Senate Bill No. 678
(By Senators Laird, Williams, Bowman, Jenkins, Kessler, Foster,
Plymale and Stollings)
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[Introduced February 22, 2010; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §27-5-1, §27-5-2 and §27-5-3 of the
Code of West Virginia, 1931, as amended, all relating to
mentally ill persons; involuntary hospitalization; duties of
sheriff; including the President of the West Virginia
Sheriffs' Association in the development and proposal of a
statewide system for evaluation and adjudication of mental
hygiene petitions; and providing that the Department of Health
and Human Resources shall reimburse the county commission for
deposit into the sheriff's budget for expenses incurred in
hearings conducted under the article.
Be it enacted by the Legislature of West Virginia:
That §27-5-1, §27-5-2 and §27-5-3 of the Code of West
Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-1. Appointment of mental hygiene commissioner; duties of
mental hygiene commissioner; duties of prosecuting
attorney; duties of sheriff; duties of Supreme Court
of Appeals; use of certified municipal law-enforcement
officers.
(a)
Appointment of mental hygiene commissioners. -- The chief
judge in each judicial circuit of this state shall appoint a
competent attorney and may, if necessary, appoint additional
attorneys to serve as mental hygiene commissioners to preside over
involuntary hospitalization hearings. Mental hygiene commissioners
shall be persons of good moral character and of standing in their
profession and they shall, before assuming the duties of
such a
commissioner, take the oath required of other special commissioners
as provided in article one, chapter six of this code.
All persons newly appointed to serve as mental hygiene
commissioners shall attend and complete an orientation course,
within one year of their appointment, consisting of at least three
days of training provided annually by the Supreme Court of Appeals.
In addition, existing mental hygiene commissioners and any
magistrates designated by the chief judge of a judicial circuit to
hold probable cause and emergency detention hearings involving involuntary hospitalization shall attend and complete a course
provided by the Supreme Court of Appeals, which course shall
include, but not be limited to, instruction on the manifestations
of mental illness and addiction. Persons attending
such the
courses outside the county of their residence shall be reimbursed
out of the budget of the supreme court -- general judicial for
reasonable expenses incurred. The supreme court shall establish
rules for
such these courses, including rules providing for the
reimbursement of reasonable expenses as authorized herein.
(b)
Duties of mental hygiene commissioners. --
(1) Mental hygiene commissioners may sign and issue summonses
for the attendance, at any hearing held pursuant to section four,
article five of this chapter, of the individual sought to be
committed; may sign and issue subpoenas for witnesses, including
subpoenas duces tecum; may place any witness under oath; may elicit
testimony from applicants, respondents and witnesses regarding
factual issues raised in the petition; and may make findings of
fact on evidence and may make conclusions of law, but such findings
and conclusions shall not be binding on the circuit court. The
circuit court, by order entered of record, shall allow the
commissioner a reasonable fee for services rendered in connection
with each case. Mental hygiene commissioners shall discharge their
duties and hold their offices at the pleasure of the chief judge of the judicial circuit in which he or she is appointed and may be
removed at any time by such chief judge. It shall be the duty of
a mental hygiene commissioner to conduct orderly inquiries into the
mental health of the individual sought to be committed concerning
the advisability of committing the individual to a mental health
facility. The mental hygiene commissioner shall safeguard, at all
times, the rights and interests of the individual as well as the
interests of the state. The mental hygiene commissioner shall make
a written report of his or her findings to the circuit court. In
any proceedings before any court of record as set forth in this
article, the court of record shall appoint an interpreter for any
individual who is deaf or cannot speak or who speaks a foreign
language and who may be subject to involuntary commitment to a
mental health facility.
(2) A mental hygiene commissioner appointed by the circuit
court of one county or multiple county circuit may serve in such
capacity in a jurisdiction other than that of his or her original
appointment if such be agreed upon by the terms of a cooperative
agreement between the circuit courts and county commissions of two
or more counties entered into to provide prompt resolution of
mental hygiene matters during noncourt hours or on nonjudicial
days.
(c)
Duties of prosecuting attorney. -- It shall be the duty of the prosecuting attorney or one of his or her assistants to
represent the applicants in all final commitment proceedings filed
pursuant to the provisions of this article. The prosecuting
attorney may appear in any proceeding held pursuant to the
provisions of this article if he or she deems it to be in the
public interest.
(d)
Duties of sheriff. -- Upon written order of the circuit
court, mental hygiene commissioner or magistrate in the county
where the individual formally accused of being mentally ill or
addicted is a resident or is found, the sheriff of that county
shall take said individual into custody and transport him or her to
and from the place of hearing and the mental health facility. The
sheriff shall also maintain custody and control of the accused
individual during the period of time in which the individual is
waiting for the involuntary commitment hearing to be convened and
while such hearing is being conducted:
Provided, That an
individual who is a resident of a state other than West Virginia
shall, upon a finding of probable cause, be transferred to his or
her state of residence for treatment pursuant to the provisions of
subsection (p), section four of this article:
Provided, however,
That where an individual is a resident of West Virginia but not a
resident of the county in which he or she is found and there is a
finding of probable cause, the county in which the hearing is held may seek reimbursement from the county of residence for reasonable
costs incurred by the county attendant to the mental hygiene
proceeding. Notwithstanding any provision of this code to the
contrary, sheriffs may enter into cooperative agreements with
sheriffs of one or more other counties, with the concurrence of
their respective circuit courts and county commissions, whereby
transportation and security responsibilities for hearings held
pursuant to the provisions of this article during noncourt hours or
on nonjudicial days may be shared in order to facilitate prompt
hearings and to effectuate transportation of persons found in need
of treatment.
(e)
Duty of sheriff upon presentment to mental health care
facility. -- Where a person is brought to a mental health care
facility for purposes of evaluation for commitment under the
provisions of this article, if he or she is violent or combative,
the sheriff or his or her designee shall maintain custody of the
person in the facility until the evaluation is completed.
or the
county commission shall reimburse the mental health care facility
at a reasonable rate for security services provided by the mental
health care facility for the period of time the person is at the
hospital prior to the determination of mental competence or
incompetence.
(f)
Duties of Supreme Court of Appeals. -- The Supreme Court of Appeals shall provide uniform petition, procedure and order
forms which shall be used in all involuntary hospitalization
proceedings brought in this state.
§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 when the person
making the application has reason to believe that the individual to
be examined is addicted, as defined in section eleven, article one
of this chapter, or is mentally ill and, because of his or her
addiction or mental illness, the individual is likely to cause
serious harm to himself, herself or to others if allowed to remain
at liberty while awaiting an examination and certification by a
physician or psychologist.
Notwithstanding any language in this subsection to the
contrary, if the individual to be examined under the provisions of
this section is incarcerated in a jail, prison or other
correctional facility, then only the chief administrative officer
of the facility holding the individual may file the application and
the application
must shall include the additional statement that
the correctional facility itself cannot reasonably provide
treatment and other services for the individual's mental illness or addiction.
(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 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, an advanced nurse practitioner
with psychiatric certification practicing in compliance with
article seven of said chapter, a physician assistant practicing in
compliance with article three of said chapter or a physician
assistant practicing in compliance with article fourteen-a of said
chapter:
Provided, That a licensed independent clinical social
worker, a physician assistant 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, the order having found that the licensed
independent clinical social worker, physician assistant or advanced
nurse practitioner with psychiatric certification has
particularized expertise in the areas of mental health and mental
hygiene or addiction sufficient to make the 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, however, 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 further, That the
time requirements set forth in this subsection 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 the 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 treatment 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, physician assistant 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 or addicted 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 the examiner is not
civilly liable for the rendering of the 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 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 or
addiction, is likely to cause serious harm to himself or herself or
to others.
(g) Probable cause hearings may occur in the county where a
person is hospitalized. The judicial hearing officer may: Use
videoconferencing and telephonic technology; permit persons
hospitalized for addiction to be involuntarily hospitalized only
until detoxification is accomplished; and 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 the law and access to the least
restrictive available treatment needed to prevent serious harm to
self or others.
(h) If 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 or
addiction, is likely to cause serious harm to himself, herself or
others 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 court 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 or addiction remains
likely to cause serious harm to himself, herself or others, 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 the
Department 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 this article 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 affects the appellate and habeas corpus
rights of any individual subject to any commitment order.
(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.
(j) The Supreme Court of Appeals,
and the Secretary of the
Department of Health and Human Resources
and the President of the
West Virginia Sheriffs' Association, or his or her designee, 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.
§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 in which 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 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 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 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 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 or
addiction the individual is likely to cause serious harm to
himself, herself or to others and the grounds for the belief,
stating in detail the recent overt acts upon which 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 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 the
records may not be published except upon the authorization of the
individual or his or her legal representative.
(4) Applications 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 or addicted and that
because of the mental illness or addiction the individual is likely
to cause serious harm to himself, herself or to others if he or she
is allowed to remain at liberty and therefore he or she should be
hospitalized, stating in detail the recent overt acts upon which
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 if the next of kin 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 the individual's residence; and (6) to the prosecuting attorney
of the county in which the hearing is to be held. The 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
or addiction of the individual and the likelihood of him or her
causing serious harm to himself, herself or to others.
(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 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
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 or addicted and might be harmful to himself, herself or to others 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 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 has the right to have an examination by an
independent expert of his or her choice and testimony from the
expert as a medical witness on his or her behalf. The cost of the
independent expert shall be borne by the individual unless he or
she is indigent.
(4) The individual 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 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 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 the individual to the hearing. 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 it is requested for the purpose of further
proceedings. In any case where 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 in the hearing, the circuit court or mental
hygiene commissioner shall make findings as to whether or not the
individual is mentally ill or addicted and because of illness or
addiction is likely to cause serious harm to himself, herself or to
others if allowed to remain at liberty and is a resident of the
county in which the hearing is held or currently is a patient at a
mental health facility in 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 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 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
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 expires 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 or addicted but is not because of the
illness or addiction likely to cause serious harm to himself,
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 of the order
forward a certified copy of 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 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 the individual is a resident,
who shall immediately present the transcript to the circuit court
or mental hygiene commissioner of 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 the transcript that 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 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 the responsible person a bond in an amount to be
determined by the circuit court with condition to restrain and take
proper care of 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 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
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 the court
reporter fees 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
Department of Health and Human Resources shall
reimburse the county commission
shall pay out of the county
treasury for direct and immediate deposit into the sheriff's budget
all other expenses incurred,
including, but not limited to, mileage
expenses and salary expenses of those involved in the
transportation process, in the hearings conducted under the
provisions of this article whether or not hospitalization is
ordered,
including and shall reimburse the county commission for
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 delete language allowing
a county commission to reimburse a mental health care facility for
security services for the period of time a person is at the
hospital prior to the determination of mental competence or
incompetence. The bill further provides that the President of the
West Virginia Sheriffs' Association, along with the Supreme Court
of Appeals and the Secretary of the Department of Health and Human
Resources shall develop and propose a statewide system for
evaluation and adjudication of mental hygiene petitions. The bill
further provides that the Department of Health and Human Resources
shall reimburse the county commission for direct deposit into the
Sheriff's budget all other expenses incurred in the hearings
conducted under the provisions of the article.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.