H. B. 4563
(By Delegate Morgan)
[Introduced
February 18, 2010
; referred to the
Committee on Government Organization.]
A BILL to amend and reenact §27-5-11 of the Code of West Virginia,
1931, as amended, relating to extending the termination date
of the modified mental hygiene procedures pilot project.
Be it enacted by the Legislature of West Virginia:
That §27-5-11 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§27-5-11. Modified procedures for temporary compliance orders for
certain medication dependent persons with prior
hospitalizations or convictions; to institute
modified mental hygiene procedures; procedures;
forms.
(a)
(1) The Supreme Court of Appeals shall, in consultation
with the Secretary of the Department of Health and Human Resources
and local mental health services consumers and providers, implement in
at least four and no more than six judicial circuits, beginning
on July 1, 2006, modified mental hygiene procedures that are
consistent with the requirements set forth in this section.
(2) The judicial circuits selected for implementing the
modified procedures shall be circuits in which the Supreme Court of
Appeals determines, after consultation with the Secretary of the
Department of Health and Human Resources and local mental health
consumers and service providers, that adequate resources will be
available to implement the modified procedures.
(3) The Secretary of the Department of Health and Human
Resources, after consultation with the Supreme Court of Appeals and
local mental health services consumers and service providers, shall
prescribe appropriate forms to implement the modified procedures
and shall annually prepare a report on the use of the modified
procedures and transmit the report to the Legislature on or before
the last day of each calendar year.
(4) The Supreme Court of Appeals may, after consultation with
the Secretary of the Department of Health and Human Resources and
local mental health services consumers and providers during the
pilot program period, further modify any specific modified
procedures that are implemented:
Provided, That the modified
procedures must be consistent with the requirements of this chapter
and this section.
(5) If the Secretary of the Department of Health and Human
Resources determines that the use of any modified procedure in one or more judicial circuits is placing an unacceptable additional
burden upon state mental health resources, the Supreme Court of
Appeals shall, in consultation with the secretary, modify the
procedures used in such a fashion as will address the concerns of
the secretary, consistent with the requirements of this chapter.
(6) The provisions of this section and the modified procedures
thereby authorized shall cease to have any force and effect on
June
30, 2010 June 30, 2012, unless extended by an act of the
Legislature prior to that date.
(b) (1) The modified procedures shall authorize that a
verified petition seeking a treatment compliance order may be filed
by any person alleging:
(A) That an individual, on two or more occasions within a
twenty-four month period prior to the filing of the petition, as a
result of mental illness, has been hospitalized pursuant to the
provisions of this chapter; or that the individual has been
convicted of one or more crimes of violence against the person
within a twenty-four month period prior to the filing of the
petition and the individual's failure to take prescribed medication
or follow another prescribed regimen to treat a mental illness was
a significant aggravating or contributing factor in the
circumstances surrounding the crime;
(B) That the individual?s previous hospitalizations due to
mental illness or the individual's crime of violence occurred after
or as a result of the individual?s failure to take medication or other treatment as prescribed by a physician to treat the
individual?s mental illness; and
(C) That the individual, in the absence of a court order
requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or follow other regimen or treatment as prescribed
is likely to lead to further instances in the reasonably near
future in which the individual becomes likely to cause serious harm
or commit a crime of violence against the person.
(2)
(A) Upon the filing of a petition seeking a treatment
compliance order and the petition?s review by a circuit judge or
mental hygiene commissioner, counsel shall be appointed for the
individual if the individual does not already have counsel and a
copy of the petition and all supporting evidence shall be furnished
to the individual and their counsel.
(B) If the circuit judge or mental hygiene commissioner
determines on the basis of the petition that it is necessary to
protect the individual or to secure their examination, a detention
order may be entered ordering that the individual be taken into
custody and examined by a psychiatrist or licensed psychologist.
(C) A hearing on the allegations in the petition, which may be
combined with a hearing on a probable cause petition conducted
pursuant to the provisions of section two of this article or a
final commitment hearing conducted pursuant to the provisions of
section four of this article, shall be held before a circuit judge or mental hygiene commissioner.
(D) If the individual is taken into custody and remains in
custody as a result of a detention order, the hearing shall be held
within forty-eight hours of the time that the individual is taken
into custody.
(3) If the allegations in the petition seeking a treatment
compliance order are proved by the evidence adduced at the hearing,
which must include expert testimony by a psychiatrist or licensed
psychologist, the circuit judge or mental hygiene commissioner may
enter a treatment compliance order for a period not to exceed six
months upon making the following findings:
(A) That the individual is eighteen years of age or older;
(B) That on two or more occasions within a twenty-four month
period prior to the filing of the petition an individual, as a
result of mental illness, has been hospitalized pursuant to the
provisions of this chapter; or that on at least one occasion within
a twenty-four month period prior to the filing of the petition has
been convicted of a crime of violence against any person;
(C) That the individual's previous hospitalizations due to
mental illness occurred as a result of the individual's failure to
take prescribed medication or follow a regimen or course of
treatment as prescribed by a physician or psychiatrist to treat the
individual's mental illness; or that the individual has been
convicted for crimes of violence against any person and the
individual's failure to take medication or follow a prescribed regimen or course of treatment of the individual's mental illness
was a significant aggravating or contributing factor in the
commission of the crime;
(D) That a psychiatrist or licensed psychologist who has
personally examined the individual within the preceding twenty-four
months has issued a written opinion that the individual, without
the aid of the medication or other prescribed treatment, is likely
to cause serious harm to himself or herself or to others;
(E) That the individual, in the absence of a court order
requiring him or her to take medication or other treatment as
prescribed, is unlikely to do so and that his or her failure to
take medication or other treatment as prescribed is likely to lead
to further instances in the reasonably near future in which the
individual becomes likely to cause serious harm or commit a crime
of violence against any person;
(F) That, where necessary, a responsible entity or individual
is available to assist and monitor the individual's compliance with
an order requiring the individual to take the medication or follow
other prescribed regimen or course of treatment;
(G) That the individual can obtain and take the prescribed
medication or follow other prescribed regimen or course of
treatment without undue financial or other hardship; and
(H) That, if necessary, a medical provider is available to
assess the individual within forty-eight hours of the entry of the
treatment compliance order.
(4) The order may require an individual to take medication and
treatment as prescribed and if appropriate to attend scheduled
medication and treatment-related appointments:
Provided, That a
treatment compliance order shall be subject to termination or
modification by a circuit judge or mental hygiene commissioner if
a petition is filed seeking termination or modification of the
order and it is shown in a hearing on the petition that there has
been a material change in the circumstances that led to the entry
of the original order that justifies the order?s modification or
termination:
Provided, however, That a treatment compliance order
may be extended by a circuit judge or mental hygiene commissioner
for additional periods of time not to exceed six months, upon the
filing of a petition seeking an extension and after a hearing on
the petition or upon the agreement of the individual.
(5) (A) After the entry of a treatment compliance order in
accordance with the provisions of subdivisions (3) and (4),
subsection (b) of this section, if a verified petition is filed
alleging that an individual has not complied with the terms of a
medication and treatment compliance order and if a circuit judge or
mental hygiene commissioner determines from the petition and any
supporting evidence that there is probable cause to believe that
the allegations in the petition are true, counsel shall be
appointed for the individual and a copy of the petition and all
supporting evidence shall be furnished to the individual and his or
her counsel.
(B) If the circuit judge or mental hygiene commissioner
considers it necessary to protect the individual or to secure his
or her examination, a detention order may be entered to require
that the individual be examined by a psychiatrist or psychologist.
(C) A hearing on the allegations in the petition, which may be
combined with a hearing on a probable cause petition conducted
pursuant to section two of this article or a final commitment
hearing conducted pursuant to section four of this article, shall
be held before a circuit judge or mental hygiene commissioner. If
the individual is taken and remains in custody as a result of a
detention order, the hearing shall be held within forty-eight hours
of the time that the individual is taken into custody.
(B) (6)(A) At a hearing on any petition filed pursuant to the
provisions of
paragraph (A), subdivision (5), subsection (b) of
this section, the circuit judge or mental hygiene commissioner
shall determine whether the individual has complied with the terms
of the medication and treatment compliance order.
(B) If the individual has complied with the order, the
petition shall be dismissed:
Provided, That if the evidence
presented to the circuit judge or mental hygiene commissioner shows
that the individual has complied with the terms of the existing
order, but the individual's prescribed medication, dosage or course
of treatment needs to be modified, then the newly modified
medication and treatment prescribed by a psychiatrist who
personally examined the individual may be properly incorporated into a modified order.
(C) If the order has not been complied with, the circuit judge
or mental hygiene commissioner, after inquiring into the reasons
for noncompliance and whether any aspects of the order should be
modified, may continue the individual upon the terms of the
original order and direct the individual to comply with the order
or may modify the order in light of the evidence presented at the
hearing.
(D) If the evidence shows that the individual at the time of
the hearing is likely to cause serious harm to himself, herself or
others as a result of the individual?s mental illness, the circuit
judge or mental hygiene commissioner may convert the proceeding
into a probable cause proceeding and enter a probable cause order
directing the involuntary admission of the individual to a mental
health facility for examination and treatment:
Provided, however,
That all applicable due process and hearing requirements of
contained in sections two and three of this article have been fully
satisfied.
(c)(1) The modified procedures may authorize that upon the
certification of a qualified mental health professional, as
described in subdivision (2) of this subsection, that there is
probable cause to believe that an individual who has been
hospitalized two or more times in the previous twenty-four months
because of mental illness is likely to cause serious harm to
himself, herself or to others as a result of the mental illness if not immediately restrained and that the best interests of the
individual would be served by immediate hospitalization, a circuit
judge, mental hygiene commissioner or designated magistrate may
enter a temporary probable cause order directing the involuntary
hospitalization of the individual at a mental health facility for
immediate examination and treatment.
(2) The modified procedures may authorize the chief judge of
a judicial circuit, or circuit judge if there is no chief judge, to
enter orders authorizing specific psychiatrists or licensed
psychologists, whose qualifications and training have been reviewed
and approved by the Supreme Court of Appeals, to issue
certifications that authorize and direct the involuntary admission
of an individual subject to the provisions of this section on a
temporary probable cause basis to a mental health facility for
examination and treatment:
Provided, That the authorized
psychiatrist or licensed psychologist
must shall conclude and
certify based on personal observation prior to certification that
the individual is mentally ill and, because of such mental illness,
is imminently likely to cause serious harm to himself or herself or
to others if not immediately restrained and promotion of the best
interests of the individual requires immediate hospitalization.
Immediately upon certification, the psychiatrist or licensed
psychologist shall provide notice of the certification to a circuit
judge, mental hygiene commissioner or designated magistrate in the
county where the individual resides.
(3) No involuntary hospitalization pursuant to a temporary
probable cause determination issued pursuant to the provisions of
this section shall continue in effect for more than forty-eight
hours without the filing of a petition for involuntary
hospitalization and the occurrence of a probable cause hearing
before a circuit judge, mental hygiene commissioner or designated
magistrate. If at any time the chief medical officer of the mental
health facility to which the individual is admitted determines that
the individual is not likely to cause serious harm as a result of
mental illness, the chief medical officer shall discharge the
individual and immediately forward a copy of the individual?s
discharge to the circuit judge, mental hygiene commissioner or
designated magistrate.
NOTE: The purpose of this bill is to extend the termination
date of the modified mental hygiene procedures pilot project until
June 30, 2012.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.