H. B. 4321
(By Delegates Miley, Frazier, Longstreth
and Barill)
(By Request of the Supreme Court of Appeals)
[Introduced January 26, 2012; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §27-4-1 of the Code of West Virginia, 1931, as amended; to amend and reenact §27-5-4 of said code; and to amend and reenact §61-7A-5 of said code, all relating generally to mental health; authorizing parent or guardian to commit a child without his or her consent when child is twelve or older; amending the procedures for petitioning to regain the right to possess firearms so that West Virginia is eligible for federal funding; and stylistic changes.
Be it enacted by the Legislature of West Virginia:
That §27-4-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §27-5-4 of said code be amended and reenacted; and that §61-7A-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 27.MENTALLY ILL PERSONS.
ARTICLE 4. VOLUNTARY HOSPITALIZATION.
§27-4-1. Authority to receive voluntary patients.
The chief medical officer of a mental health facility, subject to the availability of suitable accommodations and to the rules and regulations promulgated by the board of health, shall admit for diagnosis, care and treatment any individual:
(a) Over eighteen years of age who is mentally ill, mentally retarded or addicted or who has manifested symptoms of mental illness, mental retardation or addiction and who makes application for hospitalization; or
(b) Under eighteen years of age who is mentally ill, mentally retarded or addicted or who has manifested symptoms of mental illness, mental retardation or addiction and there is application for hospitalization therefor in his or her behalf:
(1) By the parents of such person; or
(2) If only one parent is living, then by such parent; or
(3) If the parents are living separate and apart, by the parent who has the legal custody of such person; or
(4) If there is a guardian who has legal custody of such person, then by such guardian. Such admission shall be conditioned upon the consent of the prospective patient if he is twelve years of age or over.
(c) No person under eighteen years of age shall may be admitted under this section to any state hospital unless said the person has first been reviewed and evaluated by a local mental health facility and recommended for admission.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-4. Institution of final commitment proceedings; hearing requirements; release.
(a) Involuntary commitment. -- Except as provided in section three of this article, no individual may be involuntarily committed to a mental health facility 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 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. Provided, That, 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. and The certificate or affidavit is hereinafter provided with filed with the clerk of the circuit court or mental hygiene commissioner of the county of which where the individual is a resident or where he or she may be found or the county of the a mental health facility if he or she is hospitalized in a mental health facility located in a county other than where he or she resides or may be found. by an adult person having personal knowledge of the facts of the case.
(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 he or she believes because of symptoms of mental illness or
addiction the individual is likely to cause serious harm to
himself, herself or to others and the grounds for the belief,
stating in detail the recent overt acts upon which the belief is
based. 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. 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 papers and
documents related thereto, related documents, filed with any a
circuit court, or mental hygiene commissioner or designated
magistrate for the involuntary hospitalization of any an individual
are not open to inspection by any person other than the individual,
except upon authorization of unless authorized by the individual or
his or her legal representative or by order of the circuit court.
and The records may not be published except upon the authorization
of 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 article seven-a, chapter sixty-one of this code.
Disclosure may also be made to the prosecuting attorney and
reviewing court in an action brought by the individual pursuant to
section five, article seven-a, chapter sixty-one of this code to
regain firearm and ammunition rights.
(4) Applications may not be accepted for individuals who only
have epilepsy, a mental deficiency or senility.
(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 and that
because of the mental illness or addiction, the individual is
likely to cause serious harm to himself, herself or to self or
others if he or she is allowed to remain at liberty and, therefore,
he or she should be hospitalized. stating. The certificate shall
state in detail the recent overt acts upon on which the conclusion
is based.
(2) A certificate is not necessary only 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 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.
(f) (g) Examination of individual by court-appointed physician
or psychologist; 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 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 of the individual and the likelihood of him or her
causing serious harm to himself, herself or to self or others.
(2) If the designated physician or psychologist 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. 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
section three of this article.
(3) If the reports of the appointed physician or psychologist
do not confirm that the individual is mentally ill or addicted and
might be harmful to himself, herself or to self or others, then the
proceedings for involuntary hospitalization shall be dismissed.
(g) (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 that 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 shall be borne 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.
(h) (i) Duties of counsel representing individual; payment of
counsel representing indigent. -
(1) The Counsel representing an individual shall conduct a
timely interview, make investigation and secure appropriate
witnesses, and shall be present at the hearing and protect the
interest interests of the individual.
(2) Any 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 article
twenty-one, chapter twenty-nine of this code.
(i) (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
by the individual may be admitted into evidence by the physician's
or psychologist's testimony, notwithstanding failure to inform the
individual that this statement may be used against him or her. Any
A psychologist or physician testifying shall bring all records
pertaining to the individual to the hearing. The medical evidence
obtained pursuant to an examination under this section, or section
two or three of this article, 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 shall be made available to the
individual, his or her counsel or the prosecuting attorney within
thirty days if it is 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.
(j) (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 or not the individual is mentally ill or addicted;
and, (B) Whether, because of illness or addiction, is the individual is likely to cause serious harm to himself, herself or to self or others if allowed to remain at liberty; and
(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
(2) The circuit court or mental hygiene commissioner shall
also make a finding as to whether or not (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.
(3) (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.
(k) (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 for an indeterminate
period or for a temporary observatory period not exceeding six months.
(2) The individual may not be detained in a mental health
facility for a period in excess of ten 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. Provided, That
If the patient or his or her counsel requests a hearing, then 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.
(l) (m) Dismissal of proceedings. -- If the circuit court or
mental hygiene commissioner 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 himself,
herself or to self or others if allowed to remain at liberty, the
proceedings shall be dismissed.
(m) (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.
(n) (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, a transcript of the evidence adduced at the final
commitment hearing of the individual, certified by the clerk of the
circuit court, shall forthwith be forwarded to the clerk of the
circuit court of the county of which the individual is a resident.
who 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, 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 to the clerk of
the circuit court of the county in which the hearing was held who
shall execute the order promptly.
(o) (p) Order of custody to responsible person. -- In lieu of
ordering the patient to a mental health facility, 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.
(p) (q) Individual not a resident of this state. -- If the
individual found to be mentally ill or addicted by the circuit
court or mental hygiene commissioner is a resident of another
state, this information shall be forthwith 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.
(q) (r) Report to the Secretary of the Department of Health
and Human Resources. --
(1) The chief medical officer of a mental health facility
admitting a patient pursuant to proceedings under this section
shall forthwith 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 to comply with
the time requirements of this article, the chief medical officer of
the mental health facility shall forthwith, 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.
(r) (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 article
twenty-one, chapter twenty-nine 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.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.
ARTICLE 7A. STATE MENTAL HEALTH REGISTRY; REPORTING OF PERSONS’ PROSCRIBED FROM FIREARM POSSESSION DUE TO MENTAL CONDITION TO THE NATIONAL INSTANT CRIMINAL BACKGROUND CHECK SYSTEM; LEGISLATIVE FINDINGS; DEFINITIONS; REPORTING REQUIREMENTS; REINSTATEMENT OF RIGHTS PROCEDURES.
§61-7A-5. Petition to regain right to possess firearms.
(a) Any person who is prohibited from possessing a firearm pursuant to the provisions of section seven, article seven of this chapter or by provisions of federal law by virtue solely of having previously been adjudicated to be mentally defective or to having a prior involuntary commitment to a mental institution pursuant to chapter twenty-seven of this code may petition the circuit court of the county of his or her residence to regain the ability to lawfully possess a firearm. Petitioners prohibited from possession of firearms due to a mental health disability, must include the following in the petition for relief from disability:
(1) A listing of facilities and location addresses of all prior mental health treatment received by petitioner;
(2) An authorization signed by the petitioner for release of mental health records to the prosecuting attorney of the county; and
(3) A verified certificate of mental health examination by a licensed psychologist or psychiatrist occurring within thirty days prior to filing of the petition which supports that the petitioner is competent and not likely to act in a manner dangerous to public safety.
(b) The court may only consider petitions for relief due to mental health adjudications or commitments that occurred in this state and only give the relief specifically requested in the petition. In determining whether to grant the petition, the court shall receive and consider, at a minimum:
(1) Evidence concerning the circumstances regarding the firearms disabilities imposed by 18 U.S.C. § 922(g)(4);
(2) The petitioner’s record which must include the petitioner’s mental health and criminal history records; and
(3) The petitioner’s reputation developed through character witness statements, testimony, or other character evidence.
(c) The court may enter an order allowing the petitioner to possess a firearm if the court finds by clear and convincing evidence that:
(1) The person is competent and capable of exercising the responsibilities concomitant with the possession of a firearm;
(2) The person will not be likely to act in a manner dangerous to public safety; and
(3) Granting the relief will not be contrary to public interest. the court may enter an order allowing the petitioner to possess a firearm.
(d) If the order denies petitioner’s ability to possess a firearm, the petitioner may appeal the denial, which appeal is to include the record of the circuit court rendering the decision.
(e) All proceedings for relief to regain firearm or ammunition rights shall be reported or recorded and maintained for review.
(f) It shall be the duty of the prosecuting attorney or one of his or her assistants to represent the state in all proceedings for relief to regain firearm rights and provide the court the petitioner’s criminal history records.
(g) The written petition, certificate, mental health or substance abuse treatment records and any papers or documents containing substance abuse or mental health information of the petitioner, filed with the circuit court, are confidential. These are not open to inspection by any person other than by court order, by the individual and his or her counsel, or upon the written authorization of the person or his or her counsel, and the prosecuting attorney for purposes of representing the state in these proceedings exclusively. These records may not be published unless by written authorization of the petitioner or his or her counsel.
(b) (h) The circuit clerk of each county shall provide the Superintendent of the West Virginia State Police or his or her designee and the Administrator of the West Virginia Supreme Court of Appeals, or his or her designee, with a certified copy of any order entered pursuant to the provisions of this section which removes a petitioner’s prohibition to possess firearms. If the order restores the petitioner's ability to possess a firearm, petitioner's name shall be promptly removed from the central state mental health registry and the superintendent or administrator shall forthwith inform the Federal Bureau of Investigation, the United States Attorney General or other federal entity operating the National Instant Criminal Background Check System of the court action.
NOTE: The purpose of this bill is to amend the code relating to the ability of certain individuals to petition a court to regain the right to possess firearms so that West Virginia can become eligible for federal funding and to authorize parents or guardians to commit children age twelve or older to mental health hospitalization without the child’s consent.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.