SB278 H JUD AM #1
Fisher 3919
The Committee on the Judiciary moved to amend the bill on page 1, after the enacting clause, by striking out everything after the enacting clause and inserting in lieu thereof the following:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-11. Addiction.
(a) As used in this chapter, "addiction" or substance use disorder means a maladaptive pattern of substance use leading to clinically significant impairment or distress as manifested by one or more of the following occurring within 30 days prior to the filing of the petition:
(1) Recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home, including, but not limited to, repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; or neglect of children or household;
(2) Recurrent use in situations in which it is physically hazardous, including, but not limited to, driving while intoxicated or operating a machine when impaired by substance use;
(3) Recurrent substance-related legal problems; or
(4) Continued use despite knowledge or having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance.
(b) As used in this section, "substance" shall mean
means alcohol, controlled substances as defined in sections §60A-2-204,
§60A-2-206, §60A-2-208, and §60A-2-210 of this code, or anything consumed for
its psychoactive effect whether or not designed for human consumption.
ARTICLE 5. INVOLUNTARY HOSITALIZATION.
§27-5-1. Appointment of mental hygiene commissioner; duties of mental hygiene commissioner; duties of prosecuting attorney; duties of sheriff; duties of Supreme Court of Appeals; use of certified municipal law-enforcement officers.
(a) Appointment of mental hygiene commissioners. — The
chief judge in each judicial circuit of this state shall appoint a competent
attorney and may, if necessary, appoint additional attorneys to serve as mental
hygiene commissioners to preside over involuntary hospitalization hearings.
Mental hygiene commissioners shall be persons of good moral character and of
standing in their profession and they shall, before assuming the duties of such
a commissioner, take the oath required of other special commissioners as
provided in §6-1-1 et seq. of
this code.
Prior to presiding over an involuntary hospitalization hearing,
each All
persons
newly appointed person to serve as a mental hygiene commissioners
and all magistrates shall attend and complete an orientation course that,
within one year of their appointment, consisting consists of
training provided annually by the Supreme Court of Appeals and complete an
orientation program to be developed by the Secretary of the Department of
Health and Human Resources. In addition, existing mental hygiene
commissioners and any all magistrates designated by the chief
judge of a judicial circuit trained to hold probable cause and
emergency detention hearings involving involuntary hospitalization shall attend
and complete a course provided by the Supreme Court of Appeals and complete
an orientation program to be developed by the Secretary of the Department of
Health and Human Resources. Persons attending such the
courses outside the county of their residence shall be reimbursed out of the
budget of the Supreme Court--General Judicial for reasonable expenses incurred.
The Supreme Court of Appeals shall establish curricula and rules for such
the courses, including rules providing for the reimbursement of
reasonable expenses as authorized herein in this section. The
Secretary of the Department of Health and Human Resources shall consult with
the Supreme Court of Appeals regarding the development of the orientation
program.
(b) Duties of mental hygiene commissioners. —
(1) Mental hygiene commissioners may sign and issue summonses for
the attendance, at any hearing held pursuant to §27-5-4 of this code, of the
individual sought to be committed; may sign and issue subpoenas for witnesses,
including subpoenas duces tecum; may place any witness under oath; may elicit
testimony from applicants, respondents, and witnesses regarding factual issues
raised in the petition; and may make findings of fact on evidence and may make
conclusions of law, but such the findings and conclusions shall
not be are not binding on the circuit court. All mental hygiene
commissioners shall be reasonably compensated at a uniform rate determined by
the Supreme Court of Appeals. Mental hygiene commissioners shall submit all
requests for compensation to the administrative director of the courts for
payment. Mental hygiene commissioners shall discharge their duties and hold
their offices at the pleasure of the chief judge of the judicial circuit in
which he or she is appointed and may be removed at any time by such the
chief judge. It shall be the duty of a A mental hygiene
commissioner to shall conduct orderly inquiries into the mental
health of the individual sought to be committed concerning the advisability of
committing the individual to a mental health facility. The mental hygiene
commissioner shall safeguard, at all times, the rights and interests of the
individual as well as the interests of the state. The mental hygiene
commissioner shall make a written report of his or her findings to the circuit
court. In any proceedings before any court of record as set forth in this
article, the court of record shall appoint an interpreter for any individual
who is deaf or cannot speak, or who speaks a foreign language, and who may be
subject to involuntary commitment to a mental health facility.
(2) A mental hygiene commissioner appointed by the circuit court
of one county or multiple county circuits may serve in such that
capacity in a jurisdiction other than that of his or her original appointment
if such be it is agreed upon by the terms of a cooperative
agreement between the circuit courts and county commissions of two or more
counties entered into to provide prompt resolution of mental hygiene matters
during noncourt hours when the courthouse is closed or on
nonjudicial days.
(c) Duties of prosecuting attorney. — It shall be the
duty of the The prosecuting attorney or one of his or her assistants
to shall represent the applicants in all final commitment
proceedings filed pursuant to the provisions of this article. The prosecuting
attorney may appear in any proceeding held pursuant to the provisions of this
article if he or she deems determines it to be in the public
interest.
(d) Duties of sheriff. — Upon written order of the circuit
court, mental hygiene commissioner, or magistrate in the county where the
individual formally accused of being mentally ill or addicted having
a substance use disorder is a resident or is found, the sheriff of that
county shall take said the individual into custody and transport
him or her to and from the place of hearing and the mental health facility. The
sheriff shall also maintain custody and control of the accused individual
during the period of time in which the individual is waiting for the
involuntary commitment hearing to be convened and while such the
hearing is being conducted: Provided, That an individual who is a
resident of a state other than West Virginia shall, upon a finding of probable
cause, be transferred to his or her state of residence for treatment pursuant
to §27-5-4(p) of this code: Provided, however, That where an individual
is a resident of West Virginia but not a resident of the county in which he or
she is found and there is a finding of probable cause, the county in which the
hearing is held may seek reimbursement from the county of residence for
reasonable costs incurred by the county attendant to the mental hygiene
proceeding. Notwithstanding any provision of this code to the contrary,
sheriffs may enter into cooperative agreements with sheriffs of one or more
other counties, with the concurrence of their respective circuit courts and
county commissions, whereby by which transportation and security
responsibilities for hearings held pursuant to the provisions of this article
during noncourt hours when the courthouse is closed or on
nonjudicial days may be shared in order to facilitate prompt hearings and to
effectuate transportation of persons found in need of treatment. In the event an individual requires transportation to a
state hospital as defined by §27-1-6 of this code, the sheriff shall contact the state hospital
in advance of the transportation to determine if the state hospital has
available suitable bed capacity to place the individual.
(e) Duty of sheriff upon presentment to mental health care facility. — When a person is brought to a mental health care facility for purposes of evaluation for commitment under this article, if he or she is violent or combative, the sheriff or his or her designee shall maintain custody of the person in the facility until the evaluation is completed, or the county commission shall reimburse the mental health care facility at a reasonable rate for security services provided by the mental health care facility for the period of time the person is at the hospital prior to the determination of mental competence or incompetence.
(f) Duties of Supreme Court of Appeals. — The Supreme Court of Appeals shall provide uniform petition, procedure, and order forms which shall be used in all involuntary hospitalization proceedings brought in this state.
(g) Duties of the Department of Health and Human Resources. — The secretary shall develop an orientation program as provided in subsection (a) of this section. The orientation program shall include, but not be limited to, instruction regarding the nature and treatment of mental illness and substance use disorder; the goal and purpose of commitment; community-based treatment options; and less restrictive alternatives to inpatient commitment.
§27-5-2. Institution of proceedings for involuntary custody for examination; custody; probable cause hearing; examination of individual.
(a) Any adult person may make an application for involuntary
hospitalization for examination of an individual when the person making the
application has reason to believe that the individual to be examined is addicted, has a substance use disorder as
defined in § 27-1-11 of this code, by the most recent edition of the
American Psychiatric Association in the Diagnostic and Statistical Manual of
Mental Disorders, inclusive of substance use withdrawal, or is mentally ill
and, because of his or her addiction substance use disorder or
mental illness, the individual is likely to cause serious harm to himself,
herself, or to others if allowed to remain at liberty while awaiting an
examination and certification by a physician, or psychologist,
licensed professional counselor, licensed independent social worker, an
advanced nurse practitioner, or physician assistant as provided in subsection
(e) of this section: Provided, That a diagnosis of dementia alone may not serve as a basis for
involuntary commitment.
Notwithstanding any language in this subsection to the contrary,
if the individual to be examined under the provisions of this section is
incarcerated in a jail, prison, or other correctional facility, then only the
chief administrative officer of the facility holding the individual may file
the application, and the application must include the additional statement that
the correctional facility itself cannot reasonably provide treatment and other
services for the individual’s mental illness or addiction substance
use disorder.
(b) The person making the application shall make the application under oath.
(c) Application for involuntary custody for examination may be
made to the circuit court, magistrate 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. When no circuit court judge or mental hygiene
commissioner is available for immediate presentation of the application, the
application may be made to a magistrate designated by the chief judge of the
judicial circuit to accept applications and hold probable cause hearings. A
designated magistrate before whom an application or matter is pending may,
upon the availability of a mental hygiene commissioner or circuit court judge
for immediate presentation of an application or pending matter, transfer the
pending matter or application to the mental hygiene commissioner or circuit
court judge for further proceedings unless otherwise ordered by the chief judge
of the judicial circuit.
(d) The person making the application shall give information and
state facts in the application as may be required by the form provided
for this purpose by the Supreme Court of Appeals.
(e) The circuit court, mental hygiene commissioner, or designated
magistrate may enter an order for the individual named in the application to be
detained and taken into custody for the purpose of holding a probable cause
hearing as provided in §27-5-2(g) of this code for the purpose of an
examination of the individual by a physician, psychologist, a licensed
professional counselor practicing in compliance with §30-31-1 et seq. of
this code, a licensed independent clinical social worker practicing in
compliance with §30-30-1 et seq. of this code, an advanced nurse
practitioner with psychiatric certification practicing in compliance with
§30-7-1 et seq. of this code, a physician’s
assistant practicing in compliance with §30-3-1 et seq. of this code, or
a physician’s assistant practicing in compliance with §30-3E-1 et seq.
of this code: Provided, That a licensed professional counselor, a
licensed independent clinical social worker, a physician’s assistant, or an
advanced nurse practitioner with psychiatric certification may only perform the
examination if he or she has previously been authorized by an order of the
circuit court to do so, the order having found that the licensed professional
counselor, the licensed independent clinical social worker, physician’s
assistant, or advanced nurse practitioner with psychiatric certification has
particularized expertise in the areas of mental health and mental hygiene or addiction
substance use disorder sufficient to make the determinations as are
required by the provisions of this section. The examination is to 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 order is to specify that the
hearing be held forthwith immediately and is to provide for the
appointment of counsel for the individual: Provided, however,
That the order may allow the hearing to be held up to 24 hours after the person
to be examined is taken into custody rather than forthwith immediately
if the circuit court of the county 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 persons: Provided further, That the time
requirements set forth in this subsection only apply to persons who are not in
need of medical care for a physical condition or disease for which the need for
treatment precludes the ability to comply with the time requirements. During
periods of holding and detention authorized by this subsection, upon consent of
the individual or in the event of a medical or psychiatric emergency, the
individual may receive treatment. The medical provider shall exercise due
diligence in determining the individual’s existing medical needs and provide
treatment the individual requires, including previously prescribed medications.
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. Where a physician,
psychologist, licensed professional counselor, licensed independent clinical
social worker, physician’s assistant, or advanced nurse practitioner with
psychiatric certification has, within the preceding 72 hours, performed the
examination required by the provisions of this subsection, the community mental
health center may waive the duty to perform or arrange another examination upon
approving the previously performed examination. Notwithstanding the provisions
of this subsection, §27-5-4(r) of this code applies regarding payment by the
county commission for examinations at hearings. If the examination reveals that
the individual is not mentally ill or addicted has no substance use
disorder, or is determined to be mentally ill or addicted has a
substance use disorder but not likely to cause harm to himself, herself, or
others, the individual shall be immediately released without the need for a
probable cause hearing and the examiner is not civilly liable for the rendering
of the opinion absent a finding of professional negligence. The examiner shall
immediately provide the mental hygiene commissioner, circuit court, or designated
magistrate before whom the matter is pending the results of the examination on
the form provided for this purpose by the Supreme Court of Appeals for entry of
an order reflecting the lack of probable cause.
(f) A probable cause hearing is to 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 48 hours.
The individual must be present at the hearing and has 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. Expert testimony at the
hearing may be taken telephonically or via videoconferencing. The individual
has the right to remain silent and to be proceeded against in accordance with
the Rules of Evidence of the Supreme Court of Appeals, except as provided in
§27-1-12 of this code. 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 it is reliably predictable that deterioration will
occur without clinically necessary treatment, or there is probable cause to
believe that the individual, as a result of mental illness or addiction substance
use disorder, is likely to cause serious harm to himself or herself or to
others.
(g) Probable cause hearings may occur in the county where a person
is hospitalized. The judicial hearing officer may: Use videoconferencing and
telephonic technology; permit persons hospitalized for addiction substance
use disorder to be involuntarily hospitalized only until detoxification is
accomplished; and specify other alternative or modified procedures that are
consistent with the purposes and provisions of this article. The alternative or
modified procedures shall fully and effectively guarantee to the person who is
the subject of the involuntary commitment proceeding and other interested
parties due process of the law and access to the least restrictive available
treatment needed to prevent serious harm to self or others.
(h) If the magistrate, mental hygiene commissioner, or circuit
court judge at a probable cause hearing or a mental hygiene commissioner or
circuit judge at a final commitment hearing held pursuant to the provisions
of §27-5-4 of this code finds that the individual, as a result of mental
illness or addiction substance use disorder, is likely to cause
serious harm to himself, herself, or others and because of mental illness or addiction
a substance use disorder 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. 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 it is reliably predictable that
deterioration will occur without clinically necessary treatment, or there is
probable cause to believe that the individual, as a result of mental illness or
substance use disorder, it is likely to cause serious harm to himself or
herself or others. The agreement is to be in writing and approved by the
individual, his or her counsel, and the magistrate, mental hygiene
commissioner, or circuit court judge. 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 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 constitutes evidence
that outpatient 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 or addiction substance use disorder
remains likely to cause serious harm to himself, herself, or others, the entry
of an order requiring admission under involuntary hospitalization pursuant to
the provisions of §27-5-3 of this code may be entered. In the event 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 the Department
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 may be construed as creating a right to receive
outpatient mental health services or treatment, or as obligating any person or
agency to provide outpatient services or treatment. Time limitations set forth
in this article relating to periods of involuntary commitment to a mental health
facility for hospitalization do not apply to release pursuant to the terms of a
voluntary treatment agreement: Provided, That release pursuant to a
voluntary treatment agreement 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 this article the individual objects to the issuance
or conditions and terms of an order adopting a voluntary treatment agreement,
then the circuit judge, magistrate, or mental hygiene commissioner 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 subject to the 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 canceled or modified. Nothing in this section affects the appellate and
habeas corpus rights of any individual subject to any commitment order.
Notwithstanding anything in this article to the contrary, the commitment of any individual as provided in this article shall be in the least restrictive setting and in an outpatient community-based treatment program to the extent resources and programs are available, unless the clear and convincing evidence of the certifying professional under subsection (e) of this section, who is acting in a manner consistent with the standard of care, establishes that the commitment or treatment of that individual requires an inpatient hospital placement. Outpatient treatment will be based upon a plan jointly prepared by the department and the comprehensive community mental health center or licensed behavioral health provider.
(i) If the certifying physician or psychologist professional
determines that a person an individual requires involuntary
hospitalization for a an addiction to a substance substance use
disorder which, due to the degree of addiction the disorder,
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.
(j) The Supreme Court of Appeals and the Secretary of the Department of Health and Human Resources shall specifically develop and propose a statewide system for evaluation and adjudication of mental hygiene petitions which shall include payment schedules and recommendations regarding funding sources. Additionally, the Secretary of the Department of Health and Human Resources shall also immediately seek reciprocal agreements with officials in contiguous states to develop interstate/intergovernmental agreements to provide efficient and efficacious services to out-of-state residents found in West Virginia and who are in need of mental hygiene services.
§27-5-2a. Process for involuntary hospitalization.
(a) As used in this section:
(1) “Addiction” has the same meaning as the term is defined in §27-1-11 of this code.
(2) “Authorized staff physician” means a physician, authorized pursuant to the provisions of §30-3-1 et seq. or §30-14-1 et seq. of this code, who is a bona fide member of the hospital’s medical staff.
(3) “Hospital” means a facility licensed pursuant to the provisions of §16-5b-1 et seq. of this code, and any acute care facility operated by the state government that primarily provides inpatient diagnostic, treatment, or rehabilitative services to injured, disabled, or sick individuals under the supervision of physicians.
(4) “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)(1) If a mental hygiene commissioner, magistrate, and circuit judge are unavailable or unable to be immediately contacted, an authorized staff physician may order the involuntary hospitalization of an individual who is present at, or presented at, a hospital emergency department in need of treatment, if the authorized staff physician believes, following an examination of the individual, that the individual is addicted or is mentally ill and, because of his or her addiction or mental illness, is likely to cause serious harm to himself, herself or to others if allowed to remain at liberty. The authorized staff physician shall sign a statement attesting to his or her decision that the patient presents a harm to himself, herself or others and needs to be held involuntarily for up to 72 hours. The West Virginia Supreme Court of Appeals is requested to generate a form for the statement to be signed by the authorized staff physician or other person authorized by the hospital and provided to the individual.
(2) Immediately upon admission, or as soon as practicable thereafter, but in no event later than 24 hours after an involuntary hospitalization pursuant to this section, the authorized staff physician or designated employee shall file a mental hygiene petition in which the authorized staff physician certifies that the individual for whom the involuntary hospitalization is sought is addicted or is mentally ill and, because of his or her addiction or mental illness, is likely to cause serious harm to himself, herself, or to other individuals if allowed to remain at liberty. The authorized staff physician shall also certify the same in the individual’s health records. Upon receipt of this filing, the mental hygiene commissioner, a magistrate, or circuit judge shall conduct a hearing pursuant to §27-5-2 of this code.
(3) An individual who is involuntarily hospitalized pursuant to this section shall be released from the hospital within 72 hours, unless further detained under the applicable provisions of this article.
(c) During a period of involuntary hospitalization authorized by this section, upon consent of the individual, or in the event of a medical or psychiatric emergency, the individual may receive treatment. The hospital or authorized staff physician shall exercise due diligence in determining the individual’s existing medical needs and provide treatment the individual requires, including previously prescribed medications.
(d) Each hospital or authorized staff physician which provides services under this section shall be paid for the services at the same rate the hospital or authorized staff physician negotiates with the patient’s insurer. If the patient is uninsured, the hospital or authorized staff physician may file a claim for payment with the West Virginia Legislative Claims Commission in accordance with §14-2-1 et seq. of this code.
(e) Authorized staff physicians and hospitals and their employees carrying out duties or rendering professional opinions as provided in this section shall be free from liability for their actions, if the actions are performed in good faith and within the scope of their professional duties and in a manner consistent with the standard of care.
(f) The West Virginia Supreme Court of Appeals is requested, by no later than July 1, 2020, to provide each hospital with a list of names and contact information of the mental hygiene commissioners, magistrates, and circuit judges to address mental hygiene petitions in the county where the hospital is located. The West Virginia Supreme Court of Appeals is requested to update this list regularly and the list shall reflect on-call information. If a mental hygiene commissioner, county magistrate, or circuit judge does not respond to the request within 24 hours, a report shall be filed to the West Virginia Supreme Court of Appeals.
(g) An action taken against an individual pursuant to this section may not be construed to be an adjudication of the individual, nor shall any action taken pursuant to this section be construed to satisfy the requirements of §61-7-7(a)(4) of this code.
§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 upon entry of an order finding probable cause as provided in
§27-5-2 of this code and upon a finding by a licensed physician that
the individual is medically stable, and upon certification by a physician,
psychologist, licensed professional counselor, licensed independent clinical
social worker practicing in compliance with the provisions of §30-30-1 et
seq. of this code, or an advanced
nurse practitioner with psychiatric certification practicing in compliance with
§30-7-1 et seq. of this code, or a physician’s assistant practicing
in compliance with §30-3E-1 et seq. of this code with advanced duties in
psychiatric medicine that he or she has examined the individual and is
of the opinion that the individual is mentally ill or addicted has a
substance use disorder and, because of such the mental
illness or addiction substance use disorder, 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, or a
physician’s assistant with advanced duties in psychiatric medicine must be
within their his or her 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 has a
substance use disorder, the individual shall be released.
(c) Three-day time limitation on certification. — The
certification required in §27-5-3(a) of this code shall be is
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 or a state hospital 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 Three-day time limitation for
examination and certification at mental health facility or state hospital.
— After the individual’s admission to a mental health facility or state
hospital, he or she may not be detained more than five three
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 has a substance use
disorder and is likely to injure himself, herself, or others if allowed to
be at liberty. In the event the staff physician determines that the
individual does not meet the criteria for continued commitment, that the
individual can be treated in an available outpatient
community-based treatment program and poses no present danger to himself,
herself or others, or that the individual has an underlying medical issue or
issues that resulted in a determination that the individual should not have
been committed, the staff physician shall release and discharge the individual
as appropriate as soon as practicable.
(g) Fifteen-day Ten-day time limitation for
institution of final commitment proceedings. — If, in the opinion of the
examining physician, the patient is mentally ill or addicted has a
substance use disorder and because of the mental illness or addiction
substance use disorder is likely to injure himself, herself, or others
if allowed to be at liberty, the chief medical officer shall, within 15 10
days from the date of admission, institute final commitment proceedings as
provided in §27-5-4 of this code. If the proceedings are not instituted within such
15-day the 10-day period, the patient individual 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 Twenty-day time limitation for
conclusion of all proceedings. — If all proceedings as provided in §27-3-1 et
seq. and §27-4-1 et seq. of this code are not completed within 30
20 days from the date of institution of the proceedings, the patient
individual shall be immediately released.
§27-5-4. Institution of final commitment proceedings; hearing requirements; release.
(a) Involuntary commitment. — Except as provided in §27-5-3 of this code, no individual may be involuntarily committed to a mental health facility or state hospital except by order entered of record at any time by the circuit court of the county in which the person resides or was found, or if the individual is hospitalized in a mental health facility or state hospital located in a county other than where he or she resides or was found, in the county of the mental health facility and then only after a full hearing on issues relating to the necessity of committing an individual to a mental health facility or state hospital. If the individual objects to the hearing being held in the county where the mental health facility is located, the hearing shall be conducted in the county of the individual’s residence.
(b) How final commitment proceedings are commenced. — Final commitment proceedings for an individual may be commenced by the filing of a written application under oath by an adult person having personal knowledge of the facts of the case. The certificate or affidavit is filed with the clerk of the circuit court or mental hygiene commissioner of the county where the individual is a resident or where he or she may be found, or the county of a mental health facility if he or she is hospitalized in a mental health facility or state hospital located in a county other than where he or she resides or may be found.
(c) Oath; contents of application; who may inspect application; when application cannot be filed. —
(1) The person making the application shall do so under oath.
(2) The application shall contain statements by the applicant that
the individual is likely to cause serious harm to self or others due to what
the applicant believes are symptoms of mental illness or addiction substance
use disorder. The applicant shall state in detail the recent overt acts
upon which the belief is based.
(3) The written application, certificate, affidavit, and any
warrants issued pursuant thereto, including any related documents, filed with a
circuit court, mental hygiene commissioner, or designated magistrate for
the involuntary hospitalization of an individual are not open to inspection by
any person other than the individual, unless authorized by the individual or
his or her legal representative or by order of the circuit court. The records
may not be published unless authorized by the individual or his or her legal
representative. Disclosure of these records may, however, be made by the clerk,
circuit court, mental hygiene commissioner, or designated magistrate 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, and the central state mental health registry, in
accordance with §61-7A-1 et seq. of
this code. Disclosure may also be made to the prosecuting attorney and
reviewing court in an action brought by the individual pursuant to §61-7A-5 of this code to
regain firearm and ammunition rights.
(4) Applications may not be accepted for individuals who only have
epilepsy, a mental deficiency, senility dementia, or an
intellectual or developmental disability.
(d) Certificate filed with application; contents of certificate; affidavit by applicant in place of certificate. —
(1) The applicant shall file with his or her application the
certificate of a physician or a psychologist stating that in his or her opinion
the individual is mentally ill or addicted has a substance use
disorder and that because of the mental illness or addiction substance
use disorder, the individual is likely to cause serious harm to self or
others if allowed to remain at liberty and, therefore, should be hospitalized.
The certificate shall state in detail the recent overt acts on which the
conclusion is based.
(2) A certificate is not necessary when an affidavit is filed by the applicant showing facts and the individual has refused to submit to examination by a physician or a psychologist.
(e) Notice requirements; eight days’ notice required. —
Upon receipt of an application, the mental hygiene commissioner or circuit
court shall review the application, and if it is determined that the facts
alleged, if any, are sufficient to warrant involuntary hospitalization, forthwith
immediately fix a date for and have the clerk of the circuit court give
notice of the hearing:
(1) To the individual;
(2) To the applicant or applicants;
(3) To the individual’s spouse, one of the parents or guardians, or, if the individual does not have a spouse, parents or parent or guardian, to one of the individual’s adult next of kin if the next of kin is not the applicant;
(4) To the mental health authorities serving the area;
(5) To the circuit court in the county of the individual’s residence if the hearing is to be held in a county other than that of the individual’s residence; and
(6) To the prosecuting attorney of the county in which the hearing is to be held.
(f) The notice shall be served on the individual by personal service of process not less than eight days prior to the date of the hearing and shall specify:
(1) The nature of the charges against the individual;
(2) The facts underlying and supporting the application of involuntary commitment;
(3) The right to have counsel appointed;
(4) The right to consult with and be represented by counsel at every stage of the proceedings; and
(5) The time and place of the hearing.
The notice to the individual’s spouse, parents or parent or guardian, the individual’s adult next of kin or to the circuit court in the county of the individual’s residence may be by personal service of process or by certified or registered mail, return receipt requested, and shall state the time and place of the hearing.
(g) Examination of individual by court-appointed physician,
or psychologist, advanced nurse practitioner, or physician’s
assistant; custody for examination; dismissal of proceedings. —
(1) Except as provided in subdivision (3) of this subsection,
within a reasonable time after notice of the commencement of final commitment
proceedings is given, the circuit court or mental hygiene commissioner shall
appoint a physician, or psychologist, an advanced nurse
practitioner with psychiatric certification, or a physician’s assistant with
advanced duties in psychiatric medicine to examine the individual and
report to the circuit court or mental hygiene commissioner his or her findings
as to the mental condition or addiction substance use disorder of
the individual and the likelihood of causing serious harm to self or others.
(2) If the designated physician, or psychologist,
advanced nurse practitioner, or physician assistant reports to the circuit
court or mental hygiene commissioner that the individual has refused to submit
to an examination, the circuit court or mental hygiene commissioner shall order
him or her to submit to the examination. The circuit court or mental hygiene
commissioner may direct that the individual be detained or taken into custody
for the purpose of an immediate examination by the designated physician, or
psychologist, nurse practitioner, or physician’s assistant. All such
orders shall be directed to the sheriff of the county or other appropriate
law-enforcement officer. After the examination has been completed, the
individual shall be released from custody unless proceedings are instituted
pursuant to §27-5-3 of this code.
(3) If the reports of the appointed physician, or
psychologist, nurse practitioner, or physician’s assistant do not
confirm that the individual is mentally ill or addicted has a
substance use disorder and might be harmful to self or others, then the
proceedings for involuntary hospitalization shall be dismissed.
(h) Rights of the individual at the final commitment hearing; seven days’ notice to counsel required. —
(1) The individual shall be present at the final commitment hearing, and he or she, the applicant and all persons entitled to notice of the hearing shall be afforded an opportunity to testify and to present and cross-examine witnesses.
(2) In the event the individual has not retained counsel, the court or mental hygiene commissioner, at least six days prior to hearing, shall appoint a competent attorney and shall inform the individual of the name, address, and telephone number of his or her appointed counsel.
(3) The individual has the right to have an examination by an independent expert of his or her choice and to present testimony from the expert as a medical witness on his or her behalf. The cost of the independent expert is paid by the individual unless he or she is indigent.
(4) The individual may not be compelled to be a witness against himself or herself.
(i) Duties of counsel representing individual; payment of counsel representing indigent. —
(1) Counsel representing an individual shall conduct a timely interview, make investigation, and secure appropriate witnesses, be present at the hearing, and protect the interests of the individual.
(2) Counsel representing an individual is entitled to copies of all medical reports, psychiatric or otherwise.
(3) The circuit court, by order of record, may allow the attorney a reasonable fee not to exceed the amount allowed for attorneys in defense of needy persons as provided in §29-21-1 et seq. of this code.
(j) Conduct of hearing; receipt of evidence; no evidentiary privilege; record of hearing. —
(1) The circuit court or mental hygiene commissioner shall hear evidence from all interested parties in chamber, including testimony from representatives of the community mental health facility.
(2) The circuit court or mental hygiene commissioner shall receive all relevant and material evidence which may be offered.
(3) The circuit court or mental hygiene commissioner is bound by
the rules of evidence promulgated by the Supreme Court of Appeals except that
statements made to physicians or psychologists health care
professionals appointed under subsection (g) of this section by the
individual may be admitted into evidence by physician’s or psychologist’s
the health care professional’s testimony, notwithstanding failure to
inform the individual that this statement may be used against him or her. A psychologist
or physician health care professional testifying shall bring all
records pertaining to the individual to the hearing. The medical evidence
obtained pursuant to an examination under this section, or §27-5-2 or §27-5-3
of this code, is not privileged information for purposes of a hearing pursuant
to this section.
(4) All final commitment proceedings shall be reported or recorded, whether before the circuit court or mental hygiene commissioner, and a transcript made available to the individual, his or her counsel or the prosecuting attorney within 30 days if requested for the purpose of further proceedings. In any case where an indigent person intends to pursue further proceedings, the circuit court shall, by order entered of record, authorize and direct the court reporter to furnish a transcript of the hearings.
(k) Requisite findings by the court. —
(1) Upon completion of the final commitment hearing and the evidence presented in the hearing, the circuit court or mental hygiene commissioner shall make findings as to the following:
(A) Whether the individual is mentally ill or addicted has
a substance use disorder;
(B) Whether, because of illness or addiction substance
use disorder, the individual is likely to cause serious harm to self or
others if allowed to remain at liberty;
(C) Whether the individual is a resident of the county in which the hearing is held or currently is a patient at a mental health facility in the county; and
(D) Whether there is a less restrictive alternative than commitment appropriate for the individual. The burden of proof of the lack of a less restrictive alternative than commitment is on the person or persons seeking the commitment of the individual: Provided, That for any commitment to a state hospital as defined by §27-1-6 of this code, a specific finding shall be made that the commitment of, or treatment for, the individual requires inpatient hospital placement and that no suitable outpatient community-based treatment program exists in the individual’s area.
(2) The findings of fact shall be incorporated into the order entered by the circuit court and must be based upon clear, cogent, and convincing proof.
(l) Orders issued pursuant to final commitment hearing; entry of order; change in order of court; expiration of order. —
(1) Upon the requisite findings, the circuit court may order the
individual to a mental health facility or state hospital for an
indeterminate period or for a temporary observatory period not exceeding six
months. a period not to exceed 90 days except as otherwise provided in
this subdivision. During that period and solely for individuals who are
committed under §27-6A-1 et seq. of this code, the chief medical officer
of the mental health facility or state hospital shall conduct a clinical
assessment of the individual at least every 30 days to determine if the
individual requires continued placement at the mental health facility or state
hospital and whether the individual is suitable to receive any necessary
treatment at an outpatient community-based treatment program. If at any time
the chief medical officer, acting in good faith and in a manner consistent with
the standard of care, determines that: (i) The individual is suitable for
receiving outpatient community-based treatment; (ii) necessary outpatient
community-based treatment is available in the individual’s area as evidenced by
a discharge and treatment plan jointly developed by the department and the
comprehensive community mental health center or licensed behavioral health
provider; and (iii) the individual’s clinical presentation no longer requires
inpatient commitment, the chief medical officer shall
provide written notice to the court of record and prosecuting attorney as
provided in subdivision (2) of this section that the individual is suitable for
discharge. The chief medical officer may discharge the patient 30 days after
the notice unless the court of record stays the discharge of the individual.
In the event the court stays the discharge of the individual, the court shall
conduct a hearing within 45 days of the stay, and the individual shall be
thereafter discharged unless the court finds by clear and convincing evidence
that the individual is a significant and present danger to self or others, and
that continued placement at the mental health facility or state hospital is
required.
If the chief medical officer determines that the individual requires commitment at the mental health facility or state hospital at any time for a period longer than 90 days, then the individual shall remain at the mental health facility or state hospital until the chief medical officer of the mental health facility or state hospital determines that the individual’s clinical presentation no longer requires further commitment. The chief medical officer shall provide notice to the court and the prosecuting attorney that the individual requires commitment for a period in excess of 90 days and, in the notice, the chief medical officer shall describe the reasons for ongoing commitment. In its discretion, the court or prosecuting attorney may request any information from the chief medical officer that the court or prosecuting attorney considers appropriate to justify the need for the individual’s ongoing commitment.
(2) Notice to the court of record and prosecuting attorney shall be provided by personal service or certified mail, return receipt requested. The chief medical officer shall make the following findings:
(A) Whether the individual has a mental illness or substance use disorder that does not require inpatient treatment, and the mental illness or serious emotional disturbance is in remission;
(B) Whether the individual’s condition resulting from mental illness or substance use disorder is likely to deteriorate to the point that the individual will pose a likelihood of serious harm to self or others unless treatment is continued;
(C) Whether the individual is likely to participate in outpatient treatment with a legal obligation to do so;
(D) Whether the individual is not likely to participate in outpatient treatment unless legally obligated to do so;
(E) Whether the individual is not a danger to self or others; and
(F) Whether mandatory outpatient treatment is a suitable, less restrictive alternative to ongoing commitment.
(2) (3) The individual may not be detained in a
mental health facility or state hospital for a period in excess of 10
days after a final commitment hearing pursuant to this section unless an order
has been entered and received by the facility.
(3) If the order pursuant to a final commitment hearing is for a
temporary observation period, the circuit court or mental hygiene commissioner
may, at any time prior to the expiration of such period on the basis of a
report by the chief medical officer of the mental health facility in which the
patient is confined, hold another hearing pursuant to the terms of this section
and in the same manner as the hearing was held as if it were an original
petition for involuntary hospitalization to determine whether the original
order for a temporary observation period should be modified or changed to an
order of indeterminate hospitalization of the patient. At the conclusion of the
hearing, the circuit court shall order indeterminate hospitalization of the
patient .or dismissal of the proceedings.
(4) An order for an indeterminate period expires of its own terms
at the expiration of two years from the date of the last order of commitment
unless prior to the expiration, the Department of Health and Human Resources,
upon findings based on an examination of the patient by a physician or a
psychologist, extends the order for indeterminate hospitalization. If the
patient or his or her counsel requests a hearing, a hearing shall be held by
the mental hygiene commissioner or by the circuit court of the county as
provided in subsection (a) of this section.
(4) An individual committed pursuant to §27-6A-3 of this code may be committed for the period he or she is determined by the court to remain an imminent danger to self or others.
(5) In the event the commitment of the individual as provided under subdivision (1) of this subsection exceeds two years, the individual or his or her counsel may request a hearing and a hearing shall be held by the mental hygiene commissioner or by the circuit court of the county as provided in subsection (a) of this section.
(m) Dismissal of proceedings. — In the event the
individual is discharged as provided in subsection (l) of this section, If
the circuit court or mental hygiene commissioner shall finds that the
individual is not mentally ill or addicted, the proceedings shall be dismissed.
If the circuit court or mental hygiene commissioner finds that the individual
is mentally ill or addicted but is not, because of the illness or addiction,
likely to cause serious harm to self or others if allowed to remain at liberty,
the proceedings shall be dismissed. dismiss the proceedings.
(n) Immediate notification of order of hospitalization. — The clerk of the circuit court in which an order directing hospitalization is entered, if not in the county of the individual’s residence, shall immediately upon entry of the order forward a certified copy of the order to the clerk of the circuit court of the county of which the individual is a resident.
(o) Consideration of transcript by circuit court of county of individual’s residence; order of hospitalization; execution of order. —
(1) If the circuit court or mental hygiene commissioner is
satisfied that hospitalization should be ordered but finds that the individual
is not a resident of the county in which the hearing is held and the individual
is not currently a resident of a mental health facility or state hospital,
a transcript of the evidence adduced at the final commitment hearing of the
individual, certified by the clerk of the circuit court, shall forthwith
immediately be forwarded to the clerk of the circuit court of the county
of which the individual is a resident. The clerk shall immediately present the
transcript to the circuit court or mental hygiene commissioner of the county.
(2) If the circuit court or mental hygiene commissioner of the
county of the residence of the individual is satisfied from the evidence
contained in the transcript that the individual should be hospitalized as
determined by the standard set forth above in subdivision one of this
subsection, the circuit court shall order the appropriate hospitalization
as though the individual had been brought before the circuit court or its
mental hygiene commissioner in the first instance.
(3) This order shall be transmitted forthwith immediately
to the clerk of the circuit court of the county in which the hearing was held
who shall execute the order promptly.
(p) Order of custody to responsible person. — In lieu of
ordering the patient individual to a mental health facility or
state hospital, the circuit court may order the individual delivered to some
responsible person who will agree to take care of the individual and the
circuit court may take from the responsible person a bond in an amount to be
determined by the circuit court with condition to restrain and take proper care
of the individual until further order of the court.
(q) Individual not a resident of this state. — If the
individual is found to be mentally ill or addicted to have a
substance use disorder by the circuit court or mental hygiene commissioner
is a resident of another state, this information shall be forthwith immediately
given to the Secretary of the Department of Health and Human Resources, or to
his or her designee, who shall make appropriate arrangements for transfer of
the individual to the state of his or her residence conditioned on the
agreement of the individual, except as qualified by the interstate compact on
mental health.
(r) Report to the Secretary of the Department of Health and Human Resources. —
(1) The chief medical officer of a mental health facility or
state hospital admitting a patient pursuant to proceedings under this
section shall forthwith immediately make a report of the
admission to the Secretary of the Department of Health and Human Resources or
to his or her designee.
(2) Whenever an individual is released from custody due to the
failure of an employee of a mental health facility or state hospital to
comply with the time requirements of this article, the chief medical officer of
the mental health or state hospital facility shall forthwith immediately,
after the release of the individual, make a report to the Secretary of the
Department of Health and Human Resources or to his or her designee of the
failure to comply.
(s) Payment of some expenses by the state; mental hygiene fund established; expenses paid by the county commission. —
(1) The state shall pay the commissioner’s fee and the court reporter fees that are not paid and reimbursed under §29-21-1 et seq. of this code out of a special fund to be established within the Supreme Court of Appeals to be known as the Mental Hygiene Fund.
(2) The county commission shall pay out of the county treasury all other expenses incurred in the hearings conducted under the provisions of this article whether or not hospitalization is ordered, including any fee allowed by the circuit court by order entered of record for any physician, psychologist, and witness called by the indigent individual. The copying and mailing costs associated with providing notice of the final commitment hearing and issuance of the final order shall be paid by the county where the involuntary commitment petition was initially filed.
§27-5-10. Transportation for
the mentally ill or substance abuser persons with substance use
disorder.
(a) Whenever transportation of an individual is required under the
provisions of §27-4-1 et seq. and §27-5-1 et seq. of this code, it shall be the duty of
the sheriff to shall provide immediate transportation to or from
the appropriate mental health facility or state hospital: Provided,
That, where hospitalization occurs pursuant to §27-4-1 et seq. of this
code, the sheriff may permit, upon the written request of a person having
proper interest in the individual’s hospitalization, for the interested person
to arrange for the individual’s transportation to the mental health facility or
state hospital if the sheriff determines that such those means
are suitable given the individual’s condition.
(b) Upon written agreement between the county commission on behalf of the sheriff and the directors of the local community mental health center and emergency medical services, an alternative transportation program may be arranged. The agreement shall clearly define the responsibilities of each of the parties, the requirements for program participation, and the persons bearing ultimate responsibility for the individual’s safety and well-being.
(c) Use of certified municipal law-enforcement officers. —
Sheriffs and municipal governments are hereby authorized to may
enter into written agreements whereby by which certified
municipal law-enforcement officers may perform the duties of the sheriff as
described in this article. The agreement shall determine jurisdiction,
responsibility of costs, and all other necessary requirements, including
training related to the performance of these duties, and shall be approved by
the county commission and circuit court of the county in which the agreement is
made. For purposes of this subsection, “certified municipal law-enforcement
officer” means any duly authorized member of a municipal law-enforcement agency
who is empowered to maintain public peace and order, make arrests, and enforce
the laws of this state or any political subdivision thereof, other than parking
ordinances, and who is currently certified as a law-enforcement officer
pursuant to §30-29-1 et seq. of
this code.
(d) In the event an individual requires transportation to a state hospital as defined by §27-1-6 of this code, the sheriff or certified municipal law-enforcement officer shall contact the state hospital in advance of the transportation to determine if the state hospital has suitable bed capacity to place the individual.
(e) (d) Nothing in this section is intended to alter security
responsibilities for the patient by the sheriff unless mutually agreed upon as
provided in subsection (c) of this section.
article 6A. competency and criminal responsibility of persons charged or convicted of a crime.
§27-6A-1. Qualified forensic evaluator; qualified forensic psychiatrist; qualified forensic psychologist; definitions and requirements.
(a) For purposes of this article:
(1) “Court of record” means the circuit court with jurisdiction over the charge or charges against the individual or acquitee.
(2) “Department” means the Department of Health and Human Resources.
(3) A "qualified forensic evaluator” is either a qualified forensic psychiatrist or a qualified forensic psychologist as defined in this section.
(4) A qualified forensic psychiatrist" is:
(A) A psychiatrist licensed under the laws in this state to practice medicine who has completed post-graduate education in psychiatry in a program accredited by the Accreditation Council of Graduate Medical Education; and
(B) Board eligible or board certified in forensic psychiatry by the American Board of Psychiatry and Neurology or actively enrolled in good standing in a West Virginia training program accredited by the Accreditation Council of Graduate Medical Education to make the evaluator eligible for board certification by the American Board of Psychiatry and Neurology in forensic psychiatry or has two years of experience in completing court-ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.
(2) (5) A "qualified forensic
psychologist" is:
(A) A licensed psychologist licensed under the laws of this state to practice psychology; and
(B) Board eligible or board certified in forensic psychology by the American Board of Professional Psychology or actively enrolled in good standing in a West Virginia training program approved by the American Board of Forensic Psychology to make the evaluator eligible for board certification in forensic psychology or has at least two years of experience in performing court-ordered forensic criminal evaluations, including having been qualified as an expert witness by a West Virginia circuit court.
(3) A "qualified forensic evaluator" is
either a qualified forensic psychiatrist or a qualified forensic psychologist
as defined in this section.
(4) "Department" means the Department of
Health and Human Resources.
(b) No qualified forensic evaluator may perform a forensic evaluation on an individual under this chapter if the qualified forensic evaluator has been the individual's treating psychologist or psychiatrist within one year prior to any evaluation order.
(a) Whenever a court of record has
reasonable cause to believe that a defendant in which an indictment has been
returned, or a warrant or summons issued, may be incompetent to stand trial it
shall, sua sponte or upon motion filed by the state or by or on behalf of the
defendant, at any stage of the proceedings order a forensic evaluation of the
defendant's competency to stand trial to be conducted by one or more a
qualified forensic psychiatrists, or one or more a
qualified forensic psychologists. If a court of record or other judicial
officer orders both a competency evaluation and a criminal responsibility or
diminished capacity evaluation, the competency evaluation shall be performed
first, and if a qualified forensic evaluator is of the opinion that a defendant
is not competent to stand trial, no criminal responsibility or diminished
capacity evaluation may be conducted without further order of the court. The
initial forensic evaluation may not be conducted at a state inpatient mental
health facility unless the defendant resides is a current patient
there and the court of record has found that the initial forensic evaluation
cannot be performed at a community mental health center consistent with §27-2A-1(b)(4)
of this code, at an outpatient facility, or at the office of a qualified
forensic psychiatrist or qualified forensic psychologist.
(b) The court shall require the party making the motion for the evaluation, and other parties as the court considers appropriate, to provide to the qualified forensic evaluator appointed under subsection (a) of this section any information relevant to the evaluations within 10 business days of its evaluation order. The information shall include, but not be limited to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including statements by the defendant made to the police, investigative reports, and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical, or social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluations are to include a diminished capacity assessment, the nature of any lesser included criminal offenses.
(c) A qualified forensic evaluator shall schedule and
arrange for the prompt completion of any court-ordered evaluation which may
include record review and defendant interview and shall, within 10 business days
of the date of the completion of any evaluation, provide to the court of record
a written, signed report of his or her opinion on the issue of competency to
stand trial. If it is the qualified forensic evaluator's opinion that the
defendant is not competent to stand trial, the report shall state whether the
defendant is substantially likely to attain competency within the next three
months 90 days and, as provided in this section, in order
to attain competency to stand trial, whether the defendant requires
inpatient management in a mental health facility may attain competency
by receiving competency restoration services at an outpatient
mental health facility, outpatient mental health practice, or a jail-based
competency restoration program. If the qualified forensic evaluator
determines that a defendant is likely to attain competency but that competency
restoration can be attained only by inpatient management in a mental health
facility or state hospital, the qualified forensic evaluator shall make findings
that establish reasons why competency restoration services at an outpatient
mental health facility, outpatient mental health practice, or a jail-based
competency restoration program would be unsuccessful or are unavailable. Any
report by the qualified forensic evaluator shall further address the following:
(1) A diagnosis of the defendant’s mental condition;
(2) If the defendant is mentally ill, an opinion as to:
(A) The defendant’s ability to understand the criminal proceedings and participate in his or her own defense;
(B) Whether the defendant presents an imminent risk of serious danger to another, is imminently suicidal, or otherwise needs emergency intervention;
(C) Any treatment required for the defendant to attain or maintain competence and an explanation of appropriate treatment alternatives by order of preference, including the extent to which the defendant can be treated without commitment to an institution and the reasons for rejecting such treatment if institutionalization is recommended;
(D) Whether a substantial probability exists that the defendant will ever attain competency to proceed;
(E) The estimated time required to attain competency to proceed;
(F) The availability of acceptable treatment programs in the state, including the provider and type of treatment; and
(G) The factual basis for the diagnosis and opinions.
The court may extend the 10-day period for filing the report if a qualified forensic evaluator shows good cause to extend the period, but in no event may the period exceed 30 days. If there are no objections by the state or defense counsel, the court may, by order, dismiss the requirement for a written report if the qualified forensic evaluator's opinion may otherwise be made known to the court and interested parties.
(d) If the court determines that the defendant has been
uncooperative during the forensic evaluation ordered pursuant to subsection (a)
of this section or there have been one or more inadequate or conflicting
forensic evaluations performed pursuant to subsection (a) of this section and
the court has reason to believe that an observation period is necessary in
order to determine if a person is competent to stand trial, the court may order
the defendant be committed to a mental health facility designated by the department
for a period not to exceed 15 days and an additional evaluation be conducted in
accordance with subsection (a) of this section by one or more a
qualified forensic psychiatrists, or a qualified forensic
psychiatrist and a qualified forensic psychologist. The court shall order
that at the conclusion of the 15-day observation period the sheriff of the
county where the defendant was charged shall take immediate custody of the
defendant for transportation and disposition as ordered by the court.
(e) A mental health facility not operated by the state is not obligated to admit and treat a defendant under this section except as otherwise provided by §27-2A-1(b)(4) and §27-5-9 of this code.
§27-6A-3. Competency of defendant to stand trial determination; preliminary finding; hearing; evidence; disposition
(a) Within five days of the receipt of the qualified
forensic evaluator's report and opinion on the issue of competency to stand
trial, the court of record shall make a preliminary finding on the issue of
whether the defendant is competent to stand trial. If the court of record
finds that the defendant is and if not competent, the court shall
make a finding of whether there is a substantial likelihood that the
defendant will attain competency within the next three months 90 days
and whether such competency can be attained by receiving competency restoration
services at an outpatient mental health facility, outpatient mental health
practice, or a jail-based competency restoration program. If the court of
record orders, or if the state or defendant or defendant's counsel within 20
days of receipt of the preliminary findings requests a hearing, then a hearing
shall be held by the court of record within 15 days of the date of the
preliminary finding, absent good cause being shown for a continuance. If a
hearing order or request is not filed within 20 days, the preliminary findings
of the court become the final order.
(b) At a hearing to determine a defendant's competency to stand trial the defendant has the right to be present and he or she has the right to be represented by counsel and introduce evidence and cross-examine witnesses. The defendant shall be afforded timely and adequate notice of the issues at the hearing and shall have access to all forensic evaluator's opinions. All rights generally afforded a defendant in criminal proceedings shall be afforded to a defendant in the competency proceedings, except trial by jury.
(c) The court of record pursuant to a preliminary finding or hearing on the issue of a defendant's competency to stand trial and with due consideration of any forensic evaluation conducted pursuant to §27-6A-2 and §27-6A-3 of this code shall make a finding of fact upon a preponderance of the evidence as to the defendant's competency to stand trial based on whether or not the defendant has sufficient present ability to consult with his or her lawyer with a reasonable degree of rational understanding and whether he or she has a rational as well as a factual understanding of the proceedings against him or her.
(d) If at any point in the proceedings the defendant is found competent to stand trial, the court of record shall forthwith proceed with the criminal proceedings.
(e) If at any point in the proceedings the defendant is
found not competent to stand trial, the court of record shall at the same
hearing, upon the evidence, make further findings as to whether or not there is
a substantial likelihood that the defendant will attain competency within the
next ensuing three months 90 days.
(f) If at any point in the proceedings the defendant is found not competent to stand trial and is found substantially likely to attain competency, the court of record shall in the same order, upon the evidence, make further findings as to whether the defendant requires, in order to attain competency, inpatient management in a mental health facility. If inpatient management is required, the court shall order the defendant be committed to an inpatient mental health facility designated by the department to attain competency to stand trial and for a competency evaluation. The term of this commitment may not exceed three months from the time of entry into the facility. However, upon request by the chief medical officer of the mental health facility and based on the requirement for additional management to attain competency to stand trial, the court of record may, prior to the termination of the three-month period, extend the period up to nine months from entry into the facility. A forensic evaluation of competency to stand trial shall be conducted by a qualified forensic evaluator and a report rendered to the court, in like manner as subsections (a) and (c), section two of this article, every three months until the court determines the defendant is not competent to stand trial and is not substantially likely to attain competency.
(g) If at any point in the
proceedings the defendant who has been indicted or charged with a
misdemeanor or felony which does not involve an act of violence against a
person is found not competent to stand trial and is found not substantially
likely to attain competency and if the defendant has been indicted or
charged with a misdemeanor or felony which does not involve an act of violence
against a person, the criminal charges shall be dismissed. after having
received competency restoration services for 90 days shall be dismissed. The dismissal discharge order may, however,
be stayed for 20 days to allow civil commitment proceedings to be instituted by
the prosecutor pursuant to §27-5-1 et seq. of this code. Provided:
That should a conflict arise between the provisions of this article
and those of §27-5-1 et seq., the provisions of this article shall
control. The defendant shall be immediately released from any inpatient
facility unless civilly committed.
(h) If at any point in the proceedings the defendant is found not competent to stand trial and is found not substantially likely to attain competency, and if the defendant has been indicted or charged with a misdemeanor or felony in which the misdemeanor or felony does involve an act of violence against a person, then the court shall determine on the record the offense or offenses of which the person otherwise would have been convicted, and the maximum sentence he or she could have received. A defendant shall remain under the court's jurisdiction until the expiration of the maximum sentence unless the defendant attains competency to stand trial and the criminal charges reach resolution or the court dismisses the indictment or charge. The court shall order the defendant be committed to a mental health facility designated by the department that is the least restrictive environment to manage the defendant and that will allow for the protection of the public. Notice of the maximum sentence period with an end date shall be provided to the mental health facility. The court shall order a qualified forensic evaluator to conduct a dangerousness evaluation to include dangerousness risk factors to be completed within 30 days of admission to the mental health facility and a report rendered to the court within 10 business days of the completion of the evaluation. The medical director of the mental health facility shall provide the court a written clinical summary report of the defendant's condition at least annually during the time of the court's jurisdiction. The court's jurisdiction shall continue an additional 10 days beyond any expiration to allow civil commitment proceedings to be instituted by the prosecutor pursuant to article five of this chapter. The defendant shall then be immediately released from the facility unless civilly committed.
(i) If the defendant has been ordered to a mental health facility pursuant to subsection (h) of this section and the court receives notice from the medical director or other responsible official of the mental health facility that the defendant no longer constitutes a significant danger to self or others, the court shall conduct a hearing within 30 days to consider evidence, with due consideration of the qualified forensic evaluator's dangerousness report or clinical summary report to determine if the defendant shall be released to a less restrictive environment. The court may order the release of the defendant only when the court finds that the defendant is no longer a significant danger to self or others. When a defendant's dangerousness risk factors associated with mental illness are reduced or eliminated as a result of any treatment, the court, in its discretion, may make the continuance of appropriate treatment, including medications, a condition of the defendant's release from inpatient hospitalization. The court shall maintain jurisdiction of the defendant in accordance with said subsection. Upon notice that a defendant ordered to a mental health facility pursuant to said subsection who is released on the condition that he or she continues treatment does not continue his or her treatment, the prosecuting attorney shall, by motion, cause the court to reconsider the defendant's release. Upon a showing that defendant is in violation of the conditions of his or her release, the court shall reorder the defendant to a mental health facility under the authority of the department which is the least restrictive setting that will allow for the protection of the public.
(j) The prosecuting attorney may, by motion, and in due consideration of any chief medical officer's or forensic evaluator's reports, cause the competency to stand trial of a defendant subject to the court's jurisdiction pursuant to subsection (h) of this section or released pursuant to subsection (i) of this section to be determined by the court of record while the defendant remains under the jurisdiction of the court, and in which case the court may order a forensic evaluation of competency to stand trial be conducted by a qualified forensic evaluator and a report rendered to the court in like manner as subsections (a) and (c), section two of this article.
(k) Any defendant found not competent to stand trial may at any time petition the court of record for a hearing on his or her competency however may do so no more often than every six months.
(l) Notice of court findings of a defendant's competency to stand trial, of commitment for inpatient management to attain competency, of dismissal of charges, of order for inpatient management to protect the public, of release or conditional release, or any hearings to be conducted pursuant to this section shall be sent to the prosecuting attorney, the defendant and his or her counsel, and the mental health facility and state hospital. Notice of court release hearing or order for release or conditional release pursuant to subsection (i) of this section shall be made available to the victim or next of kin of the victim of the offense for which the defendant was charged. The burden is on the victim or next of kin of the victim to keep the court apprised of that person's current mailing address.
(m) A mental health facility not operated by the state is not obligated to admit or treat a defendant under this section except as otherwise provided by §27-2A-1(b)(4) and §27-5-9 of this code.
(n) Notwithstanding anything in this article to the contrary, for each individual who is committed to a state hospital or committed to a state hospital and diverted to a licensed hospital prior to the effective date hereof and who has received or will receive the maximum amount of competency restoration treatment authorized under this section prior to January 31, 2021, and who the medical director of such hospital has determined is not restorable, the medical director shall inform the court and prosecutor of record for each such individual as soon as practicable but no later than March 31, 2021, and the medical director shall forthwith provide a recommendation to the court and prosecutor for the clinical disposition, placement, or treatment of each such individual. The state hospital or prosecutor shall thereafter file a civil commitment proceeding, if warranted, as provided under §27-5-1 et seq. of this code for each such individual or make other appropriate recommendations to the court of record. The court shall hold any hearing for each such individual as soon as practicable but no later than June 30, 2021.
(a) If the court of record finds, upon hearing evidence or
representations of counsel for the defendant, that there is probable cause to
believe that the defendant's criminal responsibility or diminished capacity
will be a significant factor in his or her defense, the court shall appoint one
or more a qualified forensic psychiatrists or qualified
forensic psychologists to conduct a forensic evaluation of the
defendant's state of mind at the time of the alleged offense. However, if a
qualified forensic evaluator is of the opinion that the defendant is not
competent to stand trial that no criminal responsibility or diminished capacity
evaluation may be conducted. The forensic evaluation may not be conducted at a
state inpatient mental health facility unless the defendant has been ordered to
a mental health facility or state hospital in accordance with §27-6A-2(c)
or §27-6A-3(f) or (h) of this code. To the extent possible, qualified forensic
evaluators who have conducted evaluations of competency under §27-6A-2(a) of
this code shall be used to evaluate criminal responsibility or diminished
capacity under this subsection.
(b) The court shall require the party making the motion for the evaluations, and other parties as the court considers appropriate, to provide to the qualified forensic evaluator appointed under subsection (a) of this section any information relevant to the evaluation within 10 business days of its evaluation order. The information shall include, but not be limited to:
(1) A copy of the warrant or indictment;
(2) Information pertaining to the alleged crime, including statements by the defendant made to the police, investigative reports, and transcripts of preliminary hearings, if any;
(3) Any available psychiatric, psychological, medical, or social records that are considered relevant;
(4) A copy of the defendant's criminal record; and
(5) If the evaluation is to include a diminished capacity assessment, the nature of any lesser criminal offenses.
(c) A qualified forensic evaluator shall schedule and arrange within 15 days of the receipt of appropriate documents the completion of any court-ordered evaluation which may include record review and defendant interview and shall, within 10 business days of the date of the completion of any evaluation, provide to the court of record a written, signed report of his or her opinion on the issue of criminal responsibility and if ordered, on diminished capacity. The court may extend the 10-day period for filing the report if a qualified forensic evaluator shows good cause to extend the period, but in no event may the period exceed 30 days. If there are no objections by the state or defense counsel, the court may, by order, dismiss the requirement for a written report if the qualified forensic evaluator's opinion may otherwise be made known to the court and interested parties.
(d) If the court determines that the defendant has been uncooperative during a forensic evaluation ordered pursuant to subsection (a) of this section or there are inadequate or conflicting forensic evaluations performed pursuant to subsection (a) of this section, and the court has reason to believe that an observation period and additional forensic evaluation or evaluations are necessary in order to determine if a defendant was criminally responsible or with diminished capacity, the court may order the defendant be admitted to a mental health facility or state hospital designated by the department for a period not to exceed 15 days and an additional evaluation be conducted and a report rendered in like manner as subsections (a) and (b) of this section by one or more qualified forensic psychiatrists or one or more qualified forensic psychologists. At the conclusion of the observation period, the court shall enter a disposition order and the sheriff of the county where the defendant was charged shall take immediate custody of the defendant for transportation and disposition as ordered by the court.
(e) If the verdict in a criminal trial is a judgment of
not guilty by reason of mental illness, the court shall determine on the
record the offense or offenses of which the acquitee could have otherwise been
convicted, and the maximum sentence he or she could have received. The acquitee
shall remain under the court's jurisdiction until the expiration of the maximum
sentence or until discharged by the court. The court shall commit the
acquitee to a mental health facility designated by the department that is the
least restrictive environment to manage the acquitee and that will allow for
the protection of the public. Notice of the maximum sentence period with end
date shall be provided to the mental health facility. The court shall order
a qualified forensic evaluator to conduct a dangerousness evaluation to include
dangerousness risk factors to be completed within 30 days of admission to the
mental health facility and a report rendered to the court within 10 business
days of the completion of the evaluation. The medical director of the mental
health facility shall provide the court a written clinical summary report of
the defendant's condition at least annually during the time of the court's
jurisdiction. The court's jurisdiction continues an additional 10 days beyond
any expiration to allow civil commitment proceedings to be instituted by the
prosecutor pursuant to §27-5-1 et seq. of this code. The defendant shall
then be immediately released from the facility unless civilly committed.
(f) The court shall place persons so acquitted under section (e) in the temporary custody of the department for evaluation to determine if the acquittee may be released with or without conditions or if the acquittee requires commitment. The court may authorize that the evaluation be conducted on an outpatient basis. If the court authorizes an outpatient evaluation, the department shall determine, on the basis of all information available, whether the evaluation shall be conducted on an outpatient basis or whether the acquittee shall be confined in a hospital for evaluation. If the court does not authorize an outpatient evaluation, the acquittee shall be confined in a hospital for evaluation. If an acquittee who is being evaluated on an outpatient basis fails to comply with such evaluation, the department shall petition the court for an order to confine the acquittee in a hospital for evaluation. A copy of the petition shall be sent to the acquittee's attorney and the prosecutor of the acquittee’s case. The evaluation shall be conducted by a psychiatrist or a clinical psychologist skilled in the diagnosis of mental illness and intellectual disability and qualified by training and experience to perform such evaluations. The evaluator shall determine whether the acquittee currently has mental illness or intellectual disability and shall assess the acquittee and report on his or her condition and need for hospitalization with respect to the factors set forth in §27-6A-5(b) of this code. The evaluator shall conduct his or her examination and report his or her findings separately within 30 days of the department’s assumption of custody of the acquittee. Copies of the report shall be sent to the acquittee's attorney, the prosecuting attorney for the jurisdiction where the person was acquitted, and the comprehensive community mental health center designated by the department. If the evaluator recommends conditional release or release without conditions of the acquittee, the court shall extend the evaluation period to permit the department and the comprehensive community mental health center or licensed behavioral health provider to jointly prepare a conditional release or discharge plan, as applicable, prior to the hearing.
(f) (g) In addition to any court-ordered
evaluations completed pursuant to section two, three or four of this article,
the defendant or the state has the right to an evaluation or evaluations by a
forensic evaluator or evaluators of his or her choice and at his or her
expense.
(g) (h) A mental health facility not
operated by the state is not required to admit or treat a defendant or acquitee
under this section except as otherwise provided by §27-2A-1(b)(4) and
§27-5-9 of this code.
§27-6A-5. Release of acquitee to less restrictive environment; discharge from jurisdiction of the court; conditional release; and commitment.
(a) If, at any time prior to the expiration of the
court's jurisdiction, the chief medical officer or responsible official of the
mental health facility to which an acquitee has been ordered pursuant to
subsection (e), section four of this article believes that the acquitee is not mentally
ill or does not have significant dangerousness risk factors associated with
mental illness, he or she shall file with the court of record notice of the
belief and shall submit evidence in support of the belief to include a forensic
evaluation dangerousness report conducted in like manner as said subsection and
recommendations for treatment, including medications, that reduce or eliminate
the dangerousness risk factors associated with mental illness. The court of
record shall hold a hearing within thirty days of receipt of the notice to
consider evidence as to whether the acquitee shall be released from the mental
health facility to a less restrictive environment. Notice of the hearing shall
be made available to the prosecuting attorney responsible for the charges
brought against the acquitee at trial, the acquitee and his or her counsel and
the mental health facility. If upon consideration of the evidence the court
determines that an acquitee may be released from a mental health facility to a
less restrictive setting, the court shall order, within fifteen days of the
hearing, the acquitee be released upon terms and conditions, if any, the court
considers appropriate for the safety of the community and the well-being of the
acquitee. Any terms and conditions imposed by the court must be protective and
therapeutic in nature, not punitive. When a defendant's dangerousness risk
factors associated with mental illness are reduced or eliminated as a result of
any treatment, the court, in its discretion, may make the continuance of
appropriate treatment, including medications, a condition of the defendant's
release from inpatient hospitalization. The court shall maintain jurisdiction
of the defendant in accordance with said subsection. Upon notice that an acquitee
released on the condition that he or she continues appropriate treatment does
not continue his or her treatment, the prosecuting attorney responsible for the
charges brought against the acquitee at trial shall, by motion, cause the court
to reconsider the acquitee's release and upon a showing that the acquitee is in
violation of the conditions of his or her release, the court may reorder the
acquitee to a mental health facility designated by the department which is the
least restrictive setting appropriate to manage the acquitee and protect the
public.
(b) No later than thirty days prior to the release from
a mental health facility or other management setting of an acquitee because of
the expiration of the court's jurisdiction as set in accordance with subsection
(e), section four of this article, if the acquitee's physician, psychologist,
chief medical officer or other responsible party is of the opinion that the
acquitee's mental illness renders the acquitee to be likely to cause serious
harm to self or others, the supervising physician, psychologist, chief medical
officer or other responsible party shall notify the court of record who shall
promptly notify the prosecuting attorney in the county of the court having
jurisdiction of the opinion and the basis for the opinion. Following
notification, the prosecuting attorney may file, within ten days, a civil
commitment application against the acquitee pursuant to article five of this
chapter.
(a) Upon receipt of the evaluation report as provided in §27-6A-4(e) of this code and, if applicable, a conditional release or discharge plan, the court shall schedule the matter for hearing on an expedited basis to determine the appropriate disposition of the acquittee. Except as otherwise ordered by the court, the attorney who represented the defendant at the criminal proceedings shall represent the acquittee through the proceedings pursuant to this section. The matter may be continued on motion of either party for good cause shown. The acquittee shall be provided with adequate notice of the hearing, of the right to be present at the hearing, the right to assistance of counsel in preparation for and during the hearing, and the right to introduce evidence and cross examine witnesses at the hearing. The hearing is a civil proceeding.
(b) At the conclusion of the hearing, the court shall commit the acquittee to a mental health facility or state hospital if it finds by clear and convincing evidence that the acquittee has a mental illness or an intellectual disability and that because of the nature or severity of acquittee’s condition the acquittee cannot be treated on an outpatient basis and requires inpatient management. The decision of the court shall be based upon consideration of the following factors:
(1) To what extent the acquittee has mental illness or an intellectual disability;
(2) The likelihood that the acquittee will engage in conduct presenting a substantial risk of bodily harm to other persons or to himself in the foreseeable future;
(3) The likelihood that the acquittee can be adequately controlled with supervision and treatment on an outpatient basis; and
(4) Such other factors as the court deems relevant.
(c) If inpatient hospitalization is ordered by the court, the mental health facility or state hospital shall periodically provide written clinical reports to the court regarding the continued need for hospitalization as provided by this subsection. A report shall be sent to the court after the initial six months of treatment and every two years after the initial report is made. The court shall provide copies of any such reports to the prosecutor and counsel for the acquittee. Within 30 days after its receipt of the report, the court shall hold a hearing to consider the issue of the continued commitment of the acquittee. The acquittee may request a change in the conditions of confinement, and the trial court shall conduct a hearing on that request if six months or more have elapsed since the most recent hearing was conducted under this section.
(d) Notwithstanding anything in this section to the contrary, the court shall order the acquittee released if the court finds that the acquittee meets the criteria for conditional release as set forth in subsection (b). The court may order such other conditions that it deems necessary in accordance with subsection (c). If the court finds that the acquittee does not need inpatient hospitalization nor does the acquittee meet the criteria for conditional release, the court shall release the acquittee without conditions, provided the court has approved a discharge plan prepared by the appropriate comprehensive community mental health center or licensed behavioral health provider in consultation with the department.
(e) The court shall order that any person acquitted by reason of insanity and committed pursuant to this section who is sentenced to a term of incarceration for any other offense in the same proceeding or in any proceeding conducted prior to the proceeding in which the person is acquitted by reason of insanity complete any sentence imposed for such other offense prior to being placed in the custody of the department until released from commitment pursuant to this chapter. The court shall order that any person acquitted by reason of insanity and committed pursuant to this section who is sentenced to a term of incarceration in any proceeding conducted during the period of commitment be transferred to the custody of the correctional facility where he or she is to serve his or her sentence, and, upon completion of his or her sentence, such person shall be placed in the custody of the department until released from commitment pursuant to this chapter.
(f) At any time the court considers the acquittee's need for inpatient hospitalization pursuant to this section, the court shall place the acquittee on conditional release if it finds that (i) based on consideration of the factors which the court must consider in its commitment decision as provided in subsection (b), the acquittee does not need inpatient hospitalization but may receive outpatient treatment or monitoring to prevent his or her condition from deteriorating to a degree that he or she would need inpatient hospitalization; (ii) appropriate outpatient supervision and treatment are reasonably available; (iii) is not mentally ill or does not have significant dangerousness risk factors associated with mental illness; (iv) there is significant reason to believe that the acquittee, if conditionally released, would comply with the conditions specified; and (v) conditional release will not present an undue risk to public safety. The court shall subject a conditionally released acquittee to such orders and conditions it deems will best meet the acquittee's need for treatment and supervision and best serve the interests of justice and society.
(g) The comprehensive community mental health center or licensed behavioral health provider as designated by the department shall implement the court's conditional release orders and shall submit written reports to the court on the acquittee's progress and adjustment in the community no less frequently than every six months. An acquittee's conditional release shall not be revoked solely because of his or her voluntary admission to a state hospital.
(h) If at any time the court that conditionally released an acquittee finds reasonable grounds to believe that an acquittee on conditional release (i) has violated the conditions of his or her release or is no longer a proper subject for conditional release based on application of the criteria for conditional release and (ii) requires inpatient hospitalization, it may order an evaluation of the acquittee by a psychiatrist or clinical psychologist qualified by training and experience to perform forensic evaluations. If the court, based on the evaluation and after hearing evidence on the issue, finds by a preponderance of the evidence that an acquittee on conditional release (a) has violated the conditions of his or her release or is no longer a proper subject for conditional release based on application of the criteria for conditional release and (b) has a mental illness or an intellectual disability and requires inpatient hospitalization, the court may revoke the acquittee's conditional release and order him or her returned to the custody of the department.
(i) At any hearing pursuant to this section, the acquittee shall be provided with adequate notice of the hearing, of the right to be present at the hearing, the right to the assistance of counsel in preparation for and during the hearing, and the right to introduce evidence and cross-examine witnesses at the hearing. The hearing shall be scheduled on an expedited basis. Written notice of the hearing shall be provided to the prosecuting attorney for the committing jurisdiction. The hearing is a civil proceeding.
(j) If during the term of the acquittee’s conditional release the court finds that the acquittee has violated the conditions of his or her release but does not require inpatient hospitalization, the court may hold the acquittee in contempt of court for violation of the conditional release order.
(k) The court may modify conditions of release or remove conditions placed on release pursuant to subsection (f) upon petition by the comprehensive community mental health center or licensed behavioral health provider, the prosecuting attorney, the acquittee, or upon its own motion based upon the report or reports of such comprehensive community mental health center or behavioral health provider. However, the acquittee may petition no more frequently than annually and only six months after the conditional release order is entered. Upon petition, the court shall require the comprehensive community mental health center or behavioral health provider to provide a report on the acquittee’s progress while on conditional release.
(l) As it deems appropriate and based on the report from the comprehensive community mental health center or behavioral health provider and any other evidence provided to it, the court may issue a proposed order for modification or removal of conditions. The court shall provide notice of the order, and their right to object to it, within ten days of its issuance, to the acquittee, the comprehensive community mental health center or behavioral health provider, and the prosecuting attorney for the committing jurisdiction and for the jurisdiction where the acquittee is residing on conditional release. The proposed order shall become final if no objection is filed within ten days of its issuance. If an objection is so filed, the court shall conduct a hearing at which the acquittee, the prosecuting attorney, and the comprehensive community mental health center or behavioral health provider have an opportunity to present evidence challenging the proposed order. At the conclusion of the hearing, the court shall issue an order specifying conditions of release or removing existing conditions of release, as the court deems appropriate.
§27-6A-12. Study of adult criminal competency and responsibility issues; requiring and requesting report and proposed legislation; submission to legislature.
(a) The Secretary of the Department of Health and Human Resources
shall, in collaboration with designees of the Supreme Court of Appeals, the
Prosecuting Attorney’s Institute Association, the Public Defender
Services, Disability Rights of West Virginia, and designees of the Board of
Medicine, Board of Osteopathy, and the Board Examiners of Psychologists with
experience in issues of competence and criminal responsibility, undertake an
evaluation of the provisions of this article in the context of current
constitutional requirements related to competency and responsibility issues,
best medical practices, and pharmacological developments and draft proposed
legislation to update the provisions of this article.
(b) The legislation required by the provisions of subsection (a) of this section shall be submitted to the President of the Senate and the Speaker of the House of Delegates on or before July 31, 2020.
Adopted
Rejected