WEST virginia Legislature

2016 regular session

Introduced

House Bill 4438

By Delegates Summers, Ellington, Rohrbach, Waxman, Stansbury, Blair, Hamrick and Fast

[Introduced February 8, 2016; Referred
to the Committee on Health and Human Resources then the Judiciary.]

A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §27-5-2a; and to amend and reenact §27-5-3 of said code, all relating to the involuntary examination of individuals experiencing a psychiatric emergency or mental illness; authorizing physicians to execute a certificate directing that individuals found to be experiencing a psychiatric emergency to be held involuntarily for examination and treatment; defining psychiatric emergency; directing a second physician to attest to the certificate; authorizing law enforcement to take individuals into custody and to transport; directing notice to be provided to mental hygiene commissioners; authorizing mental hygiene commissioners to conduct hearings under certain circumstances; and authorizing individuals certificated to be experiencing a psychiatric emergency to be admitted to mental health facilities for involuntary examination and treatment.

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 §27-5-2a; and that §27-5-3 of said code be amended and reenacted, all to read as follows:

ARTICLE 5. involuntary hospitalization.

§27-5-2a. Involuntary examination order by medical professional.

(a) Notwithstanding the application process in section two of this article, a physician may execute a certificate stating that he or she has examined a person and finds the person to be experiencing a psychiatric emergency necessitating involuntary examination and treatment pursuant to section three of this article. The certificate shall be signed under oath and state the observations upon which the conclusions for involuntary examination are based. As used in this section, “psychiatric emergency” means an incident during which an individual loses control and behaves in a manner that poses substantial likelihood of physical harm to himself, herself, or others.

            (b) The certificate shall additionally be signed by at least one other physician who shall attest that he or she has also examined the person and concurs that the person is experiencing a psychiatric emergency necessitating involuntary examination and treatment pursuant to section three of this article.

(c) If other less restrictive means are not available or appropriate under the circumstances, such as a medical transport, a law-enforcement officer shall take the person named in the certificate into custody and deliver him or her to the nearest available mental health facility for involuntary examination. The law-enforcement officer shall execute a written report detailing the circumstances under which the person was taken into custody. The report and certificate shall be made a part of the patient’s clinical record.

(d) Upon a person being transported to a mental health facility pursuant to this section, the initiating physician that executed the certificate shall forthwith give notice, along with a copy of such certificate, to the designated Mental Hygiene Commissioner for the Circuit in which the certificate was issued. If the Mental Hygiene Commissioner has specific reason to believe the certificate was not executed in good faith or that the certificate fails to sufficiently set forth or constitute a psychiatric emergency, the Mental Hygiene Commissioner shall conduct a hearing within twenty-four hours of receipt of the certificate to determine if probable cause exists for involuntary examination and detention of the person. To the extent possible, the hearing shall be in conformity with a probable cause hearing conducted under section two of this article: Provided, That the physicians executing the certificate shall be given reasonable notice of the hearing and may utilize telephonic or videoconferencing technology to attend.

If the Mental Hygiene Commissioner finds that a psychiatric emergency did not exist at the time of the execution of the certificate and that probable cause does not exist for the continued involuntary detention and examination, the commissioner shall order the immediate release of the person from the mental health facility. If the commissioner finds probable cause to exist for the continued involuntary detention and examination, he or she shall provide a copy of such finding to the mental health facility to be made a part of the patient’s clinical record.

§27-5-3. Admission under involuntary hospitalization for examination; hearing; release.

 (a) Admission to a mental health facility for examination. -- Any individual may be admitted to a mental health facility for examination and treatment: (i) Pursuant to an executed certificate of a physician, that has been attested by another physician, issued in accordance with section two-a of this article; or (ii) upon entry of an order finding probable cause as provided in section two of this article, and upon certification by a physician, psychologist, licensed independent clinical social worker practicing in compliance with the provisions of article thirty, chapter thirty of this code or an advanced nurse practitioner with psychiatric certification practicing in compliance with article seven of said chapter, that he or she has examined the individual and is of the opinion that the individual is mentally ill or addicted and, because of such mental illness or addiction, is likely to cause serious harm to himself, herself or to others if not immediately restrained: Provided, That the opinions offered by an independent clinical social worker or an advanced nurse practitioner with psychiatric certification must be within their particular areas of expertise, as recognized by the order of the authorizing court.

(b) Three-day time limitation on examination. -- If the examination does not take place within three days from the date the individual is taken into custody, the individual shall be released. If the examination reveals that the individual is not mentally ill or addicted, the individual shall be released.

(c) Three-day time limitation on certification. -- The certification required in subsection (a) of this section shall be valid for three days. Any individual with respect to whom the certification has been issued may not be admitted on the basis of the certification at any time after the expiration of three days from the date of the examination.

(d) Findings and conclusions required for certification. -- A certification under this section must include findings and conclusions of the mental examination, the date, time and place of the examination and the facts upon which the conclusion that involuntary commitment is necessary is based.

(e) Notice requirements. -- When an individual is admitted to a mental health facility pursuant to the provisions of this section, the chief medical officer of the facility shall immediately give notice of the individual's admission to the individual's spouse, if any, and one of the individual's parents or guardians or if there is no spouse and are no parents or guardians, to one of the individual's adult next of kin if the next of kin is not the applicant. Notice shall also be given to the community mental health facility, if any, having jurisdiction in the county of the individual's residence. The notices other than to the community mental health facility shall be in writing and shall be transmitted to the person or persons at his, her or their last known address by certified mail, return receipt requested.

(f) Five-day time limitation for examination and certification at mental health facility. -- After the individual's admission to a mental health facility, he or she may not be detained more than five days, excluding Sundays and holidays, unless, within the period, the individual is examined by a staff physician and the physician certifies that in his or her opinion the patient is mentally ill or addicted and is likely to injure himself, herself or others if allowed to be at liberty.

(g) Fifteen-day time limitation for institution of final commitment proceedings. -- If, in the opinion of the examining physician, the patient is mentally ill or addicted and because of the mental illness or addiction is likely to injure himself, herself or others if allowed to be at liberty, the chief medical officer shall, within fifteen days from the date of admission, institute final commitment proceedings as provided in section four of this article. If the proceedings are not instituted within such fifteen-day period, the patient shall be immediately released. After the request for hearing is filed, the hearing may not be canceled on the basis that the individual has become a voluntary patient unless the mental hygiene commissioner concurs in the motion for cancellation of the hearing.

(h) Thirty-day time limitation for conclusion of all proceedings. -- If all proceedings as provided in articles three and four of this chapter are not completed within thirty days from the date of institution of the proceedings, the patient shall be immediately released.

NOTE: The purpose of this bill is to authorize certain medical providers to involuntarily hold and examine individuals experiencing a psychiatric emergency without first conducting a probable cause hearing before a Mental Health Commissioner.

 Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.