H*3073 Session 109 (1991-1992)
H*3073(Rat #0193, Act #0127 of 1991) General Bill, By P.B. Harris, Carnell,
J.L. Harris and J.G. Mattos
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 22
to Title 44 so as to provide for the rights of mental health patients; and to
repeal Sections 44-17-820, 44-23-1090, 44-52-170, and 44-52-190 relating to
the rights of mental health patients.-amended titl
12/12/90 House Prefiled
12/12/90 House Referred to Committee on Medical, Military,
Public and Municipal Affairs
01/08/91 House Introduced and read first time HJ-57
01/08/91 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-57
02/20/91 House Committee report: Favorable with amendment
Medical, Military, Public and Municipal Affairs HJ-6
02/21/91 House Amended HJ-26
02/21/91 House Read second time HJ-27
02/21/91 House Unanimous consent for third reading on next
legislative day HJ-27
02/22/91 House Read third time and sent to Senate HJ-1
02/26/91 Senate Introduced and read first time
02/26/91 Senate Referred to Committee on Medical Affairs
04/23/91 Senate Committee report: Favorable Medical Affairs SJ-240
04/25/91 Senate Read second time SJ-51
04/25/91 Senate Unanimous consent for third reading on next
legislative day SJ-52
04/26/91 Senate Read third time and enrolled SJ-1
05/21/91 Senate Recalled from Legislative Council SJ-120
05/21/91 Senate Reconsidered SJ-120
05/22/91 Senate Amended SJ-14
05/22/91 Senate Read third time and returned to House with
amendments SJ-14
05/28/91 House Concurred in Senate amendment and enrolled HJ-24
05/30/91 Ratified R 193
06/05/91 Signed By Governor
06/05/91 Effective date 06/05/91
06/05/91 Act No. 127
06/25/91 Copies available
(A127, R193, H3073)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING CHAPTER 22 TO TITLE 44 SO AS TO
PROVIDE FOR THE RIGHTS OF MENTAL HEALTH PATIENTS; AND
TO REPEAL SECTIONS 44-17-820, 44-23-1090, 44-52-170, AND
44-52-190 RELATING TO THE RIGHTS OF MENTAL HEALTH
PATIENTS.
Whereas, it is the policy of the State that individuals deprived of their
liberty by admission to a residential facility for reasons of mental illness or
chemical dependency must be treated with the dignity and rights afforded
all South Carolina citizens; and
Whereas, it is the duty of the State to evaluate, provide treatment, and meet
the needs of these individuals in the least restrictive setting and in a
humane and appropriate manner in order to maximize their quality of life.
Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
Rights of mental health patients
SECTION 1. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 22
Rights of Mental Health Patients
Section 44-22-10. As used in this chapter:
(1) `Best interests' means promoting personal well-being by the
intelligent assessment of the risks, benefits, and alternatives to the patient
of proposed electro-convulsive therapy, surgical treatment, or experimental
research, taking into account the potential relief of suffering, the
preservation or restoration of functioning, and the quality of the patient's
life with and without the proposed treatment.
(2) `Commission' means the South Carolina Commission on Alcohol
and Drug Abuse.
(3) `Commissioner' means the State Commissioner of Mental
Health.
(4) `Court' means probate court.
(5) `Department' means the State Department of Mental Health.
(6) `Facility' means a residential program operated or assisted by the
department.
(7) `Independent examination' means an examination of a patient by a
qualified employee of the department.
(8) `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.
(9) `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.
(10) `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.
(11) `Multi-disciplinary team' means persons drawn from or
representing the professional disciplines or service areas included in the
treatment plan.
(12) `Patient' means an individual undergoing treatment in the
department.
(13) `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.
(14) `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.
(15) `Treatment' means the attempted correction or facilitation of a
mental illness or alcohol and drug abuse.
Section 44-22-20. Patients have the right to the writ of habeas
corpus.
Section 44-22-30. 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. (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. (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 insure 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 commission 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. (A) Before or when admitted to a mental health
residential program, 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 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 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. (A) Within six hours of admission a patient must be
seen by a physician. Within ten days following admission a treatment team
shall establish a treatment plan. For the first two months of inpatient
treatment the plan must be reviewed every thirty days by the treatment
team. After two months of inpatient treatment, the plan must be reviewed
every sixty 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) 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. 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. (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. (A) Certificates, applications, records, and reports
made for the purpose of this chapter 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 commission and with the consent of the patient;
(4) disclosure is necessary to cooperate with law enforcement,
health, welfare, and other state 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 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. (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 commissioner. The director of the residential
program shall notify the patient or guardian of the right to appeal.
Section 44-22-120. (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. The clothing must
be considered the patient's throughout his 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;
(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. 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. (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. (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 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 a form of restraint or seclusion must be allowed
no less than fifteen minutes 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.
Section 44-22-160. (A) Each patient may refuse nontherapeutic
employment within the facility. The department shall establish policies and
guidelines to determine what constitutes therapeutic employment. The
record and justification of each patient's employment must be sent
immediately to the attending physician for review and entered into the
patient's record. Patient employment must be compensated in accordance
with the Fair Labor Standards Act.
(B) Personal living skills or household tasks not involving
maintenance of the facility are not considered employment and are
uncompensated.
Section 44-22-170. (A) The State Department of Education shall
ensure that each school-aged resident of a state-owned, operated, or another
designated facility shall receive an appropriate education geared toward the
unique capabilities of that person.
(B) If a school-aged resident is unable to assemble in a public school
setting, the Department of Education shall implement the appropriate
course of instruction.
Section 44-22-180. Resident patients must have the right to daily
physical exercise. The facility shall provide indoor and outdoor facilities
for the exercise. Patients determined able to be outdoors on a daily basis
pursuant to Section 44-22-60 must be allowed outdoors on a daily basis in
the absence of contrary medical considerations or during inclement
weather.
Section 44-22-190. The employment division of the South Carolina
Employment Security Commission and the Department of Vocational
Rehabilitation shall work with the department in a coordinated effort to
find employment for mentally disabled citizens. Services must include, but
are not limited to, counseling, referral, timely notification of job listings,
and other services of the employment division and the Department of
Vocational Rehabilitation.
Section 44-22-200. The head of a treatment facility may move a patient
to a less restrictive setting without court approval if the move is consistent
with the goals and objectives of the individualized treatment plan. The
head of the treatment facility may not move a patient to a more restrictive
setting without court approval.
Section 44-22-210. (A) The head of a treatment facility or unit may
permit the patient to leave the facility on a temporary leave of absence for
no longer than two weeks.
(B) The head of the treatment facility or unit upon releasing a patient
on a temporary leave of absence may impose conditions on the patient
while he is absent from the facility as are proper and in the best interest of
the patient and public welfare.
Section 44-22-220. (A) The department shall develop a system for
documenting and addressing grievances concerning patient rights.
Grievances concerning patient rights must be turned over to the Division of
Quality Assurance-Standards, Advocacy, and Monitoring of the department
for review. A copy of the written grievance must be forwarded to the
Client Advocacy Program and the South Carolina Protection and Advocacy
System for the Handicapped, Inc.
(B) The division shall promulgate procedures with time lines to
process expeditiously the grievances. The procedures must be made known
to patients.
(C) A person who wilfully causes, or conspires with or assists another
to cause, the denial to a patient of rights accorded to him under this chapter,
upon conviction, must be fined not more than one thousand dollars or
imprisoned for not more than one year, or both. A person acting in good
faith, either upon actual knowledge or information thought to be reliable, is
exempt from the criminal provisions of this section."
Repeals
SECTION 2. Sections 44-17-820, 44-23-1090, 44-52-170, and
44-52-190 of the 1976 Code are repealed.
Time effective
SECTION 3. This act takes effect upon approval by the Governor.
Approved the 5th day of June, 1991. |