Adopted by House 3-5-08
SB185 H JUD AM 3-4 #1
The Committee on the Judiciary moves to amend the bill on page
two, following the enacting clause, by striking out the remainder
of the bill and inserting in lieu thereof the following language:
That §27-3-1
of the Code of West Virginia, 1931, as amended,
be amended and reenacted; that §61-7-7
of said code be amended and
reenacted; and that said code be amended by adding thereto a new
article, designated §61-7A-1, §61-7A-2, §61-7A-3, §61-7A-4 and §61-
7A-5
,
all to read as follows:
CHAPTER 27
MENTALLY ILL PERSONS
ARTICLE 3. CONFIDENTIALITY.
§27-3-1. Definition of confidential information; disclosure.
(a) Communications and information obtained in the course of
treatment or evaluation of any client or patient are confidential
information. Such confidential information includes the fact that
a person is or has been a client or patient, information
transmitted by a patient or client or family thereof for purposes
relating to diagnosis or treatment, information transmitted by
persons participating in the accomplishment of the objectives of
diagnosis or treatment, all diagnoses or opinions formed regarding
a client's or patient's physical, mental or emotional condition;
any advice, instructions or prescriptions issued in the course of
diagnosis or treatment, and any record or characterization of the
matters hereinbefore described. It does not include information which does not identify a client or patient, information from which
a person acquainted with a client or patient would not recognize
such client or patient, and uncoded information from which there is
no possible means to identify a client or patient.
(b) Confidential information may shall not be disclosed,
except:
(1) In a proceeding under section four, article five of this
chapter to disclose the results of an involuntary examination made
pursuant to sections two, three or four, article five of this
chapter;
(2) In a proceeding under article six-a of this chapter to
disclose the results of an involuntary examination made pursuant
thereto;
(3) Pursuant to an order of any court based upon a finding
that the information is sufficiently relevant to a proceeding
before the court to outweigh the importance of maintaining the
confidentiality established by this section;
(4) 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, in
accordance with article seven-A, chapter sixty-one of this code;
(4) (5) To protect against a clear and substantial danger of
imminent injury by a patient or client to himself, herself or
another;
(5) (6) For treatment or internal review purposes, to staff of
the mental health facility where the patient is being cared for or to other health professionals involved in treatment of the patient;
and
(6) (7) Without the patient's consent as provided for under
the Privacy Rule of the federal Health Insurance Portability and
Accountability Act of 1996, 45 C.F.R. §164.506 for thirty days from
the date of admission to a mental health facility if: (i) The
provider makes a good faith effort to obtain consent from the
patient or legal representative prior to disclosure; (ii) the
minimum information necessary is released for a specifically stated
purpose; and (iii) prompt notice of the disclosure, the recipient
of the information and the purpose of the disclosure is given to
the patient or legal representative.
CHAPTER 61
CRIMES AND THEIR PUNISHMENT
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-7. Persons prohibited from possessing firearms;
classifications; reinstatement of rights to
possess; offenses; penalties.
(a) Except as provided in this section, no person shall
possess a firearm as such is defined in section two of this
article who:
(1) Has been convicted in any court of a crime punishable by
imprisonment for a term exceeding one year;
(2) Is habitually addicted to alcohol;
(3) Is an unlawful user of or habitually addicted to any
controlled substance;
(4) Has been adjudicated as a mental defective or who has
been involuntarily committed to a mental institution pursuant to
the provisions of chapter twenty-seven of this code: Provided,
That once an individual has been adjudicated as a mental
defective or involuntarily committed to a mental institution, he
or she shall be duly notified that they are to immediately
surrender any firearms in their ownership or possession:Provided,
however, That the mental hygiene commissioner or circuit judge
shall first make a determination of the appropriate public or
private individual or entity to act as conservator for the
surrendered property;
(5) Being Is an alien is illegally or unlawfully in the
United States;
(6) Has been discharged from the armed forces under
dishonorable conditions;
(7) Is subject to a domestic violence protective order that:
(A) Was issued after a hearing of which such person received
actual notice and at which such person had an opportunity to
participate;
(B) Restrains such person from harassing, stalking or
threatening an intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct that
would place an intimate partner in reasonable fear of bodily
injury to the partner or child; and
(C)(i) Includes a finding that such person represents a
credible threat to the physical safety of such intimate partner or child; or
(ii) By its terms explicitly prohibits the use, attempted
use or threatened use of physical force against such intimate
partner or child that would reasonably be expected to cause
bodily injury; or
(8) Has been convicted of a misdemeanor offense of assault
or battery either under the provisions of section twenty-eight,
article two of this chapter or the provisions of subsection (b)
or (c), section nine of said article in which the victim was a
current or former spouse, current or former sexual or intimate
partner, person with whom the defendant has a child in common,
person with whom the defendant cohabits or has cohabited, a
parent or guardian, the defendant's child or ward or a member of
the defendant's household at the time of the offense or has been
convicted in any court of any jurisdiction of a comparable
misdemeanor crime of domestic violence.
Any person who violates the provisions of this subsection
shall be guilty of a misdemeanor and, upon conviction thereof,
shall be fined not less than one hundred dollars nor more than
one thousand dollars or confined in the county jail for not less
than ninety days nor more than one year, or both.
(b) Notwithstanding the provisions of subsection (a) of this
section, any person:
(1) Who has been convicted in this state or any other
jurisdiction of a felony crime of violence against the person of
another or of a felony sexual offense; or
(2) Who has been convicted in this state or any other
jurisdiction of a felony controlled substance offense involving a
Schedule I controlled substance other than marijuana, a Schedule
II or a Schedule III controlled substance as such are defined in
sections two hundred four, two hundred five and two hundred six,
article two, chapter sixty-a of this code and who possesses a
firearm as such is defined in section two of this article shall
be guilty of a felony and, upon conviction thereof, shall be
confined in a state correctional facility for not more than five
years or fined not more than five thousand dollars, or both. The
provisions of subsection (c) of this section shall not apply to
persons convicted of offenses referred to in this subsection or
to persons convicted of a violation of this subsection.
(c) Any person prohibited from possessing a firearm by the
provisions of subsection (a) of this section may petition the
circuit court of the county in which he or she resides to regain
the ability to possess a firearm and if the court finds by clear
and convincing evidence that the person is competent and capable
of exercising the responsibility concomitant with the possession
of a firearm, the court may enter an order allowing the person to
possess a firearm if such possession would not violate any
federal law:
Provided, That a person prohibited from possessing
a firearm by the provisions of subdivision (4), subsection (a) of
this section may petition to regain the ability to possess a
firearm in accordance with the provisions of section five,
article seven-a of this chapter.
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-1. Legislative intent.
It is the intention of the Legislature in the enactment of
this article to clarify the persons whom it intends to proscribe
from the possession of firearms due to substance abuse or mental
illness; establish a process in reporting the names of persons
proscribed from possession of firearms due to mental illness to
the central state mental health registry; authorize reporting by
registry to the National Instant Criminal Background Check
System; and to prescribe a means for reinstating one's ability to
lawfully possess a firearm.
§61-7A-2. Definitions.
As used in this article and as the terms are deemed to mean
in 18 U. S. C. §922(g) and W. Va. Code §61-7-7 as each exists as
of the thirty-first day of January, two thousand eight:
(1)"A person adjudicated as a mental defective" means a
person who has been determined by a duly authorized court,
tribunal, board or other entity to be mentally ill to the point
where he or she has been found to be incompetent to stand trial
due to mental illness or insanity, has been found not guilty in a
criminal proceeding by reason of mental illness or insanity or has been determined to be unable to handle his or her own affairs
due to mental illness or insanity.
(2)"Committed to a mental institution" means to have been
involuntarily committed for treatment pursuant to the provisions
of chapter twenty-seven of this code.
(3)"Mental institution" means any facility or part of a
facility used for the treatment of persons committed for
treatment of mental illness or addiction.
§61-7A-3.
Persons whose names are to be supplied to the central
state mental health registry.
(a)The superintendent of the West Virginia State Police
and the Secretary of the Department of Health and Human
Resources, or their designees, shall cooperate with the circuit
clerk of each county and Administrator of the West Virginia
Supreme Court of Appeals in compiling and maintaining a database
containing the names and identifying information of persons who
have been adjudicated to be mentally defective or who have been
committed for treatment of a mental illness pursuant to the
provisions of chapter twenty-seven of this code. The registry
shall be maintained by the Administrator of the Supreme Court of
Appeals or the Superintendent of the West Virginia State Police.
(b)The name of any person who has been adjudicated to be
mentally defective or who has been committed for treatment of a
mental illness pursuant to the provisions of chapter twenty-seven
of this code which shall be provided to the Superintendent of the
West Virginia State Police for inclusion in the central state mental health registry. Upon receipt of the information being
received by the central state mental health registry it may be
transmitted to the National Instant Criminal Background Check
System and to county sheriffs;
(c)The Secretary of Department of Human Resources and the
circuit clerk of each county shall, as soon as practicable after
the effective date of this article, supply to the Superintendent
of the West Virginia State Police for inclusion in the central
state mental health registry the name and identifying information
required by the provisions of subsection (d) of this section of
all persons covered by the provisions of this article and shall
on an ongoing basis continue to provide such information as it is
developed;
(d)The central state mental health registry shall contain
the name, address at the time of commitment or adjudication, date
of birth, date of commitment or adjudication and
of all persons
who have been adjudicated to be mentally defective or who have
been committed for treatment of a mental illness pursuant to the
provisions of chapter twenty-seven of this code
.
(e)The central state mental health registry shall provide
only such information about a person on the registry to county
sheriffs and the National Instant Criminal Background Check
System as is necessary to identify registrants; and
(f)On or before the first day of January, two thousand
ten, the central state mental health registry shall contain the
name, address at the time of commitment or adjudication, date of birth, date of commitment or adjudication and any other
identifying characteristics
of all persons who have been
adjudicated to be mentally defective or who have been committed
for treatment of a mental illness pursuant to the provisions of
chapter twenty-seven of this code
. Under no circumstances shall
the registry contain information relating to any diagnosis or
treatment provided.
§61-7A-4.
Confidentiality; limits on use of registry
information.
(a)Notwithstanding any provision of this code to the
contrary, the Superintendent of the State Police, the Secretary
of the Department of Health and Human Resources and the circuit
clerks and the Administrator of the Supreme Court of Appeals may
provide notice to the central state mental health registry and
the National Instant Criminal Background Check System established
pursuant to Section 103(d) of the Brady Handgun Violence
Protection Act, 18 U. S. C. §922, that a person: (i) Has been
involuntarily committed as provided in chapter twenty-seven of
this code; (ii) has been adjudicated mentally incompetent in a
proceeding under article six-a of this chapter; or (iii) has
regained the ability to possess a firearm by order of a circuit
court in a proceeding under section five of this article.
(b)The information contained in the central state mental
health registry is to be used solely for the purpose of records
checks related to firearms purchases and for eligibility for a
state license or permit to possess or carry a concealed firearm.
(c)Whenever a person's name and other identifying
information has been added to the central state mental health
registry, a review of the state concealed handgun registry shall
be undertaken and if such review reveals that the person
possesses a current concealed handgun license, the sheriff of the
county issuing the concealed handgun license shall be informed of
the person's change in status.
§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. If the court finds by
clear and convincing evidence that the person is competent and
capable of exercising the responsibilities concomitant with the
possession of a firearm, the court may enter an order allowing
the petitioner to possess a firearm.
(b)The circuit clerk of each county shall provide the
Superintendent of the West Virginia State Police or his or her
designee with a certified copy of any order entered pursuant to
the provisions of this section. 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 shall forthwith inform the
Federal Bureau of Investigation or other federal entity operating
the National Instant Criminal Background Check System of the
court action.