Introduced Version
House Bill 2587 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 2587
(By Delegates Sobonya, Miller, Nelson, J., Westfall,
Poore, Fleischauer, Shott, Ellem, McCuskey,
Espinosa and Manchin)
[Introduced February 21, 2013; referred to the
Committee on Health and Human Resources then the
Judiciary.]
A BILL to amend and reenact §27-5-9 of the Code of West Virginia,
1931, as amended, relating to mentally ill persons;
involuntary hospitalization; rights of patients; and right to
have records expunged when hospitalization is based upon a
wrong diagnosis of condition.
Be it enacted by the Legislature of West Virginia:
That §27-5-9 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-9. Rights of patients.
(a) No person may be deprived of any civil right solely by
reason of his or her receipt of services for mental illness,
intellectual disability or addiction, nor does the receipt of the
services modify or vary any civil right of the person, including,
but not limited to, civil service status and appointment, the right
to register for and to vote at elections, the right to acquire and to dispose of property, the right to execute instruments or rights
relating to the granting, forfeiture or denial of a license,
permit, privilege or benefit pursuant to any law, but a person who
has been adjudged incompetent pursuant to article eleven of this
chapter and who has not been restored to legal competency may be
deprived of such rights. Involuntary commitment pursuant to this
article does not of itself relieve the patient of legal capacity.
(b) Each patient of a mental health facility receiving
services from the facility shall receive care and treatment that is
suited to his or her needs and administered in a skillful, safe and
humane manner with full respect for his or her dignity and personal
integrity.
(c) Every patient has the following rights regardless of
adjudication of incompetency:
(1) Treatment by trained personnel;
(2) Careful and periodic psychiatric reevaluation no less
frequently than once every three months;
(3) Periodic physical examination by a physician no less
frequently than once every six months; and
(4) Treatment based on appropriate examination and diagnosis
by a staff member operating within the scope of his or her
professional license.
(d) The chief medical officer shall cause to be developed
within the clinical record of each patient a written treatment plan based on initial medical and psychiatric examination not later than
seven days after he or she is admitted for treatment. The
treatment plan shall be updated periodically, consistent with
reevaluation of the patient. Failure to accord the patient the
requisite periodic examinations or treatment plan and reevaluations
entitles the patient to release.
(e) A clinical record shall be maintained at a mental health
facility for each patient treated by the facility. The record
shall contain information on all matters relating to the admission,
legal status, care and treatment of the patient and shall include
all pertinent documents relating to the patient. Specifically, the
record shall contain results of periodic examinations,
individualized treatment programs, evaluations and reevaluations,
orders for treatment, orders for application for mechanical
restraint and accident reports, all signed by the personnel
involved.
(f) Every patient, upon his or her admission to a hospital and
at any other reasonable time, shall be given a copy of the rights
afforded by this section.
(g) The Secretary of the Department of Health and Human
Resources shall propose rules for legislative approval in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to protect the personal rights of
patients not inconsistent with this section and the provisions of subsection (h) of this section relating to the procedure to expunge
records of involuntary hospitalization.
_____(h) Notwithstanding any provision of this chapter or any other
provision of law to the contrary, if a person is hospitalized
involuntarily as the result of an improper diagnosis of a medical,
mental or physical condition resulting from the use of a legally
prescribed medication, all records pertaining to the involuntary
hospitalization shall be expunged. The Secretary of the
Department of Health and Human Resources shall accept evidence from
a qualified forensic psychiatrist, qualified forensic psychologist
or qualified forensic evaluator, as those terms are defined in
section one, article six-a of this chapter, concerning the proper
diagnosis of the condition of the person hospitalized
involuntarily, and that the underlying cause was identified and
corrected. The secretary shall inform any person or other legal
entity that has received information, under the exceptions listed
in section one, article three of this chapter, concerning the
involuntary hospitalization of the person that the hospitalization
was the result of an improper diagnosis and that all records of
involuntary hospitalization are expunged.
NOTE: The purpose of this bill is to provide persons who have
been hospitalized involuntarily the right to have records expunged
when the hospitalization was based upon a wrong diagnosis of
condition.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.