Senate Bill No. 223
(By Senator Hunter)
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[Introduced January 16, 2002; referred to the Committee
on the Judiciary.]
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A BILL to amend and reenact section two, article five, chapter
twenty-seven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to changing
the time for a hearing for a person in custody for a
proceeding for involuntary hospitalization examination from
"forthwith" after detention to "within four hours" of
detention.
Be it enacted by the Legislature of West Virginia:
That section two, article five, chapter twenty-seven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-2. Institution of proceedings for involuntary custody for
examination; custody; probable cause hearing; examination of individual.
(a) When application for involuntary custody for examination
may be made. -- Any adult person may make application for
involuntary hospitalization for examination of an individual
when said that person has reason to believe that:
(1) The individual is addicted, as defined in section
eleven, article one of this chapter; or
(2) The individual is mentally ill and, because of his or
her mental illness, the individual is likely to cause serious
harm to himself or herself or to others if allowed to remain at
liberty while awaiting an examination and certification by a
physician or psychologist.
(b) Oath; to whom application for involuntary custody for
examination is made; contents of application; custody; probable
cause hearing; examination. --
(1) The person making such the application shall must do so
under oath.
(2) 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.
(3) The person making such the application shall must give
such information and state such facts therein in the application as may be required upon the form provided for this purpose by
the supreme court of appeals.
(4) The circuit court or the mental hygiene commissioner may
thereupon enter an order for the individual named in such the
action to be detained and taken into custody for the purpose of
holding a probable cause hearing as provided for in subdivision
(5) of this subsection and for the purpose of an examination of
the individual by a physician or a psychologist. Such The
examination shall 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. Said The order shall specify that such the
hearing be held forthwith within four hours of the initial
detention of the individual by a law enforcement officer and
shall provide for the appointment of counsel for the individual:
Provided, That the order may allow the hearing to be held up
to twelve hours after its entry rather than forthwith within
four hours of detention if the circuit court of the county or
circuit 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 said those persons.
Where a physician or psychologist has performed the examination required by the provisions of this subdivision, the community
mental health center may waive the requirement of a forthwith
hearing within four hours of detention upon approving such the
examination. Notwithstanding the provisions of this subsection,
subsection (r), section four of this article shall apply applies
regarding payment by the county commission for examinations at
hearings.
In the event If immediate detention is believed to be
necessary for the protection of the individual or others at a
time when no circuit court judge or mental hygiene commissioner
is available for immediate presentation of the application, a
magistrate designated by the chief judge of the judicial circuit
may accept the application and, upon a finding that such
immediate detention is necessary pending presentation of the
application to the circuit court or mental hygiene commissioner,
may order the individual to be temporarily detained in custody
until the earliest reasonable time that the application can be
presented to the circuit court or mental hygiene commissioner,
which temporary period of detention may not exceed twenty-four
hours: Provided, That where the individual has been examined by
a psychologist or physician and said psychologist or physician
has certified the individual meets the criteria for involuntary
hospitalization, the individual may be temporarily detained until the next judicial day. In no event shall may an
individual be so detained for more than seventy-two hours
without a hearing.
(5) A probable cause hearing shall 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 shall have
the right to may 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. The individual shall
have the right to may remain silent and choose to be proceeded
against in accordance with the rules of evidence of the supreme
court of appeals except as provided for in section twelve,
article one of this chapter. At the conclusion of the hearing,
the magistrate, mental hygiene commissioner or circuit court
judge shall must find and enter an order stating whether or not
there is probable cause to believe that such the individual, as
a result of mental illness, is likely to cause serious harm to himself or herself or to others or is addicted.
(6) 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, is likely to cause serious harm to himself,
herself or others or is addicted and because of such the 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. Such The agreement shall be in
writing and approved by the individual, his or her counsel and
the magistrate, mental hygiene commissioner or circuit judge and
the mental health treatment provider. 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 such 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 shall constitute constitutes
evidence that such the 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 remains likely to cause serious harm to
himself, herself or others or remains addicted, 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 If 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 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 shall may be construed as creating a right to receive
outpatient mental health services or treatment or as obligating
any person or agency to provide such services or treatment.
Time limitations set forth in this article relating to periods
of involuntary commitment to a mental health facility for
hospitalization shall do not apply to release pursuant to the
terms of a voluntary treatment agreement: Provided, however,
That release pursuant to a voluntary treatment agreement shall
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 article five of this chapter the individual objects
to the issuance or conditions and terms of an order adopting a
voluntary treatment agreement, then the presiding officer shall
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 made subject to said 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 cancelled or modified.
Nothing in this section shall may affect the appellate and
habeas corpus rights of any individual subject to any commitment
order.
(7) 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.
NOTE: The purpose of this bill is to
change the time for
a hearing for a person, in a proceeding for involuntary
hospitalization custody for examination, from "forthwith" after detention to "within four hours" after detention.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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