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Last updated January 2004
CHAPTER 1
DEFINITIONS AND
GENERAL PROVISIONS
§ 27A-1-1.
Definition of terms. Terms used in this title
mean:
(1) "Administrator," that person designated by the
secretary of human services to discharge the administrative functions of the
Human Services Center including the delegation of responsibilities to the
appropriate Human Services Center staff;
(2) "Appropriate regional facility," a facility
designated by the department for the prehearing
custody of an individual apprehended under authority of this title which is as
close as possible in the immediate area to where the apprehension occurred; and
is no more restrictive of mental, social, or physical freedom than necessary to
protect the individual or others from physical injury. In determining the least
restrictive facility, considerations shall include the preferences of the
individual, the environmental restrictiveness of the
setting, the proximity of the facility to the patient's residence, and the
availability of family, legal and other community resources and support;
(3) "Center," the
(4) "Danger to others," a reasonable expectation
that the person will inflict serious physical injury upon another person in the
near future, due to a severe mental illness, as evidenced by the person's
treatment history and the person's recent acts or omissions which constitute a
danger of serious physical injury for another individual. Such acts may include
a recently expressed threat if the threat is such that, if considered in the
light of its context or in light of the person's recent previous acts or
omissions, it is substantially supportive of an expectation that the threat
will be carried out;
(5) "Danger to self,"
(a) A reasonable expectation that
the person will inflict serious physical injury upon himself or herself in the
near future, due to a severe mental illness, as evidenced by the person's
treatment history and the person's recent acts or omissions which constitute a
danger of suicide or self-inflicted serious physical injury. Such acts may
include a recently expressed threat if the threat is such that, if considered
in the light of its context or in light of the person's recent previous acts or
omissions, it is substantially supportive of an expectation that the threat
will be carried out; or
(b) A reasonable expectation of
danger of serious personal harm in the near future, due to a severe mental
illness, as evidenced by the person's treatment history and the person's recent
acts or omissions which demonstrate an inability to provide for some basic
human needs such as food, clothing, shelter, essential medical care, or
personal safety, or by arrests for criminal behavior which occur as a result of
the worsening of the person's severe mental illness;
(6) "Department," the Department of Human
Services;
(7) "Essential medical care," medical care, that
in its absence, a person cannot improve or a person's condition may
deteriorate, or the person may improve but only at a significantly slower rate;
(8) "Facility director," that person designated to
discharge the administrative functions of an inpatient psychiatric facility,
other than the center, including the delegation of responsibilities to the
appropriate facility staff;
(9) "Informed consent," consent voluntarily, knowingly,
and competently given without any element of force, fraud, deceit, duress,
threat, or other form of coercion after conscientious explanation of all
information that a reasonable person would consider significant to the decision
in a manner reasonably comprehensible to general lay understanding;
(10) "Inpatient psychiatric facility," a public or
private facility or unit thereof which provides mental health diagnosis,
observation, evaluation, care, treatment, or rehabilitation when the individual
resides on the premises including a hospital, institution, clinic, mental
health center or facility, or satellite thereof. An inpatient psychiatric
facility may not include a residential facility which functions primarily to
provide housing and other such supportive services when so designated by the
department;
(11) "Inpatient treatment," mental health
diagnosis, observation, evaluation, care, treatment, or rehabilitation rendered
inside or on the premises of an inpatient psychiatric facility when the individual
resides on the premises;
(12) "Least restrictive treatment alternative,"
the treatment and conditions of treatment which, separately and in combination,
are no more intrusive or restrictive of mental, social, or physical freedom
than necessary to achieve a reasonably adequate therapeutic benefit. In
determining the least restrictive alternative, considerations shall include the
values and preferences of the patient, the environmental restrictiveness
of treatment settings, the duration of treatment, the physical safety of the
patient and others, the psychological and physical restrictiveness
of treatments, the relative risks and benefits of treatments to the patient,
the proximity of the treatment program to the patient's residence, and the
availability of family and community resources and support;
(13) "Mental health center," any private nonprofit
organization which receives financial assistance from the state or its
political subdivisions and which is established or organized for the purpose of
conducting a program approved by the department for the diagnosis and
treatment, or both, of persons with mental and emotional disorders;
(14) "Next of kin," for the purposes of this
title, the person's next of kin, in order of priority stated, is the person's
spouse if not legally separated, adult son or daughter, either parent or adult
brother or sister;
(15) "Physician," any person licensed by the state
to practice medicine or osteopathy or employed by a federal facility within the
State of
(16) "Resident," "patient," or
"recipient," any person voluntarily receiving or ordered by a board
or court to undergo evaluation or treatment;
(17) "Secretary," the secretary of the Department
of Human Services;
(18) "Severe mental illness," substantial organic
or psychiatric disorder of thought, mood, perception, orientation, or memory
which significantly impairs judgment, behavior, or ability to cope with the
basic demands of life. Mental retardation, epilepsy, other developmental
disability, alcohol or substance abuse, or brief periods of intoxication, or
criminal behavior do not, alone, constitute severe mental illness.
§ 27A-1-2.
Involuntary commitment. A person is subject to
involuntary commitment if:
(1) The person has a severe mental
illness;
(2) Due to the severe mental
illness, the person is a danger to self or others; and
(3) The individual needs and is
likely to benefit from treatment.
§ 27A-1-3.
Qualifications of mental health professionals. As
used in this title, the term, "qualified mental health professional",
means a physician licensed pursuant to chapter 36-4 or a member of one of the
professions listed in this section who has received a competency-based
endorsement as a qualified mental health professional from the Department of
Human Services. The following persons are eligible to apply for the
endorsement:
(1) A psychologist who is licensed
to practice psychology in
(2) A psychiatric nurse with a
master's degree from an accredited education program and two years of
supervised clinical experience in a mental health setting;
(3) A certified social worker with a
master's degree from an accredited training program and two years of supervised
clinical experience in a mental health setting;
(4) A person who has a master's
degree in psychology from an accredited program and two years of supervised
clinical mental health experience and who meets the provision of subdivision
36-27A-2(2);
(5) A counselor who is certified
under chapter 36-32 as a licensed professional counselor -- mental health; or
(6) A counselor who is certified
under chapter 36-32 as a licensed professional counselor and has two years of
supervised clinical experience in a mental health setting and who is employed
by the State of
(7) A therapist who is licensed
under chapter 36-33 as a marriage and family therapist with two years of
supervised clinical experience in a mental health setting.
Except as provided in § 36-4-20, each qualified mental
health professional shall meet all licensing and certification requirements
promulgated by the State of South Dakota for persons engaged in private
practice of the same profession in South Dakota. However, the private practice
licensure requirements for persons referred to in subdivisions (3) and (4) do
not apply to those employed by the State of
§ 27A-1-4.
Unlawful confinement of mentally ill as felony or
misdemeanor. Any person who intentionally and wrongfully places or
attempts to place any person in a facility for the mentally ill by any method
other than as prescribed by law is guilty of a Class 6 felony. Any person who confines any mentally ill person in any other
manner or in any other place than is authorized by law, is guilty of a Class 1
misdemeanor.
§ 27A-1-6. Neglect of duty by officer
or appointee as misdemeanor -- Liability for damages. Any officer required to
perform an act, and any person accepting an appointment under the provisions of
this title, who shall intentionally refuse or neglect
to perform his duty as herein prescribed, shall be guilty of a Class 1
misdemeanor, besides being liable to an action for damages.
§ 27A-1-7. Endorsements required for
qualification as mental health professional. After June 30, 1995, a person
may not function as a qualified mental health professional without having
either a temporary endorsement from the Department of Human Services as
provided in § 27A-1-8 or a competency-based endorsement as provided in §
27A-1-9. After
§ 27A-1-10.
Mental health setting. A mental health setting
is one in which the diagnosis and treatment of mental and emotional disorders
is the primary task of the mental health professional. A mental health setting
may be a clinic, hospital, social service agency, private professional service
provider, residential facility, mental health center, or other entity in which
a mental health professional provides diagnosis and treatment of mental and
emotional disorders.
CHAPTER 8
VOLUNTARY HOSPITALIZATION OF MENTAL PATIENTS
§ 27A-8-1.
Requirements for admission of voluntary patients.
The facility director or administrator may receive as a voluntary patient any
individual eighteen years of age or older who understands the nature of
voluntary inpatient treatment, is capable of giving informed consent, and
voluntarily executes a written application for admission, if the following
requirements are met:
(1) If, after examination by a staff
psychiatrist, the facility director or administrator determines that the
applicant is clinically suitable for inpatient treatment. In the event of the
unavailability of a staff psychiatrist, admission may be granted pending an
examination by a staff psychiatrist within one working day;
(2) A less restrictive treatment
alternative is inappropriate or unavailable;
(3) The individual is in need of and
will likely benefit from treatment which is available at the facility;
(4) The requirements in § 27A-8-15
have been met;
(5) The person does not have medical
needs which are beyond the capacity of the center or inpatient psychiatric
facility.
If a person eighteen years of age or older voluntarily seeks
admission to an inpatient psychiatric facility without any element of force,
duress, threat or other form of coercion and the facility director or
administrator determines, after the explanation required in § 27A-8-15, that
the person is incapable of exercising an informed consent to the admission, the
person may be admitted upon exercise of a substituted informed consent by a
guardian or a next of kin in accordance with § 27A-8-18 or 27A-8-19.
§ 27A-8-10. Immediate
discharge of adult voluntary patient after notice of intent to terminate.
Except as is provided in § 27A-8-10.1, a voluntary patient eighteen years of
age or over has the right to immediate discharge upon written notice of his
intention to terminate inpatient treatment. Upon informing a staff member of
the inpatient psychiatric facility of the intention to terminate inpatient
treatment, the facility shall promptly supply the patient with the required written
form.
§ 27A-8-10.1. Emergency
detention of voluntary inpatient after notice of intention to terminate.
If a written notice of termination of inpatient treatment is given to the
facility pursuant to § 27A-8-10, the notice is not withdrawn, and the facility
director or administrator or attending psychiatrist has probable cause to
believe that the patient requires emergency intervention under the criteria in
§ 27A-1-2 and should remain in the facility, the director or administrator or
attending psychiatrist may initiate a mental illness hold detaining the patient
for a period not to exceed twenty-four hours, not including weekends or
holidays, from the facility's receipt of the patient's written notice of
intention to terminate. The director or administrator shall immediately advise
the patient that he is being detained on a twenty-four hour mental illness hold
and explain the nature of such hold. The director or administrator shall
forthwith notify the chairman of the county board for the county where the
facility is located or a local peace officer of the time of receipt of the
notice to terminate, the time the hold was initiated, the circumstances
necessitating the hold, and the time and place the director or administrator or
attending psychiatrist will be available to file a petition pursuant to §
27A-10-1. This information shall also be made part of the signed petition, the
patient's medical records and be delivered to the patient. If a petition
pursuant to § 27A-10-1 is not filed with the chair within twenty-four hours of
the facility's receipt of the patient's written notice of intention to
terminate, the patient shall be immediately discharged. The twenty-four hour
period does not include weekends or holidays.
§ 27A-8-11.2.
Commitment of voluntary patient who has not applied
for release -- Reasons. An inpatient psychiatric facility director, the
center administrator or an attending psychiatrist may file a petition pursuant
to § 27A-10-1 for the commitment of a voluntary patient if clinically indicated,
even though a written notice of intention to terminate inpatient treatment has
not been received. Reasons for the filing of such petition shall be limited to
the following:
(1) The facility director, the
center administrator, or attending psychiatrist has probable cause to believe
that the patient meets the criteria in § 27A-1-2; and
(2) The patient, including a person
admitted upon exercise of a substituted informed consent by a guardian or a
next of kin pursuant to § 27A-8-1, is unwilling or unable to consent to
treatment deemed necessary by the treating physician and there are no other
appropriate treatments to which the patient is willing or able to consent; or
(3) The patient is unable or unwilling
to affirm consent to continued admission as required in § 27A-8-17.
§ 27A-8-14.
Notice to voluntary patients of release procedure -- Acknowledgment of
notice -- Display in wards. Upon voluntary admission, and at the end of the
first six months of hospitalization, and annually thereafter, the patient shall
be given a separate written notice of release procedures. In addition, a copy
of the written notice shall be given to any one other person designated by the
patient. The patient shall acknowledge deliverance of the notice in writing, or
an affidavit that he was so informed shall be attached to his record. Every
voluntary patient has the right to discharge upon request as provided in §
27A-8-10. Detailed release procedures in simple and nontechnical
language shall be permanently and prominently displayed in every psychiatric
ward.
§ 27A-8-15.
Explanation required prior to acceptance of voluntary inpatient --
Informed consent -- Application form. Before an individual is accepted for
voluntary inpatient treatment at an inpatient psychiatric facility, an
explanation shall be made to him of the nature of such status, including the
types of treatment available, and restraints or restrictions to which he may be
subject including possible conversion to involuntary status as provided in this
chapter together with a statement of his rights under this title.
An informed consent as defined in subdivision 27A-1-1(8)
shall be obtained orally and in writing upon an application form which shall
contain in bold print and simple language the substance of § § 27A-8-10,
27A-8-11.2, 27A-8-14, and 27A-8-10.1. In addition, the application form shall
include the following representations:
(1) The applicant understands that
his treatment will involve inpatient status;
(2) He is willing to be admitted to
the facility;
(3) He consents to such admission
voluntarily, without any element of force, duress, threat, or other form of
coercion.
The consent shall be part of the person's record. In
addition, a copy of the signed application and a written statement of the
patient's rights under this title shall be given to the patient and to any one
other person designated by the patient.
§ 27A-8-16. Person requesting voluntary
status to be admitted only as voluntary -- Referrals for those denied
admission. A person requesting voluntary admission to an inpatient psychiatric
facility, who is clinically suitable for voluntary
inpatient treatment, shall be admitted only on such voluntary status. The
facility director or administrator shall give to an individual who is denied
admission to the facility a referral to other facilities or programs that may
be able to provide the treatment needed by the individual.
§ 27A-8-17.
Assessment of need for continued admission -- Informed consent required
for continued admission -- Substitute informed consent. Thirty days after the
voluntary admission of a patient and every ninety days thereafter, the facility
director or center administrator shall review the patient's record and assess
the need for continued admission. If continued admission is indicated, the
facility director or center administrator shall consult with the patient and
request from the patient an oral and written affirmation of his informed
consent to continued admission. If a patient was admitted upon the substituted
informed consent of a guardian or next of kin as provided in § 27A-8-1, and
continues to be incapable of exercising an informed consent to continued
admission, a substituted informed consent to continuing admission shall be
obtained from the guardian or next of kin. The notification, request, and
affirmation shall become part of the patient's record. A patient's, next of
kin's, or guardian's failure to affirm his informed consent to continued
admission constitutes notice of an intention to terminate inpatient treatment
as provided in § 27A-8-10.
§ 27A-8-18.
Exercise of substituted informed consent by guardian. A guardian with
authorization by the appointing court may exercise a substituted informed
consent in accordance with the requirements in § 27A-8-15 for the sole purpose
of admission of a person to an inpatient psychiatric facility or the center.
Upon the exercise of such a substituted informed consent, the facility director
or center administrator may admit the person as a voluntary patient if the
criteria in subdivisions 27A-8-1(1) to (3), inclusive, are met and the guardian
and person have signed the application for admission required in § 27A-8-15.
The person is entitled to all rights accorded other voluntary patients by this
title, including those provided in § 27A-8-10.
§ 27A-8-19. Substituted
informed consent by next of kin -- Court hearing. The person's next of
kin may exercise a substituted informed consent in accordance with the
requirements in § 27A-8-15 for the sole purpose of admission to an inpatient
psychiatric facility or the center. Upon the exercise of such a substituted
informed consent, the facility director or center administrator may admit the
person as a voluntary patient for a period not to exceed fourteen days if the
criteria in subdivisions 27A-8-1(1) to (3), inclusive, are met and the family
member and person have signed the application for admission required in §
27A-8-15. During the fourteen-day admission period, the consenting next of kin
shall file a petition in circuit court for an order authorizing the admission.
If a petition is timely filed, admission of a nonobjecting
person may continue until the court hearing. If a petition is not filed, the
person shall be discharged upon the expiration of the fourteen-day admission
period. Notice of the hearing shall be delivered to the next of kin and the
person and their attendance at the hearing is required unless the court, for
good cause shown, excuses attendance by the person. The court may authorize the
admission upon a finding that the person is voluntarily assenting to admission
without any element of force, duress, threat or other form of coercion and that
the criteria in subdivisions 27A-8-1(1) to (3), inclusive, are met. The person
is entitled to all rights accorded other voluntary patients by this title,
including those provided in § 27A-8-10.
.
CHAPTER 10
EMERGENCY COMMITMENT OF DANGEROUSLY ILL PERSONS
§ 27A-10-1.
Petition asserting need for immediate intervention of
mentally ill person -- Contents. If any person is alleged to be severely
mentally ill and in such condition that immediate intervention is necessary for
the protection from physical harm to self or others, any person, eighteen years
of age or older, may complete a petition stating the factual basis for
concluding that such person is severely mentally ill and in immediate need of
intervention. The petition shall be upon a form and be verified by affidavit.
The petition shall include the following:
(1) A statement by the petitioner
that the petitioner believes, on the basis of personal knowledge, that such
person is, as a result of severe mental illness, a danger to self or others;
(2) The specific nature of the
danger;
(3) A summary of the information
upon which the statement of danger is based;
(4) A statement of facts which
caused the person to come to the petitioner's attention;
(5) The address and signature of the
petitioner and a statement of the petitioner's interest in the case; and
(6) The name of the person to be
evaluated; the address, age, marital status, and occupation of the person and
the name and address of the person's nearest relative.
The state's attorney or other person designated by the board
of county commissioners shall assist the petitioner in completing the petition.
No designee may be a member of the county board of mental illness. Upon
completion of the petition, the petition shall be forthwith submitted to the
chair of the county board of mental illness where such severely mentally ill person
is found. The term, forthwith, means that the petition shall be completed and
submitted to the chair at the earliest possible time during normal waking
hours. If a petition is not filed with the chair within twenty-four hours of
the apprehension of the person, the person shall be released. If the person is
released, the referring county shall provide the person with transportation to
the county where the person was taken into custody if the person so chooses. If
the county where the person was apprehended is served by a board other than the
board serving the county where the facility to which the person is transported
is located, a copy of the petition shall also be forthwith filed with the chair
of such board.
§ 27A-10-1.1.
Center as appropriate regional facility in certain
circumstances. If a competent person agrees to receive treatment at the
Human Services Center and the treatment is arranged with the center but upon
arrival the person does not consent to admission or if a person agrees to
accept treatment at the center and the treatment is arranged but upon arrival
the person is examined and found not competent to consent to admission, if
there is no next of kin available or if there is next of kin available but the
person does not consent to admission, and if the attending psychiatrist has
probable cause to believe that the person requires emergency intervention under
the criteria in § 27A-10-1, the center may be used as an appropriate regional
facility.
§ 27A-10-2.
Order for apprehension of subject -- Transportation to
appropriate facility -- Payment of expenses. After examination of a
petition filed under § 27A-10-1, the chair of the county board of mental
illness may order the apprehension and transportation by a law enforcement
officer or other designee of any person whom the chair has probable cause to
believe meets the criteria in § 27A-10-1 to an appropriate regional facility
other than the Human Services Center. No jail may be used for prehearing custody until the availability of other appropriate
regional facilities has been explored and exhausted. No person may be held in a
jail for longer than twenty-four hours on a mental illness hold alone.
If the alleged mentally ill person is a nonresident of the
state, the
If the facility to which the person is transported is in a
county served by another board of mental illness, a copy of the petition shall
be forthwith filed with the chair of such board. The referring county shall pay
any expenses incurred in apprehension and transportation of the person, subject
to reimbursement by the county ultimately proven to be the county of residence.
No lien may be placed against the person for the costs incurred in the
apprehension or transportation of the person.
§ 27A-10-3.
Apprehension by peace officer of person believed to require emergency
intervention -- Transportation to appropriate regional facility. A peace
officer may apprehend any person that he has probable cause to believe requires
emergency intervention under the criteria in § 27A-10-1. The peace officer
shall transport the person to an appropriate regional facility, as defined in §
27A-1-1, other than the
§ 27A-10-4. Petition on person
apprehended. After a law enforcement officer or other designee transports an
apprehended person to an appropriate regional facility pursuant to § 27A-10-3,
the law enforcement officer, a physician, or other person with personal knowledge
of the relevant facts shall complete a petition as provided in § 27A-10-1.
§ 27A-10-5.
Notification of rights upon custody, detention, or
filing of petition -- Notice to county board where person apprehended.
Immediately after a person is taken into custody pursuant to § 27A-10-2 or
27A-10-3, a hold is initiated pursuant to § 27A-8-10.1 or 27A-10-19, or a
petition is filed pursuant to § 27A-8-11.2, the person shall be notified both
orally and in writing of the following:
(1) The right to immediately contact
someone of the person's choosing;
(2) The right to immediately contact
and be represented by counsel;
(3) That the person will be examined
by a qualified mental health professional, designated by the chair of the
county board of mental illness, within twenty-four hours after being taken into
custody to determine whether custody should continue; and
(4) The right, if custody is
continued, to an independent examination and to a hearing within five days
after being taken into custody, within six days if there is a Saturday, Sunday,
or holiday within that time period, or within seven days if there is a
Saturday, Sunday, and holiday within that time period.
The person shall be further notified that the costs of any
post-commitment treatment, medication, compensation for the attorney appointed
to represent the person in any appeals proceedings, an additional examination
requested by the person pursuant to § 27A-11A-9, and a certified transcript or
tape of proceedings requested by the person pursuant to § 27A-11A-2 are that
person's responsibility and that a lien for the amount of these costs may be
filed upon the person's real and personal property to ensure payment.
The notice shall also be given forthwith to the county board
serving the county where the person was apprehended.
§ 27A-10-6.
Professional examination of person apprehended -- Report to chair --
Person released if not dangerous. Within twenty-four hours after apprehension
of any person who allegedly requires emergency intervention or a hold is
initiated pursuant to § 27A-8-10.1, or a petition is filed pursuant to §
27A-8-11.2, a qualified mental health professional designated by the chair of
the county board serving the area where the person is detained other than the
person bringing the petition or initiating the hold shall perform an
examination, including a mental status examination, of the person. Preceding
the examination, the qualified mental health professional shall identify
herself or himself to the person and explain the nature and purpose of the
examination, including the fact that it is being performed to assist in the
determination of whether custody should continue and that the examination may
be used as evidence in an involuntary commitment hearing. The qualified mental
health professional shall immediately report any findings to the chair of the
county board. The referring county shall pay any expenses of the examination by
the qualified mental health professional, subject to reimbursement by the
county ultimately proven to be the county of residence. No lien may be placed
against the person for the costs incurred in the qualified mental health
professional examination.
§ 27A-10-7.
Results of examination -- Person released upon failure of examination to
meet criteria -- Continued detention if criteria met. If the examination
required in § 27A-10-6 does not support a finding that the person meets the
criteria for involuntary commitment in § 27A-1-2, the person shall be released.
Following such release, the referring county shall provide the person with
transportation to the county where the person was taken into custody if the
person so chooses. These costs are subject to reimbursement by the county
ultimately proven to be the county of residence. No lien may be placed against
the person for the transportation expenses. If the chair of the county board
finds, as a result of the examination required in § 27A-10-6 and an
investigation of the petition for emergency intervention that the person meets
the criteria in § 27A-1-2, the chair may order that the person continue to be
detained in an appropriate regional facility including, if necessary, the
center, pending the hearing required in § 27A-10-8. No lien may be placed
against the person for the costs associated with detainment pending the
hearing.
§ 27A-10-7.1.
Chairman to make final determination where person
voluntarily admits himself. If the person is willing to admit himself to an inpatient psychiatric facility or other
treatment program on a voluntary basis and the admission is deemed suitable by
the facility or program, the chairman of the county board to whom the petition
was filed shall be notified and shall make the final determination.
§ 27A-10-7.2. Refusal of
prehearing admission. The center may refuse prehearing admission to a person under this chapter unless
the examination report and determination required in §§ 27A-10-6 and 27A-10-7
have been accomplished.
§ 27A-10-8. Time limit
for involuntary commitment hearing -- Payment of expenses. Within five
days after the person is taken into custody, within six days if there is a
Saturday, Sunday, or holiday within that time period, or within seven days if
there is a Saturday, Sunday, and holiday within that time period, the person
shall be provided an involuntary commitment hearing. The referring county shall
pay any expenses incurred by the board holding the hearing, including the
transportation of the person to the hearing, subject to reimbursement by the
county ultimately proven to be the county of residence. No lien may be placed
against the person for the expenses incurred by the board holding the hearing,
including the transportation of the person to the hearing.
§ 27A-10-9. Testimony
of independent qualified mental health professional on availability and
appropriateness of alternatives. The board of mental illness conducting
the involuntary commitment hearing as provided in § 27A-10-8 shall order
testimony by a qualified mental health professional independent of the
petitioner who shall assess the availability and appropriateness of treatment
alternatives including treatment programs other than inpatient treatment and
specifically including whether such programs are available at the mental health
center serving the area in which the person was apprehended or resides. Such
testimony shall include what alternatives are or should be made available, what
alternatives were investigated, and why any investigated alternatives are not
deemed appropriate. If the board determines that alternatives to inpatient
treatment are appropriate, commitment for inpatient treatment to the center or
other inpatient psychiatric facility may not be ordered and commitment shall be
to the least restrictive treatment alternative as required in subdivision
27A-10-9.1(3).
§ 27A-10-9.1.
Ninety-day initial commitment period -- Release on finding by county
board -- Transportation to county where taken into custody -- Transportation
costs -- Appeal of commitment order. Upon completion of the hearing provided in
§ 27A-10-8, the Board of Mental Illness may order the involuntary commitment of
the person for an initial period not to exceed ninety days if a majority of the
board finds by clear and convincing evidence, supported by written findings of
fact and conclusions of law, that:
(1) The person meets the criteria in
§ 27A-1-2;
(2) The person needs and is likely
to benefit from the treatment which is proposed; and
(3) The commitment is to the least
restrictive treatment alternative.
The board may commit the person to the
If the above findings are not made, the board shall order
that the person be released. Following such release, the referring county shall
provide the person with transportation to the county where the person was taken
into custody if the person chooses. The county ultimately shown to be the
county of residence shall reimburse the referring county for any transportation
costs. However, the provisions of chapter 28-14 do not apply. If the board
orders the involuntary commitment of the person, the board shall immediately
notify the person and the person's attorney of the right to appeal pursuant to
§ 27A-11A-25.
§ 27A-10-14.
Review hearing after involuntary commitment order -- Notice -- Rights
and procedures. Within ninety days after the involuntary commitment of a person
who is still under the commitment order, the county board of mental illness
which serves the county in which the person is receiving treatment shall
conduct a review hearing in the county to determine if the person continues to
meet the criteria in § 27A-10-9.1. Notice of the review hearing shall be given
to the person, and the person's attorney if the person
has retained counsel, at least ten days prior to the hearing. If the person has
not retained counsel at the time of the notice, the chair of the county board
shall immediately appoint counsel to represent the person.
At the time the notice of hearing is given, the person and
the person's attorney shall be informed of all evidence that will be considered
at the review hearing. Any evidence subsequently discovered shall be
immediately transmitted to the person and the person's attorney. The rights and
procedures applicable during an initial commitment hearing are applicable to
review hearings. A petition pursuant to § 27A-10-1 need not be filed.
The board of mental illness may order the continued
involuntary commitment of the person to the same or an alternative placement or
program for up to six months if a majority of the board finds by clear and
convincing evidence supported by written findings of fact and conclusions of
law that the criteria in § 27A-10-9.1 are met. If continued involuntary
commitment is ordered, a review in the manner provided in this section shall be
conducted within six months after the order. If the county board issues another
order of continued involuntary commitment, the next review shall be held within
six months after the order. If the second six-month review justifies continued
commitment, the county board may order continued involuntary commitment for up
to twelve months. Subsequent reviews shall be conducted within each twelve
months thereafter that the person remains under commitment.
If the board orders the continued involuntary commitment of
the person, the board shall immediately notify the person and the person's
attorney of the person's right to appeal pursuant to § 27A-11A-25.
If findings that justify continued commitment are not made,
the board shall order that the person be immediately discharged from
involuntary commitment. Following discharge, the referring county shall provide
the person with transportation to the county where the person was taken into
custody if the person so chooses. The county ultimately shown to be the county
of residence shall reimburse the referring county for any transportation costs.
No lien may be placed against the person for the expense incurred in the
transportation of this person.
§ 27A-10-15. Additional
review hearings. Notwithstanding the provisions of §§ 27A-10-9.1 and
27A-10-14, if the board of mental illness orders an initial commitment or a
continued commitment it may also schedule at the time of such initial
commitment hearing or at the time of such review hearing, and without further
notice, a review hearing in addition to the statutory review hearings provided
in § 27A-10-14, to determine whether the person continues to meet the criteria
in § 27A-10-9.1. The rights, procedures, and findings required in § 27A-10-14,
shall apply to such additional review hearing. No temporary periods of
involuntary commitment are authorized.
§ 27A-10-16. Emergency
apprehension -- Evaluation by designated mental health professional.
Upon being informed of the emergency apprehension of an individual under the
provisions of this chapter, the chairman of the county board of mental illness
with jurisdiction over the person shall notify the community mental health
center serving the area in which the board of mental illness is located of the
emergency apprehension.
The chairman of the county board of mental illness may
designate any qualified mental health professional to perform the evaluation
required in § 27A-10-6.
§ 27A-10-17.
Prehearing admission and commitment denied if
medical condition exceeds center's capacity. The center may refuse the prehearing admission and commitment of a person under this
chapter who has a medical condition which exceeds the capacity of the center.
§ 27A-10-18.
Refusal of admission and commitment when medical
condition exceeds center's capacity. The center may refuse the admission
and commitment of a person under this chapter who has a medical condition which
exceeds the capacity of the center.
§ 27A-10-19. Twenty-four hour hold of
severely mentally ill person permitted -- Notice to county board. If any person
presents to a facility licensed by the state as a hospital, other than the
Human Services Center, and after an examination by a qualified mental health
professional it is determined that the person is severely mentally ill and in
such condition that immediate intervention is necessary to protect the person
from physical harm to self or others, the qualified mental health professional
may initiate a twenty-four hour hold on the person and retain the person at the
hospital for purposes of observation and emergency treatment. The hospital or
the qualified mental health professional shall notify the chair of the county
board of mental illness of the twenty-four hour hold. The qualified mental
health professional shall petition for commitment of the person according to §§
27A-10-1 and 27A-10-4. The person shall be afforded rights according to §
27A-10-5. If a petition for emergency commitment pursuant to § 27A-10-1 is
not filed within twenty-four hours, the person shall be released.
CHAPTER 11A
HEARINGS PROCEDURE
§ 27A-11A-1. Process issued by board --
Conduct of meetings -- Evidentiary rulings -- Notice by mail. The chairman or
acting chairman of the board of mental illness shall sign and issue all notices, appointments, warrants, subpoenas, or other process
required to be given or issued by the board, shall be responsible to conduct
all meetings and hearings by the board and shall make all evidentiary rulings.
The notices, reports, and communications herein required to be given or made
may be sent by mail unless otherwise expressed or implied, and the fact and
date of such sending or reception shall be noted on the proper record.
§ 27A-11A-2. Stenographic
record of proceedings -- Certified transcript or tape requested by patient --
Expense. A court reporter shall attend all hearings of the county board
of mental illness and keep a stenographic record of all proceedings; or a
record of all hearings shall be recorded by tape recorder or other sound
reproducing equipment. If a tape recorder or other sound reproducing equipment
is used, the equipment shall be of such quality that each word of the testimony
and rulings made with reference thereto can be clearly heard and understood.
All recorded testimony shall be preserved for at least five years.
A person who has been committed may request a certified
transcript or, if a tape recorder is utilized, a copy of the taped testimony of
the hearing. To obtain a copy the patient shall pay for a transcript or copy of
the tape recorded testimony or shall file an affidavit that he is without means
to pay for such transcript or tape recording. If the affidavit is found true by
the board of mental illness, the expense of the transcript or copy of the tape
recorded testimony is a charge upon the county of residence of the patient.
§ 27A-11A-3.
Filing of board papers with clerk of courts --
Confidentiality and access. The chairman or acting chairman of the board
of mental illness shall cause to be filed in the office of the clerk of courts
all papers and any other records of proceedings connected with any inquest of
the board, and properly belonging to his office with all notices, reports, and
other communications. The clerk of courts shall keep separate books in which to
record the proceedings of the board, and his entries shall be sufficiently full
to show, with the papers filed, a complete record of the findings, orders, and
transactions of the board.
All records of proceedings under this title shall be subject
to the confidentiality and access provisions of § 27A-12-25 et seq. Any such
records regarding a person who is released prior to or directly following the
completion of a hearing provided for in § 27A-10-8 shall be sealed upon such
release and shall be opened only by court order of the circuit court.
§ 27A-11A-4. State's attorney
to represent petitioners -- Reasonable costs. In any proceeding for
involuntary commitment, review, or detention, or in any proceeding challenging
commitment or detention, the state's attorney for the county in which the
proceeding is held shall represent the petitioner and shall defend all
challenges to commitment or detention. The county ultimately shown to be the
county of residence shall reimburse the county in which the proceeding is held
for any reasonable cost of such representation. No lien may be placed against
the person for the costs incurred in any proceeding for involuntary commitment,
review, or detention.
§ 27A-11A-5. Personal service of notice of
hearing -- Contents of notice. Copies of the petition and notice of hearing
shall be personally served forthwith by the sheriff on the person prior to the
hearing. The notice of hearing shall include the following:
(1) Notice of the time, date, and
place of hearing;
(2) Notice to the person of the
right to be represented by an attorney retained by the person or appointed by
the chair of the board wherever the hearing is to be held;
(3) Notice that the person will be
examined by a qualified mental health professional or physician designated by
the chair of the county board within twenty-four hours of being taken into
custody;
(4) Notice that the medical records
of the person will be available to the qualified mental health professional or
physician and defense lawyer; and
(5) Notice of the right of the
person to obtain an additional examination, the reasonable expense of which
shall be reimbursed to the county by the person unless the person is indigent.
§ 27A-11A-6. Sheriff's
and witnesses' fees. The sheriff shall be allowed the same fee as for
like services in other cases. The witnesses shall be allowed the same fees as
the witnesses in the circuit court.
§ 27A-11A-7. Assignment of counsel to
represent alleged mentally ill person -- Time allowed. If upon the completion
of the evaluation required in § 27A-10-6 it is determined that a hearing shall
be held and the alleged mentally ill person has not or cannot employ his own
counsel, the chairman of the board of mental illness where the hearing is to be
held shall immediately assign counsel to represent the interests of the person.
In no instance may a person not be represented by counsel.
§ 27A-11A-9. Expenses
of evaluation -- Additional examination. The referring county shall pay
any expenses of the evaluation required in §§ 27A-10-6 and 27A-15-17.1, subject
to reimbursement by the county ultimately proven to be the county of residence.
No lien may be placed against the person for the costs incurred in completing
the evaluation required in §§ 27A-10-6 and 27A-15-17.1. The person has the right
to obtain an additional examination paid for by the county which may be placed
in evidence before the board, the reasonable expense of which shall be
reimbursed to the county unless the person is indigent. A lien for the amount
of these costs may be filed upon the person's real and personal property to
ensure payment.
§ 27A-11A-10. Precautions against drugs
hampering defense -- Record of treatments administered. If the person is
receiving treatment, the qualified mental health professional shall take all
reasonable precautions to ensure that at the time of the hearing the person is
not so under the influences of, or so affected by drugs, medication, or other
treatment or interventions as to be hampered in preparing for or participating
in the hearing. The board of mental illness at the time of the hearing shall be
presented a record of all drugs, medication, and other treatments or
interventions the person has received since being taken into custody. For
review hearings, the board of mental illness at the time of hearing shall be
presented with the medical record containing information on medications and
treatments the person has received within the past year.
§ 27A-11A-11. Personal
appearance at hearing -- Presentation of evidence -- Choosing not to appear.
The person may appear personally at any hearing and testify on his own behalf,
but may not be compelled to do so. He has the right to subpoena and
cross-examine witnesses and to present evidence. If the person chooses not to
appear, his attorney shall state on the record that the person has been
informed of the hearing and of his right to appear and chooses not to exercise
this right. Documentation of the reasons for the person's decision may not be
required. The board of mental illness may exclude any person not necessary for
the conduct of the proceedings from the hearings, except any person requested
to be present by the proposed patient.
§ 27A-11A-12. Compensation
for appointed counsel. Counsel appointed by the board or a court to
represent a person shall be paid by the county of residence. The counsel shall
be reasonably compensated for such services and for necessary expenses and
costs incident to the proceedings at the rate fixed by the circuit court and in
an amount approved by the chair of the board of mental illness of the referring
county. No lien may be placed against the patient for the cost of counsel
related to any pre-commitment hearing or hearing to review commitment status
pursuant to §§ 27A-10-14 and 27A-10-15.
§ 27A-11A-13. Determining
residency. If the board of mental illness finds that a person meets the
criteria in § 27A-10-9.1, the board shall enter a finding, based on the
criteria in § 28-13-3, regarding the county of residence of the person or a
finding that the person is not a resident of this state.
§ 27A-11A-14.
Request by county to reopen hearing on question of
residence -- Time and place of hearing -- Notice -- Filing and mailing of
ultimate finding -- Payment of expenses. Within ten days of the
auditor's receipt of the committing board's findings regarding the residence
and summary of proofs thereon, the county, other than the referring county, in
which residence was found to be may request the committing board of mental
illness to reopen the hearing upon the question of the person's residence by
mailing a request to the chair of the committing board of mental illness. Upon
receipt of the request to reopen the commitment hearing, the committing board
of mental illness shall, as soon as practicable, afford the county determined
to be the person's county of residence an opportunity to appear before the
board, at a time and place set by the board and not more than thirty days from
the date of the request to reopen the hearing. Notice of the reopened hearing
shall be given to the county where the person was found and to the county
requesting the reopening of the hearing at least ten days prior to the reopened
hearing by mailing notice thereof to the respective county auditors. Either
county appearing at the reopened hearing may present any evidence it may have
to establish that it is not the county of residence of the person. The board
shall then determine, by a preponderance of evidence, the county of residence
of the patient and either affirm or modify its prior finding. The ultimate
finding of residence shall be filed with the clerk of courts of the committing
county and the county of residence with copies mailed to the administrator of
the center or other facility where the person is undergoing treatment.
The referring county shall pay any expenses incurred by the
committing board in conducting any reopened hearing, subject to reimbursement
by the county ultimately proven to be the county of residence. No lien may be
placed against the patient for the costs incurred in conducting any reopened
hearing requested by county regarding the question of residence.
§ 27A-11A-15. Attorney general notified of
findings as to nonresidency in state. If a person is
found at an initial or reopened hearing not to be a resident of the state, the
board of mental illness shall forward to the attorney general a copy of its
findings and a summary of the proofs upon which the findings are based.
§ 27A-11A-16.
Hearing reopened at attorney general's request -- Notice -- Mailing of
ultimate findings -- Payment of expenses. Within ten days of the attorney
general's receipt of the committing board's findings regarding residence and
summary of proofs thereon, the attorney general may request the committing
board of mental illness to reopen the hearing by mailing a request to the
chairman of the committing board of mental illness. Notice of the reopened
hearing shall be given to any county adversely interested and to the attorney
general at least ten days prior to the reopened hearing by mailing notice to
the county auditor of any county adversely interested and to the attorney
general. Any county adversely interested or the attorney general may present
evidence to establish the residence of the person at the reopened hearing. The
board shall then determine, by a preponderance of evidence, whether the person
is a resident of a particular county or whether the patient is not a resident
of the state and shall affirm or modify its prior finding. The ultimate finding
of residence shall be filed with the clerk of courts of the committing county
and copies thereof mailed to the administrator of the center or other facility
where the patient is undergoing treatment and to the auditor of any county
found to be the residence of the patient or to the attorney general if the
person is found not to be a resident of the state.
Expenses incurred by the committing board in conducting any
reopened hearing shall be paid by the referring county, subject to
reimbursement by the county ultimately proven to be the county of residence or
if a nonresident of the state, by the State of South Dakota.
§ 27A-11A-17. County of residence to
refund attorney general's expenses. Expenses incurred by the attorney general
on account of a person whose residence is in a county of this state shall be
refunded with lawful interest thereon by the county of residence.
§ 27A-11A-18. Distribution
of copies of board findings and documents. If a person is found by the
county board of mental illness to meet the criteria in § 27A-10-9.1, the
chairman of the board of the county in which such person is so adjudged shall
notify the administrator, or facility director, or if the person is not
committed to an inpatient psychiatric facility, the director of the program, by
immediately forwarding to him a duplicate copy of the report of the examining
qualified mental health professional, a duplicate order committing the person,
and the findings of the board including the board's finding regarding the county
of residence of the person or its finding that such person is not a resident of
this state.
§ 27A-11A-19.
Hearing required prior to transfer of involuntarily committed patient --
Petition -- Payment of expenses. No person who is under an order of involuntary
commitment may be transferred to a more restrictive treatment facility without,
prior to the transfer, a hearing before the board of mental illness which
committed the person. A petition for transfer shall be filed with the chair of
the board. The person shall have at least five days notice of the hearing and
has the right to be represented by an attorney. At the time of the notice, the
board chair shall appoint an attorney to represent the person if that person
has not retained counsel.
If transfer to the more restrictive treatment facility is
necessary to prevent the immediate danger of physical harm to the person or
others, the transfer may be authorized by the chair of the board pending the
hearing. The hearing shall be held within five days of the initiation of the
transfer, within six days if there is a Saturday, Sunday, or holiday within
that time period, or within seven days if there is a Saturday, Sunday, and
holiday within that time period.
Upon completion of the hearing, if the board finds by clear
and convincing evidence supported by written findings of fact and conclusions
of law that the proposed transfer meets the criteria in § 27A-10-9.1, the board
may authorize the transfer pursuant to the initial commitment order. The
transfer hearing does not substitute for the review hearings to which the
person would otherwise be entitled under §§ 27A-10-14 and 27A-10-15.
The county board of mental illness authorizing a transfer
under this section may authorize the sheriff of the county from which the
person was initially committed to transfer the person at the expense of the
county. The sheriff shall be paid no per diem but only mileage as allowed by
law.
§ 27A-11A-20.
Appointment of escort to convey patient to center --
Same sex -- Expenses -- Relative as escort. The chairman of the county
board of mental illness may appoint someone, other than a relative of the
patient, to convey the patient to the center or facility, but in no instance
may a person convey persons of the opposite sex and no per diem or other
compensation other than expenses may be allowed such attendant.
If any relative or member of the family of the person
desires to convey such person to the center or facility, the chairman of the
board may authorize such relative or member of the family to take charge of
such person to convey him to the center or facility; provided, that in the
judgment of the chairman of the board such relative or member of the family is
a competent person for that purpose and that such person can with safety be
entrusted to the care of such relative while en route.
§ 27A-11A-21. Noncompliance
with treatment order -- Alternative treatment -- Notice and right to counsel.
If the individual ordered to undergo a program of treatment does not comply
with the order, the board of mental illness shall conduct a hearing for the
sole purpose of determining compliance or noncompliance, and if noncompliance
is determined, the board may modify its original order and direct the
individual to undergo an alternative program of treatment consistent with the
criteria in § 27A-10-9.1. At least five days' notice of the hearing shall be
given to the person, and he shall be represented by counsel.
§ 27A-11A-22.
Unsuccessful treatment -- Hearing -- Modification of
treatment. If at any time while a person is under an order of commitment
it comes to the attention of the board of mental illness that the program of
treatment has not been successful, the board shall conduct a hearing within
five days, within six days if there is a Saturday, Sunday, or holiday within
that time period, or within seven days if there is a Saturday, Sunday, and
holiday within that time period. The person shall be represented by counsel and
the person and the counsel shall be given at least five days notice of the
hearing. If the board finds that the program of treatment has
not been successful, it shall modify the original order and direct the person
to undergo an alternative program of treatment if consistent with the criteria
in § 27A-10-9.1.
If at any time while the person is under an order of
commitment the administrator or facility director determines that the program
of treatment has not been successful, the administrator or facility director
shall notify the board of mental illness of that fact.
§ 27A-11A-23.
Fund designated for expenses of commitment proceeding. The compensation,
fees, and expenses in any commitment proceeding shall be allowed and paid out
of a fund designated for that purpose in the county treasury in the usual
manner, if there is a sufficient amount in such fund to pay the same, and if
not, it may be paid out of the general fund.
§ 27A-11A-24. Rules of
evidence. The rules of evidence shall be followed at all hearings and
reviews held pursuant to this title.
§ 27A-11A-25.
Appeal of final order -- Costs for indigent person. A person may appeal
a final order of a county board of mental illness pursuant to any hearing or
review conducted under this title. In the case of a minor, or a person for whom
the guardian has been appointed, such right to appeal may be exercised on
behalf of the person by an attorney. The person shall be advised of this right
upon the termination of any proceedings, both verbally and in writing. The
appeal shall be conducted in accordance with the provisions of chapter 1-26.
None of the rights granted in this section may be denied due
to a person's inability to pay for costs and fees incurred in such proceedings.
The board of county commissioners of the county where an indigent person has residence
shall provide for the cost of representation of the person through the
conclusion of actions brought under this section.
§ 27A-11A-26.
Appointed attorney not guardian ad litem. An
attorney appointed under the provisions of this chapter shall advocate the
legal rights of the person and otherwise fully represent him. The attorney
shall not act as a guardian ad litem.
§ 27A-11A-27.
Guardianship of estate unaffected by board
proceedings. The findings, order, or judgment of a board of mental illness
may not affect any guardianship proceeding instituted before or after such
findings, order, or judgment by any court having jurisdiction in such cases,
excepting that the provisions of this title shall control the custody,
treatment, care, and other regulation and rights of an involuntarily committed
person.
§ 27A-11A-28. Location
and conduct of hearings and reviews. Hearings and reviews provided by
this title shall be conducted in a courtroom of the county courthouse or such
other place within the designated county as the chairman of the county board
may designate with due regard to the rights, safety, and comfort of the person.
CHAPTER 12
CARE, TREATMENT AND RIGHTS OF MENTAL PATIENTS
§ 27A-12-1. Individual
privacy and dignity to be respected. Each person has the right to a
humane environment that affords appropriate individual privacy, individual
dignity and reasonable protection from harm. These rights shall be respected at
all times and upon all occasions, including any occasion when the person is
taken into custody, detained, or transported in accordance with the provisions
of this title.
§ 27A-12-1.1. "Person" defined.
For the purpose of this chapter, the term "person" means any
individual subject to the authority of this title, either on a voluntary or
involuntary basis.
§ 27A-12-1.2. Commitment
not conclusive on competence. Notwithstanding any other provision of
law, no person may be deemed incompetent to manage his affairs, to contract, to
hold professional, occupational, or other licenses, to marry and obtain a
divorce, to register and vote, to make a will, or to exercise any other rights
or privileges accorded to citizens of South Dakota solely by reason of his
detention, admission, or commitment under this title.
§ 27A-12-3. Notice of rights furnished patient -- Display. Each person admitted or involuntarily detained or committed has the right to be informed promptly upon entering the facility or program and periodically thereafter, both verbally and in writing in languag