COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 315
(By Senators Hunter, Snyder, Fanning, Kessler, Ross, Sharpe,
Rowe, and Tomblin, Mr. President)
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[Originating in the Committee on Health and Human Resources;
reported March 1, 2004.]
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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
creating a mental hygiene pilot program.
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. Supreme court of appeals, in collaboration with others,
to institute mental hygiene pilot program.
(a) In connection with mental hygiene proceedings under this
chapter, the supreme court of appeals shall, in consultation with
the secretary of the department of health and human resources and local mental health care consumers and providers, prescribe by
administrative order, prepare appropriate forms relating to, and
implement in no more then three judicial circuits for a period of
up to three years beginning on first day of January, two thousand
five, a pilot mental hygiene program using modified procedures that
are consistent with the requirements set forth in this section.
The supreme court of appeals shall annually prepare a report on and
evaluation of the pilot program and procedures that are implemented
pursuant to this section, in consultation with the judicial
circuits, designated magistrates, mental hygiene commissioners and
local mental health consumers and providers involved in the pilot
project(s), and shall transmit the report and evaluation annually
to the Legislature on or before the last day of each calender year.
The court may, during the pilot program period, subject to and
consistent with the requirements of this section, modify the
procedures that are implemented during the trial period. In all
proceedings conducted under the provisions of this section,
individuals who are the subject of petitions for involuntary
hospitalization have the right to appointed counsel and the right
to call witnesses. All orders issued under the provisions of this
section may be immediately appealed and are subject to the right of
habeas corpus. The judicial circuits selected for 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
providers that adequate resources are available to carry out the procedures, consistent with the purpose of this chapter that
persons who are, because of mental illness or addiction, likely to
cause serious harm, as defined in section twelve, article one of
this chapter, shall be afforded the least restrictive treatment
available.
(1) (A) In circuits where the procedures are implemented, the
circuit judges, the mental hygiene commissioners, and magistrates
who are designated by the chief judge of the judicial circuit or
circuit judge, if there is no chief judge, shall have authority to
enter temporary probable cause orders upon an ex parte showing to
the judge, commissioner, or magistrate that there is substantial
evidence establishing probable cause to believe that an individual
is, because of mental illness or addiction, likely to cause serious
harm; and
(B) No hospitalization pursuant to a temporary probable cause
order shall continue in effect for more than one hundred twenty
hours without the occurrence of a probable cause hearing before a
circuit judge, mental hygiene commissioner or designated
magistrate, and no person may be hospitalized or treated pursuant
to any temporary probable cause order if the medical authorities at
the mental health facility to which the person is committed
determine that the hospitalization or treatment is unwarranted; and
(C) In those judicial circuits where the procedures are
implemented where the supreme court of appeals determines in
consultation with the secretary of the department of health and
human resources and local mental health care consumers and providers that local mental health facilities are available and
appropriate to house and treat individuals who, because of mental
illness or addiction, are likely to cause serious harm, the chief
judge of the judicial circuit or circuit judge, if there is no
chief judge, may enter orders authorizing specific psychiatrists or
licensed clinical psychologists whose qualifications have been
reviewed and approved by the court to commit an individual to a
mental health facility if the authorized physician or psychologist
concludes based on personal observation of the individual that an
individual is, because of mental illness or addiction, likely to
cause serious harm: Provided, That the authorized psychiatrist or
psychologist must, as soon as possible after a commitment, contact
a circuit judge, mental hygiene commissioner or designated
magistrate who is authorized to enter ex parte temporary probable
cause orders and obtain approval of the commitment in a temporary
probable cause order. If the approval is not given, the individual
shall be released from the facility.
(2) In circuits where the procedures are implemented, a
verified petition or verified modification to a petition for a
probable cause order may be filed alleging:
(A) That an individual has been involuntarily hospitalized
three or more times within a twenty-four-month period due to mental
illness or addiction;
(B) That these multiple involuntary hospitalizations are a
result of the individual's unreasonable failure to take prescribed
medication that would if taken avert symptoms of the individual's mental illness or addiction that make the individual likely to
cause serious harm;
(C) That the individual has, because of his or her mental
illness or addiction, a substantially diminished understanding and
appreciation of the need to take medically prescribed medication to
avert the symptoms of the individual's mental illness or addiction
that have made the individual likely to cause serious harm;
(D) That a court order requiring the individual to take such
prescribed medication would be, if successful in securing the
individual's compliance in taking prescribed medication, a less
restrictive alternative than future involuntary hospitalizations
which are likely to occur in the absence of such an order and that
the entry of such an order is reasonably necessary to avoid
otherwise likely episodes in which the individual is likely to
cause serious harm; and
(E) That a community mental health center, health-care
provider, law-enforcement agency, social work agency or responsible
individual is willing and able to monitor the individual's
compliance with a court order requiring the individual to take
prescribed medication and can provide reasonable assurance that the
individual can obtain the prescribed medication without undue
financial or other hardship.
(3) (A) Upon the filing of a petition or modification under
subsection (a), subdivision (2) of this section 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 or modification
and all supporting evidence shall be furnished to the individual
and their counsel. If the circuit judge or mental hygiene
commissioner considers it necessary, a detention order may be
entered for the individual that may order that the individual be
examined by a psychiatrist or licensed clinical psychologist. A
hearing on the allegations in the petition or modification shall be
promptly held before a circuit judge or mental hygiene
commissioner.
(B) If the allegations in the petition or modification filed
pursuant to subsection (a), subdivision (2) of this section, are
proved by clear and convincing evidence, which must include expert
testimony by a psychiatrist or licensed clinical psychologist, the
judicial officer may enter an order for a period of time
established by the medical evidence in the hearing, but not to
exceed one year, requiring an individual to take prescribed
medication, and, if necessary, to attend scheduled
medication-related appointments: Provided, That an order shall be
subject to termination or modification by a circuit judge or mental
hygiene commissioner at any time 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
removes the necessity for the order to avert the individual's
likelihood of causing serious harm.
(4) (A) If a verified petition is filed alleging that an individual is not in compliance with an order entered pursuant to
subparagraph (B), subdivision (3), subsection (a) of this section,
the petition shall be reviewed by a circuit judge or mental hygiene
commissioner, and if the 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 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 his or her counsel. A detention
order may thereafter be entered for the individual that may order
that the individual be examined by a psychiatrist or licensed
clinical psychologist and a hearing on the allegations in the
petition shall be held before a circuit judge or mental hygiene
commissioner.
(B) At a hearing on the petition, the circuit judge or mental
hygiene commissioner shall inquire into the circumstances that have
led to the filing of the petition, while affording the individual
and his or her counsel the opportunity to explain the reasons for
any failure to comply with an order requiring the person to take
prescribed medication. The court shall also inquire as to whether
any aspects of the original order should be modified.
(C) If the allegations in the petition regarding non-
compliance with the court's previous order are proven, the circuit
judge or mental hygiene commissioner may modify the previous order,
order involuntary hospitalization if the individual meets the standard of likelihood of causing serious harm, or continue the
individual upon the terms of the original order.
(5) The supreme court of appeals in consultation with the
secretary of the department of health and human resources and local
mental health care consumers and providers may implement other
procedures relating to detention, examination, certification,
transportation, determination of probable cause, payment for
services and placement in connection with mental hygiene
proceedings that are not inconsistent with the requirements of this
article.
(b) Notwithstanding any other provisions of this chapter, in
all mental hygiene proceedings under this article, probable cause
hearings may be held in the county where a person is hospitalized,
judicial officers may employ videoconferencing and telephonic
technology in making probable cause and final commitment
determinations, and persons hospitalized for addiction may be
ordered to be involuntarily hospitalized only until detoxification
is accomplished.
NOTE: The purpose of this bill is to create a mental hygiene
pilot program, to be implemented in up to three judicial circuits
for a period of up to three years. The primary focus of the pilot
project is to reduce the cost of the hearing process involved in
involuntary hospitalizations, while implementing judicial measures
intended to more successfully address problems associated with
addiction as well as the failure or refusal by individuals to take
prescribed medication, which causes these individuals to become
repeatedly involved in the current mental hygiene framework.
This section is new; therefore, strike-throughs and underscoring have been omitted.