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Last updated November 2003
CHAPTER 17.
CARE AND COMMITMENT OF MENTALLY ILL PERSONS
ARTICLE 3.
ADMISSION AND DISCHARGE OF VOLUNTARY PATIENTS
SECTION 44‑17‑310. Voluntary admission.
If in the judgment of the director of a state hospital the
person is a proper subject for voluntary admission, the director of the
hospital shall admit for treatment an individual who is eighteen years of age
or over and applies for admission.
SECTION 44‑17‑320. Discharge of voluntary patient by
superintendent.
The superintendent of a hospital shall discharge any
voluntary patient who has recovered or whose detention he determines to be no
longer advisable.
SECTION 44‑17‑330. Discharge at request of patient or
another person.
A voluntary patient who requests to be discharged or whose
discharge is requested, in writing, by the patient’s parent or legal
guardian or other interested person must be discharged, except that:
(1) if the patient was admitted on
the patient’s own application and the request for discharge is made by a
person other than the patient, discharge must be conditioned upon the agreement
of the patient;
(2) if the director of the hospital,
within three days, excluding Saturdays, Sundays, and legal holidays, after the
patient or other interested person requests the patient’s discharge,
files with the probate court of the county in which the patient resided or was
present immediately before admission a certificate that in the director’s
opinion, the patient desiring discharge is mentally ill and should be
hospitalized, discharge may be postponed on application for as long as the
court determines by order to be necessary for conducting proceedings for
judicial admission, but in no event for more than fifteen days. Upon the filing of a certificate, the
proceedings for judicial admission must be conducted pursuant to Sections 44‑17‑510
through 44‑17‑610.
SECTION 44‑17‑340. Written notice of right to release.
At the time of his admission to the hospital and once during
the first six months of hospitalization and annually thereafter a voluntary
patient shall be informed in writing of his right to release. The patient’s spouse, parent, legal
guardian or other interested person shall also be so informed and shall sign a
statement to that effect which shall become a part of the patient’s
record. The patient shall also
acknowledge deliverance of the notice in writing or an affidavit that he was so
informed shall be attached to his record.
Where no spouse, parent, legal guardian or other interested person is
known to exist, documentation in the patient’s record of this finding
will be deemed to be in compliance with the notification requirements.
ARTICLE 5.
CUSTODY AND ADMISSION OF PERSONS REQUIRING IMMEDIATE
CARE
SECTION 44‑17‑410. Emergency admission of person
likely to cause serious harm;
procedures; court review; assessment by examiners; initiation of emergency commitment procedures; hearing;
right to counsel.
A person may be admitted to a public or private hospital,
mental health clinic, or mental health facility for emergency admission upon:
(1) written affidavit under oath by
a person stating:
(a) a belief that the person is
mentally ill and because of this condition is likely to cause serious harm to himself or others if not immediately hospitalized;
(b) the specific type of serious
harm thought probable if the person is not immediately hospitalized and the
factual basis for this belief;
(2) a certification in triplicate by
at least one licensed physician stating that the physician has examined the
person and is of the opinion that the person is mentally ill and because of
this condition is likely to cause harm to himself through neglect, inability to
care for himself, or personal injury, or otherwise, or to others if not
immediately hospitalized. The certification must contain the grounds for the
opinion. A person for whom a certificate has been issued may not be admitted on
the basis of that certificate after the expiration of three calendar days after
the date of the examination;
(3) within forty‑eight hours
after admission, exclusive of Saturdays, Sundays, and legal holidays, the place
of admission shall forward the affidavit and certification to the probate court
of the county in which the person resides or, in extenuating circumstances,
where the acts or conduct leading to the hospitalization occurred.
Within forty‑eight hours of receipt of the affidavit
and certification exclusive of Saturdays, Sundays, and legal holidays, the
court shall conduct preliminary review of all the evidence to determine if
probable cause exists to continue emergency detention of the patient. If the
court finds that probable cause does not exist, it shall issue an order of
release for the patient. Upon a finding of probable cause, the court shall make
a written order detailing its findings and may order the continued detention of
the patient.
With each affidavit and certification, the treatment
facility shall provide the court with a designated examiner appointment form
listing the names of two designated examiners at the treatment facility.
If the court appoints these two designated examiners, the
examination must be performed at the treatment facility and a report must be
submitted to the court within seven days from the date of admission. The court
may appoint independent designated examiners who shall submit a report to the
court within the time allotted above. In the process of examination by the
designated examiners, previous hospitalization records must be considered. At
least one of the examiners appointed by the court must be a licensed physician.
The examiners’ reports must include the grounds for the examiners’
conclusions.
If the report of the designated examiners is that the
patient is not mentally ill to the extent that involuntary treatment is
required and reasons have been set forth in the report, the court shall dismiss
the petition and the patient must be discharged immediately by the facility
unless the designated examiners report that the patient is a chemically
dependent person in need of emergency commitment and that procedures have been
initiated pursuant to Section 44‑52‑50. In which case, emergency
commitment procedures must be complied with in accordance with Chapter 52, and
the facility shall transfer the patient to an appropriate treatment facility as
defined by Section 44‑52‑10, provided that confirmation has been
obtained from the facility that a bed is available; transportation must be
provided by the department.
If the report of the designated examiners is that the
patient is mentally ill and involuntary treatment is required, the court may
order that the person be detained, appoint counsel for the patient if counsel
has not been retained, and fix a date for a full hearing to be held pursuant to
Section 44‑17‑570 within fifteen days from the date of admission.
The court shall give notice of the hearing pursuant to Section 44‑17‑420.
The examiners’ report must be available to the
person’s counsel before the full hearing. The person must be given the
opportunity to request an independent designated examiner pursuant to Section
44‑17‑530.
SECTION 44‑17‑415. Physical examination report to
accompany certification for emergency admission.
Any certification for an emergency admission of a person
fifty‑five years of age or older who, at the time of the petition, is a
patient in a hospital or a resident of a nursing care facility pursuant to
Section 44‑17‑410 must be accompanied by the results of the most
recent physical examination, including appropriate laboratory work as contained
in the medical record which must be furnished by the hospital or nursing care
facility except as otherwise prohibited by federal law. The physician evaluating the mental condition
of the patient shall take into consideration the results of the physical
examination to ascertain how the mental and physical treatment needs of the
person may best be provided.
SECTION 44‑17‑420. Notice of hearing.
At least five days before the hearing scheduled by the court
pursuant to Section 44‑17‑410(3), the clerk or other officer of the
probate court shall give written notice of the hearing to the person, his
counsel, the applicant, and other interested persons. The notice must include the date, time, and
place of the hearing, the basis for the person’s detention, conclusions
and underlying facts, and the standard upon which he has been detained. The notice of hearing also must include a
statement advising the recipient that the person may request the names of
designated examiners and other persons who may testify in favor of his
continued detention and the substance of their proposed testimony.
SECTION 44‑17‑430. Examination under custody of person
requiring immediate hospitalization when examination not otherwise possible.
If a person believed to be mentally ill and because of this
condition likely to cause serious harm if not immediately hospitalized cannot
be examined by at least one licensed physician pursuant to Section 44‑17‑410
because the person’s whereabouts are unknown or for any other reason, the
petitioner seeking commitment pursuant to Section 44‑17‑410 shall
execute an affidavit stating a belief that the individual is mentally ill and
because of this condition likely to cause serious harm if not hospitalized, the
ground for this belief and that the usual procedure for examination cannot be
followed and the reason why. Upon
presentation of an affidavit, the judge of probate for the county in which the
individual is present may require a state or local law enforcement officer to
take the individual into custody for a period not exceeding twenty‑four
hours during which detention the person must be examined by at least one
licensed physician as provided for in Section 44‑17‑410(2). The
individual taken into custody has the right to representation by an
attorney. If within the twenty‑four
hours the person in custody is not examined by a licensed physician or, if upon
examination the physician does not execute the certification provided for in
Section 44‑17‑410(2), the proceedings must be terminated and the
individual in custody must be released immediately. Otherwise, proceedings must be held pursuant
to Section 44‑17‑410(3).
SECTION 44‑17‑440. Custody and transport of person
requiring immediate care;
peace officer; friend or
relative.
The certificate required by Section 44‑17‑410
must authorize and require a state or local law enforcement officer, preferably
in civilian clothes, to take into custody and transport the person to the
hospital designated by the certification.
No person may be taken into custody after the expiration of three days
from the date of certification. A friend
or relative may transport the individual to the mental health facility
designated in the application, if the friend or relative has read and signed a
statement on the certificate which clearly states that it is the responsibility
of a state or local law enforcement officer to provide timely transportation
for the patient and that the friend or relative freely chooses to assume that
responsibility. A friend or relative who
chooses to transport the patient is not entitled to reimbursement from the
State for the cost of the transportation.
An officer acting in accordance with this article is immune from civil
liability. Upon entering a written
agreement between the local law enforcement agency, the governing body of the
local government, and the directors of the community mental health centers, an
alternative transportation program utilizing peer supporters and case managers
may be arranged for nonviolent persons requiring mental health treatment. The agreement clearly must define the
responsibilities of each party and the requirements for program participation.
SECTION 44‑17‑450. Preadmission screening and
evaluation in psychiatric emergencies.
The Department of Mental Health, in conjunction with its
local mental health centers acting as the preadmission facilities, must develop
and maintain a preadmission screening and evaluation service for all
psychiatric emergencies at the local community level utilizing available local
resources for mentally ill persons. The
preadmission screening services must act as the public mental health
system’s entry point in order (1) to provide to the examining physician
information about accessible crisis intervention, evaluation, and referral
services in the community; (2) to offer to mentally ill persons clinically
appropriate alternatives to inpatient care, if any; and when necessary (3) to provide a
means for involuntary commitment.
SECTION 44‑17‑460. Examinations prior to emergency
admissions to psychiatric facilities.
Prior to the emergency admission of any person to a
psychiatric facility of the Department of Mental Health, the person must be
examined by a licensed physician. The
physician must inform the mental health center in the county where the person
resides or where the examination takes place of the mental and physical
treatment needs of the patient. The
physician must consult with the center regarding the commitment/admission
process and the available treatment options and alternatives in lieu of hospitalization
at a state psychiatric facility.
The examining physician must complete a statement that he
has consulted with the local mental health center prior to the admission of the
person to a state psychiatric facility.
If the physician does not consult with the center, he must state a
clinical reason for his failure to do so.
The statement must accompany the physician’s certificate and
written application for emergency commitment.
The department, in its discretion, may refuse to admit a patient to its
facility if the physician fails to complete the statement required by this
section.
ARTICLE 7.
PROCEDURES FOR JUDICIAL COMMITMENT
SECTION 44‑17‑510. Petition for judicial commitment; certificate
of designated examiner.
Proceedings for involuntary hospitalization by judicial
procedure may be commenced by filing a written petition with the probate court
of the county where he is present or where he is a resident by any interested
person or the superintendent of any public or private mental institution in
which he may be. The petition shall be
served on the person and his attorney and if he has no attorney then on him and
a member of his immediate family.
The petition shall be accompanied by a certificate of a
designated examiner stating that he has examined the person and is of the
opinion that he is mentally ill and should be hospitalized or a written
statement by the petitioner that the person has refused to submit to an
examination by a designated examiner.
The certificate or the written statement shall state the underlying
facts upon which the examiner or petitioner, if the person has refused to
submit to an examination, bases his conclusions and not merely the conclusions
themselves.
SECTION 44‑17‑520. Notice of petition and right to
counsel.
Upon receipt of a petition the court shall give notice
thereof to the proposed patient, to his legal guardian, if any, and to any
other interested person. This notice
shall also indicate the proposed patient’s right to counsel.
SECTION 44‑17‑530. Appointment of counsel; examination
and record thereof.
Within three days after the petition for judicial commitment
set forth in Section 44‑17‑510 is filed, exclusive of Saturdays,
Sundays, and legal holidays, the court shall appoint counsel to represent the
person if counsel has not been retained and the court shall appoint two
designated examiners, one of whom must be a licensed physician, to examine the
person and report to the court their findings as to the person’s mental
condition and need for treatment. The
examination must be made at a suitable place not likely to have a harmful
effect upon the person’s health.
On a report of the designated examiners of refusal to submit to
examination, the court shall order the person to submit to examination. If the person refuses to obey the
court’s order the court may require a state or local law enforcement
officer to take the person into custody for a period not exceeding twenty‑four
hours during which time the person must be examined by the two designated
examiners. The person’s attorney
must be notified before the person’s confinement. If the examiners do not execute the
certification provided for in this section within twenty‑four hours, the
proceeding must be terminated and the person must be released. An adequate record of the examination must be
made and offered to the person’s counsel.
If the conclusions of the examination are that the person is mentally
ill the underlying facts must be recorded as well as the conclusions. The person must be given the opportunity to
request an additional examination by an independent designated examiner. If the court determines that the person is
indigent the examination must be conducted at public expense.
SECTION 44‑17‑540. Hearing shall be held if examiners
find mental illness.
If the report of the two designated examiners, other than
the independent designated examiner, is to the effect that they are of the
opinion that the person is not mentally ill to the extent that involuntary
treatment is required, the court shall terminate the proceedings and dismiss
the petition immediately upon receipt of the report. If the report of the two
designated examiners, other than the independent designated examiner, is
divided, the court may terminate the proceedings or may designate a third
examiner, who must be a psychiatrist, and charge the three examiners to render
a majority opinion within five days. If the report of the designated examiners
is to the effect that they are of the opinion that the person is mentally ill
and involuntary treatment is required, the court shall conduct a hearing. For
persons admitted pursuant to Section 44‑17‑410, the hearing may be
held on the same day as the designated examinations unless the person or his
counsel objects. Upon objection by the person or his counsel, the court shall
delay the hearing. For persons whose admission is sought under Section 44‑17‑510,
the court immediately shall fix a date for and give notice of a hearing, to be
held not less than five nor more than seven days, excluding Saturdays, Sundays,
and legal holidays, from receipt of the report.
SECTION 44‑17‑550. Notice of hearing and rights.
Notice of the hearing must be given to the person, his
counsel, and other interested persons at least five days before the hearing. Notice must include the time, date, and place
of the hearing, the underlying facts, and the standards under which the person
is sought to be committed. A copy of the
designated examiners report must be provided to the person’s
counsel. The notice of hearing also must
include a statement advising the recipient that the person may request the
names of the designated examiners and other persons who may testify in favor of
his commitment and the substance of their proposed testimony.
SECTION 44‑17‑560. Removal of proceedings to another
county.
The individual shall have the right to demand removal of the
proceedings to any other county of the State when the convenience of the
witnesses and the ends of justice so require.
When the place of the proceedings is changed all other proceedings shall
be had in the county to which the place of hearing is changed, unless otherwise
provided by the consent of the parties in writing, duly filed, or order of the
court. And the papers shall be filed or
transferred accordingly.
SECTION 44‑17‑570. Conduct of hearing.
All persons to whom notice is required may appear at the
hearing, testify and, within the discretion of the court, present and cross‑examine
witnesses and the court may receive the testimony of any other person. The court may exclude all persons not
necessary for the conduct of the proceedings.
The person for whom the hearing is being held shall have the right to be
present at the commitment hearing and such right may be waived only by him or
his attorney. The court may in its
discretion cause the hearing to be held in any suitable location in the State,
without regard to whether the location is in the county of the court conducting
the hearing, when the judge is satisfied that the health and welfare of the
person concerned is best served by conducting the hearing in a location other
than the probate court. The hearing
shall be conducted in as informal a manner as may be consistent with orderly
procedure and in a physical setting not likely to have a harmful effect on the
mental health of the person. The court
shall in receiving evidence follow the rules of evidence applicable to the
probate courts of this State. If the
person is indigent he shall have the right to a free transcript of the record
of the proceedings.
SECTION 44‑17‑580. Hospitalization of person if court
finds mental illness and other conditions.
If, upon completion of the hearing and consideration of the
record, the court finds upon clear and convincing evidence that the person is
mentally ill, needs involuntary treatment and because of his condition:
(1) lacks sufficient insight or
capacity to make responsible decisions with respect to his treatment; or
(2) there is a likelihood of serious
harm to himself or others, it shall order in‑patient or out‑patient
treatment at a mental health facility, public or private, designated or
licensed by the Department of Mental Health . If the
court finds that he is not mentally ill and not in need of involuntary
treatment, it shall dismiss the proceedings.
If the court orders out‑patient treatment and the
respondent fails to adhere to the prescribed out‑patient treatment
program, on report of the failure by the treatment facility the court upon
notice to the respondent and his counsel may order a supplemental hearing and
further order in‑patient treatment in a designated or licensed facility.
The probate court issuing the order shall maintain jurisdiction over the person
for the purpose of supplemental proceedings as herein set forth and every order
issued pursuant to this paragraph shall be so conditioned. An order for in‑patient
treatment at a mental health facility shall not raise a presumption of
incompetency and no rights shall be denied a person unless specifically ordered
by the court.
SECTION 44‑17‑600. No admission shall be based on
order more than thirty days after it has been rendered.
Any individual with respect to whom such order of
hospitalization has been issued shall not be admitted to any public or private
mental health facility or hospital on the basis thereof at any time after the
expiration of thirty days following the date of the judicial order, unless the
judge of probate issuing such order extends this date.
SECTION 44‑17‑610. Commitment to private, county, Veterans’
Administration or other hospital.
Upon request by the individual, his relatives, spouse or
guardian and agreement by the superintendent of the hospital concerned, the
court may order the hospitalization of the patient in any private, county,
Veterans’ Administration or other suitable institution. Neither the State, any
county nor any municipality shall be liable for any costs of or charges
for sending an individual to a private institution or connected with or arising
out of his being sent there.
SECTION 44‑17‑620. Appeal.
The petitioner or the person shall have the right to appeal
from any order of the probate court issued pursuant to Section 44‑17‑580
to the court of common pleas of the county where the probate court is situated.
The notice of intention to appeal together with the grounds for the appeal
shall be filed in the probate court and the court of common pleas within
fifteen days of the date of the order issued pursuant to Section 44‑17‑580.
The appeal shall be heard by any circuit judge having jurisdiction in the
county upon the record of the probate court. The judge may require that
additional evidence be presented in the hearing if notice is given to both
appellant and respondent.
The probate court shall be responsible for certifying the
record on the proceedings before the probate court to the circuit court judge
within thirty days of filing of the notice of intention to appeal. The circuit
judge shall hold the hearing and render a decision affirming or reversing the
order of the probate court within fifteen days of receipt of the record of the
probate court.
The costs shall be borne by the applicant unless the court
determines that he cannot afford them.
Any appeal from the order of the circuit judge shall be
taken in the manner provided by the South Carolina Appellate Court Rules. An
order of a circuit judge requiring release of the person shall be of force and
effect unless it is reversed on appeal.
SECTION 44‑17‑630. Right to reexamination; notice.
A patient is entitled to a reexamination on the
patient’s own petition or that of any other interested person to the
probate court of the county from which the patient was admitted. The treatment facility shall inform every
patient and at least one other interested person of this right to petition for
reexamination. Notice of this right must
be given in writing upon admission to the hospital, once during the first six
months of hospitalization, and every six months thereafter during the treatment
of the patient. If no spouse, parent,
legal guardian, or other interested person is known to exist, documentation in
the patient’s record of this finding is considered compliance with the
notice requirement of this section.
Upon receipt of the petition the court shall conduct
proceedings in accordance with this chapter, Chapter 9, Chapter 11, Chapter 13,
Article 1 of Chapter 15, Chapter 17, and Chapter 27 of this title, except that
the proceedings may not be required to be conducted if the petition is filed
sooner than six months after the issuance of the order for treatment or sooner
than three months after the holding of a hearing pursuant to this section. The costs must be borne by the petitioner
unless the court determines that the petitioner cannot afford these costs.
SECTION 44‑17‑640. Admission to agency of the
If any person ordered to be admitted to an institution
pursuant to this chapter, Chapter 9, Chapter 11, Chapter 13, Article 1 of
Chapter 15, Chapter 17, and Chapter 27, is eligible for institutional care or
treatment by any agency of the United States, the court, upon receipt of a
certificate from the agency showing the facilities are available and that the
person is eligible for care or treatment there, may order him to be placed in
the custody of the agency for admittance.
Jurisdiction shall be retained in the appropriate courts to inquire into
the mental condition of the person admitted and to determine the necessity for
continuance of his confinement. Every
order of admittance issued pursuant to this section is so conditioned.
SECTION 44‑17‑660. Payment of monies to state
employees who are not performing their duties as state employees and are not
full‑time state employees.
Monies appropriated to implement the provisions of this
article may be paid to a state employee if the employee is not performing his
duties as a state employee and is not a full‑time state employee.
ARTICLE 9.
RELEASE, DISCHARGE AND RECONFINEMENT, GENERALLY
SECTION 44‑17‑810. Release or discharge shall be upon
own recognizance.
Unless in the opinion of the attending physician a person is
incapable of caring for himself once released or
discharged from a mental health facility, he shall be released or discharged
upon his own recognizance. No other party
shall sign for his release or discharge unless that party shall be the person
who is to care for the released or discharged individual.
SECTION 44‑17‑860. Unlawful taking of person from
mental health facility without permission.
It shall be unlawful for any person, without prior
authorization from the patient’s attending physician, to take or cause to
be taken any patient away from the grounds of any facility under the
jurisdiction of the Department of Mental Health. Any person violating the provisions of this
section shall be fined in a sum of not more than one thousand dollars or
imprisoned for not exceeding one year, or both.
SECTION 44‑17‑865. Department to notify law
enforcement officials of patients absent without proper authorization.
If any person involuntarily committed to a facility under
the jurisdiction of the Department of Mental Health is absent without proper
authorization, the Department shall immediately notify by telephone the
appropriate state and local law enforcement officials of such absence. Such notice shall also be confirmed in
writing and mailed to such law enforcement officials within twenty‑four
hours after the absence is discovered.
SECTION 44‑17‑870. Reconfinement
of involuntarily committed patient who has left treatment facility without
proper authorization.
If a patient involuntarily committed to a facility under the
jurisdiction of the State Department of Mental Health is absent without proper
authorization, a state or local law enforcement officer or employee of the
department appointed pursuant to Section 44‑11‑70, upon the request
of the facility superintendent or director or a designee and without the
necessity of a warrant or a court order, may take the patient into custody and
return the patient to a facility designated by the department. No person may be reconfined
pursuant to this section after being continuously absent from the jurisdiction
of the department for at least one year unless criminal charges are still
pending against the patient or unless he was committed to a facility of the
department pursuant to Chapter 24, Title 17.
SECTION 44‑17‑890. Discharge or leave of absence
during judicial proceeding.
Notwithstanding any other provisions of this chapter, no
person with respect to whom proceedings for judicial confinement have been
commenced shall be granted leave of absence, or discharged during the pendency of such proceedings unless ordered by the court
upon the application of the patient or his legal guardian, parent, spouse or
next of kin or upon the report of the superintendent of the facility that the
person may be discharged with safety.
SECTION 44‑17‑900. Officials not liable for release or
discharge of patient.
Neither the superintendent of a mental health facility nor
any other person legally participating in the release or discharge of a patient
shall be liable either civilly or criminally on account of such participation.
CHAPTER 22.
RIGHTS OF MENTAL HEALTH PATIENTS
SECTION 44‑22‑10. Definitions.
As used in this chapter:
(1) [Reserved]
(2) “Director” means the Director of the
Department of Mental Health.
(3) “Court” means probate court.
(4) “Department” means the State Department of
Mental Health.
(5) “Facility” means a residential program
operated by the department.
(6) “Independent examination” means an
examination of a patient by a qualified employee of the department.
(7) “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.
(8) “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.
(9) “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.
(10) “Multi‑disciplinary team” means
persons drawn from or representing the professional disciplines or service
areas included in the treatment plan.
(11) “Patient” means an individual undergoing
treatment in the department;
however, the term does not include a person committed to the
department pursuant to Chapter 48 of Title 44.
(12) “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.
(13) “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.
(14) “Treatment” means the attempted correction
or facilitation of a mental illness or alcohol and drug abuse.
SECTION 44‑22‑20. Right to writ of habeas corpus.
Patients have the right to the writ of habeas corpus.
SECTION 44‑22‑30. Right to counsel for involuntarily
committed persons suffering from mental illness or chemical dependency.
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. Consent to electro‑convulsive
therapy or major medical treatment; determination of ability to give
consent; who may give consent.
(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. Treatment suited to needs; least restrictive
care and treatment.
(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
ensure 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
Department of Alcohol and Other Drug Abuse Services 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. Explanation of rights with regard
to admission to facility;
individualized treatment plan.
(A) Before or when admitted to a facility, 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 six hours of admission a patient must be examined
by a physician. 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 or chemical dependency 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. Assessment of patient; establishment
and review of individualized treatment plan; discharge plan; notice of
discharge.
(A) The individualized plan of treatment must be reviewed
every thirty days by the multi‑disciplinary team during the first two
months of inpatient treatment. After two
months of inpatient treatment, the plan must be reviewed every sixty days,
except in long‑term nursing care facilities the plan must be reviewed
every ninety 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) For patients committed after a hearing by the probate
court for the involuntary inpatient treatment for mental illness or chemical
dependency, an appropriate and comprehensive discharge plan must be
developed. Planning for a
patient’s discharge must begin within seventy‑two hours of
admission, must include input from the patient, and must address community
treatment, financial resources, and housing.
The facility and community treatment staff must be involved in
developing the discharge plan.
Representatives of all entities which provide services pursuant to the
plan must be consulted and informed about the plan. 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. Patients’ rights.
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. Communications with mental health
professionals privileged;
exceptions.
(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. Confidentiality of records; exceptions; violations and penalties.
(A) Certificates, applications, records, and reports made
for the purpose of this chapter or Chapter 9, Chapter 11, Chapter 13, Article 1
of Chapter 15, Chapter 17, Chapter 23, Chapter 24, Chapter 25, Chapter 27, or
Chapter 52 of this title 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 Department of Alcohol
and Other Drug Abuse Services and with the consent of the patient;
(4) disclosure is necessary to
cooperate with law enforcement, health, welfare, and other state or federal
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 24, Chapter 25,
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. Access to medical records; appeal of denial of
access.
(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 Director of the Department of Mental Health. The director of the residential program shall
notify the patient or guardian of the right to appeal.
SECTION 44‑22‑120. Patients’ rights; communication with outside; visitors;
personal belongings and effects;
clothing; religious practice; limits on rights made part of record and
valid no more than 30 days.
(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. To
the extent staff determines a patient is able and willing to care for and
maintain the patient’s own clothing, the patient must be assisted in
maintaining this clothing during the patient’s 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. If property belonging to a patient is not
reclaimed within ninety days following the patient’s discharge or death,
the property may be utilized by the department for the benefit of other
patients or programs ten days after written notice is sent to the individual or
the individual’s family at the last known address;
(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. Physical examination of
involuntarily committed patient to rule out physical condition mimicking mental
illness.
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. Authorization of, and
responsibility for, treatment and medication; guidelines for medication; rights with respect to refusal of treatment.
(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. Restraint; seclusion; physical coercion.
(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 or on‑call 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 mechanical
restraint must have the restraints removed at least 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.
(C) “Restraint” shall not include medical
protective devices used as a regular part of medical, diagnostic, or surgical
procedures, used to posturally support a patient, or
used to obtain or maintain normative bodily functioning.
SECTION 44‑22‑160. Employment within facility; compensation;
right to refuse nontherapeutic employment.
(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. Education of school‑aged
residents.
(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. Exercise and exercise facilities; right to go
outdoors.
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. Finding employment for mentally
disabled citizens.
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. Move of patient to less restrictive
setting; court
approval required for move to more restrictive setting.
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. Temporary leaves of absence.
(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 ninety days.
(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. Grievances concerning patient
rights; penalties for denial of patient rights.
(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.
CHAPTER 23.
PROVISIONS APPLICABLE TO BOTH MENTALLY ILL AND MENTALLY
RETARDED PERSONS
ARTICLE 1.
DEFINITIONS AND GENERAL MATTER
SECTION 44‑23‑10. Definitions.
When used in this chapter, Chapter 9, Chapter 11, Chapter
13, Articles 3, 5, 7 and 9 of Chapter 17, and Chapter 27, the following terms
shall have the meanings ascribed to them in this section, unless the context
clearly indicates a different meaning:
(1) “Mentally ill person” means a person
afflicted with a mental disease to such an extent that, for his own welfare or
the welfare of others or of the community, he requires care, treatment or
hospitalization;
(2) “Likelihood of serious harm” means because
of mental illness there is (1) a substantial risk of physical harm to the
person himself as manifested by evidence of threats of, or attempts at, suicide
or serious bodily harm; (2) a
substantial risk of physical harm to other persons as manifested by evidence of
homicidal or other violent behavior and serious harm to them or (3) a very
substantial risk of physical impairment or injury to the person himself as
manifested by evidence that such person’s judgment is so affected that he
is unable to protect himself in the community and that reasonable provision for
his protection is not available in the community;
(3) “Patient” means any person who seeks
hospitalization or treatment under the provisions of this chapter, Chapter 9,
Chapter 11, Chapter 13, Article 1 of Chapter 15, Chapter 17 and Chapter 27, or
any person for whom such hospitalization or treatment is sought;
(4) “Officer of the peace” means any State,
county or city police officer, officer of the State Highway Patrol, sheriff or
deputy sheriff;
(5) “Licensed physician” means an individual
licensed under the laws of this State to practice medicine or a medical officer
of the government of the
(6) “Nonresident licensed physician” means an
individual licensed under the laws of another state to practice medicine or a
medical officer of the government of the
(7) “Designated examiner” means a physician duly
licensed by the Board of Medical Examiners of this State or a person registered
by the Commission as specially qualified, under standards established by it, in
the diagnosis of mental or related illnesses;
(8) “Superintendent or Director” means the chief
executive officer of any mental health facility or hospital receiving patients
under the provisions of this chapter, Chapter 9, Chapter 11, Chapter 13,
Article 1 of Chapter 15, Chapter 17, and Chapter 27, or a physician appointed
as the designee of such superintendent;
(9) “Director” means the Director of the
Department of Mental Health;
(10) “Department” means the South Carolina
Department of Mental Health;
(11) “Treatment” means the broad range of
emergency, outpatient, intermediate, and inpatient services and care, including
diagnostic evaluation, medical, psychiatric, psychological, and social service
care, vocational rehabilitation and counseling, which may be extended to a
patient;
(12) “Discharge” means an absolute release or
dismissal from an institution;
(13) “Leave of absence” means a qualified
release from an institution;
(14) “State mental health facility” or
“facility” means any hospital, clinic, or other institution
maintained by the State for the care and treatment of persons who have
psychiatric illness;
(15) “Hospital” means a public or private
hospital;
(16) “Mental health clinic” means any
institution, or part thereof, maintained by the State for the diagnosis,
treatment and care on an outpatient basis;
(17) “State hospital” means a hospital, or part
thereof, equipped to provide inpatient care and treatment and maintained by the
State;
(18) “Parent” means natural parent, adoptive
parent, stepparent, or person with legal custody;
(19) “Guardian” or “legal guardian”
means a person who legally has the care and management of the person of one who
is not sui juris;
(20) “Nearest friend” means any responsible person
who, in the absence of a parent, guardian, or spouse, undertakes to act for and
on behalf of another individual who is incapable of acting for himself for that
individual’s benefit, whether or not the individual for whose benefit he
acts is under legal disability;
(21) “Interested person” means a parent,
guardian, spouse, adult next of kin, or nearest friend;
(22) “Attending physician” means the staff
physician charged with primary responsibility for the treatment of a patient;
(23) “Conservator” means a person who legally
has the care and management of the estate of one who is incapable of managing
his own estate, whether or not he has been declared legally incompetent;
(24) “Observation” means diagnostic evaluation,
medical, psychiatric and psychological examination and care of a person for the
purpose of determining his mental condition;
(25) “Mentally retarded person” means any
person, other than a mentally ill person primarily in need of mental health
services, whose inadequately developed or impaired intelligence and adaptive
level of behavior require for his benefit, or that of the public, special
training, education, supervision, treatment, care or control in his home or
community or in a service facility or program under the control and management
of the Department of Disabilities and Special Needs;
(26) “State of citizenship” means the last state
in which a person resided for one or more consecutive years, exclusive of time
spent in public or private hospitals and penal institutions or on parole or
unauthorized absence therefrom and of time spent in
service in any of the Armed Forces of the United States; the residence of a person shall be
determined by the actual physical presence, not by the expressed intent of such
person.
SECTION 44‑23‑20. Inapplicability to
The provisions of this chapter, Chapter 9, Chapter 11,
Chapter 13, Article 1 of Chapter 15, Chapter 17 and Chapter 27, shall not be
construed as applying to
SECTION 44‑23‑30. Nonresident licensed physician may
examine resident patient out of State.
A nonresident licensed physician may examine a patient who
is institutionalized or is temporarily visiting or residing in another state
but whose domiciliary residence is in a particular county in this State.
SECTION 44‑23‑40. Appeal to court from rules and
regulations.
Any person affected by the rules and regulations of the
Department adopted pursuant to Section 44‑9‑100 shall have the
right to appeal therefrom to any court of record.
ARTICLE 3.
DETENTION, CONFINEMENT AND TRANSFER OF CONFINED
PERSONS
SECTION 44‑23‑210. Transfer of confined persons to or
between mental health or mental retardation institutions.
A person confined in a state institution or a person
confined in a state or private mental health or mental retardation facility may
be transferred to another mental health or mental retardation facility if:
(1) the superintendent of a state
institution not under the jurisdiction of the Department of Mental Health or
the director of a treatment facility under the jurisdiction of the Department
of Mental Health requests the admission of a person confined there to a state
mental health facility if the person is suspected of being mentally ill. If after full examination by two designated
examiners, one of whom must be a licensed physician, the director of the mental
health facility is of the opinion that the person is mentally ill, the director
shall notify the superintendent of the institution or the director of the
facility to which the person was admitted who shall commence proceedings
pursuant to Sections 44‑17‑510 through 44‑17‑610;
(2) the director of a facility in
which the patient resides determines that it would be consistent with the
medical needs of the person, the Department of Mental
Health may transfer or authorize the transfer of the patient from one facility
to another. If the transfer is from a
less restricted facility to a substantially more secure facility and the
patient objects to the transfer, a hearing to give the patient a reasonable
opportunity to contest the transfer must be held pursuant to Sections 44‑17‑540
through 44‑17‑570. When a
patient is transferred, written notice must be given to the patient’s
legal guardian, attorney, parents or spouse or, if none be known, to the
patient’s nearest known relative or friend. This section may not be construed to apply to
transfers of a patient within a mental health facility; or
(3) the legal guardian, parent,
spouse, relative, or friend of an involuntary patient submits a request for the
transfer of the patient from one facility to another and the reasons for
desiring the transfer to the Department of Mental Health and unless the
Department of Mental Health reasonably determines that it would be inconsistent
with the medical needs of the person, the transfer must be made. If the transfer is from a less restricted to
a substantially more secure facility, item (2) governs.
SECTION 44‑23‑220. Admission of persons in jail.
No person who is mentally ill or mentally retarded shall be
confined for safekeeping in any jail. If
it appears to the officer in charge of the jail that such a person is in
prison, he shall immediately cause the person to be examined by two examiners designated
by the Department of Mental Health or the Department of Disabilities and
Special Needs or both, and if in their opinion admission to a mental health or
retardation facility is warranted, the officer in charge of the jail shall
commence proceedings pursuant to Sections 44‑17‑510 through 44‑17‑610,
or Section 44‑21‑90. If
hospitalization is ordered the person shall be discharged from the custody of
the officer in charge of the jail and shall be admitted to an appropriate
mental health or retardation facility.
SECTION 44‑23‑240. Causing unwarranted confinement.
Any person who wilfully causes, or
conspires with or assists another to cause the unwarranted confinement of any
individual under the provisions of this chapter, Chapter 9, Chapter 11, Chapter
13, Article 1 of Chapter 15, Chapter 17 or Chapter 27, shall be fined not
exceeding one thousand dollars or imprisoned for not exceeding one year, or
both.
SECTION 44‑23‑250. Signature of superintendent of
institution.
Whenever reference is made requiring the signature of the
superintendent of any institution it shall mean the superintendent or his
designee.
ARTICLE 5.
FITNESS TO STAND TRIAL
SECTION 44‑23‑410. Determination of capacity of
persons charged with crime to stand trial; duty of judge.
Whenever a judge of the Circuit Court or Family Court has
reason to believe that a person on trial before him, charged with the
commission of a criminal offense or civil contempt, is not fit to stand trial
because the person lacks the capacity to understand the proceedings against him
or to assist in his own defense as a result of a lack of mental capacity, the
judge shall:
(1) order examination of the person
by two examiners designated by the Department of Mental Health if the person is
suspected of having a mental illness or designated by the Department of
Disabilities and Special Needs if the person is suspected of being mentally
retarded or having a related disability or by both sets of examiners if the
person is suspected of having both mental illness and mental retardation or a
related disability; the examination must
be made within fifteen days after the receipt of the court’s order and
may be conducted in any suitable place unless otherwise designated by the
court; or
(2) order the person committed for
examination and observation to an appropriate facility of the Department of
Mental Health or the Department of Disabilities and Special Needs for a period
not to exceed fifteen days. If at the
end of fifteen days the examiners have been unable to determine whether the
person is fit to stand trial, the director of the facility shall request in
writing an additional period for observation not to exceed fifteen days. If the person or his counsel requests, the
person may be examined additionally by a designated examiner of his
choice. The report of the examination is
admissible as evidence in subsequent hearings pursuant to Section 44‑23‑430. However, the court may prescribe the time and
conditions under which the independent examination is conducted. If the examiners designated by the Department
of Mental Health find indications of mental retardation or a related disability
but not mental illness, the department shall not render an evaluation on the
person’s mental capacity, but shall inform the court that the person is “not
mentally ill” and recommend that the person should be evaluated for
competency to stand trial by the Department of Disabilities and Special
Needs. If the examiners designated by
the Department of Disabilities and Special Needs find indications of mental
illness but not mental retardation or a related disability, the department
shall not render an evaluation on the person’s mental capacity, but shall
inform the court that the person does “not have mental retardation or a
related disability” and recommend that the person should be evaluated for
competency to stand trial by the Department of Mental Health. If either the Department of Mental Health or
the Department of Disabilities and Special Needs finds a preliminary indication
of a dual diagnosis of mental illness and mental retardation or a related
disability, this preliminary finding must be reported to the court with the
recommendation that one examiner from the Department of Mental Health and one
examiner from the Department of Disabilities and Special Needs be designated to
further evaluate the person and render a final report on his mental capacity.
SECTION 44‑23‑420. Designated examiners’ report.
Within five days of examination under Section 44‑23‑410(1) or at the conclusion of the observation period under Section
44‑23‑410(2), the designated examiners shall make a written report
to the court which shall include:
(1) A diagnosis of the
person’s mental condition, and
(2) Clinical findings bearing on the
issues of whether or not the person is capable of understanding the proceedings
against him and assisting in his own defense, and if there is a substantial
probability that he will attain that capacity in the foreseeable future.
The report of the designated examiners shall not contain any
findings nor shall the examiners testify on the question of insanity should it
be raised as a defense unless further examination on the question of insanity
is ordered by the court.
SECTION 44‑23‑430. Hearing on fitness to stand trial; order
of court.
Upon receiving the report of the designated examiners the
court shall set a date for and notify the person and his counsel of a hearing
on the issue of his fitness to stand trial.
If, in the judgment of the designated examiners or the superintendent of
the facility if the person has been detained, the person is in need of
hospitalization, the court with criminal jurisdiction over the person may
authorize his detention in a suitable facility until the hearing. The person shall be entitled to be present at
the hearings and to be represented by counsel.
If upon completion of the hearing and consideration of the evidence the
court finds that:
(1) The person is fit to stand
trial, it shall order the criminal proceedings resumed; or
(2) The person is unfit to stand
trial for the reasons set forth in Section 44‑23‑410 and is
unlikely to become fit to stand trial in the foreseeable future, the solicitor
responsible for the criminal prosecution shall initiate judicial admission
proceedings pursuant to Sections 44‑17‑510 through 44‑17‑610
or Section 44‑20‑450 within sixty days during which time the court
shall order him hospitalized;
or
(3) The person is unfit to stand
trial but likely to become fit in the foreseeable future,
the court shall order him hospitalized for an additional sixty days. If the person is found to be unfit at the
conclusion of the additional period the solicitor responsible for the criminal
prosecution shall initiate judicial admission proceedings pursuant to Sections
44‑17‑510 through 44‑17‑610 or Article 1 of Chapter 21
of this title within fourteen days during which time the person shall remain
hospitalized.
Subject to the provisions of Section 44‑23‑460,
patients against whom criminal charges are pending shall have all the rights
and privileges of other involuntarily hospitalized patients.
Persons against whom criminal charges are pending but who
are not ordered hospitalized following judicial admission proceedings shall be
released.
SECTION 44‑23‑440. Finding of unfitness to stand trial
shall not preclude defense on merits.
A finding of unfitness to stand trial under Section 44‑23‑430
does not preclude any legal objection to the prosecution of the individual
which is susceptible of fair determination prior to trial and without the
personal participation of the defendant.
If either the person found unfit to stand trial or his
counsel believes he can establish a defense of not guilty to the charges other
than the defense of insanity, he may request an opportunity to offer a defense
on the merits to the court. The court
may require affidavits and evidence in support of such request. If the court grants such request, the
evidence of the State and the defendant shall be heard before the court sitting
without a jury. If after hearing such
petition the court finds the evidence is such as would entitle the defendant to
a directed verdict of acquittal, it shall dismiss the indictment or other
charges.
SECTION 44‑23‑450. Reexamination of finding of
unfitness.
A finding of unfitness to stand trial under Section 44‑23‑430
may be reexamined by the court upon its own motion, or that of the prosecuting
attorney, the person found unfit to stand trial, his legal guardian, or his
counsel. Upon receipt of the petition,
the court shall order an examination by two designated examiners whose report
shall be submitted to the court and shall include underlying facts and
conclusions. The court shall notify the
individual, his legal guardian, and his counsel of a hearing at least ten days
prior to such hearing. The court shall
conduct the proceedings in accordance with Section 44‑23‑430,
except that any petition that is filed within six months after the initial
finding of unfitness or within six months after the filing of a previous
petition under this section shall be dismissed by the court without a hearing.
SECTION 44‑23‑460. Procedure when superintendent
believes person charged with crime no longer requires hospitalization.
When the superintendent of a hospital or mental retardation
facility believes that a person against whom criminal charges are pending no
longer requires hospitalization, the court in which criminal charges are
pending shall be notified and shall set a date for and notify the person of a
hearing on the issue of fitness pursuant to Section 44‑23‑430. At such time, the person shall be entitled to
assistance of counsel.
(1) If upon the completion of the
hearing, the court finds the person unfit to stand trial, it shall order his
release from the hospital;
and
(2) If such a person has been
hospitalized for a period of time exceeding the maximum possible period of
imprisonment to which the person could have been sentenced if convicted as
charged, the court shall order the charges dismissed and the person released; or
(3) The court may order that
criminal proceedings against a person who has been found fit to stand trial be
resumed, or the court may dismiss criminal charges and order the person
released if so much time has elapsed that prosecution would not be in the
interest of justice.
ARTICLE 11.
TREATMENT, RIGHTS, PRIVILEGES AND EXPENSES OF
PATIENTS GENERALLY
SECTION 44‑23‑1080. Patients and prisoners denied
access to alcoholic beverages, firearms, dangerous weapons and controlled
substances.
No patient or prisoner under the jurisdiction of the South
Carolina Department of Mental Health is allowed access to alcoholic beverages,
firearms, dangerous weapons, or controlled substances as defined by Section 44‑53‑110. Any person who intentionally or negligently
allows patients or prisoners of the department access to these items or who
attempts to furnish these items to patients or prisoners of the department is
guilty:
(1) in the case of alcoholic
beverages or controlled substances, of a misdemeanor and, upon conviction, must
be punished by a fine of not less than one hundred dollars nor more than ten
thousand dollars or imprisonment for not less than thirty days nor more than
ten years, or both; and
(2) in the case of firearms or
dangerous weapons, of a felony and, upon conviction, must be punished by a fine
of not less than one thousand dollars nor more than ten thousand dollars or
imprisonment for not less than one year nor more than
ten years, or both.
SECTION 44‑23‑1100. Disclosure of copies of completed
forms retained by probate judges.
Any copies of completed forms retained by judges of probate
shall be safeguarded in a confidential file, and the information therein
contained shall not be disclosed except pursuant to Section 44‑22‑100.
SECTION 44‑23‑1110. Charges for maintenance,
care and services.
The Department of Mental Health shall establish the charges
for maintenance and medical care for patients, other than beneficiary, of State
mental health facilities. These charges
shall be based upon the per capita costs per day of the services rendered,
which may include costs of operation, costs of depreciation, and all other
elements of cost, which may be adjusted from time to time as the Department of
Mental Health considers advisable. It
shall establish a reasonable scale of fees to be charged patients, other than
beneficiary, served by the mental health clinics and shall retain these fees
for use in defraying the expenses of the clinics.
SECTION 44‑23‑1120. Liability of estate of deceased
patient or trainee.
Upon the death of a person who is or has been a patient or
trainee of a State mental health facility the executor or administrator and the
judge of probate shall notify the Department of Mental Health in writing. If the decedent was cared for at the expense
of the State during his confinement, the Department of Mental Health shall
present a claim for the amount due, and this claim shall be allowed and paid as
other lawful claims against the estate.
The Department of Mental Health may waive the presentation of any claim
when, in its opinion, an otherwise dependent person would be directly benefited
by waiver.
SECTION 44‑23‑1130. Contracts for care and treatment.
The Department of Mental Health shall make investigations
and ascertain which of the patients or trainees of State mental health
facilities or which of the parents, guardians, trustees, committees or other
persons legally responsible therefor are financially
able to pay the expenses of the care and treatment, and it may contract with
any of these persons for a patient’s or trainee’s care and
treatment. The Department of Mental
Health may require any county or State agency which might have or might be able
to obtain information which would be helpful to it in making this investigation
to furnish this information upon request.
In arriving at the amount to be paid the Department of Mental Health
shall have due regard for the financial condition and estate of the patient or
trainee, his present and future needs and the present and future needs of his
lawful dependents, and whenever considered necessary to protect him or his
dependents may agree to accept a monthly sum less than the actual per capita
cost.
SECTION 44‑23‑1140. Lien for care and treatment; filing
statement; limitation
of action for enforcement.
There is hereby created a general lien upon the real and
personal property of any person who is receiving or who has received care or
treatment in a State mental health facility, to the extent of the total expense
to the State in providing the care, training or treatment. The Department of Mental Health shall send to
the clerk of court or the register of deeds in those counties having such
officer and the judge of probate of the county of the patient’s or
trainee’s known or last known residence a statement showing the name of
the patient or trainee and the date upon which the lien attaches, which shall
be filed in the offices of the clerk of court or the register of deeds in those
counties having such officer and the judge of probate in each county in which
the patient or trainee then owns or thereafter acquires property, real or
personal, and no charge shall be made for this filing. From the time of filing in either office, the
statement shall constitute due notice of the lien against all property then
owned or thereafter acquired by the patient or trainee. No action to enforce the lien may be brought
more than one year after the patient’s or trainee’s death. This lien shall in no way affect the right of
homestead.
SECTION 44‑23‑1150. Sexual misconduct with an inmate,
patient, or offender.
(A) As used in this section:
(1) “Actor” means an
employee, volunteer, agent, or contractor of a public entity that has statutory
or contractual responsibility for inmates or patients confined in a prison, jail,
or mental health facility. Actor includes individuals who supervise inmate
labor details outside of an institution or who have supervisory responsibility
for offenders on parole, probation, or other community supervision programs.
(2) “Victim” means an
inmate or patient who is confined in or lawfully or unlawfully absent from a
prison, jail, or mental health facility, or who is an offender on parole,
probation, or other community supervision programs. A victim is not capable of
providing consent for sexual intercourse or sexual contact with an actor.
(B) An actor is guilty of sexual misconduct when the actor,
knowing that the victim is an inmate, offender, or patient voluntarily engages
with the victim in an act of sexual intercourse, whether vaginal, oral, or
anal, or other sexual contact for the purpose of sexual gratification.
(C)(1) When the sexual misconduct involves an act of sexual
intercourse, whether vaginal, oral, or anal, the actor is guilty of the felony
of sexual misconduct, first degree and, upon conviction, must be imprisoned for
not more than ten years.
(2) When the sexual misconduct does
not involve sexual intercourse but involves other sexual contact which is
engaged in for sexual gratification, the actor is guilty of the felony of
sexual misconduct, second degree and, upon conviction, must be imprisoned for
not more than five years. The term sexual contact, as used in this subsection,
refers to an intrusion of any part of a person’s body or of any object
into the “intimate parts”, as defined in Section 16‑3‑651(d), of another person’s body, or to the fondling
of the “intimate parts” of another person’s body, which is
done in a manner not required by professional duties, but instead is done to
demonstrate affection, sexually stimulate that person or another person, or
harass that person.
(D) A person who knowingly or wilfully
submits inaccurate or untruthful information concerning sexual misconduct as
defined in this section is guilty of the misdemeanor of falsely reporting
sexual misconduct and, upon conviction, must be imprisoned for not more than
one year.
(E) A person who has knowledge of sexual misconduct who has
received information in the person’s professional capacity and fails to
report it to the appropriate law enforcement authority, or a person who
threatens or attempts to intimidate a witness is guilty of a misdemeanor and,
upon conviction, must be fined not more then five hundred dollars or imprisoned
for not more than six months, or both.
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