COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 191
(By Senators Kessler, Hunter, Foster, Sharpe, Unger and Sprouse)
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[Originating in the Committee on the Judiciary;
reported February 24, 2005.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §27-5-11, relating to
mental hygiene proceedings generally; authorizing
implementation of a modified mental hygiene procedure in
limited number of counties relating to persons who are
medication-dependent and who have had at least one prior
conviction within previous twenty-four months related to
mental illness or two prior hospitalizations within previous
twenty-four months; directing cooperation of Secretary of
Department of Health and Human Resources and Supreme Court of
Appeals in developing modified procedures; authorizing use of
treatment compliance orders in certain judicial circuits;
authorization for hospitalization and treatment for up to
seventy-two hours prior to probable cause hearing for
medication-dependent individuals who meet requirements;
reporting requirements; expiration date; time limits; requirements of petitions; procedures; required findings;
hearing; and forms required for procedures.
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 §27-5-11, to read as
follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Modified procedures for temporary compliance orders for
certain medication dependent persons with prior
hospitalizations or convictions; to institute
modified mental hygiene procedures; procedures;
forms.
(a) The Supreme Court of Appeals shall, in consultation with
the Secretary of the Department of Health and Human Resources and
local mental health services consumers and providers implement in
at least four and no more than six judicial circuits, beginning on
the first day of July, two thousand six, 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 in 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. The Secretary of
the Department of Health and Human Resources in consultation with the Supreme Court of Appeals and local mental health services
consumers and service providers shall prescribe appropriate forms
to implement the modified procedures, and shall annually prepare a
report on the use of the modified procedures and transmit the
report to the Legislature on or before the last day of each
calendar year. The Supreme Court of Appeals may in consultation
with the Secretary of the Department of Health and Human Resources
and local mental health services consumers and providers during the
pilot program period further modify any specific modified
procedures that are implemented:
Provided, That the modified
procedures are consistent with the requirements of this chapter and
this section. If the Secretary of the Department of Health and
Human Resources determines that the use of any modified procedure
in one or more judicial circuits is placing an unacceptable
additional burden upon state mental health resources, the Supreme
Court of Appeals shall in consultation with the Secretary modify
the procedures used in such a fashion as will address the concerns
of the Secretary, consistent with the requirements of this chapter.
The provisions of this section and the modified procedures thereby
authorized shall cease to have any force and effect on the
thirtieth day of June, two thousand ten unless extended by an act
of the Legislature prior to that date.
(b) (1) The modified procedures shall authorize that a
verified petition seeking a treatment compliance order may be filed
by any person alleging:
(A) That 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 has been convicted of one or more
crimes of violence against the person in which the individual's
mental illness played a significant part;
(B) That the individual?s previous hospitalizations as a
result of mental illness, occurred as a result of the individual?s
failure to take medication or other treatment as prescribed by a
physician to treat the individual?s mental illness; and
(C) That the individual, in the absence of a court order
requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or other treatment as prescribed is likely to lead
to further instances in the reasonably near future in which the
individual becomes likely to cause serious harm or commit a crime
against the person.
(2) Upon the filing of a petition seeking a treatment
compliance order and the petition?s review by a circuit judge or
Mental Hygiene Commissioner, counsel shall be appointed for the
individual if the individual does not already have counsel and a
copy of the petition and all supporting evidence shall be furnished
to the individual and their counsel. If the circuit judge or
Mental Hygiene Commissioner determines on the basis of the petition
that it is necessary to protect the individual or to secure their
examination, a detention order may be entered for the individual
ordering that the individual be taken into custody and examined by a psychiatrist or licensed clinical psychologist. A hearing on the
allegations in the petition, which may be combined with a hearing
on a probable cause petition or a final commitment hearing, shall
be held before a circuit judge or Mental Hygiene Commissioner; if
the individual is in custody as a result of a detention order, the
hearing shall be held within seventy-two hours of the filing of the
petition;
(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
clinical 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 has been convicted of a crime of
violence against the person in which the individual's mental
illness played a significant role;
(C) That the individual's previous hospitalizations as a
result of mental illness, occurred as a result of the individual's
failure to take medication as prescribed by a physician to treat
the individual's mental illness or that the conviction or
convictions within such period were crimes of violence against the
person in which the individual's mental illness played a significant role;
(D) That a psychiatrist or licensed psychologist has within
the preceding twenty-four months, issued a written opinion that the
individual is, without the aid of the medication or other
prescribed treatment, likely to cause harm;
(E) That the individual, in the absence of a court order
requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or other treatment as prescribed is likely to lead
to further instances in the reasonably near future in which the
individual becomes likely to cause serious harm or commit a crime
against the person;
(F) That, where necessary, a responsible entity or individual
is available to assist and monitor the individual's compliance with
an order requiring the individual to take the medication or other
treatment as prescribed;
(G) That the individual can obtain and take the prescribed
medication or other treatment without undue financial or other
hardship; and
(H) That, if necessary, a medical provider is available to
assess the individual within forty-eight hours of the entry of the
treatment compliance order.
(4) The order may require an individual to take medication and
treatment as prescribed and if appropriate to attend scheduled
medication and treatment-related appointments: Provided, That a
treatment compliance order shall be subject to termination or modification by a circuit judge or Mental Hygiene Commissioner if
a petition is filed seeking termination or modification of the
order and it is shown in a hearing on the petition that there has
been a material change in the circumstances that led to the entry
of the original order that justifies the order?s modification or
termination: Provided, however, That a treatment compliance order
may be extended by a circuit judge or Mental Hygiene Commissioner
for additional periods of time not to exceed six months upon the
filing of a petition seeking an extension and after a hearing on
the petition or upon the agreement of the individual.
(5) (A) If a verified petition is filed alleging that an
individual has not complied with 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 their
examination, a detention order may be entered for the individual
that may order that the individual be examined by a psychiatrist or
licensed psychologist. A hearing on the allegations in the
petition, which may be combined with a hearing on a probable cause
petition or a final commitment hearing, shall be held before a
circuit judge or Mental Hygiene Commissioner; if the individual is in custody as a result of a detention order, the hearing shall be
held within seventy-two hours of the filing of the petition.
(B) At a hearing on the petition, 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 order has not been complied with, the
circuit judge or Mental Hygiene Commissioner, after inquiring into
the reasons for non-compliance 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 at the
hearing. If the evidence shows that the individual at the time of
the hearing is likely to cause serious harm 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.
(c) (1) The modified procedures may authorize that upon an ex
parte showing to a circuit judge, Mental Hygiene Commissioner, or
designated magistrate 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 or convicted
of one or more crimes of violence against the person in which the
individual's mental illness played a significant part is likely to cause serious harm as a result of the individual?s mental illness
and that the best interests of the individual would be served by
immediate hospitalization, the judge, commissioner, or magistrate
may, if the judicial officer determines that a hearing is not
necessary, enter a temporary probable cause order directing the
involuntary hospitalization of the individual at a mental health
facility for examination and treatment.
(2) The modified procedures may authorize that the chief judge
of a judicial circuit, or circuit judge if there is no chief judge,
may enter orders authorizing specific psychiatrists or licensed
psychologists, whose qualifications and training have been reviewed
and approved by the Supreme Court of Appeals, to issue
certifications that authorize and direct the involuntary admission
of an individual subject to the provisions of this section on a
temporary probable cause basis to a mental health facility for
examination and treatment: Provided, That the authorized
psychiatrist or psychologist must conclude and certify based on
personal observation prior to certification that the individual is
imminently likely to cause serious harm as a result of mental
illness and the best interests of the individual require immediate
hospitalization. Immediately upon such certification, the
psychiatrist or psychologist shall provide notice of the
certification to a circuit judge, Mental Hygiene Commissioner or
designated magistrate in the county where the individual resides.
(3) No involuntary hospitalization pursuant to a temporary
probable cause determination issued pursuant to the provisions of this section shall continue in effect for more than seventy-two
hours without the filing of a petition for involuntary
hospitalization and the occurrence of a probable cause hearing
before a circuit judge, Mental Hygiene Commissioner or designated
magistrate. If at any time the chief medical officer of the mental
health facility to which the individual is admitted determines that
the individual is not likely to cause serious harm as a result of
mental illness, the chief medical officer shall discharge the
individual and immediately forward a copy of the individual?s
discharge to the circuit judge, Mental Hygiene Commissioner or
designated magistrate. Such probable cause hearing shall be held
within ninety-six hours of the individual being taken into custody.
(d) The Supreme Court of Appeals in consultation with the
Secretary of the Department of Health and Human Resources and local
mental health consumers and service providers may approve and
implement other modified procedures in connection with mental
hygiene proceedings that are consistent with the provisions of this
section: Provided, That any modified procedure implemented
pursuant to the provisions of this section shall be in written form
and available for public examination.
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(NOTE: The purpose of this bill is to authorize modified
mental hygiene procedures to be initially implemented in four to
six judicial circuits for a period of four years. The procedures
are: (1) To allow less restrictive judicial measures to address
the failure or refusal by individuals to take necessary prescribed
medication and treatment which causes the individuals to be
repeatedly hospitalized or commit crimes; (2) to reduce the mandatory use of an initial full adversarial hearing process to
temporarily hospitalize and stabilize patients who are likely to
cause serious harm as a result of their mental illness or
addiction.
The bill also allows hospitalization for up to seventy-two
hours prior to probable cause hearing
This section is new; therefore, strike-throughs and
underscoring have been omitted.)