Introduced Version
Senate Bill 425 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 425
(By Senators Tucker, Kessler (Mr. President) and Cookman)
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[Introduced March 4, 2013; referred to the Committee on Health
and Human Resources; and then to the Committee on the Judiciary .]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §27-5-2a; to amend
and reenact §27-5-11 of said code; and to amend said code by
adding thereto a new section, designated §27-5-12, all
relating to mental health treatment alternatives to
involuntary commitment; allowing the court to convert an
involuntary hospitalization application into a petition for a
temporary compliance order; eliminating the sunset provision;
modifying the requirements and process necessary to enter a
treatment compliance order; clarifying that persons who use
the modified procedures of this section are not subject to
reporting to certain databases; and creating a new database
for compilation of certain persons to be used by the circuit
courts.
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 §27-5-2a; that §27-5-11
of said code be amended and reenacted; and that said code be
amended by adding thereto a new section, designated §27-5-12, all
to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-2a. Authorizing court to use temporary compliance order
during involuntary commitment procedures.
After the evaluation of the individual during the involuntary
commitment procedures contained in this article is completed and
reported to the court, the circuit court, mental hygiene
commissioner or designated magistrate may convert an application
for involuntary hospitalization into a petition for a treatment
compliance order under section eleven of this article. The circuit
court, mental hygiene commissioner or designated magistrate may use
the information contained in the application for involuntary
hospitalization and the entire record of proceedings with respect
to the individual, including any prior proceedings, to determine if
the necessary findings for a treatment compliance order, as stated
in section eleven of this article, are present and if that course
of treatment is appropriate in lieu of involuntary hospitalization.
§27-5-11. Modified procedures for mental hygiene; treatment
compliance orders; temporary probable cause orders;
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
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, 2012, the Supreme Court of
Appeals and the Secretary of the Department of Health and Human
Resources in consultation with local mental health consumers and
providers may add programs for modified mental hygiene procedures
in any judicial circuit that establishes a need for the same. The
personal information of an individual receiving modified mental
hygiene procedures pursuant to this section may not be reported to
the central state mental health registry detailed in article seven-a of chapter sixty-one of this code or to the National
Instant Criminal Background Check System.
(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 reports shall prepare a written report
on the efficacy of the modified procedures and transmit the report
to the Legislature on or before the first day of the 2013 and 2014
regular sessions 2014 session of the Legislature.
(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, further
modify any specific modified procedures that are implemented
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 Supreme Court of Appeals shall provide uniform petition, procedure and
order forms which shall be used in all modified mental hygiene
proceedings brought in this state. The provisions of this section
and the modified procedures thereby authorized shall cease to have
any force and effect on June 30, 2014, unless extended by an act of
the Legislature prior to that date.
(1) The modified procedures shall authorize that a verified
petition seeking a treatment compliance order may be filed by any
an adult 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 or addiction or both, 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 or addiction or both was a significant aggravating
or contributing factor in the circumstances surrounding the crime;
(B) (A) A psychiatrist or licensed psychologist concludes that
without the aid of medication or other prescribed treatment, the
individual is likely to decompensate in mental health or due to
substance abuse to the point that he or she becomes likely to cause serious harm to himself or herself or to others or commit a crime
of violence; That the individual?s previous hospitalizations due to
mental illness or addiction or both 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 or addiction or both; and
(C) (B) 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 is likely to decompensate in mental
health or due to substance abuse to the point that he or she
becomes likely to cause serious harm to himself or herself or
others or commit a crime of violence; and against the person.
(C) Such information and facts in the petition as may be
required by the form provided for this purpose by the Supreme Court
of Appeals.
(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. 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. 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 or addiction or both 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 addiction;
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 or addiction or both was a significant
aggravating or contributing factor in the commission of the crime;
(D) (A) That a psychiatrist or licensed psychologist who has
personally examined the individual within the preceding twenty-four
months ninety days has issued a written opinion that the
individual, without the aid of the medication or other prescribed
treatment, is likely to decompensate in mental health or due to substance abuse to the point that he or she becomes likely to cause
serious harm to himself or herself or to others or commit a crime
of violence;
_____(E) (B) 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 instances in
which the individual is likely to decompensate in mental health or
due to substance abuse to the point that he or she becomes likely
to cause serious harm or commit a crime of violence; against any
person;
(F) (C) 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) (D) That the individual, or the individual's guardian, can
obtain and take the prescribed medication or follow other
prescribed regimen or course of treatment without undue financial
or other hardship; and
(H) (E) 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 is 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) After the entry of a treatment compliance order in
accordance with the provisions of subdivisions (3) and (4) of this
subsection, 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.
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.
(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, 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. 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 or herself, herself or to 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. Any Procedures conducted pursuant
to this subsection must comply with and satisfy all applicable due
process and hearing requirements of sections two and three of this article.
(d) The modified procedures may authorize that upon the
certification of a qualified mental health professional, as
described in 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.
(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. 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 or addiction or both, 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.
(f) No involuntary hospitalization pursuant to a temporary
probable cause determination issued pursuant to the provisions of
this section shall may 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 or addiction or both, 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.
§27-5-12. Circuit Court Shared Information Database.
Notwithstanding any confidentiality provisions within this
chapter or elsewhere in this code to the contrary, a treatment
compliance order entered pursuant to section eleven of this article
or a voluntary treatment agreement order entered pursuant to
section two of this article is open to inspection by any other
circuit court pursuant to this section. The Supreme Court of
Appeals shall create a centralized database for the exchange of
information regarding treatment compliance orders and voluntary
treatment agreement orders among circuit courts. When a circuit
court enters a treatment compliance order or a voluntary treatment
agreement order, the court shall transmit the personal information
necessary to identify the individual subject to the order to the
Supreme Court of Appeals on a form created by the Supreme Court of
Appeals. The information contained on the form shall be placed in
the centralized database created by this section and shall be
accessible by all circuit courts in the state. Before a circuit
court addresses any matter relating to involuntary hospitalization
or treatment compliance order, the circuit court shall access the
database and determine if a treatment compliance order or voluntary
treatment agreement order has been filed in another circuit court
on the same individual. The existence of a treatment compliance
order or voluntary treatment agreement order may be used by the circuit court in its discretion to limit duplication of efforts by
multiple circuit courts.
NOTE: The purpose of this bill is to provide mental health
treatment alternatives to involuntary commitment; allow a court to
convert an involuntary hospitalization application into a petition
for a temporary compliance order; eliminate the sunset provision;
modify the requirements and process necessary to enter a treatment
compliance order; clarify that persons who use the modified
procedures of this section are not subject to reporting to certain
databases; and create a new database for compilation of certain
persons to be used by the circuit courts.
§27-5-2a and §27-5-12 are new; therefore, underscoring and
strike-throughs have been omitted.
Strike throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would
be added.