South Carolina Legislature


 

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S 370
Session 109 (1991-1992) 

S 0370 General Bill, By Bryan, H.U. Fielding, J.C. Hayes, Peeler and M.T. Rose
 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, 44-23-230, 44-23-1010, 44-23-1020, 44-23-1030,
 44-23-1040, 44-23-1050, 44-23-1060, 44-23-1070, 44-23-1090, 44-52-170, and
 44-52-190 relating to the rights of mental health patients.

   12/10/90  Senate Prefiled
   12/10/90  Senate Referred to Committee on Medical Affairs
   01/08/91  Senate Introduced and read first time SJ-124
   01/08/91  Senate Referred to Committee on Medical Affairs SJ-124



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, 44-23-230, 44-23-1010, 44-23-1020, 44-23-1030, 44-23-1040, 44-23-1050, 44-23-1060, 44-23-1070, 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:

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.

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) A patient's individualized treatment plan must be reviewed every thirty days by the attending physician. The review must be documented by the attending physician and entered into the patient's record. Every thirty days of a patient's confinement in a residential treatment facility, a multi-disciplinary team shall review the patient's records and treatment program. Treatment plans in need of modification must be modified accordingly.

(B) The multi-disciplinary team shall review the individualized treatment plan twice a month. The attending physician shall serve on the multi-disciplinary team. The review must be documented by the attending physician and entered into the patient's records.

(C) 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.

(D) 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 'needto-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 have the right to have a physical examination, including laboratory tests, 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."

SECTION 2. Sections 44-17-820, 44-23-230, 44-23-1010, 44-23-1020, 44-23-1030, 44-23-1040, 44-23-1050, 44-23-1060, 44-23-1070, 44-23-1090, 44-52-170, and 44-52-190 of the 1976 Code are repealed.

SECTION 3. This act takes effect upon approval by the Governor.

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