Senate Bill No. 770
(By Senators Wooton, Ball, Dittmar, Kessler, Oliverio, Ross,
Snyder, White and Scott)
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[Originating in the Committee on the Judiciary;
reported March 4, l998.]
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A BILL to repeal section sixteen, article one, chapter twenty-seven
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact sections two,
three, four, eleven and twelve, article one of said chapter;
and to amend and reenact section two, article five of said
chapter, all relating to mental illness; institution of
proceedings; hearings; procedures; and changing certain
definitions and the time in which a final commitment hearing
may be held if good cause is shown.
Be it enacted by the Legislature of West Virginia:
That section sixteen, article one, chapter twenty-seven of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that sections two, three, four, eleven and
twelve, article one of said chapter be amended and reenacted; and that section two, article five of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-2. Mental illness.
"Mental illness" is a substantial disorder of thought, mood,
perception, orientation or memory, any of which grossly impairs
judgment, behavior, capacity to recognize reality, or ability to
meet the ordinary demands of life, but not including mental
retardation. Mental retardation, epilepsy or other disturbances of
central nervous system functioning do not, in themselves,
constitute a severe mental disorder.
§27-1-3. Mental retardation.
"Mental retardation" means significantly subaverage general
intellectual functioning and concurrent serious deficits or
impairments in adaptive functioning, which had onset before the age
of eighteen.
§27-1-4. Inebriation.
"Inebriation" is a time-limited, substance-specific syndrome
resulting from recent ingestion of a psychoactive substance,
evidenced by maladaptive effect and behavior during the waking
state attributable to the effect of the substance on the central
nervous system.
§27-1-11. Addiction.
"Addiction" means a pattern of pathological use of a psychoactive substance, including alcohol, or impairment in social
or occupational functioning resulting from use of a psychoactive
substance, with evidence of tolerance for the substance and/or
physical withdrawal when the substance is discontinued.
§27-1-12. Likely to cause serious harm.
"Likely to cause serious harm" means that, as a result of
mental illness, mental retardation or addiction and as evidenced by
recent behavior, the person:
(1) Is likely in the near future to inflict substantial
physical injury upon himself;
(2) Is likely in the near future to cause physical injury or
physical abuse to another person, as evidenced by recent behavior
causing, attempting or threatening such harm; or
(3) Will, if not treated, continue to suffer severe emotional
or physical distress associated with significant impairment of
judgment, reason or behavior causing a substantial deterioration of
previous abilities for independent functioning or which in the
foreseeable future will result in the person becoming likely to
cause himself or herself substantial physical injury or to cause or
attempt to cause physical abuse or injury to another.
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 person has reason to believe that:
(1) The individual is addicted, as defined in section eleven,
article one of this chapter: Provided, That for purposes of this
subdivision and the involuntary hospitalization procedures
specified in this article, the sole issue to be determined is
whether the individual is addicted, which by definition includes
the notion of being incapacitated, causing harm to others or being
unable to prevent harm to himself or herself: Provided, however,
That whenever a provision of this article refers to or requires a
finding of likelihood to cause serious harm, a finding that an
individual is addicted shall be deemed to satisfy such reference or
requirement; or
(2) The individual is mentally ill or mentally retarded and,
because of his or her mental illness or mental retardation, 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 application shall 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 application shall give such
information and state such facts therein 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 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 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. The said order
shall specify that such hearing be held forthwith the date and time
for said hearing which shall be held within twenty-four hours and
shall provide for the appointment of counsel for the individual:
Provided, That where a physician or psychologist has performed such
examination, the community mental health center may waive this
requirement upon approving such examination. Notwithstanding the
provisions of this subsection, subsection (r), section four of this
article shall apply regarding payment by the county commission for examinations at hearings.
In the event 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.
(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 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 remain silent and to be proceeded against in accordance
with the rules of evidence of the supreme court of appeals. At the
conclusion of the hearing, the magistrate, mental hygiene
commissioner or circuit court judge shall find and enter an order
stating whether or not there is probable cause to believe that such
individual, as a result of mental illness, mental retardation or
addiction, is likely to cause serious harm to himself or herself or
to others.
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(NOTE: The purpose of this bill is to update the definitions
of certain terms in the mental health code and
§27-1-2,3,4, 11 and 12 are substantially rewritten; therefore,
strike throughs and underscoring have been omitted.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)