- When not the subject of a pending commitment action, what are the prerequisites for an individual to receive voluntarily treatment?
§27-4-1. “The chief medical
officer of a mental health facility… shall admit for diagnosis, care and
treatment any individual:
(a) Over eighteen
years of age who is mentally ill, mentally retarded or addicted or who has
manifested symptoms of mental illness, mental retardation or addiction and who
makes application for hospitalization…”
§27-1-2."Mental illness" means a
manifestation in a person of significantly impaired capacity to maintain
acceptable levels of functioning in the areas of intellect, emotion and
physical well-being.
- Conditions necessary for emergency treatment.
§27-5-2(b)(5)
“probable cause that individual, because of mental illness, is likely to cause
serious harm…”
§27-1-12.
“ "Likely to cause serious harm" refers to a person who has:
(1) A substantial tendency to physically
harm himself which is manifested by threats of or attempts at suicide or
serious bodily harm or other conduct, either active or passive, which demonstrates
that he is dangerous to himself; or
(2) A substantial
tendency to physically harm other persons which is manifested by homicidal or
other violent behavior which places others in reasonable fear of serious
physical harm; or
(3) A complete
inability to care for himself by reason of mental retardation; or
(4) Become
incapacitated as defined in section sixteen of this article.”
§27-1-16. “"Incapacitated" means a level of
intoxication at which an individual is incapable of physical or mental control
of himself, thus rendering him dangerous to himself or others or unable to
protect himself from hazard.”
- Is mental illness/disorder defined?
§27-1-2. “"Mental illness" means a manifestation
in a person of significantly impaired capacity to maintain acceptable levels of
functioning in the areas of intellect, emotion and physical well-being.”
- Maximum duration of emergency treatment before a judicial hearing must be held.
§27-5-2(b)(4) 24 hours
- Can a potential committee avoid a hearing determination by opting to voluntarily undergo treatment and, if so, what is the minimum time he or she must then spend in treatment?
No, the hearing will continue:
§27-5-3 (g) “[T]he chief medical
officer shall, within ten days from the date of admission, institute final
commitment proceedings as provided in section four of this article. If such
proceedings are not instituted within such ten-day period, the patient shall be
immediately released. After the request for hearing is filed, the hearing
shall 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.”
- Are there any requirements that a potential committee be capable of deciding to voluntarily undergo treatment?
No, but §27-4-4(d) does mandate that “no voluntary inpatient shall be subjected to
any course of treatment without such patient’s consent.”
- Who may petition for an individual to receive assisted inpatient care?
§27-5-2(a) “Any adult person”
- Required elements of a petition.
§27-5-2 (c)(1) “The person making
such 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, mental retardation or
addiction, the individual is likely to cause serious harm to himself or herself
or to others and the grounds for such belief, stating in detail the recent
overt acts upon which such belief is based: Provided, That no such statement of
recent overt acts need be made when the applicant alleges the individual is
likely to cause serious harm as a result of having a complete inability to care
for himself or herself by reason of mental retardation.”
(d)(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, mentally retarded or addicted and that because of such mental
illness… 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 and therefore he or
she should be hospitalized, stating in detail the recent overt acts upon which
such conclusion is based: Provided, That no such statement of recent overt acts
need be made when the applicant alleges the individual is likely to cause
serious harm as a result of having a complete inability to care for himself or
herself by reason of mental retardation.
(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.”
- Is there a penalty for filing an unfounded petition?
Yes there is a penalty for both a physician who
makes an unfounded medical report and for anyone who files an unfounded
petition:
§27-12-1. “Any physician who shall sign a
certificate respecting the mental condition of any person without having made
the examination as provided for by this chapter, or shall make any statement in
any such certificate maliciously for the purpose of having such person declared
mentally ill… and any person who shall maliciously make application to any
circuit court or mental hygiene commission for the purpose of having another
person declared mentally ill…shall be guilty of a misdemeanor, and, upon
conviction thereof, shall be fined not exceeding five hundred dollars, or
imprisoned not exceeding one year, or both fined and imprisoned at the discretion
of the court.”
- Participation of other individuals in commitment hearing (i.e. notice, a right to be heard or standing for family members, legal guardians, doctors, etc.).
For Notice:
§27-5-3(e) “When an individual is
admitted to a mental health facility pursuant to the provisions of this
section, the chief medical officer thereof 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 spouse, parents or
guardians, to one of the individual's adult next of kin: Provided, That such
next of kin shall not be the applicant.”
To Present Evidence:
§27-5-4(i) “evidence from all interested parties”
- Length of initial term of assisted inpatient care.
§27-5-4(k)(1) “indeterminate period or temporary
observation period not exceeding six months”
§27-5-4(k)(4) “An order for indeterminate period shall expire at the expiration of two years…”
- Conditions necessary for judicially ordered inpatient care (exact wording of key portions of applicable statute desired).
§27-5-4(j)(1) “individual is
mentally ill and likely to cause serious harm to self or others”
§27-1-12.
“"Likely to cause serious harm" refers to a person who has:
(1) A substantial tendency to physically harm himself which is manifested by
threats of or attempts at suicide or serious bodily harm or other conduct,
either active or passive, which demonstrates that he is dangerous to himself;
or
(2) A substantial
tendency to physically harm other persons which is manifested by homicidal or
other violent behavior which places others in reasonable fear of serious
physical harm; or
(3) A complete
inability to care for himself by reason of mental retardation; or
(4) Become incapacitated
as defined in section sixteen of this article.”
§27-1-16.
“"Incapacitated" means a level of intoxication at which an individual
is incapable of physical or mental control of himself, thus rendering him
dangerous to himself or others or unable to protect himself from hazard.
- Evidentiary standard under which inpatient care criteria are judged (two most common are “beyond a reasonable doubt” and “clear and convincing evidence”).
§27-5-4(j)(3)
“clear, cogent and convincing proof”
- Is there a least restrictive treatment requirement?
Yes. §27-5-3(a) “The chief medical
officer of said mental health facility may, with the approval of the secretary
of health and human resources, transfer such individual [who has been examined
and needs immediate restraint] to a state hospital or to another similar type
of mental health facility after determining that no less restrictive
treatment alternative is suitable or available…”
§27-5-4(j)(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 on the person or persons seeking the commitment of the individual.”
Also See: §27-2A-1(4) “No person who can be treated as an
outpatient at a community mental health center shall be admitted involuntarily
into a state hospital.”
- Is there a confidentiality exception for family members of committees and/or individuals undergoing emergency evaluations?
No. §27-5-9(e) “…a patient’s clinical record shall be confidential
and shall not be released…”
Also see: §27-3-1 “the procedure for disclosure of
confidential information makes no exception for family members.”
- Are advance directives or durable powers of attorney addressed and, if so, in what way?
Not in the mental health code but medical power of
attorney provides some discretion:
§16-30A-4 (d) “A representative shall
have the authority to give, withhold or withdraw informed consent to the health
care of the principal, which authority shall include, but not be limited to,
the following, unless the principal expressly provides to the contrary:
(1) Making decisions relating to medical treatment, surgical treatment, nursing
care, medication, hospitalization, care and treatment in a nursing home or
other facility, and home health care…”
- Is there a separate proceeding necessary to abrogate a committee’s right to refuse treatment?
Not specified.
- Does the treating hospital and/or physician have discretion to release individuals before the end of their assisted inpatient care periods?
Yes. §27-7-1 “[w]henever it is determined that
the conditions justifying involuntary hospitalization no longer exist or that
the individual can no longer benefit from hospitalization, the chief medical
officer shall discharge the patient.”
- Individual(s) who may decide to initiate new periods of assisted treatment.
For Period Beyond Temporary
Observation:
§27-5-4(k)(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…as if it were an original petition for involuntary hospitalization, to
determine whether the original order…should be modified or changed to an order
of indeterminate hospitalization…”
For an order for indeterminate period:
§27-5-4(k)(4) “An order for an indeterminate period shall expire 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, upon findings based on an
examination of the patient by a physician or a psychologist, extends the order
for indeterminate hospitalization…”
- Type of forum that decides on need for extended treatment (normally either judicial or administrative).
§27-5-4(k)(4)
“An order for an indeterminate period shall expire…unless prior to the
expiration, the department of health, 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.”
- Participation of other individuals in the extension hearing (i.e. notice, a right to be heard and/or right to counsel for family members, legal guardians, doctors, etc.).
Not specified if held by mental hygiene
commissioner. If held by circuit court, then presumably, the participation by
others is the same as for the original commitment proceeding.
- Maximum length of subsequent mandated inpatient care (and of any possible subsequent periods).
§27-5-4(k)(4) Up to two years, unless renewed.
- Alternatives(s) to assisted inpatient treatment (i.e. conditional release, outpatient commitment, etc.) and conditions necessary for a court to order placement in alternative(s) (if more than one form, specify for each).
For convalescent status:
§27-7-2. “The chief medical officer of a
mental health facility may release an involuntary patient on convalescent
status [trial visit] when the chief medical officer believes such release is in
the best interest of the patient. Release on convalescent status shall include
provisions for continuing responsibility to and by a mental health facility,
not necessarily the facility in which the patient was previously hospitalized,
including a plan of treatment on an outpatient basis to insure that the patient
receives whatever care and treatment he might require. At the end of six months
on convalescent status, the patient must be discharged from any involuntary
commitment order that might have been entered against him and he cannot be
involuntarily returned to any mental health facility unless a new commitment
proceeding has been instituted against him. When a patient released on
convalescent status is discharged from his involuntary commitment, it shall be
the responsibility of the chief medical officer of the mental health facility
of which the individual was a patient prior to being placed on convalescent
status to immediately make a report of the discharge of the patient to the
circuit court or mental hygiene commissioner of the county in which the
involuntary hospitalization was ordered and to the circuit court or mental
hygiene commissioner of the county wherein the individual is a resident.”
For outpatient commitment:
§27-5-4(k)(1) “Upon the requisite findings [same
standards as for inpatient], the circuit court may order the individual to a
mental health facility…” Per §27-1-9, a
mental health facility “means any inpatient, residential or outpatient facility
for the care and treatment of the mentally ill…” An Opinion of the Attorney
General (May 29, 1981) also supports the authority of a circuit court or mental
hygiene director to commit an individual to an outpatient program under
§27-5-4(j).
- Maximum duration of alternative(s) to mandated inpatient care.
For convalescent status: until original order
expires, unless renewed.
For outpatient commitment: §27-5-4(k)(4) two years,
unless renewed.
- Procedure necessary to transfer patient from outpatient to inpatient care.
For convalescent status:
§27-7-4 “While any involuntary
patient is out of the mental health facility under the provisions of section
two or section three of this article, he may be readmitted to the mental health
facility on the basis of the original commitment. If there is reason to believe
that it is in the best interest of the patient to be hospitalized, the chief
medical officer of the mental health facility may issue a sworn notice for the
immediate rehospitalization of the patient which notice shall contain facts
concerning the condition of the patient. This notice shall be sent to the
circuit court or mental hygiene commissioner or to the clerk of the circuit
court which ordered his admission as the case may be, and to the clerk of the
circuit court of the county of the patient's residence. Upon receipt of such
notice, the circuit court may, if satisfied that the condition of the patient
warrants his return, authorize any health officer or police officer to take the
patient into custody and transport him to a mental health facility where the
notice originated.”
For outpatient commitment:
Per a May 29, 1981 Opinion of the
Attorney General, transfer of an individual who has been committed to an
outpatient program at a community mental health center to the more restrictive
setting of a state hospital would require a hearing under §27-5-4.
- Procedure necessary to institute and maximum duration of subsequent periods of alternative(s) to inpatient assisted treatment.
For outpatient commitment: same as inpatient.
For convalescent status: six months.
§27-7-2. “The chief medical officer of a
mental health facility may release an involuntary patient on convalescent
status (trial visit) when the chief medical officer believes such release is in
the best interest of the patient. Release on convalescent status shall include
provisions for continuing responsibility to and by a mental health facility,
not necessarily the facility in which the patient was previously hospitalized,
including a plan of treatment on an outpatient basis to insure that the patient
receives whatever care and treatment he might require. At the end of six
months on convalescent status, the patient must be discharged from any
involuntary commitment order that might have been entered against him and he
cannot be involuntarily returned to any mental health facility unless a new
commitment proceeding has been instituted against him.”
- Describe any procedures for conservatorship, guardianship, etc., which are applicable to the mentally ill.
Not specified in the mental health code.
- Other (may include insights into state’s mental health system, judicial interpretation of mental health code, known movements for statutory reform, or general comments).
§27-5-1 “All persons appointed to
serve as mental hygiene commissioners and any magistrates designated by the
chief judge of a judicial circuit to hold probable cause and emergency
detention hearings involving involuntary hospitalization must attend and
complete a course provided by the supreme court of appeals which course shall
include, but not be limited to, instruction on the manifestations of mental
illness, mental retardation and addiction.”
The Supreme Court of Appeals of
West Virginia, Commission on Mental Hygiene Reform issued a final report on
December 15, 1999. The report recommends,
among other suggestions, that the legislature amend the statutory definition of
“likely to cause serious harm” and adopt a “need for treatment” standard (Final
Report, page 25).
