Lawmakers vote against providing involuntarily committed people with documented explanation

Del. Steve Westfall, R-Jackson

Charleston – Lawmakers in a House committee voted Tuesday against giving hospital patients about to be involuntarily hospitalized in West Virginia documented notice of what was happening to them.

During a meeting of the Health & Human Resources Committee, lawmakers considered several amendments to House Bill 4009, sponsored by Del. Steve Westfall, R-Jackson, that would let hospitals involuntarily hold patients for up to 72 hours who are believed to be addicted or mentally ill, and a harm to themselves or others. Within 24 hours, hospital employees would then file a mental hygiene petition, setting up the process for an upcoming hearing with a mental hygiene commissioner, magistrate or judge.

During an attempt to pass a similar bill last legislative session, Brandon Hatfield, lawyer for the West Virginia Hospital Association, told lawmakers that hospitals are having trouble getting ahold of magistrates, mental hygiene commissioners and judges, usually late at night or on weekends, to when they believe people pose a threat to themselves or others.

Del. Barbara Fleischauer, D-Monongalia, and a lawyer, attempted to amend the bill Tuesday so that the person committed would be provided with a copy of the commitment order.

"As some of you know I've been here a few years, and this issue of whether to involuntarily take away somebody's liberty has come up on and on, and there's a real tension between taking care of people and also taking care of their constitutional rights," she said. "This bill would take away someone's liberty. I've seen someone's liberty taken away because they had a Sharpie pencil behind their ear."

She said it would allow patients to better "protect themselves" for the upcoming court hearing.

"It could be a very scary situation," she added.

Fleischauer gave an example – that doctors might perceive a person to be at risk of harming themselves or others, but the person may actually be displaying symptoms of a medical condition. 

Del. Margaret Staggers, D-Fayette, and an emergency room physician, argued that the person would have been through a medical evaluation. She also said she worried about lawsuits and "lawyers interfering" in a medical judgment. 

Del. Jeff Pack, R-Raleigh, noted that another portion of the bill states: "Persons and hospitals carrying out duties or rendering professional opinions as provided in this section shall be free from liability for such actions, if such actions are performed in good faith and within the scope of his or her professional duties and in a manner consistent with the standard of care."

After discussion, delegates rejected a version of the amendment that would have ensured patients be given a paper notice of what was happening to them, and that a witness would view the signing of it by the medical provider.

Delegates then rejected a second attempt, which would also require that paper notice but not require a witness.

Among those seen voting against providing patients the paper notification included Del. Staggers.

"If I were a mental health patient, I'd say I never got it," she said.

Among those seen voting for providing the paper notification included Pack; Del. Cindy Lavender-Bowe, D-Greenbrier, and Del. Mick Bates, D-Raleigh.

Lawmakers also rejected an attempt by Del. Evan Worrell, R-Cabell, that would have ensured that only patients who had voluntarily sought treatment at the hospital could be involuntarily held.

Lawmakers changed the language so that people "presented for" treatment could be involuntarily held, so people could potentially be involuntarily held who didn't seek treatment of their own accord, but were instead brought in by others, such as EMS workers or police.

Meanwhile, committee members approved another of his amendments, clarifying that people involuntarily held at hospitals would not be at risk of losing their guns.

Lawmakers also approved an amendment that would let mental health providers, such as psychologists, make the decision to commit. The original bill had said an "authorization physician or designated employee" would make the determination.

The committee advanced the bill to next be considered by the Judiciary Committee. Del. Marshall Wilson, an independent representing Berkeley County, was the only no vote heard. 

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