H. B. 4321
(By Delegates Miley, Frazier, Longstreth
(By Request of the Supreme Court of Appeals)
[Introduced January 26, 2012; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §27-4-1 of the Code of West Virginia, 1931, as amended; to amend and reenact §27-5-4 of said code; and to amend and reenact §61-7A-5 of said code, all relating generally to mental health; authorizing parent or guardian to commit a child without his or her consent when child is twelve or older; amending the procedures for petitioning to regain the right to possess firearms so that West Virginia is eligible for federal funding; and stylistic changes.
Be it enacted by the Legislature of West Virginia:
That §27-4-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §27-5-4 of said code be amended and reenacted; and that §61-7A-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 27.MENTALLY ILL PERSONS.
ARTICLE 4. VOLUNTARY HOSPITALIZATION.
§27-4-1. Authority to receive voluntary patients.
The chief medical officer of a mental health facility, subject to the availability of suitable accommodations and to the rules and regulations promulgated by the board of health, shall admit for diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill, mentally retarded or addicted or who has manifested symptoms of mental illness, mental retardation or addiction and who makes application for hospitalization; or
(b) Under eighteen years of age who is mentally ill, mentally retarded or addicted or who has manifested symptoms of mental illness, mental retardation or addiction and there is application for hospitalization therefor in his or her behalf:
(1) By the parents of such person; or
(2) If only one parent is living, then by such parent; or
(3) If the parents are living separate and apart, by the parent who has the legal custody of such person; or
(4) If there is a guardian who has legal custody of such person, then by such guardian. Such admission shall be conditioned upon the consent of the prospective patient if he is twelve years of age or over.
(c) No person under eighteen years of age shall may be admitted under this section to any state hospital unless said the person has first been reviewed and evaluated by a local mental health facility and recommended for admission.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§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 by an adult person having personal knowledge of the facts of the case. and The certificate or affidavit is hereinafter provided with filed with the clerk of the circuit court or mental hygiene commissioner of the county of which where the individual is a resident or where he or she may be found or the county of the a 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. that the individual is likely to cause serious harm to self or others due to what the applicant believes are symptoms of mental illness or addiction. The applicant shall state 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, related documents, filed with any a circuit court, or mental hygiene commissioner or designated magistrate for the involuntary hospitalization of any an individual are not open to inspection by any person other than the individual, except upon authorization of unless authorized by 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 unless authorized by the individual or his or her legal representative. Disclosure of these records may, however, be made by the clerk, circuit court, mental hygiene commissioner or designated magistrate to provide notice to the Federal National Instant Criminal Background Check System established pursuant to section 103(d) of the Brady Handgun Violence Prevention Act, 18 U.S.C. §922, and the central state mental health registry, in accordance with article seven-a, chapter sixty-one of this code. Disclosure may also be made to the prosecuting attorney and reviewing court in an action brought by the individual pursuant to section five, article seven-a, chapter sixty-one of this code to regain firearm and ammunition rights.
(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 self or others if he or she is allowed to remain at liberty and, therefore, he or she should be hospitalized. stating. The certificate shall state in detail the recent overt acts upon on 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.
(f) 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:
(1) The nature of the charges against the individual;
(2) The facts underlying and supporting the application of involuntary commitment;
(3) The right to have counsel appointed;
(4) The right to consult with and be represented by counsel at every stage of the proceedings; and
(5) 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
(f) (g) 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 self or 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 self or others, then the proceedings for involuntary hospitalization shall be dismissed.
(g) (h) 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 to present testimony from the expert as a medical witness on his or her behalf. The cost of the independent expert shall be borne is paid 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) (i) 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 interests 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) (j) 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
A 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) (k) 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 the following:
(A) Whether or not the individual is mentally ill or addicted;
and, (B) Whether, because of illness or addiction, is the individual is likely to cause serious harm to himself, herself or to self or others if allowed to remain at liberty; and
(C) Whether the individual 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; and
(2) The circuit court or mental hygiene commissioner shall also make a finding as to whether or not (D) Whether 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) (2) The findings of fact shall be incorporated into the order entered by the circuit court and must be based upon clear, cogent and convincing proof.
(k) (l) 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) (m) 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 self or others if allowed to remain at liberty, the proceedings shall be dismissed.
(m) (n) 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) (o) 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 The clerk 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) (p) 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) (q) 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) (r) 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) (s) 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 county commission shall pay out of the county treasury all other expenses incurred in the hearings conducted under the provisions of this article whether or not hospitalization is ordered, including any fee allowed by the circuit court by order entered of record for any physician, psychologist and witness called by the indigent individual.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS’ PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS PROCEDURES.
§61-7A-5. Petition to regain right to possess firearms.
(a) Any person who is prohibited from possessing a firearm pursuant to the provisions of section seven, article seven of this chapter or by provisions of federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm. Petitioners prohibited from possession of firearms due to a mental health disability, must include the following in the petition for relief from disability:
(1) A listing of facilities and location addresses of all prior mental health treatment received by petitioner;
(2) An authorization signed by the petitioner for release of mental health records to the prosecuting attorney of the county; and
(3) A verified certificate of mental health examination by a licensed psychologist or psychiatrist occurring within thirty days prior to filing of the petition which supports that the petitioner is competent and not likely to act in a manner dangerous to public safety.
(b) The court may only consider petitions for relief due to mental health adjudications or commitments that occurred in this state and only give the relief specifically requested in the petition. In determining whether to grant the petition, the court shall receive and consider, at a minimum:
(1) Evidence concerning the circumstances regarding the firearms disabilities imposed by 18 U.S.C. § 922(g)(4);
(2) The petitioner’s record which must include the petitioner’s mental health and criminal history records; and
(3) The petitioner’s reputation developed through character witness statements, testimony, or other character evidence.
(c) The court may enter an order allowing the petitioner to possess a firearm if the court finds by clear and convincing evidence that:
(1) The person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm;
(2) The person will not be likely to act in a manner dangerous to public safety; and
(3) Granting the relief will not be contrary to public interest. the court may enter an order allowing the petitioner to possess a firearm.
(d) If the order denies petitioner’s ability to possess a firearm, the petitioner may appeal the denial, which appeal is to include the record of the circuit court rendering the decision.
(e) All proceedings for relief to regain firearm or ammunition rights shall be reported or recorded and maintained for review.
(f) It shall be the duty of the prosecuting attorney or one of his or her assistants to represent the state in all proceedings for relief to regain firearm rights and provide the court the petitioner’s criminal history records.
(g) The written petition, certificate, mental health or substance abuse treatment records and any papers or documents containing substance abuse or mental health information of the petitioner, filed with the circuit court, are confidential. These are not open to inspection by any person other than by court order, by the individual and his or her counsel, or upon the written authorization of the person or his or her counsel, and the prosecuting attorney for purposes of representing the state in these proceedings exclusively. These records may not be published unless by written authorization of the petitioner or his or her counsel.
(b) (h) The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police or his or her designee and the Administrator of the West Virginia Supreme Court of Appeals, or his or her designee, with a certified copy of any order entered pursuant to the provisions of this section which removes a petitioner’s prohibition to possess firearms. If the order restores the petitioner's ability to possess a firearm, petitioner's name shall be promptly removed from the central state mental health registry and the superintendent or administrator shall forthwith inform the Federal Bureau of Investigation, the United States Attorney General or other federal entity operating the National Instant Criminal Background Check System of the court action.
NOTE: The purpose of this bill is to amend the code relating to the ability of certain individuals to petition a court to regain the right to possess firearms so that West Virginia can become eligible for federal funding and to authorize parents or guardians to commit children age twelve or older to mental health hospitalization without the child’s consent.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.