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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