Senate Bill No. 551
(By Senators Prezioso, Kessler and Hunter)
____________
[Introduced February 10, 2006; referred to the Committee
on Health and Human Resources; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact §27-1-12 of the Code of West Virginia,
1931, as amended; and to amend and reenact §27-5-2, §27-5-3
and §27-5-4 of said code, all relating to institution of
proceedings for involuntary custody for examination;
addressing procedures regarding custody, probable cause and
other hearings; examination of individuals; admission under
involuntary hospitalization for examination; release;
institution of final commitment proceedings; other hearing
requirements; and defining terms.
Be it enacted by the Legislature of West Virginia:
That §27-1-12 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §27-5-2, §27-5-3 and §27-5-4 of
said code be amended and reenacted, all to read as follows:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§27-1-12. Likely to cause serious harm.
(a) "Likely to cause serious harm" means an individual is
exhibiting behaviors consistent with a medically recognized mental
disorder or addiction, excluding, however, disorders that are
manifested only through antisocial or illegal behavior and as a
result of the mental disorder or addiction:
(1) The individual has inflicted or attempted to inflict
bodily harm on another;
or
(2) The individual, by threat or action, has placed others in
reasonable fear of physical harm to themselves;
or
(3) The individual, by action or inaction,
has presented
presents a danger to
himself, herself or others in his or her care;
or
(4) The individual has threatened or attempted suicide or
serious bodily harm to himself or herself; or
(5) The individual is behaving in
such a manner as to indicate
that he or she is unable, without supervision and the assistance of
others, to satisfy his or her need for nourishment, medical care,
shelter or self-protection and safety so that there is a
substantial likelihood that death, serious bodily injury, serious
physical debilitation, serious mental debilitation or
life-threatening disease will ensue unless adequate treatment is
afforded.
(b) In making the "likely to cause serious harm"
determination, judicial, medical, psychological and other
evaluators and decisionmakers should utilize all available information, including psychosocial, medical, hospitalization and
psychiatric information and including the circumstances of any
previous commitments or convalescent or conditional releases that
are relevant to a current situation, in addition to the
individual's current overt behavior. The rules of evidence shall
be followed in making the "likely to cause serious harm"
determination except that hearsay evidence not admissible
thereunder may be admitted, except where precluded by statute, if
it is of a type commonly relied upon by reasonably prudent persons
in the conduct of their affairs.
ARTICLE 5. INVOLUNTARY HOSPITALIZATION.
§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
(1) the
individual to be examined is addicted, as defined in section
eleven, article one of this chapter, or
(2) The individual is
mentally ill and, because of his or her
addiction or mental
illness, the individual is likely to cause serious harm to himself,
or herself or to others if allowed to remain at liberty while
awaiting an examination and certification by a physician or
psychologist.
Notwithstanding any language in
this subsection
(a) of this
section 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.
(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 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
for in
subsection (g) of this section for the purpose of an examination of
the individual by a physician, psychologist, a licensed independent
clinical social worker practicing in compliance with article
thirty, chapter thirty of this code or advanced nurse practitioner
with psychiatric certification practicing in compliance with
article seven of said chapter:
Provided, That a licensed
independent clinical social worker 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,
said the order having found that the
licensed independent clinical social worker or advanced nurse
practitioner with psychiatric certification has particularized
expertise in the areas of mental health and mental hygiene
or
addiction sufficient to make
such 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 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 twenty-four hours after the person to be examined is taken
into custody rather than forthwith 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
shall 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
said 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
such treatment
as
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 independent clinical social worker or
advanced nurse practitioner with psychiatric certification has within the preceding seventy-two hours performed the examination
required by the provisions of this subdivision, 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,
subsection (r), section four of this article applies regarding
payment by the county commission for examinations at hearings. If
the examination reveals that the individual is not mentally ill or
addicted, or is determined to be mentally ill
or addicted 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 absent a finding of professional negligence
such the
examiner
shall not be is not civilly liable for the rendering of
such 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 forty-eight 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
for in section twelve, article
one of this chapter. At the conclusion of the hearing, the
magistrate, mental hygiene commissioner or circuit court judge
shall find and enter an order stating whether or not there is
probable cause to believe that the individual, as a result of
mental illness
or addiction, is likely to cause serious harm to
himself or herself or to others.
or is addicted.
(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 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.
(g) (h) The magistrate, mental hygiene commissioner or circuit
court judge at a probable cause hearing or at a final commitment
hearing held pursuant to the provisions of section four of this
article finds that the individual, as a result of mental illness
or
addiction, is likely to cause serious harm to himself, herself or
others
or is addicted and because of mental illness or addiction
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. 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
remains likely to cause serious harm to himself, herself or others,
or remains addicted the entry of an order requiring admission under
involuntary hospitalization pursuant to the provisions of section
three of this article 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, however, 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
may affect
affects the appellate and habeas corpus rights of any individual
subject to any commitment order.
(h) (i) If the certifying physician or psychologist determines
that a person requires involuntary hospitalization for an addiction
to a substance which, due to the degree of addiction, 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.
(i) The Supreme Court of Appeals and the Secretary of the
Department of Health and Human Resources shall collect data and
report to the Legislature at its regular annual sessions in two
thousand three and two thousand four of the effects of the changes
made in the mental hygiene judicial process along with any
recommendations which they may deem proper for further revision or
implementation in order to improve the administration and
functioning of the mental hygiene system utilized in this State, to
serve the ends of due process and justice in accordance with the
rights and privileges guaranteed to all citizens, to promote a more
effective, humane and efficient system and to promote the
development of good mental health.
(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.
§27-5-3. 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 section two of this article and upon
certification by a physician, psychologist, licensed independent
clinical social worker practicing in compliance with the provisions
of article thirty, chapter thirty of this code or an advanced nurse
practitioner with psychiatric certification practicing in
compliance with article seven of said chapter that he or she has
examined the individual and is of the opinion that the individual
is mentally ill
or addicted and, because of such mental illness
or
addiction, is likely to cause serious harm to himself,
or herself
or to others if not immediately restrained:
or is addicted
Provided, That the opinions offered by an independent clinical
social worker or an advanced nurse practitioner with psychiatric
certification must be within their particular areas of expertise,
as recognized by the order of the authorizing court.
(b)
Three-day time limitation on examination. -- If
said the examination does not take place within three days from the date the
individual is taken into custody, the individual shall be released.
If the examination reveals that the individual is not mentally ill
or addicted, the individual shall be released.
(c)
Three-day time limitation on certification. -- The
certification required in subsection (a) of this section shall be
valid for three days. Any individual with respect to whom
such the
certification has been issued may not be admitted on the basis
thereof of the certification at any time after the expiration of
three days from the date of
such 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
thereof of the examination and the facts upon which the conclusion
that involuntary commitment is necessary is based.
(e)
Notice requirements. -- When an individual is admitted to
a mental health facility pursuant to the provisions of this
section, the chief medical officer
thereof 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
be no such is no spouse
and are no parents or
guardians, to one of the individual's adult next of kin
Provided,
That such if the next of kin
shall not be 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.
Such The notices other than to the community mental
health facility shall be in writing and shall be transmitted to
such the person or persons at his, her or their last known address
by certified
or registered mail, return receipt requested.
(f)
Five-day time limitation for examination and certification
at mental health facility. -- After the individual's admission to
a mental health facility, he or she may not be detained more than
five days, excluding Sundays and holidays, unless, within
such the
period, the individual is examined by a staff physician and
such
the physician certifies that in his or her opinion the patient is
mentally ill
or addicted and is likely to injure himself,
or
herself or others
or will remain addicted if allowed to be at
liberty.
(g)
Fifteen-day time limitation for institution of final
commitment proceedings. -- If, in the opinion of the examining
physician, the patient is mentally ill
or addicted and because of
such the mental illness
or addiction is likely to injure himself,
or herself or others
or will continue to abuse a substance to which
he or she is addicted if allowed to be at liberty, the chief
medical officer shall, within fifteen days from the date of
admission, institute final commitment proceedings as provided in
section four of this article. If
such the proceedings are not
instituted within such fifteen-day period, the patient shall be
immediately released. After the request for hearing is filed, the
hearing
shall may not be canceled on the basis that the individual has become a voluntary patient unless the mental hygiene
commissioner concurs in the motion for cancellation of the hearing.
(h)
Thirty-day time limitation for conclusion of all
proceedings. -- If all proceedings as provided in articles three
and four of this chapter are not completed within thirty days from
the date of institution of
such the proceedings, the patient shall
be immediately released.
§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
wherein such 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
said 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 and the certificate or
affidavit is hereinafter provided with the clerk of the circuit
court or mental hygiene commissioner of the county of which the
individual is a resident, or where he or she may be found, or the
county of the 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
such 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,
or herself or to others
or is addicted and the grounds for
such the belief, stating in detail the recent overt acts upon which
such the belief is based.
(3) The written application, certificate, affidavit and any
warrants issued pursuant thereto, including any papers and
documents related thereto, filed with any circuit court or mental
hygiene commissioner for the involuntary hospitalization of any
individual
shall not be are not open to inspection by any person
other than the individual, except upon authorization of the
individual or his or her legal representative or by order of the circuit court, and
such the records may not be published except
upon the authorization of the individual or his or her legal
representative.
(4) Applications
shall 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
such the mental illness
or addiction the individual is
likely to cause serious harm to himself,
or herself or to others if
he or she is allowed to remain at liberty
or is addicted and
therefore he or she should be hospitalized, stating in detail the
recent overt acts upon which
such 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
Provided, That such if
the person 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
such the individual's residence; and
(6) to the prosecuting attorney of the county in which the hearing
is to be held.
Such 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 the nature of the charges
against the individual; the facts underlying and supporting the
application of involuntary commitment; the right to have counsel
appointed; the right to consult with and be represented by counsel
at every stage of the proceedings; and 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)
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,
or herself or to others.
or being
addicted.
(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
such 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
such 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,
or herself or to others
or is addicted
then the proceedings for involuntary hospitalization shall be
dismissed.
(g)
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
such 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
shall have has the right to have an
examination by an independent expert of his or her choice and
testimony from
such the expert as a medical witness on his or her
behalf. The cost of
such the independent expert shall be borne by
the individual unless he or she is indigent.
(4) The individual
shall may not be compelled to be a witness
against himself or herself.
(h)
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 of the individual.
(2) Any counsel representing an individual
shall be 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)
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
shall be
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 psychologist or physician testifying shall
bring all records pertaining to
said the individual to
said the
hearing.
Such 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
the same it is requested for the purpose of further
proceedings. In any case
wherein 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)
Requisite findings by the court. --
(1) Upon completion of the final commitment hearing, and the
evidence presented
therein in the hearing, the circuit court or
mental hygiene commissioner shall make findings as to whether or
not the individual is mentally ill
or addicted and because of
illness
or addiction is likely to cause serious harm to himself,
or
herself or to others if allowed to remain at liberty
or is addicted
and is a resident of the county in which the hearing is held or
currently is a patient at a mental health facility in
such the
county.
(2) The circuit court or mental hygiene commissioner shall
also make a finding as to whether or not 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
shall be is on the person or persons seeking the commitment of the individual.
(3) 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)
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
shall 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
shall expire 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)
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
such
the illness
or addiction likely to cause serious harm to himself,
or herself or to others if allowed to remain at liberty, the
proceedings shall be dismissed.
(m)
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
thereof of the
order forward a certified copy of
same the order to the clerk of the circuit court of the county of which the individual is a
resident.
(n)
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
such 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
such the individual is a
resident, who shall immediately present
such the transcript to the
circuit court or mental hygiene commissioner of
said 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
such the transcript that
such 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
said the order promptly.
(o)
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
such the responsible person a bond in an amount to be
determined by the circuit court with condition to restrain and take
proper care of
such the individual until further order of the
court.
(p)
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)
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
such 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
such 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)
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
such the
court reporter fees
as 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.
___________
(NOTE: The purpose of this bill is to restrict involuntary
commitment for addicted persons to those who, as a result of their
addiction, are likely to cause serious harm to themselves or
others. The bill also modifies the process for the involuntary
commitment of these persons.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would
be added.)