prescribed medication, dosage or course of
treatment needs to be modified, then the newly modified medication
and treatment prescribed by a psychiatrist who personally examined
the individual may be properly incorporated into a modified order.
If the order has not been complied with, the circuit judge or
Mental Hygiene Commissioner, after inquiring into the reasons for
noncompliance and whether any aspects of the order should be
modified, may continue the individual upon the terms of the original order and direct the individual to comply with the order
or may modify the order in light of the evidence presented at the
hearing. If the evidence shows that the individual at the time of
the hearing is likely to cause serious harm to himself, herself or
others as a result of the individual?s mental illness, the circuit
judge or Mental Hygiene Commissioner may convert the proceeding
into a probable cause proceeding and enter a probable cause order
directing the involuntary admission of the individual to a mental
health facility for examination and treatment. Provided, however,
That Any procedures conducted pursuant to this subsection must
comply with and satisfy all applicable due process and hearing
requirements of contained in sections two and three of this
article. have been fully satisfied
(c)(1) (d) The modified procedures may authorize that upon the
certification of a qualified mental health professional, as
described in subdivision (2) of this subsection (e) of this
section, that there is probable cause to believe that an individual
who has been hospitalized two or more times in the previous twenty-
four months because of mental illness is likely to cause serious
harm to himself or herself, or to others as a result of the mental
illness if not immediately restrained and that the best interests
of the individual would be served by immediate hospitalization, a
circuit judge, Mental Hygiene Commissioner or designated magistrate may enter a temporary probable cause order directing the
involuntary hospitalization of the individual at a mental health
facility for immediate examination and treatment.
(2) (e) The modified procedures may authorize the chief judge
of a judicial circuit, or circuit judge if there is no chief judge,
to enter orders authorizing specific psychiatrists or licensed
psychologists, whose qualifications and training have been reviewed
and approved by the Supreme Court of Appeals, to issue
certifications that authorize and direct the involuntary admission
of an individual subject to the provisions of this section on a
temporary probable cause basis to a mental health facility for
examination and treatment. Provided, That The authorized
psychiatrist or licensed psychologist must conclude and certify
based on personal observation prior to certification that the
individual is mentally ill and, because of such mental illness, is
imminently likely to cause serious harm to himself or herself or to
others if not immediately restrained and promotion of the best
interests of the individual requires immediate hospitalization.
Immediately upon certification, the psychiatrist or licensed
psychologist shall provide notice of the certification to a circuit
judge, Mental Hygiene Commissioner or designated magistrate in the
county where the individual resides.
(3) (f) No involuntary hospitalization pursuant to a temporary probable cause determination issued pursuant to the provisions of
this section shall continue in effect for more than forty-eight
hours without the filing of a petition for involuntary
hospitalization and the occurrence of a probable cause hearing
before a circuit judge, Mental Hygiene Commissioner or designated
magistrate. If at any time the chief medical officer of the mental
health facility to which the individual is admitted determines that
the individual is not likely to cause serious harm as a result of
mental illness, the chief medical officer shall discharge the
individual and immediately forward a copy of the individual?s
discharge to the circuit judge, Mental Hygiene Commissioner or
designated magistrate.
NOTE: The purpose of this bill is to remove the expiration
date of the pilot project establishing emergency mental hygiene
procedures and make the program permanent.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.