SB 315 Text

Senate Bill No. 315
(By Senators Hunter, Snyder, Fanning, Kessler, Ross, Sharpe, Rowe, and Tomblin (Mr. President)
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[Introduced January 29, 2004; referred to the Committee on Health and Human Resources.]
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A BILL to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §27-5-11, relating to creating a mental hygiene pilot program.

Be it enacted by the Legislature of West Virginia:
That the code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §27-5-11, to read as follows:

ARTICLE 5. INVOLUNTARY HOSPITALIZATION.

§27-5-11. Supreme court of appeals, in collaboration with others, to institute mental hygiene pilot program.

(a) In connection with mental hygiene proceedings under this chapter, the supreme court of appeals shall, in consultation with the secretary of the department of health and human resources and local health care providers, prescribe by administrative order, prepare appropriate forms relating to, and implement in no less than four nor more than six judicial circuits for a period of five years beginning on first day of January, two thousand five, a pilot mental hygiene program using modified procedures that are consistent with the requirements set forth in this section. The supreme court of appeals shall annually prepare a report on and evaluation of the pilot program and procedures that are implemented pursuant to this section and shall transmit the report and evaluation annually to the Legislature on or before the last day of each calender year. The court may, during the pilot program period, subject to and consistent with the requirements of this section, modify the procedures that are implemented during the trial period. In all proceedings conducted under the provisions of this section, individuals who are the subject of petitions for involuntary hospitalization have the right to appointed counsel and the right to call witnesses. All orders issued under the provisions of this section may be immediately appealed and are subject to the right of habeas corpus. The judicial circuits selected for the modified procedures shall be circuits in which the supreme court of appeals determines in consultation with the secretary of the department of health and human resources and local health care providers that adequate resources are available to carry out the procedures, consistent with the purpose of this chapter that persons who are, because of mental illness or addiction, likely to cause serious harm, as defined in section twelve, article one of this chapter, shall be afforded the least restrictive treatment available.
(1) (A) In circuits where the procedures are implemented, the circuit judges, the mental hygiene commissioners, and magistrates who are designated by the chief judge of the judicial circuit or circuit judge, if there is no chief judge, shall have authority to enter temporary probable cause orders upon an ex parte showing to the judge, commissioner, or magistrate that there is substantial evidence establishing probable cause to believe that an individual is, because of mental illness or addiction, likely to cause serious harm; and
(B) No hospitalization pursuant to a temporary probable cause order shall continue in effect for more than one hundred twenty hours without the occurrence of a probable cause hearing before a circuit judge, mental hygiene commissioner or designated magistrate, and no person may be hospitalized or treated pursuant to any temporary probable cause order if the medical authorities at the mental health facility to which the person is committed determine that the hospitalization or treatment is unwarranted; and (C) In those judicial circuits where the procedures are implemented where the supreme court of appeals determines in consultation with the secretary of the department of health and human resources and local health care providers that local mental health facilities are available and appropriate to house and treat individuals who, because of mental illness or addiction, are likely to cause serious harm, the chief judge of the judicial circuit or circuit judge, if there is no chief judge, may enter orders authorizing specific physicians or licensed clinical psychologists whose qualifications have been reviewed by the court to commit an individual to a mental health facility if the authorized physician or psychologist concludes based on personal observation of the individual that an individual is, because of mental illness or addiction, likely to cause serious harm: Provided, That the authorized physician or psychologist must, as soon as possible after a commitment, contact a circuit judge, mental hygiene commissioner or designated magistrate who is authorized to enter ex parte temporary probable cause orders and obtain approval of the commitment in a temporary probable cause order. If the approval is not given, the individual shall be released from the facility.
(2) In circuits where the procedures are implemented, a verified petition or verified modification to a petition may be filed alleging:
(A) That an individual has been involuntarily hospitalized three or more times within a twenty-four-month period due to mental illness or addiction;
(B) That these multiple involuntary hospitalizations are a result of the individual's unreasonable failure to take prescribed medication that would if taken avert symptoms of the individual's mental illness or addiction that make the individual likely to cause serious harm;
(C) That the individual has, because of his or her mental illness or addiction, a substantially diminished understanding and appreciation of the need to take medically prescribed medication to avert the symptoms of the individual's mental illness or addiction that have made the individual likely to cause serious harm;
(D) That a court order requiring the individual to take such prescribed medication would be, if successful in securing the individual's compliance in taking prescribed medication, a less restrictive alternative than future involuntary hospitalizations which are likely to occur in the absence of such an order and that the entry of such an order is reasonably necessary to avoid otherwise likely episodes in which the individual is likely to cause serious harm; and
(E) That a community mental health center, health-care provider, law-enforcement agency, social work agency or responsible individual is willing and able to monitor the individual's compliance with a court order requiring the individual to take prescribed medication and can provide reasonable assurance that the individual can obtain the prescribed medication without undue financial or other hardship.
(3) (A) Upon the filing of a petition or modification under subsection (a), subdivision (2) of this section 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 or modification and all supporting evidence shall be furnished to the individual and their counsel. If the circuit judge or mental hygiene commissioner considers it necessary, a detention order may be entered for the individual that may order that the individual be examined by a psychiatrist or licensed clinical psychologist. A hearing on the allegations in the petition or modification shall be promptly held before a circuit judge or mental hygiene commissioner.
(B) If the allegations in the petition or modification filed pursuant to subsection (a), subdivision (2) of this section, are proved by clear and convincing evidence, which must include expert testimony by a psychiatrist or licensed clinical psychologist, the judicial officer may enter an order for a period of time established by the medical evidence in the hearing, but not to exceed two years, requiring an individual to take prescribed medication, and, if necessary, to attend scheduled medication-related appointments: Provided, That an order shall be subject to termination or modification by a circuit judge or mental hygiene commissioner at any time 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 removes the necessity for the order to avert the individual's likelihood of causing serious harm.
(4) (A) If a verified petition is filed alleging that an individual is not in compliance with an order entered pursuant to subparagraph (B), subdivision (3), subsection (a) of this section, the petition shall be reviewed by a circuit judge or mental hygiene commissioner, and if the 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 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 his or her counsel. A detention order may thereafter be entered for the individual that may order that the individual be examined by a psychiatrist or licensed clinical psychologist and a hearing on the allegations in the petition shall be held before a circuit judge or mental hygiene commissioner.
(B) At a hearing on the petition, the circuit judge or mental hygiene commissioner shall inquire into the circumstances that have led to the filing of the petition, while affording the individual and his or her counsel the opportunity to explain the reasons for any failure to comply with an order requiring the person to take prescribed medication. The court shall also inquire as to whether any aspects of the original order should be modified.
(C) If the allegations in the petition regarding non- compliance with the court's previous order are proven, the circuit judge or mental hygiene commissioner may modify the previous order, order involuntary hospitalization if the individual meets the standard of likelihood of causing serious harm, or continue the individual upon the terms of the original order.
(5) The supreme court of appeals in consultation with the secretary of the department of health and human resources and local health care providers may implement other procedures relating to detention, examination, certification, transportation, determination of probable cause, payment for services and placement in connection with mental hygiene proceedings that are not inconsistent with the requirements of this article.
(b) Notwithstanding any other provisions of this chapter, in all mental hygiene proceedings under this article, probable cause hearings may be held in the county where a person is hospitalized, judicial officers may employ videoconferencing and telephonic technology in making probable cause and final commitment determinations, and persons hospitalized for addiction may be ordered to be involuntarily hospitalized only until detoxification is accomplished.

NOTE: The purpose of this bill is to create a mental hygiene pilot program, to be implemented in four to six judicial circuits for a period of five years. The primary focus of the pilot project is to reduce the cost of the hearing process involved in involuntary hospitalizations, while implementing judicial measures intended to more successfully address problems associated with addiction as well as the failure or refusal by individuals to take prescribed medication, which causes these individuals to become repeatedly involved in the current mental hygiene framework.

This section is new; therefore, strike-throughs and underscoring have been omitted.

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