ENROLLED
COMMITTEE SUBSTITUTE
FOR
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 191
(Senators Kessler, Hunter, Foster, Sharpe, Unger and Sprouse,
original sponsors)
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[Passed April 9, 2005; in effect from passage.]
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AN ACT to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §27-5-11, relating to mental hygiene
proceedings generally; authorizing implementation of a modified mental hygiene
procedure in limited number of counties relating to persons who are
medication-dependent and who have had at least one prior conviction for a
crime of violence against the person within the previous twenty-four months
related to mental illness or two prior hospitalizations within the previous
twenty-four months due to mental illness; directing cooperation of Secretary
of Department of Health and Human Resources and Supreme Court of Appeals in
developing modified procedures; authorizing use of treatment compliance orders
in certain judicial circuits; authorizing hospitalization and treatment for up
to forty-eight hours prior to probable cause hearing for medication-dependent
individuals who meet requirements; reporting requirements; expiration date;
time limits; requirements of petitions; procedures; required findings;
hearings; and forms required for procedures.
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. 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) 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 the first day of July,
two thousand six, modified mental hygiene procedures that are consistent with
the requirements set forth in this section. 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. 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. 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. 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. The provisions of this section and the modified procedures
thereby authorized shall cease to have any force and effect on the thirtieth day
of June, two thousand ten, 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 24- 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 24-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)
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. 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. 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. 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 24-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 24-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. 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. 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) 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. 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. 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. 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, 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 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.