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Last updated November 2003
CHAPTER 17.
CARE AND COMMITMENT OF MENTALLY ILL PERSONS
ARTICLE 3.
ADMISSION AND DISCHARGE OF VOLUNTARY PATIENTS
SECTION 44‑17‑310. Voluntary admission.
If in the judgment of the director of a state hospital the
person is a proper subject for voluntary admission, the director of the
hospital shall admit for treatment an individual who is eighteen years of age
or over and applies for admission.
SECTION 44‑17‑320. Discharge of voluntary patient by
superintendent.
The superintendent of a hospital shall discharge any
voluntary patient who has recovered or whose detention he determines to be no
longer advisable.
SECTION 44‑17‑330. Discharge at request of patient or
another person.
A voluntary patient who requests to be discharged or whose
discharge is requested, in writing, by the patient’s parent or legal
guardian or other interested person must be discharged, except that:
(1) if the patient was admitted on
the patient’s own application and the request for discharge is made by a
person other than the patient, discharge must be conditioned upon the agreement
of the patient;
(2) if the director of the hospital,
within three days, excluding Saturdays, Sundays, and legal holidays, after the
patient or other interested person requests the patient’s discharge,
files with the probate court of the county in which the patient resided or was
present immediately before admission a certificate that in the director’s
opinion, the patient desiring discharge is mentally ill and should be
hospitalized, discharge may be postponed on application for as long as the
court determines by order to be necessary for conducting proceedings for
judicial admission, but in no event for more than fifteen days. Upon the filing of a certificate, the
proceedings for judicial admission must be conducted pursuant to Sections 44‑17‑510
through 44‑17‑610.
SECTION 44‑17‑340. Written notice of right to release.
At the time of his admission to the hospital and once during
the first six months of hospitalization and annually thereafter a voluntary
patient shall be informed in writing of his right to release. The patient’s spouse, parent, legal
guardian or other interested person shall also be so informed and shall sign a
statement to that effect which shall become a part of the patient’s
record. The patient shall also
acknowledge deliverance of the notice in writing or an affidavit that he was so
informed shall be attached to his record.
Where no spouse, parent, legal guardian or other interested person is
known to exist, documentation in the patient’s record of this finding
will be deemed to be in compliance with the notification requirements.
ARTICLE 5.
CUSTODY AND ADMISSION OF PERSONS REQUIRING IMMEDIATE
CARE
SECTION 44‑17‑410. Emergency admission of person
likely to cause serious harm;
procedures; court review; assessment by examiners; initiation of emergency commitment procedures; hearing;
right to counsel.
A person may be admitted to a public or private hospital,
mental health clinic, or mental health facility for emergency admission upon:
(1) written affidavit under oath by
a person stating:
(a) a belief that the person is
mentally ill and because of this condition is likely to cause serious harm to himself or others if not immediately hospitalized;
(b) the specific type of serious
harm thought probable if the person is not immediately hospitalized and the
factual basis for this belief;
(2) a certification in triplicate by
at least one licensed physician stating that the physician has examined the
person and is of the opinion that the person is mentally ill and because of
this condition is likely to cause harm to himself through neglect, inability to
care for himself, or personal injury, or otherwise, or to others if not
immediately hospitalized. The certification must contain the grounds for the
opinion. A person for whom a certificate has been issued may not be admitted on
the basis of that certificate after the expiration of three calendar days after
the date of the examination;
(3) within forty‑eight hours
after admission, exclusive of Saturdays, Sundays, and legal holidays, the place
of admission shall forward the affidavit and certification to the probate court
of the county in which the person resides or, in extenuating circumstances,
where the acts or conduct leading to the hospitalization occurred.
Within forty‑eight hours of receipt of the affidavit
and certification exclusive of Saturdays, Sundays, and legal holidays, the
court shall conduct preliminary review of all the evidence to determine if
probable cause exists to continue emergency detention of the patient. If the
court finds that probable cause does not exist, it shall issue an order of
release for the patient. Upon a finding of probable cause, the court shall make
a written order detailing its findings and may order the continued detention of
the patient.
With each affidavit and certification, the treatment
facility shall provide the court with a designated examiner appointment form
listing the names of two designated examiners at the treatment facility.
If the court appoints these two designated examiners, the
examination must be performed at the treatment facility and a report must be
submitted to the court within seven days from the date of admission. The court
may appoint independent designated examiners who shall submit a report to the
court within the time allotted above. In the process of examination by the
designated examiners, previous hospitalization records must be considered. At
least one of the examiners appointed by the court must be a licensed physician.
The examiners’ reports must include the grounds for the examiners’
conclusions.
If the report of the designated examiners is that the
patient is not mentally ill to the extent that involuntary treatment is
required and reasons have been set forth in the report, the court shall dismiss
the petition and the patient must be discharged immediately by the facility
unless the designated examiners report that the patient is a chemically
dependent person in need of emergency commitment and that procedures have been
initiated pursuant to Section 44‑52‑50. In which case, emergency
commitment procedures must be complied with in accordance with Chapter 52, and
the facility shall transfer the patient to an appropriate treatment facility as
defined by Section 44‑52‑10, provided that confirmation has been
obtained from the facility that a bed is available; transportation must be
provided by the department.
If the report of the designated examiners is that the
patient is mentally ill and involuntary treatment is required, the court may
order that the person be detained, appoint counsel for the patient if counsel
has not been retained, and fix a date for a full hearing to be held pursuant to
Section 44‑17‑570 within fifteen days from the date of admission.
The court shall give notice of the hearing pursuant to Section 44‑17‑420.
The examiners’ report must be available to the
person’s counsel before the full hearing. The person must be given the
opportunity to request an independent designated examiner pursuant to Section
44‑17‑530.
SECTION 44‑17‑415. Physical examination report to
accompany certification for emergency admission.
Any certification for an emergency admission of a person
fifty‑five years of age or older who, at the time of the petition, is a
patient in a hospital or a resident of a nursing care facility pursuant to
Section 44‑17‑410 must be accompanied by the results of the most
recent physical examination, including appropriate laboratory work as contained
in the medical record which must be furnished by the hospital or nursing care
facility except as otherwise prohibited by federal law. The physician evaluating the mental condition
of the patient shall take into consideration the results of the physical
examination to ascertain how the mental and physical treatment needs of the
person may best be provided.
SECTION 44‑17‑420. Notice of hearing.
At least five days before the hearing scheduled by the court
pursuant to Section 44‑17‑410(3), the clerk or other officer of the
probate court shall give written notice of the hearing to the person, his
counsel, the applicant, and other interested persons. The notice must include the date, time, and
place of the hearing, the basis for the person’s detention, conclusions
and underlying facts, and the standard upon which he has been detained. The notice of hearing also must include a
statement advising the recipient that the person may request the names of
designated examiners and other persons who may testify in favor of his
continued detention and the substance of their proposed testimony.
SECTION 44‑17‑430. Examination under custody of person
requiring immediate hospitalization when examination not otherwise possible.
If a person believed to be mentally ill and because of this
condition likely to cause serious harm if not immediately hospitalized cannot
be examined by at least one licensed physician pursuant to Section 44‑17‑410
because the person’s whereabouts are unknown or for any other reason, the
petitioner seeking commitment pursuant to Section 44‑17‑410 shall
execute an affidavit stating a belief that the individual is mentally ill and
because of this condition likely to cause serious harm if not hospitalized, the
ground for this belief and that the usual procedure for examination cannot be
followed and the reason why. Upon
presentation of an affidavit, the judge of probate for the county in which the
individual is present may require a state or local law enforcement officer to
take the individual into custody for a period not exceeding twenty‑four
hours during which detention the person must be examined by at least one
licensed physician as provided for in Section 44‑17‑410(2). The
individual taken into custody has the right to representation by an
attorney. If within the twenty‑four
hours the person in custody is not examined by a licensed physician or, if upon
examination the physician does not execute the certification provided for in
Section 44‑17‑410(2), the proceedings must be terminated and the
individual in custody must be released immediately. Otherwise, proceedings must be held pursuant
to Section 44‑17‑410(3).
SECTION 44‑17‑440. Custody and transport of person
requiring immediate care;
peace officer; friend or
relative.
The certificate required by Section 44‑17‑410
must authorize and require a state or local law enforcement officer, preferably
in civilian clothes, to take into custody and transport the person to the
hospital designated by the certification.
No person may be taken into custody after the expiration of three days
from the date of certification. A friend
or relative may transport the individual to the mental health facility
designated in the application, if the friend or relative has read and signed a
statement on the certificate which clearly states that it is the responsibility
of a state or local law enforcement officer to provide timely transportation
for the patient and that the friend or relative freely chooses to assume that
responsibility. A friend or relative who
chooses to transport the patient is not entitled to reimbursement from the
State for the cost of the transportation.
An officer acting in accordance with this article is immune from civil
liability. Upon entering a written
agreement between the local law enforcement agency, the governing body of the
local government, and the directors of the community mental health centers, an
alternative transportation program utilizing peer supporters and case managers
may be arranged for nonviolent persons requiring mental health treatment. The agreement clearly must define the
responsibilities of each party and the requirements for program participation.
SECTION 44‑17‑450. Preadmission screening and
evaluation in psychiatric emergencies.
The Department of Mental Health, in conjunction with its
local mental health centers acting as the preadmission facilities, must develop
and maintain a preadmission screening and evaluation service for all
psychiatric emergencies at the local community level utilizing available local
resources for mentally ill persons. The
preadmission screening services must act as the public mental health
system’s entry point in order (1) to provide to the examining physician
information about accessible crisis intervention, evaluation, and referral
services in the community; (2) to offer to mentally ill persons clinically
appropriate alternatives to inpatient care, if any; and when necessary (3) to provide a
means for involuntary commitment.
SECTION 44‑17‑460. Examinations prior to emergency
admissions to psychiatric facilities.
Prior to the emergency admission of any person to a
psychiatric facility of the Department of Mental Health, the person must be
examined by a licensed physician. The
physician must inform the mental health center in the county where the person
resides or where the examination takes place of the mental and physical
treatment needs of the patient. The
physician must consult with the center regarding the commitment/admission
process and the available treatment options and alternatives in lieu of hospitalization
at a state psychiatric facility.
The examining physician must complete a statement that he
has consulted with the local mental health center prior to the admission of the
person to a state psychiatric facility.
If the physician does not consult with the center, he must state a
clinical reason for his failure to do so.
The statement must accompany the physician’s certificate and
written application for emergency commitment.
The department, in its discretion, may refuse to admit a patient to its
facility if the physician fails to complete the statement required by this
section.
ARTICLE 7.
PROCEDURES FOR JUDICIAL COMMITMENT
SECTION 44‑17‑510. Petition for judicial commitment; certificate
of designated examiner.
Proceedings for involuntary hospitalization by judicial
procedure may be commenced by filing a written petition with the probate court
of the county where he is present or where he is a resident by any interested
person or the superintendent of any public or private mental institution in
which he may be. The petition shall be
served on the person and his attorney and if he has no attorney then on him and
a member of his immediate family.
The petition shall be accompanied by a certificate of a
designated examiner stating that he has examined the person and is of the
opinion that he is mentally ill and should be hospitalized or a written
statement by the petitioner that the person has refused to submit to an
examination by a designated examiner.
The certificate or the written statement shall state the underlying
facts upon which the examiner or petitioner, if the person has refused to
submit to an examination, bases his conclusions and not merely the conclusions
themselves.
SECTION 44‑17‑520. Notice of petition and right to
counsel.
Upon receipt of a petition the court shall give notice
thereof to the proposed patient, to his legal guardian, if any, and to any
other interested person. This notice
shall also indicate the proposed patient’s right to counsel.
SECTION 44‑17‑530. Appointment of counsel; examination
and record thereof.
Within three days after the petition for judicial commitment
set forth in Section 44‑17‑510 is filed, exclusive of Saturdays,
Sundays, and legal holidays, the court shall appoint counsel to represent the
person if counsel has not been retained and the court shall appoint two
designated examiners, one of whom must be a licensed physician, to examine the
person and report to the court their findings as to the person’s mental
condition and need for treatment. The
examination must be made at a suitable place not likely to have a harmful
effect upon the person’s health.
On a report of the designated examiners of refusal to submit to
examination, the court shall order the person to submit to examination. If the person refuses to obey the
court’s order the court may require a state or local law enforcement
officer to take the person into custody for a period not exceeding twenty‑four
hours during which time the person must be examined by the two designated
examiners. The person’s attorney
must be notified before the person’s confinement. If the examiners do not execute the
certification provided for in this section within twenty‑four hours, the
proceeding must be terminated and the person must be released. An adequate record of the examination must be
made and offered to the person’s counsel.
If the conclusions of the examination are that the person is mentally
ill the underlying facts must be recorded as well as the conclusions. The person must be given the opportunity to
request an additional examination by an independent designated examiner. If the court determines that the person is
indigent the examination must be conducted at public expense.
SECTION 44‑17‑540. Hearing shall be held if examiners
find mental illness.
If the report of the two designated examiners, other than
the independent designated examiner, is to the effect that they are of the
opinion that the person is not mentally ill to the extent that involuntary
treatment is required, the court shall terminate the proceedings and dismiss
the petition immediately upon receipt of the report. If the report of the two
designated examiners, other than the independent designated examiner, is
divided, the court may terminate the proceedings or may designate a third
examiner, who must be a psychiatrist, and charge the three examiners to render
a majority opinion within five days. If the report of the designated examiners
is to the effect that they are of the opinion that the person is mentally ill
and involuntary treatment is required, the court shall conduct a hearing. For
persons admitted pursuant to Section 44‑17‑410, the hearing may be
held on the same day as the designated examinations unless the person or his
counsel objects. Upon objection by the person or his counsel, the court shall
delay the hearing. For persons whose admission is sought under Section 44‑17‑510,
the court immediately shall fix a date for and give notice of a hearing, to be
held not less than five nor more than seven days, excluding Saturdays, Sundays,
and legal holidays, from receipt of the report.
SECTION 44‑17‑550. Notice of hearing and rights.
Notice of the hearing must be given to the person, his
counsel, and other interested persons at least five days before the hearing. Notice must include the time, date, and place
of the hearing, the underlying facts, and the standards under which the person
is sought to be committed. A copy of the
designated examiners report must be provided to the person’s
counsel. The notice of hearing also must
include a statement advising the recipient that the person may request the
names of the designated examiners and other persons who may testify in favor of
his commitment and the substance of their proposed testimony.
SECTION 44‑17‑560. Removal of proceedings to another
county.
The individual shall have the right to demand removal of the
proceedings to any other county of the State when the convenience of the
witnesses and the ends of justice so require.
When the place of the proceedings is changed all other proceedings shall
be had in the county to which the place of hearing is changed, unless otherwise
provided by the consent of the parties in writing, duly filed, or order of the
court. And the papers shall be filed or
transferred accordingly.
SECTION 44‑17‑570. Conduct of hearing.
All persons to whom notice is required may appear at the
hearing, testify and, within the discretion of the court, present and cross‑examine
witnesses and the court may receive the testimony of any other person. The court may exclude all persons not
necessary for the conduct of the proceedings.
The person for whom the hearing is being held shall have the right to be
present at the commitment hearing and such right may be waived only by him or
his attorney. The court may in its
discretion cause the hearing to be held in any suitable location in the State,
without regard to whether the location is in the county of the court conducting
the hearing, when the judge is satisfied that the health and welfare of the
person concerned is best served by conducting the hearing in a location other
than the probate court. The hearing
shall be conducted in as informal a manner as may be consistent with orderly
procedure and in a physical setting not likely to have a harmful effect on the
mental health of the person. The court
shall in receiving evidence follow the rules of evidence applicable to the
probate courts of this State. If the
person is indigent he shall have the right to a free transcript of the record
of the proceedings.
SECTION 44‑17‑580. Hospitalization of person if court
finds mental illness and other conditions.
If, upon completion of the hearing and consideration of the
record, the court finds upon clear and convincing evidence that the person is
mentally ill, needs involuntary treatment and because of his condition:
(1) lacks sufficient insight or
capacity to make responsible decisions with respect to his treatment; or
(2) there is a likelihood of serious
harm to himself or others, it shall order in‑patient or out‑patient
treatment at a mental health facility, public or private, designated or
licensed by the Department of Mental Health . If the
court finds that he is not mentally ill and not in need of involuntary
treatment, it shall dismiss the proceedings.
If the court orders out‑patient treatment and the
respondent fails to adhere to the prescribed out‑patient treatment
program, on report of the failure by the treatment facility the court upon
notice to the respondent and his counsel may order a supplemental hearing and
further order in‑patient treatment in a designated or licensed facility.
The probate court issuing the order shall maintain jurisdiction over the person
for the purpose of supplemental proceedings as herein set forth and every order
issued pursuant to this paragraph shall be so conditioned. An order for in‑patient
treatment at a mental health facility shall not raise a presumption of
incompetency and no rights shall be denied a person unless specifically ordered
by the court.
SECTION 44‑17‑600. No admission shall be based on
order more than thirty days after it has been rendered.
Any individual with respect to whom such order of
hospitalization has been issued shall not be admitted to any public or private
mental health facility or hospital on the basis thereof at any time after the
expiration of thirty days following the date of the judicial order, unless the
judge of probate issuing such order extends this date.
SECTION 44‑17‑610. Commitment to private, county, Veterans’
Administration or other hospital.
Upon request by the individual, his relatives, spouse or
guardian and agreement by the superintendent of the hospital concerned, the
court may order the hospitalization of the patient in any private, county,
Veterans’ Administration or other suitable institution. Neither the State, any
county nor any municipality shall be liable for any costs of or charges
for sending an individual to a private institution or connected with or arising
out of his being sent there.
SECTION 44‑17‑620. Appeal.
The petitioner or the person shall have the right to appeal
from any order of the probate court issued pursuant to Section 44‑17‑580
to the court of common pleas of the county where the probate court is situated.
The notice of intention to appeal together with the grounds for the appeal
shall be filed in the probate court and the court of common pleas within
fifteen days of the date of the order issued pursuant to Section 44‑17‑580.
The appeal shall be heard by any circuit judge having jurisdiction in the
county upon the record of the probate court. The judge may require that
additional evidence be presented in the hearing if notice is given to both
appellant and respondent.
The probate court shall be responsible for certifying the
record on the proceedings before the probate court to the circuit court judge
within thirty days of filing of the notice of intention to appeal. The circuit
judge shall hold the hearing and render a decision affirming or reversing the
order of the probate court within fifteen days of receipt of the record of the
probate court.
The costs shall be borne by the applicant unless the court
determines that he cannot afford them.
Any appeal from the order of the circuit judge shall be
taken in the manner provided by the South Carolina Appellate Court Rules. An
order of a circuit judge requiring release of the person shall be of force and
effect unless it is reversed on appeal.
SECTION 44‑17‑630. Right to reexamination; notice.
A patient is entitled to a reexamination on the
patient’s own petition or that of any other interested person to the
probate court of the county from which the patient was admitted. The treatment facility shall inform every
patient and at least one other interested person of this right to petition for
reexamination. Notice of this right must
be given in writing upon admission to the hospital, once during the first six
months of hospitalization, and every six months thereafter during the treatment
of the patient. If no spouse, parent,
legal guardian, or other interested person is known to exist, documentation in
the patient’s record of this finding is considered compliance with the
notice requirement of this section.
Upon receipt of the petition the court shall conduct
proceedings in accordance with this chapter, Chapter 9, Chapter 11, Chapter 13,
Article 1 of Chapter 15, Chapter 17, and Chapter 27 of this title, except that
the proceedings may not be required to be conducted if the petition is filed
sooner than six months after the issuance of the order for treatment or sooner
than three months after the holding of a hearing pursuant to this section. The costs must be borne by the petitioner
unless the court determines that the petitioner cannot afford these costs.
SECTION 44‑17‑640. Admission to agency of the
If any person ordered to be admitted to an institution
pursuant to this chapter, Chapter 9, Chapter 11, Chapter 13, Article 1 of
Chapter 15, Chapter 17, and Chapter 27, is eligible for institutional care or
treatment by any agency of the United States, the court, upon receipt of a
certificate from the agency showing the facilities are available and that the
person is eligible for care or treatment there, may order him to be placed in
the custody of the agency for admittance.
Jurisdiction shall be retained in the appropriate courts to inquire into
the mental condition of the person admitted and to determine the necessity for
continuance of his confinement. Every
order of admittance issued pursuant to this section is so conditioned.
SECTION 44‑17‑660. Payment of monies to state
employees who are not performing their duties as state employees and are not
full‑time state employees.
Monies appropriated to implement the provisions of this
article may be paid to a state employee if the employee is not performing his
duties as a state employee and is not a full‑time state employee.
ARTICLE 9.
RELEASE, DISCHARGE AND RECONFINEMENT, GENERALLY
SECTION 44‑17‑810. Release or discharge shall be upon
own recognizance.
Unless in the opinion of the attending physician a person is
incapable of caring for himself once released or
discharged from a mental health facility, he shall be released or discharged
upon his own recognizance. No other party
shall sign for his release or discharge unless that party shall be the person
who is to care for the released or discharged individual.
SECTION 44‑17‑860. Unlawful taking of person from
mental health facility without permission.
It shall be unlawful for any person, without prior
authorization from the patient’s attending physician, to take or cause to
be taken any patient away from the grounds of any facility under the
jurisdiction of the Department of Mental Health. Any person violating the provisions of this
section shall be fined in a sum of not more than one thousand dollars or
imprisoned for not exceeding one year, or both.
SECTION 44‑17‑865. Department to notify law
enforcement officials of patients absent without proper authorization.
If any person involuntarily committed to a facility under
the jurisdiction of the Department of Mental Health is absent without proper
authorization, the Department shall immediately notify by telephone the
appropriate state and local law enforcement officials of such absence. Such notice shall also be confirmed in
writing and mailed to such law enforcement officials within twenty‑four
hours after the absence is discovered.
SECTION 44‑17‑870. Reconfinement
of involuntarily committed patient who has left treatment facility without
proper authorization.
If a patient involuntarily committed to a facility under the
jurisdiction of the State Department of Mental Health is absent without proper
authorization, a state or local law enforcement officer or employee of the
department appointed pursuant to Section 44‑11‑70, upon the request
of the facility superintendent or director or a designee and without the
necessity of a warrant or a court order, may take the patient into custody and
return the patient to a facility designated by the department. No person may be reconfined
pursuant to this section after being continuously absent from the jurisdiction
of the department for at least one year unless criminal charges are still
pending against the patient or unless he was committed to a facility of the
department pursuant to Chapter 24, Title 17.
SECTION 44‑17‑890. Discharge or leave of absence
during judicial proceeding.
Notwithstanding any other provisions of this chapter, no
person with respect to whom proceedings for judicial confinement have been
commenced shall be granted leave of absence, or discharged during the pendency of such proceedings unless ordered by the court
upon the application of the patient or his legal guardian, parent, spouse or
next of kin or upon the report of the superintendent of the facility that the
person may be discharged with safety.
SECTION 44‑17‑900. Officials not liable for release or
discharge of patient.
Neither the superintendent of a mental health facility nor
any other person legally participating in the release or discharge of a patient
shall be liable either civilly or criminally on account of such participation.
CHAPTER 22.
RIGHTS OF MENTAL HEALTH PATIENTS
SECTION 44‑22‑10. Definitions.
As used in this chapter:
(1) [Reserved]
(2) “Director” means the Director of the
Department of Mental Health.
(3) “Court” means probate court.
(4) “Department” means the State Department of
Mental Health.
(5) “Facility” means a residential program
operated by the department.
(6) “Independent examination” means an
examination of a patient by a qualified employee of the department.
(7) “Individual plan of treatment” means a plan
written by a multi‑disciplinary team setting forth measurable goals and
objectives in prescribing an integrated program of individual designed
activities or therapies necessary to achieve the goals and objectives.
(8) “Major medical treatment” means a medical,
surgical, or diagnostic intervention or procedure where a general anesthetic is
used or which involves significant invasions of bodily integrity requiring an
incision or producing substantial pain, discomfort, debilitation, or having a
significant recovery period. It does not
include a routine diagnosis or treatment such as the administration of
medications or nutrition or the extraction of bodily fluids for analysis,
dental care performed with local anesthetic, procedures which are provided
under emergency circumstances, or the withdrawal or discontinuance of medical
treatment which is sustaining life functions.
(9) “Mental disability” means a medically
diagnosable, abnormal condition which is expected to continue for a
considerable length of time, whether correctable or uncorrectable, which
reasonably is expected to limit the person’s functional ability.
(10) “Multi‑disciplinary team” means
persons drawn from or representing the professional disciplines or service
areas included in the treatment plan.
(11) “Patient” means an individual undergoing
treatment in the department;
however, the term does not include a person committed to the
department pursuant to Chapter 48 of Title 44.
(12) “Patient unable to consent” means a patient
unable to appreciate the nature and implications of his condition and proposed
health care, to make a reasoned decision concerning the proposed health care,
or to communicate that decision in an unambiguous manner. This definition does not include a person under eighteen years of age, and this chapter does not
affect the delivery of health care to that person unless he is married or has
been determined judicially to be emancipated.
A patient’s inability to consent must be certified by two licensed
physicians, each of whom has examined the patient. However, in an emergency the patient’s
inability to consent may be certified by a health care professional responsible
for his care if the health care professional states in writing in the
patient’s record that the delay occasioned by obtaining certification
from two licensed physicians would be detrimental to his health. A certifying physician or other health care
professional shall give an opinion regarding the cause and nature of the
inability to consent, its extent, and its probable duration.
(13) “Reasonably available” means that a person
to be contacted may be contacted with diligent efforts by the attending
physician or another person acting on behalf of the attending physician.
(14) “Treatment” means the attempted correction
or facilitation of a mental illness or alcohol and drug abuse.
SECTION 44‑22‑20. Right to writ of habeas corpus.
Patients have the right to the writ of habeas corpus.
SECTION 44‑22‑30. Right to counsel for involuntarily
committed persons suffering from mental illness or chemical dependency.
Persons suffering from mental illness or chemical dependency
have the right to be represented by counsel when involuntarily committed to the
department pursuant to Sections 44‑17‑530 and 44‑52‑110.
SECTION 44‑22‑40. Consent to electro‑convulsive
therapy or major medical treatment; determination of ability to give
consent; who may give consent.
(A) A patient in need of electro‑convulsive therapy or
major medical treatment must be examined by a qualified physician to determine
if the patient is able to consent to electro‑convulsive therapy or major
medical treatment. Where a patient is
determined unable to consent to surgery or electro‑convulsive therapy or
major medical therapy or treatment, decisions concerning the need for treatment
may be made by the following persons in the following order of priority:
(1) a guardian appointed by the
court pursuant to Article 5, Part 3 of the South Carolina Probate Code, if the
decision is within the scope of the guardianship;
(2) an attorney‑in‑fact
appointed by the patient in a durable power of attorney executed pursuant to
Section 62‑5‑501, if the decision is within the scope of his
authority;
(3) a person given priority to make
health care decisions for the patient by another statutory provision;
(4) a spouse of the patient unless
the spouse and the patient are separated pursuant to one of the following:
(a) entry of a pendente
lite order in a divorce or separate maintenance
action;
(b) formal signing of a written
property or marital settlement agreement;
(c) entry of a permanent order of
separate maintenance and support or of a permanent order approving a property
or marital settlement agreement between the parties;
(5) a parent of the patient or child
eighteen years of age or older of the patient;
(6) a sibling or grandchild eighteen
years of age or older of the patient or grandparent of the patient;
(7) other relative by blood or
marriage who reasonably is believed by the health care professional to have a
close personal relationship with the patient;
(8) a person given authority to make
health care decisions for the patient by another statutory provision.
(B) If persons of equal priority disagree on whether certain
health care should be provided to a patient who is unable to consent, an
authorized person, a health care provider involved in the care of the patient,
or another person interested in the welfare of the patient may petition the
probate court for an order determining what care is to be provided or for
appointment of a temporary or permanent guardian.
(C) Priority under this section must not be given to a
person if a health care provider responsible for the care of a patient who is
unable to consent determines that the person is not reasonably available, is
not willing to make health care decisions for the patient, or is unable to
consent as defined in Section 44‑22‑10(6).
(D) An attending physician or other health care professional
responsible for the care of a patient who is unable to consent may not give
priority or authority under subsection (A)(5) through
(8) to a person if the attending physician or health care professional has
actual knowledge that, before becoming unable to consent, the patient did not
want that person involved in decisions concerning his care.
(E) This section does not authorize a person to make health
care decisions on behalf of a patient who is unable to consent if, in the
opinion of the certifying physicians, the patient’s inability to consent
is temporary, and the attending physician or other health care professional
responsible for the care of the patient determines that the delay occasioned by
postponing treatment until the patient regains the ability to consent will not
result in significant detriment to the patient’s health.
(F) This section does not affect the application of the
Adult Health Care Consent Act, Sections 44‑66‑10 through 44‑66‑80,
to a patient in need of health care.
SECTION 44‑22‑50. Treatment suited to needs; least restrictive
care and treatment.
(A) A patient receiving services for mental illness or
alcohol and drug abuse shall receive care and treatment that is suited to his
needs and which is the least restrictive appropriate care and treatment. The care and treatment must be administered
skillfully, safely, and humanely with full respect for the patient’s
dignity and personal integrity.
(B) Persons who operate facilities of the department shall
ensure that restrictions on a residential patient’s liberty are confined
to those minimally necessary to establish the therapeutic objectives for the
patient. The department and the
Department of Alcohol and Other Drug Abuse Services shall make every effort to
ensure that no patient is admitted to a facility unless a prior determination
has been made that residence in the facility is the least restrictive setting
feasible for the patient.
(C) In cases of emergency admissions, when the least
restrictive setting is not available, patients must be admitted to the nearest
appropriate facility until the patient may be moved to the least restrictive
setting.
(D) No patient may remain at a level of care that is more
expensive and restrictive than is warranted to meet his needs when the
appropriate setting is available.
(E) Patients have a right to the least restrictive
conditions necessary to achieve the purposes of treatment. The facility shall make every attempt to move
residents from:
(1) more to less structured living;
(2) larger to smaller facilities;
(3) larger to smaller living units;
(4) group to individual residences;
(5) segregated from the community to
integrated into the community living;
(6) dependent to independent living.
SECTION 44‑22‑60. Explanation of rights with regard
to admission to facility;
individualized treatment plan.
(A) Before or when admitted to a facility, a patient or his
guardian or parent must be provided with an explanation, in terms and language
appropriate to the person’s ability to understand, of the rights of the
patient while under the care of the facility.
(B) Within six hours of admission a patient must be examined
by a physician. Within fourteen days of
admission, a patient or his parent or guardian must be provided with a written
individualized plan of treatment formulated by a multi‑disciplinary team
and the patient’s attending physician.
Each patient or his parent or guardian shall participate in an
appropriate manner in the planning of services.
An interim treatment program based on the preadmission evaluation of the
patient must be implemented promptly upon admission. An individualized treatment plan must
contain:
(1) a statement of the nature and
degree of the patient’s mental illness or chemical dependency and his
needs;
(2) if a physical examination has
been conducted, the patient’s physical condition;
(3) a description of intermediate
and long‑range treatment goals and, if possible, future available
services;
(4) criteria for release to a less
restrictive environment, including criteria for discharge and a description of
services that may be needed after discharge;
(5) a statement as to whether or not
the patient may be permitted outdoors on a daily basis and, if not, the reasons
why. Treatment plans must be updated
upon periodic review as provided in Section 44‑22‑70.
SECTION 44‑22‑70. Assessment of patient; establishment
and review of individualized treatment plan; discharge plan; notice of
discharge.
(A) The individualized plan of treatment must be reviewed
every thirty days by the multi‑disciplinary team during the first two
months of inpatient treatment. After two
months of inpatient treatment, the plan must be reviewed every sixty days,
except in long‑term nursing care facilities the plan must be reviewed
every ninety days. This section does not
prohibit review of the plan on a more frequent basis.
(B) After review by the attending physician or multi‑disciplinary
team, if the results of the examination determine the conditions justifying
confinement no longer exist, a notice of intent to discharge must be made
immediately to the probate judge having jurisdiction. Notice must be given before discharge to a
person who has made a written request to be notified.
(C) For patients committed after a hearing by the probate
court for the involuntary inpatient treatment for mental illness or chemical
dependency, an appropriate and comprehensive discharge plan must be
developed. Planning for a
patient’s discharge must begin within seventy‑two hours of
admission, must include input from the patient, and must address community
treatment, financial resources, and housing.
The facility and community treatment staff must be involved in
developing the discharge plan.
Representatives of all entities which provide services pursuant to the
plan must be consulted and informed about the plan. Based on available resources, the department
shall make every effort to implement the discharge plan when the patient, in
the opinion of the multi‑disciplinary team, is ready for discharge.
SECTION 44‑22‑80. Patients’ rights.
Unless a patient has been adjudicated incompetent, no
patient may be denied the right to:
(1) dispose of property, real and personal;
(2) execute instruments;
(3) make purchases;
(4) enter into contractual relationships;
(5) hold a driver’s license;
(6) marry or divorce;
(7) be a qualified elector if otherwise
qualified. The county board of voter
registration in counties with department facilities reasonably shall assist
patients who express a desire to vote to:
(a) obtain voter registration forms,
applications for absentee ballots, and absentee ballots;
(b) comply with other requirements
which are prerequisite for voting;
(c) vote by absentee ballot if
necessary.
SECTION 44‑22‑90. Communications with mental health
professionals privileged;
exceptions.
(A) Communications between patients and mental health
professionals including general physicians, psychiatrists, psychologists,
psychotherapists, nurses, social workers, or other staff members employed in a
patient therapist capacity or employees under supervision of them are
considered privileged. The patient may
refuse to disclose and may prevent a witness from disclosing privileged
information except as follows:
(1) communications between facility
staff so long as the information is provided on a “need‑to‑know”
basis;
(2) in involuntary commitment
proceedings, when a patient is diagnosed by a qualified professional as in need
of commitment to a mental health facility for care of the patient’s
mental illness;
(3) in an emergency where
information about the patient is needed to prevent the patient from causing
harm to himself or others;
(4) information related through the
course of a court‑ordered psychiatric examination if the information is
admissible only on issues involving the patient’s mental condition;
(5) in a civil proceeding in which
the patient introduces his mental condition as an element of his claim or
defense, or, after the patient’s death, when the condition is introduced
by a party claiming or defending through or as a beneficiary of the patient,
and the court finds that it is more important to the interests of justice that
the communication be disclosed than the relationship between the patient and
psychiatrist be protected;
(6) when a competent patient gives
consent or the guardian of a patient adjudicated as incompetent gives consent
for disclosure;
(7) as otherwise authorized or
permitted to be disclosed by statute.
(B) This does not preclude disclosure of information to the
Governor’s ombudsman office or to the South Carolina Protection and
Advocacy System for the Handicapped, Inc.
SECTION 44‑22‑100. Confidentiality of records; exceptions; violations and penalties.
(A) Certificates, applications, records, and reports made
for the purpose of this chapter or Chapter 9, Chapter 11, Chapter 13, Article 1
of Chapter 15, Chapter 17, Chapter 23, Chapter 24, Chapter 25, Chapter 27, or
Chapter 52 of this title and directly or indirectly identifying a mentally ill
or alcohol and drug abuse patient or former patient or individual whose
commitment has been sought must be kept confidential and must not be disclosed
unless:
(1) the individual identified or his
guardian consents;
(2) a court directs that disclosure
is necessary for the conduct of proceedings before it and that failure to make
the disclosure is contrary to the public interest;
(3) disclosure is required for
research conducted or authorized by the department or the Department of Alcohol
and Other Drug Abuse Services and with the consent of the patient;
(4) disclosure is necessary to
cooperate with law enforcement, health, welfare, and other state or federal
agencies or when furthering the welfare of the patient or his family; or
(5) disclosure is necessary to carry
out the provisions of this chapter or Chapter 9, Chapter 11, Chapter 13,
Article 1 of Chapter 15, Chapter 17, Chapter 23, Chapter 24, Chapter 25,
Chapter 27, or Chapter 52 of this title.
(B) Nothing in this section:
(1) precludes disclosure, upon
proper inquiry, of information as to a patient’s current medical
condition to members of his family, or the Governor’s ombudsman office; or
(2) requires the release of records
of which disclosure is prohibited or regulated by federal law.
(C) A person who violates this section is guilty of a
misdemeanor and, upon conviction, must be fined not more than five hundred
dollars or imprisoned not more than one year, or both.
SECTION 44‑22‑110. Access to medical records; appeal of denial of
access.
(A) A patient or the guardian of a patient has access to his
medical records, and a person subject to a proceeding or receiving services
pursuant to this chapter has complete access to his medical records relevant to
this commitment if the access is allowed in the presence of professional mental
health staff.
(B) Patients or guardians of patients may be refused access
to:
(1) information in medical records
provided by a third party under assurance that the information remains
confidential;
(2) information in medical records
if the attending physician determines in writing that the information is
detrimental to the patient’s treatment regimen. The determination must be placed in the
patient’s records and must be considered part of the restricted
information.
(C) Patients and guardians denied access to medical records
may appeal the refusal to the Director of the Department of Mental Health. The director of the residential program shall
notify the patient or guardian of the right to appeal.
SECTION 44‑22‑120. Patients’ rights; communication with outside; visitors;
personal belongings and effects;
clothing; religious practice; limits on rights made part of record and
valid no more than 30 days.
(A) Except to the extent the director of the facility
determines it is required by the medical needs or safety of the patient to
impose restrictions, a patient may:
(1) communicate by sealed mail,
telephone, or otherwise with persons, including official agencies, inside or
outside the institution. Reasonable
access to writing materials, stamps, and envelopes must be provided. Reasonable access to telephones including
funds or means in which to use telephones must be provided. The head of a residential program determines
what constitutes reasonable access;
(2) receive visitors including
unrestricted visits by legal counsel, private physicians, or members of the
clergy or an advocate of the South Carolina Protection and Advocacy System for
the Handicapped, Inc., if the visits take place at reasonable hours or by
appointment, or both. Each facility must
have a designated area where patients and visitors may speak privately if they
desire;
(3) wear his own clothes, have
access to personal hygiene articles, keep and spend a reasonable sum of his own
money, and keep and use his own personal possessions including articles for
personal grooming not provided for by the facility unless the clothes or
personal possessions are determined by a mental health professional to be
dangerous or otherwise inappropriate to the treatment regimen. If clothing is provided by the facility,
patients may select from neat, clean, seasonal clothing that allows the patient
to appear normal in the community. To
the extent staff determines a patient is able and willing to care for and
maintain the patient’s own clothing, the patient must be assisted in
maintaining this clothing during the patient’s stay in the facility;
(4) have access to secure individual
storage space for his private use.
Personal property of a patient brought into the hospital and placed in
storage by the hospital must be inventoried.
Receipts must be given to the patient and at least one other interested
person. The personal property may be
reclaimed only by the patient, his spouse, or his parent or guardian as long as
he is living unless otherwise ordered by the court. If property belonging to a patient is not
reclaimed within ninety days following the patient’s discharge or death,
the property may be utilized by the department for the benefit of other
patients or programs ten days after written notice is sent to the individual or
the individual’s family at the last known address;
(5) follow religious practices. Religious practices may be prohibited by the
facility director if they lead to physical harm to the patient or to others,
harassment of other patients, or damage to property.
(B) All limitations imposed by the director of a residential
program on the exercise of these rights by the patient and the reasons for the
limitations must be made part of the clinical record of the patient. These limitations are valid for no more than
thirty days.
SECTION 44‑22‑130. Physical examination of
involuntarily committed patient to rule out physical condition mimicking mental
illness.
Patients involuntarily committed to a facility may have a
physical examination to rule out physical conditions which may mimic mental
illness.
SECTION 44‑22‑140. Authorization of, and
responsibility for, treatment and medication; guidelines for medication; rights with respect to refusal of treatment.
(A) The attending physician or the physician on call, or
both, are responsible for and shall authorize medications and treatment given
or administered to a patient. The
attending physician’s authorization and the medical reasons for it must
be entered into the patient’s clinical record. The authorization is not valid for more than
ninety days. Medication must not be used
as punishment, for the convenience of staff, or as a substitute to or in
quantities that interfere with the patient’s treatment program. The patient or his legal guardian may refuse
treatment not recognized as standard psychiatric treatment. He may refuse electro‑convulsive
therapy, aversive reinforcement conditioning, or other unusual or hazardous
treatment procedures. If the attending
physician or the physician on call decides electro‑convulsive therapy is
necessary and a statement of the reasons for electro‑convulsive therapy
is entered in the treatment record of a patient who is considered unable to
consent pursuant to Section 44‑22‑10(13),
permission for the treatment may be given in writing by the persons in order of
priority specified in Section 44‑22‑40(A)(1‑8).
(B) Competent patients may not receive treatment or
medication in the absence of their express and informed consent in writing
except treatment:
(1) during an emergency situation if
the treatment is pursuant to or documented contemporaneously by written order
of a physician; or
(2) as permitted under applicable
law for a person committed by a court to a treatment program or facility.
SECTION 44‑22‑150. Restraint; seclusion; physical coercion.
(A) No patient residing in a mental health or alcohol and
drug abuse facility may be subjected to mechanical restraint, seclusion, or a
form of physical coercion or restraint unless the action is authorized in
writing by the attending or on‑call physician as being required by the
medical needs of the patient and unless the use of the restraint is a last
resort in treatment.
(B) Each use of a restraint or seclusion and justification
for it, including a reasonably specific description of the actions by the
patient that warranted restraint or seclusion, must be entered into the
clinical record of the patient. These
authorizations are not valid for more than twenty‑four hours during which
the patient’s condition must be charted at fifteen‑minute
intervals. If the orders are extended
beyond the twenty‑four hours, the extension must have written
authorization and justification by the attending physician and then only after
he has interviewed and evaluated the patient on an individual basis. Within twenty‑four hours a copy of the
authorization and justification must be forwarded to the facility supervisor
for review. Patients under mechanical
restraint must have the restraints removed at least every two hours for motion
and exercise. Mechanical restraint must
be employed to lessen the possibility of physical injury and to ensure the
least possible discomfort. In an
emergency such as the occurrence of, or serious threat of, extreme violence,
injury to others, personal injury, or attempted suicide, if the director of the
facility or the attending physician is not available, designated staff may
authorize, in writing, mechanical restraint, seclusion, or physical restraint
as necessary. The use must be reported
immediately to the director or attending physician who shall authorize its
continuance or cessation and shall make a written record of the reasons for the
use and of his review. The record and
review must be entered into the patient’s record. The facility must have written policies and
procedures governing the use of mechanical restraints, seclusion, and physical
restraints and clearly delineate, in descending order, the personnel who may
authorize the use of restraints in emergency situations. The authorization must be posted on each
ward.
(C) “Restraint” shall not include medical
protective devices used as a regular part of medical, diagnostic, or surgical
procedures, used to posturally support a patient, or
used to obtain or maintain normative bodily functioning.
SECTION 44‑22‑160. Employment within facility; compensation;
right to refuse nontherapeutic employment.
(A) Each patient may refuse nontherapeutic employment within the facility.