H. B. 3160
(By Delegate Walters)
[Introduced January 9, 2008; referred to the
Committee on Health and Human Resources then the Judiciary.]
A BILL to amend and reenact §27-5-2 of the Code of West Virginia,
1931, as amended, relating to involuntary hospitalization;
allowing certain physician assistants to conduct involuntary
custody examinations to determine if a person may be
involuntarily hospitalized for mental illness or addiction.
Be it enacted by the Legislature of West Virginia:
That §27-5-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
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 the individual to be examined is addicted, as defined in section eleven, article one
of this chapter, or is mentally ill and, because of his or her
addiction 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.
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.
(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 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
or a physician assistant practicing
in compliance with article three, chapter thirty of this code, or
a physician assistant practicing in compliance with article
fourteen-a, chapter thirty of this code: Provided, That a licensed
independent clinical social worker
or a physician 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 independent clinical social worker
or physician
assistant or advanced nurse practitioner with psychiatric
certification has particularized expertise in the areas of mental
health and mental hygiene or addiction 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 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 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
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 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 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 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.
(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.
(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 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, 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 affects the appellate and habeas corpus
rights of any individual subject to any commitment order.
(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.
(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.
NOTE: The purpose of this bill is to add physician assistants
to the list of licensed healthcare workers who may conduct
involuntary custody examinations to determine if a person may be
involuntarily hospitalized for mental illness or addiction.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.