S*1118 Session 109 (1991-1992)
S*1118(Rat #0421, Act #0366 of 1992) General Bill, By Bryan, H.U. Fielding,
D.L. Hinds, Peeler and M.T. Rose
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 26
to Title 44 so as to provide for the rights of mental retardation clients; to
amend Section 44-20-260, as amended, relating to mental retardation research
programs, so as to require a client's prior consent; and to repeal Sections
44-23-230, 44-23-1020, 44-23-1030, 44-23-1040, 44-23-1050, and 44-23-1070,
relating to the rights of mental retardation clients.
12/02/91 Senate Prefiled
12/02/91 Senate Referred to Committee on Medical Affairs
01/14/92 Senate Introduced and read first time SJ-34
01/14/92 Senate Referred to Committee on Medical Affairs SJ-34
03/10/92 Senate Committee report: Favorable with amendment
Medical Affairs SJ-10
03/11/92 Senate Amended SJ-24
03/11/92 Senate Read second time SJ-24
03/11/92 Senate Ordered to third reading with notice of
amendments SJ-24
03/12/92 Senate Read third time and sent to House SJ-22
03/17/92 House Introduced and read first time HJ-12
03/17/92 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-13
04/15/92 House Committee report: Favorable Medical, Military,
Public and Municipal Affairs HJ-12
04/29/92 House Debate adjourned until Thursday, April 30, 1992 HJ-297
05/05/92 House Read second time HJ-26
05/06/92 House Read third time and enrolled HJ-9
05/13/92 Ratified R 421
05/19/92 Signed By Governor
05/19/92 Effective date 05/19/92
05/19/92 Act No. 366
06/22/92 Copies available
(A366, R421, S1118)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH
CAROLINA, 1976, BY ADDING CHAPTER 26 TO TITLE 44
SO AS TO PROVIDE FOR THE RIGHTS OF MENTAL
RETARDATION CLIENTS; TO AMEND SECTION 44-20-260,
AS AMENDED, RELATING TO MENTAL RETARDATION
RESEARCH PROGRAMS, SO AS TO REQUIRE A CLIENT'S
PRIOR CONSENT; AND TO REPEAL SECTIONS 44-23-230,
44-23-1020, 44-23-1030, 44-23-1040, 44-23-1050, AND
44-23-1070 RELATING TO THE RIGHTS OF MENTAL
RETARDATION CLIENTS.
Whereas, it is the policy of the State that persons with mental
retardation and related disabilities have the same rights as persons
without mental retardation or related disabilities. A person
applying for or receiving services as a result of mental retardation
or a related disability has the right to participate in and make
decisions concerning his self-determination; and
Whereas, it is the policy of the State that the South Carolina
Department of Mental Retardation provide services in the least
restrictive environment available and in the most integrated
setting in the community possible in a manner that fosters the
developmental and habilitation potential of a person. Now,
therefore,
Be it enacted by the General Assembly of the State of South
Carolina:
Rights of mental retardation clients
SECTION 1. Title 44 of the 1976 Code is amended by
adding:
"CHAPTER 26
Rights of Mental Retardation Clients
Section 44-26-10. As used in this chapter:
(1) `Aversive stimuli' means a clinical procedure which staff
apply, contingent upon the exhibition of maladapted behavior,
startling, unpleasant, or painful stimuli or stimuli that have a
potentially noxious effect.
(2) `Client' means a person who is determined by the South
Carolina Department of Mental Retardation to have mental
retardation or a related disability and is receiving services or is an
infant at risk of having mental retardation or a related disability
and is receiving services.
(3) `Client's representative' means the client's parent,
guardian, legal counsel, or other person who acts on behalf or in
the best interest of a person with mental retardation or a related
disability.
(4) `Commissioner' means the South Carolina Commissioner
of Mental Retardation.
(5) `Court' means a probate court of appropriate jurisdiction
unless specified otherwise.
(6) `Department' means the South Carolina Department of
Mental Retardation.
(7) `Facility' means a residential setting operated, assisted, or
contracted out by the department that provides twenty-four hour
care and supervision.
(8) `Habilitation' means the attempt to remedy the delayed
learning process to develop maximum growth potential by the
acquisition of self-help, language, personal, social, educational,
vocational, and recreational skills.
(9) `Interdisciplinary team' means persons drawn from or
representing the professional disciplines or service areas included
in the individual habilitation plan.
(10) `Major medical treatment' means a medical, surgical,
or diagnostic intervention or procedure proposed for a person with
mental retardation or a related disability, where a general
anesthetic is used or which involves a significant invasion of
bodily integrity requiring an incision, producing substantial pain,
discomfort, debilitation, or having a significant recovery period.
It does not include routine diagnosis or treatment such as the
administration of medications or nutrition or the extractions of
bodily fluids for analysis or dental care performed with a local
anesthetic or a nonpermanent procedure designed for the
prevention of pregnancy.
(11) `Mental retardation' means significantly subaverage
general intellectual functioning existing concurrently with deficits
in adaptive behavior and manifested during the developmental
period.
(12) `Mental retardation professional' means a person
responsible for supervising a client's plan of care, integrating
various aspects of the program, recording progress, and initiating
periodic review of each individual plan of habilitation.
(13) `Plan of habilitation' means a written plan setting forth
measurable goals or behaviorally stated objectives in prescribing
an integrated program of individually designed activities or
therapies necessary to achieve the goals and objectives.
(14) `Planned exclusionary time-out' means the technique
of behavior modification in which a client is removed from the
immediate environment to a physically safe, lighted, and normal
temperature room for a specific period of time not to exceed one
hour under the direct continued observation of staff.
Section 44-26-20. Clients have the right to a writ of habeas
corpus.
Section 44-26-30. A mentally retarded person has the right to
be represented by counsel when involuntarily committed to the
department pursuant to Section 44-20-450.
Section 44-26-40. If a client resides in a facility operated by
or contracted to by the department, the determination of that
client's competency to consent to or refuse major medical
treatment must be made pursuant to Section 44-66-20(6) of the
Adult Health Care Consent Act. The department shall abide by
the decision of a client found competent to consent.
Section 44-26-50. If the client is found incompetent to consent
to or refuse major medical treatment, the decisions concerning his
health care must be made pursuant to Section 44-66-30 of the
Adult Health Care Consent Act. An authorized designee of the
department may make a health care decision pursuant to Section
44-66-30(8) of the Adult Health Care Consent Act. The person
making the decision must be informed of the need for major
medical treatment, alternative treatments, and the nature and
implications of the proposed health care and shall consult the
attending physician before making decisions. When feasible, the
person making the decision shall observe or consult with the
client found to be incompetent.
Section 44-26-60. (A) If the client is a minor, the decisions
concerning his health care must be made by the following persons
in the following order of priority:
(1) legal guardian;
(2) parent;
(3) grandparent or adult sibling;
(4) other relative by blood or marriage who reasonably is
believed by the health care professional to have a close personal
relationship with the client;
(5) other person who reasonably is believed by the health
care professional to have a close personal relationship with the
client;
(6) authorized designee of the department.
(B) If persons of equal priority disagree on whether certain
health care must be provided to a client who is a minor, a person
authorized in subsection (A), a health care provider involved in
the care of the client, or another person interested in the welfare of
the client 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 client who is
unable to consent, determines that the person is not reasonably
available, is not willing to make health care decisions for the
client, or is unable to consent as defined in Section 44-66-20(6) of
the Adult Health Care Consent Act.
(D) In an emergency health care may be provided without
consent pursuant to Section 44-66-40 of the Adult Health Care
Consent Act to a person found incompetent to consent to or refuse
major medical treatment or who is incapacitated solely by virtue
of minority.
Section 44-26-70. (A) Human rights committees must be
established for each regional center and for each
county/multi-county program to:
(1) review and advise the regional center or the
county/multi-county board on the policies pertaining to clients'
rights policies;
(2) hear and make recommendations to the regional
center or county/multi-county board on research proposals which
involve individuals receiving services as research participants
pursuant to Section 44-20-260;
(3) review and advise the regional center or
county/multi-county board on program plans for behavior
management which may restrict personal freedoms or rights of
clients;
(4) advise the regional center or county/multi-county
board on plans for behavior support which may restrict personal
freedoms or rights of clients;
(5) advise the regional center or county/multi-county
board on other matters as requested pertaining to the rights of
clients.
(B) Human rights committees must be appointed by the
commissioner or his designee. Each committee consists of not
less than the following five persons, except employees or former
employees of the regional center or county/multi-county board
must not be appointed:
(1) a family member of a person with mental retardation
or a related disability;
(2) a client of the department, if appropriate;
(3) a representative of the community at large with
expertise or a demonstrated interest in the care and treatment of
persons with mental retardation or related disabilities.
(C) The department shall establish policy and procedures for
the operations of the committees.
(D) Members of the committees serve in an advisory capacity
only and are exempt from liability.
Section 44-26-80. A client or his representative has the right
to appeal decisions concerning the services or treatment provided
by the department, county/multi-county board, or contracted
service provider. A human rights committee established in
Section 44-26-70 shall review and advise on grievances
concerning applicants or clients receiving services. The
department shall establish policies and procedures for the review
of grievances and the appeal of decisions. The commissioner has
final authority.
Section 44-26-90. Unless a client has been adjudicated
incompetent, he must not 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 clients 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;
(8) exercise rights of citizenship in the same manner as a
person without mental retardation or a related disability.
Section 44-26-100. (A) Except to the extent an
interdisciplinary team of a residential program determines that it
is required by the medical needs, safety, or habilitative goals of
the client to impose restrictions, a client 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,
envelopes, and telephones, including reasonable funds or means
by which to use telephones, must be provided;
(2) receive visitors. A facility must have a designated
area where clients and visitors may speak privately;
(3) wear his clothes, have access to personal hygiene
articles, keep and spend a reasonable sum of his money, and keep
and use his personal possessions, including articles for personal
grooming not provided for by the facility unless the clothes or
personal possessions are determined by a mental retardation
professional or physician to be dangerous or otherwise
inappropriate to the habilitation regimen. If clothing is provided
by the facility, clients must have the opportunity to select from
neat, clean, seasonal clothing that allows the client to appear
normal in the community. The clothing must be considered to be
the client's throughout his stay in the facility;
(4) have access to individual storage space for private
use. Personal property of a client brought into the facility and
placed in storage by the facility must be inventoried. Receipts
must be given to the client and at least one other interested person.
The personal property may be reclaimed only by the client or his
guardian as long as he is living unless otherwise ordered by the
court;
(5) follow or abstain from religious practices. Religious
practices may be prohibited by the facility supervisor if they lead
to physical harm to the client or to others, harassment of other
clients, or damage to property.
(B) The department shall determine what constitutes
reasonable access for the rights provided in this section.
Limitations imposed on the exercise of the rights by the client and
the reasons for the limitations must be made part of the client's
record. The limitations are valid for no more than thirty days.
The time may be extended an additional thirty days if, upon
review, it is determined the client's safety or habilitation warrants
limitations of the rights. If the department restricts rights, the
reasons for the restriction and why the condition cannot be
resolved in a less restrictive manner must be recorded in the
client's record.
Section 44-26-110. Clients have the right to daily physical
exercise. Operators of a facility shall provide indoor and outdoor
areas and equipment for this purpose. Clients determined able to
be outdoors on a daily basis pursuant to Section 44-26-150 must
be allowed this privilege in the absence of contrary medical
considerations or during periods of inclement weather.
Section 44-26-120. (A) A client or his representative with
the appropriate permission may have reasonable access to the
client's medical and habilitative records. The requests must be
made in writing.
(B) A client or his representative may be refused access to
information in the medical and habilitative records if:
(1) provided by a third party under assurance that the
information remains confidential;
(2) the attending physician has determined in writing that
the information would be detrimental to the client's habilitation
regimen. The determination must be placed in the client's records
and is considered part of restricted information.
(C) A client or his representative refused access to medical or
habilitative records may appeal the refusal to the commissioner.
The director of the residential program shall notify the client or
his representative of the right to appeal.
(D) Persons granted access to client records shall sign a
disclosure form. Disclosure forms are considered part of a client's
confidential record.
Section 44-26-130. (A) Communications between clients
and mental retardation professionals, including general
physicians, psychiatrists, psychologists, nurses, social workers,
members of interdisciplinary teams, or other staff members
employed in a client-therapist capacity or an employee under
supervision of them are considered confidential. Certificates,
applications, records, and reports made for the purpose of this
chapter that directly or indirectly identify a client, as well as
privileged communications, must be kept confidential and must
not be disclosed by a person unless:
(1) the identified client or his representative consents;
(2) a court directs disclosure upon its determination 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;
(4) disclosure is necessary to cooperate with law
enforcement, health, welfare, and other state agencies, schools,
and county entities;
(5) disclosure is necessary to carry out this chapter.
(B) Nothing in this section precludes disclosure:
(1) upon proper inquiry, of information as to a client's
current medical condition, to appropriate next of kin;
(2) if the information is used in an educational or
informational capacity if the identity of the client is
concealed;
(3) of information to the Governor's ombudsman office or
the South Carolina Protection and Advocacy System for the
Handicapped, Inc., as consistent with state law.
Section 44-26-140. (A) Clients receiving services for mental
retardation shall receive care and habilitation suited to their needs
and in the least restrictive appropriate care and habilitation
available. The care and habilitation must be administered
skillfully, safely, and humanely with full respect for the client's
dignity and personal integrity. The department shall make every
effort to develop services necessary to meet the needs of its
clients.
(B) In emergency admissions when the least restrictive setting
is not available a client must be admitted to the nearest proper
facility until he may be moved to the least restrictive setting.
(C) In judicial or emergency admissions to the department
every attempt must be made by the court to ensure a client's
placement in the least restrictive alternative of services
available.
(D) No client may remain at a level of care that is more
restrictive than is warranted to meet his needs if alternative care is
available. A residential program must attempt to move clients
from:
(1) more to less structured living;
(2) larger to smaller facilities;
(3) larger to smaller living units;
(4) group to individual residence;
(5) segregated from the community to integrated into the
community;
(6) dependent to independent living.
Section 44-26-150. (A) Before or at the time of admission to
a mental retardation residential program, a client or his
representative must be provided with an explanation in terms and
language appropriate to his ability to understand the client's rights
while under the care of the facility.
(B) Within thirty days of admission a client or his
representative must be provided with a written individualized plan
of habilitation formulated by an interdisciplinary team and the
client's attending physician. A client or his representative may
participate in an appropriate manner in the planning of services.
An interim habilitation program based on the preadmission
evaluation of the client may be implemented promptly upon
admission. The service plan must be developed with the active
participation of the individual receiving the services to the extent
he is able to participate meaningfully. Each individualized
habilitation plan must contain:
(1) a statement of the nature and degree of the client's
mental retardation and the needs of the client;
(2) if a physical examination has been conducted, the
client's physical condition;
(3) a description of intermediate and long-range
habilitative goals and, if possible, future available services;
(4) a statement as to whether or not the client may be
permitted outdoors on a daily basis and, if not, the reasons
why.
(C) A mental retardation professional shall review each client's
individual records quarterly in relation to goals and objectives
established in the habilitation plan. This review must be
documented and entered into the client's record. The
interdisciplinary team shall conduct a full review of the client's
records and habilitation program annually.
(D) Included in a review must be a reassessment of the client's
plan of habilitation. If the reassessment indicates a need for
revisions in the client's plan of habilitation, the revisions must be
implemented.
(E) A client or his representative shall receive an updated plan
of habilitation, upon request, pursuant to Section 44-26-120.
(F) A client or his representative may request a change in the
plan of habilitation. If a request for a change in the plan of
habilitation is denied, a grievance may be filed by the client or his
representative on his behalf. The request must be reviewed
according to the grievance procedure pursuant to Section
44-26-80.
Section 44-26-160. (A) No client residing in a mental
retardation facility may be subjected to chemical or mechanical
restraint or a form of physical coercion or restraint unless the
action is authorized in writing by a mental retardation professional
or attending physician as being required by the habilitation or
medical needs of the client and it is the least restrictive alternative
possible to meet the needs of the client. Emergency restraints
require the written authorization of the attending physician or
designated staff member and must be noted in the client's
record.
(B) Each use of a restraint and justification for it must be
entered into the client's record. The authorization is not valid for
more than twelve hours during which the client's condition must
be charted at thirty-minute intervals. If the orders are extended
beyond the twelve hours, the extension must have written
authorization by a mental retardation professional or attending
physician. Within twenty-four hours a copy of the authorization
must be forwarded to the facility supervisor for review. Clients
under a form of restraint must be allowed no less than ten minutes
every two hours for motion and exercise. Mechanical restraint
must be employed in a manner that lessens the possibility of
physical injury and ensures the least possible discomfort.
(C) No form of restraint may be used for the convenience of
staff, as punishment, as a substitute for a habilitation program or
in a manner that interferes with the client's habilitation
program.
(D) In an emergency such as a serious threat of extreme
violence, injury to others, personal injury, or attempted suicide, if
the attending physician or a mental retardation professional is not
available, staff may authorize mechanical restraint or physical
restraint, in conjunction with state and federal regulations, when
these means are necessary for as long as the behavior that
warrants restraint persists. The use must be reported immediately
to the attending physician or mental retardation professional who
shall authorize its continuance or cessation and make a written
record of the reasons for its use and his review. The records and
review must be entered into the client's record. The facility must
have written policies and procedures governing the use of
mechanical and physical restraints.
(E) The client's family or his representative, or both, must be
notified immediately of the use of restraints.
(F) The appropriate human rights committees must be notified
of the use of emergency restraints.
(G) Documentation of less restrictive methods that have failed
must be entered into the client's record when applicable.
Section 44-26-170. (A) Behavior modification programs
involving the use of aversive stimuli are discouraged and may be
used only in extraordinary cases where all other efforts have
proven ineffective. Clients must not be subjected to aversive
stimuli in the absence of:
(1) prior written approval for the technique by the
commissioner;
(2) the informed consent of the client on whom the
aversive stimuli is to be used or his representative. Each use of
aversive stimuli and justification for it must be entered into the
client's record;
(3) documentation of less restrictive methods that have
failed must be entered into the client's record.
(B) Seclusion must not be used on mentally retarded
clients.
(C) Planned exclusionary time-out procedures may be utilized
under close and direct professional supervision as a technique in
behavior shaping.
(D) Behavior modification plans must be reviewed by the
interdisciplinary team periodically for continued
appropriateness.
Section 44-26-180. A client or his representative shall give
informed consent in every case before participation in research
conducted by, for, or in cooperation with the department. The
department shall promulgate regulations to obtain informed
consent and to protect the dignity of the individual.
Section 44-26-190. (A) The State Department of Education
shall seek to develop and utilize the most current and promising
methods for the education and training of people with mental
retardation. It shall utilize the assistance, service, and findings of
other state and federal agencies.
(B) School-aged mentally retarded clients have the right to an
appropriate education regardless of the degree of retardation or
accompanying disabilities as provided in Public Law 94-142, the
Education of Handicapped Children Act. Placement of a
school-aged mentally retarded person in a facility of the
department does not preclude his attendance in community-based
public schools. It is the goal of each mental retardation facility to
effect a move of each resident client from facility-based
educational programs to community-based public schools.
Section 44-26-200. The South Carolina State Employment
Service Division of the South Carolina Employment Security
Commission and the State Agency of Vocational Rehabilitation
shall work together to find employment for citizens with mental
retardation. Services must include, but are not limited to,
counseling, referral, timely notification of job listings, and other
services of the division and the agency.
Section 44-26-210. A person who wilfully causes, or
conspires with or assists another to cause, the denial to a client of
rights accorded to him under this chapter, upon conviction, must
be fined not more than one thousand dollars or imprisoned not
more than one year, or both. A person acting in good faith, upon
actual knowledge or information thought by him to be reliable, is
exempt from criminal liability.
Section 44-26-220. (A) A person who in good faith makes a
health care decision as provided in this chapter is not subjected to
civil or criminal liability on account of the substance of the
decision.
(B) A person who consents to major medical treatment as
provided in this chapter does not by virtue of that consent become
liable for the costs of care provided to the client found
incompetent to consent to or refuse treatment.
(C) A health care provider who in good faith relies on a health
care decision made by a client or as authorized by this chapter is
not subject to civil or criminal liability or disciplinary penalty on
account of his reliance on the decision.
(D) This section does not affect a health care provider's
liability arising from provision of care in a negligent
manner."
Research programs; client's prior consent required
SECTION 2. Section 44-20-260 of the 1976 Code, as last
amended by Act 496 of 1990, is further amended to read:
"Section 44-20-260. The department, with funds
available for these purposes, may conduct research to determine
the causes, proper treatment, and diagnosis of mental retardation
and related disabilities and may use facilities and personnel under
its control and management for carrying out the research so long
as the rights of the client are preserved and prior consent is
obtained pursuant to Section 44-26-180."
Repeals
SECTION 3. Sections 44-23-230, 44-23-1020, 44-23-1030,
44-23-1040, 44-23-1050, and 44-23-1070 of the 1976 Code are
repealed.
Time effective
SECTION 4. This act takes effect upon approval by the
Governor.
Approved the 19th day of May, 1992. |