Legal Rights of Persons with Mental Illness

Last Updated On: 4/23/2015 7:33:11 PM

Legal Rights of Patients in Mental Health Facilities

Do people involuntarily committed to a mental facility still have rights?

YES! Under West Virginia law, “No person may be deprived of any civil right solely by reason of his or her receipt of services for mental illness, intellectual disability or addiction, nor does the receipt of the services modify or vary any civil right of the person…”

What does West Virginia law say about the treatment a person receives after being committed to a facility?

A patient of a mental health facility SHALL receive treatment that fits their need, administered in a skillful, safe and humane manner with full respect of one’s dignity and personal integrity. Treatment is provided by trained personnel with periodic psychiatric reevaluation (at least every 3 months) and by a physician (every 6 months). Treatment is based on appropriate examination and diagnosis by a staff member operating within the scope of his or her professional license. The chief medical examiner shall ensure a written treatment plan no more than 7 days after one is admitted.

Parenting Time and Custody

Does someone involuntarily committed to a mental health facility lose their parenting time or rights?

No. A person still has the right to due process of the law and their parenting plan will continue as previously ordered. The opposing party may file a motion to modify the parenting arrangement but the person committed will have the opportunity to present their case in court. In some cases, a judge may grant the opposing party an order changing parenting time until a hearing date for the motion to modify occurs.

Will a judge consider a person’s mental health when determining parenting time and/or custody?

Yes. Mental health is one of the factors a judge looks at when determining parenting time and/or custody, however it is not the only factor. Being in treatment and receiving therapy can certainly work on a person’s favor and may affect the judge’s decision regarding parental rights and custody.


Can someone be evicted from their home because they have a mental illness?

No. The Fair Housing Act prohibits discrimination in housing based upon disability. According to federal law, a diagnosed mental illness is a disability and therefore, a landlord cannot evict someone solely because they have a mental illness. That said, the Fair Housing Act does not offer protections to individuals who present a direct threat to other persons or property.

Can someone with a mental illness have an emotional support service animal in public housing?

Yes. The Fair Housing Act allows public housing tenets with disabilities to have emotional support service animals in public housing. Federal law includes mental health disorders as disabilities.

Can a landlord refuse someone housing who utilizes an emotional support service animal?

No. A public housing landlord cannot discriminate against someone because he or she owns a pet. However, pets covered under federal law as emotional support service animals only include common household pets. As a result, one may only be able to have cats and dogs as a support animal.

Possession of Firearms

If someone is voluntarily committed to a mental health facility for treatment, will they lose the right to bear arms?

Yes. If a person is involuntarily committed, they lose their gun rights.

How can a person protect their right to bear arms?

Instead of being involuntarily committed, a person can choose to voluntarily commit themselves to a facility for treatment. If someone voluntarily commits themselves, they do not lose their gun rights.

If someone loses their gun rights, is there a way to regain the ability to possess a firearm?

Yes. Under West Virginia code, a person having a prior involuntary commitment to a mental institution may petition the circuit court of the county in which they live in to regain their rights to possess a firearm. A judge will consider this petition, taking into account applicable law, a person’s mental health and criminal records and evidence demonstrating the person is competent and capable of exercising the responsibilities that come with possession of a firearm. The court may enter an order allowing the person to possess a firearm or the court may deny one’s petition. If denied, the individual can file an appeal.

Psychiatric Advance Directive

What is a Psychiatric Advance Directive?

A psychiatric advance directive is a written document that is prepared before the occurrence of a mental health problem and expresses an individual’s choices regarding treatment. The benefits include ensuring one’s voice and choice in matters regarding their mental health.

What must be included in a psychiatric advance directive to consider it valid?

To be valid, a psychiatric advance directive must include a statement of intent, a description of the situation in which the directive will become valid, and a signature page. A person may also wish to include information regarding their desired treatment and who to notify in the event of a psychiatric crisis.

If a person has a psychiatric advance directive, does the service provider have to follow it?

A mental health service provider is mandated to honor an individual’s psychiatric advance directive unless doing so would endanger that person’s life or be dangerous to others.

Can a psychiatric advance directive be withdrawn?

Yes. The individual may withdrawal their psychiatric advance directive after it has been created either verbally or in writing.

Getting Legal Help

How can a person get an attorney?

A: If a person has been charged with a crime and is unable to afford an attorney in a criminal case, the judge will usually appoint a lawyer to represent him or her. For civil legal issues, such as a divorce, child custody or housing matter, the court will usually have packets of paperwork for individuals to complete without an attorney. Low-income persons or individuals with disabilities may want to contact Legal Aid of West Virginia to see if we can help for free.

What is the attorney’s job?

An attorney is supposed to represent a person’s interests and has a duty to keep him or her informed regarding the progress of their case. The direction of the case is the responsibility of the lawyer and the client being represented.

Should a person with a mental illness disclose this to their attorney?

Attorneys can best serve their clients when they are fully informed of all material information, including the mental health of a client. A lawyer can best assist on the legal problem when they are aware of one’s mental illness and any medications or treatment he or she may be receiving. If the client does not want the lawyer to represent this information in court, the lawyer must comply with those wishes, however if the attorney believes that one’s mental illness prevents their client from understanding their case and court proceedings, the attorney must notify the judge.

Will the attorney keep statements made to him or her confidential?

Private conversations with attorneys are almost always confidential. Except in rare circumstances, a lawyer cannot repeat any statements made to him or her to anyone.  

This is general legal information. For guidance about your situation, talk to a lawyer.